When we examine the two remaining | Law, 318. We express no opinion as to sections, (2 and 3,) we fail to find in them any inhibition upon the action of these corporations, either in express words or by necessary implication. The second section merely declares that 10 hours' labor performed within 12 consecutive hours shall constitute a day's labor in the operation of all steam surface railroadsowned and operated within this state, omitting the provisos and exceptions, which are not material here. It is but a statutory definition of what shall constitute a day's labor in certain employments, and would control in any controversy affecting the civil liabilities of the employer, in the absence of an express agreement to the contrary. There is no prohibition aimed at the railroad company against permitting or requiring more hours of labor during the calendar day In fact the section authorizes the employment of men to labor at least 20 hours out of every 24. The statement is that 10 hours' work within 12 consecutive hours shall be a day's labor, and there may, therefore, be two such days during each calendar day, and an employe working for 20 hours at an agreed daily compensation, without any stipulation as to the number of hours which should constitute a day, would be entitled to pay for two days' work. Such a provision is eminently fair and justin operation, and the power of the legislature to enact such a law cannot be successfully controverted. The third section is in harmony with this construction, for it provides that for fractional parts of the statutory day the employe shall receive compensation at the same rate proportionately as for the whole day. Full effect the extent to which the sovereign power may go in restricting the exercise of what are sometimes termed the "natural rights and privileges" of the individual parties to the social compact, or how far their freedom of action may be controlled by statutory regulations, especially when dealing with artificial persons, whose existence depends upon legislative grace We are required here to apply that principle of construction, which is coeval with municipal law, that purely statutory offenses cannot be established by implication, and that acts otherwise innocent and lawful do not become crimes, unless there is a clear and positive expression of the legislative intent to make them crim❘inal. The citizen is entitled to an unequivocal warning before conduct on his part, which is not malum in se, can be made the occasion of a deprivation of his liberty or property. Under a proper application of these familiar rules of interpretation, it must be apparent that the second and third sections of this act are not penal in their scope. No prohibitory words are found in them, and no terms employed from which a prohibition can reasonably be inferred. The language used is consistent with an intent to confine them to a regulation of the private rights and civil liabilities of the contracting parties, and when they can be so construed there is no presumption that more was intended. We are not permitted to speculate as to the motive or design of the lawmakers, or to search for a hidden meaning or an unexpressed purpose in the enactment. The order and judgment of conviction must be reversed, the indictment disconcur; ANDREWS, C. J., and PECKНАМ and GRAY, JJ., in result. can be given to both sections by constru- | missed, and the defendant discharged. All ing them according to their terms, and applying them to an adjustment of the contractual relations of the parties, when they have omitted to prescribe in the agreement for hire the duration of a day's service. If the legislature had intended to make it unlawful for a railroad company to permit or require an employe to work more than 10 hours within 12 consecutive hours, we must infer that they would have so declared in direct terms. The prohibition in the first section is plain and positive, and the change in the form of expression, when the following sections are reached, is significant, and indicates an intentional omission of the prohibitory feature. The conduct which it is sought by the force of this statute to condemn has heretofore had the sanction of the law, and it is a familiar canon of construction that an intention to change the rule of the common law will not be presumed from doubtful provisions, and the presumption is that no such change was intended, unless the enactment is clear and explicit in that direction; and, if the terins of the statute will admit of two interpretations, that which will most nearly conform to the rules of the common law is in all cases to be adopted. Rights and liberties which have been enjoyed without question from time immemorial are not to be abridged or denied by legislative action, "except by clear, unambiguous, and peremptory language." Sedg. St. (136 Ν. Υ. 543) RUMSEY et al. v. NEW YORK & Ν. Ε. (Court of Appeals of New York. Jan. 17, 1893.) TER-MEASURE OF DAMAGES. In an action against a railroad company by riparian owners for damages to their uplands, caused by the construction of defendant's roadbed across plaintiffs' water front, thereby cutting off their access to the river, plaintiffs may show that the lands were in condition for use as a brickyard but for the obstruction complained of, and that tenants were ready to lease it for that purpose, provided access to the river could be obtained; and plaintiffs' measure of damages is the difference between the usable or rental value of the land with the obstruc tion and such value without obstruction. Appeal from supreme court, general term, second department. Action by Harriet S. Rumsey and others against the New York & New England Railroad Company for damages by ob|structing plaintiffs' means of access to the Hudson river. Plaintiffs had judgment for nominal damages, which was affirmed at general term, (without opinion,) and they appeal. Reversed. For report on former appeal, see 30 Ν. E. Rep. 654. Henry