H. P. Welch Co. v. State

• Citation: 199 A. 886
• Decision Date: 01 June 1938
• Docket Number: No. 2966.,2966.
• Parties: H. P. WELCH CO. v. STATE.
• Court: Supreme Court of New Hampshire

199 A. 886

H. P. WELCH CO.

v. STATE.

No. 2966.

Supreme Court of New Hampshire.

June 1, 1938.

Appeal from order of Public Service Commission.

The Public Service Commission entered an order suspending the registration certificates issued by the commission permitting the H. P. Welch Company to lawfully transport property for hire in motor vehicles within the state, either as a common carrier or contract carrier, and H. P. Welch Company appeals.

Appeal dismissed.

Appeal, from an order of the Public Service Commission suspending for five specified days "any and all registration certificates issued by this Commission, permitting the H. P. Welch Company to lawfully transport property for hire in motor vehicles between points within this State, either as a common carrier or contract carrier."

The H. P. Welch Company, for convenience hereinafter referred to as the company, is a Massachusetts corporation engaged in the business of transporting property for hire over the public highways of this and other states. In the conduct of its business it owns and operates a fleet of motor trucks, eighteen of which were registered with the Public Service Commission under Laws 1933, c. 106, §§ 2, 3, as both common and contract carriers for the year 1936, and twenty of which were so registered for the year 1937. Computed on the basis of tonnage approximately 99% of its business during those years was in interstate commerce and the remaining 1% was in intrastate commerce.

On April 13, 1937, the Public Service Commission ordered the company to "show cause why its common and contract carrier certificates should not be suspended or revoked," and set May 6, 1937, as the date for hearing. This order recited violations by the company of the provisions of Laws 1933, c. 106, § 8, "by requiring or permitting a driver to operate after he has been continuously on duty for more than twelve hours." It also recited violations by the company of rule 4N of Circular. No. 2 of the commission's administrative rulings "by requiring or permitting a driver to operate without a record on the vehicle of his hours of service, and by failure to file with the Commission the 'Hours of Service Record' of each driver." At the hearing held pursuant to this order the company appeared by counsel and was given full opportunity to present its evidence and its arguments.

On December 11, 1937, the Public Service Commission filed its report and the order of suspension quoted above. By stipulation the order was suspended pending the outcome of this appeal.

Such further facts as are deemed material are stated in the opinion.

Lawrence I. Duncan and Robert W. Upton, both of Concord, for plaintiff. Dudley W. Orr, of Concord, for the State.

WOODBURY, Justice.

The plaintiff does not contend that the legislature in enacting Laws 1933, c. 106, as amended by Laws 1933, c. 169, intended to impose direct regulations upon interstate commerce as such, nor does it contend that the provisions of these statutes operate either to discriminate against such commerce or to impose an undue or unreasonable burden upon it. Southern Railway Co. v. King, 217 U.S. 524, 30 S.Ct. 594, 54 L.Ed. 868. Neither does the company challenge the doctrine established in Hendrick v. Maryland, 235 U.S. 610, 622, 35 S. Ct. 140, 142, 59 L.Ed. 385, and consistently adhered to ever since (South Carolina State Highway Dept. v. Barnwell Bros., Inc., 58 S.Ct. 510, 82 L.Ed. ——, and cases cited), to the effect that "In the absence of national legislation covering the subject, a state may rightfully prescribe uniform regulations necessary for public safety and order in respect to the operation upon its highways of all motor vehicles,—those moving in interstate commerce as well as others." As summarized in its brief the plaintiff's appeal is "upon the ground that the statute denies to it the equal protection of the laws guaranteed by the Bill of Rights of the Constitution of New Hampshire and by the 14th Amendment to the Constitution of the United States, upon the ground that the statute and Rule 4N, as applied to interstate commerce, have been superseded by the 'Motor Carrier Act, 1935' [49 U.S.C.A. § 301 et seq.], upon the ground that Rule 4N and the orders of the Commission relating thereto exceed the powers and authority of the Commission, and upon the further grounds that the evidence does not establish the Company's responsibility for the alleged violations, and that the findings and conclusions of the Commission set forth above are unwarranted by the evidence."

The statute under consideration applies only to those transporting property for hire, either as common or contract carriers as the latter term is defined in the act, and it applies to them only in so far as they operate motor vehicles over the public highways between points within this state. It does not apply to "those transporting products of their own manufacture or labor," and, in addition, section 4 of the act specifically exempts from its provisions "motor vehicles not principally engaged in the transportation of property for hire," and "motor vehicles operating exclusively within the limits of a single city or incorporated town or within ten miles of the limits thereof or motor vehicles operating beyond such ten-mile limit on occasional trips, not exceeding two trips in any thirty-day period."

