« AnteriorContinuar »
Although in some parts of the act words other than common carrier” are used (as in section 26, which requires " every corporation, person or common carrier" performing a service designated in section 25, to furnish adequate service), I take it to be plain that the operation of that article and, therefore, of the act, so far as it affects common carriers, is controlled by the definition of common carrier in section 2, which is :
“ The term 'common carrier,' when used in this act, includes all railroad corporations, street railroad corporations, express companies, car companies, sleeping car companies, freight companies, freight line companies and all persons and associations of persons, whether incorporated or not, operating such agencies for public use in the conveyance of persons or property within
this State." As the words “ ferry companies” are not contained in the enumeration in the definition quoted, this entire question resolves itself into one of the construction of the meaning of the word “includes" and its importance is at once made maaifest when we consider that upon it depends the question whether the jurisdiction of the Commissions is limited to the carriers enumerated or whether it comprises, in addition thereto, all common carriers engaged in the “ transportation of passengers, freight or property within this State — not ferry companies alone, but navigation companies, towing companies operating on the canals and waterways of the State, and the many other agencies engaged in such transportation,
As to ferries being common carriers, their position as such has long been well recognized, as appears from the quotation from Lord Hale's de Jure Maris, cited with approval in Munn. v. Nlinois. In this treatise, written over 200 years ago, Lord Iale said, in speaking of ferries, that the King had
"a right of franchise or privilege, that no man may set up a common ferry for all passengers without a prescription time out of mind or a charter from the King. He may make a ferry for his own use or the use of his family, but not for the common use of all the King's subjects passing that way ; because it doth in consequence tend to a common charge, and has become a thing of public interest and use, and every man for his passage pays a toll, which is a common charge, and every ferry ought to be under a public regulation, viz., that it give attendance at due times, keep a boat in due order
and take but reasonable toll; for if he fail in these he is finable." Webster's Dictionary defines the word " includes " to mean :
“ Latin, in and cludere, to shut.
"1. To confine within; to hold ; to contain; to shut up; as the shell of a nut includes the kernel.
“ 2. To comprehend, as a genus the species, the whole a part, an argument or reason the inference; to contain; to embrace; to relate to; to pertain to." The second part of this definition gives the sense of the word so often adopted by the courts under the ejusdem generis rule, that is, where a number of things of a certain character are enumerated after such word as includes there is embraced therein not only those specified, but all others of a like character and forming part of the same class.
As commonly used, I think the word “includes" is understood in this sense, and as said by Judge Hatch, in Matter of Goetz, 71 App. Div. 272, at p. 275 :
"Including' is not a word of limitation, rather it is a word of enlargement, and in ordinary signification implies that something else has been given
beyond the general language which precedes it." The meaning of this word has received extensive consideration in the English courts, and in one of the most interesting cases on the subject (Jones v. Cook, L. R. 6 Q. B. 505), despite the fact that the case was a criminal one, ordinarily requiring a strict construction of the act, the court gave to the word "includes its broader significance. The head note to the case concisely states the facts :
Head Note.--"By the Petroleum Act, 1862, § 1, petroleum' for the purposes of this act shall include any product thereof that gives off an inflam. mable vapour at a temperature of less than 100 degrees Fahrenheit. By the Petroleum Acts, 1862 and 1868. petroleum'shall include all such rock oil, Rangoon oil, Burmah oil, any product of them, and any oil made from petroleum, coal, schist, shale, peat or other bituminous substance, as gives off an inilammable vapour at a temperature of less than 100 degrees Fahrenheit :Held, that all petroleum proper, whether giving off an inflammable vapour at under 100 degrees or not, was within the acts; and that, therefore, the keeping of any petroleum proper, otherwise than for private use, within fifty yards of a dwelling or storehouse, without a license, was prohibited by section 4 of the Act of 1868.
Blackburn, J., at page 509 :
* Taking the intention of the legislature to be shown by the words used in the Acts, I think that the magistrates were right, and that the conviction must be aflirmed. There were two petroleum Acts passed; the one enacted, whereas it was necessary to provide for the safe-keeping of petroleum, and
certain products that are dangerous, that “petroleum shall include any product thereof that gives off an inflammable vapour at a temperature of less than 100 degrees.' That means that petroleum shall mean petroleum, and also includes that which might not otherwise be considered as petroleum, viz., products derived from petroleum, provided those products be of such a nature that they give off those inflammable vapours. Thus throughout the Act 'pe. troleum is to be used and considered as including such products as give or
an inflammable vapour at a temperature of less than 100 degrees." To the same effect are Queen v. Kershawo (Queens Bench), 6 El. and Bl. 999; er parte Ferguson, L. R. 6 Q. B. 280 ; and Pound v. Plumstead Board of Works, L. R. 7 Q. B. 183.
