TEMPLE, J., dissenting.—I dissent.
This is an appeal from a judgment refusing a mandate to compel the corporate defendant to produce, for the inspection of the plaintiffs, its books, records, and other papers. The plaintiffs claim the right to inspect said records, under their authority as railroad commissioners, conferred by section 22 of article XII of the state constitution. They do not contend that any such power is given by the act of the legislature defining the powers of the board, passed April 15, 1880.
Section 22 of article XII provides for the formation of the districts, each to elect one commissioner, the commissioners to be qualified electors of the district, and not interested in any railroad corporation
or other
transportation company; and then, said commissioners shall have the power, and it shall be their duty, to establish rates of charges for the transportation
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of passengers and freight by railroad or other transportation companies, and publish the same, from time to time, with such changes as they may make; to examine the books, records, and papers of all railroad and other transportation companies, and for this purpose they shall have power to issue subpoenas and all other necessary process; to hear and determine complaints against railroad and other transportation companies, to send for persons and papers, to administer oaths, take testimony, and punish for contempt of their orders and processes, in the same manner and to the same extent as courts of record, and enforce their decisions and correct abuses through the medium of the courts. Said commissioners shall prescribe a uniform system of accounts to be kept by all such corporations and companies. Any railroad or transportation company which shall fail or refuse to conform to such rates as shall be established by such commissioners, or shall charge rates in excess thereof, or shall fail to keep their accounts in accordance with the system prescribed by the commission, shall be fined, etc. It was further declared that the legislature may confer such further power on the commissioners as shall be necessary to enable them to perform the duties enjoined upon them by the constitution. .
The question here is, whether the jurisdiction of the commissioners, as thus defined, extends to street-railroads. That the phrase, “railroad and other transportation companies,” does include street-railroads, in its natural and most obvious sense, and also by common usage of the words, is not and cannot be denied. The phrase is repeated five times in the section, and nowhere is there a suggestion that anything comprehended in the phrase is to be excluded; and the constant repetition of the more extensive accompanying term, as though fearing and desiring to forestall an adverse construction which might limit the usefulness of the commission, is significant of a determination that there should be no doubt as to the extent of the power of the board.
The five preceding sections of the article are upon the same general subject, and each contains the same or an equivalent phrase. The slight change in verbiage, while still showing an effort to comprehend all engaged in the transportation business, makes that effort still more evident.
In section 17, all railroad, canal, and other transportation companies are declared to be common carriers, and subject to
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legislative control. Certainly, this may well apply to street-railroads.
Section 18 prohibits the officers and employees of railroads and canal companies from being interested personally in certain affairs of such companies. No reason is perceivable why this should not apply to street-railroads. It includes them as railroads.
Section 19 prohibits free passes to certain officials by railroads, or other transportation companies. It has always been supposed that this provision applies to street-railroads.
Section 20 declares that no railroad company, or other common carrier, shall combine, etc. The phrase, “other common carrier,” is used instead of “ other transportation companies,” and is a phrase of similiar import and as comprehensive.
In section 21 it is provided that no discrimination shall be made by “any railroad or other transportation company.” The phrase, as already stated, clearly includes, within the plain and unambiguous meaning of the words, “street-railroads.” No reason has been suggested why it should not be held to apply to them. This section is expressly referred to in section 22, and the board is expressly enjoined to enforce its provisions. If it applies to street-railroads, the power of the commissioners must be held to extend to them.
And so of the use of the words in all of these sections. In the nature of things, some of the rules laid down could not apply to all such companies,—such, for instance, as the right given to railroad companies to make connections in certain cases, as provided in section 17. Such is the case with nearly every general law applicable to a variety of subjects. Particular provisions apply only to matters which come within their special scope; and that some provisions cannot apply to all, furnishes no argument for the contention that the entire law is limited to these special matters to which they apply. Street-railroads come clearly within the usual and ordinary import of the terms used. There can be no doubt as to the meaning of the words, and the constitution will be searched in vain for a qualification or limitation of the terms, “ If the text be clear and distinct, no restriction upon its plain and obvious import ought to be admitted, unless the inference be irresistible.”
