The opinion of the court was delivered by
Beasley, C. J.The appellant was organized, by virtue of the General Railroad act of this state, to construct a railroad of less than four miles in length from a point on the Delaware river called “ Steamboat Landing” to the city of Cape May. In joursuance of the authority thus obtained the road was built and completed in the year 1879. In the month of October, 1887, the respondent, a resident of Cape May Point, in this state, filed his petition to the chancellor, representing that this company had failed and neglected, for the space of ten days then last past, to run daily trains on its road, and praying that a receiver should be appointed, pursuant to the statute (Rev. Sup.p. 834 § 42). The chancellor made an order that the application should be heard, after proper notice given. The appellant put in its sworn answer, and, at the time designated, the motion was heard on the petition, answer, affidavits and oral proofs. The defence interposed to the petition was, that the road of the appellant was constructed at a sea-sicle resort, did not exceed four miles in length, and was built and intended merely for the transportation of summer travelers and tourists, and that it was, consequently, within the proviso of the act requiring the running of daily trains. The vice-chancellor advised the appointment of a receiver, and the chancellor accordingly signed the requisite order, which is the decree appealed from.
*147The first exception taken to this proceeding was, that the ■chancellor had no power to delegate to the vice-chancellor the ■duty of appointing a receiver. The contention in support of this proposition is, that the power in question is conferred, not upon the court of chancery, but. upon the chancellor himself as .an individual, his official appellation being used simply as designatio persones.
If this postulate is to be yielded, it would follow, as an inevitable consequence, that the statutory function in question would .have to be discharged by the chancellor, for he would be a mere ■commissioner empowered to do a special act, and it is obvious that such an authority could not be delegated.
But we think such is not the proper construction of this statute. All through our legislative acts, when power has been' conferred upon the court of chancery, it has been the frequent practice to vest such power, descriptively, in the chancellor, his official designation being used as a synonym for that of his court. It is true that, in the line of this usage, ambiguities may obtain, making it difficult to decide whether the court or the individual ■were designed to bo the depositary of the power in the particular case. But no such obscurity prevails in the present instance, for we have but to look at the nature of the act required to be done to be convinced that it was the legislative design to call upon the court of chancery to effectuate the purpose in view. The very name of “ receiver ” implies a person deriving his authority from the court of chancery ; for a receiver is one of the well-known agents of that tribunal, with his powers, immunities .and responsibilities entirely defined; he is answerable to the court for each of his acts, and is completely under its supervision and control. On the other hand, if such receiver is to be appointed by the chancellor in his personal capacity, by the act of appointment, the chancellor would become functus officio; he would have no superintendence over the conduct of the officer thus selected by him, nor could he revoke the appointment, even though the necessity for a receivership had ceased. From these and the like considerations, we are of opinion that it was plainly .the legislative intention to lodge the appointing power in these *148cases in the court of chancery. The consequence being that it was lawful for the chancellor to refer the present litigation to-either of the vice-chancellors or to a master in chancery for consideration and advice in the usual course.
The second objection to the proceedings is, that, even on the assumption that the jurisdiction in the matter just considered was vested in the court of chancery, still the vice-chancellor was-without power to act when and as he did, because the chancellor did not refer the cause to him.
There can be no doubt that the vice-chancellor cannot assume jurisdiction over a cause except by force of a reference made by the chancellor to that effect. And, as the rules of the court are now framed, there does not appear to be any power given to the-vice-chancellors to take cognizance of causes so as to finally dispose of them, upon the merits, except when there exists a special order for that purpose. In the present instance this was not done, and the consequence is the hearing by the vice-chancellor was irregular, and would have been, if properly objected to, entirely nugatory. The course pursued was this: The counsel of petitioner, on a regular motion-day before the vice-chancellor,, presented this petition, and moved for a day to be set for the-hearing; upon the advice of the vice-chancellor, an order was-signed by the chancellor, requiring the appellant to show cause-on a certain day why the prayer of the petition should not be-granted and a receiver appointed, and requiring a notice of such hearing to be served on the appellant. On the appointed day,, the motion- was heard before the vice-chancellor (who had not been appointed to the duty); both parties produced their witnesses, and presented their arguments; the first objection to the-jurisdiction assumed by the vice-chancellor being taken on this-appeal.
Under these circumstances, we think this exception must fall to the ground. It comes too late, the parties having, by their acquiescence, waived the mistake in question, which must be deemed a mere irregularity, since the chancellor had ratified, before objection, the procedure by his final decree.
The next and last objection involves the merits of the case.
*149As already stated, this procedure is based on the act to be found in the Rev. Sup. p. 834 § 42. Its general provision is thus expressed, viz.:
“That if any railroad in this state has, or may hereafter, fail or neglect to run daily trains on any part of its road for the space of ten days, then the •chancellor of this state, upon petition of any citizen of this state, and due .proof of the facts, shall speedily appoint a receiver ” &c.
And then follows the following clause:
“ Provided, that this act shall not apply to any railroad company whose road is constructed at any sea-side resort, not exceeding four miles in length, and which was built and intended merely for the transportation of summer travelers and tourists.”
In the present case, the appellant has shown, in the clearest manner, that, in point of fact, its road is exactly one of those described in this proviso; it is less than four miles in length; is at a sea-side resort; was designed to be and was a mere adjunct •of a boat running in the summer season from Philadelphia, and was used merely, except incidentally, for the transportation of “summer travelers and tourists.” We think, therefore, that the appellant has, under the evidence, demonstrated that it stands within the definition of this proviso, if such proviso applies to roads already in existence at the time of its enactment.
