Camden & Amboy Railroad & Transportation Co. v. Briggs

22 N.J.L. 623

• Court: Supreme Court of New Jersey
• Decided: January 15, 1850
• Status: Published

Opinion

The Chancellor.

The second section of the act of incorporation declares the general object of the act to be, to perfect an expeditious and complete line of communication between the cities of New York and Philadelphia.

The eleventh section enacts that, to facilitate the objects of the act, the president and directors of the company are authorized to survey, lay out, and construct a railroad from the Delaware river to a suitable point on the Raritan bay.

The sixteenth section authorizes the company to demand and receive such sum or sums of money, for tolls and the transportation of persons and property thereon, as they shall from time to time think reasonable and proper; provided, that they shall not charge more than at the rate of eight cents per ton per mile for the transportation of property, nor more than ten cents per mile for the carriage of each passenger.

The seventh section enacts that it shall be the duty of the company to provide suitable steam or other vessels, at either extremity of the road, for the transportation of passengers and produce from city to city, so that no delay shall occur for want thereof.

We thus have an act of the legislature of New Jersey incorporating a company, and authorizing the corporation to construct a railroad in New Jersey, for the purpose of perfecting an expeditious and complete line of communication between the cities of New York and Philadelphia; the other parts of the contemplated line of communication between the said cities being on and over waters common to all the citizens of the United States for the purpose of navigation, and lying partly in Pennsylvania, partly in New York, and partly, only, in New Jersey; and authorizing the corporation to charge eight cents per ton per mile for the transportation of property, and ten cents per mile for the carriage of a passenger on the said road ; and requiring the corporation to provide suitable steam or other vessels, at either extremity of the road, for the transportation of passengers and produce from city to city.

The railroad is sixty miles long: so that the act, by the tolls it gives on the road, allows the corporation $6 for'every passenger, and $4.80 for every ton of goods transported from city to city.

Whether the legislature were liberal, or otherwise, in requiring that for these sums, allowed by way of tolls on the road, the corporation should provide vessels at the extremities of the road, to take passengers and goods over the intervening waters to the cities, respectively, is not a question for the consideration of the courts. But it may not be amiss to say that the company are now transporting passengers from city to city for half the sum thus allowed by the act; and I presume that this is true, also, in respect to the transportation of goods by the ton ; and, for aught we know, the company may, even at the prices now charged by them, be reaping most liberal returns for their expenditures under the act.

Is there ány difficulty in believing, or any reason why we should seek, by construction, to avoid the conclusion that the legislature intended that, for the rates of toll per mile on the railroad, the company should provide a vessel to take passengers and goods across the Delaware from and to the western terminus of their road ? And if the act requires this, it requires the company to provide a vessel to take passengers and goods over the waters lying between the eastern terminus of the railroad and the city of New York; the duty of providing vessels at each extremity of the road being imposed by one and the same clause in the act.

The company claim that, inasmuch as the act only restricts them to a rate of toll on the railroad, they are at liberty to charge without restriction or limit for transportation on and over the said waters; and they have charged accordingly. It is plain that if the company are right in this claim, they are at liberty to charge at their own pleasure for transportation between the cities; for if they can charge without limit ou a single mile of the line of communication between the cities, they can make the charge from city to city what they please, notwithstanding the restriction to certain rates ou the railroad. The Supreme Court had and could have no difficulty in denying this claim of the company.

But the Supreme Court have held that the word thereon, in the section fixing the rates of toll, does not mean the railroad, but tneaus the whole line of communication between the cities ; and that the eonipauy are entitled to charge on this whole line the rates of toll per mile fixed by the act. In this view I cannot concur. The distance between the cities is ninety miles. I see no reason for believing that the legislature intended to allow $9 for transporting a passenger, and $7.20 for transporting a ton of goods from city to city. The plain words of the act, as well as its provisions and general scope, are, it seems to me, opposed to this position of the Supreme Court. And the opinions already given by the other members of this court in this case enable me to say, that the majority of this court are unwilling to affirm its correctness.

The act gives no authority to the corporation to charge for transportation on and over the waters forming a part of the line of communication between the cities. No such charge, therefore, can be made, it being a familiar principle, that a corporation, a creature of law, has just such rights and powers as the law creating it gives it, and no other.

And the idea, contended for in argument, that the corporation, as the owner of the boats which the act requires it to provide, may charge as a common carrier, is manifestly excluded by the same principle.

It was said, in argument, that if the corporation be not allowed to charge as a common carrier on the said waters, it might not receive adequate compensation for transportation from the cities, respectively, to a point between the termini of its railroad. This only raises a question as to the adequacy of the compensation fixed by the act. It would seem that the company entertain the idea that if, in reference to any particular commodity transported, or to any partial travel on their road, the act has not given them a sufficient compensation, they are at liberty to charge what they please for it, however great may be the profits which the act, as a whole, gives them.

It will hardly be contended that the transportation of goods or passengers across the Delaware, between Philadelphia and Camden, as termini, was an object of the act of incorporation. But if they can charge for the distance across the Delaware when they take a packet or passenger a mile on their road, why are they not entitled to make such charge if they only land the packet or passenger on the Jersey shore opposite Philadelphia ? And so of the rate between the other extremity of the road and the city of New York.

The object of the act was an expeditious and complete line of communication between the cities of New York and Philadelphia ; and the duty is imposed on the company to provide suitable vessels, at either extremity of the road, for the transportation of passengers and goods from city to city. The company are not bound to transport goods or passengers between Philadelphia and Camden, as termini, nor between New York and South Amboy, as termini; nor have they any authority to do so. And if they be bound to transport goods and passengers from the cities respectively, to any point or station on their road, they must do it for the compensation which the rate of toll per mile on their road to that point or station, fixed by the act, will give them.

The views of the company and those of the Supreme Court differ in two respects.

1st. The company say that the act gives them no right to charge for transportation on and over the said waters ; that the word thereon, in the section authorizing them to receive tolls, means the railroad, and nothing else. The Supreme Court have- said, that the said word thereon means the whole line of communication between the cities, and that, therefore, the act gives the company the right to charge for the whole distance between the cities, according to the rates per mile fixed by the act. On this part of the case, I concur in the views of the company.

2d. The company contend, that if the act gives them no right to charge for transportation on the said waters, they may charge for it as common carriers, and, of course, charge what they please. The Supreme Court say that if the act does not give the company this right they can make no such charge. In this respect I concur with the Supreme Court.

In the view I have taken of the case, the judgment most be affirmed.

Randolph, J. In the discussion of this cause, two questions are raised for our consideration :

1st. Does the act of March 12, 1839, Rev. Slai. 601, to prevent the taking of unlawful tolls or fare on canals and railroads, apply to the case.

2d. Have the plaintiffs in error rendered themselves amenable to its provisions and penalty.

As the determination of the last inquiry, in some measure involves an answer to the other, I will first consider that question.

1st. The facts of the case are admitted. A bale of merchandise, containing two hundred and forty pounds, was transported by the plaintiffs for Bacon & Briggs, from New York, by steamboat, to South Amboy, a distance of thirty miles, and from thence to Trenton, by railroad, forty-one miles, making in all seventy-one miles, for which a compensation of ninety-six cents was demanded by the company, and paid by Bacon & Briggs. And it is also admitted that if the restriction, in the sixteenth section of their charter, of eight cents per ton per mile extends to the whole distance by water, as well as by land, from New York to Trenton, then there is an overcharge of some sixty-one cents, and the company have rendered themselves amenable to the penalty of one hundred dollars, sued for by Briggs as a common informer, provided the penal statute is applicable to the case. But if the restriction in the sixteenth section of the charter extends only to the railroad proper, leaving the company to charge, at their discretion, such sum for the transportation by steamboats from New York to Amboy as they may think reasonable and just, and that the sixty-óne cents was charged by them for that portion of the freight, then the company are in no wise liable to the penalty. I say charged, because that seemed to be the view of counsel on the one side, that, as the bill was made out generally from New York to Trenton, the rate per mile should be considered the same throughout, and therefore an overcharge; while, on the other side, it appeared to be thought that the company could at pleasure place thirty-five cents to the railroad, and sixty-one cents to the water carriage.

