PBBSTON, J., Concurring.
I concur in the judgment, but prefer to base my conclusion upon the following grounds:
This proceeding requires the court to declare the legislative mind when enacting on the fifteenth day of June, 1923 (Stats. 1923, p. 834), subdivision d of section 50 of the Public Utilities Act (Deering’s Gen. Laws, part two, p. 2863, title 464), which reads in part: “No corporation or person, their lessees, trustee, receivers or trustees appointed by any court whosoever shall hereafter operate or cause to be operated, any vessel between points exclusively on the inland waters of this state, without first having obtained from the railroad commission a certificate declaring that present or future public convenience and necessity require or will require such operation . . . together with the following exception, or proviso:
. .
but no such certificate shall be required of any corporation or person which is actually operating vessels in good faith, at the time this act becomes effective, between points exclusively on the inland waters of this state under tariffs and schedules of such corporations or person lawfully on file with the railroad commission.” The effective date of this amendment was August 16, 1923.
Our particular task lies in declaring the scope and meaning of said proviso as applied to the following undisputed facts: The Southern Pacific Company, a Kentucky corporation, on the effective date of said amendment, was operating across San Francisco Bay, inland waters of the state of California, a motor vehicular ferry service between San Francisco and a point at the foot of Broadway in Oakland, situated upon the north bank of a stream commonly called San Antonio estuary, being navigable waters leading into San Francisco Bay. This ferry was known as the Oakland Creek Boute ferry. It was also operating at the
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same time a line of vessels between a point on the San Francisco shore of said bay and a point on the opposite shore known as Alameda mole, said mole forming in fact the southern bank of said San Antonio estuary, the center line of which said estuary marks the dividing line between the municipalities of Oakland and Alameda. This Alameda line of vessels, however, was not used as a general ferry, but was used exclusively as an extension of the suburban railway system of said corporation. Said Southern Pacific Company on said date had a set of one-way and commutation passenger tariffs on file with the Railroad Commission of the state, but it had no commodity tariffs on file for service between said points. It carried no passengers who were not to use or who had not used its railway lines. Its service at that point connected with no highways nor was there' any highway at all leading from the Alameda mole to the mainland. It possessed no local ferry franchises either from the city and county of San Francisco or from the county of Alameda nor from any municipality for such operation. The public who had vehicles or animals or baggage to transport across said bay neither had the right to demand ferriage nor to have access to said vessels. As above stated, said company carried passengers for its interurban service only. It bases no claim to operate upon any franchise conferred by statute, but bases its claim to operate solely upon its charter rights as a railway corporation and such rights as it may have from usage or prescription.
On July 15, 1926, said Southern Pacific Company proceeded to file an amendment to its commodity tariffs theretofore applicable only to the said Oakland Creek ferry so as to include vehicular service to Alameda mole and thereafter and on or about August 15, 1926, prepared to operate a motor vehicular ferry line from San Francisco across said bay to Alameda mole. Such action on its part was stayed by injunction proceedings until on or about September 3, 1926, when it began to operate said ferry service and presumably now continues to operate it. Immediately thereafter the Railroad Commission of the state of California on its own initiative began an investigation pursuant to said section 50 of the Public Utilities Act,
supra.
Petitioner, The Golden Gate Ferry Company, a corporation, was allowed to intervene in said action. The basis of the investigation was
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the failure of the Southern Pacific Company to seek or to obtain from the Railroad. Commission of the state of California a certificate declaring that present or future public convenience required such vehicular service to be inaugurated and this failure furnishes the immediate grounds for the controversy before us.
The Railroad • Commission, however, after investigation, decided that the action of the Southern Pacific Company in establishing this service between San Francisco and Alameda mole was legal and regular and within the said exemption and gave and made its order dispensing with the requirement that such compan)'- should obtain said certificate by dismissing the proceeding. The intervener, having secured a franchise from the city and county of San Francisco for a similar service, instituted this proceeding by a petition for
certiorari
and thereby attacks the validity of said order of the Railroad Commission and seeks to have the said order-annulled as being in excess of the jurisdiction of the Commission; and to that end to have this court declare that under the undisputed facts shown by the record the Southern Pacific Company is required by law to obtain such certificate before it can validly exercise the right to conduct such vehicular ferry service.
