Frost v. Railroad Commission of State of California, No. 828

CourtUnited States Supreme Court
Writing for the CourtSUTHERLAND
Citation46 S.Ct. 605,70 L.Ed. 1101,47 A. L. R. 457,271 U.S. 583
PartiesFROST et al. v. RAILROAD COMMISSION OF STATE OF CALIFORNIA
Decision Date07 June 1926
Docket NumberNo. 828

271 U.S. 583
46 S.Ct. 605
70 L.Ed. 1101
FROST et al.

v.

RAILROAD COMMISSION OF STATE OF CALIFORNIA.

No. 828.
Argued April 21, 22, 1926.
Decided June 7, 1926.

Page 584

Mr. Max Thelen, of San Francisco, Cal., for plaintiffs in error.

[Argument of Counsel from page 584 intentionally omitted]

Page 585

Mr. Carl I. Wheat, of San Francisco, Cal., for defendant in error.

[Argument of Counsel from pages 585-588 intentionally omitted]

Page 589

Mr. Justice SUTHERLAND delivered the opinion of the Court.

This case involves the constitutional validity of the Auto Stage and Truck Transportation Act of California (Statutes of California 1917, p. 330, c. 213), as construed and applied to plaintiffs in error by the state Supreme Court. The specific challenge is that, as so construed and applied, it takes their property for public use without just compensation, deprives them of their property without due process of law, and denies them the equal protection of the laws, in violation of the Fourteenth Amendment to the federal Constitution. The act provides for the supervision and regulation of transportation for compensation over public highways by automobiles, auto trucks, etc., by the Railroad Commission. The term 'transportation company' is defined to mean a common carrier for compensation over any public highway between fixed termini or over a regular route. By section 3(a) no corporation or person is permitted to operate any automobile, auto truck, etc., 'for the transportation of persons or property as a common carrier for compensation on any public highway in this state between any fixed termini * * * unless a permit has first been secured as herein provided.' Permits are issued upon application by the incorporated city or town, city and county, or county within or through which the applicant intends to operate. By section 4, the Railroad Commission is empowered to supervise

Page 590

and regulate such transportation companies, and to fix their rates, fares, charges, classifications, rules, and regulations, and generally, to regulate them in all matters affecting their relationship with the traveling and shipping public. Section 5 requires, in addition to the permit, that the applicant must obtain from the Railroad Commission a certificate declaring that public convenience and necessity require the exercise of such right or privilege, and it provides that the commission may attach to the exercise of the rights granted such terms and conditions as in its judgment the public convenience and necessity may require. Operation under a permit without such certificate is prohibited. In 1919, the act was amended (Statutes 1919, c. 280. p. 457), so as to bring under the regulative control of the commission automotive carriers of persons or property operating under private contracts of carriage, and the term 'transportation company' was enlarged so as to include such a carrier. It was further provided that no such transportation company shall operate for compensation over the highways without first having secured from the commission a certificate of public convenience and necessity so to do.

Plaintiffs in error were engaged under a single private contract in transporting, for signle private contract in transporting, for stipulated compensation, citrus fruit over the were brought before the commission charged with violating the act, for the reason that they has not secured from the commission a certificate of public convenience and necessity. The commission, while agreeing that plaintiffs in error were, in fact, private carriers, held that they were subject to the provisions of the act and directed them to suspend their operations under their contract unless and until they should secure a certificate that public convenience and necessity required the resumption or continuance thereof. The commission's order was upheld by the state Supreme Court. 240 P. 26.

Page 591

On behalf of plaintiffs in error the contention is that, in its application to private carriers, the act has the effect of transforming them into public carriers by legislative fiat. Upon the other side it is said that the sole purpose of the legislation 'is to impress upon such private carriers certain regulations so long as they desire to use the publicly built and owned highways as the chief situs of their business of hauling goods for compensation,' and that 'they are not, and cannot be, forced, directly or indirectly, to become common carriers.'

It is unnecessary to inquire which view is correct, since the act has been authoritatively construed by the state Supreme Court. That court, while saying that the state was without power, by mere legislative fiat or even by constitutional enactment, to transmute a private carrier into a public carrier, declared that the state had the power to grant or altogether withhold from its citizens the privilege of using its public highways for the purpose of transacting private business thereon, and that therefore the Legislature might grant the right on such conditions as it saw fit to impose. In the light of this general statement of principle, it was held that the effect of the transportation act is to offer a special privilege of using the public highways to the private carrier for compensation upon condition that he shall dedicate his property to the quasi public use of public transportation; that the private carrier is not obliged to submit himself to the condition, but, if he does not, he is not entitled to the privilege of using the highways.