I presume that, if the facts set up constitute a bar to the action, the court would not deprive the party of the benefit of it on account of the formality or the informality of the bill or the mode of stating the account.

Whether the restriction of eight cents per ton per mile extends to the carriage' by water, or is to be confined to the railroad alone, depends on the construction to be placed on the charter; and that depends on the intention of the legislature, if that can be arrived at satisfactorily.

It is well settled that penal statutes are to be construed strictly, and those of a remedial character more liberally, (1 Bl. Com. 88; Paine C. R. 32), while such as are intended for the public benefit are to be taken most strongly against the persons or corporations claiming rights or power under them, and most favorably for the public. 11 East 674; 3 Man. & Gran. 496 ; 7 Ib. 870; 1 Railway Cases 659 ; Rae. Abr. title Statute I, § 10.

Rut these rules are not to be resorted to, unless the intention cannot be clearly derived from the clause or section affecting the subject matter, or the whole, charter itself. Let us inquire, then, what was the general intent of the legislature, to be collected from the whole charter; what the particular intent to be found in the sixteenth section. The title, which though it may not enlarge or restrict the act itself, may afford a means of explaining its doubtful passages, is, “ An act to incorporate the Camden and Amboy Railroad and Transportation Company.”

The first clause merely embraces the railroad company, like a turnpike company, limited by its termini from Camden to Am-boy, on which tolls may be taken for the passage of cars, or the contents thereof. Rut it is the latter clause which makes the onipany common carriers, a transportation company along or over the road, but not restricted to its termini. The act itself contains some twenty-eight sections, most of which are used to designate the mode and means of organizing the company, and constructing the road, and the necessary appendages thereto, for a railroad or transportation company j while hut few of the sections are inserted to define the powers, rights, duties, and restrictions of the company. Keeping this distinction in view, let us examine some of the sections as they occur.

The first section applies only to the opening of the hooks and the preliminaries to form a company. The second constitutes a company, by the name of “ the Camden and Amboy Railroad and Transportation Company,” with a capital of a million of dollars, powers to hold real and personal estate, of perpetual succession, to have and use a common seal, and to enjoy and exercise all the rights, powers, and privileges pertaining to corporate bodies, and necessary to perfect an expeditious and complete line of communication from Philadelphia to New York, and to carry the objects of this act into effect.” The next thirteen sections relate not to the general powers, rights, and restrictions of the company, but to its organization and the construction of the work ; the subscriptions, how paid for, how forfeited, and when void ; the meetings of the stockholders, election of directors and president j the compensation, duties, and meetings; the taking, appraising, and paying for land, materials, and damages; the construction of the railroad bridges, and passages over the same. The next section is the sixteenth, which relates to the general powers, rights, and restrictions of the company • but, between this and the second section, no general or corporate powers or rights are granted. The seventh section, though much relied on in the argument, grants no power to the company; it designates the duties of the board of directors, viz. to supply vacancies in the board; to appoint a treasurer and other officers and agents required; to fix their compensation and the amount of {heir security; to decide upon the kind of carriage to be used upon the road, the weight to be carried, time of starting, rate of travelling; to provide suitable steam or other vessels, at either extremity of the road, for the transportation of passenger’s and produce; to regulate the tolls, superintend the receipts and disbursements, and all other affairs of the company, and make and enforce by-laios. Here is a mere specification of duties to be performed by the board of directors, all the power for doing or authorizing of which, by the company, is to be found in the second section, and not in the seventh itself, viz. in the general clause, granting all power to perfect a complete line of communication and to carry the objects of the act into effect. With regard to steam vessels, it states explicitly that it “ shall be their duty to provide •” but unquestionably they had the right to do so by the second section, for such was necessary to perfect that complete line of communication by railroad and transportation from city to city, which was the object of the act to be carried into effect; and the insertion of this as a duty, in the seventh section, seems to have been, for abundance of caution, thrust-into the section between the duties relating to carriages, and the regulation of tolls therefor, as will be apparent on examining the seventh, being the corresponding section in the canal charter, passed on the same day. There no such duty relating to steam vessels is inserted, the company relying only on the same general power as that contained in the second section. Besides, if this clause relating to steam vessels were to be considered ¿.a distinct power, it would not aid us in determining the difficulty in. this cause, for, if considered a power which would draw after it the right of taking tolls, freight, or fare for transportation from New York to South Amboy, then in like manner the power to construct a railroad from Camden to Amboy would draw after it the right to take tolls or fare for transportation between those two points; and so the sixteenth section would be unnecessary and nugatory, and the company have a perfect right, a common law right, as it has been termed, to take tolls and freight ad libitum from city to city without restriction. But there is no such common law right: the law of a corporation must bo found in its charter; whatever power is there expressed or necessarily implied, in order to carry into effect those powers that are expressed within the general intent of the charter, constitute the only powers granted. The taking of tolls or freight is a distinct independent power, and cannot be implied from other powers granted. This has been repeatedly adjudged in the cases of turnpikes, ferries, and other granted franchises. Olcott v. Banfill et al., 4 N. Hamp. R. 545; 2 Mass. 102; 1 Pick. 122 ; 7 John. R. 179; 18 Ib. 397; 1 Pick. 30; Charles River Bridge v. Warren Bridge; 1 Pet. R. 545; 6 Conn. R. 240; Stourbridge Canal Co. v. Wheeler, 2 B. & Adol. 793; 2 Har. Dig. 2925, tit. Navigation. In this last case power was given to charge certain rates for every ton of* iron and other goods navigated on any part of the canal, which should pass through one or more of the locks, and it was held that they had no common law or other power to charge the rates when the boats navigated the upper canal, where there were no locks. See Angelí and Ames on Corporations, 3d ed. c. 3, 81, et seq. and cases referred to; 6 Pick. 23, 32; 18 Ib. 501; 2 John. R. 109 ; 15 Ib. 358.

In questions arising on canal and railroad charters, as to the right to take freight or toll, or the quantity thereof, courts have uniformily construed the charter most in favor of the public and most against the company. Barrett v. Darlington and Stockton Railway Company; 2 Man. & Gran. 134; same case in the House of Lords; 7 Man. & Gran. 870; Gildart v. Gladstone, 11 East 675; Proprietors of the Leeds and Liverpool Canal v. Hustler, 1 Barn. and Cress. 424.

In the first fifteen sections of the charter there is to be found the incorporation of the railroad and transportation company, for the purpose of creating a complete line of communication between New York and Philadelphia, with full powers for that purpose; the provisions for organizing the company, appointing its officers, constructing the road, and placing carriages thereon, and steam vessels at either termination to complete the route. All is prepared for a successful experiment of the great enterprise. But one power of an important character, the right of the company to compensate themselves by taking tolls or freight, has not yet been granted. That is to be found in the! sixteenth section, the particular object of which is to provide for this deficiency. By this section the company are “ authorized to demand and receive such sum or sums of money for tolls, and the transportation of persons and every species of property whatsoever thereon, as they shall from time think reasonable and proper; provided, that they shall not charge more than at the rate of eight cents per ton per mile for the transportation of every species of property, nor more than ten cents per mile for carrying passengers.” This embraces a grant of power to charge for tolls and transportation, and a restriction upon that grant, the latter not limited by phrase or word to any part of the route in particular, but doubtless intended to be coextensive (and no more) with the former; so that if the word “thereon,” in the first branch, restrains the charge for tolls and transportation to the railroad only, between the terminations of Camden and Amboy, the restriction, as to the amount of such charge, is also restrained within the same limits, for it would be absurd to place a restriction on a portion of the route over which no power was granted : it would be a restraint upon a power which had no existence.

