Nutt v. Ellerbe

• Decision Date: 09 March 1932
• Citation: 56 F.2d 1058
• Court: U.S. District Court — District of South Carolina
• Parties: NUTT v. ELLERBE et al.

56 F.2d 1058 (1932)

NUTT v. ELLERBE et al.

District Court, E. D. South Carolina.

March 9, 1932.

B. Wofford Wait, of Tampa, Fla., and Nathans & Sinkler, of Charleston, S. C., for plaintiff.

Jno. M. Daniel, Atty. Gen., for South Carolina and Cordie Page and J. Ivey Humphrey, Asst. Attys. Gen., for defendants.

Before PARKER, Circuit Judge, and GLENN and ERNEST F. COCHRAN, District Judges.

ERNEST F. COCHRAN, District Judge.

The plaintiff filed his bill for an injunction against the defendants to prevent them from enforcing acts of the state of South Carolina which will be hereinafter cited, on the ground that those statutes are in conflict with the Constitution of the United States. A temporary restraining order was granted pending the hearing upon the application for an interlocutory injunction by three judges pursuant to section 266 of the Judicial Code (28 USCA § 380). The application has been heard before three judges, and the question of the issuance of the interlocutory injunction now comes up for decision.

The plaintiff is a citizen of Florida, and the defendants are all citizens of South Carolina. The plaintiff has twenty motortrucks which he operates for the hauling of freight and property both intrastate and interstate. He is not a common carrier, but is engaged in the business commonly known as contract hauling of freight and property for compensation and does not operate upon a regular schedule nor over a regular route, nor does he solicit or receive patronage along the route. Taxes have been assessed against him under the acts hereinafter referred to in the sum of $813.84, and demand has been made upon him therefor; and upon his failure to pay, the railroad commission has revoked his certificate for the operation of his motortrucks and has threatened to levy upon them for the payment of the taxes. Unless the taxes are paid, his trucks will be subject to levy and sale and his drivers to arrest and punishment under these acts. The value of the plaintiff's right to operate his trucks exceeds the sum of $3,000.

The plaintiff was engaged in this business of private contract hauling prior to the act of the Legislature of 1925 (Act approved April 8, 1925, 34 St. at Large, p. 252), and has been continuously engaged in that business up to the present time. Sections 1 and 2 of the act of 1925 are as follows:

"Section 1. Terms Defined. — Be it enacted by the General Assembly of the State of South Carolina: (a) The term `corporation' wherever used in this act means a corporation, company, association or joint stock association. (b) The term `person' wherever used in this act, means an individual, a firm or copartnership. (c) The term `commission' wherever used in this act, means the Highway Commission of the State of South Carolina. (d) The term `motor vehicle carrier' wherever used in this act, means every corporation or person, their lessees, trustees or receivers, owning, controlling, operating or managing any motor propelled vehicle not usually operated on or over rails, used in the business of transporting persons or property for compensation over any improved public highway or streets as hereinafter defined, in this State. (e) For the purpose of this act, all vehicles equipped to carry a load and which are attached to and drawn by a motor vehicle, are hereby defined as trailers, and shall be classed as motor vehicles and subject to the provisions of this Act. (f) The term `improved public highway' wherever used in this act, means every improved public highway in this State which is or may hereafter be declared to be a part of the State Highway system or any county highway system, or the streets of any city or town.

"Section 2. Transportation by Motor Vehicle for Compensation Regulated — Exceptions — Permits. — No corporation or person, their lessees, trustees, or receivers, shall operate any motor-propelled vehicle as herein before defined for transportation of persons or property for compensation on any improved public highways in this State, except in accordance with the provisions of this act, and such operation shall be subject to control, supervision and regulation by the commission in the manner provided by this act: Provided, however, That nothing in this act contained shall apply to motor vehicles while used exclusively for transporting persons to and from schools, Sunday schools, churches, or religious services of any kind, or to or from picnics or upon special prearranged excursions, or to United States mail carriers operating star routes, while engaged solely in carrying mail, or to farmers or dairymen, hauling dairy or farm products; or lumber haulers engaged in transporting lumber and logs from the forests to the shipping points: and, Provided, further, That except in this proviso set forth, nothing in this act contained shall apply to motor vehicles employed exclusively in the conduct of educational or sightseeing excursions or tours from points within or outside of this State to and from points of educational and historic interest in the State of South Carolina, that do not solicit or receive patronage along the route. But all such carriers shall be required only to obtain from the commission a permit to operate motor vehicles so employed over the improved public highways of this State, and to pay a license fee of fifty ($50.00) dollars per annum on vehicles seating twenty-five (25) passengers or less, and one hundred ($100.00) dollars per annum on vehicles seating more than twenty-five passengers."

