Opinion
March Term, 1898.
Hull Greenfield, for the appellant.
D.W. Van Hoesen, for the respondent.
It is true that in the list of acts declared repealed by the Railroad Law of 1890, chapter 594, Laws 1872, under which the defendant charged the plaintiff four cents per mile, is not found. In Beardsley v. N.Y., L. Erie W.R.R. Co. ( 15 App. Div. 251) we reached the conclusion "that it was the intent of the Legislature to include within the classification of section 37 every railroad corporation except the New York Central, and prescribe the only rule or rules which should govern the entire subject." In addition to what was there said, it may be remarked that the act of 1890 is professedly one of a series of general laws. It is the Railroad Law. It was enacted after sixty years of experiment, evolution and development in railroad construction and operation. The railroad system had passed beyond the day of special laws for special needs, and the Legislature supposed it could deal with it in a manner fitted to its maturity and uniformity. Thus the greater reason for holding that the Legislature did intend that its general act should supersede all former special acts, and that chapter 594, Laws of 1872, is repealed by implication.
But, assuming this to be so, it does not follow that the defendant has incurred the penalty. The act imposing it excepts an overcharge made through "mistake not amounting to gross negligence." Whether the general act repealed the special one by implication is a matter not patent upon the face of the general act, but is an inference of law. What the inference of law is may remain unknown until the courts declare it. Meantime, parties who are called upon to interpret the two statutes and act upon them, may make a mistake as to the ultimate ruling of the court. It is often hard in such cases for the mistaken party to pay the actual damages which his mistake has caused. In this respect ignorance of the law is no excuse. But, when it comes to imposing a penalty in addition, then, if the statute opens a way of escape for the mistaken offender, the statute should be liberally construed in his favor and rigidly against the party seeking to recover the penalty. What we should hold if the statute did not contain this exception we need not say. We think section 37 is so framed as to exempt the defendant from this penalty. The plaintiff would, no doubt, be entitled to recover the overcharge, seven cents, but such a nominal recovery would not protect him from costs.
The plaintiff contends that section 5 of the act of 1872, which gave the right to the Utica, Ithaca and Elmira Railroad Company to charge four cents per mile, was unconstitutional because the act was a local or private one, embracing more than one subject, and not expressing this one in its title. The act was entitled: "An act to authorize the Utica, Ithaca and Elmira Railroad Company to extend their road, and to confirm their purchase of a portion of the roadbed of the Lake Ontario, Auburn and New York railroad, and for other purposes."
He also contends that the defendant, as the successor company, through various transfers, some of them to individuals, did not acquire the franchise to charge four cents per mile even if the act were valid.
If either of these contentions is valid, a question we need not decide, the defendant, for the reasons already stated, would not be liable for the penalty.
The judgment should be affirmed, with costs.
All concurred.
Judgment affirmed, with costs.