It is my view that the opinions prepared for the District Court of Appeal in the companion *648cases of People v. United Air Lines, Inc. (reported at * (Cal.App.) 258 P.2d 66), authored by Justice Wood1 (Fred B.) and concurred in by Presiding Justice Peters and Justice Bray, and of People v. California Central Airlines (reported at *(Cal. App.) 258 P.2d 577), authored by Justice Drapeau and concurred in by Presiding Justice White and Justice Doran, adequately discuss and correctly resolve the issues which are presented on this appeal.
By reference I adopt each of such opinions in its entirety but to the end of avoiding unnecessary repetition in this dissent of either factual statement2 or discussion of law, while at the same time making clear the grounds which I find compelling to the conclusion reached, I set out here only the following portions of the opinion prepared by Mr. Justice Wood: (pp. 68-71 of 258 P.2d.):
‘ ‘ The sole issue upon this appeal is whether or not this defendant by charging the increased rates mentioned, during the. period March 1 to May 8,1951, incurred penalties which under certain circumstances the provisions of section 2107 of the Public Utilities Code by its terms imposes. That section declares that ‘Any public utility which violates or fails to comply with any provision of the Constitution of this State or of this part [§§2101 to 2113; the Public Utilities Code], or which fails or neglects to comply with any part or provision of any order, decision, decree, rule, direction, demand, or requirement of the commission, in a case in which a penalty has not otherwise been provided, is subject to a penalty of not less than five hundred dollars ($500) nor more than two thousand dollars ($2,000) for each-offense.’3 (Emphasis added.)
“The key words in this section are ‘public utility.’ Unless defendant is a ‘public utility, ’ as that term is used in section 2107, it cannot be subject to the penalty which that section imposes.4
*649“For a definition, we turn to section 216 of the code. It states that ' “Public utility” includes every common carrier, toll bridge corporation, . . . [and a number of types of corporations other than transportation companies] . . . where the service is performed for or the commodity delivered to the public or any portion thereof. . .
“Here the key words are ‘common carrier,’ defined in section 211 of the code as follows: ‘ “Common carrier” includes: (a) Every railroad corporation; street railroad corporation ; express corporation; freight forwarder . . . [several types of car corporations] . . . operating for compensation within this State, (b) Every corporation or person, owning, controlling, operating, or managing any vessel engaged in the transportation of persons or property for compensation between points upon the inland waters of this State or upon the high seas between points within this State, except as provided in Section 212. “Inland waters” as used in this section includes all navigable waters within this State other than the high seas, (c) Every “passenger stage corporation” operating within this State, (d) Every highway common carrier and every petroleum irregular route carrier operating within this State. ’
“In this definition of ‘common carrier’ there is no specific mention of common carrier by air. It is true that this enumeration of carriers is preceded by the word ‘includes,’ which ordinarily is used by way of illustration or enlargement, not by way of limitation. Oil Workers International Union v. Superior Court, 103 Cal.App.2d 512, 570, 230 P.2d 71, and cases there cited. Here, however, it appears that ‘includes’ is used as a word of limitation. The enumeration of several types of common carriers (railroad, street railroad, vessels, passenger stage corporations, highway common carriers) suggests an intention to include only the carriers specifically mentioned. The history of this section, which finds its prototype in subdivision (l) of section 2 of the Public Utilities Act of December 23, 1911 (Stats. 1911, Ex.Sess., ch. 14, p. 18, at pp. 19-20), compels such a conclusion.
*650“To get the full significance of this history, we start with the state Constitution of 1879, which imposed certain obligations upon carriers for hire and used certain terms in referring to them. Section 21 of article XII prohibited discrimination in charges or facilities for transportation by any ‘railroad or other transportation company.’ Section 22 of article XII gave the railroad commission power to establish rates of charges for transportation of passengers and freight by ‘railroad or other transportation companies’; implemented by the power to examine books of such companies, issue subpoenas and other process, hear and determine complaints against such companies, take testimony, and punish for contempt. Section 19 of article XII declared that no ‘railroad or other transportation company’ shall grant free passes or tickets at a discount to any public officer other than a railroad commissioner. Section 17 of article XII said: ‘All railroad, canal, and other transportation companies are declared to be common carriers, and subject to legislative control.’ Section 18 used the expression ‘railroad or canal company’; section 20, ‘railroad company or other common carrier’.
