Ex parte Lorenzen

The petitioner was convicted of the violation of a penal ordinance in the city and county of San Fran- ■ ■cisco. He sued out this writ of habeas corpus, alleging that the ordinance under which he was convicted and sentenced is void. The ordinance in question is as follows:

“Order FTo. 2992.

“Providing regulations in the operation of street railroads and prohibiting the issuance or delivery of transfers to passengers except upon or within the car from which the passenger is transferred.

“The people oí the city and county oí San Francisco do ordain as follows:

“1. Every person, firm, and corporation operating street-cars within the city and county of San Francisco that issue transfers to passengers to enable them to transfer to other cars operated by the same or different owner, shall issue and deliver said transfers upon or within the car from which the passenger is transferred, and not elsewhere.

“3. Every person, firm, and corporation operating street-cars within the city and county of San Francisco that receives transfers as fare from passengers shall take said transfers from the passengers who received the same -within or upon the car to which the passengers are transferred, and not elsewhere.

“3. So person, except a duly authorized conductor or agent of a person, firm, or corporation operating a line of street railroad within the city and county of San Francisco, shall within said city and county issue, deliver, give, or sell, or offer to issue, deliver, give, or sell, to any other person whatsoever, any transfer, transfer check, or ticket, issued or purporting to be issued by such person, firm, or corporation so operating such line of street railroad, for passage on any street railroad car or line.

“4. Every person, firm, or corporation violating the provisions of this order shall be deemed guilty of a misdemeanor, . and, upon conviction thereof, shall be punished by a fine not exceeding five hundred dollars, or by imprisonment in the county jail not exceeding six months, or by both such fine and imprisonment.”

Lorenzen was charged with having given and disposed of a transfer in violation of section 3 of the ordinance.

Against the validity of this ordinance-it is urged that it violates the guaranty of personal liberty contained in the constitution of the United States and of the state of California (U. S. Const., amend. XIV, sec. 1; Const., art. I, sec. 1); that it is an unconstitutional interference with a right of private property; that it is arbitrary, oppressive, and unreasonable; and, finally, that it is an illegal attempt to enforce the obligations or assumed obligations of private civil contracts by penal legislation.

As to the nature of the “transfer,” it is well recognized and admitted that the street railroads of the city and county .of San

Such being the nature of the contract between the company and its passenger, consideration may he paid to the objections raised against the validity of this ordinance. The power of the general legislature acting within Óonstitutíonal limitations to make penal an act theretofore indifferent, or even innocent, may not he doubted. (People v. West, 106 N. Y. 293 ; 60 Am. Rep. 452 .) This, however, is not a statute of the general legislature, hut a municipal by-law, and while it is true that article XI, section 11, of the constitution of this state expressly confers upon a city the power to make and enforce within its limits “all such local, police, sanitary, and other regulations as are not in condlict with general laws,” this language is not to be construed as enlarging the powers which municipalities theretofore enjoyed in these respects; hut it is merely an express grant of a power which formerly they possessed hy implication. (People v. Wiltshire, 96 Cal. 607 .) The ordinance in question, then, is to he scanned and judged like any other municipal ordinance. So

Street-car companies are public utilities, which are almost necessities to our present mode of life. While in one aspect their ownership is private, and they are operated for private gain, in another they are servants of the people, and the lawmaking powers reserve and freely exercise the right to regulate and control them in their operations. It is upon the theory, and only upon the theory, that they may he operated for the public good that a franchise permitting their existence may he given; and the power to pass reasonable regulations for their operation and management is expressly granted by section 503 of our Civil Code. It is strictly within the power of the municipal authorities of the city, and properly within the exercise of their duties, to pass any reasonable regulations affecting street-car lines, to remedy a threatened or actual interference with the comfort, convenience, and general welfare of the traveling public. It is urged against this ordinance that it is an attempt by penal legislation to enforce a private civil contract; in other words, that it is an attempt to compel the passenger who has received his transfer to use it within the limits of his contract, and not to violate that contract by giving it to a person who may make improper use of it. Could it be perceived that this was the only purpose, or even the main purpose, of the ordinance in question, we should be inclined to hold that the objection was fatal; but we cannot perceive that its main object or design was to accomplish this result. Bather, we think it clear that its primary object is to protect and advance the convenience and welfare of the traveling public. For if to the legislative mind an abuse of the transfer system has grown up, the inevitable result of such unrestricted abuse must be one of two things—either that transfers would be discontinued entirely, to the material injury of the community, or the transfer system would be hedged and safeguarded by onerous conditions and requirements for the protection of the company, which would work great inconvenience to' the passengers. It was certainly right for the supervisors, if

