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"The right of a citizen to travel upon the highway and transport his property thereon, in the ordinary course of life and business, differs radically and obviously from that of one who makes the highway his place of business and uses it for private gain, in the running of a stage coach or omnibus. The former is the usual and ordinary right of a citizen, a common right, a right common to all, while the latter is special, unusual and extraordinary. As to the former, the extent of legislative power is that of regulation; but, as to the latter, its power is broader, the right may be wholly denied, or it may be permitted to some and denied to others, because of its extraordinary nature. This distinction, elementary and fundamental in character, is recognized by all the authorities. 'A distinction must be made between the general use, which all of the public are permitted to make of the street for ordinary purposes, and the special and peculiar use, which is made by classes of persons in the pursuit of their occupation or business, such as hackmen, drivers of express wagons, omnibuses,' etc., Tiedeman on Municipal Corporations, sec. 229. 'The rule must be considered settled that no person can acquire the right to make a special or exceptional use of a public highway, not common to all citizens of the state, except by grant from the sovereign power.' Jersey City Gas Co. v. Dwight, 29 N.J. Eq. 242; McQuillen, Municipal Corporations, 1620."
11 This principle has been applied many times. Liberty Highway Co. v. Michigan Public Utilities Commission, 294 F. 703, and many other cases there cited, including Ex parte ****ey, supra.
12 In Kane v. New Jersey, 242 U.S. 160, 37 S. Ct. 30, 61 L. Ed. 222, we find this language:
"The power of a state to regulate the use of motor vehicles on its highways has been recently considered by this court and broadly sustained. It extends to nonresidents as well as to residents. It includes the right to exact reasonable compensation for special facilities afforded as well as reasonable provisions to insure safety."
13 While in that case neither the right of private use nor the principle of public convenience and necessity as the measure of such use was present, yet, under the reasoning of the court, there would seem to be no good ground, where private use would tend to be inimical to the public good as would be inevitable without regulation, to deny the power of the state to measure the extent of that use by the convenience of the public and the necessity for transportation facilities. In the law involved, the state in its sovereign capacity was dealing with a subject over which it appears to us, in every view of the case, it had control. In the construction and maintenance of the highways now available to the traveling public the state has expended millions of dollars, and is still continuing to cobweb the state with hard surfaced highways for the accommodation and convenience of her citizens and all those who find it convenient to pass her way. In the enactment of this legislation no rights of any of her citizens have been contravened, for the law does not restrict the common right of the citizen to use the public highways for purposes of travel, and it does not comport with reason to say that the use of them for private gain may be exercised alike by all as it is certain that such a situation will never arise. Our view of the right of the state to enact this legislation and of the relation of the citizen thereto is best expressed by the Supreme Court of the United States in Davis v. Commonwealth of Mass., 167 U.S. 43, 17 S. Ct. 731, 42 L. Ed. 71, wherein was involved the right of the citizen to the undisturbed use of Boston Commons, when the court said, that:
"The Fourteenth Amendment to the Constitution of the United States does not destroy the power of the states to enact police regulations as to the subjects within their control (Barbier v. Connolly, 113 U.S. 27, 31, 5 S. Ct. 357, 28 L. Ed. 923; Railway Co. v. Beckwith, 129 U.S. 26, 29, 9 S. Ct. 207, 32 L. Ed. 585; Giozza v. Tiernan, 148 U.S. 657, 13 S. Ct. 721, 37 L. Ed. 599; Jones v. Brim, 165 U.S. 180, 17 S. Ct. 282, 41 L. Ed. 677), and does not have the effect of creating a particular and personal right in the citizen to use public property in defiance of the constitution and laws of the state."
14 We therefore regard the case of Ex parte Tindall as conclusive upon the propositions here involved, unless, as defendants contend, that by virtue of their being private motor carriers and having never held themselves out to the public as common carriers, the case of Frost v. Railroad Commission, 271 U.S. 583, 46 S. Ct. 605, 70 L. Ed. 1101, is controlling. That case involved the constitutionality of the law of the state of California, similar in many of its provisions to chapter 113. The state case is reported in 197 Cal. 230, 240 P. 26. Briefly, the facts in that case were that Frost and Frost Trucking Company had a single contract to transport citrus commodities for the Redland Orange Growers' Association from Redlands to Los Angeles. The Railroad Commission of California, corresponding generally in duties to that of our State Corporation Commission, was charged as here with the administration of the law there involved. Complaint was made before it that the transporting company was operating without a certificate of public convenience and necessity, whereupon it was cited to show cause why an order should not be issued requiring it to desist in its operations in violation of law. The law classified motor carriers as common carriers, subject to regulation as such. The company contended, as here, that it was engaged in a private enterprise, and was without the purview of the statute, and that if it was held to be within the provisions of the law, then the law, as to it, was invalid as in contravention of the 14th Amendment to the federal Constitution and like provisions of the state Constitution. Upon hearing, the commission denied these contentions and rendered judgment accordingly.
15 The company appealed to the state Supreme Court, and there renewed its contentions. The state court sustained the Commission and declared the act to be constitutional. The company, by appropriate proceeding, brought the case to the Supreme Court of the United States for review. In the state court it was the theory that the law was not in fact a regulation of the use of the highways, but a regulation of the business of transportation companies, it being said that the,
"Auto Stage and Truck Transportation Act regulating transportation companies, including private carriers, is not in fact a regulation of the use of the highways, nor does it take private property for public use without compensation in violation of Const. Cal. art. 1, paragraph 13, and Const. U.S. Amend. 14, nor does it violate the due process clause; but what the act does, in effect, is to make a conditional offer of a special privilege. "
16 The national court, in passing upon the validity of the law, held that this view and construction of the act by the state court was binding upon it, and thus the question of the regulation of the use of public highways for private gain was not squarely presented to the high court. The effect of the state's construction of the law was, that a private motor carrier operating under a single contract was converted into a common carrier by legislative fiat, and this the national court denied as being in contravention of the due process clause of the 14th Amendment. And following up the state's theory, the court further held that it was not within the power of the state to grant a privilege which required the relinquishment of a constitutional right.