“An Act of April 15, 1880, evidently designed to implement these provisions of the new Constitution, followed the pattern set by these sections of article XII, in the terms which it used. Thus, the 1880 act used the term ‘transportation companies,’ defining it, somewhat narrowly, to mean and include companies operating railroads (other than street railroad) or steamboats from port to port or upon the rivers and inland waters. (Stats. 1880, ch. 59, § 14, p. 45, at 48.) However, section 12 of this act was designed to implement the constitutional powers and duties of the railroad commission to the full extent of the constitutional grant, without limitation as to types of companies affected. (P. 48.)
“The Railroad Commission Act of March 19, 1909, continued to use the expression ‘transportation company,’ enlarging it to include ‘railroads operated for commercial purposes, express companies, sleeping car companies, and companies operating vessels engaged in carrying freight or passengers on the waters of this state.’ (Stats. 1909, ch. 312, p. 499; §11, p. 501.)
“The Railroad Commission Act of February 9, 1911, followed much the same pattern. (Stats. 1911, Reg.Sess., ch. 20, p. 13.) In section 9 it declared: ‘All railroad and other transportation companies, owned or operated by any individual, company, ... or association are hereby declared to be com*651mon carriers, and under the jurisdiction, ... of the commission and subject to the provisions of this act.’ (P. 16.) But it continued to define ‘transportation company’ as meaning and including certain specified kinds of companies, adding several types of car companies. (§ 13, p. 17.) It imposed a penalty of $500 to $2,000 per day for willful failure by any railroad or other transportation company to comply with certain requirements of the statute or failure strictly to observe any rate established by the commission. (§41, p. 36.)
“At the special election held in October, 1911, the voters approved amendments to sections 20, 21, 22 and 23 of article XII of the Constitution. These amendments enlarged the membership of the Railroad Commission from three to five, made the members appointive instead of elective, and to some extent enlarged the constitutional grant of power to the commission, including the power to order reparation to any shipper for excessive or discriminatory rates charged him. In so doing it retained the use of the expression ‘railroad or other transportation company’ when dealing with the direct grant of constitutional power to the commission. Significantly, these amendments used a different form of expression when conferring ‘plenary power’ upon the Legislature to confer additional powers upon the commission. The 1911 amendment to section 23 declared that every private corporation, individual, or association owning or operating a ‘ commercial railroad, interurban railroad, street railroad, canal, pipe line, plant, or equipment, . . . for the transportation or conveyance of passengers . . . express ... or freight . . ., or for the transmission of telephone or telegraph messages, or for the production, ... or furnishing of heat, light, water or power or for the furnishing or storage or wharfage facilities, ... to or for the public, and every common carrier, is hereby declared to be a public utility subject to such control and regulation by the railroad commission as may be provided by the legislature, and every class of private corporation, . . . hereafter declared by the legislature to be public utilities shall likewise be subject to such control and regulation.’ (Emphasis added.)
