Consolidated Freight Lines v. Pfost

• Decision Date: 27 July 1934
• Docket Number: No. 1855.,1855.
• Citation: 7 F. Supp. 629
• Parties: CONSOLIDATED FREIGHT LINES, Inc., et al. v. PFOST, Commissioner of Law Enforcement of Idaho, et al.
• Court: U.S. District Court — District of Idaho

7 F. Supp. 629

CONSOLIDATED FREIGHT LINES, Inc., et al. v. PFOST, Commissioner of Law Enforcement of Idaho, et al.

No. 1855.

District Court, D. Idaho, S. D.

July 27, 1934.

J. M. Hickson, of Portland, Or., and Hawley & Worthwine and Walter G. Bell, all of Boise, Idaho, for plaintiffs.

Bert H. Miller, Atty. Gen., and Ariel L. Crowley, Asst. Atty. Gen., for defendants.

Before GARRECHT, Circuit Judge, and WEBSTER and CAVANAH, District Judges, as a statutory three-judge court.

CAVANAH, District Judge.

The Consolidated Freight Lines for itself and all others similarly situate brought this suit against the Commissioner of Law Enforcement and the Attorney General of Idaho to restrain the enforcement of the Uniform Motor Vehicle Registration Act of the state, which imposes a license fee and requires the registration of foreign and domestic motor vehicles operating upon the public highways within the state in the transportation of persons or property for compensation. The statute is assailed as being repugnant to the Commerce Clause of the Federal Constitution (article 1, § 8, cl. 3) when applied to the plaintiffs who are engaged in interstate transportation. They insist that the commerce clause imposes restrictions upon the taxing and licensing power of the state government as to one engaged in interstate commerce under the circumstances disclosed by the evidence.

At the outset the argument is pressed that the notice of hearing of the application for interlocutory injunction was never served upon the Governor or Attorney General of the state as required by the statute, title 28, section 380, USCA and, therefore, the court has not acquired jurisdiction to hear the case on its merits. The bill was filed on March 31, 1934, and thereafter on the same day application for an interlocutory injunction was filed. On June 12, 1934, notice of hearing and order to show cause on the application for an interlocutory injunction was signed by the District Judge, which notice, after stating the title of the court and cause, recites:

"To C. Ben Ross, Governor of the State of Idaho, and to Emmitt Pfost, Commissioner of Law Enforcement of the State of Idaho, and Bert H. Miller, Attorney General of the State of Idaho:

"The application of the plaintiffs, Consolidated Freight Lines, Inc., a corporation, Montana Consolidated Freight Lines, Inc., a corporation, and Ashbury Transportation Co. of Oregon, Inc., a corporation, for the issuance of an interlocutory injunction having been presented to me and the papers submitted in behalf of the application being filed herewith, it is

"Ordered, That the said application be heard before the court constituted in the manner prescribed by Section 380 of the United States Codes Annotated (formerly Section 266 of the Judicial Code, as amended), on the 15th day of June, 1934, at 10 o'clock, in the forenoon of that day at the courthouse in the United States Post Office Building in Boise City, Ada County, State of Idaho, and that the defendants, and each of them, at such time and place, show cause:

"I.

"Why an interlocutory injunction should not issue enjoining and restraining, pending the final order in this case and until the further order of this court, the defendants, Emmitt Pfost, Commissioner of Law Enforcement of the State of Idaho, and Bert H. Miller, Attorney General of the State of Idaho, and each of them, and their successors, agents, servants, employes, attorneys, and those in active concert or participating with them, and any and every person whomsoever acting, or attempting to act under and by virtue of that Act of the Legislature of the State of Idaho, being Chapter 126 of the laws of Idaho for 1933, amending Chapter 1, Idaho Code Annotated, 1932 Official Edition, amending the Uniform Motor Vehicle Registration Act, being an Act entitled `An Act amending section 46-120 of the Idaho Code Annotated, relating to registration of motor vehicles of non-residents by providing for the registering, without purchase of license, of motor vehicles licensed by foreign states in cases where such motor vehicles are operated for profit within the state more than a period of 48 hours, and declaring an emergency'; and from in any way enforcing, or attempting to enforce the same, or collect licenses or registration fees thereunder against the plaintiffs under the terms of the said act.

"II.

"And for such other and further relief as to the Court shall seem equitable and proper in the premises.

"Charles C. Cavanah "United States District Judge."

Acknowledgment in writing of the service of the notice and order to show cause was made on the 9th day of June, 1934, by the Governor, Commissioner of Law Enforcement, and the Attorney General of the state.

