I dissent. I think the conviction of the defendants should be reversed, as was decided by the court on the original hearing. I will say a few words in amplification of the opinion there rendered.
The majority opinion on rehearing sufficiently and correctly sets out the facts. I agree, too, that the first inquiry is to measure the defendants’ acts by the appropriate statutes and to this end we should discover the meaning of the term “passenger stage corporation.” I wholly disagree with the reasoning and the construction adopted by the majority to this end. It is true that the term was brought into the statutes by the 1927 amendments to the Public Utilities Act, that is, sections 2% and 50% thereof, but a little history will demonstrate that though the name is new, the subject is old. I hope to show that the phrase “passenger stage corporation” is the “transportation company” referred to in section 22 of article XII of the Constitution of 1879, again referred to in the amendments of 1911, the two constitutional provisions in that regard being identical, that is to say, the Railroad Commission was given the power and the duty to establish rates of charges “for the transportation of passengers and freight by railroads and. other ‘transportation companies.’ ” The case of the Railroad Commissioners v. Market Street Railway Co., 132 Cal. 677 [64 P. 1065], decided that the commissioners were without jurisdiction over the street railways operated in a municipality. The holding of the Supreme Court was that “a street-railway company was not a transportation company within the meaning of section 22 of article XII of the Constitution, defining the powers and duties of the Board of Railroad Commissioners which are intended to be confined to corporations carrying freight and passengers from one portion of the state to another . . . and not to include local street railways carrying passengers only within the limits of a city.” The case further held, which is important to us, that “although the legislature cannot authoritatively fix the meaning of the constitution, yet where the meaning of the constitution is doubtful, the *864contemporaneous and long-continued construction thereof by the legislature is entitled to the greatest deference, and may be supposed to reflect the same views of policy and modes of reasoning which prevailed among the framers of the constitution. ’ ’
The next case in our short history is Western Association of Short Line Railroads v. Railroad Commission, 173 Cal. 802 [162 P. 391, 1 A.L.R. 1455]. This case, decided in December, 1916, held that it was not within the power of the Legislature either by its silence or by direct enactment to modify, curtail or abridge the constitutional grant of power to the Railroad Commission over transportation companies and further, that section 22 of article XII of the Constitution as amended in 1911 granted power to the Railroad Commission to establish rates of charges for the transportation of passengers and freight by railroads and “other transportation companies” and that that section confers regulatory powers on the commission over companies transporting freight or passengers for hire on the public highways by means of auto trucks or automobile stages along routes not exclusively within the limits of the municipality.
We will next consider for present purposes the case of Franchise Motor Freight Association v. Seavey, 196 Cal. 77 [235 P. 1000]. This case narrates the history of the development of the law to the year 1925 insofar as it was regulatory of common carriers of freight and passengers by motor truck. This stated:
“In December, 1916, this court held that under section 22 of article XII of the constitution, as amended in 1911, the Railroad Commission was vested with the jurisdiction and the duty to regulate rates and charges of such carriers of freight and passengers by motor-truck; that this provision of the constitution could not be rendered nugatory by the omission of the legislature to prescribe procedural provisions for the carrying out thereof; and a peremptory writ of mandate was issued requiring the Railroad Commission to assume and exercise its jurisdiction over such carriers (Western Association of Short Line Railroads v. Railroad Com., 173 Cal. 802 [162 P. 391, 1 A.L.R. 1455]). Thereupon the Auto Stage and Truck Transportation Act was enacted by the legislature to provide the procedural rules for the exercise of such jurisdiction (Stats. 1917, p. 330). The title of this act and certain sections thereof were amended *865in 1919 (Stats. 1919, p. 457). The term ‘transportation company, ’ as used in the act, is defined in section 1 thereof to include ‘ Every corporation or person . . . owning, controlling, operating or managing any automobile, jitney bus, auto truck, stage or auto stage used in the (business of) transportation of persons or property, (or) as a common carrier, for compensation, over any public highway in this state between fixed termini or over a regular route, and not operating exclusively within the limits of an incorporated city or' town or of a city and county. ’ (With certain exceptions not pertinent herein.) ”
The words I have put in parentheses were the additions of the amendment of 1919 to the Auto Stage and Truck Transportation Act. The quotation without these words in parentheses states the section as enacted in 1917. At this point we may properly turn to the 1927 additions of sections 214 and 5014 of the Public Utilities Act. Section 2% thereof in its various subdivisions a, b, c and d, defines our old friend, the “transportation company” under a new name, “passenger stage corporation” with this possible exception: a “passenger stage corporation” emphasizes the carrying of passengers and express or baggage, whereas the Constitution in 1879, again in 1911, and the Transportation Act of 1917 adheres to the term “transportation .of passengers and freight.” All of them, however, refer to common carrier operation upon the public highways of the state of a character as pointed out in the ease of the Market Street Railway Company, supra, which was of statewide concern.
