Board of Railroad Commissioners v. Market Street Railway Co.

COOPER,C. —This is an application by the board of railroad commissioners of the state of California for a writ of mandate to compel the defendant corporation to produce to the plaintiffs, and to permit plaintiffs to examine, the books, records, and papers of said corporation. The court- below refused the writ and ordered the action dismissed, and judgment was accordingly entered. This appeal is from the judgment. *678 The question to be here determined is as to whether or not the defendant corporation is subject to the supervision of plaintiffs, under the provisions of an act of the legislature entitled “An act to organize and define the powers of the board of railroad commissioners,” approved April 15,1880. (Stats. 1880, p. 45.) The constitution provides for and defines the duties and jurisdiction of the railroad commissioners. (Const., art. XII, sec. 22.) The language is: “ The state shall be divided into three districts, as nearly equal in population as practicable, in each of which one railroad commissioner shall be elected. . . . Said commissioners shall have the power, and it shall be their duty, to establish rates of charges for the transportation of passengers and freight by railroad and other transportation com panies.” Do the words, “ railroad and other transportation companies,” include a street-railway company in a municipality, engaged in the business of carrying passengers on street-railroad cars? In order to correctly determine this question, we must look to the words used, the context, the object in view, and the evils that were intended, to be remedied. In this manner we should, if possible, arrive at the intention of the convention in using the words, and give to them the same meaning and effect as was intended by the people, through their representatives, in framing the constitution. It is a matter of common knowledge, that among the evils, or supposed evils, under which the people of the state were suffering, and for which they demanded redress, was that of exorbitant and discriminating charges by railroad corporations engaged in transportation of freight and passengers. The political agitation of the times resulted in calling a constitutional convention, and the people, through their representatives, framing the present constitution in 1879, which was afterwards, in the same year, adopted by the people, by the expression of their will at the ballot-box. The constitution in no place mentions street-railroad corporations, although there were many such corporations in existence at the time it was framed. The Civil Code of the state, at the time, in title III (secs. 454-491), contained many provisions in regard to “railroad corporations,” and in title IV (secs. 797-511) treated of and provided for “street-railroad corporations.” Those sections of the code so treating railroad corporations and street-railroad corporations under separate and distinct-titles had long been a part of the law of the state. Therefore we *679 must presume that the convention—in which there were many lawyers of ability—knew that the two classes of corporations had long been known by the legal profession, and treated by the people, through their legislatures, as separate and distinct,—the one being engaged in the commercial business of carrying freight and passengers over the quasi-public ways from one part of the state to another, the other in carrying passengers only in the larger municipalities of the state; the one obtaining its franchise from the state, the other from the municipal authorities of the town or city in which it was carrying on its business. It is, therefore, a significant fact that no mention is made in the constitution of “ street-railway corporations,” and we cannot resist the conclusion that such omission was not unintentional. There was no public demand for the regulation of fares of street-railways in municipalities. The convention consisted of delegates chosen from all parts of the state. In the section of the constitution quoted, the power is given to establish rates for passengers and freight. And it is further provided that the “rates of fares and freights” established by the said commission Eihall be conclusively deemed just and reasonable. It is further provided, in section 23 of the same article, that the state shall be divided into three “railroad districts,” naming the counties in each district. This is consistent with the idea that the entire people of the state were interested in the great corporations engaged in the carrying of freight and passengers from one portion of the state to another, or from sister states into or through the state. It is inconsistent with the idea that the entire people of the state were interested in the rates for carrying passengers within the corporate limits of a town or municipality. It was the policy of the constitution that such matters as concerned the inhabitants of a particular subdivision of the state or county should be governed, as far as practicable, by local laws. That the people of the state, through their representatives, understood the said sections of the constitution not to apply to street-railroad corporations, is apparent from the contemporaneous construction given to them by the legislature in the act providing for the organization and defining the powers of the railroad commission, approved April 15, 1880, before cited. This act was passed for the purpose of providing machinery to carry into effect the constitutional provision *680 creating the railroad commission. It was passed at the first meeting of the legislature