Continental Baking Co. v. Woodring

• Decision Date: 15 December 1931
• Docket Number: No. 1444.,1444.
• Citation: 55 F.2d 347
• Parties: CONTINENTAL BAKING CO. et al. v. WOODRING, Governor of Kansas, et al.
• Court: U.S. District Court — Panama Canal Zone

55 F.2d 347 (1931)

CONTINENTAL BAKING CO. et al. v. WOODRING, Governor of Kansas, et al.

No. 1444.

District Court, D. Kansas, Second Division.

December 15, 1931.

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R. L. Stephens, of Kansas City, Kan., Charles R. Wilke, of Lincoln, Neb., and John C. Grover, of Kansas City, Mo., for petitioners.

Roland Boynton, Walter Griffin, Chas. W. Steiger, and E. H. Hatcher, all of Topeka, Kan., for defendants.

Before McDERMOTT, Circuit Judge, and KENNAMER and HOPKINS, District Judges.

McDERMOTT, Circuit Judge.

Chapter 236, of the Laws of 1931, lays a special tax, based on truck capacity and mileage, upon carriers which carry for hire (public and contract carriers) and upon those who are engaged in the transportation by motor vehicle of property sold in furtherance of any commercial enterprise (private carriers). Such taxes must be used for the maintenance, repair, and reconstruction of public highways, and the administration of the act. It requires a public carrier to procure a certificate of convenience before doing an intrastate business; it requires all carriers to procure a license, and to carry liability insurance. It authorizes the Public Service Commission to promulgate regulations looking to the safe operation of the vehicles of all carriers. Certain carriers are exempted from the act.

The plaintiffs are "private motor carriers of property" as the same are defined by the act; they operate bakeries both within and without the state of Kansas, and use the highways of Kansas to deliver their products to customers within and beyond a radius of 25 miles from the corporate limits of cities of the state. The plaintiffs seek to enjoin the enforcement of the statute on the ground that it is arbitrary and discriminatory, and that it compels private carriers to assume the burdens of common carriers. A motion of the defendants to dismiss the bill for want of equity is now for decision.

A similar attack was made upon this statute by a "contract carrier," and the statute was held to be good as against that attack by this court, Judges Phillips, Symes, and Hopkins sitting. Louis v. Boynton et al., 53 F.(2d) 471. We will adhere to the rulings of that court, as far as pertinent, not only because we agree with them, but for the more fundamental reason that courts of co-ordinate jurisdiction sitting in the same district must not attempt to overrule the decisions of each other, except for the most cogent reasons. This rule, and its careful observance, are, to use the words of Judge Walter H. Sanborn, "essential to the prevention of unseemly conflicts, to the speedy conclusion of litigation, and to the respectable administration of the law, especially in the national courts, where many judges are qualified to sit at the trials, and are frequently called upon to act in the same cases." Plattner Implement Co. v. International Harvester Co. (C. C. A. 8) 133 F. 376, 378; Shreve v. Cheesman (C. C. A. 8) 69 F. 785; Boatmen's Bank v. Fritzlen (C. C. A. 8) 135 F. 650.

The state of Kansas has constructed at great expense a system of improved highways. These have been built in part by special benefit districts and in part by a tax on gasoline sold in the state and by license fees exacted of all resident owners of automobiles. These public highways have become the roadbeds of great transportation companies, which are actively and seriously competing with railroads which provide their own roadbeds; they are being used by concerns such as the plaintiffs for the daily delivery of their products to every hamlet and village in the state. The highways are being pounded to pieces by these great trucks which, combining weight with speed, are making the problem of maintenance well-nigh insoluble. The Legislature but voiced the sentiment of the entire state in deciding that those who daily use the highways for commercial purposes should pay an additional tax. Moreover, these powerful and speedy trucks are the menace of the highways. That those who use the highways, as the plaintiffs use the highways, are subject to regulation by the state to insure the safety of others on the highways, admits of no dispute. It is likewise settled that such users, although nonresidents and although engaged exclusively in interstate commerce, may be required to contribute to their cost and upkeep. The highways are public property. The amount of the charges and the method of collection are for the state to determine, so long as they are reasonable and conform to some fair and practical standard. Carley & Hamilton v. Snook, 281 U. S. 66, 50 S. Ct. 204, 74 L. Ed. 704, 68 A. L. R. 194, note page 200; Bekins Van Lines v. Riley, 280 U. S. 80, 50 S. Ct. 64, 74 L. Ed. 178; Clark v. Poor, 274 U. S. 554, 47 S. Ct. 702, 71 L. Ed. 1199; Packard v. Banton, 264 U. S. 140, 44 S. Ct. 257, 68 L. Ed. 596; Kane v. New Jersey, 242 U. S. 160, 37 S. Ct. 30, 61 L. Ed. 222; Hendrick v. Maryland, 235 U. S. 610, 35 S. Ct. 140, 59 L. Ed. 385; Note, 68 A. L. R. 200. We are advised that all of the states of the Union excepting five have passed statutes undertaking to regulate such special use of their highways and to exact special compensation therefor.

