People v. San Francisco & Alameda R.R.

By the Court, Sanderson, J.: This action was submitted in the Court below, and has been brought here upon an agreed statement of facts, from which it appears that the State Harbor Commissioners, acting under the authority conferred upon them by the fourth section of the Act of the 4th of March, 1864, (Stats. 1863-4, p. 140,) amending and adding to the Act of April 24, 1863, in relation to the improvement and protection of the wharves, docks, and water front in the City and County of San Francisco, on the 12th of February, 1866, leased to the Alameda Ferry Company “all that certain portion of the water front of the City of San Francisco commencing at a point in the easterly line of Davis street, ninety feet north of the north line of Pacific street, and extending northerly along said east line of Davis street one hundred and fifteen feet, for the term of three years,” upon certain terms and conditions specified in the lease, which were, in effect, that the ferry company should make and maintain certain improvements, but be required to pay no rent. The lease contains a clause to the effect following: “This lease is granted to the said ferry company for the use of their steam ferryboat Alameda or such other boat as they may use in her place, and the premises hereby leased, and all the rights and privileges hereby — 614 — granted, are leased and granted and are to be used for ferry-purposes only.” That this lease was obtained by the Alameda Ferry Company for the benefit of the defendant, which is a railroad corporation, owning and operating a railroad, which has its terminus upon the Bay of San Francisco, between which terminus and the City of San Francisco the ferry company runs its boat. That the defendant has been carrying, since the date of said lease, large quantities of freight from various points on the line of its railroad to San Francisco by its railroad and the ferryboat of the Alameda Ferry Company, delivering the same over said wharf to the consignees thereof. That said defendant has transported said freights under contracts with the owners thereof, without making any special charge for dockage or wharfage. In view of these facts, it is claimed, on the part of the Harbor Commissioners, that the defendant is liable to pay them, upon the freights in question, the usual and customary tolls, viz: twenty cents per ton in coin. On the other hand, it is claimed by the defendant that it and the ferry company are substantially one and the same thing, and that it had, therefore, the right to land and deliver the freights in question at and over the wharf in question free of tolls by virtue of the lease in question. Some considerable stress seems to be placed by counsel for the defendant upon the fact that in obtaining the lease the ferry company acted in the interest and for the benefit of the defendant. What connection, if any, there may have been between the defendant and the ferry company is not shown by the agreed facts, and were it a matter of any moment we should be bound to consider them, as their names import, as -separate bodies. It is, however, stated in the answer that the Alameda Ferry Company is composed of divers persons, who are also stockholders of the defendant, and that the lease was procured by them solely for the benefit of the defendant; and as we conceive that the result can in no way be affected by such a connection between the ferry company and the defendant, we shall assume the statement — 615 — to be correct, and decide the case on that theory, for it may be conceded that the two are one without in the least affecting the result; since, as the case shows, the one has a double, capacity, and, as we shall presently see, although it may escape the payment of toll in the one capacity, it cannot, as we consider, do so in the other. It is not pretended that the lease departs,at all from the terms of the statute under which it was made, and the question to be decided turns, therefore, upon the construction of the fourth section of the statute, to which we have already referred. It is provided that the Harbor Commissioners shall designate such wharves or other portions of the water front lying between Vallejo and Third streets, as may he deemed necessary for the use of ferryboats plying across the Bay of San Francisco, and thereupon “by lease, grant the use of the same to the owner or owners of said ferryboats for a period not exceeding three years, free of rent or charge of any kind whatsoever, but upon the condition that the lessees thereof shall dredge the docks or slips used by them, repair the wharves, and construct all works necessary for the protection of said wharves, docks, or landings, pursuant to the regulations prescribed by the Commissioners; and conditioned further, that said lessees shall not make any charge, by way of wharfage or otherwise, for the use of said wharves, docks, or landings, by any passengers traveling or carried upon said ferries, and that said wharves, docks, and landings shall not be used by said ferries for any other purpose than ferriage; provided, that nothing herein contained shall prevent any ferry owners or companies from leasing wharves or slips or landings from said Commissioners upon the same terms and conditions as other persons or companies.” The same section makes provision for leasing all the wharves and water front which shall come into the possession of the Commissioners, whereby the lessees are, upon the performance of certain conditions and the payment of rent, to become vested with the entire beneficial interest in the wharves and water front so leased to them, for terms not — 616 — exceeding three years, with the right to collect and receive to their own use such tolls as may be established by the Commissioners. By the ninth section it is provided that the Commissioners, from time to time, shall fix the rates of tolls, wharfage, and dockage, which shall not exceed a certain amount per ton on merchandise landed on or shipped from the wharves, and a certain less amount on each load of less than a ton carried on or off the wharves by any vehicle; and that, in fixing said tolls, they shall be governed by the amount of money necessary to he raised thereby for the purpose of improving and keeping in repair the city front. They are forbidden to collect tolls of pedestrians, or upon the baggage or packages which they carry. These tolls are expressly made “a lien upon any goods, wares, or merchandise landed upon any of the wharves, piers, or landings in the City and County of San Francisco; and the Commissioners created under this Act, their agents or lessees, are hereby authorized to hold possession of goods, wares, or merchandise landed as aforesaid, as security for the payment of wharfage.” From these provisions it is very clear that it was the intention of the Legislature to make the improvement and repair of the sea walls, embankments, wharves, piers, landing places, thoroughfares, and the water front generally, a charge upon the commerce of San Francisco. There