An interesting and instructive side-light on this general meaning of the word is furnished by a consideration of the other definitions in section 2 of the Act. It is significant that when the meaning of the word defined must, from the nature of the subject matter, be limited, the word used is “means," as -- " The term • Commissioner,' when used in this act means one of the members of such Commission;" but in all other cases recourse is had to the word ' includes," as, for example, the word “railroad," as defined, includes various agencies, but the list given in the definition is by no means complete, for omitted therefrom are many instrumentalities in the operation of a railroad. It uses the words “ bridges, ferries, tunnels, switches, subways, tracks, stations and terminal facilities," but does not, for instance, specify block signal systems, ties, ballast, road-bed, etc., which from their very nature are important component parts of a railroad and over which supervision is necessary to render regulations by the Commissions effective. It is, of course, unreasonable to suppose that a railroad company would be permitted to say in answer to an order of one of the Commissions to make certain repairs to its roadbed, that such an order was not binding because a railroad, as defined in the act, does not include its own road-bed. Here it is obvious that the word “includes" is not one of limitation.
The reference to ferries in the definition of railroad is applicable only to railroad ferries, but there is this point to be noted in passing, that if ferries were intended to be embraced in the definition of common carrier, there would be no necessity for including them in the definition of railroad.
This meaning, however, is not absolutely controlling, but is further dependent upon the intention of the Legislature to be gleaned from the context of the act, as was stated in effect in the opinion in Calhoun v. Memphis e Paducah R. R. Co., 2 Flippen (U. S. Circuit Court) 442, where the court was called on to construe the language of a railroad mortgage. In that opinion, at page 445, it is said that:
“ The word 'railroad' as used here may mean railroad company, as it usually does. Ordinarily, this general description would be controlled by the subsequent enumeration contained in the words, 'All depots, warehouses and structures'
But when this rule of construction is relied on, it will be generally found that the particulars are introduced with a videlicet or some such manifestation of the intention to restrain the general description. (Bouv. Dict. words 'videlicet.' scilicet.') And the ejusdem generis ' rule of construction always yields to the intention to be gathered from the context and general scope of the whole instrument.
Here' the particulars are introduced by the word 'including, which does not indicate a restrictive
intention, but the contrary." A good Illustration of the rule is afforded by the Interstate Commerce Act which, as it existed prior to the amendment of 1906, by its terms applied only to railroad companies, but was then amended by the insertion of a provision that the word common carrier as used in that act should “include express companies and sleeping car companies." There, from the circumstances attending its insertion and the context of the act, the intention of the Congress was plain to merely extend the jurisdiction of the Interstate Commerce Commission over the two classes of carriers specified.
Assuming, therefore, as I think is proper, that the usual meaning of the word “ Includes as given above is correct, it then remains to carefully scrutinize the act to see to what extent, if at all, such a meaning is inconsistent with, or limited by, its other provisions, or whether from the entire context the inference can fairly and reasonably be drawn that the Legislature intended to place such classes of common carriers as ferries within the jurisdiction of the Commissions.
An analysis of the definition in section 2 shows that of the seven classes of carriers referred to, one comprises express companies and the other six distinctively railroad agencies, all of which are probably the best known examples of common carriers, and whose character as such is unquestioned. The question immediately occurs, what is the purpose of specifying these well recognized carriers, if not one of enumeration of carriers subject to the provisions of the act. If the definition had contained some carriers whose character as such would otherwise be open to doubt, or contained but a short and incomplete list, it would indicate that all well recognized common carriers were embraced therein plus the doubtful ones; but here there are no doubtful ones and the list is full and complete in reference to the great class of carriers to cover which the legislation was desired. If, however, we give the word “ include " its broader meaning, it would be equivalent to construing the definition to mean that the word common carrier, as used in the act, shall include common carriers, a definition that does not define and a construction that would violate the rule that effect is to be given so far as is possible to all parts of the act. We must assume that the Legislature understood the
meaning of the words it used, and, to my mind, when it followed a broad term with but a small number of well recognized parts, it parrowed instead of extended the broad term. This definition differs from that of railroads, to which I have referred for purposes of illustration, in that a railroad as generally understood is
unit made up of many component and inseparable parts, while the term common carrier" is a comprehensive one embracing a large number of separate and distinct units. While this
ng may not be absolutely controlling on this question, it throws a heavier burden on the context of the act to evidence an inten. tion to include carriers other than those specified in the definition.
