The ticket entitles the holder to take either of three different lines, all operated by defendant, two of which pass through Oakland.

In May, 1891, plaintiff purchased such a ticket at the office of defendant at the foot of Market street, San Francisco, and proceeded with it to the ferry which carries the passengers to the Oakland pier in the city of Oakland, where defendant's railroad begins. He was required to pass through a gate on his way to the ferry. Here an employé of the defendant demanded his ticket. Plaintiff informed the gate keeper that he desired to stop over at Oakland, and insisted upon retaining his ticket or receiving a check, which would be evidence of his right. He was informed that stop-over tickets were not provided, and that no stop-over rights were allowed; and he was refused permission to go upon the ferry, except upon surrender of his ticket, which he then gave up. He proceeded by ferry and road to the intersection of Broadway and First streets, in the city of Oakland, where he alighted, and remained attending to some private business for a short time. At this point all passenger trains passing over the road habitually stop, and from 1,000 to 1,500 passengers get on and off daily. There is no station house or station agent there, but passengers are received, and pay their fare to the conductor. Subsequently, he took the train for Alameda at the point where he alighted, and, his fare being demanded by

the conductor, he refused to pay it, basing his refusal upon the facts stated. But, notwithstanding his statement of these matters to the conductor, he was ejected from the train.

The only question involved in this litigation is, was the respondent entitled to a stop-over privilege at the city of Oakland? He claims this stop-over right under section 490 of the Civil Code, and that section reads as follows: "Sec. 490. Every railroad corporation must provide, and, on being tendered the fare therefor fixed as provided in the preceding section, furnish to every person desiring a passage on their passenger cars a ticket which entitles the purchaser to a ride, and to the accommodations provided on their cars, from the depot or station where the same is purchased to any other depot or station on the line of their road. Every such ticket entitles the holder thereof to ride on their passenger cars to the station or depot of destination, or any intermediate station, and from any intermediate station to the depot of destination designated in the ticket, at any time within six months thereafter. Any corporation failing so to provide and furnish tickets, or refusing the passage which the same calls for when sold, must pay to the person so refused the sum of two hundred dollars." The briefs of counsel contain an elaborate discussion of various legal principles that are claimed to be germane to the question here presented, and those principles which we deem necessarily involved in the final determination of this litigation we will take up and discuss seriatim.

1. Appellant insists that the true construction of section 490 is: "Such ticket entitles the holder, at any time within six months after the issuance of the ticket, to ride from the depot where he purchased the ticket to the depot of destination named in the ticket, or to any intermediate station, or, if he so elects, he may start from any intermediate station, instead of where he bought the ticket, and ride to the depot of destination designated in the ticket." Notwithstanding the statute appears to be plain and explicit upon its face, it is insisted that the conjunctions "and" and "or" are convertible terms, and that the conjunction "and," as it appears in the section should be read "or." There are times when it is entirely manifest from the context that the intention of the lawmaking power can only be given effect by holding these terms convertible. And this rule of construction is adopted for the very purpose of giving that force and effect to the text which plainly appears from the context was intended to be given it by the author of its creation, but this license of construction is only to be exercised upon the lines indicated, and in all other cases these two words are to be read and construed as they stand upon the page. Ordinarily, they are in no sense interchangeable terms, but,