One more point must be clarified. The legislation of 1917 was deemed to be valid and as I have indicated, it was nothing more than the legislative provision of procedural rules for the exercise of jurisdiction granted the commission by the Constitution. (Western Association of Short Line Railroads v. Railroad Commission, supra.) That is to say, it afforded the operative machinery for the exercise of the commission’s powers over common carriers upon the highways by motor vehicle. The amendment of 1919 undertook to regulate and supervise the business of transportation on the highways other and in addition to that transacted by common carriers. The Supreme Court of the United States in Frost v. Railroad Commission, 271 U.S. 583, 589 [46 S.Ct. 605, 70 L.Ed. 1101], holding that the use of the highways was a constitutional privilege of the citizens and in the case of the private car*866rier not subject to regulation as a public utility, decided that the Auto Stage and Truck Transportation Act as amended in 1919 was repugnant to the 14th Amendment to the federal Constitution. This decision was rendered in 1926. Such was the situation which' faced the Legislature when sections 2% and 50% were added in 1927 to the Public Utilities Act. This short history explains the enactment of sections 2% d and 2% b and shows why a public utility now for the first time called a “passenger stage corporation” is a common carrier. In the light of the above considerations, then, section 2% by its own terms renders intelligible the definition given in the section of the term “passenger stage corporation.” Common carriers operate some on water, some on railroad trades, some in the air and some on highways.The jurisdiction of the commission is limited to common carriers. The scope and purpose of sections 2% and 50% is the regualtion of those common carriers operating by motor vehicle upon the highways carrying passengers and baggage.
In the light of these considerations it further appears that the passenger stage corporation is a public utility; is a common carrier and is in fact a transportation company under the regulatory power of the Railroad Commission by virtue of the state Constitution but it is also apparent that the Legislature in the 1927 enactment has not seen fit to incorporate in the Public Utilities Act the common carriers of freight, but as I have indicated, concerned itself only with such freight as was incident to the transportation of passengers.
Now we may consider what the “passenger stage corporation” is not. It is not a taxicab. (In re Martinez, 22 Cal.2d 259 [138 P.2d 10].) It is not a transportation company of purely local interest. (Railroad Commissioners v. Market Street Railway Co., 132 Cal. 677 [64 P. 1065].) It is not a private carrier. In a word it is a public utility transporting passengers on the highways in a manner intended by sections 22 and 23 of article XII of the Constitution for regulation as of statewide concern. Section 23 of article XII grants to the Legislature authority to confer powers upon the Commission in addition to the direct constitutional grant, which conferred powers are consistent with those constitutionally granted. This brings us to the third paragraph of section 50% of the Public Utilities Act, the same substantially as *867section 1 of the 1917 legislation creating the Auto Stage and Truck Transportation Act. That is to say, the Legislature has by the second and third paragraphs conferred powers upon the commission to make findings of fact which are conclusive as to what common carriers operating by motor vehicle upon the highways in the transportation of' passengers as common carriers are in fact common carriers, and also has provided it with all the requirements of due process as in according a fair hearing and acting upon evidence and not arbitrarily but only in a limited and confined field. In so doing the Legislature is making a proper exercise of its own powers. This will appear from a quotation from Southern Pacific Co. v. Railroad Commission, 13 Cal.2d 89, at page 108 [87 P.2d 1055], as follows;
“In the ease entitled American Toll Bridge Go. v. Railroad Commission, 12 Cal.2d 184 [83 P.2d 1, 4], this court quoted from the ease of St. Joseph Stock Yards Co. v. United States, 298 U.S. 38 [56 S.Ct. 720, 80 L.Ed. 1033], wherein it was said: . . . ‘Exercising its rate-making authority, the legislature has a broad discretion. It may exercise that authority directly, or through the agency it creates or appoints to act for that purpose in accordance with appropriate standards. . . . When the legislature itself acts within the broad field of legislative discretion, its determinations are conclusive. When the legislature appoints an agent to act within that sphere of legislative authority, it may endow the agent with power to make findings of fact which are conclusive, provided the requirements of due process which are specially applicable to such an agency, are met, as in according a fair hearing and acting upon evidence and not arbitrarily. . . ”
This states a general rule of legislative authority in keeping with modern conditions of commerce. Our own Legislature has its specific authority which it has enjoyed at least since 1911 by special provision of the Constitution itself. From this I conclude that a passenger stage corporation is nothing other than a certain type of common carrier over which the Railroad Commission, without any legislative enactment, must exercise its regulatory power solely by virtue of section 22 of article XII.