H. Hustis, (Milton A. Fowler, of counsel,) for appellants. W. C. Anthony, for respondent. PECKHAM, J. This case has been here once before, and is reported in 133 N. Y. 79, 30 N. E. Rep. 654. The court upon that appeal reversed the judgment in favor of the plaintiff, and granted a new trial; and this appeal is from a verdict in favor of the plaintiff taken upon that new trial under the direction of the court, for six cents damages. It was assumed upon this last trial that the rule of damages as laid down by this court on the former appeal led necessarily to the result directed by the court. In this view we think there was error. The rule as laid down by us did not preclude the plaintiffs from showing what was the fair rental value of the property without the presence of the obstruction of access to plaintiffs' property from the river, caused by the defendant's railroad. On the former appeal we held that the plaintiffs could not recover what were speculative damages, caused, as they alleged, by the defendant in obstructing the plaintiffs' use of the premises for brick making purposes, when it appeared that plaintiffs had abandoned that use of the land years before the defendant created the obstruction In question, and the premises had not since been in a condition to be so used, even if the obstruction were not there. It was said that the ba sis for an estimate of the damage must be found by reference to the land as it was used during the time embraced in the action. The facts showed that it was assumed the land could not have been used for a brickyard during this time, because of plaintiff's long abandonment of such use, and the decay of the dock at the westerly end of the culvert, and also the decay of a part of the causeway, and the absence of buildings and machinery fit for brickmaking purposes. In such case the possible use of the land for a brickyard was regarded as dependent upon outlays not made, or, so far as shown, not contemplated, by plaintiffs; and hence, within the principles of the Tallman Case, 121 N. Y. 119, 23 N. E. Rep. 1134, that use was not to be taken into consideration. was not meant to restrict the recovery to the rental value of the land as actually used, and for that purpose only, but any evidence going to show the actual rental value of the land as it was-that is, in the same general condition-would be proper, although not restricted to such rental for the use to which it in truth was put during that time. Otherwise, if the land had not been in actual use, then no damage would be recoverable, although the value of the use of the land in exactly the condition it was in might be proved to have been a very large annual sum if the obstruction were absent. What we intended to hold was the same principle which had been announced in the Tallman Case, supra, and thereby to prevent speculation as to what alterations a party might have madein the condition of the land, by which he might have secured large returns by way of rent for such possible use, while in fact doing nothing towards incurring ex It penses and making such alterations, or attempting to realize such wnolly imaginary profits; and this was the extent of our holding, when the facts of the case are considered, and the language of the court is applied thereto. The case is now before us in a totally different aspect. The plaintiffs offered to show substantially that the land was in condition to lease for a brickyard during this time, excepting for the existence of this obstruction wrongfully placed by the defendant, which precluded access to and from the river, and that it was the custom for the lessee to furnish the improvements upon the property necessary to conduct the brickmaking business. The plaintiffs also offered to show there were persons ready and willing to take a lease of the land just as it stood, and in the exact condition it remained in, during the time prior to the commencement of the action, provided access could be had from the land to the river front; and that plaintiffs sought defendant's permission to allow the lessee to obtain this access to the river, and that it was refused. It seems to us this evidence was proper. The land was ready for use as a brickyard, tenants were ready to lease it for that purpose, provided access could be obtained to the river, and this access was wrongfully obstructed by the defendant, and it refused to remove it or permit such access to be had. Why should such evidence not be allowed? And, if it appeared that the rental value of the and for such a purpose was in excess of that which could be obtained for its use for other purposes, we think, within all equitable rules, the defendant should pay that difference, which was caused directly by its own wrongful act. This is not speculation any more than everything can be called speculation regarding what has not in truth taken place. The tenant did not, in fact, take the lease, but he was ready to, as the proof showed, if only this wrongful obstruction were removed, and the obstruction was the illegal act of the defendant. Thus, the failure to take the lease was the direct and immediate result of that act which was wrongful on the part of the defendant, and which it ought to be held responsible for. Al The rule as enforced by the trial court is, as it seems to us, exceedingly unjust. though the land may have been entirely fit. to be used for a brickyard but for this one difficulty, and though its use for that pur-. pose might be very valuable, yet because of the obstruction, although wrongfully placed there by defendant, it cannot be so used, and the value of the land for the use it was actually put to may not have been in the slightest degree diminished by this obstruction, therefore, according to the rule laid down by the trial court, the plaintiffs would have proved no damage, and hence would be dismissed with the nominal verdict of six cents. This cannot be the law, and we are confident no principle has been laid down by this court which leads to such great hardship and injustice. The trial court, we think, fell into error in this application of the rule of damages, and the judgment must for that reason be reversed, and a new trial ordered, with costs to abide the event. All concur. (136 Ν. Υ. 333, 662) MATTHEWS et al. v. ASSOCIATED PRESS BLEISTEIN v. SAME. (Court of Appeals of New York. Jan. 17, 1893.) 