car lines, to remedy a threatened or actual interference with the comfort, convenience, and general welfare of the traveling public. It is urged against this ordinance that it is an attempt by penal legislation to enforce a private civil contract; in other words, that it is an attempt to compel the passenger who has received his transfer to use it within the limits of his contract, and not to violate that contract by giving it to a person who may make improper use of it. Could it be perceived that this was the only purpose, or even the main purpose, of the ordinance in question, we should be inclined to hold that the objection was fatal; but we cannot perceive that its main object or design was to accomplish this result. Rather, we think it clear that its primary object is to protect and advance the convenience and welfare of the traveling public. For if to the legislative mind an abuse of the transfer system has grown up, the inevitable result of such unrestricted abuse must be one of two things either that transfers would be discontinued entirely, to the material injury of the community, or the transfer system would be hedged and safeguarded by onerous conditions and requirements for the protection of the company, which would work great inconvenience to the passengers. It was certainly right for the supervisors, if 437 they saw or anticipated the existence of such an evil, to destroy or avert it by proper legislation tending to correct the abuse, and it is no objection to the validity of an ordinance designed for this purpose that it may incidentally tend to prevent frauds and compel men honestly to abide by their contracts. It is concluded, therefore, upon this point that the purpose of the legislation, to promote the convenience and welfare of the traveling public in regulating the business of the street-car companies of San Francisco in their dealings with their passengers, is legitimate and within the scope of the powers expressly granted to the municipal authorities.

But are the means adopted to accomplish this end unreasonable or oppressive, or in violation of any constitutional rights of the citizen? It is here first insisted by petitioner that the transfer issued to him by the company is his property, and that an essential and inalienable right to the enjoyment of property is the right to sell, give it away, or otherwise dispose of it. This, however, is but partially true. A man may not be deprived of his property or of his property rights for any private considerations whatever, nor for considerations of public good, without compensation first made; but the legislature has the unques

tioned right, and every day exercises it, of restricting the use to which private property may be put. As is said in Burdick v. People, 149 Ill. 600, 41 Am. St. Rep. 329, 36 N. E. 948: "The franchises of railroads acting under charters or acts of incorporation are of a public nature so far as the safety, convenience, and comfort of passengers are concerned. The reasonable regulations affecting the conduct of such public employments are fit subjects for legislative action. The law-making power may provide means for remedying such evils as in its opinion may exist in the management of these public agencies of transportation, and in doing so it may sometimes impose restrictions which are deemed to be necessary upon the use and enjoyment of property. A man is not deprived of his property unless it is taken away from him so that he is devested of his title and possession. To limit the use and enjoyment of property by legislative action is not to take it away from the owner, when the property whose use and enjoyment are so limited is invested in a business affected with a public use, or used as an accessory in carrying on such business." 488 But, aside from this, in the case of this ordinance it cannot be perceived that its terms limit or circumscribe any of the just and legal rights which a passenger receiving a transfer theretofore enjoyed. In receiving it he took it under the conditions above set forth. It was a part of his contract that, if used, he alone would use it, and if he sold it or assigned it, or gave it to another, to the end that that other might use it, he clearly violated his contract, and put a fraud upon the company. A court will not hear with much patience one insisting upon his right to violate his contract and consummate a fraud. The ordinance in question, therefore, so far as the passenger is concerned, leaves him all the rights which theretofore he enjoyed under his contract, and interferes in no way with any legal or legitimate use which at any time he could have made of the transfer. At the most, so far as he is concerned, it has but made penal what before was illegal and against good morals.

Finally, it is urged against the ordinance that by the generality of its terms it is unreasonable and oppressive; that every person who, taking a transfer, shall hand it to anyone other than the person authorized to receive it, no matter how innocent the act may have been in fact or intent, is guilty of a misdemeanor. In illustration of the position it is said that if the conductor should give to the father traveling with his family three or four transfers, and he in turn should hand them over

to his wife and children, he would at once become amenable to the ordinance; that so, too, would be the passenger who handed his transfer to another upon the car to be delivered to the conductor; so, too, would the witness in court who gave the transfer to the judge for inspection, or the judge who in turn might deliver it to the clerk. To some of the objections thus presented answer may be made that the life of the transfer ends with the passage of the time indicated upon its face. It ceases then to be a transfer, to have any value at all other than that which may attach to it as a bit of paper. But for the more substantial objection that the ordinance by its terms would oppress and lead to the conviction of persons guilty of no fraudulent act, it is to be remembered that the letter of a penal statute is not of controlling force, and that the courts, in construing such statutes, from very ancient times have sought for the essence and spirit of the law and decided 439 in accordance with them, even against express language; and in so doing they have not found it necessary to overthrow the law, but have made it applicable to the class of persons or the kind of acts clearly contemplated within its scope. The rule was thus early expressed in Bacon's Abridgment: "A statute ought sometimes to have such an equitable construction as is contrary to the letter." The oft-cited instance of the Bologna law, which enacted that whoever drew blood in the streets should be punished with the utmost severity, was wisely held not to apply to the barber who opened the veins of a sick man to aid in his cure. The statute of Edward II, declaring guilty of a felony any person who broke prison, was held upon considerations of the most ordinary common sense not to apply to one who did so to escape from a burning jail. The law declaring it a felony to lay hands upon a priest, by the same principles of common sense reasoning, was held not to apply to one who did so by way of kindness or warning, but only to those who acted with illegal or improper intent. In United States v. Kirby, 7 Wall. 482, the act provided: "That if any persons shall knowingly and willfully obstruct or retard the passage of the mail, or of any driver or carrier, etc., for such offense shall pay a fine not exceeding one thousand dollars." A mail carrier was arrested by a state officer on an indictment for murder. The act came within the letter of the law. Mr. Justice Field, delivering the opinion of the court, discusses the exemption of mail carriers from detention under civil process, but declares that they are liable to arrest and detention under criminal process for acts