Turning to the act, we find that it is divided into five articles, of which Article I contains definitions and general provisions regarding the organization and procedure of the Commissions ; Article II, provisions relating to the duties of railroads, street railroads and common carriers; Article III, provisions relating to the powers of the Commissions over common carriers, railroads and street railroads; Article IV, provisions relating to gas and electric corporations, and Article V, provisions abolishing other boards and devolving their powers upon the Commissions. Of these the only ones affecting this question, outside of the definitions quoted above. are Articles I and III. As ferries were not subject to the jurisdiction of the Board of Railroad Commissioners, the Commissions can not acquire jurisdiction through their succession to the powers of that board. (See Transportation Corporation Law, sections 2–6, inclusive.)
Articles II and III, for the purposes of considering this question, may be subdivided as follows:
(1. Application of article, $ 25. ARTICLE II.
! 2. Adequacy of service, $$ 26, 27.
3. Rates, $8 28-34, inclusive ; 36. (Duties of Common Carriers.) 4. Discrimination, $$ 35, 37, 39.
5. Liability, $$ 38, 40.
c. Investigations, $$ 47, 48.
d. Power to fix rates, order changes, etc., $$ 49, 50, 51. (Powers of Commissions.) c. Uniform system of accouts. $ 52.
f. Franchises, stock and bond issues, $$ 53, 54, 55.
(1) Application of Article. Section 25 should be read in connection with the short title of the act in section 1, which provides :
" This chapter shall be known as the public service commissions law, and shall apply to the public services herein described, and to the Commissions
hereby created." It is plain, I think that the word “ services" refers to the act of service rendered and not to the agency rendering it, but should there be any doubt on this point, it is made clear by a reference to section 2.), which is as follows:
“ The provisions of this article shall apply to the transportation of passengers, freight or property from one point to another within the State of New
York and to any common carrier performing such service." These sections are both jurisdictional and are of the utmost importance in considering this question, for it will be noted that by section 1 the act is to apply to the public services described in it, and section 25 describes those services in language sweeping enough to embrace all carriers and unless this wide jurisdiction, unlimited as to kind or class of common carrier, is controlled by the definition in section 2, I think the Commissions' power to regulate all such agencies would not be open to serious dispute. These sections afford suilstantial basis for the argument that the intention, as drawn from the act was to grant in general terms jurisdiction over all common carriers and that the provisions for details of regulation do not affect such jurisdiction. but merely make clearer the powers of the Commissions over certain carriers, But if this he so, what is the function of the definition in section 2? It must be assumed that it was inserted for some purpose and our inquiry comes back again to a consideration of how far, if at all, the sweeping jurisdiction granted by these sections is li ited by th word “includes" in the definition, as itself affected by the context of the act.
(2) Adequate Serrjce. Section 26 is just as broad and requires that common carriers * shall furnish
such service and facilities as shall be safe and adequate and in all respects just and reasonable" and that * all charges
shall be just and reasonable and not more than allowed by law or by order of the Commission."
But it will be noted, as evidencing the intention. that when the Legislature came to providing for a detail of such adequate service, it concerned itself only with railroads, as section 27 provides that " a railroad corporation upon
shall construct switch connections
with lateral line of railroad or private side-tracks This limitation of detail is further found in subdivision al of Article III, which will be referred to in its order.
(3) Rates. Here is an instance of where the language intended to cover other carriers is so colored by the prominence of the necessity for railroad regulation as to seem restricted to it. The word common carrier is used. but provision for details is almost exclusively applicable to railroads; although, by the definition of common carrier referred to abore, express companies must be affected as well. Section 28 requires that every common carrier shall file
schedules showing the rates * for the transportation of persons and property within the State between each point upon its route and all other points thereon; and between each point upon its route and upon all points upon crery route leased, operated or controlled by it ard between each point on its route or upon any route leased. operated or controlled by it and all points upon the route of any other common carrier whenever a through route and joint rate shall have been estab
lished or ordered between any two such points Strictly speaking, there are no routes "leased, operated or controlled” by a ferry company, or, for that matter, by an express company, and the words “ through route and joint rate are more usual as applied to railroads, but between an express company and a ferry company there is this important distinction - that these provisions apply to express companies, unsuited though the language may be for the purpose, because they are expressly made subject to the act, whils in the case of ferry companies, if they be so subject, they are made so by construction. Though these words in section 28 hare a truer application to railroads, they might include ferry companies in the absence of other inconsistent provisions in other parts of the act, but this is to be noted as one of the indications of intention and taken into consideration with all other provisions, one way or the other, in summing up the evidence of legislative intention.