(Martin
v.
Hunter’s Lessees,
1 Wheat. 304.) Street-railroads are not specially mentioned, because included in the general language. If it were not intended to include them, they should
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have been mentioned, as they were in the act of 1880. (Stats. 1880, p. 45.) Written laws will lose their usefulness, if unequivocal terms in them can be limited to what courts may think ought to have been included.
It is said that to give the words, “and other transportation companies,” any meaning whatever will lead to absurd consequences, and one must limit the term, so far as railroads are concerned, to a particular species of them,—to wit, what counsel call commercial railroads,—and it is said if these words mean anything, there was no occasion to mention railroads at all, as they are also transportation companies. By what rule of construction are these words repeated in section 22 five times, and in article XII many times more, to have no effect whatever ? If the words serve no other purpose, they
demonstrate
that the jurisdiction of the commission was
not
to be confined to commercial railroads, although they were thought to be the principal offenders. Their use should conclude this question. Such repetitions are quite common in statutes, going from the less to the more comprehensive. The words, “ lands, tenements, and hereditaments,” are often used together, although the last includes both the others.
To give these words any meaning, it is suggested, will bring under the control of the commission, elevators,, hacks, etc. If that be so, it will be time enough to so construe the law when a case of that kind shall arise. The question now is as to street-railroads. Elevators make no charges, and hacks have always been under municipal supervision, and. have not generally been owned by companies. There are reasons why the commission should not control them, which do not apply to street-railroads. Telegraph companies do not, in their usual acceptation of the term, carry freight or passengers. Perhaps the terms may be limited to companies which were popularly considered transportation companies when the constitution was adopted. Street-railroad companies were then, as now, so considered,- and up to that time the limit of charges on street-railroads had been fixed by the legislature, and not by the municipalities.
The constant repetition of the words, “ other transportation companies,” in connection with the word “ railroad,” takes all force from the argument, that in the popular usage the word “railroad” refers only to commercial railroads; and here, again, the use and necessity of the words are shown. Upon
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this subject it is only necessary to make an extract from a well-considered opinion by Judge Hawley
(Massachusetts Loan etc. Co.
v.
Hamilton,
88 Fed. Rep. 588): “ The words ‘railroad? and ‘railway’ are synonymous, and, under all ordinary circumstances, they are to be treated as without distinction of meaning. As said by Justice Green in
Gyger
v.
West Philadelphia etc. Ry. Co.,
136 Pa. St. 96, ‘When either one or the other of these words are used in a statute, and the context requires that a particular kind of road is intended, that kind of road will be held to be the subject of the statutory provisions; but if the context contains no such direction, and either of the words is used in describing the subject-matter, the statute will be held applicable to everything which is embraced within the general sense of the words used,’ ” etc. (Citing authorities.)
But if the provision were conceded to be unreasonable, and to lead to absurd or unjust consequences, still, if it is clear, unambiguous, and its terms are not capable of some other meaning, and no suggestion of a limitation can be found in the context, we could not set up our own ideas of policy against the clearly expressed sovereign will.
The argument here is, simply, that the only meaning which can be given to the language cannot be allowed, because it leads to absurd results. Cooley says, in his work on Constitutional Limitations (p. 87): “ Such provisions, when free from doubt, must receive the same construction as any other. I do not say, however, that if a clause should be found in a constitution which should appear at first blush to demand a construction leading to monstrous and absurd consequences, it might not be the duty of the court to question and cross-question such clause closely, with a view to discover in it, if possible, some other meaning more consistent with the general purposes and aim of these instruments.”
