162 N.Y. 230 | NY | 1900
This action was brought to recover the sum of $50 prescribed by chapter 1027 of the Laws of 1895,, entitled “ An act in relation to the issue of mileage boobs by railroad corporations,” as a penalty for the defendants’ refusal to issue to plaintiff a mileage book entitling the holder to-travel one thousand miles on the lines of their road, as directed by that statute. The complaint alleged the incorporation of the defendant railroad company; that on July 25th, 1893, the-individual defendants were appointed receivers of the defendant corporation, and have ever since continued to operate its. road ; that on July 8, 1895, the plaintiff tendered the defendants the sum of $20 and demanded that they issue to him a. mileage book entitling him to travel one thousand miles in accordance with the provisions of the statute mentioned, and that the defendants refused to issue such book. The defendants demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The.demurrer having been overruled, the defendants, under leave-given to them by the court for that purpose, served an answer-by which, after reserving and insisting that the complaint did not state facts sufficient to constitute a cause of' action, they set up several defenses which, for the disposition of this, appeal, it is unnecessary to detail. By consent, the action was. tried before the court without a jury. The trial court held
There is very little for us to write in this case, for the decision of the Supreme Court of the United States in Lake Shore & M. S. Ry. Co. v. Smith (173 U. S. 684), rendered since the judgment of the Appellate Division, has practically foreclosed all discussion on the question of the constitutionality of statutes of the character of the one before us. In that case, there was before the court for review a statute of the state of Michigan, which enacted that railroad companies within that state should keep for sale one-thousand-mile tickets valid for two years at the price of $20 in the Lower Peninsula and $25 in the Upper Peninsula. The Supreme Court held, through Beckham, J., that the statute was not a valid exercise of the police power of the state, nor of the power of the state to establish maximum prices for the transportation of persons and property “ but an arbitrary enactment in favor of the persons spoken of (those who were able or willing to purchase one-thousand-mile tickets) who, in the legislative judgment, should be carried at less expense than the other members of the community.” It was further held that such legislation was a violation of that part of the Constitution of the United States which forbids the taking of property without due process of law; and, hence, invalid. It is not necessary nor would it be profitable for us to review the discussion or argument by which that result was reached. It is sufficient for us to recognize the point of the decision and that the decision is binding upon us. The statute before us cannot be differentiated in principle, and hardly in detail, from that decided by the Federal court to be in violation of the Constitution of the United States. The provisions of the Constitution of Michigan differ from those of the Constitution of this state. But the case cited was taken to the Supreme
The learned counsel for the respondent urges that the objection upheld in Lake Shore, etc., v. Smith was not taken or raised in this case in the courts below. We think this claim is untenable. - It is conceded by the respondent that the appellants, in their attack on the sufficiency of the complaint, did object that the statute was in contravention of both the Federal and State Constitutions, in that it took the defendants’ property without due process of law, but he asserts that the reasoning by which the Supreme Court arrived at its decision in the case cited was not presented. It was enough that the defendants called the attention of the court to the constitutional provision which it was claimed the statute contravened ; the reasoning or argument by which that claim was attempted to be supported is immaterial and would differ in different minds.
The judgment should be reversed and the complaint dismissed, with costs in all of the courts.
This case is necessarily governed by the principles laid down by the Supreme Court of the United States in Lake Shore & M. S. Ry. Co. v. Smith (173 U. S. 684). While I do not yield assent to the reasoning of that great court in that case, I am compelled to yield to its power and vote for reversal, but not for a dismissal of the complaint.
Judgment reversed, etc.