I dissent.
The majority opinion in these cases sidesteps the issue of whether or not the rules of the commission are arbitrary and discriminatory by assuming facts and circumstances not justified by the record and then concludes that petitioners are complaining of a situation which in fact does not exist.
The rules of the commission must be taken as they read, and it must be presumed that the commission will and does enforce those rules in accordance with their plain terms. (Code Civ. Proc., § 1963(15).) Those rules provide that a permit will be issued to an applicant holding a permit for the previous season regardless of whether he has a reduction *376plant, or, if Tie has one, it is completed or ¡equipped. In other words, he need show only one thing to .obtain a permit, that is; that he had a permit and operated in the previous season. He does not need to have operated for the entire prior season nor any substantial part thereof. He" obtains a new permit without qualification, and, according to the plain terms of rule (G), the only penalty he suffers if his plant is not ready to operate at the opening of the season in August, is reduction in his allocation of sardines computed upon the total number of days in the season and the days he is not ready to operate. In the ease of a new applicant (one who did not hold a permit in the previous season) he must have his plant fully constructed and equipped to receive and process fish on May 15th, 2%"months before the season opens. If he does not so qualify he is refused a permit rather than merely suffering the penalty imposed on the old applicant of a per diem reduction in his share of the sardines. Thus we have two instances in which the burden imposed upon the new applicant is vastly more onerous than that imposed on the old applicant: (1) The new applicant must have his plant ready 2% months before the season opens while the old applicant need not have his plant ready until the opening of the season. (2) The new applicant gets no permit—is totally barred from operation during the season if he fails to comply. The old applicant merely suffers a per diem reduction in his share of the sardines.
Yet in the teeth of the positive requirements of the rule, statements to the contrary are made in the majority opinion. These statements go entirely outside the record. It is stated in said opinion that: “Certain obvious differences exist between the applicant who has successfully operated under a permit allowing him to engage in the reduction of sardines in the previous season and the applicant who seeks to engage in that business for the first time.” [Emphasis added.] There is no requirement in the rules that the old applicant must have successfully operated under a permit during the previous season. His permit may have been revoked during the season and he may have operated during only part of it and then unsuccessfully. He is still entitled to a permit by reason of his having merely held a permit and operated “in” the prior season. The statement is made that: Experience gained by respondent [commission] over a period of years has conclusively shown it that the applications of newcomers often have *377been, attempts to secure permits with plants more imaginary than real and that assurances on the part of bona fide new applicants that they will be able to complete their plants by the opening of the sardine season or shortly thereafter largely result in failures. Such conditions do not prevail in the case of plants which were operated in the previous season.” How can the last statement be true when it is clear that no effort is made on May 15th to find whether the old applicants have plants ? They are not required to have plants to obtain a permit. They may have sold the plants they had the previous season or they may be beyond repair. Yet having had permits for the prior season they will obtain permits for the instant season subject only to the per diem loss of their allocation of sardines if they are not ready on the first day of the season. The same criticism is applicable to the statement that “respondent deems it inimical to public interest to permit trafficking in such permits by permittees who cannot themselves make use of them and to that end has limited its permits to those who in fact have fully constructed and equipped reduction plants; ...” [Emphasis added.] In applying its rules the commission has no assurance that the old applicants have completed reduction plants and even when they do not, they still receive a permit. It is also said that: “The respondent’s practice of treating the permit as running to the plants and not to the operators guarantees that veterans [not war veterans] without plants, because they have disposed of them or razed them or they have been otherwise destroyed, will not be granted permits for the coming season.” and “We cannot assume in the absence of any allegation on the subject that any of the veteran [not war veteran] applicants did not in fact have completed plants on May 15. In the absence of an allegation to that effect we must, under the authorities cited, assume a state of facts which will make the regulation in its actual operation constitutional. ’ ’ And ‘ ‘ The answer to petitioner’s claim that under Rule B the respondent might grant the application of a veteran [not war veteran] who had no existing plant on May 15 is found in these authorities. So far as the pleadings show the supposition is purely hypothetical and under the facts pleaded that situation is not presented to us for determination.” The rules do not permit of a denial of a permit to an old applicant even though he has no plant. It is not a question of whether we can assume that old appli*378cants may not have plants on May 15th. It is not hypothetical to assume that permits will be granted to old applicants regardless of whether they have a plant. Under the rules the sole requirement is a permit for the prior year. Hence it may not be supposed that an examination will be made to determine whether they have a plant on the application day, May 15th. Moreover it is specifically alleged by petitioners (in speaking of old applicants) that their applications are granted “without any inquiry as to whether or not they had plants capable of operating, or even sites on which to erect a plant, and without any inspection of any kind or character whatsoever, and solely upon the basis of the provisions of Rule G.”
