Opinion
Department One
Appeal from a judgment of the Superior Court of San Joaquin County. Joseph H. Budd, Judge.
COUNSEL:
The subject of the act is fairly expressed in the title. (Dyer v. Placer County , 90 Cal. 276; Matter of Boston etc. Co ., 51 Cal. 624; Johnson v. Harrison , 47 Minn. 575; 28 Am. St. Rep. 382; Van Brunt v. Flatbush , 128 N.Y. 50; Ex parte Liddell , 93 Cal. 635; Ex parte Kohler , 74 Cal. 39; People v. Henshaw , 76 Cal. 436; 23 Am. & Eng. Ency. of Law, 264; Cooley's Constitutional Limitations, 96-98, 170-81; State v. Miller , 100 Mo. 606; Easton etc. R. R. Co. v. Central R. R. Co ., 52 N. J. L. 267.)
Gould & Baldwin, and W. M. Gibson, for Appellant.
W. B. Nutter, District Attorney, and Marion De Vries, Deputy District Attorney, and William H. H. Hart, Attorney General, and Charles H. Jackson, Deputy Attorney General, for Respondent.
The act is unconstitutional because there is nothing in the title expressive of the legislation contained in section 9 of the act. (Const. 1879, art. IV, sec. 24; Ex parte Kohler , 74 Cal. 41; Dyer v. Placer County , 90 Cal. 276; State v. Silver, 9 Nev. 227; Evans v. Memphis etc. R. R. Co ., 56 Ala. 246; 28 Am Rep. 771; People v. Parks , 58 Cal. 624.)
JUDGES: Vanclief, C. Britt, C., and Belcher, C., concurred. Harrison, J., Van Fleet, J., Garoutte, J.
OPINION
VANCLIEF, Judge
Action to recover from the county certain fees alleged to be due constables for official services in criminal cases prosecuted under section 9 of chapter 3 of an act of the legislature, entitled "An act to create the office of commissioner of transportation, and to define its powers and duties; to fix the maximum charges for transporting passengers and freights on certain railroads, and to prevent extortion and unjust discrimination thereon." The act was approved April 1, 1878, and took effect immediately. The following is a copy of said ninth section: "Every person who shall fraudulently evade, or attempt to evade, the payment of his fare for traveling on any railroad shall be fined not less than five nor more than twenty dollars." (Stats. 1877-78, pp. 969, 986.)
The court below found that the services of plaintiff in criminal actions under said section 9 against persons for having evaded the payment of railroad fare was not lawfully chargeable to said county, and accordingly rendered judgment for defendant as to all that class of charges.
The action was defended, and the judgment of the court is attempted to be justified here, upon the sole ground that said section 9 is unconstitutional, for the alleged reason that the subject of it is not expressed in the title of the act.
Without considering all the points urged by appellant, I think he is right in contending that the subject of the ninth section is sufficiently expr essed in the title of the act. One branch of [42 P. 447] the subject of the act expressed in the title is "to prevent. .. . unjust discrimination" in "charges for transporting passengers"; and whatever may be conducive to this end is germane to, and within the scope of, the subject of preventing such discrimination. The following is one of the means provided by the act to prevent discrimination. Section 6 of chapter 2 of the act provides: "If any such company or any of its conductors shall permit any person whatever to travel free upon its cars, except upon the exhibition of free passes issued as provided in said section [section 3], such company or conductor shall forfeit and pay for each offense the sum of one hundred dollars." No doubt this is embraced in the subject expressed in the title; and, if so, why are not the means provided by section 9 of chapter 3, by which the companies and their conductors may more effectually prevent the evasion of payment of fares germane to the same subject? In view of the heavy penalties to which the companies and their conductors are subjected for permitting passengers to evade the payment of fares, I think it was just as appropriate and conducive to the same end that the legislature also made the evasion of payment of fare by passengers a misdemeanor, punishable by fine, thus enabling the companies and conductors more effectually to prevent such evasions, and, at the same time, depriving them of any reasonable excuse for not doing so.
The case of Dyer v. Placer County , 90 Cal. 276, is of the same nature as this. In that case it was held that a violation of section 9 of said act constitutes a public offense, and that a constable had a right to charge that county for his official service in arresting, transporting, and feeding prisoners charged with such offense. It does not appear, however, that the constitutionality of said section 9 was expressly questioned in that case, though it seems to have been necessarily involved. The questions expressly stated and decided are, whether or not a violation of said section was a public offense, and whether or not the constable was bound to execute warrants of arrest for violations of said section. It is hardly conceivable that a violation of an unconstitutional act of a legislature constitutes a public offense.
For further authority on the question whether the subject of the ninth section of the act is sufficiently expressed in the title, see Ex parte Kohler , 74 Cal. 38; Ex parte Liddell , 93 Cal. 633; Johnson v. Harrison , 47 Minn. 575; 28 Am. St. Rep. 382; Van Brunt v. Flatbush , 128 N.Y. 50; Cooley's Constitutional Limitations, 172, et seq.
I think the judgment should be reversed and the cause remanded for a new trial.
For the reasons given in the foregoing opinion the judgment is reversed and the cause remanded for a new trial.