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Opinion of the Court, per RAPALLO, J.

be sold and that payment of the whole amount due might be ordered. On this petition, after hearing the parties, the order in question was made, dated August 15, 1871, directing the sale of the mortgaged premises and the payment to the plaintiff, out of the proceeds of sale, of the installment of $5,000 of principal and the costs of the application. From this order an appeal was taken to the General Term.

It is objected, that the default by which the installment of $5,000 became due, occurred prior to the judgment of foreclosure, and that, therefore, the order is not authorized by the statute.

It is true, that for the reason stated the case is not literally within the statute which provides for sales on defaults occurring subsequent to the decree; but there was a subsisting valid order of foreclosure and sale, not appealed from; and, independently of the statute, if this order failed to protect the equitable rights of the parties before the court, the court had the power to supply the defect by a supplementary order. (Livingston v. Mildrum, 19 N. Y., 443.) It is difficult to see in what other manner the plaintiff could, at that stage of the proceedings, have obtained the relief to which she was equitably entitled. The defendant sustained no prejudice by that course. The application for the supplementary order was made upon notice, and she had an opportunity of contesting the allegation that the $5,000 of principal had become due. She has failed to show any defence to the plaintiff's claim, and the effort on her part seems to have been throughout to defeat the plaintiff's right to collect the principal of the mortgage, which had become due by reason of the thirty days default. No merits are disclosed on the part of the defendants, and although the proceedings on the part of the plaintiff have not been conducted with the most strict regard to the rules of practice, yet the result which she obtained was substantially correct, and we think the General Term should have sustained the order appealed from..

The portions of the order of the General Term specified in the notice of appeal to this court should therefore be reversed,

Statement of case.

and the orders made at Special Term, dated June 13, 1871,
June 23, 1871, and August 15, 1871, should be affirmed, with
costs.

All concur.
Ordered accordingly.

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PHILO JOHNSON, Respondent, v. Tue HUDSON RIVER RAIL

ROAD COMPANY, Appellant.

49 455 110 222 49 455 120 394 49 455

431

By the provisions of section 49 of the general railroad act of 1850 (chap. 140, 148

Laws of 1850), all the powers and privileges contained in the act, without 49 455 distinction or discrimination, were conferred upon corporations then exist

168 2410 ing whether created by special charter or formed under the general act of 1848; but no duties, liabilities or burdens were imposed upon them, except such as were contained in certain sections enumerated, and which were "not inconsistent with the provisions of their charters.” This latter limitation is not a part of the clause granting the powers and privileges, and in no sense affects it. The legislature intended by this section that corporations then existing should not only possess and enjoy like powers and privileges, but those of the same character, measure and extent as were to be conferred upon corporations organized thereunder. Where, therefore, a corporation then existing was limited by its charter to a rate of fare for the carriage of passengers less than that prescribed by the act, i.e., three cents a mile (sub. 9, S 28), by the act it was authorized to increase its rates to a sum not exceeding that thus prescribed. (CHURCH, Ch. J.,

dissenting.) When the language of a statute is definite and as a precise meaning, it

must be presumed to declare the intent of the legislature, and it is not allowable to resort to other means of interpretation or by conjecture to restrict or extend the meaning.

(Argued September 11, 1871; decided May 21, 1872.)

APPEAL from judgment of the General Term of the Superior Court of the city of New York, affirming judgment in favor of plaintiff, entered upon the report of a referee.

This action was brought under the “act to prevent extortion by railroad companies" (chap. 185, Laws of 1857), for alleged taking of illegal fare by-defendant.

Plaintiff resided at Spuyten Duyvil and was a daily passen

Opinion of the Court, per ALLEN, J.

ger on defendant's road to and from New York. The distance was a fraction over ten miles. Plaintiff from May 10, 1865, to May 9, 1866, traveled over the road 526 times. By the act under which defendant was incorporated (Laws of 1846, p. 280), as modified by the act of 1850 (Laws of 1850, p. 14), defendant was prohibited from charging for way travel a greater sum than two and a half cents a mile during December, January, February and March, and two cents per mile for the residue of the year. It charged plaintiff thirty cents fare from Spuyten Duyvil to New York during the months mentioned and twenty-five cents the balance of the year.

The referee found that defendant charged a greater fare than was authorized, and was liable to pay the penalty of fifty dollars for each time proved, and directed judgment for the amount thereof, together with the excess of fare, to wit: the sum of $26,315.01. Judgment was entered accordingly.

