McCOMB, J. I dissent. The statute here involved is too uncertain and indefinite to warrant the imposition of the penalty imposed by respondents on petitioners.
The rule is well stated by Mr. Justice Traynor in Perez v. Sharp, 32 Cal.2d 711 [198 P.2d 17], which held unconstitutional a statute declaring void marriages between white persons with Negroes, Mongolians, members of the Malay race, or mulattoes. He said at page 730: “To determine that a person is a Mongolian or Malayan within the meaning of the statute because of any trace of such ancestry, however slight, would be absurd. If the classification of a person of mixed ancestry depends upon a given proportion of Mongolians or Malayans among his ancestors, how can this court, without clearly invading the province of the Legislature, determine what that decisive proportion is? [Citation.] Nor can this court assume that a predominance in number of ancestors of one race makes a person a Caucasian, Mongolian, or Malayan within the meaning of the statute, for absurd results would follow from such an assumption. Thus, a person with three-sixteenths Malay ancestry might have many so-called Malay characteristics and yet be considered a white person in terms of his preponderantly white ancestry. Such a person might easily find himself in a dilemma, for if he were regarded as a white person under section 60, he would be forbidden to marry a Malay, and yet his Malay characteristics might effectively preclude his marriage to another white person. Similarly, a person having three-eighths Mongolian ancestry might legally be classed as a white person even though he possessed Mongolian characteristics. He might have little opportunity or inclination to marry any one other than a Mongolian, yet section 60 might forbid such a marriage. Moreover, if a person were of four-eighths Mongolian or Malayan ancestry and four-eighths white ancestry, a test based on predominance in number of ancestors could not be applied.
“Section 69 of the Civil Code and section 60 on which it is based are therefore too vague and uncertain to be upheld [165]as a valid regulation of the right to marry. Enforcement of the statute would place upon the officials charged with its administration and upon the courts charged with reviewing the legality of such administration the task of determining the meaning of the statute. That task could be carried out with respect to persons of mixed ancestry only on the basis of conceptions of race classification not supplied by the Legislature. ‘If no judicial certainty can be settled upon as to the meaning of a statute, the courts are not at liberty to supply one.’ [Citation.]” (Italics added.)
Applying the foregoing rule to the facts of the present case, it is impossible, as recognized by all parties, to determine from the legislative enactment whether petitioner was engaged as a “highway contract carrier” or a “common carrier.”
The record discloses that petitioner Babe Talsky has been engaged in the trucking business since he obtained a highway contract carrier permit in 1936. He was given a radial highway common carrier permit in April 1944, and in September 1956 obtained a certificate of convenience and necessity to transport certain named commodities between all points in a prescribed area of Southern California.
Petitioner Talsky operated and conducted the business as a sole proprietorship under the name of Reliable Delivery Service until the incorporation of petitioner corporation in August 1959, at which time he transferred to the corporation certain assets and liabilities of the sole proprietorship, including the two permits and certificated authority above mentioned, in exchange for all the stock of the corporation. (Petitioners will hereinafter be referred to collectively as “petitioner.”)
The present operations of petitioner are conducted with 65 trucks, 26 tractors, 38 trailers, four converter gears, and three service ears.
Petitioner’s certificated operations are conducted on both a scheduled operation basis and on an on-call basis, with operations being conducted six days a week, Monday through Saturday (the Saturday service consisting of deliveries only). The permitted operations are conducted on an on-call basis each week.
Petitioner has some 130 written contracts with shippers and/or consignees located throughout petitioner’s service area. Thirty-eight of them were entered into prior to March 4, 1958, the date on which a representative of respondent Public Utilities Commission (hereinafter referred to as “respondent [166]commission”) first inspected petitioner’s records, and the other 92 were entered into later, purportedly to confirm oral agreements in existence before that time.
A chart prepared by respondent commission showed that only 29 per cent of petitioner’s shipments during the period covered were made pursuant to one of the 38 written contracts entered into prior to March 4, 1958.
The written contracts are applicable to the non-eertifieated operations, viz., transportation movements under petitioner’s permitted authorities. Petitioner also has oral agreements with shippers and/or consignees having movements of general commodities outside the scope of petitioner’s certificated authority operations.
Petitioner’s certificated operations have been performed under authority of Public Utilities Commission Decision No. 53751 within the area therein described. Petitioner has conducted operations between points other than those set forth in the certificate under authority of the highway contract carrier permit and radial highway common carrier permit heretofore mentioned.
After an investigation begun in 1958 and hearings held in 1958 and 1959, respondent commission found that petitioner was operating as a highway common carrier between certain prescribed termini in an area not covered by the certificate of convenience and necessity, and ordered petitioner to cease and desist from operating any auto truck as a highway common carrier between such termini until a certificate of convenience and necessity authorizing such operation had been obtained. In addition, it ordered that the radial highway common carrier permit and the contract carrier permit herein-above mentioned be suspended for a period of 20 days.