It must be plain therefore that the treatment of the old and new applicants is wholly different in the two respects above mentioned. ■ To justify that discrimination the majority advances reasons (other than those above discussed which assume matters contrary to the record) as proper bases for classification: (1) That the applicant must know in advance of the opening of the season how many persons will receive permits thus enabling him to ascertain his quota and make his season’s business commitments accordingly. That is nothing more than an argument in favor of requiring all plants to which permits are issued to be ready for operation some time before the season opens in order that there shall be some certainty in the number of plants that will operate and the bearing of that factor on the amount of the respective allocations of sardines. It deals with a matter not here in issue. Assuming that such a regulation is proper it applies to all applicants alike, whether new or old. To make real the advantage of before season certainty the old and new applicants should be treated similarly, otherwise the rule fails in its purpose. (2) It is asserted that the old applicants must have time to rehabilitate their plants after the end of the prior season and that they would not-have time to do so if they are required to have a completed plant on May 15th; that such a condition does not prevail as to new applicants; and that hence a rational basis for discrimination exists. There may be some merit in that proposition insofar as it does not require the old applicant to have his plant ready as far in advance as the new applicant. Even that is doubtful. But it furnishes no justification whatsoever for the increased penalty imposed on the new applicant. He gets no permit at all if his plant is not completed by May 15th *379whereas the old applicant merely loses a portion of his allocation if Ms plant is not ready for operation by August 1st.
It is clear that the factor that one applicant has been in business before is not a justifiable basis for imposing upon Mm less onerous regulations than those saddled upon a beginner. There is no rational or intrinsic difference between them which justifies the classification. In In re Wacholder, 1 Cal.App.2d 254 [36 P.2d 705], the ordinance required that to obtain a license to operate a florist business a bond must be given conditioned upon the applicant remaining in the business 180 days unless he had previously been in the business for 365 days. In denouncing the ordinance as discriminatory the court said; “Here is a plain discrimination between the persons engaged in a like business made dependent upon the time in which they have been so engaged. . . . Again the section referred to is violative of the fourteenth amendment to the Constitution of the United States in that it imposes upon citizens who have not been in business in the city of Sacramento for 365 days, a burden not placed upon those who are already engaged in the business and have been so engaged for the period of 180 days. . . . Nor has the city council the power to impose a penalty upon one person transacting a like business with another person simply because person number one may not have been in business for quite so long a period as person number two. Such ordinances are neither police nor revenue measures, but are simply exclusive and discriminatory and under the constitutional provisions which we have referred to cannot be sustained. ’ ’ (Pp. 258-260.) State v. Huse, 187 Wash. 75 [59 P.2d 1101], involved a statute which prevented the issuance of licenses to take salmon to persons who had not previously had licenses. It was held (p. 1105 [59 P.2d]) : “A classification, to be legal and valid, must rest on real and substantial differences bearing a natural, reasonable, and just relation to the subject-matter of the act in respect to which the classification is made. The distinctions giving rise to the classification must be germane to the purposes contemplated by the particular law and may not rest upon a mere fortuitous characteristic or quality of persons, or upon personal designation. In short, the classification cannot be an arbitrary selection. These principles have been so frequently stated and so thoroughly recognized that it is unnecessary to cite any authority in their support.
“The classification made by section 4 of the act in question *380can have no natural, reasonable, or just relation to the subject-matter of the act. If conservation be the end sought, it is not promoted by selecting a particular class of persons on an arbitrary basis and conferring special privileges on them and denying the same privileges to all others. Concededly, regulations might be prescribed which would tend to accomplish the desired result. But such regulations should not only apply to all persons equally, but should be of such nature as that all persons would at least have an equal chance to conform thereto. The provisions of the present act draw a line and erect a barrier which prevent all persons, except a chosen few, from ever crossing them, or from ever qualifying themselves for the privilege within the dispensation of the state. The selection rests upon mere accident or circumstance, and not upon conditions effecting a natural line of cleavage. We are of the opinion, and hold, that section 4 of the act, exclusive of the proviso, is unconstitutional and void.”
Rule B is clearly not a conservation measure, as the commission had previously fixed the total quantity of pilchard sardines which could be taken during the 1946-1947 season at 395,000 tons, and it is obvious that the number of permits granted would not affect the total take permitted.
In my opinion there is no reasonable or rational basis for the classification provided for in rule B and that such classification is so arbitrary, discriminatory and unfair as to render said rule void.
I would issue the peremptory writs of mandate prayed for by petitioners.
Schauer, J., concurred.