every

malum in se. Therefore, notwithstanding the fact the defendant had "knowingly and willfully" retarded the mail carri, it is said: "When the acts which create the obstruction are in themselves unlawful, the intention to obstruct will be imputed to their author, although the attainment of other ends may have been the primary object. The statute has no reference to acts lawful in themselves, from the execution of which a temporary delay to the mail unavoidably follows. All laws should receive sensible construction. General terms should be so limited in their application as not to lead to injustice or oppression or an absurd consequence. It will always be presumed that the legislature intended exceptions 440 to its language which would avoid results of this character. The reason of the law in such cases should prevail over its letter." In Donnell v. State, 2 Ind. 658, a statute prohibiting the retailing of spirituous liquors without license contained no exception in favor of a druggist selling for medicinal purposes. A druggist who had so sold liquor was discharged after conviction as being clearly excepted from the intent, though not the letter, of the law. In State v. Clark, 29 N. J. L. 96, the statute made it a misdemeanor for anyone to willfully open, break down, injure, or destroy any fence. It was held not to apply to the destruction of a fence by one who was in its lawful possession, and it is said that the literal import of the terms and phrases implied will be controlled by the objects which the act was designed to reach. In Holmes v. Paris, 75 Me. 559, it is said: "It has been repeatedly asserted in both ancient and modern cases that judges may in some cases decide upon a statute even in direct contravention of its terms." In all of these cases the apparent defect of the statute is cured by making it apply according to its spirit to the act in its nature illegal or fraudulent. So here, notwithstanding the generality of the language, no lawful or innocent use of the transfer would subject the passenger to the penalties of the ordinance.

It is concluded, therefore, that the ordinance is valid and the prisoner is remanded.

Temple, J., McFarland, J., and Beatty, C. J., concurred.
Van Dyke, J., dissented.

MR. JUSTICE GAROUTTE dissented from the conclusion reached, and from the construction of the ordinance as shown by the closing portion of the opinion to the effect that the defect, due to the generality of its language, "is cured by making it apply accord

...

ing to its spirit to the act in its nature illegal or fraudulent." While the ordinance itself makes all persons guilty other than some agent of the company, the prevailing opinion says no innocent or lawful use of the transfer would make a passenger guilty. "In other words, as construed by the opinion, the ordinance reads that any passenger 'who gives away or sells a transfer with intent that it shall be used by some other party is guilty of a misdemeanor.' An ordinance so framed appears to me to be perfectly valid, but this court has no right to frame such an ordinance, even by construction. An ordinance of that kind would be entirely dissimilar to the one passed by the board of supervisors. In such an ordinance this particular intent becomes the very heart of the act, overshadowing everything else. ... We only know what the intention of the board of supervisors was from what it did, and this court can only measure and test this act by what it says." A complaint worded in the language of the ordinance would charge no offense. In commenting on the Bologna case, the justice shows that a statute framed in such general language would not be valid for any purpose under our system of jurisprudence, and he adds: "In the days when the Bologna case was decided, in that and similar jurisdictions, such a thing as the invalidity of a law was not known. The power that made the law was supreme. Things in these days and in this country are not as they were in those days and in those countries." The Indiana case cited is opposed to Commonwealth v. Kimball, 24 Pick. 370, and there is nothing in the case of United States v. Kirby, 7 Wall. 482, which supports the construction given the ordinance in this case. Justice Garoutte cites other penal statutes to show that a court cannot with safety inject into a penal statute or ordinance a particular intent, for the reason that it cannot know what intent the legislature had in mind.

LEGISLATURE-POWER TO MAKE ACT CRIMINAL.-It is no objection to a statute prohibiting a particular act and making its commission a public offense that the prohibited act was, before the statute, lawful or even innocent, and without moral turpitude: People v. West, 106 N. Y. 293, 60 Am. Rep. 452, 12 N. E. 610. But a statute declaring that to be a crime which consists alone in the exercise of a constitutional right is void: State v. Julow, 129 Mo. 163, 50 Am. St. Rep. 443, 31 S. W. 781. See, further, the monographic note to Booth v. People, 78 Am. St. Rep. 235-274.