The company contends "that these exceptions and exemptions are discriminatory, and deny to it the equal protection of the laws guaranteed by the Constitution of New Hampshire and the Fourteenth Amendment to the Constitution of the United States."

Under Part 1 of the constitution of this state and under the fourteenth amendment to the constitution of the United States persons similarly situated are guaranteed similarity of treatment. In this respect the fourteenth amendment "adds nothing to the rights and liberties of the citizens of this state" (State v. Pennoyer, 65 N.H. 113, 115, 18 A. 878, 880, 5 L.R.A. 709), "for our constitution secures to every person within its jurisdiction all the rights guarantied to citizens of the United States by that amendment." State v. Aldrich, 70 N.H. 391, 47 A. 602, 85 Am.St.Rep. 631. Not every legislative classification is within the ban of these constitutional limitations however. "Class legislation, discriminating against some and favoring others, is prohibited; but legislation which, in carrying out a public purpose, is limited in its application, if within the sphere of its operation it affects alike all persons similarly situated, is not within the amendment." Barbier v. Connolly, 113 U.S. 27, 32, 5 S.Ct. 357, 360, 28 L.Ed. 923. Or, as stated in Re Opinion of the Justices, 85 N.H. 562, 564, 154 A. 217, 221, "Classification to be valid must reasonably promote some proper object of public welfare or interest and may not be sustained when the selection and grouping is so arbitrary as to serve no useful purpose of a public nature." Legislative classification to be constitutional must be based upon some substantial foundation, it may not be arbitrary, it must be germane to the purpose of the law. Woolf v. Fuller, 87 N.H. 64, 72, 73, 174 A. 193, 94 A.L.R. 1067.

Recent decisions of the Supreme Court of the United States sustain the validity under the fourteenth amendment of classifications substantially similar to those made in the statute under consideration. Under these decisions a state, in the interest of highway safety, may not only single out carriers for hire by motor vehicle from such carriers in general and apply to the former regulations from which the latter are exempt, but it may also create classifications among carriers for hire based upon the nature and extent of their use of the highways. Packard v. Banton, 264 U.S. 140, 44 S.Ct. 257, 68 L. Ed. 596; Bekins Van Lines, Inc., v. Riley, 280 U.S. 80, 50 S.Ct. 64, 74 L.Ed. 178; Alward v. Johnson, 282 U.S. 509, 51 S.Ct. 273, 75 L.Ed. 496, 75 A.L.R. 9; Continental Baking Co. v. Woodring, 286 U.S. 352, 52 S.Ct. 595, 76 L.Ed. 1155, 81 A.L.R. 1402; Sproles v. Binford, 286 U.S. 374, 52 S.Ct. 581, 76 L.Ed. 1167; Hicklin v. Coney, 290 U.S. 169, 54 S.Ct. 142, 78 L.Ed. 247.

In the Continental Baking Company Case the court said, page 373, 52 S.Ct. page 602, "The Legislature in making its classification was entitled to consider frequency and character of use and to adapt its regulations to the classes of operations, which by reason of their habitual and constant use of the highways brought about the conditions making regulation imperative." And, in Sproles v. Binford, supra, the court said (page 588): "There is no constitutional requirement that regulation must reach every class to which it might be applied—that the Legislature must regulate all or none. * * * The state is not bound to cover the whole field of possible abuses. * * * The question is whether the classification adopted lacks a rational basis."

These decisions establish that classifications of the sort here under consideration do not lack a "rational basis", and they are conclusive upon us on the question of the validity of Laws 1933, c. 106, under the fourteenth amendment to the federal constitution. In addition these decisions "are authority to be weighed" on the question of the validity of that statute under the constitution of this state. State v. Pennoyer, 65 N.H. 113, 115, 18 A. 878, 5 L.R.A. 709.

One of the expressed and evident purposes of the statute before us is to protect the users of the highways of this state from the dangers likely to result to them from the operation thereon of trucks under the control of drivers suffering from the effects of fatigue. Undoubtedly this is a legitimate exercise of the state's police power, and, while it is true that a fatigued truck-driver transporting goods manufactured by him or his employer is as great a menace upon the highway as such a driver transporting property for hire, it does not follow that in the interest of highway safety no...