1. Although the United Press Association obtains news directly through its own agents from various parts of the world, while the Associated Press of New York obtains news from its own agents only in New York, and from other parts of the world through contracts with other agencies, the former must be deemed to cover "a like territory," and to have been organized for "a like purpose" with the latter, within a by-law of the latter forbidding any of its members to receive and publish the dispatches of any association so circumstanced. 2. Such a by-law is not void on account of unreasonableness, or as in restraint of trade, or in restricting the liberty of speech and of the press. 15 N. Y. Supp. 887, affirmed. Appeal from supreme court, general term, fifth department. protection of members of the press, procuring and supplying its members with telegraphic news, upholding and elevating the character and standing and the promotion and maintenance of the general interest of the profession and its members." Some time subsequent toits formation the defendant adopted a by-law known as "No. 25,” a part of which is as follows: “(25) No member of this association shall receive or publish the regular news dispatches of any other news association covering a like territory, and organized for a like purpose, with this as❘sociation." The by-law then proceeds to provide a penalty for the violation of this provision in the form of a suspension of all the rights and privileges of the association, after an opportunity has been given the accused party to be heard. It also appears from the complaint that there is a United Press Association, which is organized and engaged in procuring and supplying its members with telegraphic news from various parts of the world, and the plaintiffs are members thereof, and by means of its reports and dispatches furnished to them the plaintiffs receive and publish in their newspapers other and different telegraphic news from different parts of the world than that procured and furnished by the defendant corporation, and the plaintiffs are thus enabled to increase the reading matter published in their newspapers; and to give fuller and more complete telegraphic news of matters of general and public interest than plaintiffs would otherwise be enabled to doby publishing only the regularnews and dispatches of the corporation defendant. The plaintiffs allege that the United Press Association is not one which covers a like territory, and that it is not organized for a like purpose with the defendant corporation, within the meaning of the by-la w PECKHAM, J. The plaintiffs (appellants in question, but that it covers a far wider herein) procured at special term an injuncterritory, and is organized for a more extion against the defendant the Associated tended purpose. It is alleged that the dePress, etc., restraining it from suspending fendant corporation only has agents for the plaintiffs from any of the rights or the collection of news within the state of privileges of or in the Associated Press, and New York, and that the news which it from withholding from the plaintiffs procures from other portions of the world (who are printers and publishers of newsis collected by other news or press agenpapers at Buffalo, in this state) the regu-cies, and delivered to the defendant corpolar telegraphic news and reports procured ration under contracts made byit; whereand furnished by the Associated Press to as the United Press Association has agenits members, for or on account of any al-cies for the direct collection of news for it leged violation by the plaintiffs of the pro-from various parts of the world, outside visions of the twenty-fifth by-law of the as well as inside the state of New York. association. The plaintiffs are members | It is alleged that the defendant corporaof the association. Upon appeal from the order granting the injunction the general term reversed the same upon the ground that the action to obtain a permanent injunction could not be maintained upon the facts set forth in the complaint and affidavits. The plaintiffs appealed from the order of reversal to this court. Actions by George E. Matthews and others, and by George Bleistein, as president of the Courier Company, respectively, against the Associated Press of the state of New York and others, for an injunction. From an order of the general term (15 N. Y. Supp. 887) reversing an order of the special term granting the injunction, plaintiffs appeal. Affirmed. Allen, Movius & Wilcox, (Ansley Wilcox and Charles B. Wheeler, of counsel,) for appellants. Payne & O'Brien, (S. E. Payne, of counsel,) for respondents. The record shows that the defendant the Associated Press of the State of New York was incorporated by virtue of an act of the legislature of this state, passed April 24, 1867, (chapter 754 of the Laws of that year,) and entitled “Anact to incorporate the Associated Press of the State of New York." In the act the objects of the association are stated "to be the mutual tion is about to enforce the above-mentioned twenty-fifth by-law as against the plaintiffs on account of the receipt and publication by the plaintiffs of the news and telegraphic dispatches collected and sent to them by the United Press Association. The membership in the United Press Association, and also in the defendant corporation, is a valuable property right. The plaintiffs, upon the argument of the appeal, here have raised two questions: (1) Whether the by-law in fact prohibits the receipt and publication by them of the dispatches of the United Press Association; (2) if it does, whether