Is, then, this.pow^r or restriction limited to the road proper, or does it extend to the route? It is insisted that the word “ thereon ” limits it to the road only, because the first term, which is applicable for its antecedents, is the word “ railroad,” in the fifteenth section. Doubtless, in several sections, the word railroad is the appropriate, as well as the grammatical antecedent to the word thereon. Thus, in the seventh, “traveling thereon ” refers to the word railroad, a few lines preceding. And so in the twenty-third section, respecting transit duty. And so, also, in the twentieth and twenty-sixth sections of the canal charter, where the same word occurs several times, it refers to the terms canal and feeder, either before or after, in the-same sectibns. But there is no necessary connection between the words “ thereon ” and “railroad,” for in the eleventh section it refers to the antecedent words “embankments and bridges,” and in the act of February 4, 1831, relating to the railroad and transportation company, the word refers to the thousand shares of the capital slock to be transferred to the state. Nor does it follow that, in search for the antecedent of the word “ thereon,” you must necessarily seize the first word that may answer the reference, for that word may occur in a section which has nothing to do with the subject matter, and be used or placed in that position accidentally; thus the word railroad is used in the fifteenth section, and it is taken as the necessary antecedent to the word thereon, in the sixteenth, though the latter section relates to the general powers of the company, while the former only to the bridges and passages over or across the railroad, and is placed in the position it occupies accidentally, without any necessary connection with the succeeding or preceding sections, and might have been placed in any other part of the charter. Any other section might have occupied the position of the fifteenth with equal propriety. Had it been the twelfth, then the antecedent would have been the lateral road from Bordentown; and thus the power and restriction, as to tolls and freight, would have been confined to that road only. These considerations go to show that, although the word “ railroad,” in the fifteenth section, may be the antecedent of the word “ thereon,” in the sixteenth, it does not follow that it must be such, or that it was the intention of the legislature so to restrict it. To ascertain that we must look beyond the fifteenth section into the charter itself. Had the sixteenth section immediately followed the second, little doubt could be entertained that the power and restriction, as to tolls and freight in the former section, would refer to and be governed by the description of the line of communication from city to city, as described in the latter. So far as relates to the general powers of the company, the sections do follow each other; all between relates to other matters, and may be considered as in a parenthesis, or in some other position in the statute: thus placing them would remove any ambiguity arising from the word “ thereon.” But was not the word “ thereon ” placed in the sixteenth section in order to show the sense of the legislature, that the tolls and freight were to extend to the route, and not to be confined to the road only ? Without it the sense would have been complete, yet it would have left the distance on which to calculate mileage obscute, therefore some word would have been sought to define it. In the corresponding section of the canal charter, which is generally in the same words as this, instead of the word “ thereon,” is inserted the term “canal and feeder,” which express all that was required in that charter, because that was a mere canal, and not also a transportation company, extending from river to river, without injunction to place steam vessels at either extremity, and was created for the mere purpose of opening a water communication between New York and Philadelphia; and when the canal was constructed, and opened from river to river, the “complete line of communication,” mentioned in its second section was accomplished, and boats and merchandise could pass through the whole Hue on the same element, and no tolls or freight could with propriety be required, except on the canal and feeder.

With this charter, then, in the hands of the legislature, either just passed or passing, their attention would naturally be called to the different powers of the companies, and the respective positions which they occupied in regard to tolls and freight. If, then, it had been their intention that these should be limited to the road itself, would they not have inserted the word railroad instead -of the word “ thereon,” as they had just inserted “canal and feeder” in the other charter? This would have been easy and natural; but if intending the section to extend to the whole line, it would have been exceedingly awkward to have placed in it the whole description, as set forth in the second section ; and so, for the want of a better word, instead of such description, and as if in reference to it, they inserted the word “ thereon.” This construction will appear the more reasonable when we look at the intention of the restriction as to toll and freight. The road was made from the then inconsiderable town of Camden to the much less considerable place of South Amboy; the transportation of property or passengers merely between these two points was of very little importance, and indeed could not have been intended by the legislature or the company ; whereas the carrying of passengers, produce, or merchandise from New York to Philadelphia, or from some point in the'state to either of those cities, constituted the grand object of the company, as expressed in various sections, and was of vast importance. Can it, then, for a moment be supposed that the legislature would have been so careful to restrict the transportation to eight and ten cents per mile between Catnden and Amboy, and leave the company to charge what they pleased between city and city, or between any point in the state and either city, while they granted them an entire monopoly of the business? Would they have placed any restriction at all, if they had not done it, or thought they had done it, on the whole route? Would they intentionally leave open a link in the chain of communication which destroyed all they did ? Beyond all question the legislature could have had no such intention ; and as the language which they used may extend to the whole route quite as appropriately as to the road only, we are bound to give it that construction ; the power to charge and the restriction are coextensive, and both extend to the whole route. But it is objected that the granting this power, and the restriction thereon to operate upon the water as well as upon the land, is an interference with the constitution, as expounded by the Supreme Court in Gibbons v. Ogden, 9 Wheat. 1. That was a case where one party held an exclusive right to navigate by steam the waters lying in the state of New York, under an act of that state, granting to Fulton and Livingston an exclusive right; and the court decided that such grant was in violation of the constitution and laws of Congress : that the bays and navigable waters were free alike to all the states and citizens, to navigate by steam or otherwise. But it was never pretended in that case that a state legislature could not charter a company to navigate the waters in any state, or even the ocean itself. If the company seek the protection and security of a state charter, they are bound, as a company, by the restrictions and penalties of that charter, and of the legislature that grant it, though any individual member of the company may exercise the right of a citizen, and do the same thing on his own responsibility without restriction : and this in no way interferes with the constitution or the exclusive powers of congress ; it is no restriction of commerce or of the rights of individuals; no exclusive grant or prohibitory use of the waters within or without the state ; no imposition of taxes, duties, imposts, or excises on vessels, or the cargoes thereof, but simply a power granted to a corporation, and a restriction thereon by the granting power ; not intended to operate on the persons of individuals, or their vessels or property, but simply on the corporation itself, on whom is conferred the right, imposed the duty, and is added the i’estriction. An individual, it has been urged, may do the same things unrestricted, for the waters are free. True, but when a company of individuals ask of a state a portion of its sovereign power to enable them, by land and water, to complete a line of communication between New York and Philadelphia, and to do this not under their individual names and responsibilities, but like a sovereign, with its capacity to act under its own seal in its corporate name, they cannot complain if the state that grants them this shall add all proper restrictions. It is no more than is constantly done to the various pilot companies, steam navigation companies, whaling companies, and others, chartered by state legislatures.

In disposing of one question, we have virtually settled the other; for if the sixteenth section of the charter extends to the whole line of communication,.then the overcharge for transportation from New York to Trenton is an overcharge upon every mile of the railroad travelled, and of course brings the company within the penalty of the statute, unless the fact of the penal act being passed some ten years after the charter, is a violation of the contract. But as its object is only to compel the company to fulfil their part of the contract, and inflicts a penalty only in case of its violation by them, of course it cannot come within this objection, for it neither violates or suffers the violation of the contract. The statute imposes a penalty of one hundred dollars upon any incorporated company in this state, authorized by law “ to charge for transportation,” which shall- directly or indirectly, “ under, any pretence,” take more than the rates of fare allowed by law, to be sued for before any justice of the peace of any county through which the railroad or canal passes. It is of no consequence where the offence was committed, whether on land or water, in the state or out of it, if it was by au incorporated company in this state authorized to take tolls, and was contrary to law. The phrase, to be sued for before any justice of the peace in any county in this state, through which the railroad or canal passes, does not limit or restrict the offence to any particular county, for the description of that is completed by the former part of the act; the restriction is merely as to the remedy or action, and would seem to imply that by “ incorporated companies,” in the preamble and previous part of the act, the legislature only intended railroad and canal companies, and not ferry or other incorporated companies, authorized to take fares or tolls. It lias been urged before the court with much force, that the duty imposed on the company to carry small packages of valuable merchandise for this restricted compensation, being a small fraction of one cent per pound, from New York to Trenton, would be exceedingly onerous and unreasonable, and that it ought not to be required. There would certainly be weight in the suggestion, had the court the power to adjust the burthen or relieve from the difficulty; and on the first examination of the charter, it did occur that possibly the restrictions of “eight cents per ton per mile” might be limited to the ton or larger transportations; but the legislature have superadded “ at the rate of eight cents, &c.” showing that the company were to carry small as well as large parcels at the same price, no such graduating phrase being added in the succeeding line in relation to the transportation of passengers: and the same distinction is made in the canal charter; but no such distinction occurs in either charter in regard to the transit duty, there it is simply so much per ton.