From these considerations also it appears conclusive to me that operations such as those conducted by the defendant Stolzoff are not such as to be regulated under the constitu*868tional provision, but were local and partook of the nature of private business. As indicated in Allen v. Railroad Commission, 179 Cal. 68 [175 P. 466, 8 A.L.R. 249] by Justice Shaw and by Justice Olney in Van Hoosear v. Railroad Commission of California, 184 Cal. 553 [194 P. 1003], the dedication of private property to public use is not a trifling matter and shall not be presumed in the absence of an intent and an intent shall not be presumed. The decisions I have cited, the framing of the particular constitutional provisions, the care and caution exercised by the Legislature in conferring additional powers upon the commission, the care with which the commission itself used over a long course of years not to usurp jurisdiction, are all circumstances which should warn this court of the neighborhood of principles fundamental to a free people. We are dealing here with public and not private law. I readily concede that the Superior Court in the exercise of its equitable jurisdiction may and should consider policy given expression in public law in suits between private litigants. Such I understand to be the decisions in Miller v. Railroad Commission, 9 Cal.2d 190 [70 P.2d 164, 112 A.L.R. 221], and Truck Owners etc. Incorporated v. Superior Court, 194 Cal. 146 [228 P. 19], both cited by the majority.
One word more. A rehearing was granted herein to give consideration to In re Marriott, 218 Cal. 179 [22 P.2d 692]. So far as we are interested now, that case decided three things. (1) Section 77 of the act will support a criminal complaint against the employee, agent or officer of a public utility where it is conceded that section 50% was violated. (It may, however, be noted that even so, the decision predated the effective date of § 50%.) (2) That if petitioner was a private carrier as a matter of fact this would constitute a complete defense, but in a habeas corpus proceeding the court would not examine the merits, and (3) That section 50% is not discriminatory, and is a valid exercise of regulatory power conferred by the state upon the Railroad Commission.
In conclusion, the convictions should be reversed upon the above considerations: (1) Because the defendants’ operations are not of the type which the state has undertaken to supervise and regulate inasmuch as they were local in character, are indistinguishable from those of a taxi service, and were but temporary and incidental to the war emergency, and quite similar to the “share the ride” practice of all *869patriotic citizens at the time. (2) Because until the Railroad Commission in the proper exercise of the powers conferred upon it has a hearing and determines that the operations are of the class which is regulated, they could not be violators of section 50^4.
It is the constitutional right of the defendants not to be convicted of violating, that is to say, of transgressing, the provisions of section 5034= by operating as passenger stage corporations unless they be, in fact, such utilities subject to regulation and control by the commission. In my opinion, the essential proof, requires a showing that their status for regulation shall have been determined by the commission. I am driven to this conclusion by the provisions of the third paragraph of section 5034 which reads in so far as material:
“Whether or not any stage, auto stage, or other motor vehicle is being . . . operated as a passenger stage corporation ‘between fixed termini or over a regular route’ within, the meaning of this act shall be a question of fact, and the finding of the Railroad Commission thereon shall be final and shall not be subject to review.” (Emphasis added.)
The privilege of trial of this all important fact by the lawfully designated tribunal is too valuable to be sacrificed by a construction of section 5034 wholly at variance with section 1858, Code of Civil Procedure.