after the constitution was adopted, and by the representatives of the people who had been elected for the purpose of providing for carrying it into effect. In this act it is provided, in section 14: “ The term ‘ transportation companies, shall be deemed to mean and include,— 1. All companies owning and operating railroads (other than street-railroads) within this state; 2. All companies owning and operating steamships engaged in the transportation of freight or passengers from and to ports within this state; 3. All companies owning and operating steamboats used in transporting freight or passengers upon the rivers or inland waters of this state.” It will thus be seen that street-railroads are expressly excepted from the act. While the interpretation given to the act by the legislature is not controlling upon this court as to the meaning of a provision of the constitution, yet, where it is doubtful, the courts may, very properly, look to the contemporaneous interpretation given such provision, either by the legislature or the courts. Particularly is this the case where that interpretation has been upon the statute-books unchallenged for twenty years. The interpretation placed upon the constitution by the legislature of 1880.has ever since been acquiesced in, and legislation has been in accord with such interpretation. Thus the legislature, by an act approved March 23, 1893 (Stats. 1893, p. 288), made provision, among other things, for granting of franchises to operate railroads along public streets and highways by the board of supervisors or common council, only after public notice by advertising in one or more daily newspapers, and then to the highest bidder. Again, on March 13,1897 (Stats. 1897, p. 135), it was enacted that a franchise to construct or operate street-railroads, except steam-railroads, upon any public street or highway shall be granted by the governing or legislative body of the city or town, only after public notice by advertising as provided in said act, to the highest bidder, for a stated per cent of the gross annual receipts, which shall in no case be less than three per cent of such receipts. Thus under the interpretation given to the act, and as it always appears to have been interpreted by the legislature, franchises for street-railroads have been granted and rights have accrued. In the case of Stuart v. Laird, 1 Cranch, 299, the constitu *681 tional objection was made that the judges of the supreme court had no right to sit as circuit judges, not being appointed as such, nor having commissions for that purpose. In passing upon the question, the supreme court of the United States said: “To this objection, which is of recent date, it is sufficient to observe that practice and acquiescence under it for a period of several years, commencing with the organization of the judicial system, affords an irresistible answer, and has indeed fixed the construction. It is a contemporary interpretation of the most forcible nature. This practical exposition is too strong and obstinate to be shaken or controlled. Of course the question is at rest, and ought not now to be disturbed.” In Endlich on the Interpretation of Statutes (sec. 527), it is said: “The greatest deference is shown by the courts to the interpretation put upon the constitution by the legislature in the enactment of laws and other practical application of constitutional provisions to the legislative business, when that interpretation has had the silent acquiescence of the people, including the legal profession and the judiciary, and especially when injurious results would follow the disturbing of it. The deference due to such legislative exposition is said to be all the more signal when the latter is made almost contemporaneously with the establishment of the constitution, and may he supposed to result from the same views of policy and modes of reasoning that prevailed among the framers of the instrument thus expounded.”, This court, in Will of Warfield, 22 Cal. 71, 1 said: “Courts feel themselves constrained to uphold, where it is possible, contemporaneous interpretation of statutes, under which interpretation rights of property have for many years been acquired.” In the case of Cooper Mfg. Co. v. Ferguson, 113 U. S. 733, in speaking of an act of the legislature as interpreting a provision of the constitution of Colorado, the court said: “The act was passed by the first legislature that assembled after the adoption of the constitution, and has been allowed to remain upon the statute-book to the present time. It must, therefore, be considered as a contemporary interpretation entitled to much weight.” But, independent of the contemporaneous interpretation so •given to the constitution by the legislature, we think the inter *682 pretation correct, and that the words “railroad company” were not intended to mean street-railway. In the ordinary acceptation of the term “railroad company,” or'“railroad,” it is not understood to mean a street-railway engaged in the business of carrying passengers the entire distance, or any part of the distance, over which the road runs, for one and the same fare. In the late case of Ferguson v. Sherman, 116 Cal. 169, this court had under consideration a provision of the constitution of Kansas exempting from statutory liability the stockholders of railroad corporations, and it was held that the provision did not extend to stockholders of the “Electric Rapid Transit Company,” which was a street-railway corporation. In the opinion it is said: “It is not so easy to believe that the purpose of that constitution was to exempt from liability the stockholders