People ex rel. Tyroler v. Warden of City Prison of New York

• Citation: 51 N.E. 1006,157 N.Y. 116
• Parties: PEOPLE ex rel. TYROLER v. WARDEN OF CITY PRISON OF CITY OF NEW YORK.
• Decision Date: 22 November 1898
• Court: New York Court of Appeals

157 N.Y. 116

51 N.E. 1006

PEOPLE ex rel. TYROLER

v.WARDEN OF CITY PRISON OF CITY OF NEW YORK.

Court of Appeals of New York.

Nov. 22, 1898.

Appeal from supreme court, appellate division, first department.

Habeas corpus by the people, on the relation of George Tyroler, against the warden of the city prison of the city of New York. From an order of the appellate division (50 N. Y. Supp. 56) affirming an order dismissing the writ and remanding relator to custody, he appeals. Reversed.

The relator is a citizen of the state of New York and of the United States, and immediately prior to his arrest, and for several years before that time, had been engaged in the city of New York in the business of selling, and offering for sale, and procuring, tickets, giving, and purporting to give, the right to a passage and conveyance on vessels and railway trains. He is charged with having received the sum of $6.30 as a consideration for a passage or conveyance upon a ferry-boat, train, and vessel from the city of New York to the city of Norfolk, Va., and for the procurement of a ticket giving the absolute right of passage and conveyance upon such ferryboat, train, and vessel, he not being at the time an authorized agent of the owners or consignees of such vessel, or of the company running such train. It is not pretended that the relator did not come into the possession of the tickets lawfully, and by purchase from the transportation companies issuing them. The relator sued out a writ of habeas corpus, and demanded his discharge from the custody of the defendant, on the ground that the act of 1897 (chapter 506) violated certain provisions of the constitution of the state of New York and the constitution of the United States, and was therefore void. The special term made its order dismissing the writ, and remanded the relator. The appellate division affirmed that order.

Bartlett, Martin, and Gray, JJ., dissenting.

Samuel Untermyer, for appellant.

Asa Bird Gardiner and James D. McClelland, for respondent.

PARKER, C. J. (after stating the facts).

The statute that appellant insists is in derogation of the limitation placed upon the legislative power by the people, through the constitution of the state, reads as follows:

‘Section 1. The Penal Code is hereby amended by inserting therein a new section, to be known as section six hundred and fifteen, to read as follows: § 615. Sale of Passage Tickets on Vessels and Railroads Forbidden, Except by Agents Specially Authorized. No person shall issue or sell, or offer to sell, any passage ticket, or an instrument giving or purporting to give any right, either absolutely or upon any condition or contingency to a passage or conveyance upon any vessel or railway train, or a berth or stateroom in any vessel, unless he is an authorized agent of the owners or consignees of such vessel, or of the company running such train, except as allowed by sections six hundred and sixteen and six hundred and twenty-two; and no person is deemed an authorized agent of such owners, consignees or company, within the meaning of the chapter, unless he has received authority in writing therefor, specifying the name of the company, line, vessel or railway for which he is authorized to act as agent, and the city, town or village together with the street and street number, in which his office is kept, for the sale of tickets.

‘Sec. 2. Section six hundred and sixteen of the Penal Code is hereby amended so as to read as follows: § 616. Sale by Authorized Agents Restricted. No person, except as allowed in section six hundred and twenty-two, shall ask, take or receive any money or valuable thing as a consideration for any passage or conveyance upon any vessel or railway train, or for the procurement of any ticket or instrument giving or purporting to give a right, either absolutely or upon a condition or contingency, to a passage or conveyance upon a vessel or railway train, or a berth or stateroom on a vessel, unless he is an authorized agent within the provisions of the last section; nor shall any person, as such agent, sell, or offer to sell, any such ticket, instrument, berth or stateroom, or ask, take or receive any consideration for any such passage, conveyance, berth or stateroom, except at the office designated in his appointment, nor until he has been authorized to act as such agent according to the provisions of the last section, nor for a sum exceeding the price charged at the time of such sale by the company, owners or consignees of the vessel or railway mentioned in the ticket. Nothing in this section or chapter contained shall preventthe properly authorized agent of any transportation company from purchasing from the properly authorized agent of any other transportation company a ticket for a passenger to whom he may sell a ticket to travel over any part of the line for which he is the properly authorized agent, so as to enable such passenger to travel to the place or junction from which his ticket shall read.’ Laws 1897, c. 506.

