concurring and partially dissenting.
While I agree with the majority’s treatment of the issue of attorney’s fees, I dissent from the remainder of the majority opinion. I differ with the majority’s reaching the issue of whether Harris was providing “regular” service. It seems to me that in dealing with the constitutional void for vagueness challenge to the statute, the majority opinion places the cart before the horse. When a party challenges a statute as being unconstitutionally vague, it must first be examined “on its face.” United States v. National Dairy Products Corp., 372 U.S. 29, 32, 83 S.Ct. 594, 597, 9 L.Ed.2d 561, 565 (1963). Although historical application of the statute may be examined in connection with the vagueness inquiry, id., a statute must first survive the facial challenge before the court proceeds to examine whether the particular conduct of the party before the court falls within or without the statute. The majority opinion reverses the order of inquiry. It first concludes that Harris’ activity does not fall within the terms of the statute (i. e., that he has not provided “regular” service). In Footnote 8 (Page 1203), the majority then concludes that the vagueness issue need not be reached. This is a non-sequitur. If a statute’s operative term — here, “regular” — is challenged as being vague, the term must first be defined before one can face the issue of whether or not the evidence is insufficient to bring a party’s conduct within the operation of the statute.
I would not pass on the issue of whether or not Harris was providing “regular” services. Depending on the definition of “regular” and “irregular” services, a close question would be presented by the facts of this case. The Commission has failed to define the terms “regular” and “irregular” services; and, in my opinion, in the absence of such definitions more adequately informing air taxi operators and others of the requirements, the statute is void for vagueness.1
I also differ from the court’s decision pertaining to the penalty for charging an unlawful tariff. It was undisputed that Harris violated AS 02.05.050(d)(3) by charging a lower fare than Kodiak Western. Under AS 02.05.231, the Commission may levy a civil penalty upon a person who violates a provision of Chapter 5.2 Normally, a mens rea is not required for the violation of a regulatory provision such as those specified in the Alaska Air Commerce Act of 1960 (Chapter 5).3 AS 02.05.230 provides that *1206knowingly violating the Air Commerce Act is a misdemeanor. The civil penalty provision, AS 02.05.231, contains no requirement of knowledge, and proof of the violator’s state of mind normally should not be necessary to impose a civil penalty.4
Where, however, a tariff has been filed with the Commission, I agree that, normally, if the carrier does not have knowledge of the facts constituting a violation of the statute, the Commission should not penalize it for charges collected before the carrier is notified that its tariff provision is invalid. I think, however, that a question of fact was presented as to whether Harris knowingly charged a lower fare than Kodiak Western in violation of AS 02.05.050(d)(3). If he knowingly violated the statute, the Commission could impose an appropriate civil penalty. I believe that a factual issue was presented under which the Commission should have ascertained whether or not there was a knowing violation of the statutory provision. No such finding was made by the Commission. In a small community such as Dillingham, there certainly would be the basis for an inference that an air taxi operator would know the tariff of his competitor. I would remand to the Commission on this issue.
I have one further comment pertaining to the majority opinion. I agree with its statement as to the importance of air taxi service in many sectors of Alaska. I think, however, that there are countervailing interests pertaining to the maintenance of certificated carriers providing regular services. These carriers are required to service their routes at specified times regardless of whether or not they have paying loads. There would be no reason for furnishing such services if scheduled carriers are subject to unlimited competition by unscheduled air taxi operators. An incentive has to be furnished for the type of service furnished by scheduled carriers.
. Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222, 227 (1972); Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322, 328 (1926). See Stock v. State, 526 P.2d 3, 7 (Alaska 1974); Marks v. City of Anchorage, 500 P.2d 644, 646 (Alaska 1972).
. AS 02.05.231 specifies:
Civil penalties for violation. The commission may, after notice and opportunity for a hearing, levy a civil penalty of not more than $150 for each offense upon a person who violates or who procures, aids, or abets, a violation by an air carrier of a provision of this chapter, or an order, decision, rule or regulation of the commission. A levy of penalty shall be made by written order of the commission.
.R. Perkins, Criminal Law 785 (2d ed. 1969). Such offenses have been recognized in Alaska under the label of “public welfare” offenses. See Speidel v. State, 460 P.2d 77, 80 (Alaska 1969), where the court stated:
Although an act may have been objectively wrongful, the mind and will of the doer of the act may have been innocent. In such a case the person cannot be punished for a crime, unless it is one such as the “public welfare” type of offense, which we have discussed, where the penalties are relatively small and conviction does no great damage to an offender’s reputation.
. See United States v. Dotterweich, 320 U.S. 277, 64 S.Ct. 134, 88 L.Ed. 48 (1943). AS 02.05.230 provides for a penalty of $150.00. If lengthy imprisonment were involved, the requirement of criminal intent would be inferred. Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952); State v. Guest, 583 P.2d 836 (Alaska 1978).