is nothing found in the statute which, either expressly or by implication, exempts any portion of the commerce of that port from this burden, nor, as we consider, could the Legislature, under the Constitution, have exempted any portion, had it so desired. It has no power to tax a part, and exempt a part. It must tax all or none. (Const., Art. I, Sec. 11; French v. Teschemacher, 24 Cal. 544.) It cannot discriminate between persons, or grant an indulgence to one which it does not grant to another standing in the same relation. In determining, therefore, what rights the defendant acquired under its lease, (treating it as the lessee, as we have already suggested we would do,) the foregoing considerations must not be overlooked, for in — 617 — the interpretation of a statute, all its provisions, as well as its general policy, must be consulted, and it can never be presumed that the Legislature intended to pass an unconstitutional Act. • Counsel for the defendant argue that the lease vested in the defendant the entire estate in the premises described in the lease, for the term there specified. But we do not so understand the statute or the lease. We understand that the sole object of the statute, so far as it relates to ferry companies, is to grant to 'them the use of the wharf or landing place only so far as they may require its use as a landing for their boats. This is apparent from the fact that they are limited to the use of the wharf for the purpose of “ferriage” only, and are precluded from making any charge by way of wharfage, or otherwise, which is a denial of all beneficial use not included in use as a landing place merely for their boats. By its lease, therefore, the defendant acquired the right to use the wharf as a landing place for its boat, free of charge, but nothing more. If it desired greater privileges, it could have obtained them by leasing the entire estate, as provided by the statute in relation to “ other persons or companies.” It acquired the right to transport “persons and things for hire” to and from the wharf without paying anything for the privilege—the right to come alongside the wharf for the purpose of taking and leaving “ persons and things” seeking transportation across the bay, without charge, which right in no way vested the defendant with power to grant free passes to “ persons and things ” over the wharf, nor trenched upon the right of the Harbor Commissioners to levy a toll upon the “persons and things” so taken and left. The right of the Commissioners in that respect was unaffected by the lease; their, power was the same as before the lease was executed. They could levy no toll upon the passengers, or their baggage, or the packages which they carried in their hands, but otherwise in respect to goods, wares, and merchandise. The business of “ ferriage ”—to borrow the lan — 618 — guage of the statute—which is the transportation of “ persons and things ” across the bay for hire, (1 Bouvier Law Dic.) begins and ends at the wharf—that business the defendant is allowed to carry on free of charge. But if, in addition thereto, it undertakes the transportation of freight from various points on the line of its railroad to San Francisco, and the delivery thereof over the wharf to the parties to whom it may have been consigned, it is not in respect to such business a ferryman, and has, therefore, no special privileges, but stands upon the same level upon which all other transportation companies stand, and must pay the same tolls. As to such transportation business the defendant must be considered as acting in its capacity of a railroad company, and must be held to the same rule in respect to tolls as if its road terminated at the wharf, instead of the opposite side of the bay, or it employed some other vessel than a ferryboat for the purpose of crossing the bay with its passengers and freight. To railroad corporations, as such, no lease is authorized by the statute. The policy of the Legislature, in thus granting to ferry companies the use of wharves free of charge, is apparent. It proposed to levy no tax upon individuals coming and going across the bay, or upon their baggage or the packages which they may carry in their hands, but on the contrary to afford every facility to the traveling public. To charge the ferryboats for the use of the wharves would have been an indirect charge upon the traveling public, and would have defeated this policy as effectually as a direct charge would have done; hence the free use of the wharves to the ferry boats, which was the only practicable mode of securing their free use to the traveling public. To go further than this the Legislature could have had no motive which would not have been not only in direct conflict with the whole tenor and scope of the statute, but would have tended in a great degree, if not entirely, to defeat its sole purpose and object, by throwing the carrying trade of the bay into the hands of ferry companies, and thus, at the same time and by the same — 619 — breath, exempt from taxation the very thing which it proposed to tax. The Legislature could not have thus intended to create a fund for the improvement and maintenance of the city front, and destroy it by the same act; and hence the “ ferriage,” of which the statute speaks, and which is exempted from tolls, must be held to mean the transportation of whatever travels or is driven or led over the highways of the country, as, for example, animals, teams with their wagons and loads, carriages, horsemen, and pedestrians with their baggage and parcels, even if the term, as claimed by counsel for defendant, can be considered as having, in the abstract, a larger meaning, which we do not, however, consider to be the case. A ferry, in its ordinary sense, is but a substitute for a bridge where a bridge is impracticable, and its end and use is the same. Like a toll bridge, it is a franchise created for the use and convenience of the traveling public, as a link in the highway system of the country, and by no means includes the transportation of goods, wares, and merchandise by themselves, or, in other words, the carrying trade .of modern commerce. Ferriage, literally-speaking, is the price or fare fixed by law for the transportation of the traveling public, with such goods and chattels as they may have with them, across a river, bay, or lake; and by its use we understand the Legislature to have restricted the free use of the wharves by the ferry companies to the accommodation of the wants of the traveling public, in the ordinary sense of those terms. It admits of serious' doubt whether ferry companies, operating under leases of this character, can engage in the carrying trade, as distinguished from the transportation of the traveling public, without a forfeiture of their lease. If allowed to do so, we are unable to perceive why they do not so far have an illegal advantage over other persons engaged in the same business, and who are charged wharfage; but that question is not presented, and we therefore express no opinion. Judgment affirmed.