Sections 29, providing for changes in schedules “ filed and published by a common carrier:"
30. Paragraph 1, that “The names of the several carriers which are parties to any joint tariff shall be specified, therein and” (the carriers)
shall file with the Commission such evidence of concurrence
as may be required * *." Paragraph 2, that Every common carrier shall file
sworn copies of every contract with any other common carrier
31, that "No common carrier shall
hy any special rate, rebate, drawback or other device or method, charge, demand, collect or receive from any person a greater or less compensation for any service
in the transportation of passengers, freight or property
than it charges, demands, collects or receives from any other person
for doing a like and contemporaneous service
32, that “ No commor. carrier shall make or give any vindue or unreasonable preference or advantage to any person or corporation or to any locality or to any particular description of truhc
-, and that portion of 33 providing that “No common carrier
shall after the first day of November. 1907, engage or participate in the transportation of passengers, freight or property
until its schedule shall have been filed."
shall directly or indirectly issue or give any free ticket, free pass or free transportation for passengers or property
are all comprehensive enough to cover ferry and navigation companies. Section 32 then goe. on to provide that the prohibition against giving free transportation shall not apply to employees of
telegraph and telephone companies doing business along the line of the issuing carrier."
which is necessarily restricted to railroad companies, as is the second paragraph of section 33, permitting the issuance of mileage tickets, for, although it is entirely feasible for navigation companies to issue these tickets, such is not the practice.
The language of the remaining sections of this subdivision, providing (section 34) that “ No common carrier
any perto obtain transportation
at less than the rates then established
by means of false billing, false classification, false weight or weighing or false report of weight or by any other device or means." and section 36, that
“No common carrier subject to the provisions of this act shall charge or receive any greater compensation in the aggregate for the transportation of passengers or of a like kind of property under substantially similar circumstances and conditions for a shorter and for a longer distance over the same line in the same direction, the shorter being included within the longer distance; but this shall not be construed as authorizing any such common carrier to charge and receive as great a compensation for a shorter as for a longer
distance or haul." would perhaps be applicable to ferry companies, although the entire language, and especially the word “haul" in the last line of section 36 has a truer application to railroads.
(4) Discrimination. In this subdivision begins to appear a stricter limitation of detail to railroads. Section 35 provides :
“Every common carrier is required to afford reasonable, proper and equal facilities for the interchange of passenger, freight and property traffic between the lines owned
by it and the lines of every other common carrier." The word "lines" as usually understood might apply to lines of steamboats or ferries, but further on in this section it is provided that
“It shall not be construed to require a common carrier to permit or allow any other common carrier to use its tracks or terminal facilities. Every common carrier as such is required to receive from every other common carrier, at a connecting point, frright cars of proper standard, and haul the
same through to destination A navigation company could clearly not comply with this detail, for the act_uses the word tracks and requires the carrier to huui the freight cars through to destination and although there might be ferries that could be used as railroad connections, the language is not natural to such a case, and in addition, ferries of that character would be owned by a railroad company and embraced in the definition of a railroad referred to above. This limitation is even more pronounced in section 37, requiring that
“Every railroad corporation or other common carrier engaged in the transportation of freight shall
furnish to all persons sufficient and suit. able cars for the transportation of such freight in carload lots.” which is manifestly inapplicable to carriers other than railroads. Section 39 providing that "No common carrier shall enter into
any combination to prevent the carriage of freight and property from being continuous although drawn expressly to cover railroad companies might apply as well to navi. gation or freight companies, but not the further provision that
“ No breakage of bulk, stoppage or interruption of carriage, made by any common carrier, shall prevent the carriage of freight and property from being treated as one continuous carriage."
(5) Liability. Section 38 requires
“ Every common carrier and every railroad corporation and street railroad
corporation to issue either a receipt or bill of lading and provides for liability thereunder. There is nothing in this section which could not be operative as against ferry companies nor is there in section 0, which provides for a recovery of damages arising from a violation of any provisions of the act, if, indeed, ferry companies are subject to such provisions.
(a) General Powers of Commissions.
(b) Reports of Common Carrier8. Section 45. The first paragraph deals with the powers of the Commissioners to administer oaths and summon witnesses and does not affect the question.