upon the contrary, are used in the structure of language for purposes entirely variant. "There is a world of difference between the little words 'and' and 'or.'" State v. Beaucleigh, 92 Mo. 497, 4 S. W. 666. We see nothing here demanding the construction claimed. It is not plainly manifest that the legislature so intended. It is not manifest at all. The clause is full of meaning, reading it as it appears to the eye, and is entirely consistent with other portions of the section. If we should interpret "and" as "or" an entirely different meaning would be given the provision. This would be judicial legislation, pure and simple. Appellant contends for the construction claimed because it is said that formerly so-called "competitive points" were favored, and the object of the statute was the prevention of greater charges from intermediate stations to competitive points than were charged for longer distances from one competitive point to another. In view of the fact that the legislature provided in the immediately preceding sec tion (489) that the amount of passenger fares should be regulated according to the distance traveled, there would seem to be no necessity for further legislation upon that question. That evil, whatever it may have been, was called to the attention of the legislature, and cured by said section. The only effect upon the statute, by appellant's construction, is to give a passenger the right to board a train at an intermediate station, and ride to the point of destination upon a ticket purchased at some station which, from the place of destination, is beyond the intermediate point. We see no demand for legislation of the character outlined by appellant's con. struction of the statute. The circumstance of a passenger purchasing a ticket from one point to another, and then only actually using it for a portion of the distance, would not seem to be an event of such common occurrence as to demand the needs of legislative action. Again, while not desirous of prejudging matters not necessarily involved in the consideration of the present case, we might remark that no legal rule now presents itself to our minds which ever denied a passenger the right to use a ticket of the character here contemplated from an intermediate station to the point of destination. Auerbach v. Railroad Co., 89 N. Y. 281. And, if such was the law prior to the passage of section 490, we are justified in saying that the legislature, in enacting that provision, was not doing an idle thing, and we must assume the provision was created for other purposes. Appellant's position as to the construction of section 490 of the Civil Code is not tenable.

2. It is insisted that section 490 of the Civil Code, upon which plaintiff relies for his stopover right, was repealed by section 22 of article 12 of the state constitution, and this claim of repeal is based upon the additional claim that the constitutional provision cited

places the full and exclusive power of fixing railroad transportation charges within this state in the railroad commissioners. It is insisted that the repeal of section 490 is occasioned by the repeal of section 489; that this constitutional provision repealed section 489, -a section which pertains to the regulating and establishment of rates for freights and fares,-and that section 490 is so dependent upon section 489 that it cannot stand alone, and the fall of section 489 therefore necessarily carries with it the destruction of section 490. We will not discuss the interesting question as to whether or not the repeal of section 489 was occasioned by the adoption of that portion of the constitution referring to the election, powers, and duties of railroad commissioners, but, for the purposes of the case alone, will concede that such repeal was had. The single question then remains, did the repeal of section 489 result in the repeal of section 490? Chief Justice Shaw, in discussing a similar principle, said in the case of Warren v. The Mayor, etc., 2 Gray, 84: "When the parts of a statute are so mutually connected and dependent, as conditions, considerations, or compensations for each other, as to warrant a belief that the legislature intended them as a whole, and that if all could not be carried into effect the legislature would not pass the residue independently, if some parts are unconstitutional and void, all the provisions, which are thus dependent, conditional, or connected, must fall with them." The rule is well stated in the foregoing quotation, and the principle there declared has been recognized and declared the true one by the courts of many states. Measured by this doctrine, can section 490 stand the test? Is it manifest that the legislature intended that such section should stand or fall with section 489? Is section 490 so closely connected with and so entirely dependent upon the preceding section that its very life ends at the moment when that section is no more? Would section 490 have been enacted by the legislature if section 489 had never been placed upon the statute book? These interrogatories are answered by appellant, and to the legal soundness of those answers our attention shall now be addressed.

Section 489 provides that railroad corporations must fix and publish their rates of charges for freightage and fares from one depot to another on their various lines of road in this state, and declares a graduated scale of charges according to distance. It further provides that the maximum charges shall not exceed 10 cents per mile for each passenger, nor 15 cents per mile for each ton of freight transported upon its road, and also affixes a penalty for the violation of any of these provisions. Section 490 declares that the railroad company must provide, and, on being tendered the fare therefor fixed as pro vided in the preceding section, furnish to every passenger desiring passage on their pas