The construction of the charter contended for by the company, is said to have been honestly given, and acted on for many years, without supposition that it was in violation of their right and duty, and that the decision of the Supreme Court has already brought hundreds of penal suits and actions for the overplus charged, and that its confirmation by this court would be exceedingly injurious, if not ruinous to the corporation. If the question before us admitted of serious doubt in the minds of the court, this argument certainly would be entitled to grave consideration; but placing it, as we must, beyond all doubt, in our judgments, this court cannot look at consequences, but must administer the law as they find it.

To-day, it is true, we are called upon to protect the individual rights of the citizen against the alleged aggression of the company; to-morrow we may be asked to protect the chartered rights of the company against the aggression of the citizen ; but in the performance of our duty, we can give no higher assurance of the security of the one, than by our judgment for the protection of the other. The judgment below must be affirmed with costs. ■

Judge Speer. . In the argument of this cause, several questions were presented, not necessary to be decided by the court at this time. The defence set up in behalf of the plaintiffs in error rests upon the question, “ whether this company have a right to charge as common carriers for services rendered in discharge of duties, imposed by their charter upon them as a transportation company ?”

In my opinion, they have not. The company is the creature of legislation, clothed with such powers and rights, only, as are derived from the legislature by specific grant and necessary implication. A right to charge for transportation is expressly granted in the charter, and is there accompanied by a limitation coextensive with the.right itself.-

Applying this view of the rights and powers of the company to the facts of the case before the court brings the act of the company complained of in this ease within the language of the penal statute under which this suit is prosecuted. By the provisions of that act, any incorporated company in this state., authorized by law to take toll or charge for transportation of passengers, goods, &c., which shall take or demand more than the charge, toll, &c., allowed by law, shall forfeit and pay the sum of one hundred dollars, to be sued for, &c. I can find nothing in the reasons urged before the court, by the counsel of the company, which satisfies my mind that this company are not amenable to the provisions of that statute.

I am, therefore, of opinion that the judgment of the Supreme Court be affirmed.

Judge Schekck. This was an action of debt, brought by Peter Briggs, the plaintiff below, against the Camden and Am-boy Railroad and Transportation Company, for the recovery of a penalty of one hundred dollars, under the act to prevent the taking of unlawful toll or fare on canals and railroads, for an alleged violation of law in charging more than they were authorized to charge for the transportation of certain merchandise from the city of New York to the city of Trenton, by the way of South Amboy and Bordentown.

The plaintiff below proved that the defendants, on the twenty-ninth day of January, eighteen hundred and forty-six, charged Briggs & Bacon, partners, trading, &c., the sum of ninety-six cents for one box, of the weight of two hundred and forty pounds, for the transportation of the same from the city of New York, by the way of the Camden and Amboy railroad, to Trenton ; that the same was transported, by the steamboat of the company, from New York to South Amboy, a distance of thirty miles ; thence, in the cars of the company, over the company's railroad, to Bordentown, a distance of thirty-five miles; and thence, over the company's railroad, to Trenton, a distance of six miles, the whole distance being seventy-one miles ; and that the said transportation was done by and for the benefit of the said company, the defendants below. The bill was paid by the plaintiff below to the agent of the company. The justice gave judgment thereupon for the plaintiff for the penalty of one hundred dollars and costs. And it is agreed by and between the parties, by their respective attorneys, that if, upon the above state of facts, the plaintiff below was entitled to recover, then the judgment be affirmed, otherwise that it be reversed.

The Court of Errors and Appeals, on the above state of the case, are asked to reverse the judgment of the Supreme Court, on two grounds, viz :

First. Because the penal act,'passed March 12, 1839,- to prevent the taking of unlawful toll or fare on canals and railroads (and under and by virtue, of which act the above suit was brought, and judgment obtained,) was enacted subsequently to the act incorporating the Camden and Amboy Railroad and Transportation Company, and therefore inoperative, void, and of no force or effect against the company.

Second. Because there was no evidence that the company ‘ had taken or charged unlawful fare or toll on the said railroad or roads.

Before entering upon the consideration of the reasons assigned for reversal of the judgment of the Supreme’ Court, it may be proper to remark, that the company make no allegation that the charge was made, and received by them or their agents, by mistake or inadvertence, but claim the legal right of making the charge by virtue of their corporate powers.

■ This being the position assumed by the company, our inquiry will be directed to the first reason assigned for reversal, viz. “ that the penal act, passed March 12, 1839, was enacted subsequently to the act incorporating the Camden and Amboy Railroad and Transportation Company, and therefore inoperative, void, and of no force or effect against the said company.” The reason here given for reversal can only have validity, either because the penal statute of March 12, 1839, was an ex post facto law, or because its provisions were of a character to impair the contract between the Camden and Amboy Railroad and Transportation Company and the state of New Jersey, entered into by virtue of the act incorporating said company, passed February 4, 1830. If either of these positions can be sustained, then the penal act under which this suit was brought comes in conflict with that provision of the constitution which declares that the legislature “ shall not pass any bill of attainder or ex post facto law, or law impairing the obligation of contracts.” Is the penal statute above referred to inoperative, void, and of no force or effect in the case now under consideration, in consequence of its being violative of the constitution of this state or of the United States, as an ex post facto law? or do its provisions impair the conditions of the contract made with the Camden and Amboy Railroad and Transportation Company by the act. of incorporation already referred to ?

With regard to the first branch of the prohibition relative to an ex post fado law, it certainly has no application to this case. The act imposing a penalty of one hundred dollars for taking unlawful fare or toll, became a law of the state March 12, 1839. The charge of demanding and receiving unlawful fare, on which this suit is founded, was made January 29, 1846. It is therefore manifest that, at the time the taking of unlawful fare is complained of, the law fixing the penalty had been in existence several years.

In the next place the inquiry presents itself, whether there be any substantial reason for the proposition in this case, that the penal statute of March 12, 1839, impairs the contract made between the legislature of New Jersey and the Camden and Amboy Railroad and Transportation Company by the act of February 4, 1830, and therefore inoperative and void against the said company. The act of incorporation recognizes the liability of the company to the provisions of the act entitled, “ An act to prevent frauds by incorporated companies,” section 26th of the act. And as there is no provision, expressed or implied, in the act of incorporation exempting the company from the operation of any penal statute which may be subsequently passed “ to prevent the taking of unlawful fare or toll on canals and railroads,” this reason has no validity, and needs no further comment. The first reason, therefore, assigned for error, and on which reversal is asked, is not substantial, and cannot be sustained.

With regard to the second reason assigned, viz. that there was no evidence before the court to prove that the Camden and Amboy Railroad and Transportation Company had charged unlawful fare or toll on their said railroad or roads, it can only be determined by reference to the provisions of the act itself. In the case before us, it is admitted that the said company did transport 240 pounds of merchandise from New York to Trenton, for Briggs & Co., a distance of seventy-one miles, part of the distance, viz. thirty miles, by steamboat, and the residue of the distance, forty-one miles, on the company’s railroad, and in their cars, for which transportation they charged and received from the said Briggs & Co. ninety-six cents, which is more than at the rate of eight cents per ton per mile for the transportation of the said merchandise. But it is alleged by the company, that the charge of ninety-six cents was for the whole distance ; and that on part of the distance the transportation was made by steamboat on the- navigable waters between Amboy and New York ; and that the rate of fare or toll prescribed in sixteenth section of the act applies only to transportation of goods and merchandise bn the said railroad, and not in steamboats on the water. Such is the construction which the company allege they have given to the act, and which they contend before this court is the true and legitimate construction. If this be so, then there is no evidence that the company have charged more than at the rate of eight cents per ton per mile on the railroad ; for if the rate of charging, as prescribed in the sixteenth section of the act, is limited to the railroad, then the company may charge any amount of fare by steamboat, or other vessel, which in their discretion they may think reasonable and proper, on either extremity of the “line of communication from Philadelphia to New York.” The question, therefore, to be determined by the court is, whether the construction contended for by the company is in accordance with the provisions of the act of incorporation. To arrive at a correct conclusion on the subject in controversy, our attention must be directed to the act itself, the whole act,- the object to be accomplished, the powers conferred upon the incorporators, and the restrictions imposed. The act of incorporation, which gave existence to “ the Camden and Amboy Railroad and Transportation Company,” was passed February 4, 1830. It resulted from an application of several individuals, who were willing to embark in the enterprise of establishing “ a line of communication from Philadelphia to New York,” which line of communication should consist in part of a railroad, and in part over navigable waters, the transportation to be made, at either extremity of the railroad, with steamboat or other vessel. In accordance with the wishes of the applicants, the legislature, as heretofore stated, passed an act clothing with corporate powers such individuals as might associate in the enterprise, specifying in the said act., section second, that the corporation thereby created should “ have, enjoy, and exercise all the rights, powers, and privileges pertaining to corporate bodies, and necessary to perfect an expeditions and complete line of communication from Philadelphia to New York, and to carry the objects of this act into effect.”

