Sage v. Baldwin

• Decision Date: 05 February 1932
• Citation: 55 F.2d 968
• Parties: SAGE et al. v. BALDWIN et al.
• Court: U.S. District Court — Panama Canal Zone

55 F.2d 968 (1932)

SAGE et al. v. BALDWIN et al.

District Court, N. D. Texas, Dallas Division.

February 5, 1932.

Dailey & Keller and Wm. M. Hill, all of Dallas, Tex., and Leon Jaworski, of Houston, Tex., for complainants.

James V. Allred, Atty. Gen., T. S. Christopher and Elbert Hooper, Asst. Attys. Gen., for respondents.

Before HUTCHESON, Circuit Judge, and GRUBB and ATWELL, District Judges.

ATWELL, District Judge.

Complainants allege: That they are contract carriers of freight by motor from various states into and through the state of Texas. That they are engaged exclusively in such interstate commerce as contract carriers. That they have invested large sums of money in such business, and have large contracts. That they also have contracts to carry freight from Texas to other states. That while they were engaged in this business they were threatened with arrest by the defendant state authorities and officers and finally arrested and placed in jail because they would not comply with all of the provisions of House Bill No. 335 of the Texas Legislature, which was passed for the "further regulation of highway motor carriers," on June 5, 1931, and became effective on August 22, 1931 (Acts 42d Leg. 1931 c. 277 Vernon's Ann. Civ. St. Tex. art. 911b, § 1 et seq.). That the act is unconstitutional and in conflict with the commerce clause and the Fourteenth Amendment of the National Constitution.

On November 28, 1931, this court granted a temporary restraining order, and the application for a temporary injunction was heard on December 7th by a statutory three-judge court. On January 8th the cause came on for final hearing for a permanent injunction.

Whatever may be said of the early contentions of the respondents, they conceded at the final hearing that there were certain provisions of the act which were invalid as to interstate carriers, but they pressed the contention that the act is separable.

The act under scrutiny is one of three that were passed by the Forty-Second Legislature. House Bill No. 628, styled, "regulating operation of cotton trucks on state highways" (Acts 42 Leg. Tex. 1931 c. 121 Vernon's Ann. P. C., Tex. art. 827c), was held invalid, in part, in the case of J. H. McLeaish & Co. et al. v. T. Binford et al. (D. C.) 52 F.(2d) 151, affirmed United States Supreme Court, January 25, 1932, 52 S. Ct. 207, 76 L. Ed. ___; Sproles v. Binford (D. C.) 52 F.(2d) 730.

House bill No. 336, "regulation of vehicles on highways (Acts 42 Leg. 1931 Tex. c. 282 Vernon's Ann. P. C. Tex. art. 827a, § 1 et seq.)," is also under review, and has been partially sustained and partially criticised. So, we must look at the whole effort as a movement by the state after much consideration.

It is rather difficult to understand the entire scheme of the particular law we are studying without setting out all of its provisions. It has twenty-three sections, and vests the power of enforcement in the Railroad Commission, Highway Commission, and all local officers of the state. It creates a number of new misdemeanors which carry penalties. Its effectiveness revolves around the denying of the use of the highways of the state to any contract or common carrier that does not have a permit issued by the Railroad Commission. In order to get the permit, the carrier must make an application in writing, giving full information as to the financial condition and physical properties, the nature of the transportation in which the applicant wishes to engage, stating substantially the territory to be covered by the operation, including the condition and character of the roads over which transportation is to be performed. It must also describe each vehicle intended to be used, including the weight, size, and carrying capacity. Upon such application the commission shall have a hearing and a permit shall not be granted if the proposed operation will impair the efficient public service of any authorized common carrier then adequately serving the same territory. The commission is also required to prescribe rules covering the operation of contract carriers in competition with common carriers, and must prescribe rates to be charged. The power is also given to fix the hours of service of the operators. Certificates of public convenience and necessity are provided for, which include a finding by the commission of the service rendered by present carriers; the proposed schedule of service and of rates to be charged between the service points, and the applicant shall point out the inadequacy of existing transportation facilities, and show the necessity for additional facilities. A bond must be given to secure loss or damage from personal injury, or loss of property, such insurance to apply also to the cargo, and protection must be afforded employees under the workmen's compensation insurance act of Texas (Vernon's Ann. Civ. St. art. 8306 et seq.). Inquiries may be made into the nature of the equipment and the method of loading the cargo. The accounts kept by the carriers are under the supervision of the commission, while rebates or favoritism in rates is prohibited.

