| N.M. | Jan 28, 1881
Lead Opinion
The % defendants in. this case were indicted at the last October term of the San Miguel district court for committing burglary in a baggage and express car of The New Mexico and Southern Pacific Railroad .Company, on the fourteenth day of said month of October last. The case was taken to Santa Fe county by change of venue; was tried there, defendants found guilty and sentenced, and the case brought to this court by appeal.
There is no general law of this territory making the acts charged against the defendants burglary, or by which they could be punished -under this indictment. The ground taken by the prosecution in this case is, substantially, that this indictment was founded upon and must and can be sustained by .the eighth section of title eighth of the railroad laws passed February 2d, A. D. 1878, taken in connection with section first of the act upon the same subject of February 12, A. D. 1878.
Section eighth aforesaid defines the crime of burglary in any case of any corporation formed under that act, and fixes the punishment, and section' one of the said subsequent act confers all the powers, privileges and exemptions of the said first act upon all the corporations incorporated under the laws of this territory for the purpose of constructing railroads, etc.
It was stated in the beginning of the, argument, and it is evident from the record and the argument of counsel, that this case depends upon the meaning of the word “privileges” in the act of February 12, 1878.
According to Jacob’s Law Dictionary, the original legal meaning of the word “ privilege ” is exemption of a private man or a particular corporation from the rigor of the common law. Another definition given by him is, exemption from some duty, burden or attendance. Bouviersays a privilege is a particular law which grants special prerogatives to some persons contrary to common right. Webster defines it to be immunity, franchise, right, claim, liberty, special exemption from evil or burden, special enjoyment of good, peculiar benefit or advantage.
Without multiplying authorities or definitions, it is sufficient to say that in no usual or proper or legal meaning of. the word privileges can it be used as claimed in this case.
The right of the people of New Mexico to prosecute and punish wrong-doers under this, or any other law, is not a privilege of any particular person or persons, corporation or corporations. It is something more than that. It is part of the criminal law of the country, énacted for the public good ; for the punishment of crime, and in which the whole community are interested. We are of the opinion that there is no law of this territory under which this indictment, verdict and judgment can be sustained.
But it does not follow upon this opinion that acts such as are alleged to have been proved upon the trial of this case can be committed with impunity.
The criminal code of New Mexico is believed to be sufficiently comprehensive to punish all invasions of. the rights of personal liberty, personal security, and private or public property.
What part or parts of that code are applicable to the alleged facts of this case, if any, it is not the province of this court either to determine or indicate.
The judgment of the district court is reversed.
Dissenting Opinion
dissenting: In this case, being unable to agree .with the conclusions of the majority of the court, I think it proper to pqt on record my reasons for such dissent.
There is no question raised as to the facts in the case, and the decision turns upon one single point, and that one of much importance and interest.
The defendants are indicted under sec. 8, of title 8, of chap. 1 of the laws of 1878, commonly known as the General Railroad Act. That section reads as follows: “ Any person who shall, in the day or night time, enter by force or otherwise, any car of any corporation formed under this act, with intent to steal any valuable thing then and there being, shall be deemed guilty of burglary, and, upon conviction thereof, shall punished as in other cases of burglary.”
The object of this law was very evident. The criminal code of the territory contained provision concerning burglary in dwelling houses, offices, shops, warehouses, outhouses; colleges, churches, meeting houses, court houses, town houses, academies and other public buildings, in the day time or night time, and under almost all conceivable circumstances (General Laws, secs. 9 to 13, chap. 7), and these included every kind of structure, which, down to that time, had been capable of being burglariously entered, in New Mexico.
Rut a new era was approaching. Railroads were being built almost to the boundaries of the territory, and it was hoped would soon enter its borders. . At that time, not .a rail had been laid in New Mexico, but the legislature, wishing to encourage the introduction of the modern methods of travel, enacted this general railroad law, which is very elaborate and comprehensive in its provisions, and gives to companies organized thereunder such powers, privileges, franchises and immunities as were supposed to be necessary or desirable and consistent with the public welfare. Among other privileges conferred was that of protection from robbery and depredation by burglars, by the enactment of the section above quoted. Other similar privileges were those of protection from having their roads undermined by tunnels, etc., the digging of which was made a misdemeanor (sec. 10 of title 8); protection from having their structures, engines, etc., injured, or track obstructed, which was afforded by making such injuries misdemeanors, punishable by law (sec. 11, title 8); protection from claims on the part of passengers for damages for injuries in cases where they had violated the regulations of the road (sec. 7); protection from attempts to throw cars off the track, or cause collisions, which are made felonies by sec. 9.
By section 1889 of the U. S. Revised Statutes, the legislature is prohibited from granting any “ especial privileges ” to any corporation or individual; but these privileges were included in a general act for the incorporation of railroad companies, intended not for the benefit of any one or more particular organizations, but for all that might exist in the territory, and thus were not obnoxious to the objection of being “ especial.” This act was passed on the 2d of February, 1878, but scarcely more than a day had elapsed, when it appeared that although there was no railroad actually built in New Mexico, yet there did exist one or more corporations for railroad purposes, which had been previously organized under the general incorporation act of 1868 : General Laws, p. 203.