The language found in constitutional provisions is naturally more general than that used in statutes. The constitution only creates a government by outlines. It calls into being governmental departments, declares their functions in the most general terms, and in the same way imposes restrictions. The legislature is expected to supply details .and to put the scheme into operation. A statute providing for the incorporation of railroad companies, or providing rules for running railroads, might well be expected to deal separately with steam and with street railroads. In regard to. these matters
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there are essential differences, which might suggest that when treating specifically of street-railroads they would be named as such. I am not contending that, as to such matters, general terms, even when not ambiguous, may not be limited by the context. Doubtless, even a constitutional provision could be so limited. Here, not only is there nothing in the context from which a limitation can be inferred, but extraordinary pains have been taken to prevent such a construction, by the careful iteration of the enlarging phrase, whenever the word “railroad” is so used that a restriction could be asserted.
But it is said that section 22 of article XII has received a practical and contemporaneous construction by the act to organize and define the powers of the board of railroad commissioners, passed April 15, 1880. The act provides for the organization of the board, and that its members and employees, when in performance of their official duties, shall be carried free upon all railroads, steamboats, etc., and in all vehicles employed in or by any railroad or other transportation company, etc.; and, in section 14, that the term “transportation companies” shall be deemed to mean and include,—“1. All other companies owning and operating railroads (other than street-railroads) within this state.”
Contemporaneous construction can have no weight whatever where there is no doubt or ambiguity in the terms used, and none arises by implication from the context. This is clearly laid down by Cooley. (Constitutional Limitations, pp. 80 et seq.) The authorities are carefully collected and elaborately discussed in
State
v.
Wrightson,
56 N. J. L. 126. It would serve no useful purpose to go over that subject, especially as I think there has been no contemporaneous or practical construction of this constitutional provision.
If the declaration that the phrase, “other transportation companies,” includes all railroads except s.treet-railroads, was intended as a declaration of the meaning of the constitution, and'not as a restriction upon the operation of the statute, then it was a usurpation of judicial powers. We cannot attribute such motive to the legislature, especially as the presumption is all but conclusive that the motive was merely to limit the operation of the law. There was reason for this,
if the phrase
in the constitution would otherwise have been construed to include street-railroads. If the contrary was the natural con
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stiuction, there would have been no occasion for this express restriction as to the operation of the statute. This limitation has its excuse, if it was merely intended to limit the right to free passes to railroads, other than street-railroads.
But the probability is, that the legislature did intend to limit the action of the board by this provision. Still, the presumption is conclusive, as I think, that it was not an attempt to declare the meaning of the constitutional provision. Section 22 defines with minuteness many powers which are thereby conferred upon the commissioners. No one would contend that the legislature could limit these express grants of power. The section further declares that the legislature “may confer such further powers on the commissioners as shall be necessary to enable them to perform the duties enjoined on them in this and the foregoing section.” All that could be justly concluded, then, is, that the legislature restricted the additional powers by them granted the commissioners, to transportation companies, other than street-railroads. This, perhaps, they could do; more, they certainly could not. This would not be a construction of the constitution, unless the implication would be, Shat, but for the provision, street-railroads would be included.
But for another reason the act cannot be deemed a
practical
construction of section 22. The legislation did not depend for its validity upon the supposed meaning attributed to the language of section 22. If the language of the statute merely limited the operation of the statute, operating under it could not amount to a practical construction. To illustrate: In
Stuart
v.
Laird,
1 Cranch, 299, the right of the justices of the supreme court of the United States to sit as circuit judges was called in question. An act of Congress expressly authorized them so to do, and for a series of years the circuit court had been so held. The constitution was silent upon the subject. The court treated the question as though it was, simply, whether the justices should be specially appointed and commissioned as circuit judges. The practical construction here consisted of the fact, that if the contention were sustained the practice for years had been illegal, and many judgments of the circuit courts were void. No such consequence would follow here. Whichever construction is adopted, the validity of no act of the commissioners will be affected. I think a similar comparison could be made with every case cited by respondents upon this point.