(concurring).
I concur in the conclusion of my associates that the city ordinances under attack have not become unreasonable, arbitrary or capricious by reason of the changes in the nature of street railway cars operated by one man, nor by reason of the financial burden resulting from a compliance with the ordinances, and, therefore, conclude that the ordinances do not violate the Fourteenth Amendment to the Federal Constitution, U. S.C.A.Const.Amend. 14.
The power of a state acting directly or through its municipal corporations to reg.ulate traffic upon public 'Streets is very broad and almost plenary. The streets belong to the public. Packard v. Banton, 264 U.S. 140, 44 S.Ct. 257, 259, 68 L.Ed. 596; Smith v. Cahoon, 283 U.S. 553, 51 S.Ct. 582, 587, 75 L.Ed. 1264; Packard v. O’Neil, 45 Idaho 427, 262 P. 881, 885, 56 A.L.R. 317; Ex parte Tindall, 102 Okl. 192, 229 P. 125, 133; State v. Dixon, 335 Mo. 478, 73 S.W.2d 385; Southern Motorways v. Perry, D.C., 39 F.2d 145, 147.
It is conceded that the ordinance declaring that the street railway cars operated upon the streets of San Francisco be operated by two men, a motorman and conductor, was a reasonable regulation of the traffic and valid when first enacted. The ordinance under attack was first enacted August 20, 1918, by amendment of an earlier ordinance. This was in effect in 1930 when the old franchises of the appellee were expiring. At that time the appellee states a 25-year permit was granted to the appellee to continue the operation of its street railway system. Similar provisions were subsequently incorporated in the charter of the City and County of San Francisco. (See Charter amendment No. 35, adding §§ 6a and 6b to chapter 2 of article 2 of the Charter of- the City and County of San Francisco, approved by the Legislature January 19, 1931, and incorporated in the new statutes of California, Stat.1931, pp. 2678, 2686, 2687. Subsequently a new charter was adopted containing a similar provision. Charter §§ 131, 132, approved May 5, 1931, St.Cal.1931, pp. 3052-3055.)
At the time appellee’s franchises were renewed the system was equipped with street cars adapted to be operated by a motorman and conductor, and the system was so operated before and after the renewal of the franchises.
The appellee is insisting that it should now be permitted to substitute a new type of car, or to reconstruct its old cars so that the functions performed by the conductor so far as they are not taken over by the motorman, may be performed by mechanical means, and that the ordinance conceded to be valid when enacted is now unreasonable in that it prohibits the substitution of a new type of car for the type heretofore used by *642it in operating under its franchise. The position of the appellee may perhaps be best stated by a short quotation from its brief:
“It has never been claimed by appellee that the relative safety of one man and two man cars, in and of itself, would render the ordinance unconstitutional. It is the combined effect, as before observed, of all the circumstances, as applied to the existing situation which determines the question of constitutionality. * * *
“The broad general proposition of appellants is that the desperate financial condition of appellee does not, in and of itself, justify the invalidation of an ordinance on constitutional grounds, passed in pursuance of a proper exercise of the police power.
“Appellee has never contended that its financial condition alone justifies the overthrowing of the ordinance. It does insist, however, that its financial condition is a material circumstance in the determination of the ultimate question as to whether the ordinance, under all the circumstances, is a valid exercise of the police power as against appellee.
“If appellee were earning its operating expenses, a sufficient reserve for depreciation, and interest accruing on its outstanding bonds, besides sufficient to pay a reasonable dividend on its stock, it is conceivable that it might be obliged to submit to more stringent restrictions in reference to public welfare, safety and convenience. But inasmuch as, due to the enforcement of this ordinance, it is suffering a large annual deficit, and facing receivership or bankruptcy, it is reasonable to argue that the restrictions and limitations upon its business methods, especially as they refer merely to public ‘convenience/ as distinguished from public safety, should be relaxed.
“Where public safety alone is involved, the decisions hold that there will be no relaxation, even though bankruptcy results; but no decision has been cited holding that any such stringent rule will be enforced where questions of convenience alone are involved.”
