(dissenting) :
This is a suit to recover tax moneys paid under protest and to secure a declaratory judgment that the plaintiff is not subject to the regulatory provisions pertaining to either common or contract carriers. There is no contention made by the defendants that the plaintiff is a common carrier, and therefore we are not concerned with problems pertaining to regulated monopoly. See Visco v. State ex rel. Pickrell, 95 Ariz. 154, 388 P.2d 155 (1963).
The taxes sought to be recovered are those assessed by the defendant Motor Vehicle Division for the plaintiff’s operations between June 9, 1962 and October 4, 1963, upon gross receipts of $22,298.51. The determination that this amount was from a contract carrier operation was made by a field auditor of the Motor Vehicle Division. He estimated that 38.56 per cent of the gross receipts of plaintiff were attributable to loading and transportation of pulpwood. This estimate was based upon an examination of the plaintiff’s records and those of Southwest Forest Industries, Inc., and interviews with the plaintiff and others in this industry.
Four days of testimony to the trial court was devoted to the issue of whether the transporting operations of the plaintiff were an integral part of the “harvesting *310industry,” or whether the transportation aspects of this operation were a substantial part of the business and separable from the other responsibilities assumed by the plaintiff under his contracts with Southwest Forest Industries, Inc.
Of interest in making this determination is testimony to the effect that Southwest Industries, Inc., during the approximate first year of its pulpwood operations in 1961-1962, did its own “cutting” and employed independent contractors to do the hauling. There is testimony that a substantial portion of the contractors with harvesting and hauling contracts with Southwest subcontract their hauling to others, paying between $4 and $6 per cord for this work. Other truckers sometimes used a winch built onto the truck for loading, while the plaintiff used an “Iron Mule.” In this case, the plaintiff subcontracted the cutting, which included the gathering and stacking of the wood, for $4.50 per cord, keeping $6.50 per cord for the loading and hauling.
The plaintiff testified that his cost “to haul” the wood was $1.62 per cord and an employee of Southwest, called as a plaintiff’s witness, presented a written estimate that plaintiff’s attributable costs of transportation was $2.50 a cord.
Based on these facts, and the facts previously delineated in the majority opinion, it is certainly within the purview of the evidence to regard at least 38.56 per cent of the gross income as coming from the loading and hauling phase of this operation, and to find a profit motive in so engaging.
The pertinent statutory language is fairly clear. A “contract motor carrier of property” is defined in the statutes as a person “ * * * engaged in the transportation by motor vehicle of property, for compensation, on any public highway * * 12 A.R.S. § 40-601, subsec. A(5), as amended. (Emphasis added.) The contrasting definition of a “private motor carrier” is, insofar as applicable to this case:
“ ‘Private motor carrier’ means any person not included in the term ‘common motor carrier’ or ‘contract motor carrier’' who transports by any motor vehicle * * * when such transportation is for the purpose of sale, lease, rent or bailment, or in the furtherance of any commercial enterprise, but ownership of the property transported shall not be accepted as sufficient proof of a private motor carrier operation if the carrier is in fact engaged in the transportation of property for hire, compensation or remuneration, or if such transportation operations are conducted for profit and not merely as an incident to a commercial enterprise, provided that towing of disabled vehicles by tow trucks operated in connection with an automobile repair or service business or a wrecking yard shall be deemed to be incidental to a commercial enterprise, and the operator thereof shall be deemed to be a private motor carrier when engaged in such operations. (Emphasis added). 12 A.R.S. § 40-601, subsec. A (8), as amended.
The cases relied upon in the majority opinion all indicate that if transportation of property is performed for a profit and not merely as an incident to a principal commercial enterprise, then there is a contract carrier business. Further, these decisions stand for the proposition that merely combining a carrier operation with a non-carrier operation does not render the whole non-carrier. For instance, Red Ball Motor Freight, Inc. v. Shannon, 377 U.S. 311, 4 S.Ct. 1260, 12 L.Ed.2d 341 (1964), quotes with approval from an Interstate Commerce decision of Lenoir Chair Co. Contract Carrier Application, 51 M.C.C. 65 (1949), aff’d sub nom. Brooks Transportation Co. v. United States, 93 F.Supp. 517, aff’d, 340 U.S. 925, 71 S.Ct. 501, 95 L.Ed. 668 (1951), in part, as follows:
* * If, on the other hand, the primary business of an operator is found to be manufacturing or some other non-carrier commercial enterprise, then it must be determined whether the motor *311operations are in bona fide furtherance of the primary business or whether they are conducted as a related or secondary enterprise with the purpose of profiting from the transportation performed. In ottr opinion, they cannot be both.’ ” (Emphasis added.) 377 U.S. at 315, 84 S. Ct. at 1262, quoting from 51 M.C.C. at 75.
A previous decision of the Interstate Commerce Commission, Woitishek Common Carrier Application, 42 M.C.C. 193 (1943), takes the same view:
“After careful study, it seems clear to us that the transportation ‘for compensation’ contemplated by both the common and contract definitions as distinquished from the transportation ‘for the purpose of sale, lease, rent, bailment, or in the furtherance of any commercial enterprise’ contemplated by the private-carrier definition is transportation which is supplied with a purpose to profit from the effort as distinquished from a purpose merely to make good or recover the cost of transportation furnished in the furtherance of some other primary business or transaction.” (Emphasis added; “purpose to profit” italicized in original) 42 M.C.C. at 201.
There is certainly no conclusive evidence in this record that the plaintiff did not enter into this enterprise with the purpose in mind of making a profit from the transportation end of the business. The cost figures supplied by the plaintiff would indicate that he was, in fact making a substantial profit from this phase of the ■operation.
Cases such as Williams v. State ex rel. Smith, 2 Ariz.App. 291, 408 P.2d 224 (1965), are clearly distinguishable by reason of the iacts of that case:
“The testimony and the findings of the court reflect that, normally * * *. Approximately 10% of the time and effort is used in transporting the house from one location to another.”
Williams v. State ex rel. Smith, 2 Ariz.App. 292, 408 P.2d 225.
Here, the plaintiff devoted substantially all of his time to the transportation phase of this operation and he had practically no moneys invested in equipment concerned with the “harvesting” of this wood.
None of the cases cited in the majority opinion, which hold that a private carrier status existed, are more than remotely related to the facts of this case, with the exception of Elkins v. Schaaf, 189 Wash. 42, 63 P.2d 421 (1936). This case, though of interest, is clearly distinguishable under the facts as indicated by the following quotation from Elkins:
“To arrive at one of the landings, it is necessary to cross the highway. To reach the other landing, it is necessary to cross a highway and follow it for a distance of approximately four miles in approaching the landing.”
63 P.2d at 422.
In Elkins, the delivery of the logs appears to have been substantially all by trails in the forest and by water transportation. It was clearly within the possibilities of that evidence for the court to conclude, as it did, that transportation was “ * * * incidental only to their business as logging contractors.” Here, the evidence is undisputed that of a haul of 11-12 miles, 9-10 miles were on a public highway.
If one can glean anything out of the federal decisions construing the similar statutes pertaining to interstate commerce, it is that each case must be judged “upon its own particular facts” (quote from Woitishek Common Carrier Application, 42 M.C.C. at 206). The facts here have been determined by a trial judge after listening to evidence which does not all lead in the same direction. We are duty bound to give his factual determination such credit as the evidence will support. This the majority opinion does not do. This judgment should be affirmed.