People v. King

[718]

YORK, J.

Defendant was charged with violation of chapter 638, Statutes of 1931 (Deering’s Gen. Laws, Act 5130b), in that he and his co-defendants on May 2, 1933, did wilfully, unlawfully and feloniously engage in the business and act in the capacity of motor carrier transportation agents without first obtaining a license therefor. The case was heard by the court sitting without a jury, and resulted in the conviction of defendant Bentson. He appeals to this court from the judgment of conviction and from the order denying his motion for a new trial.

Upon this appeal appellant contends that there is no evidence that Victor L: Bentson was an officer of the Safeway Travel Club, Ltd., or owned or had any interest in the business; that the Safeway Travel Club, Ltd., was not a common carrier, or a public utility, but was merely an incidental carrier, and, therefore, the railroad commission had no jurisdiction over its affairs. He also contends that there is no evidence that said Victor L. Bentson, for compensation, sold, offered for sale or held himself out as one who sold or offered. for' sale any transportation; and that by reason of the repeal of chapter 638 of Statutes of 1931 by chapter 390, Statutes of 1933, this court will be obliged to dismiss the proceeding against him and order his release.

That portion of section 1, chapter 638, Statutes of 1931, under which conviction herein was had, provides as follows: “A motor carrier transportation agent within the meaning of this act is a person . . . who, for compensation, sells or offers for sale, or negotiates for, and/or holds himself out as one who sells, furnishes or provides as principal or agent, transportation for persons over the public highways of this state, when such transportation is furnished, or is offered or proposed to be furnished by other than a carrier holding a valid certificate of public convenience and necessity issued by the railroad commission of the State of California permitting of such carrier transporting persons over such highways or any of them and between the points for which transportation is sold, or, to the border line of the State of California when one of such points is without the state. ...”

Section 2 of the act makes it unlawful for any person “to engage in the business, or act in the capacity of a motor