San Francisco & San Mateo Electric Railway Co. v. Scott , 142 Cal. 222 ( 1904 )

This appeal is on the judgment-roll. The facts are undisputed, and the single question presented for determination is whether under the constitution of this state the franchises, rails, and rolling-stock of a street railroad operated in more than one county should be assessed by the state board of equalization or by the assessors of the several counties through which the railroad passes. It is conceded that, if the word "railroads," as used in section 10 of article XIII of the constitution of the state, includes street railroads, the judgment should be reversed. The section of the constitution to which reference has been made reads as follows: ". . . The franchise, roadway, road-bed, rails, and rolling-stock of all railroads operated in more than one county in this state, shall be assessed by the state board of equalization at their actual value, and the same shall be apportioned to the counties, cities and counties, cities, towns, townships, and districts in which such railroads are located, in proportion to the number of miles of railway laid in such counties, cities and counties, towns, townships, and districts."

It has been said by this court (Ferguson v. Sherman, 116 Cal. 176) that the word "railroad," as used in law, is broad enough to include street railroads, and many cases have arisen where the courts have held that the word does in its signification include such. Each case is to be determined upon its own facts, having in view the circumstances, the context, the presumed intention of the lawmakers, and the general policy of the state in regard to the particular matter. There being no question, therefore, that the word employed by the constitution embraces in proper cases street railways, our inquiry is narrowed to a determination of the intention of the framers of our constitution, and here, by reference to the constitutional debates, all doubt upon the question would seem to be eliminated. The end sought to be attained was a just and uniform method of taxation for railroads operated in more than one county. The section of the constitution, as originally presented, provided that the value of all the property of all railroad corporations should be assessed by the state board of equalization. Much debate followed, and it was pointed out that where a railroad was operated in but one county the assessor of that county was as competent to fix the value as he was that of any other property within his territory; that there was an essential difference between railroads so operated and those which traversed two or more counties of the state. The debate, in short, revolved about the single question of assessment for purposes of taxation. Finally, the amendment was offered which now finds place in the constitution, and debate upon this followed, always upon the same lines, as to the wisdom and justice of the plan of assessment. For example, Mr. Estee, in opposition, protested "because the very fundamental doctrines of taxation rest upon the proposition that every dollar shall be taxed by a rule which shall be uniform throughout the state." Mr. West, of Los Angeles, discussing the proposed amendment, and, answering Mr. Estee, declared: "I fully agree with the gentleman that we should adopt a rule that will be uniform in its operation. But certainly I disagree with him when he says we cannot have the railroad property in this state assessed by a state board of equalization. In that particular it would be a state board of assessors. Now, it is well known that the railroad property is peculiar property in itself. It does not bear any relation to the localities as other property does. It is considered as an entirety. The rolling-stock and all belong to the road as a whole, and ought to be assessed as a part of the entire line. All the property used is a part of the road, and the value can be much better ascertained by assessing it as a whole." And Mr. Justice Van Dyke, at that time a member of the constitutional convention, opposing the original section and favoring the amendment, said, amongst other things: "There are many railroads in this state, and gentlemen seem to forget, in their efforts to drive at the main railroad, that in some counties there are short lines of railroad for local purposes which will come within the provisions of this section as it now stands. Why take a local railroad in Humboldt County that runs but a few miles, and throw the assessment of that property upon the state board? It is not the office of that board. It ought to be assessed by the county assessor the same as all other property in Humboldt County. . . . For that reason I am in favor of the amendment proposed by the gentleman from Los Angeles."

It is thus an assured and ascertained fact that the framers of the constitution recognized a broad distinction for purposes of taxation between railroads operated in but one county and railroads operated in more than one county, and that they set forth a different scheme of taxation for the different kinds of roads. In People v. Central Pacific R.R. Co., 105 Cal. 576, further differences and distinctions are pointed out in justification of the classification made by the constitution, and practical examples given of the difficulties that would arise were it attempted to enforce by delinquent tax sales the assessments, if made in the separate counties by the local assessors.