Petitioner contends that the questioned operations were not those of common carriage but, rather, contract carriage made under the highway contract carrier permit.
This is the sole question necessary to be determined: Is there in California any clear formula which can he applied to determine the point at which there is evidence of a holding out to serve the public indiscriminately and the dedication necessary to constitute a carrier a common carrier?
No. A “highway carrier” is “every corporation or person . . . engaged in transportation of property for compensation or hire as a business over any public highway in this State by means of a motor vehicle. ...” (Pub. Util. Code, § 3511.) A “common carrier” is not defined in the Public [167]Utilities Code, but this court has determined the test applicable to determine what under the common law constituted a common carrier. It is an unequivocal intention to dedicate private property to a public use. (Samuelson v. Public Utilities Com., 36 Cal.2d 722, 733 [2] [227 P.2d 256].)
There has been no clear formula established in California which can be applied to determine whether the dedication necessary to isolate the common carrier is present, no method of deciding the exact point at which a private carrier becomes a public servant, and no circumstances which invariably constitute a “holding out to serve the public indiscriminately.” (Cf. Public Utilities Regulation, 30 So.Cal.L.Rev. 131 (1957).)
An attempt was made by the Public Utilities Commission to formulate a workable test in Pacific Southwest Railroad Ass’n v. Nielsen, 49 P.U.C. 216. The commission there stated that a carrier must have objectively manifested an intent to substantially restrict his business in order to avoid being classed as a common carrier.
This court found, however, without proposing any other method for determining dedication, that the “substantial restrictiveness” doctrine excludes or at least reduces the unequivocal intention to dedicate to only incidental importance and therefor abrogates the common law test. (Samuelson v. Public Utilities Com., supra.)
The law was left in an uncertain state. It appeared that contract carriage was a broader field than the commission had supposed. How broad no one could say. (Regulation of Truckers, 41 Cal.L.Rev. 63, 86 (1953).)
Since the questioned shipments were on a daily basis between “fixed termini and/or over a regular route,” they could not have been lawfully made under petitioner’s radial highway common carrier permit (Nolan v. Public Utilities Com., 41 Cal.2d 392, 397 [7] [260 P.2d 790]) and were legal only if made under petitioner’s highway contract carrier’s permit. A highway contract carrier (defined in the code by exclusion only) means “every highway carrier other than (a) a highway common carrier, (b) a radial highway common carrier, (c) a petroleum contract carrier, or (d) a petroleum irregular route carrier.” (Pub. Util. Code, § 3517.)
If a carrier for hire can show he is not a common carrier, a petroleum contract carrier, or a petroleum irregular route carrier, he is a “highway contract” carrier, although he may not have executed a single contract. The difficulty in this field [168]appears to be the determination of the point at which a radial highway common carrier’s operations between two points become so frequent that they stop being merely radial because between “fixed termini.”
In the Nolan case, supra, this court held that a carrier whose shipments between two points were daily had ceased to be “radial.” The question then arises, Would shipments between the same two points occurring four times a week, or three times a week, still be “radial”? Once the carriage ceases to be “radial,” the carrier must either obtain a contract or secure a certificate as a highway common carrier.
Petitioner correctly contends that there is a great deal of uncertainty on the part of respondent commission as to what distinguishes a “radial” from a “contract” operation. On several occasions he unsuccessfully attempted to secure a determination by respondent commission as to the lawfulness of his operations prior to March 4, 1958.
This position is fully supported by respondent commission itself, which, in an attempt to draw the Legislature’s attention to the conflicts between the Highway Carriers' Act and the Public Utilities Act, said: “Based upon years of experience in administering these two Acts, we have no hesitancy in saying that from a practical standpoint a given operation by a permitted carrier may be said to be that of a highway common carrier under the Public Utilities Act unlawfully operating without a certificate and at the same time that of a radial highway common carrier, or even a contract carrier, under the Highway Carriers’ Act. . . . Even as a practical matter, all must agree that a given operation cannot be two different things at one and the same time and be subject to two different standards of regulation, each conflicting with the other, if efficiency, reality and successful administration are to be achieved.” (Decision No. 50448, Case No. 5478, 53 P.U.C. 366, 379 (1953).)
The facts in the present case bring it within the rule that a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess as to its meaning and differ as to its application violates the first essential of due process of law. (In re Newbern, 53 Cal.2d 786, 792 [9] [350 P.2d 116] ; Katzev v. County of Los Angeles, 52 Cal.2d 360, 370 [11] [341 P.2d 310]; Wotton v. Bush, 41 Cal.2d 460, 464 [1] [261 P.2d 256].)
Hence, since the law which petitioner was found guilty of violating lacked a reasonable or definite standard, the deter[169]mination of the illegality of petitioner’s acts and the assessment of a penalty in the same proceeding deprived him of due process of law.
I would annul respondent commission’s decision.
Schauer, J., concurred.
Petitioners’ application for a rehearing was denied July 26, 1961. Schauer, J., and McComb, J., were of the opinion that the application should be granted.