The remaining portion of the section relates to the redemption of tickets purchased from an authorized agent of a railway company, under certain contingencies, and within certain periods of time, and is not in any wise involved in this appeal.

Having observed how the statute reads, it will be well next to analyze it, and see if we can find out what was intended to be accomplished, and is in fact accomplished, by the phraseology of the statute, in order that we may ascertain whether the statute is in contravention of any of the rights secured by the constitution to the citizen. It will be observed, in the first place, that it does not prohibit the sale of tickets absolutely, nor does it limit to the particular transportation company over whose route he desires to be conveyed the right to sell tickets to the traveler. It may be said, in passing, that the last assertion is in conflict with the position taken by the learned judge who wrote the opinion of the appellate division; for he assumes that, as only persons appointed agents can sell, the effect of the provision is that a corporation ‘shall only sell through its agents, and is merely a declaration that the corporation itself was to sell its tickets.’

The first section and the first part of the second section do restrict the sale of passage tickets to agents specially authorized by transportation companies, and, if there was nothing else in the statute upon the subject, it would bear the construction put upon it, that its only effect is to confine the right to sell passage tickets of a corporation to that corporation itself, which can act only through agents; but between the opening and the closing sentences of the second section may be found the following: ‘Nothing in this section or chapter contained shall prevent the properly authorized agent of any transportationcompany from purchasing from the properly authorized agent of any other transportation company a ticket for a passenger to whom he may sell a ticket to travel over any part of the line for which he is the properly authorized agent, so as to enable such passenger to travel to the place or junction from which his ticket shall read.’ Thus we see that the moment a man becomes the agent of a transportation company he is by that designation authorized to buy tickets of any other transportation company in the United States or the world, and may sell such tickets to any person who applies for them. In the sale of tickets of the various transportation companies, other than those of the company of which he is an agent, he necessarily acts as a broker. He can buy the tickets and sell them again, making a profit that may perhaps depend more or less on the degree of competition between railroads in various parts of the country. Clearly, the agent of a transportation company, in the purchase and sale of tickets of foreign corporations, is not engaged in selling the passage tickets of the transportation company appointing him. It is not the sale of the tickets of his principal alone that the agent is thus engaged in; but when a transportation company appoints an agent to sell its tickets, then the state, by this statute, steps in and attempts to clothe him with the power which it takes from all other citizens to deal in the tickets of as many other transportation companies as he may be able to make satisfactory arrangements with.

This leads us to note another interesting feature of this remarkable statute. The buying and selling of passage tickets is not abolished; it is only condemned where the seller has not authority from some one of the transportation companies to act as its agent. It has happened before that for the protection of the people the lawmaking power has provided for an examination for the purpose of ascertaining whether applicants possessed suitable qualifications as to character, intelligence, and financial responsibility to fill certain positions of trust, or to engage in a business which might prove dangerous to the people in the hands of a person either incompetent or of bad character; but in no instance has it conferred a general and unlimited power of appointment upon a class of persons or corporations wholly unconnected with the state government. It may possibly be that there was such a situation as would have justified an enactment placing some restrictions upon those engaged in the selling of passage tickets, and prescribing penalties by way of fine or imprisonment for those who should break over such restraints. Our excise legislation affords an illustration. By its provisions all are permitted to sell liquor, within certain limitations that apply to all citizens alike, and for the violation of the regulations of the traffic are provided certain penalties that are expected to assure to the public some measure of protection from non law-abiding citizens engaged in the business. But this act simply turns over to the transportation companies...