The vice-chancellor was of opinion that this exceptive clause did not apply to the appellant’s road, because it was built before the passage of the law, and he declared that he did not feel him.self at liberty to give this provision any retrospective operation.
But this interpretation appears to us to be in plain repugnancy, not only to the spirit, but to the language of the statute. In its first line this is manifest, for it declares that its summary processes are to apply not only to roads that thereafter should fail to run their daily trains, but also to roads that had, before the passage of the law, failed so to do; and the proviso, by its strict terms, is made applicable exclusively to a road which, to use the statutory expressions, “is constructed,” and which “was built and intended ” &c.; plainly designating, if we look to terms *150alone, roads already in existence, and not those which might come into existence at a future time.
It is further to be remarked that a construction of this act that would limit its operation to railroads built before its passage, and which, consequently, should withhold its immunities from similar roads subsequently built, would make it, in a very plain manner, unconstitutional, as such a law would be special and not general, for it would obviously not embrace a complete class.
It seems to us that this act is operative on all railroads having the designated characteristics, without reference to the time of their construction. To this extent the contention of the appellant must prevail.
But the principal objection against the appellant’s case, in the mind of the vice-chancellor, appears to have been, that it was estopped by the form of its application for incorporation under the General Railroad law from setting up that it was built for the special purpose of carrying summer travelers to a sea-side resort. The judicial language upon this subject is: “ The law declared the conditions upon which they should or could build a railroad. In form and in such articles as the law prescribes, these corpora-tors accepted the conditions and declared their intentions, which were in harmony with the conditions;” and the inference is drawn that such “ solemn obligations ” are binding on the corporation. The theory seems to be that, as the appellant originally accepted a charter, which by force of its terms and existing legal principles compelled it to run trains at all seasons, it is not competent for it now to maintain that it need run its trains only in the summer-time.
It will be observed at once that if this position be tenable, the proviso in the act of 1880 becomes a dead letter, as there would be no subject for it to operate upon, for every railroad that now exists, or that may hereafter exist, stands, or will stand,, pledged, so far as relates to the language of its charter, to run its trains, not at particular seasons, but at all times. Such, undoubtedly, are the obligations assumed on the part of these companies by the form of their respective charters, whether specially incorporated or organized under the General Railroad act, and, *151consequently, if on account of such an obligation the present appellant cannot claim the dispensations of the proviso in question, neither can any other of these corporate bodies make such claim, the result being that such proviso would be left without operative force.
The fallacy of the rule adopted arises from the* fact that this appellant was regarded as having deliberately assumed a public duty, and as now attempting to modify and limit such duty, leaving out of the account the vital circumstance, that the legislative authority sanctioned such action. Granting that the appellant, by the act of becoming incorporated, solemnly agreed with the public to run its trains every day in the year, and that-the-legislature subsequently released it of a portion of such duty, it does not seem questionable that such a remission would be legal. The obligation to run trains being due to the public, it was plainly competent for the legislature to surrender or release it in whole or in part. The appellant, therefore, could consistently resort to the proviso in question for its protection.
But it was argued, and the position appears to have been favored by the vice-chancellor, that this proviso was void, inasmuch as it was a special law conferring corporate privileges — a form of legislation forbidden by the constitution of this state.
In approaching this inquiry it is proper to premise that to sustain this proposition would be, in effect, to lay a ground for the dismissal of the petition in this case that seeks the appointment of a receiver; for, if this proviso is not sustainable, the body of the act must fall with it, as the one cannot be separated from the other without a perversion of the legislative design. Looking at the complete act, we find a purpose not to extend its requirements to a certain class of railroads, and if we suppress the proviso, in violation of such expressed purpose, we extend it to such excepted class ; manifestly, therefore, the proviso cannot be suppressed and the residue of the act retained and enforced in its mutilated condition. Consequently, when the conclusion was reached in the court below that the proviso was in conflict with the constitution, the application for a receivership should have *152been refused on the ground that the entire proceeding was destitute of all statutory basis.
But, in the opinion of this court, the statutory clause thus challenged is not to be invalidated on constitutional grounds. The regulation established by it constitutes, on well-settled principles, a general and not a special law, as the objects of it form a distinct class, and the legislation in question appertains to the characteristics on which such classification rests. These inconsiderable roads, which are mere appendages to sea-side resorts, and which cannot be run with essential advantage, in view of either public or private interests, except during short periods of the year, differ materially from the ordinary railroads of the state that have been established as the perpetual highways of travel and commerce. The difference between these two groups of instrumentalities is so marked that it is obvious they cannot be subjected to the same public rule, for a regulation requiring one set of them to be operated without cessation would be not only reasonable but absolutely necessary for the welfare of the community, while in its application to the other set it would bring about a mere waste and destruction of private property. "We think, therefore, that these sea-side roads stand sufficiently aloof for the purposes of legislative classification and particular regulation. Nor does it appear to us that it was legally objectionable for the legislature to constitute this special class by a reference to the length of the roads for the purpose of classification. The roads could be grouped in no other way, and, looking at the definition of the objects to which this proviso is to be applied, we cannot say that it is either too broad or too narrow, for it appears to embrace the whole of the class to which it properly relates, and nothing more.
The result is that the proviso should have been held to shield the appellant from the entire procedure.
Let the decree be reversed, and the petition dismissed.
Decree unanimously reversed.