Liberty Highway Co. v. Michigan Public Utilities Commission

• Decision Date: 11 December 1923
• Docket Number: 593.
• Citation: 294 F. 703
• Parties: LIBERTY HIGHWAY CO. et al. v. MICHIGAN PUBLIC UTILITIES COMMISSION et al.
• Court: U.S. District Court — Eastern District of Michigan

294 F. 703

LIBERTY HIGHWAY CO. et al. v. MICHIGAN PUBLIC UTILITIES COMMISSION et al.

No. 593.

United States District Court, E.D. Michigan, Southern Division.

December 11, 1923

The plaintiff Liberty Highway Company is an Ohio corporation engaged in transporting freight by means of motor trucks between fixed points in Ohio and fixed points in Michigan operating upon the highways of Michigan over fixed routes. It claims to be engaged solely in interstate business and to do no intrastate business; to have developed a large and profitable business, with an investment in excess of $70,000 that it employs many trucks and trailers, and that in its business it subcontracts with others for the employment of motor trucks, some of which are owned in Ohio by citizens thereof, and that the coplaintiff, Charles Kabel, is one of its subcontractors. The Michigan Public Utilities Commission defendant, is a commission created by statute of Michigan as a successor to the Michigan Railroad Commission, and is empowered by law to regulate and control certain public utilities operated within the state. The other defendants are county and state officers whose duty it is to enforce the laws of Michigan, and by virtue of their offices threaten to enforce as to plaintiffs the provisions of Act 209 of the Public Acts of Michigan of 1923, approved May 23, 1923, and entitled as follows: 'An act to regulate and define common carriers of persons and property by motor vehicle on public highways of this state, prescribing the payment and fixing the amount of privilege taxes for such carriers, the disposition of such taxes, and prescribing penalties for violation of this act. ' The object of this action is to enjoin the enforcement of this act as against the plaintiffs on the ground that it contravenes provisions of the federal and state Constitutions. The act provides that no person firm, or corporation shall engage or continue in the business of transporting persons or property by motor vehicle for hire over the public highways of the state over fixed routes, or between fixed termini, unless they shall have obtained a permit from the Michigan Public Utilities Commission, which shall be issued in accordance with public convenience and necessity. It provides that the commission shall prescribe appropriate rules and regulations; that it may withhold such permit in whole or in part; that all persons or corporations engaged in the business described in the act shall be common carriers; that all laws of the state regulating transportation by other common carriers, including regulation of rates, shall apply to common carriers by motor vehicle; that the permit to be granted shall specify routes; that whether motor vehicles operate over fixed routes, or between fixed termini, shall be a question of fact upon which the commission's finding shall be final; that permits may be granted, suspended, or revoked for violation of the act, or the rules or regulations of the commission; that all common carriers under the act shall carry insurance for the protection of persons and property carried by them, and shall furnish an indemnity bond conditioned upon payment of just claims and liabilities; that every carrier shall pay to the commission, for the use of the state, as a privilege fee, $1 for each 100 pounds of weight of each motor vehicle, which fees shall be in addition to motor vehicle tax prescribed by general law; that permits shall be good for one year, and shall be renewed upon like terms from year to year; that all fees shall be paid into the state treasury, and are appropriated to the general highway fund for highway purposes; that violations of the act shall be punishable by fine or imprisonment or both; that the commission may use any and all available legal and equitable remedies of a civil nature to enforce the provisions of the act, or its rules and regulations made in pursuance thereof; that each section of the act shall be independently operative, and that the unconstitutionality of any section shall not invalidate the remainder of the act, and the act is given immediate effect. Act 209 contains 11 sections, of which sections 3 and 7 are set forth in full in the margin. ^[1] The defendants answer jointly and move for a dismissal of the bill of complaint.

George E. Brand, of Detroit, Mich., for plaintiffs.

Andrew B. Dougherty, Atty. Gen., O. L. Smith, Asst. Atty. Gen., and W. L. carpenter and H. E. Spaulding, both of Detroit, Mich., amici curiae, for defendants.

Before DONAHUE, Circuit Judge, and TUTTLE and SIMONS, District Judges, under section 266 of the Judicial Code.

PER CURIAM.

Plaintiffs seek to have enforcement of Act 209 of the Public Acts of Michigan of 1923 enjoined upon the ground of its alleged unconstitutionality, both under the Michigan and the federal Constitutions. They contend: (1) That it violates section 21 of article 5 of the Constitution of Michigan, in that its real object is not expressed in the title, and in that it contains a plurality of objects. (2) That it violates the interstate commerce clause of the federal Constitution, in that it unlawfully regulates and burdens interstate commerce. (3) That the Federal Highway Act (Comp. St. Ann. Supp. 1923 Sec. 7477 1/4 et seq.) precludes the enactment of a tax for the use of roads built partly with federal aid. (4) That the act is discriminatory class legislation. (5) That it is void for uncertainty and indefiniteness.