It may be here noted that the constitution itself nowhere employs the phrase "street railroad" or "street railway," but when it speaks at all upon the subject uses the word "railroad." True, some provisions could in their nature have no application to street railroads operated within a single city or a single county, but this is no argument against the proposition that, where the constitution speaks generally of railroads all railroads, of whatever class, which by fair interpretation and intendment come within the meaning of the word, are meant to be included. For, as was said by the supreme court of Maryland, inOler v. Baltimore etc. R.R. Co., 41 Md. 583, where it is decided that railroad did include street railroad, "Had they not been made parts of the law, it might have furnished an argument that would not have been without weight that such railroads were intended to be excluded from its operation; but we do not understand that their being in the law can furnish any sound reason for the exclusion of other classes of railroads, when the language of its general provisions, as is the case with the law before us, is broad enough to embrace them." Nor should much weight be given to the argument that the framers of the constitution could not have had in contemplation such interurban and intercounty roads as now exist because at the time the constitution was adopted there were only steam railroads operating in one or more counties of the state, and street railroads running wholly within the streets of a single municipality, generally with horses for motive power. It is true that electricity as a motive power was not then in use, but no one would contend that a new or different mode of propulsion would operate to affect the terms of this constitutional provision. If any one of our present steam railroads running through several counties of the state, should change its motive power to electricity, it would hardly be contended that by reason of that change they were withdrawn from the operation of this provision, and it would be an altogether unjustifiably narrow construction of our constitution to hold that its provisions, or that this provision, must be construed solely in the light of facts existing at the time of its adoption. The constitution is the organic and governing law of our state. It is never to receive a technical construction like a common-law instrument or a statute. It is always to be so interpreted as to carry out the great principles of government which it embraces and expresses, or, as Judge Story says, "A constitution of government does not and cannot from its nature depend in any great degree upon mere verbal criticism, or upon the import of single words. . . . While we may well resort to the meaning of single words to assist our inquiries, we should never forget that it is an instrument of government we are to construe, and that must be the truest exposition which best harmonizes with its design, its objects, and its general structure." (Black on Interpretation of Laws, p. 14.) It is in strict consonance with this principle of interpretation that courts hold, and that in this case it should be held, that the instrument was not fixed, set, and hardened upon the day of its adoption, but is, and was meant to be, flexible enough to meet the changing conditions of our civilization. The English cases are common where their statutes, which have something of constitutional force, have been held to embrace new conditions, non-existent at the time of the passage of the act. Thus, in Bishop v. North, 11 Mees. W. 418, a statute passed in 1792, of course long before the existence of steam railways, provided that the proprietor of any estate containing any mines of coal or other minerals could build a railway over the land of another for carrying his coals or other minerals, by first paying or tendering satisfaction for the damages to be thereby occasioned, and the question arose whether under this act a railway could be built over lands of another on which steam cars and locomotives were to be used. The court held: "I cannot think it [the act] can be qualified by showing that at the time of the passage of the act a particular species of railway unlike the one contemplated, was in use. The power is general to make railways over the lands or grounds of any person or persons making satisfaction for the damages to be occasioned thereby." And so, too, in Taylor v. Goodwin, L.R. 4 Q.B.D. 228, a statute passed before bicycles were known, and which imposed a penalty for "furiously driving any sort of carriage," was held to apply to the furious driving of a bicycle.

Electric roads themselves were first operated upon the streets of a municipality. They next extended out upon the suburban roads and county highways. They now run freely between counties. They are projected over all parts of the state, and, if the expressed conviction of many prominent engineers is to be credited, it will not be long before even between states they will to a great extent have supplanted the present steam railroads.

Nor can any well-founded distinction be made because they run, where possible, along and upon streets and highways. They do not always do so. They frequently traverse lands upon their own acquired rights of way; and when they are operated in two or more counties of the state, no reason appears why they should not be held to come within the provisions of the section of the constitution under consideration, and many reasons, as above pointed out, demand that they should be.