JH McLeaish & Co. v. Binford

• Citation: 52 F.2d 151
• Decision Date: 06 August 1931
• Docket Number: No. 467.,467.
• Parties: J. H. McLEAISH & CO. v. BINFORD et al.
• Court: U.S. District Court — Southern District of Texas

52 F.2d 151 (1931)

J. H. McLEAISH & CO. v. BINFORD et al.

No. 467.

District Court, S. D. Texas, at Houston.

August 6, 1931.

Franklin & Blankenbecker and Fulbright, Crooker & Freeman, all of Houston, Tex., for plaintiff and interveners.

James V. Allred, Atty. Gen., and T. S. Christopher and Elbert Hooper, Asst. Attys. Gen., for defendants.

Before HUTCHESON, Circuit Judge, and KENNERLY and BRYANT, District Judges.

HUTCHESON, Circuit Judge.

Complaining of an act of the Texas Legislature, House Bill No. 628 (Acts Tex. 42nd Leg. 1931, c. 121 Vernon's Ann. P. C. Tex. art. 827c, §§ 1-6,¹ dealing with the hauling of cotton over the highways of Texas, as unconstitutional and void as to them because violative of the equal protection and due process clauses of the Fourteenth Amendment, plaintiffs brought this suit against the sheriffs and constables, the district and county attorneys of Harris, Ft. Bend, Colorado, and Wharton counties, the officers of the state highway commission, and the Governor and Attorney General of the State of Texas, seeking to enjoin its operation as to them.

Plaintiffs are persons engaged in the business of buying uncompressed cotton in and hauling it over the highways through the above counties to Houston, where they sell or ship it. They haul it in their own trucks which they have license to operate, and which comply in all respects with the general rules and regulations governing the operation of trucks over the highways. They allege in effect that the passage of the bill has been brought about by, and is in the interest of, a combination of Black George and Blifil, the railroads and the interior compresses, and that the real purpose of the bill is, and its effect will be, to prohibit altogether the hauling of uncompressed cotton to Houston, and to practically require all cotton to be first compressed at interior compresses and thence shipped by rail to Houston. That these requirements unjustly discriminate against plaintiffs' business and the commodity with which it has to do in favor of all other businesses and commodities whose full right of access to and use of the highways for the cheaper and more desirable transportation, carriage by truck, is in no manner abridged.

They further allege that, though the act in question is unconstitutional and void as to them, the defendants are threatening, under color of its purported authority, to proceed against them under the penal provisions of the act, and that they will do so unless restrained. Plaintiffs pray for temporary injunction pending the suit, and for permanent injunction upon final hearing.

Upon plaintiffs' request the application for temporary injunction was set for hearing, a statutory court was convened, and on the date set for hearing a hearing was had on the pleadings and affidavits. At this hearing there appeared by leave, in addition to the plaintiffs and defendants, certain interveners, all of whom make common cause with plaintiffs as to the purpose and effect of the act, and its unreasonable and discriminatory character as to them. These represented three classes: (1) interior cotton merchants in the business of procuring uncompressed cotton and hauling it upon their own trucks, or trucks of private carriers engaged by them, to Houston for sale and/or shipment. (2) Individual farmers who raise cotton in the interior and haul it and the cotton of others uncompressed to Houston, for sale and/or shipment there. (3) Persons owning trucks, engaged as private carriers in the business of hauling over the highways uncompressed cotton as well as other commodities.

The defendants' pleadings meet the issues tendered by plaintiffs and interveners by denials and by appropriate affirmative allegations, and in limine raise the question of the power of the court, in view of the generally permissive, rather than of right, character of highway use, to accord plaintiffs relief.

Wide as the power of the Legislature over highways is, we have no manner of doubt that, if it arbitrarily interferes with the right of one of the public to haul his goods over it, whether the hauling is done for himself or for hire for others, that one may be, as he has uniformly been, accorded in the national courts, relief. Smith v. Cahoon, 283 U. S. 553, 51 S. Ct. 582, 75 L. Ed. 1264; Buck v. Kuykendall, 267 U. S. 314, 45 S. Ct. 324, 69 L. Ed. 623, 38 A. L. R. 286; Packard v. Banton, 264 U. S. 140, 44 S. Ct. 257, 68 L. Ed. 596; Frost v. Railroad Com., 271 U. S. 583, 46 S. Ct. 605, 70 L. Ed. 1101, 47 A. L. R. 457; Michigan v. Duke, 266 U. S. 570, 45 S. Ct. 191, 69 L. Ed. 445, 36 A. L. R. 1105; Truax v. Raich, 239 U. S. 33, 36 S. Ct. 7, 60 L. Ed. 131, L. R. A. 1916D, 545, Ann. Cas. 1917B, 283.