The task is not free from difficulty. The proviso in question is far from being clear and definite because of the general terms employed. At the outset it must be observed that no good reason appears for concluding that the legislature intended to unduly expand the scope of said exemption. The evident purpose was to place within the jurisdiction of the Railroad Commission complete supervision over this type of public utility without disturbing privileges in the nature of vested rights theretofore held by others.
This court in
Motor Transit Co.
v.
Railroad
Commission, 189 Cal. 573, 580 and 585 [209 Pac. 586, 589], had before it the construction of legislation enacted in 1917 (Stats. 1917, p. 330), as amended in 1919 (Stats. 1919, p. 457), regulating transportation by automobile or autostage and, in speaking of the purpose of it, said: “It is in the interest of the public that the service rendered by public utilities be adequate ánd of good quality and the rates as low as possible commensurate with good service and a reasonable return to the owner. The certificate of public convenience and ne
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cessity is the means whereby protection is given to the utility rendering adequate service at a reasonable rate against ruinous competition. The person or corporation obtaining a certificate must operate at the times and in the manner prescribed by such certificate, thus furnishing uniform and efficient service 'to the public. If anyone else would be at liberty to operate without such a certificate he might operate at his own pleasure and only under favorable conditions, thus making it impossible for the holder of a certificate to successfully carry on his business. It is the public interest in efficient service which is being safeguarded by the requirement of a certificate.
(Oro Electric Corp.
v.
Railroad Commission,
169 Cal. 466, 475 [147 Pac.
118]; Public Utilities
v.
Garviloch,
54 Utah, 406 [181 Pac. 272, P. U. R. 1919E, p. 182].) Such requirement is part of the regulation of transportation companies in the interest of the public. . . .
“The primary purpose of the legislature in enacting this statute was not to confer a franchise upon the operating companies but to give into the power of the commission for regulation and control in the interest of the public the operation of auto stages for transportation. It did this by requiring every auto transportation company to secure from the commission a certificate of public convenience and necessity. It relieved from the necessity of obtaining such certificate the companies actually operating in good faith at that time. The purpose in so exempting such companies was to refrain from interfering with the operations as then carried on—in other words, to confirm in these operators the rights they were at that time exercising. But such exemption was, obviously, only to the extent of the operations then conducted. To hold that by the operation of a through line on that date petitioners were given a franchise to operate to any extent that they, in their judgment, might see fit, limited solely by the restriction that the operations must be between the same termini and over the same route, would be to materially decrease the power of the commission over these lines and thus overlook the primary purpose of the enactment, which was to give to the commission, in the interest of the public, the fullest power possible to regulate the operation of auto stage companies.”
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Passing now to a consideration of the. language of the exemption before us, it is to be noted that the legislation concerning automobile transportation exemption above noted was provided by language as follows, to wit: “. . . but no such certificate shall be required of any transportation company as to the fixed termini between which, or the route over which, it is actually operating in good faith at the time this act becomes effective.” (Stats. 1919, p. 457.)
In the year 1927 (Stats. 1927, p. 240) the entire section (sec. 50) here under consideration was amended, subdivision d thereof being changed to read in part as follows: “No corporation or person, their lessees, trustees, receivers or trustees appointed by any court whatsoever, shall hereafter begin to operate or cause to be operated any vessel for the transportation of persons or property, for compensation, between points exclusively on the inland waters of this state, without first having obtained from the railroad commission a certificate, declaring that public convenience and necessity require such operation,
but no such certificate shall be required as to termini betioeen which any such corporation or person is actually operating vessels in good faith at the time this act becomes effective, under tariffs and schedules of such corporations or persons, lawfully on file with the railroad commission
...” (Italics ours.)
A careful consideration of these three enactments of the legislature convinces us that in principle they are the same. Indeed, we are unable to discover any difference whatever in meaning between the provision of section 50 as enacted in 1923 and the paragraph as re-enacted in 1927. To our mind both said provisions should receive a construction analogous to that received by the'automobile transportation section construed in
Motor Transit Co.
v.
