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 'petroleum is to be used and considered as including such products as give off an inflammable vapour at a temperature of less than 100 degrees." To the same effect are Queen v. Kershaw (Queens Bench), 6 El. and Bl. 999; ex 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 & 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 narrowed 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 a 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 reasoning may not be absolutely controlling on this question, it throws a heavier burden on the context of the act to evidence an intention to include carriers other than those specified in the definition. 66 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 II 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: ARTICLE II. (Duties of Common Carriers.) ARTICLE III. (Powers of Commissions.) 1. Application of article, § 25. 2. Adequacy of service, §§ 26, 27. 4. Discrimination. §§ 35, 37, 39. a. General powers of commissions, § 45. b. Reports of common carriers, § 46. c. Investigations, $$ 47, 48. d. Power to fix rates, order changes, etc., §§ 49, 50, 51. e. Uniform system of accounts. § 52. f. Franchises, stock and bond issues, $$ 53, 54, 55. ARTICLE II. (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 25, 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 substantial 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 be 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 limited by the word "includes" in the definition, as itself affected by the context of the act. (2) Adequate Service. 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 * switch connections private side-tracks * application shall construct * * * with a lateral line of railroad or This limitation of detail is further found in subdivision 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 above, express companies must be affected as well. Section 28 requires that "every common carrier shall file 家 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 and 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 established 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, while in the case of ferry companies, if they be so subiect, they are made so by construction. Though these words in section 28 have 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 ***" * with any other common carrier "No common carrier shall * by 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 transportation of passengers, freight or property demands, collects or receives from any other person like and contemporaneous service 32, that * "No commor carrier shall make or give any undue or unreasonable preference or advantage to any person or corporation or to any locality or to any particular description of traffic 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." and that "No common carrier 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 goes 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 *** shall son # established to obtain transportation at less than the rates then 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, freight 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 haul 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 suitable 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 navigation 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." * "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 40, 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. Section 45. The first paragraph deals with the powers of the Commissioners to administer oaths and summon witnesses and does not affect the question. Paragraph 2 provides that "Each Commission shall have the general supervision of all common carriers, railroads, street railroads, railroad corporations and street railroad corporations within its jurisdiction, as hereinbefore defined, and shall have power to examine the same and keep informed as to their general condition, their capitalization, their franchises and the manner in which their lines owned, leased, controlled and operated are managed, conducted and operated, not only with respect to the adequacy, security and accommodation afforded by their service, but also with respect to their compliance with all provisions of law, orders by the Commission and charter requirements." as The words "lines owned, leased, controlled or operated" are inartificial applied to ferries which have routes but not lines which could be owned, leased, controlled or operated in the usual sense of those terms. Paragraphs 2 and 3, authorizing the Commission to examine all books and papers, and providing for hearings by the Commission relating to proposed changes in the law relating to any common carrier, railroad corporation or street railroad corporation, are comprehensive enough to cover all classes of carriers, as is also section 46, providing for the making of reports by common carriers, railroad and street railroad corporations. Section 47 provides that (c) Investigations. "Each commission shall investigate the cause of all accidents on any railroad or street railroad within its district. * * Every common carrier, railroad corporation and street railroad corporation is hereby required to give immediate notice to the Commission of every accident happening upon any line of railroad or street railroad owned, operated, controlled or leased by it." This is probably as clear an illustration as appears in the act of the limitation of details to railroads. It might, of course, be argued that the general provisions cover all carriers and that this detail is only intended to make more clear its application to one class of carriers, and if the word ferries had occurred in the definition this would probably be so; but here we are endeavoring to ascertain intent and it would seem only reasonable to suppose that if the Legislature had ferries in mind, it would have drawn a section like this one to cover them, for accidents to ferry and steamboats are usually more serious and fraught with even a larger loss of life than in the case of railroads. Paragraph 1 of the concluding section (48) of this subdivision, providing that investigate * * any act or thing "Each commission may * done or omitted to be done by any common carrier, railroad corporation or street railroad corporation subject to its supervision " and that "The commission must make such inquiry in regard to any act or thing done or omitted to be done by any such common carrier, railroad corporation or street railroad corporation in violation of any provision of law and in violation of any order of the commission," is broad enough to cover any common carrier, as is also paragraphs 2 and 3 providing for the procedure to be followed on the filing of a complaint and authorizing the Commission, after investigation, to make the necessary orders. (d) Power to fix rates, order changes, etc. Section 49 provides: * * Whenever either commission shall be of the opinion after a hearing upon a complaint made, as provided in this act, that the rates, fares or charges collected by any common carrier, railroad corporation or street railroad corporation subject to its jurisdiction are unjust or in any wise in violation of any provision of law, the Commission shall determine the just and reasonable rates and shall fix the same by order to be served upon all common carriers, railroad corporations or street railroad corporations by whom such rates, fares and charges are thereafter to be observed." * This is broad enough and so is the further provision authorizing the Commission to require any common carrier, railroad corporation or street railroad corporation to accord adequate facilities, but the section then goes on to provide that "The Commission shall have power by order to require every two or more common carriers or railroad corporations whose lines owned, operated, controlled or leased, form a continuous line of transportation or could be made to do so by the construction and maintenance of switch connection to establish a through route and joint rate." Although this language of this last part of the section might cover the case of traffic connection between a railroad and a ferry or steamboat, the presumption is against it and also against such a construction of section 50, which authorizes the Commission to require "repairs or improvements to or changes in any tracks, switches, terminals or terminal facilities, motive power or any other property or device used by any common carrier, railroad corporation or street railroad corporation." |