incapable themselves of changing their domicile, and as there is no evidence that it was changed by anyone having authority, or at all, for that matter, their domicile is still in the city and county of San Francisco: Woerner's Law of Guardianship, sec. 26, p. 80. There is nothing in the record to show for what purpose the children were taken to South Carolina, and the order permitting their removal to that state, "to remain until the further order of the court," indicates no intention to surrender jurisdiction of their persons; on the contrary, the order implies the retention of such jurisdiction. The fact that Henning was discharged without being ordered to return the wards to this state gives rise to no presumption that the court had abandoned its jurisdiction over the persons of the wards; their domicile still remained in San Francisco. They are absent from the state, but there is no evidence tending in any way to show that their residence in South Carolina is anything but temporary. We cannot presume that their domicile is changed, nor can we presume that their residence has become permanent in South Carolina. Whatever presumptions are indulged upon these questions must be in favor of the jurisdiction.

Appellant cites numerous cases to show that it is a question of residence and not domicile which determines the power of 220 the court to appoint a guardian of the person; that the code authorizes the appointment of guardians for the persons and estates of minors who are "inhabitants or residents of the county," but that neither of these terms is equivalent to domicile. The argument seems to be that the residence of the minors became fixed in South Carolina under the permission of the court, and as the guardian was allowed to resign without himself voluntarily having returned the wards to this jurisdiction, and as he was not ordered to do so, and is not now subject to any such order, the wards are no longer within this jurisdiction. Mr. Woerner, at the page of his valuable treatise already cited, says: "The residence of infants conferring the jurisdiction in the sense of these statutes [statutes giving jurisdiction where the residence is within the county] means domicile, or home, as distinguished from residence, which may be temporary, or for a special purpose." However this may be, the word "domicile" certainly includes residence, conceding, as is the fact, that there may be a temporary residence separate from the domicile and at the same time (Woerner's Law of Guardianship, 82); and as we think the evidence and the presumptions fix both the domicile and the residence of these children at San

Francisco, we cannot see that the cases relied upon have application.

What may be or should be held in the event that a guardian of the persons should be appointed in South Carolina, and that the best interests of the minors should require that they permanently take up their abode in that state, and application should be made under the provisions of our code by their guardian appointed in that state to allow the removal of any property situated in this state, susceptible of removal, to the state of the ward's residence, are questions which may be remitted to the tribunal before which they may come. The parties in interest may have the assurance that our courts will be governed by the enlightened spirit of comity which should prevail between sister states of the Union, subject to such legislative restrictions as our statutes impose and agreeably to established rules of law.

For the foregoing reasons the order is affirmed.

DOMICILE.-AN INFANT cannot, of its own volition, change its domicile: Van Matre v. Sankey, 148 Ill. 536, 39 Am. St. Rep. 196, 36 N. E. 628; Allen v. Thomason, 11 Humph. 536, 54 Am. Dec. 55; during his minority he must retain the domicile of his parents: Taylor v. Jeter, 33 Ga. 195, 81 Am. Dec. 202. The domicile of origin of a minor continues, notwithstanding the death of his parents, though he has been taken into another state, unless the domicile was changed by consent of the parents or of the last surviving parent: Van Matre v. Sankey, 148 Ill. 536, 39 Am. St. Rep. 196, 36 N. E. 628.

DOMICILE AND RESIDENCE are distinguished in the monographic note to Berry v. Wilcox, 48 Am. St. Rep. 712.

GUARDIANS.-JURISDICTION TO APPOINT guardians is discussed in the monographic note to De la Montanya v. De la Montanya, 53 Am. St. Rep. 185-189.

EX PARTE LORENZEN.

[128 Cal. 431, 61 Pac. 68.]

LEGISLATURE MAKING ACT CRIMINAL.-The legislature, acting within constitutional limitations, has power to make penal an act theretofore indifferent or even innocent.

MUNICIPAL CORPORATIONS-ORDINANCE REGULATING STREET-CAR TRANSFERS - CONSTITUTIONALITY.-A municipal corporation has power to pass any reasonable regulation affecting street-car lines to remedy an interference with the comfort, convenience, and general welfare of the traveling public. Hence an ordinance making it a misdemeanor for any person ex

cept the conductor or agent of the street-car line to give, sell, or issue any transfer check or ticket issued for passage on any streetcar or line, the main purpose of which is to promote the convenience and welfare of the traveling public and not an attempt by penal legislation to enforce a private contract, is legitimate, and does not violate the constitutional guaranties protecting personal liberty or the right of private property.

MUNICIPAL ORDINANCE-REGULATING STREET-CAR TRANSFERS-RESTRICTING USE OF PRIVATE PROPERTY.A municipal ordinance which makes penal the disposal in any manner by a passenger of a street-car transfer check, but which leaves him all the rights which he enjoyed under his contract, and at most merely makes penal what before was illegal and against good morals, is a legitimate restriction on the use of private property.

MUNICIPAL ORDINANCE-GENERAL TERMS-REASON

ABLE CONSTRUCTION-STREET-CAR TRANSFERS.-A municipal ordinance forbidding a passenger from disposing in any manner of a street-car transfer is not unreasonable and oppressive by reason of the generality of its terms, since the letter of a penal statute is not controlling, but will be given a liberal and equitable construction, making it apply according to its spirit to an act in its nature illegal or fraudulent, and no lawful or innocent use of the transfer will subject a passenger to the penalties of the ordinance.