The object, therefore, contemplated by the legislature, and provided for by the act, is clearly defined to be the establishment of an expeditious, continuous, and complete line of communication between the two great commercial cities already mentioned; and, to secure the accomplishment of this object, it is provided, by the seventh section of the act, that “ it shall be the duty of the company to provide suitable steamboats or other vessels, at either extremity, for the transportation of passengers and produce from city to city, so that no delay shall occur for want thereof, and that no impediment shall be offered to persons or property travelling on the railroad.”

The object for which this company was incorporated being distinctly defined, and the powers granted and the privileges conferred being also definitely specified in the act of incorporation, we are next brought to inquire, by what authority and by what rule of charging for the transportation of persons and property on the said line of communication from “city to city” the company are to be remunerated for their investment in the enterprise.

The sixteenth section of the act of incorporation provides, that the said company are hereby authorized to demand and receive such sum or sums of money, for tolls and the transportation of persons and every species of property whatsoever thereon, as they shall from time to time think reasonable and proper; provided, that they shall not charge more than at the rate of eight cents per ton per mile for the transportation of every species of property, nor more than ten cents per mile for the carrying of each passenger.” The correct and appropriate construction to be given to the word “thereon,” in the fourth line of this section, has been elaborately discussed by the counsel for plaintiffs in error. It has been maintained with much earnestness, that the word “thereon” applies exclusively to the transportation of merchandise and every species of property on the railroad of the company, and not on the free navigable waters between South Amboy and New York, on which the merchandise and other property is carried in steamboats or other vessels. That this is the true intent and meaning of the act, is inferred by plaintiff's counsel.

First. From correct grammatical construction of the act, counsel insist that the word “thereon” must relate to some substantive which has gone before. That, in the application of this grammatical rule to the phraseology of the section under consideration, the .conclusion is inevitable, that the word “ thereon” must relate to the railroad, as there is no other antecedent to which it can consistently refer, either by proximity or affinity.

In this effort of counsel to supersede the fair and legitimate construction of the act (as clearly indicated to be the intention of the legislature by the whole tenor of the act), they have not, in my opinion', taken a tenable position. The word “railroad,” in the fifteenth section, immediately preceding, is not so used or applied as to indicate any distinct object or design for which a railroad was authorized by the legislature. It relates in no way to transportation or a highway, and, consequently, if used in no other section, could not, by implication or otherwise, have relation to tolls, fare, or merchandise, or charges for passengers. In every instance in which it is used in this section, it is preceded by the word “said;” the “ said road” is repeated several times, and in such connection as to make it clearly understood that its signification had been previously defined in the act of incorporation. We are to look, therefore, to some other part of the act to determine its appropriate meaning, and whether, by sound grammatical construction, it should be subjoined to the word “ thereon,” in the sixteenth section. In the eleventh section of the act, by which the corporate powers of the company are enlarged and specified, it is also provided that the company shall have power “ to do all other things which shali he suitable and necessary for the effectual completion of “ said road or roads, and to carry into full effect the objects of this incorporation.”

What, then, is the object of this incorporation ? Can any one hesitate to believe that the intention of the legislature was to establish a line of communication from “ city to city,” expeditious, unbroken, and complete; which line, when completed, to be used for the transportation of persons and every species of property whatsoever without impediment or delay ? And, having provided for the establishment of a complete lÍDe of communication from “ city to city,” the act proceeds to prescribe the mode of remuneration by which the company may demand and receive toll and fare for persons or property carried on said line.

The word “ thereon ” must apply to the whole line, and not to any particular part; as no discrimination is made in the act designating the particular part on which fare may be demanded, none can be presumed by implication. The purpose of the legislature is kept prominently in view throughout the whole act, that the railroad was designed to be a part of the whole line from “ city to city,” and not regarded as a separate and detached portion, liable to restrictions or favored by peculiar privileges not applicable to the. whole line.

Secondly. In support of this construction, it is further contended that the legislature never could have intended to extend the rate of fare at eight cents per ton per mile, on either extremity of the line, beyond the terminus of the railroad, because the navigable waters are free to all, and the legislature have no jurisdiction over those waters. If this be so, if the legislature have no power to prescribe the rate of fare on that part of the line which lies across the navigable waters between Amboy and New York, then the company can demand no fare whatever for merchandise transported on their steamboats or other vessels by virtue of their corporate powers.

But it is maintained that the company may charge and demand fare on their steamboats and other vessels as common carriers, and as common carriers they are not limited by the rate of fare prescribed by their charter ; but to claim authority to demand a higher rate of fare for transportation by their steamboats than the maximum prescribed by the legislature, is an assumption of power not conferred or conceded by the act of incorporation. No right whatever is granted to the company to transform themselves at pleasure from being carriers under the charter to become carriers at common law. Suppose any individual should deliver a quantity of merchandise to one of the agents of the company’s line at South Amboy, to be carried in the line to New York, and, on delivery of the said merchandise in New York, the agent should demand, by tlie company’s orders, at the rate of fifteen cents per ton per mile for transporting the same, and payment refused on the ground of the charge being unlawful, could the company sustain an action by virtue of their corporate powers, at that rate of charging, for transportation from South Amboy. to New York ? or could they .sustain an action as common carriers for merchandise carried on their line as a privileged company ? But, to make a case more directly in point, suppose, in the suit now before the court, the defendants in error had refused to pay the charge of 96 cents for the transportation of 240 pounds of merchandise from New York to Trenton, because unlawful, could the company have sustained an action in a twofold capacity of common carriers for thirty miles of the distance, and privileged carriers for the remaining forty-one miles ?

The act of incorporation makes it the imperative duty of the company to keep steamboats or other vessels at both extremities of the railroad, so.that no delay shall be caused to the transportation of persons or property on the line of communication established by the charter. Now if the legislature were authorized to impose this duty on the company, and if they did possess the power to command the observance of it, by what mode of reasoning or by what form of argument can it be maintained that the legislature did not intend, and have not prescribed the rate of fare to be charged on either extremity of the line extending from “ city to city.”

Again, it has been contended, and insisted by the counsel for the company, that the “ line of communication authorized and fixed by the act of incorporation is declared to be a public highway,” and, as such, is open to competition, and may be used by others as carriers of persons, merchandise, and other property, and that the community have abundant guaranty for moderate charges by the ordinary operation of competition ; that the rates of fare must necessarily be reduced to the lowest point by opposing competitors for the business of transportation on this public highway. Any legislative prescription therefore, fixing the maximum rate of charging on the whole line, would be superfluous, and result in no benefit to travellers or persons transporting merchandise thereon.

It may be sufficient to remark, in answer to this argument, that no competition has ever been attempted, either by individual or associated enterprise, and that any protection, therefore, which might be secured to the public by rival carriers, has 'never been experienced. But let us examine this proposition, and ascertain, by reference to the charter, whether it be true, in point of fact, that this line of communication is a pub]ich highway for any purposes of competition. Is it accessible to any, as a medium of transportation, except to the company ? Can any individual or individuals become carriers on this line by the payment of tolls, without the consent and approbation of the corporators ?

The road, with all its appendages, is declared to be the personal property of the company, the whole line of communication from “ city to city ” is controlled by the direction of the company, for their exclusive benefit, and the powers they exercise and the profits and advantages they enjoy is by virtue of the act of incorporation. By the seventh section, it is provided that the directors, or a majority of them, “ shall decide upon the description of carriages to be used on said road, the weight to be carried in a carriage, the times of starting, and rates of travelling.” The power hereby granted, if there were no other, is abundantly comprehensive and efficient to enable the company to exclude all competition. The proposition, then, that this road is a public highway, cannot be sustained by reference to the act itself, and is contradicted by the fact, that no competition has ever been attempted.

