Supreme Court, April, 1921. [Vol. 115. sidered as incorporated in the Public Service Commissions Law and are a part thereof; that any common carrier violating section 26 of the Transportation Corporations Law shall be deemed to have violated the Public Service Commissions Law and shall be liable to the penalty prescribed therefor by section 56 of the latter law. It is the rule of construction of statutes in pari materia that they should be harmonized, read together and so far as consistent with each other, should be construed as if they had originally constituted one enactment; but he is in error in gleaning the thought from such rule that sections 25 and 26 of the Transportation Corporations Law are to be considered as incorporated in the Public Service Commissions Law so as to render a penalty provision of the latter law for any violation of " any provision of this chapter" (Pub. Serv. Comm. Law) applicable to a violation of said section 26 of the Transportation Corporations Law. The fact is that section 25 of the latter law makes the Public Service Commissions Law, so far as it relates to common carriers, applicable to itself. The Public Service Commissions Law is deemed a part of sections 25 and 26 of the Transportation Corporations Law and so far as the former contains provisions relating expressly to sections 25 and 26 of the latter law or to violations of " any law" or has provisions applicable to any common carrier," such provisions are deemed to be a part of said sections 25 and 26. 66 It is only the relevant provisions of the Public Service Commissions Law that are applicable. If a penalty is prescribed in a particular article of a statute for any violation of any provision of such article, would anyone contend that such penalty covered a violation of the provisions of any other article of that statute? Yet both articles are parts of the same Misc.] Supreme Court, April, 1921. enactment. The conclusion reached by the corporation counsel is equally untenable when he urges that a penalty for an offense against the Public Service Commissions Law may be deemed a penalty for an offense against section 26 of the Transportation Corporations Law. The two statutes may be interpreted together as parts of one whole enactment, but the Public Service Commissions Law must be considered as though a separate article thereof and sections 25 and 26 of the Transportation Corporations Law as though sections of another separate and distinct article. A penalty clause in a statute should be construed in accordance with its plain terms and not enlarged by implication, and the plain terms of section 56, subdivision 1, relate only to a violation of the Public Service Commissions Law. If it had been the intention of the legislature to apply such penalty to a violation of the Transportation Corporations Law or any law relating to common carriers, other than the Public Service Commissions Law, the legislature would have adopted the scheme of the Public Service Commissions Law generally where such a purpose was intended as for example, the language used in section 48 of the Public Service Commissions Law, which gives to the commission the power and the duty to investigate any violation of "any provision of law by a common carrier and to make an order in relation thereto; or as in section 57 for example, where provision is made for a summary proceeding in the Supreme Court at the instance of the commission. and its name, for the purpose of stopping and preventing a common carrier from doing anything" in violation of law." Other instances could be set forth which are of similar import as for example, the pro Supreme Court, April, 1921. [Vol. 115. vision of section 74 of the Public Service Commissions Law. In other words, section 56, subdivision 1, of the Public Service Commissions Law by its plain terms relates to a violation by a common carrier of any provision of the Public Service Commissions Law, and not to "any violation of law" by a common carrier. 66 If it is contended that a penalty for the violation of section 26 of the Transportation Corporations Law has been imposed through the medium of a proceeding instituted by or before the public service commission and subjecting a common carrier to an order of the commission requiring it to obey any provision of law," including section 26 of the Transportation Corporations Law, the answer to that contention is that the penalty imposed through such a proceeding is a penalty for the violation of an order of the commission and is not a penalty for the violation of the Transportation Corporations Law. In other words, there is no penalty prescribed in the Public Service Commissions Law for violations of section 26 of the Transportation Corporations Law and for which violations the commission is empowered to hold a hearing and impose the penalty. There may be a thousand violations of section 26 of the Transportation Corporations Law, and a thousand hearings to determine that there were a thousand violations and there may be a thousand orders to discontinue the thousand violations, and yet, there is no penalty prescribed in the Public Service Commissions Law or elsewhere for such past violations of the Transportation Corporations Law. There is no penalty whatsoever prescribed until and unless there is a disobedience of the order or orders of the commission after such hearing and determination. Surely such penalties for the violations of the orders of the com Misc.] Supreme Court, April, 1921. mission cannot be deemed to be penalties for the violation of the Transportation Corporations Law. No penalty is prescribed for the past offense. The penalty is for the continuance of the offense after the order of the commission. Therefore section 29 of the Penal Law is applicable. It is plainly the law that violations of section 26 of the Transportation Corporations Law are pun-. ishable as misdemeanors under section 29 of the Penal Law, and that the penalty of $5,000 for each offense is administered only in cases where the offense is continued in spite of an order of the public service commission. The applicability of section 29 of the Penal Law to such a case as this is abundantly supported by the authorities. Gardner v. People, 62 N. Y. 299; Marra v. N. Y. C. & H. R. R. R. Co., 139 App. Div. 707; Keller v. Erie R. R. Co., 183 N. Y. 67; Matter of Vanderhoff, 15 Misc. Rep. 434; Matter of Pickett, 55 How. Pr. 491; People v. Olcese, 41 Misc. Rep. 102. Another error, however, in the contention of the corporation counsel lies in the fact that he has not properly analyzed all the provisions of the Public Service Commissions Law in his effort to apply the penalty provisions of that law to violations of the Transportation Corporations Law. Thus if we assume for the sake of argument that the penalty provisions of the former are applicable, we find that the offense in question has been expressly made a misdemeanor. To be more specific, if the violation of "any provision of this chapter " wherever found in the Public Service Commissions Law, relates to a violation of the Transportation Corporations Law, upon the theory of the corporation counsel, then the Public Service Commissions Law has provided, not only a Supreme Court, April, 1921. [Vol. 115. penalty of $5,000 for each offense, running against any common carrier who is guilty of such violation, but has provided under section 56, subdivision 2, that violations by every officer and agent of any common carrier are misdemeanors and has provided under section 58, subdivision 2, that violations by every person, either individually or as officer or agent of a corporation other than a common carrier, are misde meanors. Section 56, subdivision 2, of the Public Service Commissions Law provides as follows: 2. Every officer and agent of any such common carrier or corporation who shall violate, or who procures, aids or abets any violation by any such common carrier or corporation of, any provision of this chapter, or who shall fail to obey, observe and comply with any order of the commission or any provision of an order of the commission, or who procures, aids or abets any such common carrier or corporation in its failure to obey, observe and comply with any such order or provision, shall be guilty of a misdemeanor." Section 58 of that law provides as follows: "§ 58. Penalties for other than common carriers. 1. Any corporation, other than a common carrier, railroad corporation or street railroad corporation, which shall violate any provision of this chapter, or shall fail to obey, observe and comply with every order made by the commission under authority of this chapter so long as the same shall be and remain in force, shall forfeit to the people of the state of New York, a sum not exceeding one thousand dollars for each and every offense; every such violation shall be a separate and distinct offense, and the penalty or forfeiture thereof shall be recovered in an action as provided in section twenty-four of this chapter. |