60 N.Y.S. 163 | N.Y. App. Div. | 1899
The parties to this action have - narrowed the issues to a single question. The plaintiff has formulated this question in plain terms: Can street surface railway companies, incorporated under the General Railroad Law of the State (Laws of 1890, chap. 565), operate ears designed and intended exclusively for carrying express matter, freight or property, and used exclusively for such purpose? If this question be answered in the affirmative, the judgment must be affirmed ; if in the negative, it must be reversed. The.court below returned an affirmative answer, and we have no doubt of the correctness of such answer. It must be conceded at the outset, in terms as broad as the plaintiff claims, that the defendants must justify-the right which they assume to exercise by the terms of some grant of power as broad as the acts which they do and the •contract which has been made. In construing the grant of power, nothing is to be taken as given unless found in the grant or shown to be necessarily incidental thereto, arid if not so found, it will be deemed to be withheld. (Mayor v. Broadway, etc., R. R. Co., 97 N. Y. 275; Mayor v. Dry Dock, E. B. & B. R. R. Co., 47 Hun,
The Legislature has also assumed to grant authority to carry both . passengers and freight. The language which accomplished this purpose has varied slightly, but is in substance the same grant of power. The act creating the Mount Prospect and Carroll Street Railroad Company in the city of Binghamton granted the right “ to convey passengers or freight thereon, for compensation.” (Laws of 1873, chap. 276.) In authorizing an incorporation of a surface street railroad in the city of Schenectady the grant was “ to carry passengers and freight thereon for compensation.” (Laws of 1873, chap. 546.) In the-city of Rome and the village of Catskill the language of the acts was, respectively, “ an.d convey passengers or freight for a compensation,” “ and to convey passengers and freight for a compensation.” (Laws of 1874, chaps. 441, 181.) In the city of Brooklyn the language was, “ for conveying persons and property by horse power.” (Laws of 1874, chap. 479.) It is, therefore, plain that so far as resort is had to special legislation chartering street surface railroad companies the grant of power has varied, but such legislation has assumed to confer the same right in most of the cases to carry freight as to -carry- passengers, The defendant, The Brooklyn Heights Railroad Company, was created by the act
We are always to look at surrounding conditions when they will aid in the interpretation of a statute, and so we may consider the fact that, the revision commission had before it all óf the railroad legislation of the State, both special and general; and it must also be presumed to have known of the decisions of the courts interpreting these laws. That interpretation, made by the highest court of the State, had construed the words giving authority to carry passengers and freight or property as imputing a grant to transport passengers or, freight, or both. This being the condition of legislation and interpretation, the revisers must be considered as having intentionally made use of the same terms in granting authority to convey “ persons and property in cars for compensation ” (Laws of 1890, chap. 565, § 90), as such words had been interpreted^ to- mean by the courts. In addition to this there was a statute applicable to the county of 'Kings alone which provided -that no railroad company, organized under the laws of the State, should stop its cars, horses or locomotives upon any railroad crossing of any other railroad company crossing the same on the surface for the purpose of delivering passengers or freight. This act clearly contemplated that surface railroads might carry freight as well as passengers.- The provision-was in terms re-enacted in section 36 of the General Railroad Law and now applies to all railroads. The General Railroad Law has been several times amended, but no amendment has assumed to change or modify the grant of power as stated in the laws to which, we have called attention. It is a well-settled canbn of construction that the revision of a law does not ipso facto work a change in its construction. (Davis v. Davis, 75 N. Y. 221.) To work a change
By familiar rules, therefore, we must hold that' the authority existed when this contract was • made to convey both passengers and freight over the defendant’s lines and to contract for cars to run thereon for the exclusive carriage of passengers and for the exclusive carriage of freight. Such is the language. of ■ the statute. It is said that this language must- be cut down and the right to convey property must be read in connection with the passenger, as though it said “ passengers with property.” It is not reasonably conceivable that the Legislature had such intention. In the ordinary carriage of passengers upon street railroads it has never been thought that passengers carrying small articles or such baggage as may be carried by hand was the occasion for the use of the word “ property ” as used in the statute. The regulation for the carriage of such property, that which accompanies the passenger, even upon commercial roads, is usually by rule of the company and not by statute; it stands upon a different footing from the carriage of other property, and by common acceptation is usually denominated, baggage, or, to adopt the English expression, luggage, meaning in popular phrase that which is carried by the person. No such limited meaning is to be ascribed to language deliberately used in a statute, where the interpretation placed upon it was as discriminating freight quite independent of passage by its owner. Certainly no one would have supposed that the Johnstown and Gloversville Railroad Company was violating its charter by the carriage of a handbag accompanied by its owner, and yet it was prohibited- from carrying anything except persons or passengers. If there had been added to that statute authority to carry property, we think that no one would have thought it limited to such articles as the passenger could carry with
It is undoubtedly true that the defendants, as to whatever right they have acquired to transport passengers or freight or property, have a vested right which may not be defeated or-impaired by legislation. Such is the efiect of the decisions. (Ingersoll v. Nassau Electric R. R. Co., 157 N. Y. 453; Roddy v. Brooklyn City & Newtown R. R. Co., 32 App. Div. 311.) But we do not apprehend that such fact, nor our present construction of the statute, will entail all of the evils which the appellant insists must follow in the train of such result. . It can never happen that the right of use conferred by the franchise granted street surface railroads will result in the operation of long trains for the transportation of either passengers-or property. Commercial railroads do not furnish a parallel of use. The latter are constructed upon the property of the corporation over which, except for purposes of crossing and otherwise in a very limited way, the general public do not travel,' and have thereon, except for purpose of transportation, no right. This condition is created for the express purpose of furnishing facilities for the hauling of long consolidated trains, which may be operated • for the reason that all else is excluded except such operation. . The grant of power to these corporations was-conditioned upon the crea
The judgment should be affirmed.
All concurred.
Interlocutory judgment affirmed, with costs.