But, admitting that there is ground for diversity of opinion, as to the intention of the legislature in some of the provisions of this law, owing either to the novelty of the subject or the vagueness»of the language employed in specifying the details of the act, are we left to grope our way in the dark, directed only by the dim light of conjecture, guided in our judgments by what we may individually regard as expedient or inexpedient ? For myself I feel no such embarrassment. If I do not greatly err, there lies at the bottom of this inquiry a fundamental principle, on which we may safely establish an opinion, legitimate, sound, and substantial.

The principle is this, that all legislation must be construed relative to the fundamental elements of the government under and by authority of which laws are enacted. The spirit of our free institutions not only justifies, but imperiously requires, that where doubts arise in the construction of legislative acts, whereby exclusive privileges are vested in a few, the construction should be favorable to the rights and interests of citizens at large, and adverse to the few who claim to exercise doubtful powers.

Judge Sinnickson. I am of the opinion that the word “ thereon,” in the sixteenth section of the charter of the company, means the railroad ; and that the company have no right to charge beyond the extremities of their road, either under the charter or on any other ground.

Ogden J. The argument was heard in this cause upon the facts set forth in a state of the case, agreed upon by .the attorneys of the parties.

It is an action of debt, brought by Peter Briggs against the company, to recover a penalty of $100, under “An act to prevent the taking of unlawful toll or fare on canals and railroads,” passed in March, 1839. {Rev. Stat. 601.)

On the 26th of January, 1846, the company charged Briggs & Bacon, partners in business, residing in Trenton, ninety-six cents for the transportation of a box, weighing 240 pounds, from the city of New York, by a steamboat of the company, to South Amboy, a distance of thirty miles, thence, in the cars of the company, over their railroad, to Bordentown, thirty-five miles, and thence in their cars, over their railroad to Trenton, six miles, the entire distance being seventy-one miles.

The bill was paid by Air. Briggs (the plaintiff below) to an agent of the company.

2. The plaintiff insisted, before the courts below, and again in this court, that the charge made by the company for transporting said box was more than their charter allowed, and that, under the general act of the legislature, before referred to, they had forfeited a penalty of $100, which he, as a common informer, was entitled to recover, with costs.

The overcharge is claimed to flow from a violation of the sixteenth section of the act incorporating that company; and, in the language of the senior counsel for the prosecutor, the question must be resolved by the settlement of two propositions.

1st. Does the limitation, not to charge more than at the rate of eight cents per ton per mile for transportation, extend from New York to Philadelphia? and if so, — 2d. Are the company liable to the penalty of the statute of March, 1839, which, by the judgment of the justice and of the Supreme Court has been applied to them?

The first depends upon a proper construction of a charter, in the nature of a contract, between the legislature and the company, granted to promote and accomplish a great internal improvement. The second rests upon the legal construction and application of a highly penal statute, enuring exclusively to the use of the informer, irrespective alike of the party overcharged, as also of a charitable or remunerative appropriation of any portion of its penalties.

The nature of the first inquiry has led to an elaborate and ingenious discussion of the charter incorporating “ the Camden and Amboy Railroad and Transportation Company,” and more particularly of the provisions of that portion of the sixteenth section thereof; which bears upon the compensation to be charged by them.

Most of the preceding sections contain enactments touching the organization of the company, the procurement of lands, and the laying out and constructing of a railroad or roads, with all necessary appendages, from the Delaware river, in the then county of Gloucester, to a point or points upon the Raritan bay.

The fifteenth section imposes a duty upon the company of constructing and keeping in repair bridges or passages over the said railroad or roads, where any other roads shall cross the same. By the sixteenth section, it is thus enacted: “ That the said company are hereby authorized to demand and receive such sum or sums of money, for tolls and the transportation of persons, and every species of property whatever thereon, as they shall from time to time think reasonable and proper; provided, that they shall not charge more than at the rate of eight cents per ton per mile for the transportation of every species of property, nor more than ten cents per mile for the carriage of each passenger, and that the railroad or roads and their appendages, and all other property belonging to the company, are hereby vested in the said company during the continuance of this charter.'’'’

The legislative meaning and application of the word thereon, in this connection, has created whatever doubt is urged as embarrassing this branch of the case.

It may be contended, in support of the judgment below, that the design of the legislature in granting the charter was to have perfected “ an expeditious and complete line of communication between Philadelphia and New York;” that a duty is therein imposed upon the corporators to provide suitable steam or other vessels, at either extremity of the railroad, for the transportation of passengers and produce from city to city, so that no delay should occur for want, thereof; and that the whole scope of the charter looked to the accomplishment and use of the entire route. From those premises the argument was drawn, that, in conferring powers to demand and receive compensation, the legislature contemplated that such power should be exercised upon the whole extent of the desired line óf communication ; and that they also imposed their restriction upon the whole line..

Both parties concede that the grant of a power to charge, and the restriction thereof, are coextensive ; so that the determination of the former will necessarily settle,the latter.

It was answered, in behalf of the company, that the words of the sixteenth section are not ambiguous, but are susceptible of a plain construction, without resorting for aid to the whole scope of the act; but if not so, (hen that the legislature did not mean in the sixteenth section to extend the power and apply the limit beyond the railroad proper.

lu support of this aspect of the case, it was urged that the relative word “thereon” is the controlling one in that paragraph ; that its antecedent is to be sought in the context, as the sections are plaeed in the charter; that the railroad or roads proper, having been the subject of the next five preceding sections, they should be taken as the antecedent; and that overlooking them, and passing back to the second section, and thence taking “ the entire line of communication between the cities ” for a proper antecedent to “ thereon,” would violate every principle of grammatical and established rules of construction.

The first section provides for opening books for subscription ; the second fixes the capital stock, gives the corporate name, and confers the general powers pertaining to corporate bodies, and necessary to perfect an expeditious and complete line of communication from Philadelphia to New York and to carry the objects of the act into effect.

Let us examine the several provisions. The third section regards the subscriptions for the stock ; the fourth, the effect of insufficient subscriptions ; the fifth and sixth, the mode of electing directors and their president; the seventh confers powers on the directors for supplying vacancies, appointing other officers, deciding upon the description of carriages to be used on the road when completed, the weight of loads, times of starting and rates of traveling, regulating of tolls, and making by-laws for the general government of the company and its officers, and, for the prevention of delay, requires the provision of suitable boats at either extremity.

The eighth, ninth, and tenth sections regard annual exhibits, special meetings of stockholders, and elections in certain cases.

The eleventh section, prefacing it to be “ for facilitating the objects of the act,” confers the powers necessary to survey, lay out, and construct a railroad or roads, with all necessary appendages, from the Delaware river to the Raritan bay. The twelfth provides for a lateral railroad to Bordentown ; the thirteenth authorizes the taking of required lands and materials for the railroads upon making compensation, as therein is directed ; the fourteenth gives an appeal from the tribunal for compensation established in the thirteenth section ; the fifteenth imposes upon the company the duty of constructing suitable bridges and ways where any road shall cross the said railroad or roads, and where the said railroad shall intersect a farm : then follows the sixteenth section, which enacts, that the company are thereby authorized to demand and receive such sum or sums of money, for tolls and the transportation of persons and every species of property whatsoever thereon, as they shall from time to time think reasonable and proper, limited by the restriction already recited. As the sections are placed in the act, the construction of the limitation contended for by the plaintiffs in error is consistent with the language employed and the rules of grammatical construction ; and should, in my judgment, prevail, unless its consequences would conflict with other plain provisions of the charter, or defeat the obvious intention of the legislature, as developed by the whole act.

It was not alleged, in argument, that there was any other enactment upon the matter*of compensation which should influence the construction of the sixteenth section; but this branch of the case was put by the prosecutor, upon the ground, that confining the restriction to the road would defeat the intention of the legislature to guard the public against excessive charges, by providing a limitation coextensive with the route upon which, as transporters, the company were authorized by the act to operate.