Railroad Commission, supra,
for it is evident from the context of the proviso that the exemption granted is not personal.
It is equally clear that the word “vessel” confers no special right on any particular craft as such, but that said word is to receive the same construction found in the introductory provision of the Public Utilities Act, which is as follows (Deering’s Gen. Laws, part two, p. 2688, subd. y of sec. 2, act 6386) : “The term ‘vessel,’ when used in this act, includes every species of water craft, by whatsoever power operated, which is owned, controlled, operated or
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managed for public use in the transportation of persons or property. ...”
The manifest meaning, then, of said proviso, as compelled by the context of the enactment, is that the legislature intended to exempt from the requirement of said certificate the service or operation evidenced by water craft engaged in the independent public use of transporting persons or property; in other words, commence upon the inland waters as an independent enterprise. The words “between points exclusively on the inland waters of this state” mean definite fixed points at which vessels in service actually call.
Petitioner contends, as we understand it, that the word “vessel” used in said proviso is equivalent to the use of the word “ferry.” We think the word has a broader significance, and although it includes a ferry, it also includes water craft service not properly covered by the word “ferry.” For taxation purposes a ferry-boat has been defined as follows: “A ferry-boat is a vessel traversing across any of the waters of the state, between two constant points, regularly employed for the transfer of passengers and freight, authorized by law so to do . . . ” (Pol. Code, sec. 3643.) It has been held in other jurisdictions, however, that intermediate points may be visited by the vessel and it will still retain its characteristics as a ferry-boat
(New York
v.
N. J. etc. Co.,
106 N. Y. 28, 31 [12 N. E. 435]).
In
Vallejo Ferry Co.
v.
Solano Aquatic Club,
165 Cal. 255, 271 [Ann. Cas. 1914C, 1197, 131 Pac. 864], a ferry has been defined and, citing said definition, the characteristics are again set forth as follows in
Menzel Estate Co.
v.
City of Redding,
178 Cal. 475, 479 [174 Pac. 48, 49] : “Undoubtedly a ferry franchise has been so called, as, for example, in the opinion of this court, prepared by Mr. Justice Henshaw, in
Vallejo Ferry Co.
v.
Solano Aquatic Club,
165 Cal. 255, where, at page 271 (Ann. Cas. 1914C, 1197, 131 Pac. 864, 871), the following language is used: ‘A ferry franchise emanating from the supreme power of the state or its authorized mandatories, is a grant to a named person empowering him to continue an interrupted land highway over the interrupting waters. ’ In 19 Cyc. 493, cited by appellants, a ferry is called ‘a public highway, ’ but with an important limitation. The definition there given (beginning on page 492), so far as of value to this discussion, is as follows: ‘A
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ferry is a liberty to have a boat upon a river for the transportation of men, horses, and carriages with their contents, for a reasonable toll. The term is also used to designate the place where such liberty is exercised.
In the latter sense
a ferry is a public highway, being a continuation of the highway with which it connects.’ ” (See 25 C. J. 1048.)
An early definition of ferriage was given in
People
v.
San Francisco & A. R. R. Co.,
35 Cal. 606, 619, as follows: “A ferry, in its ordinary sense, is but a substitute for a bridge where a bridge is impracticable, and its end and use is the same. Like a toll-bridge, it is a franchise created for the use and convenience of the traveling public, as a link in the highway system of the country, and by no means includes the transportation of goods, wares, and merchandise by themselves, or, in other words, the carrying trade of modern commerce.”
From these definitions of the words “ferry,” “ferry-boat” and “ferriage,” it is evident that the word “vessel” covers a much broader field and should be held to include commerce on the inland waters of the state.