senger car, a ticket which entitles the purchaser to certain rights and privileges which we have already considered; and this section also affixes a penalty for the violation of any of its provisions. In all portions thereof, save a single one, the section is entirely disconnected from and independent of section 489. With this single exception, it appears to be full of its own vitality, and possessed of ample strength within itself to stand out alone; a law, as independent and complete as any other section within the lids of the Code. But, it is said in the language of defendant, to hold that section 490 is not dependent upon section 489, is to ignore the words of the section itself, namely, "on being tendered the fare therefor fixed as provided in the preceding section." This clause forms the connecting link between the sections, and upon the sole strength of that link depends the repeal or nonrepeal of section 490. It is claimed that it was the legislative intent that a passenger, in order to enjoy the rights and privileges granted by section 490, should tender the amount of fare fixed by the corporation, in accordance with section 489, and, that section being repealed, that it is impossible to make a tender of the fare therein provided; that a tender of the fare fixed by a later act of the legislature, or the tender of a fare fixed by the corporation itself in the absence of any law upon the subject, would be unavailing, and that consequently no rights and privileges can flow to the passenger under section 490. It is insisted, in other words, that the fare tendered must be the fare fixed according to section 489, notwithstanding that section may have been repealed, and in substance replaced by other legislation. We think appellant's interpretation of the section, as evidenced by the foregoing line of reasoning, too rigid and literal to satisfy well-settled rules of statutory construction. The subject-matter of these two sections has nothing in common. The sections relate to distinct and independent matters of legislation. Section 489 is in no way dependent upon section 490. There is no mutuality in their connections and dependencies. Section 490 could have been repealed, and the vitality of section 489 would not have been affected in the slightest degree. In accord with appellant's contention, we have conceded that section 489 is repealed by implication by certain provisions of the constitution. In order to declare a repeal by implication, it must be entirely apparent, by a comparison of the two provisions, that the subject-matter of section 489 is completely covered by the constitutional provision, and the repeal can be supported upon no other ground. In other words, the constitutional provision is a substitute for the section. It seems to follow that the question here presents itself in no different form, and involves no different principle, than though section 489 had been amended upon the lines embraced within the repealing

v.38p.no.3-7

If section 489

clause of the constitution. were still a live section, covering the gen eral subject-matter embraced within it at the beginning, no matter how changed and modified, no matter how drastic the treatment by amendment, surely defendant would still be bound by its provisions. Hence, appellant's contention reduces itself to the single claim that the present law upon the question is not embraced in the."preceding section," and that the particular point of location of the law upon the statute book is the all-controlling element. Such a construction would result in the sacrifice of substance to the merest form. The gist of section 489 is the requirement that railroad corporations fix their rates, and fix them in accordance with certain rules there declared, and within certain limits, and, to a certain extent, regulate fares and freights; and a reference to this section in section 490 is simply a recognition of that fact, and nothing more. The words, "as provided in the preceding section," might almost be termed surplusage. Their only possible purpose is to make more certain that which was already certain. Strike them from the section, and nothing of weight or substance is taken away. The construction would be the same with or without them. There surely is not that magic in them which holds the power of life and death over the entire section. The fare to be tendered, in order to give the passenger a right to his ticket, is the lawful fare; and it is immaterial whether that fare be fixed by the "preceding section," or by other provisions of the Code, or by the corporation, in the absence of law, or by the constitution itself. It is the fare regulated by law, and, if there be no law regulating the fare, then it is the regular fare charged by the corporation. At the date of the enactment of section 490, it happened that fares were regulated by the preceding section 489, and hence the reference. There is nothing to indicate that the enactment of these two sections partook of the character of a contract between corporations upon the one side, and the people, through its legislative body, on the other, whereby corporations were granted valuable privileges and benefits under section 489 in consideration of reciprocal valuable privileges and benefits extended to the trav eling public under section 490. It is further apparent that such conditions did not sur round the creation of these sections, for we find the substance of section 489 to have been the law of this state for many years prior to the adoption of the Codes. St. 1861, p. 625. We conclude that it was not the intention of the legislature that these two sec tions should be taken as a whole, that sec tion 490 should stand only while section 489 stood, and that the fall of section 489 should likewise mark the fall of section 490. We see no reason why the legislature should do such a thing, and such an intention is not manifest from the context. The repeal of

section 489 does not result in the repeal of section 490.