The constitutional questions presented cannot be decided until the statute has been construed. This statute has not yet been construed by the state courts; nor are we aided by any administrative interpretation of the department charged with its enforcement. The statute was construed in Louis v. Boynton, supra, as far as was necessary for the determination of that case; but there remains for this court to construe several sections of the statute.

As in the case of most legislation which is the subject of wide interest and which is amended on the floor and in conference, many questions of construction are raised. Counsel for the plaintiffs make many suggestions which would improve the draftsmanship of the bill, as doubtless they will be able to do as to any bill that may be later enacted. We are not aided in our efforts to construe the law by the hypothetical absurdities which are suggested by counsel and which have come to be the conventional method of presenting constitutional questions, for, as was said by the Supreme Court of Oregon in State v. Kozer, 116 Or. 581, 242 P. 621, 624, the constitutionality of a statute cannot be tested by isolated cases conjured up by fertile imagination; it must be tested by "its general application to the classes affected, and not to certain individuals belonging to such classes. Exact equality is not possible. Practical equality is constitutional equality. The human mind has not yet been able to devise any scheme of taxation which will operate with unerring certainty and equality to all situations that may arise. Southwestern Oil Co. v. Texas, 217 U. S. 114, 30 S. Ct. 496, 54 L. Ed. 688; Bell's Gap R'd Co. v. Pennsylvania, 134 U. S. 232, 10 S. Ct. 533, 33 L. Ed. 892."

First looking at the statute as a whole: It is immediately observed that it draws no distinction between residents and nonresidents. Next, it discloses a general intent to levy a reasonable tax for the use of its highways by those who habitually use the highways for business purposes. It divides such users into two general classes, the socalled "public" and "contract" carriers, who are engaged in the business of transportation of property by motor vehicle for hire; and "private" carriers, to which class the plaintiffs belong, who are defined to include "any person engaged in the transportation by motor vehicle of property sold or to be sold by him in furtherance of any private commercial enterprise." The act requires intrastate public carriers to obtain a certificate of convenience and necessity, and provides for the regulation of their charges for services. It requires that private carriers shall apply for a license and furnish certain information, and that, upon the receipt of such information and compliance with the regulations, the license shall be issued. It requires that both public and private carriers conform to certain regulations concerning the safety of the operation of their vehicles, and that both shall provide a bond to indemnify the public against injury. The statute clearly discloses two general plans, one for the control of public carriers, and the other for the control of private carriers. Reading the statute as a whole, there is no difficulty in arriving at the conclusion that the Legislature intended to confine its control of private carriers to matters of taxation and of public safety. The authorities already cited amply sustain the power of the state over all carriers in these two respects.

Two principal questions are presented: The first is whether certain exemptions contained in section 2 of the act are so arbitrary and discriminatory that the entire act must fall; and, second, whether the act imposes upon private carriers duties and obligations which can only lawfully be imposed upon public carriers. Frost v. Commission, 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. But see, Stephenson v. Binford (D. C. S. D. Tex., three-judge court) 53 F.(2d) 509.

We will treat first the question of exemptions. Section 2 of the act provides: "That this act shall not apply to motor carriers who shall operate wholly within any city or village of this state, or private motor carriers who operate within a radius of twenty five miles beyond the corporate limits of such city, or any village, nor to the transportation of live stock and farm products to market by the owner thereof or supplies for his own use in his own motor vehicle; or to the transportation of children to and from school."

There can be no serious question as far as the exemption applies to those vehicles operating wholly within any city or village of the state. As to private carriers, this is primarily a taxing statute, and since city...