This rough statement of the lengthy provisions of the law immediately assures us that there is no distinction made between intra and inter state carriers. Since it is presumed that the Legislature did not intend to invade the field in which the federal government has exclusive jurisdiction, St. Louis Southwestern R. Co. v. State of Arkansas, 235 U. S. 350, 35 S. Ct. 99, 59 L. Ed. 265; Saint Louis, etc., R. Co. v. Seale, 229 U. S. 156, 33 S. Ct. 651, 57 L. Ed. 1129, Ann. Cas. 1914C, 156, we must take a quick, though summary, glance at each jurisdiction.

Highways belong to the public and are primarily for its use in the ordinary way, and there may be valid prohibition of a use for gain in an extraordinary way. There may be regulation of an activity which is not purely a matter of right, but which is carried on by sufferance or permission. The movement of motor vehicles over the highways is attended by constant and serious dangers to the public, and is harmful to the ways themselves. A state which furnishes special facilities for those engaged in commerce may exact compensation therefor, and carriers who make such highways their place of business may be charged an extra tax for such use, and insurance may be exacted. The exclusion of unnecessary vehicles aids safety and economy and the requiring of a permit is reasonable.

But a state may not impose any condition which requires the relinquishment of a right guaranteed by the National Constitution. Interstate commerce, in all of its forms, must be free from any substantial burden sought to be exercised by any state. Bekins Van Lines v. Riley, 280 U. S. 80, 50 S. Ct. 64, 74 L. Ed. 178; Packard v. Bantom, 264 U. S. 140, 44 S. Ct. 257, 68 L. Ed. 596; Sprout v. South Bend, 277 U. S. 163, 48 S. Ct. 502, 72 L. Ed. 833, 62 A. L. R. 45; Hendrick v. Maryland, 235 U. S. 610, 35 S. Ct. 140, 59 L. Ed. 385; Frost & Frost Trucking Co. v. Railroad Comm., 271 U. S. 583, 46 S. Ct. 605, 70 L. Ed. 1101, 47 A. L. R. 457; Interstate Busses Corporation v. Blodgett, 276 U. S. 245, 48 S. Ct. 230, 72 L. Ed. 551; Buck v. Kuykendall, 267 U. S. 314, 45 S. Ct. 324, 69 L. Ed. 623, 38 A. L. R. 286; Smith v. Cahoon, 283 U. S. 554, 51 S. Ct. 582, 75 L. Ed. 1264; Michigan Public Utilities Comm. v. Duke, 266 U. S. 570, 45 S. Ct. 191, 69 L. Ed. 445, 36 A. L. R. 1105; Hodge Drive-It-Yourself Co. v. City of Cincinnati, 52 S. Ct. 144, 76 L. Ed. ___, January 4, 1932; Clark v. Poor, 274 U. S. 557, 47 S. Ct. 702, 71 L. Ed. 1199; Hess v. Pawloski, 274 U. S. 356, 47 S. Ct. 632, 71 L. Ed. 1091; Morris v. Duby, 274 U. S. 143, 47 S. Ct. 548, 71 L. Ed. 966; Bush & Sons Co. v. Maloy, 267 U. S. 317, 45 S. Ct. 326, 327, 69 L. Ed. 627; Southern Railway Co. v. King, 217 U. S. 524, 30 S. Ct. 594, 54 L. Ed. 868; Johnson Transfer & Freight Lines v. Perry (D. C.) 47 F.(2d) 900; Hi-Ball Transit Co. v. Railroad Comm. (D. C.) 27 F.(2d) 425; State v. Humble Pipe Line Co., 112 Tex. 375, 247 S. W. 1082; Atlantic-Pacific Stages v. Stahl (D. C.) 36 F.(2d) 260; Kane v. New Jersey, 242 U. S....