Ex Parte Truelock

• Decision Date: 03 April 1940
• Docket Number: No. 20783.,20783.
• Citation: 140 S.W.2d 167
• Parties: Ex parte TRUELOCK.
• Court: Texas Court of Criminal Appeals

140 S.W.2d 167

Ex parte TRUELOCK.

No. 20783.

Court of Criminal Appeals of Texas.

April 3, 1940.

Rehearing Denied May 22, 1940.

Appeal from Montgomery County Court; J. W. Strode, Judge.

Proceeding in the matter of the application of Harry Truelock for a writ of habeas corpus. From a judgment refusing to release him, applicant appeals.

Affirmed.

George Kirkpatrick and James J. Shaw, both of Houston, and T. S. Christopher, of Fort Worth, for appellant.

Gerald C. Mann, Atty. Gen., Benjamin Woodall, Asst. Atty. Gen., and Lloyd W. Davidson, State's Atty., of Austin, for the State.

GRAVES, Judge.

A complaint was filed in the justice court of Montgomery County against the appellant, Harry Truelock, charging him with a violation of the provisions of Article 911b, Vernon's Texas Civil Statutes 1936, Acts 1929, Chap. 314, p. 698, as amended by Acts of 1931, Chap. 277, p. 480, the penal provision being shown as Art. 1690b, Vernon's Texas Ann.Pen.Code 1936.

The complaint alleges that on or about the 15th day of May, 1939, Harry Truelock was a person controlling and operating, and who caused to be operated, a motor-propelled vehicle for hire over State Highway No. 19, being Federal Highway No. 75; that on said date he was engaged in the transportation by motor vehicle of goods, wares and merchandise, shipped and consigned to Emsco Derrick & Equipment Company, from Houston, Texas, to Bavaird Supply Company, at Salem, Illinois, "without first having obtained from the Railroad Commission of Texas a certificate of pubic convenience and necessity pursuant to a finding to the effect that the public convenience and necessity requires such operation, contrary to the statute in such cases made and provided," etc.

Appellant was arrested and brought before the justice court. He applied to the county judge of Montgomery County for a writ of habeas corpus in which he alleged that the act under which he was charged in the justice court was unconstitutional, null and void and repugnant to the Commerce Clause of the Federal Constitution (art. 1, § 8, cl. 3).

From an order of the county judge refusing to release him, the case is brought to this court on appeal.

The case has been thoroughly briefed and argued both by appellant's counsel and by the Attorney General of the State. Many questions have been discussed and numerous authorities relied upon. We have carefully studied each and every question presented but believe that as to many of the questions we are not here called upon to decide them in order to make a proper disposition of this case. Neither do we think it proper for us to do so.

The power of Congress to regulate interstate commerce is supreme, and whenever any statute of a state is in conflict with the enactments of Congress, or whenever it seriously hampers the movement of interstate commerce even over the state public highways, all such state statutes must yield and be superseded by such congressional enactments.

It is an equally well-recognized proposition that whenever the Legislature or any regulatory body, acting for the state, passes a law or promulgates a rule which works an unreasonable discrimination against interstate commerce in favor of intrastate commerce that such a statute and such regulations are invalid.

We must know, in the consideration of this case, that these two well-recognized propositions will be respected. In a general way and without the necessity at this time of noting exceptions to the rule, the state has power to regulate intrastate commerce, when acting in a field where Congress has not chosen to legislate, so long as there is no injustice or unreasonable discrimination in favor of intrastate commerce as against interstate commerce.

The difficulty in which we herein find ourselves is based on the phrase "a certificate of convenience and necessity," and its obvious meaning as will be found by a full reading of the statutes of this State regulating the use of our State highways. Our statute provides, Art. 911b, Sec. 3, Vernon's 1936 Texas Statutes, that: "No motor carrier shall, after this Act goes into effect, operate as a common carrier without first having obtained from the Commission, under the provisions of this Act, a certificate of public convenience and necessity pursuant to a finding to the effect that the public convenience and necessity require such operation. No motor carrier shall, after this Act goes into effect, operate as a contract carrier without first having obtained from the Commission a permit so to do, which permit shall not be issued until the applicant shall have in all things complied with the requirements of this Act. (As amended Acts 1931, 42nd Leg., p. 480, ch. 277, § 3.)"