We are also convinced that the intention of this proviso was to exempt commerce upon the inland waters of the state which was being carried on between fixed points and which commerce was such as could be made the subject of franchises granted by a county or municipality within the state. In granting franchises, for example (Pol. Code, sec. 2892), the applicant is required to show “the landings of the proposed ferry” and “if the applicant is not the owner of the land, that notice of the application has been served on the owner thereof at least ten days prior to the application.” Indeed, other provisions of said section 50 indicate this fact by the use of the following words of subdivision e: “The legislature hereby declares that the provisions of this section are being enacted under the state's reserved power over public utilities or corporations, or both, as the case may be, for the purpose of acting on the right of the grantee of a public utility franchise granted by a county, city and county or incorporated city or town, to exercise rights thereunder, and not for the purpose "of acting on the right of any city and county or incorporated city or town to grant any such franchise. The legislature hereby declares that the provisions of this section shall be and remain in full force
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and effect concurrently with the right of any city and county or incorporated city or town to grant franchises for public utilities upon the terms and conditions and in the manner prescribed by law.”
That fixed points are contemplated is also evidenced by use of these words in subdivision d: “Every applicant for a certificate shall file in the office of the commission, application and evidence in such form as shall be required by the commission, and the commission shall have power, after hearing, to issue said certificate, as prayed for, or to refuse to issue the same, or to issue it for operation between certain points only.” Of course, this does not mean that minor changes may not take place in the location of the termini.
These deductions make it evident that the Southern Pacific Company may not by filing an amendment to its Oakland Creek route tariffs be authorized to conduct a vehicular ferry to Alameda mole. Especially is this true as the company does not propose to discontinue the Oakland Creek service. The manifest intention of the legislature was to keep the control in the Railroad Commission over this class of public service and to allow such a use as is here proposed without a certificate of public convenience and necessity would be to materially impair the very object of the legislation.
The above observation also answers the contention that prior to the year 1894 the Southern Pacific Company did in fact operate a vehicular ferry between San Francisco and Alameda mole and for that reason it should now be allowed to resume such operation without a certificate. In that year the company abandoned the road leading to said mole and from that date until this controversy arose no means existed whereby vehicles could reach or leave said mole. “The idea of a ferry presupposes a road traveled by the public which is bisected by the watercourse, the ferry serving in a different way the same purpose that is served by a bridge. As the bridge is made for the road, not the road for the bridge, so is the ferry made for the road, not the road for the ferry; the ferry is the incident, the road is the principal.”
(State ex rel.
v.
Wiethaupt,
231 Mo. 449, 465 [133 S. W. 329].) Thirty-two years of disuse under these facts must be held to be an abandonment of any such prior right
(Atchison T.
[322]
& S. F. R. Co.
v.
Railroad Com.,
173 Cal. 577 [160 Pac. 828]).
For the same reason the claim of the Southern Pacific Company is untenable that by consolidation during the period between 1885 and 1887 of three groups of railroad companies operating in the east bay region, it gained the right to segregate and co-ordinate its passenger, vehicular, freight, and other service by transferring the one from one ferry point to another
ad libitum.
To hold that the taking from the Alameda mole in 1894 of the vehicular service then existing and handling it through the creek route ferry was merely an act of efficiency and that such service may at any time be restored when in the judgment of the company it would be expedient to do so, would be in a great measure to consent to a monopoly of San Francisco Bay. Bearing in mind that the Southern Pacific Company claims only to be acting under railroad franchises and such other rights as may belong to it by reason of usage or prescription, it is evident that it may not change a local ferry service at will, for such service is a proper subject for regulation and control and such a concession to the Southern Pacific Company would be in a large measure to abdicate in its favor the franchise granting power as well as the right of the Railroad Commission to exercise control over utilities of this type.
This leaves to be answered but one other query: May the Southern Pacific Company engraft upon the Alameda local passenger train service this vehicular ferry operation? The question is far deeper than the mere right to add a commodity to an existing tariff. For the purposes of this ease, this right as a general rule may be conceded. In fairness to the Southern Pacific Company it has but faintly asserted this claim, but respondent Railroad Commission places great stress upon it. The Southern Pacific Company did not attempt to amend the Alameda mole passenger tariffs. It attempted to amend the creek route vehicular tariff and attempted to split the vehicular service between the creek route and the Alameda mole route. It even contends that it owes no duty to submit to the jurisdiction of the Railroad Commission as to the pre-existing Alameda boat service, claiming to do so would be the impairment of a contract evidenced by its railroad charter- rights and cites in support
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of this contention the recent case of
Postal Tel. etc. Co.
v.