Section 3 of that act provides that no motor vehicle carrier shall operate for the transportation of persons or property for compensation on any improved public highway in this state without first having obtained from the state highway commission under the provisions of the act a certificate, and paying the license fee required. The act further provides for the issuance of certificates in classes A, B, C, D, and E; and section 5 of the act requires an indemnity bond. It appears that the plaintiff was not required to comply with the act of 1925 before it was amended in 1930, apparently because he did not come within the description set forth in classes A, B, C, D, and E.

By the act approved March 9, 1928 (35 St. at Large, p. 1238), all the powers and duties imposed by the act of 1925 upon the highway commission, with reference to the regulation, supervision, and control of persons, etc., operating motor vehicles for hire under the act of 1925, were devolved upon the South Carolina railroad commission.

By the act approved April 7, 1930 (36 St. at Large, p. 1068), the act of 1925 was so amended that its provisions were specifically extended to that class of carriers of which the plaintiff is a member by a new classification therein designated by the term "Certificate F," created and defined as follows: "The Commission shall have power to grant a Certificate F to any person, firm, or corporation, when such person, firm, or corporation, proposes to engage in the business commonly known as contract hauling of freight or property, and when such applicant does not propose to operate upon a regular schedule or over a regular route * * * or receive patronage along the route" (section 3). And the amending act also provided (section 2) that: "No motor vehicle carrier shall hereafter operate for the transportation of persons or property for compensation on any improved public highway in this State without first having obtained from the commission, under the provisions of this Act, a certificate and paid the license fee herein required."

Section 14 of the act of 1925 was amended by the act approved March 7, 1930 (36 St. at Large, p. 1100), by providing that every officer, agent, or employee of any corporation, and every other person who willfully violates or fails to comply with or who procures, aids, or abets in the violation of any provision of the act, or who fails to obey, observe, or comply with any lawful order, decision, or rule or regulation, direction, demand, or requirement of the commission or any part or provision thereof, etc., shall be guilty of a misdemeanor, and punishable by fine of not less than $25 nor exceeding $100, or imprisonment of not less than ten days nor more than thirty days.

It appears that the plaintiff was granted a certificate F under the provisions of the amending Act of April 7, 1930. This opinion deals only with class F, and we are not now concerned with classes A, B, C, D, and E.

Section 66 of the General Appropriation Act, approved May 9, 1931 (37 S. C. St. at Large, p. 454), is as follows:

"Total (Item 2) Motor Transport Division ...... $21,635.33 * * *

"Provided, further, That the expense of the Motor Transport Division provided in Item 2 shall be paid by the Motor Transport Carriers for hire subject to regulation by the Railroad Commission, in such proportion as the gross revenue of each and every person, firm or corporation engaged in such motor transport service for hire shall bear to the whole of such expenses. For the purpose of ascertaining such gross revenue each and every person, firm or corporation engaged in the business of motor transportation for hire shall file with the Railroad Commission on or before the fifteenth day of September, 1931, a return under oath, showing the gross revenue derived from the business of hauling freight and/or passengers for hire by means of Motor Vehicles during the first six months of the calendar year 1931. The said Railroad Commission shall within thirty days after the receipt of such returns file with the Comptroller General a statement of all such gross revenue, and the Comptroller General is hereby authorized, empowered and directed to levy against all persons, firms or corporations so engaged in such business an assessment prorated in accordance with the proportion above set forth. The Comptroller General shall immediately certify to the State Treasurer the amounts of such assessments, and on or...