3. The Central Pacific Company leased to the Southern Pacific Company certain railroads for the period of 99 years, and also assigned to the Southern Pacific Company certain leases it held of other roads. These leases included all the rolling stock, telegraph lines, steamboats, wharves, piers, and all other property, both real and personal, used in connection with these roads, together with the appurtenances thereto belonging, with the right to possess, use, maintain, and operate and enjoy said property. The leases held by the Central Pacific Company were assigned "with the right to take, hold, operate, maintain, and enjoy said railroads and other property in the same manner as the Central Pacific Company holds, operates, enjoys, and maintains the same under said leases." It is now claimed that section 490 of the Civil Code, upon which plaintiff relies to give him the privilege of "stop-over," does not apply to the defendant, the Southern Pacific Company, because it does not apply to its lessor, the Central Pacific Railroad Company, and section 288 of the Civil Code is relied upon to show its nonapplicability to the Central Pacific Railroad Company. That section provides: "No corporation formed or existing before twelve o'clock, noon, of the day upon which this Code takes effect, is affected by the provisions of part IV, of division first of this Code, unless such corporation elects to continue its existence under it as provided in section 287; but the laws under which such corporations were formed and exist are applicable to all such corporations, and are repealed subject to the provisions of this section." The Central Pacific Railroad Company has not elected to continue its existence under the law found in part 4 of division 1 of the Civil Code; and, section 490 being found therein, it would appear that that corporation was not bound by its provisions, for this language is comprehensive, and, judged by its face alone, has no uncertain meaning. But it is claimed by appellant that section 490 is highly penal in its character. If this be true, the power of the legislature to create penal statutes, and thereupon enact that they should be only applicable to corporations created subsequent to a certain time, may well be doubted. Such an exception would appear to be beyond the limits of legitimate legislation. This court said in the case of City of Pasadena v. Stimson, 91 Cal. 238, 27 Pac. 604: "A law is constitutional and general when it applies equally to all persons embraced in a class founded upon some natural or intrinsic or constitutional distinction. It is not general or constitutional if it confers particular privileges, or imposes peculiar disabilities or burdensome conditions in the exercise of a common right, upon a class of persons arbitrarily selected from the general body of those who stand in precisely the same relation to the subject of the

law." But we will not enter into a detailed examination of section 288, with the object of determining its true force and effect as to either of these positions. For the purposes of this case, we will concede that by reason of that section the provisions of section 490 do not apply to the Central Pacific Company. That much being conceded, is its lessee, the Southern Pacific Company, by virtue of its leases, assignments, etc., likewise unaffected by the provisions of that section? The Southern Pacific Company is a foreign corporation, and was organized under the laws of the state of Kentucky in March, 1884,-more than 10 years after the enactment of sections 288 and 490 of the Civil Code; and, aside from any rights, privileges, or exemptions passing to it by virtue of these leases and assignments, it only exists in this state, and is enabled to do business in this state, by virtue alone of those provisions of the Code which, we have conceded, have no binding force and effect upon the Central Pacific Company. We are unable to appreciate the importance and gravity with which appellant surrounds its contention in this regard. A corporation, organized and carrying on its business under a certain set of laws, leases and assigns all or portions of its property to another corporation, organized and carrying on its business under another and different set of laws. Do such leases, assignments, and transfers give the second corporation the right to thereafter conduct its business under the laws which were only applicable to the first corporation? Such contention can have no support in the law. Prior to its transactions with the Central Pacific Company, the Southern Pacific Company, in the conduct of its business, was bound by the provisions of section 490 of the Civil Code, and no man or corporation, by contract or otherwise, possessed the power to relieve it in the conduct of its business from whatever restrictions or burdens were imposed by that section. These restrictions and burdens were imposed upon it by legislative power, and it is to that power alone it must look to be relieved of them. When organized and ready to do business in this state, part 4, division 1, of the Civil Code, formed the law regulating its conduct and defining its rights and duties; and now, by the sole virtue of a business transaction with another corporation, it is claimed that this entire body of law has become nugatory, and, in effect, repealed, as to such corporation. This law cannot be evaded in that way. It is not the legal method recognized for effacing a law from the statute books. The Southern Pacific Company was organized to conduct a general railroad business. If it had built its own roads, it would have been bound by the provisions of section 490, and its status as to the law is not changed by reason of the fact that it preferred to lease rather than build. Let us assume that it has constructed and is the owner of certain roads in connection with those it has obtained from the Central Pa