Philadelphia-Detroit Lines v. Simpson, Civ. A. No. 108.

• Decision Date: 27 September 1940
• Docket Number: Civ. A. No. 108.
• Citation: 37 F. Supp. 314
• Court: U.S. District Court — Southern District of West Virginia
• Parties: PHILADELPHIA-DETROIT LINES, Inc., v. SIMPSON, State Road Com'r of West Virginia, et al.

37 F. Supp. 314

PHILADELPHIA-DETROIT LINES, Inc., v. SIMPSON, State Road Com'r of West Virginia, et al.

Civ. A. No. 108.

District Court, S. D. West Virginia.

September 27, 1940.

Lawrence Rollins, of Charleston, W. Va., and Leo P. Kitchen and Dan R. Schwartz, both of Jacksonville, Fla., for Philadelphia-Detroit Lines.

R. S. Spilman, of Charleston, W. Va., and Clarence W. Meadows, Atty. Gen., of Charleston, W. Va., for the State.

Before NORTHCOTT, Circuit Judge, and McCLINTIC and H. E. WATKINS, District Judges.

NORTHCOTT, Circuit Judge.

This is a suit brought by the plaintiff, Philadelphia-Detroit Lines, Incorporated, against the defendants, Burr H. Simpson, C. C. Tallman and Clarence W. Meadows, seeking to enjoin the defendants from enforcing certain parts of a West Virginia statute, relating to the use of trucks over the highways of the State. The plaintiff is a Delaware corporation engaged in the business of transporting new automobiles for delivery from the factories to dealers by what is termed the "truckaway" method. The trucks of the plaintiff cross the State of West Virginia in interstate traffic.

The defendant Burr H. Simpson is the State Road Commissioner of the State of West Virginia, C. C. Tallman is Superintendent of the Department of Public Safety of the State of West Virginia, and Clarence W. Meadows is the Attorney General of the State of West Virginia.

A three-judge court was constituted as provided by Section 380, Title 28 U.S.C.A., Judicial Code, Sec. 266, as amended. The defendants moved to dismiss the complaint and filed an answer. Upon the convening of the court, arguments were heard upon the motion to dismiss.

The West Virginia statute in question is entitled "An Act regulating the use of highways by motor vehicles carrying other vehicles" and is designated as Chapter 88, Acts of Legislature, 1939, sometimes known as Section 19(b), Article 8, Chapter 17, of the Code of West Virginia. The Act makes it unlawful for any person to operate on the highways of West Virginia on and after July 1, 1940, (a) a vehicle having two levels, for the carriage of other vehicles; (b) a vehicle carrying other vehicles any of which (or any part of which) is carried at a height of 115 inches (9 feet, 7 inches) above the ground; (c) a vehicle carrying other vehicles any part of which is above the cab of the carrier vehicle or over the head of the operator of such carrier vehicle; and (d) a vehicle carrying any other vehicle any axle of which is more than 3 feet higher than any other axle on such carrier vehicle (that is to say, an automobile or other vehicle which has to be so tilted upward in order to make it a part of the load).

In the complaint, plaintiff admits that its trucks as operated violate Subsections (a), (b) and (d) of the Act but alleges that these provisions are a violation of the equal protection clause of the Federal Constitution, Amend. 14, and are an unreasonable restraint and burden upon interstate commerce.

The Supreme Court of the United States has had occasion to consider state statutes, respecting the use of state highways, in two very recent cases, South Carolina State Highway Department v. Barnwell Bros., 303 U.S. 177, 58 S.Ct. 510, 82 L.Ed. 734, and Maurer et al. v. Hamilton, 309 U. S. 598, 60 S.Ct. 726, 84 L.Ed. 969.

In the South Carolina case 303 U.S. 177, 58 S.Ct....