(dissenting).
I dissent. I think that the Commission made a mistake of law when it granted a permit to the applicant as a “contract motor carrier of passengers” and I believe that this court should correct such mistake. I am seriously concerned with the effect of a decision of this court approving an order of the commission which classifies an operation such as that which is being carried on by the applicant herein as a contract carrier operation. The fact that the applicant has contracts with third persons (the airlines) which require it to have certain types of conveyances available at designated times to take care of passengers of the airlines and that it agrees that it will not transport other persons than plane passengers and employees of the airlines, is altogether insufficient to justify classification of it as a contract carrier operation. The applicant may be limiting its services to a limited segment of the public, but it is soliciting patronage from and is serving a segment of the public and is collecting from a segment of the public for the services rendered. According to my understanding, a contract carrier is one who makes individual contracts with a limited number of persons or firms, for a consideration to be paid by the contracting party or parties, to haul freight for them or to haul passengers who are employees or members or guests of the contracting party or parties. The catch-all definition of “contract motor carrier of passengers” in Sec. 54-6-1, U.C.A.1953 must be considered in connection with the definition of “common motor carrier of passengers” given in that section and in Sec. 54-2-1(14). It must also be considered in the light of established concepts of the law which classify carriers into two classes.
“The authorities recognize two classes of carriers, namely, private carriers and common carriers; all persons who undertake for hire, to carry the goods of another, belong to one or the other of these classes, the class to which a particular carrier is to be assigned depending on the nature of the business, the character in which it holds itself out to the public, the terms of the contract, and its relations generally with the parties with whom it deals and the public.” 13 C.J.S. Carriers p. 25, Sec. 1.
“The authorities recognize two classes of carriers, viz. private carriers and common carriers. All persons who undertake for hire to carry the goods of another, belong to one or the other of these classes. The former, like ordinary bailees for hire, are liable only for the injury or loss of the goods intrusted to them when it results from the failure of themselves or their servants to exercise ordinary care. The latter are liable as insurers for all injury or loss not resulting from *382the act of God or the public enemy. The former are not bound to carry for any reason unless they enter into a special agreement to do so. The latter are bound to carry for all who offer such goods as they are accustomed to carry and tender reasonable compensation for them; and if they refuse to perform their obligation in this respect they are liable to respond in damages. Private carriers are such as carry for hire but do not come within the definition of a common carrier.” 4 R.C.L. 549, Sec. 8. Cited with approval in People v. Duntley, 217 Cal. 150, 17 P.2d 715, 720.
“To constitute a carrier a common carrier of goods, it is not essential that it carry all kinds of property; if it holds itself out to the public as engaged in the business of carrying only a particular kind of property, it is a common carrier of such property only, and is under no duty to carry other kinds.” 13 C.J.S. Carriers § 3(2), p. 30.
The Nelson case which is cited in the opinion is far different from this case. There Nelson was employed by a resort company and paid by it to transport its guests to and from the resort. Here the applicant solicits patronage from plane passengers and collects fares from such passengers. The fact that it has incidental contracts with the airlines to comply with certain requirements which they desire for the comfort and convenience of their plane passengers does not make the applicant their employee or agent. This is expressly negatived in the contracts. The applicant deals directly with its passengers and collects its compensation from them for the service rendered. It holds itself out as ready and willing to transport any and all plane passengers. The operation is definitely competitive with the operators of taxicabs who are among the plaintiffs herein. They therefore have a standing before the court to protest.
The decision of the commission violates a fundamental concept of the law relating to common carriers as distinguished from contract carriers. If allowed to stand it will establish a precedent which will have far-reaching consequences. It will leave no ascertainable line of demarcation between common carriers and contract carriers. That will invite conflict and controversy for the commission and for carriers. It will result in confusion as to the rights of passengers transported in such an operation and as to the liabilities of operators. It should be remembered that as between patron and carrier the duties and liabilities of a common carrier are in some important respects different from that of a private or contract carrier. Also the powers of the commission over a common carrier are different from the powers over a contract carrier. It is my belief that the statute au*383thorizing issuance of permits to contract carriers was intended to apply only to operators who contract by individual contracts with a limited number of persons or firms for a consideration to be paid by them and not to an operator who proposes to solicit business generally from even a minor segment of the public for fares or compensation to be paid by the members of the public so solicited. A truckman may make individual contracts with a limited number of persons to haul goods for them without being classed as a common carrier. Likewise an operator of buses may contract with an employer of workmen to transport such workmen for a consideration to be paid by the employer, and not become a common carrier. But if he decides to solicit the business of furnishing transportation to a large number of workmen, who are now being transported by common carriers, he should not be classified as a private or contract carrier merely by reason of the fact that he makes a contract with the employer of the workmen that he will have buses available at designated times and places for the transportation of such workmen for fares to be paid by them. If he proposes to engage in such business in competition with common carriers he should be required to obtain a common carrier permit. Likewise where an operator engages in a transportation business which is clearly in competition with taxicabs duly licensed to render such services he should comply with the same requirements as the taxicabs and obtain a similar license or permit. Otherwise there will be unjust discrimination. If the commission grants, a contract carrier permit to such an applicant and thereby in effect gives sanction to the operation, then upon complaint of a common carrier or a licensed taxicab operator which suffers from the competition, the court should grant relief.
It is not an answer to plaintiffs’ protest herein to say that the commission found as a fact that the present transportation facilities to the airport were not adequate. What will the commission say if an applicant makes application for a contract carrier permit to operate buses between a hotel in Salt Lake and a hotel in Ogden?' Let it be assumed that the commission finds that present transportation facilities are not adequate. Could it then grant a contract carrier permit to the applicant and thereby authorize him to enter into active competition with existing common carriers merely because he had a contract with the hotels that he would operate only between those termini and would transport only white persons or only colored persons or only male persons or only guests of the hotels? Or will an operator of trucks be eligible to obtain a permit as a contract carrier, and thereby compete with common carriers, if he contracts with a third party that he will haul only certain classes of freight or, at certain hours-or only between certain desig*384nated points? I believe that the answer to these questions should obviously be “no.” The United States Supreme Court has held that a service which very closely resembles the service being rendered by the applicant in this case was a public service and constituted the operator a public utility. In Terminal Taxicab Company Inc. v. Kutz, 241 U.S. 252, 36 S.Ct. 583, 584, 60 L.Ed. 984, Ann 1916D, 765, that court said:
“The next item of the plaintiff’s business, constituting about a quarter, is under contracts with hotels by which it agrees to furnish enough taxicabs and automobiles within certain hours reasonably to meet the needs of the hotel, receiving the exclusive right to solicit in and about the hotel, but limiting its service to guests of the hotel. We do not perceive that this limitation removes the public character of the service, or takes it out of the definition in the act. No carrier serves all the public. His customers are limited by place, requirements, ability to pay, and other facts. But the public generally is free to go to hotels if it can afford to, as it is free to travel by rail, and through the hotel door to call on the plaintiff for a taxicab. We should hesitate to believe that either its contract or its public duty allowed it arbitrarily to refuse to carry a guest upon demand. We certainly may assume that in its own interest it does not attempt to do so. The service affects so considerable a fraction of the public that it is public in the same sense in which any other may be called so. German Alliance Ins. Co. v. Lewis, 233 U.S. 389, 34 S.Ct. 612, 58 L.Ed. 1011, L.R.A.1915C, 1189. The Public does not mean everybody all the time.”
I think that the order of the commission herein should be set aside and that it should be directed to recall the permit which has been issued and deny the application of the defendant company.