“We may assume, for present purposes, that ‘common carrier’ as thus used in section 23 meant the same as defined in section 17 of the same article: ‘All railroad, canal, and other transportation companies’. We may further assume, for the purpose of discussion, that airline transportation *652companies were included in this definition of common carrier,5 and-hence, that a common carrier by air is a ‘public utility’ which section 23 gives the Legislature power to subject to the control and regulation of the commission. Has the Legislature done so, with this type of transportation company? The answer is furnished by the Public Utilities Act of December 4, 1911 [approved December 23, 1911], the first statute on this subject enacted after the adoption of the 1911 constitutional amendments. (Stats. 1911, Ex.Sess., ch. 14, p. 18.) Of prime significance, is the fact that the expression ‘transportation company’ was neither defined nor used in that act. We there find the same pattern that now obtains in the code. ‘Common carrier’ was defined by subdivision (l) of section 2 of the act as including certain specific types of transportation agencies (such as railroad corporations, street railroad corporations, ear corporations, corporations operating vessels) without the use of ‘transportation company’ or other generic term. ‘Public utility’ was defined in subdivision (bb) of section 2 of that act as including every common carrier and certain specific types of agencies (such as pipe line, gas, electric, telephone, telegraph, and water corporations, wharfingers and warehousemen) without the use of ‘transportation com-' pany’ or similar expression. In each of those subdivisions, the definition expressly applied to the term defined ‘when used in this act, ’ a limitation now expressed in section 203 of the code.
“It would seem, therefore, that the absence of the term ‘transportation company’ from the code is no accident; that it is the result of an intentional act of exclusion. This fact, coupled with the specific enumeration of carriers in the statutory definition of ‘ common carrier, ’ suggests that the Legislature, soon after the 1911 amendment of the Constitution, adopted the policy of not exercising its ‘plenary’ power over any new type of ‘transportation company’ (such as a stage line, truck line, or air line) until that type of transportation shall have been in operation long enough for the Legislature to determine how much, if any, regulation and control over it should be given the commission in addition to that directly conferred by the Constitution.
“Not inconsistent with this view was the construction placed *653upon the statute by the commission and approved by the court in Western Ass’n of Short Line R. R. v. Railroad Comm., 173 Cal. 802, 162 P. 391, 1 A.L.R. 1455, decided in December, 1916. The question at issue was whether or not common carriers by truck or stage upon the highways, operating between cities in this state, were subject to the jurisdiction of the commission. The court held that jurisdiction over such carriers, as ‘transportation companies,’ was conferred by section 22 of article XII of the Constitution.
“Concerning the lack of statutory regulation of carriers by stage or truck (methods of transportation that were relatively new in 1916), the court said: ‘We agree with the construction placed by the commission upon the legislative enactments and with its conclusion that the Legislature inadvertently failed or deliberately declined to make a specific grant of power to the railroad commission to regulate the affairs of these classes of transportation companies. We need not here repeat the convincing reasoning of the commission in this behalf, since doubtless its views will find expression in its own official reports, and it is sufficient for .the purposes of this determination to express our concurrence in and with them.’ (173 Cal. at p. 804, 162 P. at p. 391.)
“The history of statutory changes on this subject since 1911 indicates adherence to a policy of the Legislature not to exercise its ‘plenary’ power over new types of transportation until experience might demonstrate a need therefor.
“An act adopted in 1917 imposed certain requirements upon the owners and operators of stages and trucks when functioning as common carriers. It placed them under the regulation and control of the commission. (Stats. 1917, ch. 213, p. 330.)
“The definition of ‘common carrier’ in the Public Utilities Act was enlarged in 1927 to include passenger stage corporations (Stats. 1927, ch. 42, p. 72 at 7.3, adding § 2¼ to the Act of 1915); in 1933, to add freight forwarders (Stats. 1933, ch. 784, p. 2083 at 2085, amending § 2 of the act); in 1935, to include highway common carriers (Stats. 1935, ch. 664, p. 1830 at 1831, adding § 2¾ to the act); and in 1949, to add petroleum irregular route carriers (Stats. 1949, ch. 1399, p. 2440 at 2441, amending § 2¾ of the act).
