Opinion
Argued June 4, 1903
Decided October 6, 1903
Frederick E. Wadhams for appellant.
John Cunneen for respondent.
We held in People v. Rathbone ( 145 N.Y. 434) that a notary public is a public officer within the meaning of the provision of the State Constitution (Art. XIII, § 5) prohibiting a public officer or a person elected or appointed to public office under the laws of this state from receiving from any person or corporation, or making use of "any free pass, free transportation," etc. And necessarily, therefore, the conclusion was reached in that case that the defendant, having received and made use of a free pass over a railroad, the People could maintain an action against him to have his office adjudged to be forfeited.
The difference between that case and this one is that the pass received by Rathbone entitled him to ride upon the lines of the corporation issuing the pass, while in this case the defendant paid his fare, but occupied a seat in a palace car belonging to another corporation, and did not pay for it, but instead presented to the conductor a pass issued by the Wagner Palace Car Company in the name of defendant entitling him, without charge, to accommodations in the palace or sleeping cars of that company running over any railroad in New York state. Accommodations of this kind have come to be regarded as a necessity by a considerable portion of the traveling public, and rather than not have the benefit of such accommodations a substantial percentage of the traveling population pay for the privilege of enjoying them.
We hold — and we think argument is not needed in support of the proposition — that a public officer who accepts the privilege of riding in a palace or sleeping car accorded to him by a pass such as was issued in this case, accepts a free pass and free transportation within the meaning of that portion of section 5 of article XIII of the Constitution which reads as follows: "No public officer, or person elected or appointed to a public office, under the laws of this state, shall directly or indirectly ask, demand, accept, receive or consent to receive, for his own use or benefit, or for the use or benefit of another any free pass, free transportation, franking privilege or discrimination in passenger, telegraph or telephone rates, from any person or corporation, or make use of the same himself or in conjunction with another."
It follows that the judgment ousting defendant from his office as notary public should be affirmed, without costs.
GRAY, O'BRIEN, BARTLETT, HAIGHT, CULLEN and WERNER, JJ., concur.
Judgment affirmed.