Misc.] Supreme Court, April, 1921. "2. Every person who, either individually or acting as an officer or agent of a corporation other than a common carrier, railroad corporation or street railroad corporation, shall violate any provision of this chapter, or fail to obey, observe or comply with any order made by the commission under this chapter so long as the same shall be or remain in force, or who shall procure, aid or abet any such corporation in its violation of this chapter or in its failure to obey, observe or comply with any such order, shall be guilty of a misdemeanor. "3. In construing and enforcing the provisions of this chapter relating to forfeitures and penalties the act of any director, officer or other person, acting for or employed by any common carrier, railroad corporation, street railroad corporation or corporation, acting within the scope of his official duties or employment, shall be in every case and be deemed to be the act of such common carrier, railroad corporation, street railroad corporation or corporation." I have set forth the whole of the latter section for the reason that the corporation counsel argues that it has no application to common carriers and is not applicable here. He relies upon the title of this section and upon the decision of People v. Dempsey, 180 App. Div. 765. In that case, the court reversed a conviction of an employee of a common carrier but the indictment was based upon a violation of subdivision 2 of section 56. The court's reference to section 58 was only to show the interpretation to be given to section 56, subdivision 2, where the conjunctive "and" is used in the phrase "Every officer and agent," rather than the disjunctive," or or" as in section 58, subdivision 2, in the phrase "Every person who, either individually or acting as an officer or agent." Supreme Court, April, 1921. [Vol. 115. Clearly the title to section 58 is an imperfect guide to the section because subdivision 3 by its own terms relates to common carriers alone and makes the act of any person acting for or employed by any common carrier, if within the scope of his duties, the act of the common carriers in construing and enforcing the penalty provisions of the Public Service Commissions Law. 66 Subdivision 2 of section 58 does not expressly relate to gas and electric corporations covered by article 4, nor to steam corporations covered by article 5, nor to telephone and telegraph corporations covered by article 6. While found in a section in article 3, relating to common carriers, it is the dragnet provision of the whole chapter and is intended to cover every person "by way of criminal liability. Each of the other articles carries its own penalties for violation of such article and section 58, subdivision 2, is an omnibus provision making it a criminal offense to violate any provision of any article and is to be read into every article. It is as general and comprehensive as it can be penned, when a statute refers to "every person." As was said in People v. Stevens, 13 Wend. 341: "It is undoubtedly competent for the Legislature to subject any particular offense, both to a penalty and a criminal prosecution; it is not punishing the same offense twice. They are but parts of one punishment; they both constitute the punishment which the law inflicts upon the offense. That they are enforced in different modes of proceeding, and at different times, does not affect the principle." It is the purpose of the law to punish the intentional doing of the prohibited act. It is not necessary that the act shall be willful in the sense of corrupt or malicious. It is no defense that the act was an Misc.] Supreme Court, April, 1921. honest misconstruction of the law under legal advice. A mistake of law does not excuse the commission of the prohibited act. Gardner v. People, 62 N. Y. 299; People v. Dempsey, 224 id. 140. The jitney driver may or may not consider his act unlawful but no jitney driver is conducting his common carrier activities unintentionally or unknowingly, no matter how erratic his behavior may be on the streets of Albany. Thus the Public Service Commissions Law itself has not made an exclusive remedy through investigation and order of the commission and prescribing a penalty of $5,000 or less for each offense, but has gone to the fullest lengths to make it a misdemeanor for any person, whether connected with a common carrier or not, to violate any provision of the Public Service Commissions Law. Every person has been placed under the restraint of becoming liable as a misdemeanant for personal violation of the statute or of the orders of the commission; and in addition thereto the Public Service Commissions Law has prescribed a more substantial penalty of $5,000 or less, for each offense, to be recovered civilly, where a common carrier has violated the Public Service Commissions Law, or an order of the commission. Thus, even if we accept the reasoning of the corporation counsel as to the applicability of the provisions of the Public Service Commissions Law, we find that the operation of these bus lines or jitneys in the city of Albany, contrary to the provisions of section 26 of the Transportation Corporations Law, is expressly made a misdemeanor. To further clarify the situation as to what should be the reasonable interpretation of these statutes in the determination of the question whether or not a Supreme Court, April, 1921. [Vol. 115. misdemeanor is committed by the violation of section 26 of the Transportation Corporations Law, one further fact is worthy of notice. Section 53 of the Public Service Commissions Law provides that no common carrier shall "exercise any franchise or right under any provision of the Railroad Law, or of any other law, not heretofore lawfully exercised, without first having obtained the permission and approval of the proper commission." Under section 58 of the Public Service Commissions Law, any violation of the above provision by any person is expressly made a misdemeanor. So that if the operators of the bus lines or jitneys in the city of Albany whose operation is in question here had obtained the consent of the city under section 26 of the Transportation Corporations Law, but had not obtained the certificate of necessity and convenience from the public service commission, such persons would have violated section 53 of the Public Service Commissions Law, and would clearly have been guilty of a misdemeanor under the express provisions of that law. Can it be said that it was the purpose of the legislature to grant a greater immunity from punishment in a case where there is no semblance of right to operate such a bus line or jitney, by reason of a total failure to comply with any of the provisions of any statute, than there would be where there had been a compliance so far as local consent is concerned, but a failure of compliance in relation to obtaining a certificate of public necessity and convenience from the public service commission? Any such assumption would be ridiculous on its face and while the legislature might impose such illogical penalties, no reasonable person would reach such a conclusion in the absence of clear warrant of the statute. The objection raised in the answer that the enforce Misc.] Supreme Court, April, 1921. ment of said section 26 is in the first instance wholly within the jurisdiction of the public service commission and that such Commission has sole jurisdiction to determine in the first instance whether the operation of such vehicles is a violation of section 26, has been conclusively determined to the contrary in Brooklyn City R. Co. v. Whalen, 191 App. Div. 737, and other cases to the effect that the question can be determined in injunction proceedings brought by a common carrier, which has a standing in a court of equity for relief. A number of the other objections raised in the answer can be answered as a group. They relate to the one question, whether crimes are being committed that should receive the attention of the mayor. It is immaterial that the relator is vice-president of the United Traction Company, as I have shown. It is immaterial whether the United Traction Company has an exclusive franchise or not. And if it were material, the courts have held that a corporation with a franchise not exclusive has a remedy to restrain another assuming to exercise similar powers without a franchise. Brooklyn City R. Co. v. Whalen, supra. It is immaterial that a new duty has been created by section 26 of the Transportation Corporations Law making an act unlawful which was lawful before the enactment in 1915. While the law is settled that where a new offense is created and a particular penalty and mode of proceeding is prescribed, that penalty alone can be enforced, it is equally clear that both a penalty and a criminal prosecution may be provided as parts of the same punishment. People v. Stevens, 13 Wend. 341. And the legislature has not provided a particular penalty unless the Public Service Commissions Law penalties are applicable, in which case both a civil penalty and a criminal prosecution have been expressly prescribed. |