That act was comparatively brief, and did not confer the privileges of protection and immunity from violence and damage to which we have referred, as well as many other powers, privileges and exemptions;, so that, unless legislative action were had, there would be two classes of railroad corporations — one possessing certain privileges and the other not. Besides, being manifestly unjust, this condition of affairs might also be construed as making these privileges “ especial,” which were thus confined to the corporations' formed under a particular act, and of which other similar corporations were deprived, and thus be in contravention of the law of congress previously referred to, which prohibited the granting of said “ especial privileges,” and, consequently, void.
The legislature proceeded with great promptitude to obviate the difficulty, so that a bill, prepared for the purpose, was introduced,-went through all its stages of consideration and progress, was passed by both houses and signed by the governor, and filed in the secretary’s office as a law, by the succeeding twelfth day of February, but ten days subsequent to the general railroad law. This remedial statute is chapter 3 of the Laws of 1878, and it reads as follows:
“ Section 1. All the powers, privileges and exemptions conferred upon corporations organized under an act entitled ‘ An act to provide for the incorporation of railroad companies and the management of the affairs thereof, and other matters relating thereto,’ approved February 2d, A. D. 1878, are hereby conferred upon all corporations incorporated under the laws of this territory for the purpose of constructing railroads, and also upon all corporations organized for railroad purposes that have registered in the office of the secretary of this territory the original or certified copy of their articles of incorporation, in accordance with an act entitled ‘ An act to amend an act entitled “An act to create a general incorporation law,” permitting persons to associate themselves together as bodies corporate for mining, manufacturing and other industrial pursuits, and to repeal the sixteenth section of said act,’ ” approved January 30th, 1878: General Laws of New Mexico, p. 470.
The obvious intention of this statute was to place all the railroad companies organized under the laws of the territory upon the same footing; to permit no inequality of rights or privileges; to allow no partiality towards those organized under any particular statute, but to bring about an entire ■uniformity and equality in their position before the law.
The privileges conferred by the act of February 2, 1878, were no longer to be “ especial ” to the companies organized thereunder, but were to be enjoyed generally and equally by all of similar character. Among the privileges were the high and important ones of protection from robbery, depredation and willful injury, to which we havé already referred.
Can ifc not be supposed that it was not intended by the legislature, when it enacted this law of February 12, that these privileges of protection and immunity should be included among' the privileges which were to be made general, and of which the older corporation were now to have the benefit equally with the newer ?
Tet this is the sole question in this case. It is in proof that the New Mexico & Southern Pacific Railroad Company, one of whose cars was the scene of the burglary in question, was not incorporated under Chapter I of the Law of 1878, but under a prior incorporation act, and this was one of those referred to in Chapter III of that year, and for whose benefit and protection that act was passed. The point was raised, and it is held by the decision of the court just •rendered that the offense was not- cognizable by one law under the present indictment, because the car entered was not the property of a corporation organized under Chapter I; and that Chapter III does not remedy the difficulty by placing cars of the other corporations therein mentioned on the same footing as to the privilege of protection from burglars with cars of companies organized under Chapter I.
It may be that the legislature could have employed stronger and more apt words than it did to express its will, but I cannot concur in the opinion that the object is not substantially and legally attained by the language as it exists in Chapter III. The intention of the legislature is, to my mind, too plain to admit of doubt. It was obviously to place all similar corporations on the same basis, to give to one railroad company exactly the same po/wers, privileges and exemptions that every other similar company possessed within our territory; to prevent any inequality, discrimination or favoritism. This was not only right, but absolutely essential, in order to make the privileges conferred general, and therefore legal. It is not to be supposed that they intended that the protection afforded equally to those of another, that it should be a crime punishable by a heavy penalty to enter one car in a train, with intent to steal, because that car happened to belong to one company, and no crime at all to enter the next car, with like intent, because that car unfortunately belonged to a different company. Yet that would be precisely the result if the legislature intended to make such a discrimination, and if the word “ privileges” in the act of February 12, 1878 does not .include the privilege of protection from burglary or other injury. Under this construction, while it is a misdemeanor to undermine the track of the Rio Grande, Mexico & Pacific Railroad, it is no offense similarly to endanger the property of the company and lives of passengers on the New Mexico & Southern Pacific Railroad. It is a felony to place an obstruction on the track of one, with intent to throw the train off; or to displace a switch with intent to cause a collision — a felony for which the offender can be imprisoned for ten years — and no statutory offense at all to do a like deed to the other. The defendants now before us under the indictment, in this case were felons if the car which they happened to try to rob belonged to one, and not guilty if it belonged to the other.
This would be, in my opinion, the height of injustice and inequality. The privilege of protection in the one case would be in the greatest degree “ especial.” Let us suppose the two roads ran in the same direction, and were opposed to each other in interest; would not that one have a very “especial privilege ” over the other, and reap its benefits in passengers and freight, which received the privilege of protection from robbers, from underminers and train-wreckers ?
Believing that the words of the act of February 12 conferred this protection and immunity from danger upon the New Mexico & Southern Pacific Railroad to which the car entered in this case belonged, I am compelled to dissent from the views of the majority of the court, in reversing the judgment herein.