#### Frank T. Watson, Plaintiff, *v.*The Delaware, L. & W. R. R. Co., Defendant.

(Supreme Court, Oneida Trial Term,

July, 1900.)

Mileage-books — L. 1895, ch. 1027, unconstitutional.

Chapter 1027 of the Laws of 1895, requiring certain railroad corporations to issue mileage-books at two cents a mile, is unconstitutional as to a corporation which, at the time of the passage of the said statute, was authorized by its charter to make a maximum charge of three cents a mile, as the effect of the statute is to deprive such railroad of its right, to exact full compensation for its services, “ without due process of law ” in violation of the fifth amendment of the Constitution of the United States.

Action to recover a penalty because the defendant refused to issue to the plaintiff a mileage book, at two cents a mile, as required by chap. 1027, of the Laws of 1895, and acts amendatory thereof.

D. F. Searle, for plaintiff.

Wm. Kernan, for defendant.

Wright, J.

The defendant corporation was in existence prior to the enactment of the statute in question. Its charter authorized a maximum charge of three cents a mile. It, therefore, had a vested right to charge that sum from all passengers for every mile traveled. The statute in question deprives the defendant of that right to the extent of one cent per mile, whenever any person may demand a mileage book. The Constitution of the United States, Amendments, article 5, provides that “no person shall be * * * deprived of * * * property, without due process of law". This statute arbitrarily, without due process of law, deprives the defendant of the right to full compensation for services, according to its charter. It is, therefore, in violation of the article of the Constitution above mentioned. This question has been recently settled by the Court of Appeals, in the case of Beardsley v. N. Y., L. E. *&*W. R. R. Co., 162 N. Y. 230. The decision of that case is based upon the decision of the United States Supreme Court, in the case of Lake Shore & M. S. R. Co. v. Smith, 173 U. S. 684. *312Judge Peckham, in writing the opinion of the court, says: “ We cannot regard this exceptional legislation as the exercise of a lesser right which is included in the greater one to fix by statute maximum rates for railroad companies. * * * The act is not a general law upon the subject of rates, establishing maximum rates. * * * The Legislature having established such maximum as a general law now assumes to interfere * * * and provides for discrimination, in favor of those who * * * purchase tickets at what might be called wholesale rates — a discrimination which operates in favor of the wholesale buyer, leaving the others subject to the general rule. * * * It thus compels it (the company) to give the use of its property for less than the general rate, * * * and to that extent it would seem that the statute takes the property of the company without due process of law. * * * The power of the legislature to enact general laws regarding the company and its affairs does not include the power to compel it to make an exception in favor of some particular class. * * * This is not reasonable regulation”.

This action, therefore, must be, and is, hereby dismissed, with costs. Findings may be prepared accordingly.

Action dismissed, with costs.