Atlantic-Pacific Stages v. Stahl

• Decision Date: 20 November 1929
• Docket Number: No. 232.,232.
• Parties: ATLANTIC-PACIFIC STAGES, Inc., v. STAHL et al.
• Court: U.S. District Court — Western District of Missouri

36 F.2d 260 (1929)

ATLANTIC-PACIFIC STAGES, Inc., v. STAHL et al.

No. 232.

District Court, W. D. Missouri, Central Division.

November 20, 1929.

Harding, Murphy & Tucker, of Kansas City, Mo., and Leahy, Saunders & Walther, of St. Louis, Mo., for plaintiff.

J. P. Painter and D. D. McDonald, both of Jefferson City, Mo., for defendants.

Before VAN VALKENBURGH, Circuit Judge, and REEVES and OTIS, District Judges.

PER CURIAM.

The plaintiff, a Delaware corporation, is a common carrier by motor busses. Desiring to operate its busses through Missouri along what is known as federal highway No. 40, it applied on November 24, 1928, to the Public Service Commission for a certificate of convenience and necessity authorizing it to carry passengers solely in interstate commerce upon said highway. On April 4, 1929, the certificate applied for was denied on the ground that the plaintiff had been and at the time of the denial still was unlawfully engaged in the intrastate carrying of passengers. On the same ground a second application for a certificate of convenience and necessity, applied for May 31, 1929, was denied by the commission October 1, 1929. At the time of each application the plaintiff offered to comply with all requirements of the laws of Missouri relating to interstate carriers of passengers by motor busses over the highways of the state.

The bill alleges that the defendant Ballew, sheriff of Boone county, through which passes highway No. 40, has arrested, threatens to and will, unless restrained, continue to arrest, drivers of plaintiff's motor busses, and it is alleged that, in so doing, he has acted and will act under the direction of the Public Service Commission. Pending the final determination of the case on its merits, we are asked to issue an interlocutory injunction restraining the defendant sheriff from arresting plaintiff's drivers (and so impeding the operation of plaintiff's motor busses) and restraining the defendant commissioners from directing the defendant sheriff to make such arrests.

The following questions are first to be considered: (1) Under the Laws of Missouri on April 4, 1929, when plaintiff's first application was denied, did the Public Service Commission have the discretion to deny the plaintiff a certificate of convenience and necessity to carry on an interstate business on the highways of the state on the ground that it was then unlawfully carrying on an intrastate business, and, if so, were such laws to that extent unconstitutional? (2) Under the laws of Missouri on October 1, 1929, when plaintiff's second application was denied, did the Public Service Commission have the discretion to deny the plaintiff a certificate of convenience and necessity to carry on an interstate business on the highways of the state on the ground that it was then unlawfully carrying on an intrastate business, and, if so, were such laws to that extent unconstitutional? This double consideration of what may seem to be the same question is made necessary by the fact that the laws of Missouri, defining the powers of the Public Service Commission, were altered by an amendment approved June 11, 1929, effective August 27, 1929. The amendment was not effective at the time either of the first or of the second of plaintiff's applications to the commission for a certificate. The amendment is now effective, and was effective when plaintiff's second application was denied.

Prior to April 5, 1927, the Public Service Commission had no control over common carriers by motor busses. Such control was on that date conferred on the commission. Laws of Missouri 1927, p. 402. By the terms of the law then enacted, it was made unlawful for any common carrier by motor busses to furnish service within this state without first having obtained a certificate of convenience and necessity from the commission. The commission was given the power (Section 4) to refuse such a certificate if in its judgment public convenience and necessity would not be promoted by such service. Nowhere in the act is any distinction made between the interstate transportation of passengers and transportation intrastate.

The Public Service Commission construed this law as requiring a carrier to apply for a certificate of convenience and necessity even for interstate transportation of passengers. The language of the act warrants that construction. It is our view, however, that, so construed, the act goes beyond the state's power and invades the exclusive jurisdiction of Congress to regulate interstate commerce.

The exclusive control of interstate commerce is given by the Constitution to Congress. No state may pass any law which prohibits or unduly, burdens interstate commerce. For certain limited purposes a state may pass a law which incidentally affects interstate commerce, provided it does not prohibit or unduly burden such commerce. Thus a state may pass a law imposing a tax upon a company operating motor vehicles exclusively in interstate commerce over the highways of the state if it is imposed for the upkeep and maintenance of those highways, provided it does not discriminate against interstate commerce. A state may, for the safety of its people, enact police regulations governing the manner in which its highways are used. Such laws are binding upon persons engaged exclusively in interstate business as well as upon others, provided they are reasonable regulations and not discriminatory. A state may require an interstate carrier to obtain a permit before using the highways of the state and may condition the issuance of that permit upon compliance by the carrier with such laws as those described — such laws, that is, as it is proper for the state to enact, not including, however, any law either prohibiting or imposing an undue burden on interstate commerce. These are the general principles which are applicable to the question here and in the light of which it must be determined.

Where a carrier is engaged exclusively in interstate commerce a state may not require it to obtain a certificate of convenience and necessity. Clark et al. v. Poor et al., 274 U. S. 554, 47 S. Ct. 702, 71 L. Ed. 1199. Where a carrier is engaged in both interstate and intrastate transportation of passengers, the state may require it to obtain a certificate of convenience and necessity and to pay a license tax as to its intrastate business, but only if that will not result in burdening unduly its...