James G. Maguire and Frederick McGregor, for the petitioner.

Frank Kelly and F. P. Dunne, for I. F. Lees, the respondent.

433 HENSHAW, J. The petitioner was convicted of the violation of a penal ordinance in the city and county of San Francisco. He sued out this writ of habeas corpus, alleging that the ordinance under which he was convicted and sentenced is void. The ordinance in question is as follows:

"Order No. 2992.

"Providing regulations in the operation of street railroads and prohibiting the issuance or delivery of transfers to passengers except upon or within the car from which the passenger is transferred.

434 "The people of the city and county of San Francisco do ordain as follows:

"1. Every person, firm, and corporation operating street-cars within the city and county of San Francisco that issue transfers to passengers to enable them to transfer to other cars operated by the same or different owner, shall issue and deliver said transfers upon or within the car from which the passenger is transferred, and not elsewhere.

"2. Every person, firm, and corporation operating street-cars within the city and county of San Francisco that receives transfers as fare from passengers shall take said transfers from the

passengers who received the same within or upon the car to which the passengers are transferred, and not elsewhere.

"3. No person, except a duly authorized conductor, or agent of a person, firm, or corporation operating a line of street railroad within the city and county of San Francisco, shall within said city and county issue, deliver, give, or sell, or offer to issue, deliver, give, or sell, to any other person whatsoever, any transfer, transfer check, or ticket, issued or purporting to be issued by such person, firm, or corporation so operating such line of street railroad, for passage on any street railroad car or line.

"4. Every person, firm, or corporation violating the provisions of this order shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be punished by a fine not exceeding five hundred dollars, or by imprisonment in the county jail not exceeding six months, or by both such fine and imprisonment."

Lorenzen was charged with having given and disposed of a transfer in violation of section 3 of the ordinance.

Against the validity of this ordinance it is urged that it violates the guaranty of personal liberty contained in the constitution of the United States and of the state of California (U. S. Const., amend. 14, sec. 1; Const., art. 1, sec. 1); that it is an unconstitutional interference with a right of private property; that it is arbitrary, oppressive, and unreasonable; and, finally, that it is an illegal attempt to enforce the obligations or assumed obligations of private civil contracts by penal legislation. As to the nature of the "transfer," it is well recognized and admitted that the street railroads of the city and county of San 435 Francisco have provided that passengers upon their cars who have paid the usual fare may receive transfers entitling them to leave the car at a certain designated point, and there within a limited time and without further payment of fare, but upon presentation and delivery of the transfer check, pursue their travels upon the connecting line. It is, then, a part of the passenger's contract with the company that he may thus transfer to and ride upon the connecting road. As conditions of this privilege, it is further a part of the contract that the passenger shall board the cars of the connecting line at a designated point, and within a time limited after the issuance to him of the transfer indicated by a punch mark upon its face, and that the transfer shall not be transferable or assignable to another, but if used at all, shall be used by the person to whom it is issued. The paper slip or ticket designated a transfer, when

Am. St. Rep., Vol. LXXIX-4

in the hands of the passenger, thus serves a twofold purpose: 1. To the passenger as an evidence of his contract by which he is entitled to continue his journey upon the connecting road; and 2. To the company as a means of identification afforded to its conductors and servants by which they may know that the passenger presenting the transfer is entitled to ride without further payment of fare.

Such being the nature of the contract between the company and its passenger, consideration may be paid to the objections raised against the validity of this ordinance. The power of the general legislature acting within constitutional limitations to make penal an act theretofore indifferent, or even innocent, may not be doubted: People v. West, 106 N. Y. 293, 60 Am. Rep. 452, 12 N. E. 610. This, however, is not a statute of the general legislature, but a municipal by-law, and while it is true that article 11, section 11, of the constitution of this state expressly confers upon a city the power to make and enforce within its limits "all such local, police, sanitary, and other regulations as are not in conflict with general laws," this language is not to be construed as enlarging the powers which municipalities theretofore enjoyed in these respects; but it is merely an express grant of a power which formerly they possessed by implication: People v. Newman, 96 Cal. 607, 31 Pac. 564. The ordinance in question, then, is to be scanned and judged like any other municipal ordinance. So 436 judging it, regard is to be had to the end sought to be accomplished-whether that end be a reasonable one, and one within the powers of the municipality to accomplish; and regard is also to be had to the question whether the mode adopted to accomplish the end is itself reasonable or unreasonable.

Street-car companies are public utilities, which are almost necessities to our present mode of life. While in one aspect their ownership is private, and they are operated for private gain, in another they are servants of the people, and the lawmaking powers reserve and freely exercise the right to regulate and control them in their operations. It is upon the theory, and only upon the theory, that they may be operated for the public good that a franchise permitting their existence may be given; and the power to pass reasonable regulations for their operation and management is expressly granted by section 503 of our Civil Code. It is strictly within the power of the municipal authorities of the city, and properly within the exercise of their duties, to pass any reasonable regulations affecting street