it is legal and enforceable. As to the first question, I think the bylaw does in fact prohibit such receipt and | and all its other news comes to it through publication, because the United Press As- | contracts with news or press associations sociation covers a like territory, and is organized for a like purpose, with the defendant corporation. There is no limit in the charter or act of incorporation of the defendant by which it is confined to any par- | or other agencies, and is thus delivered to the defendant corporation. In this view of the two associations I see no difference of purpose. Both are securing news from all parts of the world, and such is the ob ticular territory in the procuring and sup-ject of both. One secures its object by di plying of its members with telegraphic | news. The act leaves it entire freedom to obtain such supply from the whole world. There is no by-law which has been called to our attention that imposes any limit. As there is neither charter nor by-law which limits the territory that the defend ant corporation may cover in the execu- | case is the same. Each supplies the news rectly appointing or employing so-called "agents," while the other secures its object by direct agencies, in some cases of limited territorial area, and in other cases by contracts with other press or news agencies covering a large territory. The purpose of each is the same, and the result in each tion of its object and purpose, so the record discloses no limitation in that territory arising from the practice of the corporation. It in truthobtains, serves, and supplies its members with news from all over the world. It accomplishes this object in different ways; sometimes directly by means of agents, strictly so called, and at other times by means of contracts through or with other news agencies, which themselves directly employ agents for the collection of news. In this way | by-law is valid and enforceable. The to its members, and each has obtained it from a territory bounded only by civilization itself. The fact that plaintiffs, by using the United Press Association, are thereby enabled to publish different and more full and complete telegraphic news does not alter the other fact that the two associations are organized, as stated, for the same purpose, and that they cover the same territory. As to the second question, I think the plaintiffs allege that it is beyond the power of the association to enact; that it is unreasonable, and oppressive; that it tends, and was expressly intended, to restrain trade and competition, and to create a monopoly; that it is an unlawful in. terference with vested property rights, and impairs a member's right to contract: that it creates a restriction upon the liberty of the press. None of these objections strike us as having force. The first ground taken-that it is beyond the power of the company to pass such a by-lawdepends for its correctness upon the conclusions arrived at respecting the validity of the other grounds. If the by-law be unreasonable or oppressive, or if it tend improperly to restrain trade, and thereby to create a monopoly, or if it be an unlawful interference with a member's right to contract, or if it restrict the liberty of the press, in all or any of these cases the bylaw would be beyond the power of the company to adopt or pass, and it would be illegal. The assertion in the moving papers that the by-law tends and was intended to restrain trade, does not in any way affect the question. The court must the defendant corporation secures, news from all over the world, and supplies it to its members. The fact that the defendant | appoints and engages "agents" in the, strict sense of the term, only within and for || the state of New York, is not conclusive || proof that its territory for collecting news is limited to that state. The record shows that it performs the purpose of its incorporation, not alone by obtaining news from these so-called "agents," but thatby || virtue of contracts entered into by it with || other associations it contracts te and does receive from them the news which they collect from the principal portions of the civilized world, and in thus contracting for the supply of and the receiving such news the association or associations with which such contracts are made are there by, and for that purpose, and to that extent, constituted the agents of the defendant corporation. In that way it is covering a vast territory, and it is thereby fulfilling the object of its incorporation,the procuring and supplying its members with telegraphic news. Through its own agents, and by virtue of its contracts with other press associations, the defendant corporation achieves the collection | itself construe the by-law.and must decide and supplying of news to its members, which has been collected from substantially the same territory over which the United Press Association has collected its news. It is plain that the result is that both associations cover the same terri-assuming that the business of collecting as to its tendency, while the intention with which it was passed by those voting for it is entirely immaterial upon this aspect of the case. We do not think the bylaw improperly tends to restrain trade, tory. I also think it plain that the United Press Association is organized for a like | the definition of a trade. The latest deci and distributing news would come within purpose with the defendant corporation. The plaintifis controvert this view on the ground, as they allege, that the United sions of courts in this country and in England show a strong tendency to very greatly circumscribe and narrow the doc Press is organized for a more extended | trine of avoiding contracts in restraint of purpose, and this alleged fact is based upon the furtherallegation that the United Press has agencies for the direct collection | would say are in restraint of trade are, of news for it from various parts of the trade. The courts do not go