It is very clear that the act, as thus applied, is in no real sense a regulation of the use of the public highways. It is a regulation of the business of those who are engaged in using them. Its primary purpose evidently is to protect the business of those who are common carriers in fact by controlling competitive conditions. Protection or conservation of the highways is not involved. This, in effect,

Page 592

is the view of the court below plainly expressed. 240 P. 26.

Thus, it will be seen that, under the act as construed by the state court, whose construction is binding upon us, a private carrier may avail himself of the use of the highways only upon condition that he dedicate his property to the business of public transportation and subject himself to all the duties and burdens imposed by the act upon common carriers. In other words, the case presented is not that of a private carrier, who, in order to have the privilege of using the highways, is required merely to secure a certificate of public convenience and become subject to regulations appropriate to that kind of a carrier, but it is that of a private carrier, who, in order to enjoy the use of the highways, must submit to the condition of becoming a common carrier and of being regulated as such by the Railroad Commission. The certificate of public convenience, required by section 5, is exacted of a common carrier, and is purely incidental to that status. The requirement does not apply to a private carrier qua private carrier, but to him only in his imposed statutory character of common carrier. Apart from that signification, so far as he is concerned, it does not exist.

That, consistently with the due process clause of the Fourteenth Amendment, a private carrier cannot be converted against his will into a common carrier by mere legislative command, is a rule not open to doubt, and is not brought into question here. It was expressly so decided in Michigan Commission v. Duke, 266 U. S. 570, 577,578, 45 v. Duke, 266 U. S. 570, 577, 578, 45 also, Hissem v. Guran, 112 Ohio St. 59, 146 N. E. 808; State v. Nelson, 65 Utah, 457, 462, 238 P. 237. The naked question which we have to determine, therefore, is whether the state may bring about the same result by imposing the unconstitutional requirement as a condition precedent to the enjoyment of a privilege, which, without so deciding, we shall assume to be within the power of the state altogether to

Page 593

withhold if it sees fit to do so. Upon the answer to this question, the constitutionality of the statute now under review will depend.

There is involved in the inquiry not a single power, but two distinct powers. One of these, the power to prohibit the use of the public highways in proper cases, the state possesses; and the other, the power to compel a private carrier to assume against his will the duties and burdens of a common carrier, the state does not possess. It is clear that any attempt to exert the latter, separately and substantively, must fall before the partamount authority of the Constitution. May it stand in the conditional form in which it is here made? If so, constitutional guaranties, so carefully safeguarded against direct assault, are open to destruction by the indirect, but no less effective, process of requiring a surrender, which, though in form voluntary, in fact lacks none of the elements of compulsion. Having regard to form alone, the act here is an offer to the private carrier of a privilege, which the state may grant or deny, upon a condition which the carrier is free to accept or reject. In reality, the carrier is given no choice, except a choice between the rock and the whirlpool-an option to forego a privilege which may be vital to his livelihood or submit to a requirement which may constitute an intolerable burden.

It would be a palpable incongruity to strike down an act of state legislation which, by words of express divestment, seeks to strip the citizen of rights guaranteed by the federal Constitution, but to uphold an act by which the same result is accomplished under the guise of a surrender of a right in exchange for a valuable privilege which the state threatens otherwise to withhold. It is not necessary to challenge the proposition that, as a general rule, the state, having power to deny a privilege altogether, may grant it upon such conditions as it sees fit to impose. But the power of the...

