Blease v. Safety Transit Co., 3137.

• Decision Date: 17 June 1931
• Docket Number: No. 3137.,3137.
• Citation: 50 F.2d 852
• Parties: BLEASE et al. v. SAFETY TRANSIT CO.
• Court: U.S. Court of Appeals — Fourth Circuit

50 F.2d 852 (1931)

BLEASE et al. v. SAFETY TRANSIT CO.

No. 3137.

Circuit Court of Appeals, Fourth Circuit.

June 17, 1931.

Pinckney L. Cain and Cordie Page, both of Columbia, S. C. (John M. Daniel, J. Ivey Humphrey, and Thomas & Lumpkin, all of Columbia, S. C., on the brief), for appellants.

P. F. Henderson, of Aiken, S. C. (Edgar A. Brown and Brown & Bush, all of Barnwell, S. C., and Hendersons & Salley, of Aiken, S. C., on the brief), for appellee.

Before PARKER and NORTHCOTT, Circuit Judges, and McCLINTIC, District Judge.

PARKER, Circuit Judge.

The Safety Transit Company, a North Carolina corporation, is engaged in operating a bus line between Washington, D. C., and Miami, Fla., through the state of South Carolina. On November 26th it applied to the railroad commission of South Carolina for a certificate of public convenience and necessity authorizing it to render motor bus service in interstate and intrastate commerce in and through the state of South Carolina over and along the public highways of that state. The commission denied the application for the certificate; and the transit company, thereupon, abandoned all effort to operate in intrastate commerce but continued to operate in interstate commerce. The members of the commission then instituted this suit in the Supreme Court of South Carolina and secured a temporary restraining order enjoining the transit company from operating any of its buses over the roads of the state. The suit was removed by the transit company into the court below, where the restraining order was modified so as to permit the operation of buses in interstate as distinguished from intrastate commerce. At the final hearing of the cause, upon its appearing that defendant was not attempting to operate its buses in intrastate commerce, the court dissolved the restraining order and dismissed the bill, and complainants have appealed.

No question is raised as to any failure on the part of defendant to comply with the tax laws or police regulations of the state. On the contrary, it appears that it has complied or offered to comply with all of these. The questions presented are: (1) Whether the defendant had the right to remove the case into the federal court; and (2) if so, whether the complainants were entitled to enjoin defendant from operating its buses in interstate commerce because it had been refused a certificate of public convenience and necessity by complainants. We think that the court below correctly answered both of these questions in favor of defendant.

Defendant contends that it had the right to remove the case both on the ground of diversity of citizenship and because the case presented was one arising under the Constitution of the United States. As to the first ground, the suit was instituted by the members of the railroad commission, not as individuals, but in their official capacity. It appears, however, that the relief sought would inure, not to the benefit of the state as an artificial person (Reagan v. Farmers' Loan & Trust Co., 154 U. S. 362, 390, 14 S. Ct. 1047, 38 L. Ed. 1014), but to those interested in operating buses over the roads of the state. It is in effect a suit to enforce the order of the railroad commission with respect to the use of the roads by competing bus lines. The persons interested are complainant and competing bus lines and the public which patronizes them. The state of South Carolina has no interest in the litigation except the governmental interest of compelling obedience to the legal order of its officials and in securing compliance with its laws. "But such general governmental interest is not that which makes the state, as an organized political community, a party in interest in the litigation." Missouri, etc., Ry. Co. v. Missouri Railroad & Warehouse Commissioners, 183 U. S. 53, 60, 22 S. Ct. 18, 21, 46 L. Ed. 78.

But, even if the state be considered the real party in interest, the right of removal would nevertheless exist, because the case is one arising under the Constitution of the United States, the point presented being the right of a state to require a bus line engaged in interstate commerce to obtain, as a condition of carrying on such commerce, a certificate of public convenience and necessity. It is well settled that a suit arising under the Constitution or laws of the United States is removable, even though it be brought by one of the states. Ames v. Kansas, 111 U. S. 449, 4 S. Ct. 437, 28 L. Ed. 482. And we think that there can be no question that the suit here is one so arising.

A case is said to arise under the Constitution and laws of the United States "`whenever its correct decision depends upon the construction of either' * * * or when `the title or right set up by the party may be defeated by one construction of the Constitution or law of the United States, or sustained by the opposite construction.'" Little York Gold Washing & Water Co. v. Keyes, 96 U. S. 199, 201, 24 L. Ed. 656; Cohens v. Virginia, 6 Wheat. 379, 5 L. Ed. 257; Osborn v. Bank, 9 Wheat. 822, 6 L. Ed. 204; Patton v. Brady, 184 U. S. 608, 22 S. Ct. 493, 46 L. Ed. 713; Bellaire, Benwood & Wheeling Ferry Co. v. Interstate Bridge Co. (C. C. A. 4th) 40 F.(2d) 323. And a suit which asserts the right on the part of a state to regulate interstate commerce raises a question under the Constitution of the United States; for the exclusive power to regulate such commerce is vested by the Constitution in Congress. Gibbons v. Ogden, 9 Wheat. 1, 6 L. Ed. 23; Wabash, St. Louis & Pac. Ry. Co. v. Illinois, 118 U. S. 557, 7 S. Ct. 4, 30 L. Ed. 244; Buck v. Kuykendall, 267 U. S. 307, 45 S. Ct. 324, 69 L. Ed. 623, 38 A. L. R. 286.

It is true, as contended by complainants, that to justify the removal of a cause on the ground that it arises under the Constitution, the fact that it so arises must appear upon the face of plaintiff's pleading, and the fact that defendant may rely upon some constitutional provision does not warrant the removal. Great Northern Ry. Co. v. Galbreath Cattle Co., 271 U. S. 99, 46 S. Ct. 439, 70 L. Ed. 854; Great Northern Ry. Co. v. Alexander, 246 U. S. 276, 38 S. Ct. 237, 62 L. Ed. 713; Postal Telegraph Cable Co. v. State of Alabama, 155 U. S. 482, 15 S. Ct. 192, 39 L. Ed. 231. We think, however, that the fact that this case involves the right of the state to regulate interstate commerce, and thus presents a question arising under the constitution, clearly appears from the face of plaintiff's pleading. The bill shows that defendant applied for a...