The appellee thus readily concedes that where safety alone is concerned the financial condition of the company may be ignored, but argues that in so far as the use of an additional employe is merely for the convenience of the public “in assisting the aged, infirm, the blind and children on and off the cars”, the power of the Legislature is more limited, citing in support of that proposition the decision of the Supreme Court written by Mr. Justice Brandéis in Nashville, C. & St. L. R. Co. v. Walters, 294 U.S. 405, 55 S.Ct. 486, 79 L.Ed. 949, wherein the doctrine announced by that court in Chicago, St. P., M. & O. Ry. v. Holmberg, 282 U.S. 162, 167, 51 S.Ct. 56, 57, 75 L.Ed. 270, was discussed and sustained. The Supreme Court there held that where public convenience alone was concerned the imposition of the cost of advancing the public convenience must bear some reasonable relation to the evils to be eradicated or the advantages to be secured.
It is by no means clear that the services of an employee to assist those who by reason of infirmity or otherwise need such assistance is to be classified as a public convenience rather than a safety measure. The argument of the appellee is in effect that inasmuch as all the necessary -functions of a conductor may be performed by mechanical means his remaining duties are merely for the convenience of passengers in making their entry and exit. Consequently, it is argued that we should balance convenience resulting to the public from such services by the company against the financial embarrassment of the company resulting from employing such employee. The difficulty with this proposition is that the assistance of those requiring aid in entering or leaving street cars is not a matter of convenience but of safety.
There is no doubt but that the appellee makes an appealing case for an increased income, but that appeal should be primarily directed to the rate-making power of the state. The Constitution of the United States requires that such rates be just compensation upon the fair value of the property devoted to public service. The appellee is entitled to charge rates that would b.e compensatory and to attack as invalid any rate fixing order which does not provide for such return.
The appellee is equipped with two-men cars, has been operating with two-men cars, and is in a position to continue to operate with two-men cars without the expenditure of any additional money other than that which it has heretofore expended. It is not seeking to protect an investment in the cars which it already operates, but rather, to make an investment in additional cars of *643a new type, or in alteration of existing cars for the purpose of greater economy in operation. It is true in the broad sense that the evidence shows that such minimizing of expense is an important if not a controlling factor in the financial set-up of the appellee, but the question presented by this record is quite different from that which would be involved if the road were entirely equipped with new cars designed to be op-* erated by one man and the legislative authority had required the employment of an additional man upon each car, or had -required the alteration of such cars so that they could be operated by two men. In the latter case the ordinance would have a direct effect upon an investment made upon the faith of existing conditions, while in the other, we have an ordinance intended to maintain the status quo. This is not to hold that even in the latter case the ordinance would necessarily be invalid, but to emphasize the fact that after all what the appellee is contending for is the right to use a newly invented labor saving device because in its opinion such cars could be operated with equal or greater safety. As pointed out by my associates, the relative safety of the one-man car and the two-men car is still- a debatable question notwithstanding impressive testimony introduced by the appellee as to the safety of the newly designed one-man car and the findings of the master which sustain its contentions in that regard. The one-man car system has not so far demonstrated its desirability and safety as to justify a court in setting aside the judgment of a legislative body. The opinions of experts, and of legislative and regulatory bodies may be properly used to persuade the Legislature to exercise its discretion in favor of the new cars, but the time has not yet come when the utility of the one-man car has been so far demonstrated as to limit the legislative discretion. The decision of the Circuit Court of Appeals, for the Sixth Circuit in City of Dayton v. City Ry. Co., 16 F.2d 401, relied upon by the appellee, states the constitutional problem involved in the substitution of two-men cars for one-man cars in the city of Dayton, Ohio, but does not decide the question. The case passed off on another point. I agree with Judge Denman’s analysis of the opinion of the Circuit Court of Appeals for the Fifth Circuit in City of Shreveport v. Shreveport Ry. Co., 38 F.2d 945, 69 A. L.R. 340; Id., 281 U.S. 763, 50 S.Ct. 462, 74 L.Ed. 1172.