But are the means adopted to accomplish this end unreasonable or oppressive, or in violation of any constitutional rights of the citizen? It is here first insisted by petitioner that the transfer issued to him by the company is his property, and that an essential and inalienable right to the enjoyment of property is ihe right to sell, give it away, or otherwise dispose of it. This, however, is but partially true. A man may not be deprived of his property or of his property rights for any private considerations whatever, nor for considerations of public good, without compensation first made; but the legislature has the unquestioned right, and every day exercises it, of restricting the use to which private property may be put. As is said in Burdick v. People, 149 Ill. 600 , 41 Am. St. Rep. 329 : “The franchises of railroads acting under charters or acts of incorporation are of a public nature so far as the safety, convenience, and comfort of passengers are concerned. Tire reasonable regulations affecting the conduct of such public employments are fit subjects for legislative action. The law-making power may provide means for remedying such evils as in its opinion may exist in the management of these public agencies of transportation, and in doing so it may sometimes impose restrictions which are deemed to be necessary upon the use and enjoyment of property. A man is not deprived of his property unless it is taken away from him so that he is divested of his title and possession. To. limit the use and enjoyment of property by legislative action is not to take it away from the owner, when the property whose use and enjoyment are so limited is invested in a business affected with a public use, or used as an accessory in carrying on such busi

Finally, it is urged against the ordinance that by the generality of its terms it is unreasonable and oppressive; that every person who, taking a transfer, shall hand it to anyone other than the person authorized to receive it, no matter how innocent the act may have been in fact or intent, is guilty of a misdemeanor. In illustration of the position it is said that if the conductor should give to the father traveling with his family three or four transfers, and he in turn should hand them over to his wife and children, he would at once become amenable to the ordinance; that so, too, would -be the passenger who handed his transfer to another upon the ear to be delivered to the conductor; so, too, would the witness in court who gave the transfer to the judge for inspection, or the judge who in turn might deliver it to the clerk. To some of the objections thus presented answer may be made that the life of the transfer ends with the passage of the time indicated upon its face. It ceases then to be a transfer, to have any -value at all other than that which may attach to it as a bit of paper. But for the more substantial objection that the ordinance by its terms would oppress and lead to the conviction of persons guilty of no fraudulent act, it is to be remembered that the letter of a penal statute is not of controlling force, and that the courts, in construing such statutes, from very ancient times have sought for the essence and spirit of the law and de

It is concluded, therefore, that the ordinance is valid and the prisoner is remanded.

Temple, J., McFarland, J., and Beatty, C. J., concurred.

Van Dyke, J., dissented.

I agree with a great many of the views expressed by Mr. Justice Henshaw, but must dissent from the conclusion declared, and from his construction of the ordinance, as evidenced by the language in the closing portion of his opinion, to wit: “In all of these cases the apparent defect of the statute is cured by making it apply according to its spirit to the act in its nature illegal or fraudulent. So here, notwithstanding the generality of the language, no lawful or innocent use of the transfer would subject the passenger to the penalties of the ordinance.” Stripped of immaterial matters, the ordinance declares all persons guilty of a misdemeanor, 'other than

According to the main opinion a complaint against a passenger worded in the language of this ordinance would not charge an offense. For, as there said, a passenger might do all the things forbidden and still be innocent. It thus appears that a complaint sufficient to sustain a cause of action must go beyond anything found in the ordinance, and allege that the passenger sold or gave away the transfer “with intent that it should be used by another person.” There being no authority in the ordinance itself Avhich justifies the pleader in inserting these words, he clearly has no right to do so.

The opinion relies upon various decisions to support this liberal construction of the statute, notably an ancient and someAvhat celebrated case Avhich arose under the law of Bologna, a law which read that “whoever drew blood in the streets should be punished with the utmost severity”; and it was there held that this law did not apply to the surgeon who in his professional capacity bled a sick man in the streets. I find no fault Avith the decision of that case to the end that the surgeonwas not guilty, but do dissent from the implication found in the opinion here, that certain classes of persons could be legally convicted of

The Indiana ease cited in the opinion as to the selling of liquor is opposed to the later case of Commonwealth v. Kimball, 24 Pick. 370 , where Chief Justice Shaw says: “If the law is more restrictive in its present form than the legislature intended, it must be regulated by legislative action.” I fully indorse the doctrine of United States v. Kirby, 7 Wall. 482 , as to the stop

If by construction you may inject the words into this ordinance, “with intent that it shall be used,” then it seems that the legislature has enacted a vast mass of useless legislation; for by the language of a hundred different sections of the Penal Code various acts are declared to be either felonies or misdemeanors, when done with a certain particular intent. If the certain intent may be supplied by construction, it was idle to insert in it these various sections. For example, section 356 of the Penal Code reads: “Every person who cuts out, alters, or defaces any mark upon any log, lumber, or wood, or puts a false mark thereon, with intent to prevent the owner from discovering its identity, is guilty of a misdemeanor.” In the absence of a particular intent in this statute would the court 'legislate a certain intent into it? Plow would a court know what intent to insert? Naturally I should have supposed the intent to be inserted in this statute would have been an intent to appropriate the “log, lumber, or wood.” Yet not so, for the intent named is an intent “to prevent the owner from discovering its identity.” It is thus plain that a court cannot do these things, for the reason, among many reasons, that it does not, and cannot, know what intent the legislature had in mind.