Railroad Commission,
200 Cal. 463 [254 Pac. 258].
The company also has in mind, no doubt, the holding of this court in the case of
Lake Tahoe etc. Co.
v.
Roberts,
168 Cal. 551 [Ann. Cas. 1916E, 1196, 143 Pac. 786], that a steamboat in partial use of a railroad company for railroad purposes is not “any part thereof’’ for taxation purposes. In other words, if vehicular service should be confined in the same vessel with the Alameda passenger service, the boat might lose its status as a part of the operative property of the railroad company. This furnishes a reason for the act of the company in putting in a new line of boats to Alameda mole and not mixing its railroad and vehicular services.
If it be borne in mind that the Southern Pacific Company is seeking to engraft upon its railroad service, controlled by a foreign charter and over which the Railroad Commission has but limited control, a service that can be lawfully exercised only under local franchise grants, the intention of the legislature is easily discerned. The general terms employed in the statute must give way for the operation of the legislative intent
(People
v.
Ventura Refining Co., ante,
p. 286 [268 Pac. 347]). A local ferry operation is in no proper sense a railway operation as it may and usually does exist independent- of it. The carriage by water to bridge the gap between the interrupted termini is but an incident to the railway transportation, a projection of its road over intervening waters. Such ferriage is merged into the railway transportation and is in no proper sense an entity or process resting upon its own independent foundation as is the ease in commerce upon the inland waters, whether by ferry or other craft. This was the holding of this court in the case of
Southern Pac. Co.
v.
Richardson,
181 Cal. 280 [184 Pac. 3], respecting the creek route ferry itself.
Indeed, in
Wheeler
v.
S. F. & A. R. Co.,
31 Cal. 46, 64 [89 Am. Dec. 147], speaking of this identical subject, Justice Sawyer said: “It is one thing to build and own a line of steamers to some foreign country, or some distant port, carrying on a wholly distinct and independent business entirely foreign to the objects of a railroad corporation, which might just as well, and a great deal better, be transacted by some other company organized for the
purpose;
and quite another, to own and control a steamboat for crossing
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rivers and bays which lay in the line of the road, and the use of which is convenient, proper and necessary to a successful accomplishment of the objects for which the road is built and operated.” This statement would be equally true if it had inserted therein the words “port” or “or between local ports or points.” See, also,
Wheeler
v.
S. F. & A. R. Co., supra.
This distinction between these two classes of service has been recognized many times in other jurisdictions
(The Maverick,
16 Fed. Cas. No. 9316, p. 1186, 1 Sprague, 23;
Fitch
v.
New Haven etc. R. R. Co.,
30 Conn. 38;
St. Clair Co.
v.
Interstate Transfer Co.,
192 U. S. 454, 467 [48 L. Ed. 518, 24 Sup. Ct. Rep. 300, see, also, Rose’s U. S. Notes]).
It should be noted in passing that the legislature in 1917 (Stats. 1917, p. 429) struck from section 3643 of the Political Code the following words: “ . . . and also any boat employed as a part of the system of a railroad for the transfer of passengers and freight, plying at regular and stated periods between two points” (Stats. 1885, p. 93), thus showing that for purposes of taxation at least the statute has made the very distinction suggested in the cause before us.
We are thus irresistibly led to the conclusion that the boat service existing between San Francisco and Alameda in the year 1923 was not a service by “vessels” operating between points exclusively on the inland waters of this state within the meaning of said proviso.
This conclusion, of course, does not impair the authority of the Railroad Commission over railways and boats that are a part of them derived from other sources. The said amendment of 1923 is simply inapplicable to railway service and thereby inapplicable to boats or vessels used exclusively therein. We are thus resting our conclusion upon uncontestable grounds and are not required to declare a distinction between passenger and commodity transportation when admittedly carried by vessels subject to the act.
The order of the Railroad Commission dismissing the proceeding instituted to determine the status of said operation is in excess of the jurisdiction of said Commission and should be annulled.
Rehearing denied.
All the Justices concurred.