Fisher v. New York Central & Hudson River Railroad

In 1852, the Buffalo and Lockport Railroad Company became a corporation under the provisions of the general railroad law, for the purpose of constructing and operating a railroad for the transportation of persons and property between these places, which road should pass through the village of Tonawanda, a place situate ten and a-half miles north of Buffalo.

The corporation commenced the construction of its road, and had completed the same from Lockport to Tonawanda, and under a contract with the Buffalo and ¡Niagara Falls Railroad Company, was engaged in the construction of a track for its use between Tonawanda and Buffalo, on the 7th of July, 1853, when it became consolidated with certain other companies, pursuant to the act of April 2d, 1853, into a new corporation, under the name of the ¡New York Central Railroad Company. At the time of this consolidation, and for some time previous thereto, the Buffalo and Niagara Falls

On the 7th of June, 1852, the Buffalo and Lockport, and the Buffalo and Niagara Falls companies entered into an agreement, by which the right of way on the line adopted by the Buffalo and Lockport company (substantially between Tonawanda and Buffalo) was to be procured at the joint expense of both companies, to be held and enjoyed by both companies jointly, for their joint and separate business, and that the grading, masonry and bridges were to be constructed at the joint expense of both companies, such grading, etc., to be of sufficient width for two tracks, said companies each to pay for itself the expense of the superstruetion of one track. This plainly contemplated that while the right of way was to be acquired at the joint expense of both companies, and the expense of grading, etc., paid in like manner, yet each company was to lay its own track thereon at its own' expense, if it chose to avail itself of its right so to do. The Buffalo and Niagara Falls Company never laid any track upon the line acquired under this agreement. On the 23d day of December, 1853, the New York Central Company entered into an agreement with the Buffalo and Niagara Falls Company by which (if valid) the former acquired from the latter the right to use the road and property connected therewith, and its franchises during the existence of the latter corporation. The validity of this contract is claimed by vir

It is upon this track the plaintiff was carried by the defend- " ant. Upon this track the defendant was, before and at the time it acquired the property and franchises of the Buffalo and Niagara Falls Railroad Company, obliged to carry passengers for two cents a mile. It was not relieved from its obligation so to carry them, by acquiring the franchise of the Buffalo and Niagara Falls Company to carry upon another track between the same points, and charge therefor a higher rate per mile. Whether there is, or has been since the removal of the old Buffalo and Niagara Falls road by the defendant, any track in existence between Buffalo and Tonawanda, upon which the defendant can charge more than two cents per mile, although the passenger may be going to Niagara Falls as held by the General Term, is a question of grave doubt, but one not necessary to decide in the present ease. It follows that the plaintiff was entitled to judgment under the act to prevent extortion by railroad companies. (Laws of 1857, 432.) That act (section 1) provides, that any railroad company which shall ask and receive a greater rate of fare than that allowed by law, shall forfeit fifty dollars, which sum may be recovered, together with the excess so received, by the party paying the same; but that it shall be lawful, and not construed as extortion, for any railroad company, to take the legal rate of fare for- one mile for any fractional distance less than a mile. The defendant insists that but one penalty can be recovered in the action. First, for the reason, that by the fair construction of the act, no person can acquire a right to recover more, for any and all violations previous to the commencement of the action. Second, that but one penalty can be recovered in an action, in the absence of a statute conferring the right to recover more.

It is clear that the excess exacted, if not voluntarily paid, could be recovered without the statute. That provides, also, for its recovery, and, doubtless, the whole amount of excess, paid by any person to the company within the period fixed

The counsel for the respondent insists that, as soon as the excess of fare was charged and received, the right of action, by the person paying it, for its recovery, and also of the sum of fifty dollars, forfeited, was perfect.

In this the counsel is correct. He further insists that it follows, that a repetition of the act by the defendant, gives him an additional right of the same character; but that is quite a different question, which must be determined by the construction of the statute. In this connection the counsel cites Palmer v. Conly ( 4 Denio, 374 ). That was an action against several persons, to recover the penalty given by section 17, 2 Revised Statutes, p. 503, for knowingly assisting the plaintiff’s tenant to remove his goods from the demised premises, having rent due thereon, for the purpose of avoiding the payment of the rent; and the question was, whether the statute abolishing distress for rent, passed during the pendency of the action, was a bar to its further prosecution. Held, that it was not, for the plain reason that the statute abolishing distress for rent, although rendering the section, giving the penalty, inoperative for the future, because no case could occur rendering its violation possible, yet it did not repeal the section. It is from the opinion in this case, and of that of the learned judge when the same case was before this court upon appeal (2 Comst., 182), that the counsel cites, to show that the right to the penalty was one vested in the plaintiff. That this is not true, in the sense insisted upon by the counsel, is shown

To remedy this, the statute was passed giving the fifty dollars to the party paying the money, not as a satisfaction for the injury received, for that was otherwise compensated but to enable him to prosecute in a court of record, when

My conclusion is, that but one penalty can be recovered upon the statute under consideration, for all acts committed prior to the commencement of the action. If, after this, it is again violated, another may be recovered in another action commenced thereafter, and so on, as long as violations continue. This will not only tend to put a stop at once to the extortion, when it is committed knowingly by the defendant, but where it is done under a mistake as to its rights, will give it notice that its right to charge the amount claimed is challenged, and will induce a cautious examination of the question, and an abandonment of the claim before a ruinous amount of penalties have been incurred. The idea that a liability to a penalty of fifty dollars with costs of suit will be insufficient to restrain railroad corporations, is too evidently groundless to require consideration; but even if sound, the legislature, and not the courts, must apply the remedy. This makes it unnecessary to determine, whether if several penalties are recoverable, they can all be recovered in one action, or whether a separate action must be brought for each penalty. I dismiss this part of the case with the simple remark

This leads to a modification of all the judgments, by reducing the recovery in each case to one penalty, and the excess paid. This makes the question of costs discretionary with the court. While the general rule is, that when it is found that the judgment is materially erroneous to the prejudice of the appellant, for the correction of which he is obliged to come into this court, to charge the respondent with costs of this court, yet I think they should not be so charged in these cases. The character of the litigation leads me to the conclusion that neither party should recover the costs of this court against the other.

Ch. J., Allen and Folger, JJ., concur.

dissents from so much of the opinion and decision, as allows a party buying tickets for the purpose of suing for a penalty, to recover.

Rapallo, J., not voting; being interested in the question as counsel.

Judgment accordingly.