Hoover Motor Express Co., Inc. v. Fort

• Citation: 72 S.W.2d 1052,167 Tenn. 628
• Parties: HOOVER MOTOR EXPRESS CO., Inc., et al. v. FORT, Commissioner, et al.
• Decision Date: 23 June 1934
• Court: Supreme Court of Tennessee

72 S.W.2d 1052

167 Tenn. 628

HOOVER MOTOR EXPRESS CO., Inc., et al. v. FORT, Commissioner, et al.

Supreme Court of Tennessee.

June 23, 1934

Appeal from Chancery Court, Davidson County; R. B. C. Howell Chancellor.

Suit by the Hoover Motor Express Company, Inc., and others against Dancey Fort, Commissioner, and others. From so much of a decree as overruled defendants' demurrer to the bill and denied their motion to dissolve an injunction, they appeal.

Reversed and bill dismissed.

Richard Gleaves and W. C. Cherry, both of Nashville, for appellants.

Roy H Beeler, Atty. Gen., and Edwin F. Hunt, Asst. Atty. Gen., for appellees.

Charles N. Burch, of Memphis, amicus curiae.

GREEN Chief Justice.

This suit was brought by several concerns, operating trucks over the highways of the state, against designated state officials to enjoin the enforcement of chapter 35 of the Public Acts of 1933, amended by chapter 143 of the Public Acts of the same year. These statutes, among other things, limit the weight and dimensions of such vehicles as the complainants have been operating. The chancellor held the legislation invalid, and the state officials have appealed.

A fiat for the preliminary injunction was obtained by the complainants at the filing of the bill. The defendants interposed a demurrer and at the same time filed an answer to support their motion to dissolve the injunction. As we read the decree of the chancellor, he overruled the demurrer, and by the same order refused to dissolve the injunction.

The chancellor permitted defendants an appeal from this decree "insofar as it overrules their demurrer and denies their motion to dissolve the injunction on the pleadings." Section 9038 of the Code, authorizing the chancellor in his discretion to permit appeals from certain interlocutory orders, justified the allowance of the appeal from the decree herein to the extent that the decree overruled the demurrer. This statute, however, did not justify the allowance of an appeal from the decree denying the "motion to dissolve the injunction on the pleadings." Mengle Box Co. v Lauderdale County, 144 Tenn. 266, 230 S.W. 963,

and authorities cited. The case as it is before us, therefore, brings up only the bill, the amended bill, and the demurrers thereto. We assume that defendants, in prosecuting the appeal under section 9038, have abandoned their answer.

Chapter 35 of the Public Acts of 1933 is entitled "An Act to protect the safety of travel on highways of the State as defined in this Act and for the better presentation (preservation) of such highways by declaring and limiting the conditions under which motor vehicles primarily designed and used for the hauling of property or freight may be used on said highways," etc.

It is not necessary to set out the various sections of the statute. Reference will be made to several sections of the act in the course of the opinion. The chief controversy presented arises out of section 4 and section 5 of the act and the exceptions to the provisions of these sections contained in section 7.

Section 4. "That no motor vehicle subject to this Act or any trailer or semi-trailer, whose width, including any part of the load, exceeds eight feet (that is, four feet on each side of the center line of the vehicle) or whose height, including any part of the load, exceeds twelve feet, shall be operated on any highway.

Section 5. "That no motor vehicle subject to this Act weighing in the aggregate, with load or loads included, more than Eighteen Thousand pounds, shall be operated on any highway, and in ascertaining the weight of any motor vehicle with trailer or semi-trailer attached, weight of the motor vehicle, the weight of the trailer or semi-trailer and the weight of the load or loads on both shall be added and the total of all said aforementioned weights shall not exceed eighteen thousand pounds. And it is hereby declared to be the purpose of this section to treat a motor vehicle with trailer attached or a motor vehicle with semi-trailer attached as one vehicle and not as two separate vehicles.

"The Commissioner of Highways and Public Works shall have authority to provide by rule, which may from time to time be changed upon reasonable public notice to meet changing conditions, the manner in which the maximum weight herein authorized is to be distributed, with the end in view of minimizing the wear and tear on the public roads of the State.

Section 7. That this Act shall not apply to any motor vehicle operated by the United States or by the State of Tennessee or any county or municipality of the State of Tennessee; nor shall this Act apply to motor vehicles while operating on the streets of any municipal corporation or on any highway for a distance of five miles beyond the limits of any municipal corporation having a population of twenty thousand or less; or a distance of five miles beyond the limits of any municipal corporation having a population of more than twenty thousand but not exceeding one hundred thousand; or a distance of twelve miles beyond the limits of any municipal corporation having a population of more than one hundred thousand, said populations to be determined by the United States census of 1930 or any subsequent United States census; nor shall the provisions of this Act apply to farm tractors or farm machinery temporarily moving on any highway."

The chancellor was of opinion that the exceptions contained in section 7 destroyed the asserted tendency of the statute to preserve the highways of the state, and that the effect of these exceptions was to make of this statute an enactment creating unjustifiable and arbitrary classifications in contravention of the due process and equal protection provisions of the Fourteenth Amendment to the Constitution of the United States and similar provisions of section 8 of article 1 and section 8 of article 11 of the Constitution of Tennessee.

The chancellor further expressed the opinion that chapter 35 of the Public Acts of 1933 was an exercise of the police power of the state and not an exercise of the proprietary power of the state. There has been much debate as to this question in this court. If the chancellor was correct in saying that this statute had no reasonable tendency to preserve the highways of the state, then no doubt he properly concluded that the act should be tested as a mere police regulation. If, on the contrary, the statute does tend to protect and preserve the state's highways, the state's property, we can but regard it as an exercise of the state's proprietary power.

The Supreme Court of the United States, in several recent decisions, has considered the powers of the state with regard to the regulation and prohibition of traffic on state highways. It seems to us that all the substantial questions raised by the complainants in this case have been considered and determined adversely to complainants' contentions in the decisions of the Supreme Court. Since that court is the final arbiter of questions such as are herein raised by the complainants, independent discussion of these questions by this court would be of little profit and lack authority. We find it sufficient, therefore, in the disposition of this case, for the most part, to confine the opinion to bare references to the rulings of the Supreme Court of the United States.

Decisions of that tribunal to which we refer, and which have covered practically all the points made by complainants, are: Packard v. Banton, 264 U.S. 140, 44 S.Ct. 257, 68 L.Ed. 596; Frost & Frost Trucking Co. v. Railroad Comm., 271 U.S. 583, 46 S.Ct. 605, 70 L.Ed. 1101, 47 A. L. R. 457; Hodge Co. v. Cincinnati, 284 U.S. 337, 52 S.Ct. 144, 76 L.Ed. 323; 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, 588, 76 L.Ed. 1167; Stephenson v. Binford, 287 U.S. 251, 53 S.Ct. 181, 187, 77 L.Ed. 288, 87 A. L. R. 721.

These cases lay down certain fundamental propositions. Among others, that the primary use of the state highways is the use for private purposes; that no person is entitled to use the highways for gain as a matter of common right; that as a proprietor, in preserving its highways, the state may, with little restraint, prescribe the conditions on which those highways can be used.

One objection made by complainants to the act of 1933 is that it applies only to motor vehicles used for carrying freight and does not apply to motor vehicles used for the hauling of passengers. It is said that a bus with its load often weighs more than a truck with its load, is therefore more destructive to the highway, and that the discrimination between trucks and busses cannot be justified.

To the same argument, which was presented in Sproles v. Binford, supra, it was said:

"But in passing upon the question of the constitutional power of

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