McFARLAND, J.,
concurring.—I concur in the judgment of affirmance upon the ground last stated in the opinion of the chief justice. I dissent, however, from that part of the opinion which holds that the facts in this case constitute, under any view, a lowering of a rate within the meaning of the constitution. And, in my opinion, a still stronger and clearer ground for affirming the judgment is in the finding of the lower court “that at no time during the whole of said period from July 18, 1898, to March 20, 1900, did the defendant lower its rates for transportation of passengers, nor has it since said period raised or increased said rates.”
The provisions of the constitution in question are not only new and unusual, but severely restrictive of ordinary personal rights, and highly penal in their character. The corporation coming within their penalty is deprived of the beneficial use and enjoyment of its property, and, if the see
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tion is in all respects valid, cannot invoke the aid of the courts against the enforcement of an unreasonable and unjust rate of fares or freights, because it has forfeited the right to do so. It has the mere privilege of asking a favor of the commissioners, and it is clear that such a provision of law, whether found in a statute or a constitution, will not be carried by implication or strained construction to any act not coming clearly and beyond doubt within the language of the provision; the language used, given its full meaning, must itself include the case in hand. This principle is well stated by the supreme court of the United States in
Chesapeake etc. Co.
v.
Manning,
186 U. S. 248, a case quite similar to the case at bar, as follows: “While a legislature may prescribe regulations for the management of business of a public nature, even though carried on by private corporations with private capital and for private benefit, the language o.f such regulations
will not be broadened by implication.
In other words, there is no presumption of an intent to interfere with the management by a private corporation of its property any further than the public interests require, and so no interference will be adjudged
beyond the clear letter of the statute.”
Indeed, this principle is so well established as to be a part of received text-book learning. In Endlich on Interpretations of Statutes, in section 340, it is said that “statutes which encroach on the rights of the subject, whether as regards persons or property, are similarly subject to a strict construction. It is presumed that the legislature does not desire to confiscate the property, or to encroach upon the rights of persons; and it is therefore expected that if such be its intention, it will manifest it plainly, if not in express words, at least by clear implication, and
beyond reasonable doubt.”
And in section 331 the same author shows that the rule of strict construction of laws which are in their nature penal is not confined to cases where the enforcement of the penalty is by criminal prosecution.
Interstate Commerce Comm.
v.
Cincinnati etc. Ry. Co.,
167 U. S. 494, is another ease in which it is held that new and unusual provisions in a law are not to be extended by implication. And these principles of construction are as applicable to the provisions of a eon-, stitution as to those of a statute, although some authorities hold that there should be a stricter construction of the former
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than of the latter; however, in either ease the intent is to he found in the language used. (See eases cited in notes on pages 921 and 922, vol. 6, Am. & Eng. Ency. of Law.)
Applying these principles to the case at bar, it seems quite clear that the acts done by respondents do not bring them within the prohibitory language of section 20. That language includes only the lowering and subsequent increasing of a rate. Of course, the lowering of a rate presupposes a previous existing rate which may be lowered; and a rate is clearly a sum fixed to be charged for a certain service. It is quite common for railroad companies to have different kinds of tickets offering different kinds of services for which different rates are charged, and to lower the rate in one of such tickets would be simply to lessen the charge for the same, while leaving the service to which it entitled the passenger unchanged. In the case at bar the respondents had an established rate of $5.90 for a ticket which entitled the purchaser to all the usual rights and accommodations of an unlimited first-class ticket—including the stop-over privilege, the right to use it at any time within six months, transferability, etc. Now, they did not directly, or expressly, or as a matter of fact, lower the rate on that ticket. They did not withdraw it, nor deny those desiring to purchase it any of the rights or services which it undertook to give; on the other hand, it was kept on sale, and was sold, and those purchasing it got all it purported to give. How, therefore, can it be said that they lowered the rate on such ticket? What they did was to also sell another ticket at the rate of $3.75 by which they contracted for different and inferior services; they did not lower the rate for the services guaranteed by the $5.90 ticket. The two different tickets, with two different rates, stood together. They, therefore, did not do anything which section 20 prohibits, under any possible construction which could reasonably be given to it.
