I dissent. I think the statute reaches operations here involved. As thus construed, the statute would not operate to put any person out of business, as suggested by my associates. If the Board of Railroad Commissioners would not issue a certificate of public convenience and necessity to those operating as the defendants do, then, instead of going out of business, they would simply be obliged to make use of the available carriers already in the field and holding a certificate. The suggestion that farmers, ranchers and others would be required to obtain a certificate is untenable since they merely make occasional trips which are exempted by the Act, subdivision (h), section 3847.1, Revised Codes. I see nothing in the suggestion that the title of the Act is misleading.
In disagreeing with my associates I am accepting as law the majority opinion in the case of Barney v. Board of R.R.Commrs., 93 Mont. 115, 17 P.2d 82. By that opinion the law respecting the use of the highways for gain was upheld as reasonably calculated to guard against the abusive use of the roads and to promote the safety of the public. As the law is now construed by my associates, it is unjustly discriminatory *Page 453 as I pointed out in my dissenting opinion in the Barney Case. Ownership of the property carried for gain cannot be made the basis of different treatment of different carriers. (Weaver v.Public Service Com., 40 Wyo. 462, 278 P. 542, 548.) As now construed, a person may engage in the regular business of carrying his own property for remuneration without being obliged to pay the fees which are exacted from one carrying the same property in the same manner and over the same highways when it belongs to another. The damage to the highways and the danger to the public are as great in the one case as in the other. To free the Act from being unjustly discriminatory it must be construed as requiring a license and the payment of the fees for carrying property belonging to the carrier as well as when it belongs to another, when done for remuneration as here.
Rehearing denied March 19, 1941.