It is recognized by this court that a certificate embodying the fact that the Railroad Commission of this State has found it convenient and necessary for the moving of freight or passengers in interstate commerce through this State is a necessary preliminary finding before such freight or passengers can lawfully move over such State highways, can not be enforced on account of the fact that such a holding has been found by the United States Supreme Court to be an interference with interstate commerce, and on account of the fact that Congress has seen fit to legislate thereon in the Federal Motor Carrier Act of 1935, Acts 74th Congress, 49 U.S.C.A. § 302. We recognize the fact that our State Commission is powerless to refuse a permit to operate upon this State's highways in the movement of interstate commerce on account of the fact that such body does not think the convenience and necessity of the public demands such additional operation.

We are, however, here confronted with another and further proposition in that the above-quoted phrase "convenience and necessity" seems to be a misnomer in the event such be held to the restricted meaning above outlined. The statute itself seems to be authority for this statement. It will be seen by a perusal of Secs. 8 and 9 thereof that it is not only the duty of the State Commission to ascertain whether or not such freight or passengers shall move over the desired routes, but also, in the exercise of the powers granted or inherent in the State, whether or not such traffic would be hazardous or dangerous to the safety of life, limb or property of the public rightfully on said highway, or whether such highway construction would be capable of withstanding the added traffic thereon. It seems apparent that all three of these propositions enter into what is called a "certificate of convenience and necessity," and when all such have been determined in favor of an application, then, and not until then, it becomes incumbent upon the State Commission to allow the privilege of utilization of public highways over certain pre-designated roads by certain vehicles, limited as is therein provided by law. The Supreme Court of the United States, in Sproles v. Binford, 286 U.S. 374, 389, 52 S.Ct. 581, 585, 76 L.Ed. 1167, page 1179, in speaking of a like statute to the one here under consideration, held as follows: "The objection to the prescribed limitation as repugnant to the commerce clause is also without merit. The court, in Morris v. Duby, supra, 274 U.S. [135] at page 143, 47 S.Ct. 548, 550, 71 L.Ed. 966 [971], answered a similar objection to the limitation of weight by the following statement, which is applicable here: `An examination of the acts of Congress discloses no provision, express or implied, by which there is withheld from the state its ordinary police power to conserve the highways in the interest of the public and to prescribe such reasonable regulations for their use as may be wise to prevent injury and damage to them. In the absence of national legislation especially covering the subject of interstate commerce, the state may rightfully prescribe uniform regulations adapted to promote safety upon its highways and the conservation of their use, applicable alike to vehicles moving in interstate commerce and those of its own citizens.' In the instant case, there is no discrimination against interstate commerce and the regulations adopted by the state, assuming them to be otherwise valid, fall within the established principle that in matters admitting of diversity of treatment, according to the special requirements of local conditions, the states may act within their respective jurisdictions until Congress sees fit to act. Minnesota Rate Cases [Simpson v. Shepard] 230 U.S. 352, 399, 400, 33 S.Ct. 729, 57 L.Ed. 1511 [1541, 1542], 48 L.R.A. (N.S.) 1151, Ann.Cas.1916A, 18."

Although the Sproles case, supra, was decided in 1932 prior to the enactment of the Federal Motor Carrier Act, supra, nevertheless the said Federal Act did not attempt to take away from the State any of the above announced powers. In fact, we find that the same Supreme Court later said in the year 1939, in the case of McDonald v. Thompson, 305 U.S. 263, 59 S. Ct. 176, 178, 83 L.Ed. 164, 165, in an opinion by the late Justice Butler, in discussing what was meant by the proviso "bona fide operation" in the Federal Motor Carrier Act, that same "suggests absence of evasion, excludes the idea that mere ability to serve as a common carrier is enough, includes actual rather than potential or simulated service, and in context implies recognition of the power of the State to withhold or condition the use of its highways in the business of transportation for hire. Plainly the proviso does not extend to one operating as a common carrier on public highways of a State in defiance of its laws."

We also find in the case of Continental Baking Co. v. Woodring, 286 U.S. 352, 52 S.Ct. 595, 76 L.Ed. 1155, 81 A.L.R. 1402, 1403, relative to the several states' powers to tax, license and require liability bonds of common carriers using the highways of the State, the following quotation from the case in 286 U.S. 352, 52 S.Ct. 599, 76 L.Ed. 1155, 81 A.L.R. page 1410: "Requirements of this sort are...