Really, the contention of appellants rests upon the proposition that section 20 prohibited respondent from selling any other kind of ticket than the $5.90 ticket, for any other kind of service. But there is no such prohibition. Such prohibition could not be judicially put into the constitution by any kind of reasonable construction—even without reference to the principle of interpretation which, as hereinbefore stated,
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must be applied to provisions which restrain ordinary personal rights, and are penal in their character. Indeed, the case for appellants rests upon the unwarranted conjecture, founded upon something not apparent from the language used, that the makers of the constitution
intended
to prohibit a railroad company from issuing a limited ticket providing for a diminished service at a lower rate. But, in the first place, there is no warrant for such a conjecture; and, in the second place, if such intent on the part of the makers of the constitution to prohibit such tickets could be reasonably imagined, the fact remains that they
did not do it.
And so, as to this point, appellants must rely upon a far-fetched and strained implication entirely discountenanced by the rules of construction which apply to provisions like those here involved.
There is still a further contention that there is no substantial difference between the services given under the $5.90 . ticket and those allowed under the $3.75 ticket, and that therefore the asserted difference is merely colorable. If that be so, then upon the payment of the $5.90 fare the passenger would not be entitled to the stop-over right, or the six months time, etc., but the railroad company could compel him to accept the ticket which represented the $3.75 fare, because, as asserted, there is “no substantial difference” between the two services. Certainly no one would contend for this proposition. The fact is that those rights which accrue under the $5.90 ticket, and could not be asserted under the $3.75 ticket, are substantial and material, and have been the foundation of a large amount of litigation. (See chap. LXVII of Elliott on Railroads, vol. 4, p. 2482, on “Tickets, Pares, and Passes,” and the numerous cases there cited.) Indeed, the decision of this court in the important case of
Robinson
v.
Southern Pacific Co.,
105 Cal. 526, rested entirely upon the important and substantial value of the stop-over privilege—where it was held that the ticket issued by the defendant in that case, taken in connection with certain statutory provisions, entitle plaintiff to a stop-over privilege which was enforced by the judgment. But in that case the distinction between different kinds of tickets and fares was fully recognized. The court, in response to a petition for rehearing, said: “We do not hold, and it does not follow from the views herein ex
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pressed, or from anything decided or said by way of argument in our original opinion, that there can be no ticket sold on any line of road which is not a stop-over ticket. We only hold that there must be a regular passenger rate established from one depot to another, and that a passenger who tenders the regular fare is entitled to a ticket to his place of destination, which ticket, under the law, gives him a right to stop over at an intermediate station. And the railroad company cannot demand the regular fare and at the same time deny the privilege which the law confers upon all who pay such rate. If, in consideration of an abatement from the regular established rate, a passenger voluntarily accepts an excursion or other limited ticket, an entirely different case is presented. ’ ’
It is argued that the acts of respondents _ constitute an evasion of section 20—the word “evasion” evidently being used in its worst sense. But, as stated in Endlieh on Interpretations, “It is not evading an act to keep outside of it,” and a provision of law “is always subject to evasion in that sense; for there is no obligation not to do what the legislature has not really prohibited.” (Sec. 144.) And there is no significance attaching to the fact that there was evidence to the point that a large majority of the passengers bought the $3.75 ticket, while a comparatively small number bought the $5.90 ticket. Whether or not respondents subjected themselves to the drastic and ruinous penalty of section 20 depends upon what they did—not on what others did. So remote a consideration is entirely beyond the principles of construction which, as hereinbefore stated, apply to restrictive and penal provisions such as those here involved.
Under the foregoing views the second question—that is, whether or not the said section 20 is in conflict with the fourteenth amendment of the constitution of the United States— need not be- determined or discussed.
Henshaw, J., concurred, with McFarland, J.
Rehearing denied.