■ The great design of the legislature was to confer those powers' and privileges upon a company that were necessary to perfect a line of communication from the one city to the other, for the more expeditious and desirable transit of passengers and property between those points, and likewise to and from intermediate points upon the line. The eleventh section authorizes the location and construction of a railroad from the Delaware river to the Raritan bay, to facilitate the objects of the act; and it is fair to assume that the representatives of the people of the state, in parting with a portion of her sovereignty to individuals, circumscribe its exercise within such bounds as a due regard for the interests of the public would dictate.

In behalf of the company it was said, that such protection was extended by applying the restriction exclusively to the roads, inasmuch as the waters were free, and the portions of the route from the respective termini of the railroad would be open to competition, which would regulate the charges thereon.

In seeking for the intent of a legislative body, it is proper to consider the state of things existing at the time of the passage of the act under examination. This company was incorporated when railroads were in their infancy in this country. The line of communication from Philadelphia to New York was then maintained by stages and transportation wagons between the Delaware and Raritan rivers, and by steamboats from the termini of the land routes and from the cities.

These boats were then maintained by others than the applicants on this road in successful and competing operation, at 'charges much less upon passengers and tonnage than would result from the maximum rates allowed to the company in the sixteenth section. A distinct and antagonistic application was also at the same time before the legislature, desiriug a charter for the construction of a canal from the Delaware to the Raritan ; and so jealous was each company of the rival adventurers, lest the other should obtain more favorable terms from the legislature, that the two charters were framed in identical language, as far as the nature of the respective improvements would allow, the second section of each contemplating, in words, the perfecting of “ an expeditious and complete line of communication from Philadelphia to New York.” The two applications were kept, by their respective advocates, in like state of advancement before the legislature, and both charteis were eventually passed on the same day. So far as we can now enter into the views then entertained of the expected operations of these institutions, it is reasonable to suppose that a brisk and healthful competition was fully anticipated.

The companies continued under advancing management for oue year, and on the 15th of July, 1831, when the canal company was seeking powers to construct a railroad, the act was passed authorizing a consolidation of the two stocks.

I have made this historical digression for the purpose of showing that the intention of the legislature regarding the operation of the sixteenth section, when sought in the language adopted, and the object they had in view, and the whole scope of the charter, is not so manifest as not to have afforded ground for honest differences of opinion upon the construction of the limitation.

Locomotive engines were not at that time in successful operation here, and the prevailing idea undoubtedly was, that the railroad would be used by individuals as a public highway, under the twenty-eighth section of the charter, subject to such regulations as the company might ordain under the powers granted to them in the seventh section of the same.

Such, however, has not been the result. The main carrying business upon railroads, in this country and in England, has fallen into the hands of the companies themselves.

In the present case, the company have stocked the railroads with carriages and motive power; have provided, as a part of their corporate property, steam vessels at each terminus of the road ; and have established, and do conduct such lines of transportation, both for passengers and property, as effectually, to preclude all competition in the use of their railroad, or of the rivers in connection with their roads.

Such appropriation of the benefits of the road has centered in the company the entire carrying business upon that line between the two cities, and it has become a matter of grave importance to the public how far they can be restrained, under their charter, in their charges for transportation. If the construction, advisedly adopted and openly and professedly acted upon by them up to the time of the commencement of this suit, be the only one of which the phraseology of the act is susceptible, then their power to charge upon, the water must be declared by this court to be discretionary, and the limitation imposed upon the railroad must practically become a nullity.

Experience and authority teach that, when called upon to construe grants of powers to companies of this nature, if the language is ambiguous, courts should establish that construction which will be most favorable to, and protective of the interests of the public, and comport with the ascertained intention of the legislature.

Such charters are universally granted upon the application of individuals. The language used should be considered as their language ; and if it is open to a fair doubt, and great inconvenience would result from a particular construction, that construction should be avoided, unless the meaning of the legislature be plain ; and the act should be construed strictly against the corporators.

Influenced by a policy which contemplates, in grants of such powers, a suitable protection against unlimited charges, I am of opinion that the language of the sixteenth section is not so plain as clearly to indicate a legislátive intent of confining the power to charge within the termini of the railroads ; and hence, that the restriction in the section should be taken as extending over the whole line of communication from Yew York to Philadelphia completed by the corporators under the powers of their charter, and used by them in the exercise of their privileges as a “ transportation company.”

This result brings me to the consideration of the second proposition which I shall endeavor to dispose of with more brevity.

1 think the justice who delivered the opinion of the Supreme Court erred in premising that “ the only question for the consideration and decision of the court was, whether the charge made by the company is greater than the law authorizes them to make,” as neither the state of the case nor the facts shown confine us to that one point.

It does not, then, in my judgment follow that, in giving the foregoing construction to the charter, we must necessarily decide that “ the plaintiff below was entitled to recover.” He came before a judicial tribunal of the state as an informer, demanding a judgment for $100 costs against the company for a forfeiture, charged by him to have been incurred in virtue of a penal statute.

His attitude entitled him to no liberality from the court, nor should any intendment be made in his favor. If he, as a member of the firm of Bacon & Briggs, had been overcharged, their redress was open in an action for the money overpaid ; which remedy still will exist unaffected by the determination of this branch of the case.

If the act of the 12th of March, 1839, construed and executed upon those conservative rules applicable to penal statutes “ which the wisdom of ages has sustained,”'and, in the language of Chief Justice Marshall, “are founded on the tenderness of the law for the rights of individuals, and on the plain principle, that the legislature, and not a court, is to define a crime, and ordain its punishment;” if, I say, thus construed, it embraces this ease, the judgment below should be affirmed ; but if it does not, the judgment, in my opinion, should be reversed.

The statute under which the suit was instituted is entitled, “ An act to prevent the taking of unlawful tolls or fare on canals and railroads.”

The preamble is in the following language : “ Whereas complaints have arisen that some of the incorporated companies of this state have takeu a greater amount of fare or toll than is allowed by law, and also of the unequal, fluctuating, and unlawful rates of toll or passage money upon the several canals or railroads of this state, therefore ”—

Then follows the enacting clause.

“ That any incorporated company or companies in this state, which is, are, or shall be authorized by law to take toll, or to charge for the transportation of passengers, goods, wares, or merchandise, which shall, directly or indirectly, through or by any agent, director or other officer whatever, take or demand of any passenger or person, under any pretence whatever, more than the charge, toll, rates, or fare allowed by law, shall forfeit and pay the sum of $100 for each and every such offence, to be prosecuted for and recovered, with costs, before any justice of the peace in any county of this state through which the said railroad or canal may pass, in the name and for the use of the person or persons prosecuting- for the same.”

The counsel for the company have insisted that the plaintiff-was not entitled to recover, because the statute does not apply to the evidence in this ease. They urged that, if the company have made the overcharge complained of, it having been done upon the water portion of the whole route, their error does not fall within the provisions of this act.

Although their bill was rendered for the charge in gross, yet if the amount was made up by a computation at eight cents upon the railroad arid the excess upon the steamboat, as they allege, the mode of announcing the charge in gross, no items having been required of them, cannot change their liability under the penal act.

For the purpose of reaching a satisfactory conclusion, it is proper to examine the act, and, if practicable, to test the intention of its framers, as maintained on either side by the language adopted.

It would be unsafe to assume that, in penal prosecutions, a case is within the reason or mischief of the statute, and hence within its provisions, unless the plain meaning of the words used warrants such conclusion.

Docs the description, “any incorporated company in this state,” necessarily embrace the plaintiffs in error ? If so, the same description will include the various incorporated steamboat and turnpike companies in the state, who may charge or take unlawful fare, rates, or toll, without any jurisdiction being established for entertaining the prosecutions.

Failing then, from the general descriptive words of the enacting clause, to divine the intention of the legislature, it is next proper to examine other portions of it, in quest of that guide for a construction.

The latter clause thereof provides that the action shall be brought before a justice in some county of this state through ■which the said railroad or canal may pass. Is it not indicated, by this expression, that the mischief, which the legislature intended to remedy, was being committed upon som§ railroad or canal within the state ?

Suppose that the box of merchandise had been delivered at the office of the company in New York, to be transported to Perth or South Amboy, and they had charged and been paid for that service upon their boat the sum of fifty-five cents, instead of thirty cents, which latter would be the charge for it, if computed upon the restriction in the sixteenth section, would the penalty of this act have attached ? If so, where and before whom should the action be brought? The box would not in that case, as yet, have touched any railroad carriage or canal boat.