1. Act 209 of the Public Acts of Michigan of 1923 has as its general object the establishment of a scheme for licensing and for the accompanying regulation of common carriers by motor vehicle on and in connection with the public highways of the state. The license fee in question is prescribed for the privilege of using such highways, and is a part of such regulatory scheme. All of the provisions of the act applying to common carriers are germane, auxiliary, or incidental to the general purpose. The statute has only one object, which is sufficiently indicated in its title, and it is therefore not defective in this respect, within section 21 of article 5 of the Michigan Constitution, which provides:

'No law shall embrace more than one object which shall be expressed in its title. ' Jasnowski v. Board of Assessors, 191 Mich. 287, 157 N.W. 891; Loomis v. Rogers, 197 Mich. 265, 163 N.W. 1018; Attorney General v. Hillyer, 221 Mich. 537, 191 N.W. 827.

The principal objection urged to the title of the act is that it purports to regulate and define common carriers generally, whereas the provisions of the act are restricted to a class of common carriers. This is not a fatal defect in the title. Where the title of the act is broader than the act itself, it has not usually been regarded as a fatal defect, unless the title failed to give notice of what the act contained. Jasnowski v. Judge of Recorder's Court, 192 Mich. 139, 158 N.W. 229, and cases therein cited.

As, however, the title to this act has reference only to common carriers, any provisions thereof so broad in their terms as to be applicable also to private carriers are foreign to such title and fall under the condemnation of the Michigan constitutional requirements herein referred to. Such provisions are the provisions of section 3. They are, however, independent of and separable from those that apply to common carriers, and their invalidity does not affect the remainder of the act. Klatt v. Probate Judge, 159 Mich. 203, 123 N.W. 542; Chambers v. Grand Ledge, 162 Mich. 344, 127 N.W. 353; Attorney General v. Hillyer, supra; City of Lansing v. Board of State Auditors, 111 Mich. 327, 69 N.W. 723.

2. It is not within the power of the state, even under the guise of an exercise of its police power, to require a license for the privilege of engaging in or otherwise interfering with interstate commerce as such, for that would be to regulate such commerce, the power to do which has been surrendered by the state to Congress. Wabash, St. Louis & Pacific Railway Co. v. Illinois, 118 U.S. 557, 7 Sup.Ct. 4, 30 L.Ed. 244; Robbins v. Taxing District, 120 U.S. 489, 7 Sup.Ct. 592, 30 L.Ed. 694; Bowman v. Chicago & Northwestern Railway Co., 125 U.S. 465, 8 Sup.Ct. 689, 1062, 31 L.Ed. 700; Harmon v. Chicago, 147 U.S. 396, 13 Sup.Ct. 306, 37 L.Ed. 216; Brennan v. Titusville, 153 U.S. 289, 14 Sup.Ct. 829, 38 L.Ed. 719; Barrett v. New York, 232 U.S. 14, 34 Sup.Ct. 203, 58 L.Ed. 483; Sault Ste. Marie v. International Transit Co., 234 U.S. 333, 34 Sup.Ct. 826, 58 L.Ed. 1337, 52 L.R.A.(N.S.) 574; Askren v. Continental Oil Co., 252 U.S. 444, 40 Sup.Ct. 355, 64 L.Ed. 654; Lemke v. Farmers' Grain Co., 258 U.S. 50, 42 Sup.Ct. 244, 66 L.Ed. 458.

The commerce clause of the federal Constitution does not however, deprive the states of the right to reasonably regulate under their police power the use of their public highways, and to that end to require a license and impose a reasonable charge therefor, for the privilege of such use, even if thereby interstate commerce is incidentally affected, provided that such regulation, license, and charge bear a reasonable relation to the safe and proper maintenance and protection of such highways, do not obstruct or burden interstate commerce, and are not in conflict with federal legislation on the same subject enacted within constitutional limitations. Escanaba & Lake Michigan Transportation Co. v. Chicago, 107 U.S. 678, 2 Sup.Ct. 185, 27 L.Ed. 442; St. Louis v. Western Union Telegraph Co., 148 U.S. 92, 13 Sup.Ct. 485, 37 L.Ed. 380; Minnesota Rate Cases (Simpson v. Shepard) 230 U.S. 352, 33 Sup.Ct. 729, 57 L.Ed. 1511, 48 L.R.A.(N.S.) 1151, Ann. Cas. 1916A, 18; Hendrick v. Maryland, 235 U.S. 610, 35 Sup.Ct. 140, 59 L.Ed. 385; Kane v. New Jersey, 242 U.S. 160, 37 Sup.Ct. 30, 61 L.Ed. 222; Mackay Telegraph & Cable...