“Note should be made of a Supreme Court decision rendered in 1943 which held constitutional a certain city ordinance concerning taxicab service. We refer to In re Martinez, 22 Cal.2d 259,138 P.2d 10. The court found that the Legislature had not yet put taxicabs under the jurisdiction of the com*654mission. After quoting the pertinent features of the statutory-definitions of ‘ common carrier’ and ‘public utility,’ the court said: ‘Nowhere in the quoted provisions of the Public Utilities Act, nor in its other provisions, do we find any reference to taxicabs or taxicab companies. Each of the many agencies designated in subdivisions (dd) and (i) is specifically mentioned and described in detail or is included in groups carefully described in the act. If the Legislature had intended to include taxicabs it would not have omitted reference to them while including detailed descriptions of all other agencies covered by the act, some of which perform similar services. Moreover, references in other parts of the act to common carriers “subject to the provisions of this act” indicate a legislative intention not to include all common carriers.’ (22 Cal.2d at p. 262,138 P.2d at p. 11.)
‘ ‘ The court did not mention section 22 of article XII of the Constitution, which by its own terms puts ‘railroad and other transportation companies’ under the jurisdiction of the commission to a limited extent. Section 22, perhaps, was deemed inapplicable because it refers to compensation for transportation of passengers or freight ‘between the points named in any tariff of rates’ established by the commission, and the city ordinance in question was ‘confined in its effect to service performed within the city. ’ (22 Cal.2d at p. 262, 138 P.2d at p. 12.)
“We note in passing that section 2113 of the code, relating to contempt of the commission and its power to punish such a contempt, is broader in its application than section 2107. Section 2113 applies to every ‘public utility, corporation, or person:’ That may well include a common carrier by air to the extent that such a carrier, viewed as a ‘transportation company, ’ may be subject to the jurisdiction which section 22 of article XII of the Constitution confers upon the commission. Our attention has been called to no other provision of the Public Utilities Act portion of the code which directly or indirectly mentions common carriers by air. ’ ’
The foregoing quotation from the opinion of Justice Wood satisfies me that the judgment of the trial court should be affirmed, but, in view of the fact that the majority of this court have concluded that the judgment should be reversed, I deem it proper to add these observations:
The majority (if they must reach the decision they do reach) properly point out that the commission by its decision of April *65524, 1951 (which by its own terms was not to become effective until May 9, 1951), “expressly advised the companies that they would thereafter be deemed to be transportation companies, common carriers and public utilities within the meaning of the state constitution and be subject to its prohibitions and requirements.” (Italics added.) The majority opinion further states “It is also observed that the commission is in the position of acting at times as informer, prosecutor, jury and judge in matters coming before it” and “Confusion is asserted to have resulted from divergent holdings of this court on the question whether a carrier which is in fact a common carrier transportation company should be subject to rate regulation by the commission although not specifically mentioned in the constitution or the statute.”
The majority opinion continues: “In further support of its demurrer the defendant argues that the provisions of section 2107 as applied to it are unreasonable and oppressive and therefore in violation of the due process and the equal protection clauses of the federal Constitution, . . . There is no merit in this contention. The defendant was not under any compulsion to increase its rates without a hearing before subjecting itself to the risk of penalties. It could have obtained a determination of its rights and obligations under California law without exposing itself to the risk of penalties.
“No showing is made that the penalties prescribed by section 2107, $500 to $2000 a day, are oppressive.”
I strongly disagree with the last quoted statement. In my estimation the majority opinion on its face, by virtue of the very facts which I have quoted from it above, leads to the conclusion that to apply the penalties under the circumstances shown would be unjust and oppressive. To state, as do the majority, that “The defendant was not under any compulsion to increase its rates without a hearing before subjecting itself to the risk of penalties” seems to me to at least border on the edge of unreality or inaccuracy.
It must be remembered that the only misconduct of the defendant upon which the commission and this court rely for invoking, for the first time in the history of this state as against an air carrier, the penal provisions of section 2107 of the Public Utilities Code, is that it put in effect a fare increase which, as appears on the face of the majority opinion, not only in the case of this defendant but also in the cases of its fellow defendants, was “made in response to a request by the chair*656man of the federal Civil Aeronautics Board, which they [the air carrier defendants] believed to be compulsory upon them. ’ ’
As to the element of compulsion in this respect, it is to be remembered that this defendant must use exclusively—whether in interstate or intrastate commerce—airplanes which are subject to federal regulation in respect to certification, maintenance, and operation; the airways over which they fly are federally equipped and operated; the number of passengers which any given plane may carry under varying conditions, its gross load, and the rates the defendant will receive for mail (if it has a mail contract) are all subject to exclusive federal control; likewise the defendant’s crewmen must be federally certificated; regulations covering the hours they may work, their qualifications and the mínimums of procedures for maintenance of proficiency, are all to be found in the federal Civil Air Regulations.
