On October 21, 1932, the California Transportation Company, Sacramento Navigation Company, Fay Transportation Company, the Western Pacific Company and the Sacramento Northern Railway filed a complaint before the Railroad Commission of the state of California charging that Frank P. George and Tony P. George, a co-partnership doing business sometimes under the name of George Brothers and sometimes as Associated Contract Freight Haulers, were conducting a business as common carriers of freight between San Francisco and Sacramento and intermediate points, and praying for an order of the commission requiring them to cease and desist from such common-carrier operations. The defense interposed by the petitioners was to the effect that they were not acting as a common carrier, but only as a private or contract carrier, and were not operating between fixed termini or over a regular route. On January 6, 1933, the respondent commission made its order requiring the petitioners to cease and desist. We are asked, in this proceeding in certiorari, to annul the order on the ground that there is no evidence to sustain the finding of the commission that petitioners were operating as a common carrier between fixed termini and over a regular route.

It thus becomes necessary to set down and examine the testimony adduced for the purpose of ascertaining if there be any substantial evidence to justify the finding mentioned. A representative of the Public Food Stores testified that, between August 29, 1932, and December 12th of the same year, they shipped sixteen loads of freight from San Francisco to Sacramento, consigned to themselves. By agreement with petitioners the rate was fixed at twenty cents for 100 pounds when the tonnage was five tons or less, and at a lesser rate when over that weight. It was understood that petitioners should, and they did, between the dates mentioned, call at the Public Food Stores in San Francisco every Monday morning for goods to be delivered to the Sacramento store on Tuesday. These sixteen shipments were evidenced by freight bills issued by the Associated Contract Freight Haulers, subject to certain provisions on the reverse side thereof, reading as follows:

A shipping clerk for Wellman, Peck & Company testified that the petitioners had done the hauling of groceries to their plant in Sacramento for something over a year, calling for loads on Monday and Tuesday of each week. He said it was agreed that each load should be not less than ten tons and that the parties should have the right to terminate the arrangement “at their pleasure”. Included in the exhibits explaining the method of handling the freight of the Well-man, Peek Company are two “agreements for transportation by private contract carrier” describing the weight, rate, time of pick-up and delivery, and covering the loads of May 16 and May 19, 1932. The other exhibits referring to the transactions with this firm are freight bills such as those used in the instance of the Public Food Stores and copies of the usual uniform bills of lading. The two firms above mentioned had no freight to be transported from Sacramento to San Francisco.

However, it appears from other testimony that during the year 1932, the petitioners hauled from Sacramento to San Francisco approximately fifty loads of beans and rice for the Trinidad Bean and Elevator Company, S. M. Sorensen &" Company, the Capitol Rice Company, the Phillips Milling Company, Sinsheimer & Company and the Lompoc Produce & Real Estate Company. Among the exhibits evidencing these loads there are a few private contract carrier agreements, but the exhibits consist, for the most part, of freight bills such as those already described. It also appears from the exhibits that petitioners hauled produce for most of these firms between points other than Sacramento and San Francisco, for example, to San Francisco from Oakland, Marysville, Soledad, Lodi, Stockton, and from as far south as Lompoc. The shipping documents issued in connection with these hauls also consist mainly of freight bills.

Without setting down in detail the testimony regarding other features of these transactions, we can properly say that, except as to Wellman, Peck & Company and the Public Food Stores, it discloses that special arrangements were made for petitioners to secure a load at a particular time and transport it to its destination and that the business had been largely solicited by one or the other of the petitioners. The petitioners testified, and there was some other testimony supporting them, that they reserved the right to refuse to haul for any of their customers or for anyone else, and had, in fact, discontinued hauling for some of the firms mentioned. This testimony is weakened to some extent by other testimony showing they had practically all the tonnage they could haul conveniently.

Subsection (c) of section 1 of the Auto Stage and Truck Transportation Act (Deering’s Gen. Laws, 1931, p. 2534) defines a transportation company subject to the regulatory power of the respondent commission as follows:

It canno* be doubted, from the evidence recited, that the respondent commission was fully justified in concluding that petitioners operated between Sacramento and San Francisco, or between fixed termini and over a regular route. In this connection it is to be noted that the order to cease and desist did not attempt to compel the petitioners to cease operations except between these cities and intermediate points. With respect to this latter part of the definition then, there can be no question. The other half concerns itself with the problem of whether petitioners were doing business as a common carrier within the meaning of the Auto Stage and Truck Transportation Act, supra. In Haynes v. McFarlane, 207 Cal. 529 [ 279 Pac. 436 ], this court said: “Whether the status of a freight autotruck operator is public or private in character is primarily a question of fact in each case.” The respondent commission attached considerable importance to the fact that petitioners issued, during all of the latter part of 1932, the freight bills heretofore discussed and uniform or standard bills of lading. In its opinion it directs attention to the fact that, while petitioners claim they reserved the right to refuse shipments, there is no showing that they refused any freight to be carried over the route in question and, as has already been noted, they had all the freight they could conveniently handle. Under these circumstances it is impossible for us to hold that the commission was not justified in its conclusion. The order is affirmed.

Shenk, J., Preston, J., Waste, 0. J., Curtis, J., Langdon, J., and Seawell, J., concurred.