Cobb v. Department of Public Works
Decision Date | 11 July 1932 |
Docket Number | No. 481.,481. |
Citation | 60 F.2d 631 |
Parties | COBB et al. v. DEPARTMENT OF PUBLIC WORKS OF STATE OF WASHINGTON et al. |
Court | U.S. District Court — Western District of Washington |
Marion A. Zioncheck and W. R. Bell, both of Seattle, Wash., for plaintiffs.
John H. Dunbar, Atty. Gen., State of Washington, and John C. Hurspool, Asst. Atty. Gen., State of Washington, for defendants Department of Public Works and Fred K. Baker.
Before WILBUR, Circuit Judge, and McNARY and CUSHMAN, District Judges.
Plaintiffs, engaged solely in carrying passengers for hire by autobus between Seattle, Wash., and Portland, Or., sue to enjoin the defendants the Department of Public Works of the State of Washington, and its director, from revoking or canceling the certificates heretofore issued plaintiffs by defendants authorizing them to use the public highways of Washington. Plaintiffs further ask for general relief.
Defendants have moved to dismiss and answered.
This suit was begun May 7, 1932, and heard before three judges May 26, 1932, upon defendants' motion to dismiss and upon the petition and answer as upon motion for decree upon bill and answer.
In Hammond v. Schappi Bus Line, 275 U. S. 164 at pages 171, 172, 48 S. Ct. 66, 69, 72 L. Ed. 218, the court said: "Before any of the questions suggested, which are both novel and of far reaching importance, are passed upon by this court, the facts essential to their decision should be definitely found by the lower courts upon adequate evidence."
The manner in which the present cause was submitted excuses, if it does not require, a full statement of the issues made by the pleadings and the statements of counsel in presenting the cause.
The basis of the suit is that Remington's Compiled Statutes of Washington 1922, §§ 6390 and 6391, violate article 1, § 8, cl. 3, of the Constitution, providing that: "The Congress shall have Power * * * To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."
The petition, in part, alleges:
Defendants' answer, in part, is as follows: * * *"
The answer here copies sections 6391 and 6394 of Remington's Compiled Statutes, which are set forth later in this opinion, and continuing, alleges:
"That in accordance with such statute these defendants require all carriers, both intra and interstate, before the issuance of a certificate of public convenience and necessity to them, to furnish and to thereafter keep in force liability insurance or indemnity bond containing an endorsement as to the liability thereunder, as shown by exhibit `A', which is hereto attached and made a part hereof, and that such liability insurance or indemnity bond was required of plaintiffs, and admit that plaintiffs at the time of the issuance to them of such certificate of public convenience and necessity furnished to these defendants such liability insurance; that thereafter these defendants received notice from the insurers under such liability insurance that such insurance had been cancelled in accordance with the terms of such endorsement, such cancellation to take effect May 10, 1932, and that thereupon these defendants notified plaintiffs of this fact and that they must furnish proper liability insurance in lieu thereof by May 10, 1932, or such certificate of public convenience and necessity therefor" (theretofore) "issued to them would be cancelled.
"Further answering said paragraph, these defendants allege that they have no knowledge or information as to whether the said plaintiffs have been unable to secure other liability insurance or indemnity bonds and deny that they have threatened to have the plaintiffs arrested and prosecuted if they undertook to use the highways of the state in said interstate passenger operation without the filing of such liability insurance or indemnity bond, but admit that unless such liability insurance and indemnity bond is furnished these defendants will seek to have such operations by plaintiffs enjoined."
The bond indorsement, referred to in the answer, is, in so far as pertinent, as follows:
While the answer states that the defendants "admit that unless such liability insurance and indemnity bond is furnished these defendants will seek to have such operations by plaintiffs enjoined," and while the cancellation of bonds became effective May 10, 1932, there has been no suggestion of any suit brought by defendants to have plaintiffs' operations enjoined.
Primarily the task of determining the intent of the State legislature is that of the State's courts. Dorchy v. Kansas, 264 U. S. 286, 290, 44 S. Ct. 323, 68 L. Ed. 686.
Section 266 of the Judicial Code, as amended (title 28, USCA § 380), in part provides: * * *"
Remington's Compiled Statutes of Washington 1922, sections 6390, 6391, 6393, and 6394, are as follows:
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