At the hearing plaintiffs and interveners established, indeed the point was not contested, but was urged by defendants' counsel as one of the prime accomplishments of the act, that the limitation of the load of uncompressed cotton to ten bales would practically drive that kind of cotton from the highways. They proved that, if cotton must first be hauled to an interior compress, and compression charges, of no benefit whatever to cotton hauled by truck to market, paid before it is rehauled to Houston in the inclosed vehicle prescribed by the Act for hauling cotton in more than ten-bale lots more than fifteen miles, it would add so greatly and so prohibitively to the cost of hauling cotton by truck to the Houston market, as that it would to a great extent compel its carriage there by rail, and thus the act would operate to drive cotton almost, if not altogether, off of the highways.

Their proof, as well as that offered by the state, also established that the legislative genesis of the act was two bills, one to compel cotton hauled by truck to be compressed in the county in which it originated, the other at the first compress which it reached in transit, and that, if the act is enforced, it will result directly and greatly to the benefit of the interior cotton compresses and the railroads.² According to the affidavits of compress and railroad employees offered by the defendants and not disputed by plaintiffs, both railroads and compresses have suffered greatly in loss of business, due to the fact that cotton, instead of as formerly going to the interior presses for compression and from there to the ports by rail, has in its uncompressed state taken to the highways.³

Plaintiffs and interveners also undertake to show, and by their own affidavits do show, that the lugubrious chant of highway woes which forms the theme song of the bill are not real, but fancied ills, and that there is nothing in the nature of cotton, or the manner in which it is carried over the highways, which constitutes it or its carriage a particular menace, or justifies or would support a legislative classification as a basis for special restrictive treatment, harsh and prohibitive of highway use as to it, while leaving all other commodities, though similarly situated as to the use of the highways, untouched by legislation. Their affidavits meet the recitations in the preamble of the act at every point, and if the question were before us for decision as a fact question in an ordinary lawsuit, upon the affidavits of plaintiffs alone we should be inclined to the opinion that the Legislature, having formed the purpose to put cotton off the highways, reached its subsequent conclusion about the menace which it causes by letting the wish be father to the thought, and that, to ears attuned as theirs were to find proofs according with their purpose to prohibit, trifles light as air became confirmations strong as proof from Holy Writ.

But we are not so situated, for, in the first place, since the act deals with the regulation of the public highways, a matter fully within the compass of legislative powers (Buck v. Kuykendall, 267 U. S. 314, 45 S. Ct. 324, 69 L. Ed. 623, 38 A. L. R. 286; Carley v. Snook, 281 U. S. 70, 50 S. Ct. 204, 74 L. Ed. 704, 68 A. L. R. 194; Southern Motorways v. Perry (D. C.) 39 F.(2d) 145; Smith v. Cahoon, supra; Packard v. Banton, supra; Frost v. Railroad Com., supra; Hess v. Pawloski, 274 U. S. 352, 47 S. Ct. 632, 71 L. Ed. 1091; Silver v. Silver, 280 U. S. 117, 50 S. Ct. 57, 74 L. Ed. 221; Fifth Ave. Coach Co. v. New York, 221 U. S. 467, 31 S. Ct. 709, 55 L. Ed. 815; Morris v. Duby, 274 U. S. 135, 47 S. Ct. 548, 71 L. Ed. 966) every presumption springs in its favor to support the bill against attack, unless on its very face the classification, either as to the basis of it, or the means adopted to effect the desired end, appears arbitrary, unreasonable, or oppressive, or, though no arbitrariness or unreasonableness is patent, lying there latent it is exposed and brought to view by proof.

So circumstanced, plaintiffs on the issue of the basis of classification have a burden too heavy to be borne, when, in addition to the presumptions which exist in its favor, they are confronted by affidavits offered by defendants, which, taken separately and as a whole, with their specific instances of traffic congestion, injury to the highways and to person and property moving thereon, of fire hazard and of load spillings attendant upon the movement of cotton over the highways, together with proof as to its characteristic package or packages, the method of its preparation and hauling, the character of trucks in which it is usually hauled, the manner of their use of the highways, the size of the loads, the seasonal and congested character of the movement, not only strongly support, but in our opinion, as the matter stands on the proofs adduced at this hearing, put beyond question the general power of the Legislature to deal with cotton in its use of the highways as a commodity having peculiar characteristics with relation to transportation generally, and highway use in particular, and to make reasonable regulations for its movement which will hedge that movement about with reasonable restrictions,...