of street-railways, which are designed merely to facilitate travel and communication upon the public highways of a municipality. ... In this state, the difficulty is much relieved by the distinction which our codes make between railroad corporations proper and street-railroad corporations. This consideration, however, is entitled to weight; . . . and we therefore conclude that the provision of the constitution of Kansas was not designed to apply to stockholders of street-railroad corporations.” In Gyger v. West Philadelphia etc. Ry. Co., 136 Pa. St. 96, it was held by the supreme court of Pennsylvania that section 4 of article XVII of the constitution of the state, providing that “no railroad, canal, or other corporation . . . shall consolidate . . . with, or lease or purchase the works or franchises of, or in any way control, any other railroad or canal corporation owning ... a parallel or competing line,” is not applicable to street-railway companies. In the opinion it is said: “It is perfectly clear that the convention did not regard the word ‘railroad’ as synonymous with ‘railway’or‘street passenger railway,’ when this section of the article was framed.” In Louisville etc. R. R. Co. v. Louisville City R. R. Co., 3 Duvall, 175, it was held by the court of appeals of Kentucky that a provision in a railroad charter, that no other railroad should be constructed between two named points in a city, did not prohibit the construction of street-railways. In the opinion the court said: “A railroad is for the usd of the universal public, in the transportation of all persons, baggage and other freight; a street-railway is dedicated to the more limited use *683 of the local public, for the more transient transportation of persons only, and within the limits of the city. In the technical sense, therefore, a street-railway is not a railroad.” In Bloxham v. Consumers’ Electric Light etc. Co., 36 Fla. 539, 2 it is said: “ The word ‘railroad,’ as generally used, applies to commercial railways engaged in the transportation of freight and passengers for long distances, and, as a general rule, having steam-engines for motive power, and making stops at regular stations for the receipt and discharge of freight and passengers. The term ‘street-railroad’ applies only to such roads, the rails of which are laid to conform to the grade and surface of the street, and which is otherwise constructed so that the public are not excluded from the street as a public highway, which runs at a moderate rate of speed, compared with commercial railroads, which carries no freight, but only passengers from one part of a thickly populated district to another, in a town or city and its suburbs.” In Fidelity Loan etc. Co. v. Douglas, 104 Iowa, 536, a very late case, it is said: “The words ‘railroad’ and ‘railway’ may undoubtedly be so used as to mean a street-railway, but by popular usage, when used without qualifying words, they are understood to refer to commercial railways, the word ‘street’ being almost invariably used in connection with ‘railway’ to designate a street-railway.” The same has been substantially held in other states, in the discussion of the various uses of the words “railroad” and “street-railway.” (Funk v. St. Paul City Ry. Co., 61 Minn. 435; 3 Sears v. Marshalltown Street Ry. Co., 65 Iowa, 742; Front Street Cable Ry. Co. v. Johnson, 2 Wash. 112.) And the same rule has been laid down in the Federal courts. (Manhattan Trust Co. v. Sioux City Cable Ry. Co., 68 Fed. Rep. 82; Massachusetts Loan etc. Co. v. Hamilton, 88 Fed. Rep. 588; 1 Foote and Everett on the Law of Incorporated Companies operated under Municipal Franchises, p. 668, note 5.) It is claimed that the words “other transportation companies” include street-railway companies. We think by reference to the context, and to other sections of the same article, it clearly appears that the words refer to transportation companies engaged in the business of common carriers of freight and passengers. The section refers to and speaks of “the rates of fares and freight” established by the commission. *684 And in section 21 of the same article it is provided: “No discrimination in charges or facilities for transportation shall be made by any railroad or other transportation company between places, or persons, or in the facilities for the transportation of the same classes of freight or passengers, within this state, or coming from or going to any other state.” In section 20, reference is made to the consequences of lowering rates “for transportation of passengers or freight from one point to another.” Companies engaged in draying, running freight-wagons, delivery-wagons, delivering parcels, teaming, or running elevators, are engaged in the business of “ transportation”; but it surely could not be contended that they are subject to the jurisdiction of the “railroad commission.” The people of the state would not have agreed to pay the salaries and expenses of the railroad commissioners, selected from different geographical sections of the state, for the purpose of regulating the charges of the “United Carriage Company” of San Francisco. Yet it is a transportation company. It clearly is not a transportation company whose “fares and freights” are subject to regulation by the railroad commissioners of the state. It follows that the judgment should be affirmed. Haynes, C., and Gray, C., concurred. For the reasons given in the foregoing opinion the judgment is affirmed. Van Dyke, J., Henshaw, J., Harrison, J., McFarland, J., Garoutte, J., Beatty, C. J.' Footnotes [1] 83 Am. Dec. 49-58. [2] 51 Am. St. Rep. 44. [3] 52 Am. St. Rep. 608.