to the length of saying that contracts which they now nevertheless, valid contracts, and to be world outside as well as inside the state | enforced. They do, however, now hold of New York, while the defendant corpo- | many contracts not open to the objection ration only has agents for the collection that they are in restraint of trade, which of its news within the state of New York, a few years back would have been avoided on that sole ground, both here and in | of with respect to the business which the England. The cases in this court which association was specially organized and incorporated to transact. Its success must greatly depend upon the number of its members, and that, in its turn, must depend upon the efficiency, reliability, and promptness with which it collects and distributes its news. This by-law, I think, plainly tends to aid the association in the accomplishment of this object. As to the objection that the by-law re there is no force whatever to it. For the purpose of efficiently conducting the business of procuring and supplying the news to its members, the association provides that no one of its members shall take or publish news from any other association. In what way the liberty of the press is in the least degree restricted by such by-law, I am unable to see. The constitutional provision regarding the liberty of speech and of the press has nothing whatever to do with such a provision, and no argument can make it plainer than does the reading of the constitutional provision itself. what is a "restraint of trade, "in the mod-stricts the liberty of the press, I think ern definition of that term? The authority to make by-laws must also be limited by the scope and purpose of the association. I think this by-law is thus limited, and that it is not in "restraint of trade, " as the courts now interpret that phrase. Some of the grounds showing the reasonableness of the by-laware well and clearly set forth in the opinion delivered by the learned judge at the general term. Here are a number of persons who are owners of or interested in various newspapers in the state outside of the city of New York. They enter into business relations with each other, to a certain extent, through the form of an organization known as a "corporation," and for the purpose, among others, of collecting and supplying | not appear by these papers. If the by-law The ground that the by-law interferes with a vested interest in property, does themselves with telegraphic news. The greater the number belonging to the crganization the larger will be its income, and the greater amount it will be able to spend for making the collection of news, and the more efficient and valuable such were passed before any meinber of the association had become a member of the United Press Association, then, clearly, there would be no interference with vested rights of property in the latter association. The papers do show that the by collection will be. To suppress competi-law was not passed until subsequent to tion in such chosen field among themselves, and to thus enhance the value of the property and the conveniences arising from the extended use of the means and opportunities of the association, it would seem most appropriate to provide that the members of such association should not take news from any other. The division of the business among two or more associations tends directly towards the making of the membership in each less valuable than it otherwise would be, and, the membership being less valuable, the association itself would tend to decrease the time when the United Press Association came into existence, but they do not show that at the time of its passage either or any of the plaintiffs had become members of the United Press Association. We do not, therefore, intend to decide in this case, as it now stands, that one who had already and legally become a member of the United Press Association before the passage of the by-law in question, could thereby be unfavorably affected in the assertion of his right of mem. bership in the United Press Association, or placed in the position of availing him in members, and to grow less efficient in | self of its privileges at the risk of suspen service, and less capable of fulfilling promptly one of the great objects of its ex. istence, the procuring and supplying of news to its members. Thus a by-law of the nature complained of would have a tendency to strengthen the association, and to render it more capable of filling the duty it was incorporated to perform. A |sion or expulsion from the association adopting the by-law. Aby-law which disturbs a vested right may not be valid. Kent v. Mining Co., 78 N. Y. 159, 182, 183; 1 Mor. Corp. § 496. And, although a corporation may have the power to adopt by-laws, yet one of its members, who acts upon a subject not touched by any by business partnership could provide that | law, might perhaps claim that a subse none of its members should attend to any business other than that of the partnership, and that each partner who came in must agree not to do any other business, and must give up all such business as he had theretofore done. Such an agreement would not be in restraint of trade, although its direct effect might be to restrain to some extent the trade which had been done. It seems to me this by-law is a natural and reasonable restraint upon the members of the association, appropriately regulating their conduct as members there quent by-law upon the subject which, if valid as to him, would practically render valueless a portion of his property, should not, as to him, beso treated or regarded. See, also, Wynehamer v. People, 13 N. Y. 378. We do not decide this proposition, for the reason that it is not before us. The grounds in opposition to the by-law, which have been discussed, we think are unavailing, and the orders of the general term reversing the orders refusing to dissolve the injunction should be affirmed, with costs. All concur. |