The record-union. [volume] (Sacramento, Calif.) 1891-1903, 1895-10-14

MEN Who TRY TO BEAT RAILROADS.
The Act to Prevent Them is Declared
Constitutional.
Decision of the Supreme Court In a
Case of a Constable Who Sued
County for Fees.

The Supreme Court has reversed the
Judgment of the Superior Court of San
Joaquin County in the case of E. Gieseke.
appellant. against San Joaquin County.
respondent. The action was to recover
from the county certain fees alleged to be
due Constables for official services in
criminal cases prosecuted under Section
8 of Chapter third Of an Act entitled Gan
Act to create the Office of Commissioner
of Transportation, and to define its pow
ers and duties; to fix the maximum
charges for transporting passengers and
freight on certain railroads, and to pre-
vent eXtortion and unjust discrimination
thereon" The Act was approved April
l, 1873, and took effect Immediately. The
Supreme Court cites the following Sec
ton of the Act:
Every person who shall fraudulently
evade or attempt to evade the payment OF
his fare for travelling on any railroad
shall be fined not less than 80 nor more
than SO"
Continuing the court says: 1.-THE court
below found that the services of plaintiff
in criminal actions under said Section 8
against person for having evaded the
payment OF railroad fares were not law
fully chargeable TO said county, and &C.
cordlngly rendered judgment for de-
PENDANT as to all that class OF charges.
Tine action was defended, aud the
judgment of the court is attempted to be
justified here upon the sole ground that
said Section 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, | think he is right in
contending that the subject of the ninth
section is sufficiently expressed in the
title OF the Act. one branch of the SUBJ
ject 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 discrimi-
nation. The following is one of the
means provided by the Act to prevent
discrimination:
The sixth section 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 III said section
Section 81, such company, or conductor,
shall forfeit and pay Tor each otfense the
sum of $780, 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 etfectuslly prevent the evasion of
payment OF fares, gernlane TO the same
subject?
I'm view of the heavy penalties to
which the companies and their conductors
are subjected for permitting passengers
to evade the payment of fares, | think it
was but just, as well as appropriate and
conducive TO the same end, that the Legis-
lature also made the evasion of payment
of fare by passengers u misdemeanor,
punishable by tine, thus enabling the
companies and conductors more effect
ually to prevent such evasions, and, at
the same time. depriving them of any
reasonable excuse for not doing so.
Tine case OF Dyer VS.. County of Placer
t9O Cal. 2fO) Is OF the same nature as this.
In that case it was held that violation of
Section of said Act constitute les public
offense, and that a Constable had d right
to charge that county tor his official serv-
ices IN arrestlng, transporting and feed
ing prisoners charged with such Offense
1t does not appear, however, that the
constltutionality of said Section was
expressly questioned in that case, though
it seems TO have been necessarily in
volved. The questions expressly stated
and decided are, whether or not violation
OF said section was a public offense, and
whether or not the Constable was bound
to execute warrants OF arrest for viola
lions OF said section. 1t is hardly con-
ceivable that a violation of an unconsti-
tutional Act OF Legislature constitutes a
public offense.
For further authority on tie question
whether the subject of the ninth section
OF the Act is sufficiently expressed in the
title. see ex parte Kohler, "A Cal. SO;
ex parte Liddell, SO Cal. 633; Johnson vs.
Harrison, Is Am. st. Rep. 49,; Van
Brunt VS.. klotbush, Us y. Y. 80; Cooley's
Const. Limitations, p. 172 ct seq.
Il think the Judgment should be re-
versed and the cause remanded for new
| trial."
The opinion was written by Supreme
Court Commissioner Van Clief, and was
| concurred in by Commissioners Britt
and Fletcher. The action of the Commits
sioners was affirmed by Justices Harri-
son. Van Fleet and Garoutte, comprising
| Department One.