The opinion
*143 CURTIS, J.
— I dissent.
The tax which is the subject of this action is claimed by the state under the provisions of “An act imposing a license fee or tax for the transportation of persons or property, for hire or compensation upon the public streets, roads and highways in the State of California by motor vehicle, etc.” (Italics ours.) (California Motor Vehicle Transportation License Tax Act [Stats. 1933, p. 928, as amended Stats. 1935, p. 2176].)
Under section 1(a) of said act “The word ‘operator’ shall include all persons, firms, . . . who operate motor vehicles upon any public highway in this state and thereby engage in the transportation of . . . property for hire or compensation, etc.”
Section 1(d) reads as follows: “The term ‘gross receipts from operation’ shall include all receipts from the operation of . . . motor vehicles. ...” Section 2 of said act provides that “Bach operator of a motor vehicle within this state who transports or desires to transport for compensation or hire . . . property upon or over any public highway within this state shall make application to the State Board of Equalization . . . for a license to operate motor vehicles for the transportation of . . . property for hire or compensation over public highways in this state. ’ ’
Under section 2 of the act, the Board of Equalization “shall issue to such applicant a license to transport for compensation or hire . . . property upon or over any public highway within this state.” Section 3 of said act makes it unlawful after the effective date of the act for any person, firm, etc., to operate any motor vehicle for the transportation of persons or property for hire or compensation over the public highways of the state without obtaining such license.
Under section 4 of said act each operator is required to file on or before the tenth day of each month with the Board of Equalization “a verified report . . . showing the gross receipts from operation of said operator for the preceding calendar month, and such other information relating to his or its operations as said board may require, to enable the board to make the assessment for which provision is herein made. A license tax equal to three per cent of gross receipts from operation derived on and after the first day of the month after the effective date of this act, shall be levied and assessed by said board.”
It will thus be seen from the title of said act and from *144 each of the sections thereof, where the subject is mentioned that the operations of a licensed operator under the provisions of this act, are confined to the transportation of persons or property for hire or compensation over the public highways of this state. It is upon such operations, and upon such operators only that the license tax is assessed. Whatever services are rendered by the operator over and above such services, are not made subject to any tax. These excepted operations would include any and all services rendered by the operator before the property to be transported over the highway reaches the highway and such services as may be rendered after the transported property leaves the highway.
The majority opinion strongly relies upon the case of Pacific Gas & Electric Co. v. Roberts, 176 Cal. 183 [ 167 P. 845 ], for a proper construction of the words “gross receipts from operation.” In that case, section 14 of article 13 of the Constitution, under which the tax enacted in that case was levied, provided that the levy of the tax was upon “gross receipts from the operation of such companies,” while in the present case the statute provides that the tax is levied upon “gross receipts from the operation of motor vehicles.” Comparing these two enactments, it is apparent that the section of the Constitution in the Roberts case providing for the levy of the tax upon the “gross receipts from the operation of the company” was much broader than the present statute which limits the tax to be levied to “gross receipts from the operation of the motor vehicles.” In one case the gross receipts of the company are taxed while in the other only the gross receipts from the motor vehicles are the subject of the tax. As a motor vehicle is defined as “a vehicle operated upon or over the public highway” it seems clear that the legislative intent was to levy a tax only on those receipts from operation of vehicles upon the public highway.
For the reasons stated herein, I think the judgment should be reversed.
Edmonds, J., concurred.