The statute (28 USCA § 380) provides for the giving of at least five days' notice to the Governor, the Attorney General of the state and the defendants of the hearing for the interlocutory injunction. Its obvious purpose is to give notice to the Governor and Attorney General so that the state's interest may be protected, and when so informed as here, of such hearing at least five days before the day set, the requirements of the statute are satisfied. No particular form of notice is required. The Governor and Attorney General were, in express words, notified that application for an interlocutory injunction would be made on June 15, 1934, at 10 o'clock a. m. in the United States courtroom in Boise City, Idaho, to enjoin the defendants from enforcing the same act of the Legislature involved. They acknowledge in writing service of a copy of the notice and order on June 9, 1934; being five days before the day set for the hearing. Clearly they received such notice as the statute contemplates. The case of Arneson v. Denny (D. C.) 25 F.(2d) 993, relied upon by the defendants, does not apply when we compare the notice given here with the record in that case as the notice claimed to have been given there did not inform the Governor and Attorney General of any particular law of the state sought to be enjoined, nor of the particular official acts sought to be enjoined, nor the time when the defendants to be served with copies of the court's order should appear, while the notice and order served here specifically states that the application of the plaintiffs for the issuance of an interlocutory injunction had been presented to the judge and a time and place for the hearing was set, and that the defendants should show cause why an interlocutory injunction should not issue enjoining them from acting under or enforcing the act involved and from collecting the licenses or registration fees thereunder.

We come then to the question of the power of the state to exact reasonable license fees and adopt regulations governing the use of the highways which has had a progressive application in the decisions of the Supreme Court. By Clark et al. v. Poor et al., 274 U. S. 554, 47 S. Ct. 702, 703, 71 L. Ed. 1199, the rule became definitely settled. The court, speaking through Mr. Justice Brandeis, observed, when considering the Ohio Motor Transportation Act (Gen. Code Ohio, §§ 614-84 to 614-102) which required a motor transportation company desiring to operate in the state to apply to the Public Utilities Commission for a certificate so to do and to pay a tax graduated according to the number and capacity of the vehicle used:

"The plaintiffs claim that, as applied to them, the act violates the commerce clause of the federal Constitution. They insist that, as they are engaged exclusively in interstate commerce, they are not subject to regulation by the state; that it is without power to require that before using its highways they apply for and obtain a certificate; and that it is also without power to impose, in addition to the annual license fee demanded of all persons using automobiles on the highways, a tax upon them, under section 614-94, for the maintenance and repair of the highways and for the administration and enforcement of the laws governing the use of the same. The contrary is settled. The highways are public property. Users of them, although engaged exclusively in interstate commerce, are subject to regulation by the state to ensure safety and convenience and the conservation of the highways. Morris v. Duby, 274 U. S. 135, 47 S. Ct. 548, 71 L. Ed. 966; Hess v. Pawloski, 274 U. S. 352, 47 S. Ct. 632, 71 L. Ed. 1091. Users of them, although engaged exclusively in interstate commerce, may be required to contribute to their cost and upkeep. Common carriers for hire, who make the highways their place of business, may properly be charged an extra tax for such use. Hendrick v. Maryland, 235 U. S. 610, 35 S. Ct. 140, 59 L. Ed. 385; Kane v. New Jersey, 242 U. S. 160, 37 S. Ct. 30, 61 L. Ed. 222. Compare Packard v. Banton, 264 U. S. 140, 144, 44 S. Ct. 257, 68 L. Ed. 596.

"There is no suggestion that the tax discriminates against interstate commerce. Nor is it suggested that the tax is so large as to obstruct interstate commerce. It is said that all of the tax is not used for maintenance and repair of the highways; that some of it is used for defraying the expenses of the commission in the administration or enforcement of the act, and some for other purposes. This, if true, is immaterial. Since the tax is assessed for a proper purpose and is not objectionable in amount, the use to which the proceeds are put is not a matter which concerns the plaintiffs."

In Morris et al. v. Duby et al., 274 U. S. 135, 47 S. Ct. 548, 71 L. Ed. 966, somewhat of an analogous question arose in relation to the weight of vehicles using the highways, and the court was of the opinion that because an order of the highway commission fixing a maximum load of a vehicle to 16,500 pounds to prevent injury to the highway was not an undue burden placed upon interstate commerce.

The latest decision of the Supreme Court in Hicklin v. Coney, 290 U. S. 169, 54 S. Ct. 142, 144, 78 L. Ed. 247, carried...