That the defendants in this and the companion cases (and their able counsel) had reasonable grounds for their course of conduct seems to me to be further indicated by the faqt that until this day every judge who had passed upon the matter agreed with them; that includes two judges of the superior court and six justices of the District Court of Appeal. In the face of the fact that so many distinguished legal minds have concluded that on the facts pleaded the defendants cannot be held to be subject to the penal provisions of the statute relied on, it seems to me to be inescapable that at the very least such statute] insofar as concerns its applicability to defendants on the facts, must admit of differing conclusions by reasonable minds. In such circumstance I think that we should follow the usual rule and accord the benefit of any reasonable doubt to the defendant. “When language which is reasonably susceptible of two constructions is used in a penal law ordinarily that construction which is more favorable to the offender will be adopted. In other words, criminal statutes will not be built up ‘by judicial grafting upon legislation ... [I]t is also true that the defendant is entitled to the benefit of every reasonable doubt, whether it arise out of a question of fact, or as to the true interpretation of words or the construction of language used in a statute. ’ ” (People v. Ralph (1944), 24 Cal.2d 575, 581 [150 P.2d 401] ; People v. Valentine (1946), 28 Cal.2d 121,143 [169 P.2d 1] ; see, also, In re McVickers (1946), 29 Cal.2d 264, 278 [176 P.2d 40]; In re Bramble (1947), 31 Cal.2d 43, 51 [187 P.2d 411]; People v. Chessman *657(1951), 38 Cal.2d 166, 182 [238 P.2d 1001] ; Ex parte Rosenheim (1890), 83 Cal. 388, 391 [23 P. 372]; People v. Sayre (1937), 26 Cal.App.2d Supp. 757, 761 [70 P.2d 546].)
For all of the reasons above stated, I would affirm the judgment.
Edmonds, J., concurred.
Respondent’s petition for a rehearing was denied April 28, 1954. Edmonds, J., and Schauer, J., were of the opinion that the petition should be granted.
Hearings were granted by the Supreme Court on August 6, 1953.
Formerly Legislative Counsel to the Legislature of California, with a long and distinguished service in the field of statutory interpretation.
The material allegations of the complaint are correctly stated in the majority opinion of this court.
‘ ‘§ 2108 of the code states that every such violation is a separate and distinct offense, ‘and in case of a continuing violation each day’s continuance thereof shall be a separate and distinct offense. ’ ”
‘During oral argument counsel for plaintiff expressed the view that the clause of section 2107 in which the word ‘ Constitution’ appears makes the penalty applicable to a ‘transportation company’ which violates any provision of article XII even if such company is not a ‘public utility’ within the meaning of that term as used in the code.
“Logic is against such a view. The word ‘Constitution,’ appearing, as it does, in the object of the sentence, in no way changes or enlarges *649the meaning of the subject, ‘any public utility.’ Especially so in view of the fact that such a change is not necessary to give meaning and effect to the phrase in which the word ‘Constitution’ occurs. Numerous transportation agencies that are included in the code concept of ‘public utility’ are subject to the constitutional mandates and prohibitions as well as to those expressed in the code.
“Moreover, it would have been easy to broaden the subject of the sentence in section 2107 by adding ‘corporation or person’ to ‘public utility,’ as was done in section 2113 of the code, when the legislature was dealing with contempt of any order of the commission.’’
‘ ‘The defendant herein does not in this proceeding question that it is a ‘transportation company’ as that term is used in the Constitution and, as such, is subject to the jurisdiction which the Constitution directly confers upon the Commission over such companies.”