I agree with a great many of the views expressed by Mr. Justice Henshaw, but must dissent from the conclusion declared, and from his construction of the ordinance, as evidenced by the language in the closing portion of his opinion, to wit: "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." Stripped of immaterial matters, the ordinance declares all persons guilty *Page 441 of a misdemeanor, other than some agent of the company, who "should deliver, give, or sell, or offer to deliver, give, or sell, to any other person whatsoever a transfer." Now, the opinion says no innocent or lawful use of the transfer by the passenger would make him guilty of a misdemeanor. 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. How can this court say that the law-making body passed any such an ordinance? How can this court even say that such body intended to pass that kind of an ordinance? 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.
According to the main opinion a complaint against a passenger worded in the language of this ordinance would not charge an offense. For, as there said, a passenger might do all the things forbidden and still be innocent. It thus appears that a complaint sufficient to sustain a cause of action must go beyond anything found in the ordinance, and allege that the passenger sold or gave away the transfer "with intent that it should be used by another person." There being no authority in the ordinance itself which justifies the pleader in inserting these words, he clearly has no right to do so.
The opinion relies upon various decisions to support this liberal construction of the statute, notably an ancient and somewhat celebrated case which arose under the law of Bologna, a law which read that "whoever drew blood in the streets should be punished with the utmost severity"; and it was there held that this law did not apply to the surgeon who in his professional capacity bled a sick man in the streets. I find no fault with the decision of that case to the end that the surgeon was not guilty, but do dissent from the implication found in the opinion here, that certain classes of persons *Page 442 could be legally convicted of violating a law so worded if found on our statute books. The indefiniteness of the penalty is only a fair illustration of the indefiniteness of the entire act. A law so worded is beyond all salvation by construction, and that case is not valuable as an authority here. For many reasons I am quite clear that such a law in these times would not stand the test of judicial scrutiny for a second. To support the validity of a law of that kind at the present time by construction would partake rather of the character of Solomonic justice, as administered by that great king in the celebrated trial of the title to the baby. I am curious to know what decision would have been rendered by the Bologna court if some public spirited citizen, similar to those we have in these days, for the purpose of testing this law, had drawn blood in great quantities in the street by slashing the throat of a goat or any ox. If a question similar in principle to the one here presented came before the Cadi, who sits daily upon his mat in front of the opening of his tent, administering justice under the soothing fumes of his hookah, from whose decisions there is no appeal, and who acts as judge, jury, and attorney, untrammeled by legislatures and constitutions, I have no doubt but that he would enforce the ordinance, promptly declare the prisoner guilty and probably affix the penalty at a fine of five goats and a heifer, and do it all within a few minutes. For he administers justice on very general principles, and makes the law fit the case. But the practice and procedure is different in this country. 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. Every law was a constitution unto itself, and woe betide the judge who would have the temerity to set it aside. His probable fate would be to be "punished with the utmost severity." Things in these days and in this country are not as they were in those days and in those countries.
The Indiana case cited in the opinion as to the selling of liquor is opposed to the later case of Commonwealth v. Kimball, 24 Pick. 370, where Chief Justice Shaw says: "If the law is more restrictive in its present form than the legislature intended, it must be regulated by legislative action." I fully indorse the doctrine of United States v. Kirby, 7 Wall. 482, as to the stoppage of the United States *Page 443 mails. The court there said: "The statute of Congress by its terms applies only to persons who `knowingly and wilfully' obstruct and retard the passage of the mail or its carrier; that is, to those who know that the acts performed will have that effect, and perform them with the intention that such shall be their operation." I find nothing in that case supporting the construction given the ordinance in this case. And I venture to say that no case can be found where by judicial construction a specific particular intent has been placed in a statute.
If by construction you may inject the words into this ordinance, "with intent that it shall be used," then it seems that the legislature has enacted a vast mass of useless legislation; for by the language of a hundred different sections of the Penal Code various acts are declared to be either felonies or misdemeanors, when done with a certain particular intent. If the certain intent may be supplied by construction, it was idle to insert in it these various sections. For example, section 356 of the Penal Code reads: "Every person who cuts out, alters, or defaces any mark upon any log, lumber, or wood, or puts a false mark thereon, with intent to prevent the owner from discovering its identity, is guilty of a misdemeanor." In the absence of a particular intent in this statute would the court legislature a certain intent into it? How would a court know what intent to insert? Naturally I should have supposed the intent to be inserted in this statute would have been an intent to appropriate the "log, lumber, or wood." Yet not so, for the intent named is an intent "to prevent the owner from discovering its identity." It is thus plain that a court cannot do these things, for the reason, among many reasons, that it does not, and cannot, know what intent the legislature had in mind. *Page 444