Buckland v. Lee
| Decision Date | 16 October 1931 |
| Docket Number | No. 2916.,2916. |
| Citation | 6 F. Supp. 606 |
| Court | U.S. District Court — Southern District of West Virginia |
| Parties | BUCKLAND et al. v. LEE, Atty. Gen., et al. |
Pierce, Smith & Spilman, of Charleston, W. Va., for plaintiffs.
Howard B. Lee, R. Dennis Steed, and W. Elliott Nefflen, all of Charleston, W. Va., for defendants.
Before PARKER and NORTHCOTT, Circuit Judges, and McCLINTIC, District Judge.
This is a suit praying that the provisions of sections 3, 4, 5, 6, 7, 8, 9, 17, 18, 19, 20, 25, and 30 of article 6, of chapter 17, of the Code of West Virginia, in so far as the same purport to apply to certain motor vehicles operated in the transportation and delivery of newspapers, published by one of the plaintiffs, the Charleston Mail Association, a corporation, be declared to be invalid as violative of the Constitution of the United States and the amendments thereto. The vehicles in question are operated by the other plaintiffs, who carry and deliver newspapers by private contracts with the newspaper company over certain routes.
The bill also prays for a preliminary injunction, and, after hearing, for a permanent injunction against the defendants, who are officials of the state of West Virginia, of the various counties in which the motor vehicles are operated, and members and employees of the State Road Commission of West Virginia, enjoining them from enforcing against the plaintiffs any of the provisions of the sections of the state statute above enumerated, and further enjoining them from prosecuting the plaintiffs under the statute.
The judge of this court, on the filing of the bill, convened a three-judge court, to hear the matter, under section 266 of the Judicial Code as amended (USCA title 28, § 380). Owing to an agreement between counsel that nothing would be done until the hearing, no restraining order was entered.
A hearing was had before this three-judge court, at Charleston, W. Va., on July 28, 1931, and the cause submitted, on the pleadings and an agreed statement of facts, both as to the application for the preliminary and the permanent injunction.
Finding of Facts.
It appears that the plaintiff the Charleston Mail Association is a corporation engaged in the business of publishing "The Charleston Daily Mail," a daily newspaper of Charleston, W. Va., and the other plaintiffs are engaged in delivering said newspaper under private contract with the newspaper company, over certain fixed routes daily.
That the carriers do not engage in the business of carrying either passengers or freight for hire for the public, and that approximately 40 per cent. of the circulation of the "Mail" is delivered by the plaintiff carriers.
That the plaintiff carriers own their own automobiles and trucks in which the deliveries are made. Some of the carriers using automobiles and others using trucks.
That the carriers had been for some time prior to the institution of this suit operating under the same licenses from the State Road Commission of West Virginia, as are issued to private individuals for automobiles and trucks used solely for private purposes, the classification for automobiles being "A," and for trucks "B."
That the classification for motor vehicles used commercially is class K, vehicles in which class pay a fee double that paid for trucks in class B.
That in making application for the licenses, under which they operated their vehicles, the carriers did not state to the Road Commission for what purpose the vehicles were to be used.
That prior to the institution of this suit some of the carriers were threatened with arrest, and others arrested by members of the West Virginia State Police for operating their vehicles without having secured the proper license therefor. That at conferences had with the Road Commission and the heads of the state police (Department of Public Safety), attorneys for the plaintiffs were informed that licenses would have to be applied for by the carriers under class K, and a larger sum paid for the license than was paid, under classes A and B, and that unless the carriers did apply for the proper licenses and secure a certificate of convenience and necessity they would be prosecuted.
That later, on April 22, 1931, and prior to the bringing of this suit, counsel for the plaintiffs had a conference with various officials of the State Road Commission, including defendant F. O. Saunders, Supervisor of Transportation, at which conference the proposed bringing of this suit was discussed, and that the said Saunders then stated to counsel for the plaintiffs that said motor delivery carriers would be permitted to secure class K licenses by paying the tax required for that class, and without securing a certificate of convenience or necessity, and without complying with certain provisions applicable to public or common carriers. On the occasion of this conference Saunders informed counsel that the Road Commission might hereafter, if it so desired, require the carriers to secure certificates of convenience, and might, if it so desired, regulate them as common carriers. After this conference this suit was instituted.
Conclusions of Law.
The first question to be considered is whether the present road statute of the state of West Virginia, properly construed, requires the plaintiff carriers, who are admittedly private carriers for compensation, to apply for certificates of convenience and submit themselves to be regulated as common carriers. In other words, does the statute require the private carrier to become, in effect, a common carrier? We do not think the statute can be so construed.
Under the decisions of the Supreme Court, it seems clear that if it required a private carrier to become a common carrier the statute would be unconstitutional. Michigan Public Utilities Commission v. Duke, 266 U. S. 570, 45 S. Ct. 191, 69 L. Ed. 445, 36 A. L. R. 1105; Frost v. Railroad Commission of State of California, 271 U. S. 583, 46 S. Ct. 605, 70 L. Ed. 1101, 47 A. L. R. 457; Smith v. Cahoon, 283 U. S. 553, 51 S. Ct. 582, 75 L. Ed. 1264, United States Supreme Court, decided May 25, 1931.
In these cases the state statutes clearly required the private carrier to become a common carrier, or at least to apply for a certificate as such, and to submit to be regulated as a common carrier. Such a situation does not, in our opinion, exist here.
Section 1, art. 6, chapter 17, Code of 1931 (West Virginia), reads as follows:
It will be noted, by reference to the prior act (section 76, c. 17, Acts 1925), that the word "public" is inserted in the 1931 act, thereby clearly relieving those engaged in the private transportation of passengers or property for compensation from the necessity of securing the certificate of convenience required in the case of common carriers.
Section 20 of the same article is as follows: ...
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