This insistment, that transportation upon canals and railroads was alone in the contemplation of the legislature, is likewise supported by the title and the preamble, although when, by the enacting clause, the intent is so plain that nothing is left for construction, it should control; yet in cases of dubiety the title may be invoked to assist in removing the ambiguity, and the preamble may be used as a key to open the intent of the law makers.

This is entitled, “ An act to prevent the taking of unlawful tolls or fare on canals and railroads.”

The preamble sets out “ that complaints have arisen that some of the incorporated companies of this state have taken a greater amount of fare or toll than is allowed by law ; and also of the unequal, fluctuating, and unlawful rates of toll or passage money upon the several canals or railroads of this state.”

It, in terms, locates the mischiefs complained of upon the canals and railroads, thus disclosing the inducement for the act; while the title, in language, professes to prevent such illegalities “ on canals and railroads.”

If these portions of the enactment throw any light to guide in the construction of the act, do they not direct us to that conclusion which will confine its penalty to cases occurring exclusively upon canals and railroads ?

This is the highest grade of penal statutes affecting property. Unlike the “act to prevent the unlawful waste and destruction of timber in this state,” which appropriates one half of the penalty to the owner of the land, or the act against usury, which gives one half for the use of the state, this presents the strongest inducements for speculative prosecutions against companies, irrespective of the extent of the overcharge and of all circumstances of justification.

It makes no allowance for mistakes, misunderstandings, or honest differences of opinion as to legal rights, but fastens its punishment upon the subjects of its penalties, if, “under any pretence whateverthey happen to make a charge in good faith which may thereafter for the first time be adjudicated to be illegal.

Penal statutes are to be construed strictly against the prosecutor, and in cases of ambiguity the court is bound to decide in favor of the accused. .Livingston, J., Paine’s N. York Cir. Ct. R. 32.

He continues, “ They ought not, by what may be considered their spirit or equity, to be extended to offences which are not specially and clearly described and provided for in terms which leave no reasonable doubt of their meaning.”

If it be the duty of a jury to acquit where such doubts exist concerning facts, it is equally incumbent upon a judge not to apply the law to secure, where he labors under the same uncertainty as to the meaning of the legislature. Nor is a court bound to conclude that a legislature have done what they intended, unless Jit words be used for the purpose.

“ The language employed must authorize the determination of a case to be within a penal statute. Probability of legislative intent is not a guide which can safely be taken in construing a penal statute.”

It would be dangerous, indeed to carry out the principle, “ that a case which is within the reason or mischief of a statute is within its provisions, because it is of a kindred character with those enumerated in it.” Chief Justice Marshall, 5 Wheat 76, &c.

Upon these principles and by these rules penal statutes should be construed. No intendment is to be made in favor of the informer. If the present act does not reach as far as ascertained evils require that it should reach, it is far safer to leave the matter to the wisdom and sound discretion of the legislature than to seek a cure by judicial legislation.

It is proper, from suggestions made upon the argument, that we should ascertain whether the act of 1839 partakes of the qualities of a remedial statute. It is true that a penal statute may be a remedial law; and, also, that a penal statute may he penal in one part, and remedial in another; in which latter case, however, each clause should be construed by the peculiar rules applicable to its distinctive character.

This act has but one aspect, the imposition of a penalty. In providing for that, it recognises and constructively affirms the legality of tolls and rates allowed in existing charters; but “ an affirmance of an anterior law cannot properly be styled remedial.” Dwarris on Statutes, 637.

Remedial acts have been divided into enabling and restraining statutes. Ib.

They are made to supply the defects discovered in the common law, from whatever cause such defects arise; by enlarging it where found too narrow, or restraining it where too luxuriant. Ib. 641-2.

If, by analogy to the eommon law .rule, we are permitted to test the character of a statute by its effect upon another statute, we cannot escape the conclusion, that the act under examination neither enlarges nor restrains the provisions of the charter of this, or of any similar company. It suggests no defects; it provides no remedy which did not before exist; it merely adds to the common law remedy, which every injured party had for redress against an illegal charge for toll or fare, an independent forfeiture of a penalty to any person who may sue for the same.

Although the defendants below are a corporate company, yet their vitality and ability to act and carry out the objects of their charter spring from the enterprise and the capital of individuals, thus involving rights which are entitled to the common protection and law of the land.

Being clear in my conviction, that the act of 1839 is not in any portion thereof remedial, but that it is a purely penal statute of the most punitive class, which if legally construed cannot be applied to the facts of the present case, I am of opinion that upon this ground the judgment should be reversed.

Judge Portee. The first section of the act incorporating the railroad company provides for opening the books for subscription to the stock, &c., the second section divides the capital stock into shares, &o., and gives them power to make and use a common seal, and to exercise all powers pertaining to corporate bodies, and necessary to perfect an expeditious and complete line of communication from Philadelphia to INIew York.

There being a line of steamboats then running from Amboy, on the Earitau Bay, to New York, the railroad from Camden to Amboy was necessary to perfect an expeditious and complete line of communication; therefore clearly inferring that it was not to make, but to perfect, with what already existed, an expeditious line of communication.

The seventh section provides that the officers of the company shall decide upon the description of carriages to be used on said road, when completed, the weight to be carried in a carriage, the times of starting and rate of travelling, so that no injury may be done to said road, or impediments offered to persons or property travelling thereon; and it shall be their duty to provide steam or other vessels, at their extremity, for the transportation of passengers and produce, so that no delay shall occur for want thereof, shall regulate tolls, &e.

The fifteenth section makes it the duty of the company to construct and keep in repair good and sufficient bridges or passages over the said railroad or roads, where any public or other road shall cross the same; and when the said railroad shall intersect the farm or lands of any individual, to provide aud keep in repair suitable wagon ways, &c.

The sixteenth section authorizes the company to demand and receive such sum or sums of money, for tolls and the transportation of persons and every species of property whatsoever thereon, as they shall from time to time think reasonable and proper; provided, that they shall not charge more than at the rate of eight cents per ton per mile, for the transportation of every species of property.

This, in my opinion, gives the company the right to charge such reasonable sum for toll and transportation of properly as they may think proper only on the road or roads incorporated by this act, and extends the restriction of eight cents per ton per mile to the same. That the word thereon, in the sixteenth section, refers to some antecedent, and, by the fair reading of the act, it refers to the word railroad .or roads, in the section immediately preceding, and should be so read as though the word railroad had been written in its place.

From South Amboy, on .the Raritan bay, to the city of New York, a distance of about thirty miles entirely over the water, which is an arm of the sea and beyond the geographical limits of the state, the legislature have, by this charter, granted no privileges and imposed no restriction, leaving the compensation for transportation on this part of the line from city to city to be charged by the company, as common carriers over navigable waters.

It is admitted that the package, for which an overcharge of freight was alleged to have been made, was carried over the water from New York to Amboy, and on which, in my opinion, the penal statute does not apply.

The judgment of the court below is therefore erroneous, and should be reversed.

Judge McCarter concurred in the opinion expressed by Judge Porter.

For affirmance — The Chancellor, Justice Randolph, and Judges Sinnickson, Schenck, and Speer.

For reversal — Justice Ogden and Judges McCarter and Porter.

The Chief Justice and Justices Nevius and Carpenter had given opinions in the court below, and Judge Wall was a director of the company.

Judgment affirmed,

(a)

Cited in Mor. & Essex R. R. Co. v. Sussex R. R. Co., 5 C. E. Gr. 562; Black v. Del. & Rar. Can. Co., 7 C. E. Gr. 401.

The Supreme Court of the United States, in the ease of John A. Perrine v. The Chesapeake and Delaware Canal Co., 9 Howard 172, decided at January term, 1850, (contemporaneously with the Briggs -case) maintain the doctrine held in this case by the Court of Errors, that a corporation cannot take toll or exercise any other corporate power when not clearly granted by tbeir charter. In that ease, the charter having omitted to authorize the demand of toll for passengers, it was held that passengers are entitled to pass on the canal toil free. See, in opinion of Taney, C. J., 184 and 192.