People v. . Long Island R.R. Co. ( 1909 )

The sufficiency of each of the six counts in the complaint was challenged by a demurrer, which was overruled by the concurrent action of the courts below, one of the justices of the Appellate Division dissenting. I agree with Judge HISCOCK that the first count sets forth a good cause of action and that counts two to five inclusive do not, but I dissent from his conclusion that the sixth is bad.

The question depends on the meaning of section 228 of the Forest, Fish and Game Law, as amended in 1904 by an act which stated in its title that the purpose of the amendment was "the prevention of forest fires." (L. 1900, ch. 20; L. 1904, ch. 590.) What I have to say will be better understood if the entire section is set forth. It is as follows: "§ 228. Railroads in forest lands. — Every railroad company shall on such part of its road as passes through forest lands or lands subject to fires from any cause, cut and remove from the its right of way along such lands at least twice a year, all grass, brush and other inflammable materials. Where the railroad runs through forest lands in counties containing part of the forest preserve, it shall so cut and remove the same from its right of way whenever required by the commissioner; employ in seasons of drought and before vegetation has revived in the spring, sufficient trackmen to promptly put out fires on its right of way; provide locomotives thereon with netting of steel or iron wire so constructed as to give the best practicable protection against the escape of fire and sparks from the smokestacks thereof and adequate devices to prevent the escape of fire from ash pans and furnaces which shall be used on such locomotives. The railroad commission must upon the request of the forest, fish and game commissioner, and on notice to the railroad company or companies affected, require any railroad company having a railroad running through forest lands in counties containing parts of the forest preserve, to adopt such devices and precautions against setting fire upon its line in such forest lands as the public interest requires. No railroad company or employee thereof shall deposit fire coals or ashes on its track or right of way near such lands. In case of fire on its own or neighboring lands, the railroad company shall use all practicable means to put it out. Engineers, conductors or trainmen discovering or knowing of fires in fences or other material along or near the right of way of the railroad in such lands, shall report the same at the first station to the station agent, and such station agent shall forthwith notify the nearest fire warden or game protector thereof, and use all necessary means to extinguish the same. Any railroad company failing or neglecting to comply with any of the provisions of this section, or any order of the railroad commission made pursuant to the provisions of this section, shall be liable to a penalty of one hundred dollars for each day that it continues a violation thereof, and any officer or employee of a railroad company violating any provision of this section or neglecting to comply with any requirement of the railroad commission duly ordered, shall be liable to a penalty of one hundred dollars for every such violation. The supreme court may on notice to the persons or corporations affected enforce compliance with any such order of the railroad commission."

The first count of the complaint rests on the first sentence of this section, which was not changed by the amendment of 1904. Counts two to five inclusive rest on the next three sentences which were so changed by the amendment as to limit their application, which had been general, to railroads running "through forest lands in counties containing part of the forest preserve." Then follows the sentence in question, which was not changed by the amendment, and which commands that "In case of fire on its own or neighboring lands, the railroad company shall use all practicable means to put it out." The next sentence was not changed by the amendment, while that following was amplified somewhat and the last is wholly new.

Before the amendment the entire section applied to the entire state. After the amendment the three sentences following the first were limited to railroads in the forest preserve, but there is nothing to show that the legislature intended to thus limit the remainder of the section. We cannot hold that it is so limited without inserting words that the legislature did not use. The object of the section, as shown by its title, as well as by the title of the amending act, is to protect forest lands from fire, whether they are in the forest preserve or not. Hence the general commands are of universal application, while the limitations are only such as are expressly mentioned in order to distinguish the specific from the general. The statute as a whole applies to the entire state and the limitations, which are exceptions to the general rule, are presumed to be specified. This is well illustrated by section 220 relating to the powers of the commission, some of which are specifically limited to the forest preserve, and to the public parks which are the state's own property, while the rest obviously and necessarily apply to the whole state. Thus after intrusting to the commission the care of the forest preserve and the public parks, the section continues: "4. Make rules for the prevention of forest fires and cause the same to be posted in all proper places throughout the state. 5. Prepare and distribute tracts giving information on the care and renewal of private woodlands, and with the approval of the superintendent of public instruction and the regents of the university, supply to schools, academies and colleges the means of instruction in forestry."

The main argument for adding a limitation to the sentence in question is that it is immediately preceded and followed by provisions which apply only to the forest preserve. It is so preceded, but I fail to see that it is thus followed. Indeed, if the next sentence in referring to "such lands" means only lands in the forest preserve, the legislature intended to require engineers and trainmen to report fires in the preserve only, leaving the rest of the state unprotected in this respect. Moreover, when the legislature directs "the railroad company" to put out fires "on its own or neighboring lands" I see no reason for holding that it refers only to railroads in the forest preserve, for apparently it refers to any railroad owning lands on which a fire occurs, or owning lands adjacent to those on which a fire occurs. Clearly, it had this meaning prior to the amendment, and the amendment did not touch it, either by specific mention or by the use of "such" or any other word referring to the roads mentioned in the amended sentences.

When the section, as it now stands, is read in connection with itself as it stood before it was amended and in the light of the title of the amending act, I think the sentence in question means precisely what it meant before, and that it is unlimited in its application. The suggestion that if thus construed the command of the legislature violates the Constitution because it requires railroads to furnish, without compensation, a system of fire protection for the inhabitants of the district, does not impress me as formidable. When reasonably construed, "neighboring lands" mean such only as are close to those of the railroad, and fires on those lands mean such as were presumptively started by the railroad thereon or on its own lands and are near enough to threaten danger. The power to compel an act includes power to require performance of such incidental acts as are necessary to make the exercise of the power effectual. Protection of lands bordering on those of a railroad is merely incidental to the protection of its own lands by the road. As a fire in the house of my next-door neighbor must be put out in order to save my own house, so when a fire on neighboring lands threatens to spread to those of the railroad, the latter can be effectively protected only by putting that fire out.

I think that the sixth count sets forth a good cause of action.

CULLEN, Ch. J., GRAY, HAIGHT and CHASE, JJ., concur with HISCOCK, J., and WILLARD BARTLETT, J., concurs in result; VANN, J., reads dissenting opinion as to last cause of action.

Judgment and order accordingly.