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385 practice notes
  • Koontz v. St. Johns River Water Mgmt. Dist., No. 11–1447.
    • United States
    • U.S. Supreme Court
    • June 25, 2013
    ...the distinction between conditions precedent and conditions subsequent. See, e.g.,Frost & Frost Trucking Co. v. Railroad Comm'n of Cal., 271 U.S. 583, 592–593, 46 S.Ct. 605, 70 L.Ed. 1101. It makes no difference that no property was actually taken in this case. Extortionate demands [133 S.C......
  • Watson v. Employers Liability Assurance Corporation, No. 6
    • United States
    • United States Supreme Court
    • December 6, 1954
    ...352; Fidelity & Deposit Co. (of Maryland) v. Tafoya, 270 U.S. 426, 46 S.Ct. 331, 70 L.Ed. 664; Frost Trucking Co. v. Railroad Commission, 271 U.S. 583, 46 S.Ct. 605, 70 L.Ed. 1101; Hanover Fire Insurance Co. v. Harding, 272 U.S. 494, 47 S.Ct. 179, 71 L.Ed. 372. And for this reason a state m......
  • Bagley v. Washington Tp. Hospital Dist., S.F. 21831
    • United States
    • United States State Supreme Court (California)
    • December 20, 1966
    ...of benefits or privileges upon the non-assertion of constitutional rights. (See, e.g., Frost & Frost Trucking Co. v. Railroad Com. (1926) 271 U.S. 583, 593--594, 46 S.Ct. 605, 70 L.Ed. 1101; Terral v. Burke Constr. Co. (1922) 257 U.S. 529, 532--533, 42 S.Ct. 188, 66 L.Ed. 352.) The governme......
  • Bryan v. Austin, Civ. A. 5792.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • January 22, 1957
    ...rights. Terral v. Burke Construction Co., 257 U.S. 529, 42 S.Ct. 188, 66 L. Ed. 352; Frost (Frost Trucking Co.) v. Railroad Commission, 271 U.S. 583, 594, 46 S.Ct. 605, 70 L.Ed. 1101; Alston v. School Board of City of Norfolk, 4 Cir., 112 F.2d 992, 997, 130 A.L.R. 1506. The Court of Appeals......
  • Request a trial to view additional results
384 cases
  • Koontz v. St. Johns River Water Mgmt. Dist., No. 11–1447.
    • United States
    • U.S. Supreme Court
    • June 25, 2013
    ...the distinction between conditions precedent and conditions subsequent. See, e.g.,Frost & Frost Trucking Co. v. Railroad Comm'n of Cal., 271 U.S. 583, 592–593, 46 S.Ct. 605, 70 L.Ed. 1101. It makes no difference that no property was actually taken in this case. Extortionate demands [133 S.C......
  • Watson v. Employers Liability Assurance Corporation, No. 6
    • United States
    • United States Supreme Court
    • December 6, 1954
    ...352; Fidelity & Deposit Co. (of Maryland) v. Tafoya, 270 U.S. 426, 46 S.Ct. 331, 70 L.Ed. 664; Frost Trucking Co. v. Railroad Commission, 271 U.S. 583, 46 S.Ct. 605, 70 L.Ed. 1101; Hanover Fire Insurance Co. v. Harding, 272 U.S. 494, 47 S.Ct. 179, 71 L.Ed. 372. And for this reason a state m......
  • Bagley v. Washington Tp. Hospital Dist., S.F. 21831
    • United States
    • United States State Supreme Court (California)
    • December 20, 1966
    ...of benefits or privileges upon the non-assertion of constitutional rights. (See, e.g., Frost & Frost Trucking Co. v. Railroad Com. (1926) 271 U.S. 583, 593--594, 46 S.Ct. 605, 70 L.Ed. 1101; Terral v. Burke Constr. Co. (1922) 257 U.S. 529, 532--533, 42 S.Ct. 188, 66 L.Ed. 352.) The governme......
  • Bryan v. Austin, Civ. A. 5792.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • January 22, 1957
    ...rights. Terral v. Burke Construction Co., 257 U.S. 529, 42 S.Ct. 188, 66 L. Ed. 352; Frost (Frost Trucking Co.) v. Railroad Commission, 271 U.S. 583, 594, 46 S.Ct. 605, 70 L.Ed. 1101; Alston v. School Board of City of Norfolk, 4 Cir., 112 F.2d 992, 997, 130 A.L.R. 1506. The Court of Appeals......
  • Request a trial to view additional results
1 books & journal articles
  • State and Local Regulation of Religious Solicitation of Funds: A Constitutional Perspective
    • United States
    • ANNALS of the American Academy of Political and Social Science, The Nbr. 446-1, September 1979
    • September 1, 1979
    ...1960). (b). 74. See, e.g., Grayned v. City of Rockford, 76. Frost & Frost Trucking Co., v. Railroad 408 U.S. 104 (1972). Commission, 271 U.S. 583, 593-94 example, governmental intrusion prohibition is absolute; under others, into membership books and records the courts will use a balancing ......

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