Charles O' Conor for the appellant. Where the language of an act is clear and explicit, the court has no power to give it a different effect. (Bidwell v. Whittaker, 1 Manning, 479; Pearce v. Atwood, 13 Mass., 343.) To extend the forty-ninth section of the act of 1850, so as to involve excusable misinterpretation in vindictive penalties, would violate sound principles. (1 Black. Com., p. 88, sub. 4, Wendell's note, 40; Fish v. Fisher, 2 John. Case, p. 90; United States v. Cantril, 4 Cranch U. S. R., 167; In re Schooner Enterprize, 1 Paine's C. C. R., 33, 34; Commonwealth v. Macomber, 3 Mass. R., 257; Parry v. Croydon Gas Co., 15 J. Scott's Com. Bench Rep. [N. S.], 575, 576.)

E. M. Wight for the respondent. Defendant was limited by its charter to the rate of fare therein prescribed. This power was not extended by the general railroad acts. (Chase v. N. Y. C. R. R. Co., 26 N. Y., 524; Nellis v. N. Y. C. R. R. Co., 30 id., 513; Dickson v. H. R. R. R. Co., 12 id., 314.)

ALLEN, J. The right of the defendant to demand and receive for the transportation of passengers a greater sum

Opinion of the Court, per ALLEN, J.

than that allowed by its act of incorporation, as modified in 1850, depends upon the interpretation of the 49th section of the general railroad law of the same year, enacted some two months after the amendment of the charter referred to.

By the act incorporating the defendant, as modified by chapter 9 of the Laws of 1850, the “power and privilege” was conferred upon the corporation to fix, regulate and receive tolls and charges for the transportation of passengers at rates for way-travel not exceeding two and a half cents per mile for each passenger and

and his ordinary baggage, during four months, and two cents during the residue of the year. (Laws of 1846, p. 272; Laws of 1850, p. 14.) The franchise or privilege was restricted and limited by the terms of the legislative grant, the restriction and limitation being a constituent part of the grant itself. There was no general privilege of regulating and demanding toll for the transportation of passengers, but the right was restricted within prescribed limits. The privilege was by its very terms of a limited and restricted character; a franchise limited, in its exercise, to the rates prescribed by the statute conferring it. It was a privilege of transporting passengers for hire at rates not exceeding those specified by the act. Similar privileges had been conferred by the legislature upon other railroad corporations, but never had the privilege been granted with the same restrictions. The privileges of this character enjoyed by other corporations were more liberal, and were not therefore the same. of demanding and receiving two cents per mile for a given service is of the same general character as that of demanding and receiving a larger sunn for the same service, but it is not the same power.

Two bridge companies may each have the right to tolls, but if one is restricted to a toll of two cents for each

passage while the other may receive a larger sum, or may regulate its own charges without limit, the privileges, the franchises and powers of the two are materially different in extent, description and pecuniary value. Prior to 1850 the legislature had granted to the defendant the privilege of receiving one sum

SICKELS VOL. IV.

The power

58

Opinion of tne Court, per ALLEN, J.

for the transportation of passengers, and to other like corporations the privilege of receiving a greater sum for the same service. Up to 1848, all railroad corporations were created by special acts of the legislature, the charter of each prescribing its special duties and privileges.

By the Constitution of 1846, as well to place all corporations of the same character upon the same general footing, with uniform powers, privileges and duties, as to obviate the necessity of much special legislation, corporations were authorized to be formed under general laws, and the creation of any, except for municipal purposes, and in cases where the objects of the corporation could not in the judgment of the legislature be attained under the general laws, was prohibited. (Const., art. 8, § 1.) One design was, that all that desired to transact business in a corporate capacity might do so upon an equality, and with equal privileges and liabilities, with uniform powers, and under uniform restraints. Equality between corporations themselves, as well as equality between corporations and individual citizens, so far as the latter was practicable, was in the minds of the convention in framing this part of the Constitution.

Not only was the policy of equality of privileges among corporations of the same class and general character, including municipal corporations, advocated, but uniform restrictions upon, and liabilities of all corporations urged by some who took part in the debates of the convention.

· The first general act for the formation of railroad corporations, pursuant to this constitutional requirement, was passed March 27, 1848. (Laws of 1848, p. 221.) By the 10th subdivision of section 19, corporations formed under the act were permitted to regulate the tolls and compensation for the transportation of passengers at rates not exceeding three cents per mile, except as otherwise provided by special act of the legislature. In the amendment of this act in 1850, the exception was stricken out and the limit to the amount made absolute, and perfect equality between corporations organized under its provisions secured. (Laws of 1850,

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