State v. Hicklin

• Citation: 167 S.E. 674,168 S.C. 440
• Decision Date: 27 January 1933
• Docket Number: 13564.
• Parties: STATE ex rel. CONEY et al. v. HICKLIN. ELLERBE et al. v. BLALOCK MOTOR EXPRESS, Inc.
• Court: United States State Supreme Court of South Carolina

167 S.E. 674

168 S.C. 440

STATE ex rel. CONEY et al. v. HICKLIN.

ELLERBE et al. v. BLALOCK MOTOR EXPRESS, Inc.

No. 13564.

Supreme Court of South Carolina

January 27, 1933

Suit by the State, on the relation of J. C. Coney and others, as members of and constituting the Railroad Commission of South Carolina, against M. D. Hicklin, individually, and as a representative of Class F carriers within the provisions of Code 1932, §§ 8507-8530, who are, or claim to be, engaged in interstate commerce as well as intrastate operations within the state of South Carolina, and suit by Earle R. Ellerbe and others, as members of and constituting the Railroad Commission of South Carolina, against the Blalock Motor Express, Inc.

Judgment in accordance with opinion.

John M Daniel, Atty. Gen., and Irvine F. Belser, of Columbia, for petitioners.

B Wofford Wait, of Tampa, Fla., Nathans & Sinkler, of Charleston, and James H. Fowles, of Columbia, for respondents.

STABLER J.

These two suits, instituted in the original jurisdiction of the court, were heard together on argument, and will be disposed of in one opinion. For the sake of convenience we will refer to them as the Hicklin case and the Blalock case. With the exception of one question applicable only to the latter, the questions involved in the two cases are identical.

It is alleged and admitted that the respondents come within class F of motor vehicle carriers, defined in the amendatory act of April 7, 1930 (36 Stat. at Large, page 1068), as consisting of persons, firms, or corporations proposing to engage in the business known as contract hauling of freight or property but not proposing to operate upon a regular schedule or over a regular route or to receive patronage along the route, and as such are required by the act to obtain a certificate to operate and to pay the license fee therefor. It is further alleged that the respondents are now "carrying on their motor transportation business in the State of South Carolina over the public highways without any certificate and without paying any of the fees or taxes therefor, and in violation of the said laws hereinabove mentioned and of the orders and rules of the Railroad Commission issued thereunder."

The purpose of these actions, as set forth in the petitions, is to enforce the provisions of sections 8507 to 8530, inclusive, of chapter 162 of the Code of 1932 (Acts of 1925, page 252; Acts 1928, page 1238; Acts 1930, pages 1068, 1100 and 1327; and Acts 1931, page 145), and to require the respondents to comply with these acts and the rules and orders of the Railroad Commission promulgated thereunder. The prayer of the petitions is that these acts be construed and enforced by this court, that a mandatory order of injunction issue directing and requiring the respondents to comply therewith, and that they be enjoined from engaging in business as contract haulers without such compliance.

The respondents interposed demurrers to the petitions, and also made returns and answers.

With regard to the demurrers, it is sufficient to say that the identical grounds made in these cases were considered by the court in King v. Aetna Insurance Company et al. (S. C.) 167 S.E. 12, in its opinion filed November 23, 1932. Chief Justice Blease, who wrote the opinion in that case, went into a full discussion of the questions made, and disposed of them adversely to the contentions of the respondents there and here.

By their returns and answers the respondents challenge the constitutionality of the acts referred to (chapter 162 of the Code of 1932), section 66 of the general appropriation act of 1931 (37 St. at Large, p. 453), and section 34 of the general appropriation act of 1932 (37 St. at Large, p. 1605), applicable to contract carriers, as to both state and Federal Constitutions, contending that they are invalid because of certain exemptions made, requirements relating to cargo insurance, authority conferred on the Railroad Commission to regulate rates of contract carriers, the imposition of license fees based upon "carrying capacity," and the imposition of a tax upon the "gross receipts" of a carrier doing an interstate as well as an intrastate business.

In Stephenson v. Binford, 53 S.Ct. 181, 184, 77 L.Ed. --, a very recent utterance of the United States Supreme Court as to the right and power of a state to regulate the use of its highways, the court stated this broad general rule: "It is well established law that the highways of the state are public property; that their primary and preferred use is for private purposes; and that their use for purposes of gain is special and extraordinary, which, generally at least, the legislature may prohibit or condition as it sees fit"--citing cases.

Section 8507 of the Code defines "motor vehicle carrier," for the purposes of the act, as "every corporation or person *** operating *** any motor propelled vehicle *** used in the business of transporting persons or property for compensation over any improved public highway *** as hereinafter defined, in this State."

I. Section 8508 of the Code, which contains certain exemptions, is as follows: "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 sections 8507 to 8524, and such operation shall be subject to control, supervision and regulation by the commission in the manner provided by sections 8507 to 8524: Provided, however, That nothing in sections 8507 to 8524 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 forest to the shipping points."

The respondents urge that the exemption of "farmers or dairymen, hauling dairy or farm products, or lumber haulers engaged in transporting lumber and logs from the forest to the shipping points," is discriminatory, and violates the Fifth and Fourteenth Amendments to the Federal Constitution and section 5 of article 1 of the state Constitution. The petitioners contend that the Railroad Commission has adopted regulations embodying the construction placed by it upon this provision, to the effect that the exemption applies only to farmers and dairymen who are engaged in hauling their own products and to farmers and dairymen who occasionally, but not regularly, haul farm or dairy products for others; those who make a regular business of transporting farm and dairy products not being deemed for the purpose of the act to be farmers. They also contend that, even if the construction placed upon the provision of the act by the commission be rejected, there is a valid basis of discrimination in favor of farmers and dairymen hauling farm and dairy products, in that they make only a limited use of the highways. The respondents answer that the construction given to the provision by the commission cannot be sustained without the insertion of additional words--which, in effect, would be judicial legislation.

In support of their contention, counsel for respondents rely in the main upon the case of Smith v. Cahoon, 283 U.S. 553, 51 S.Ct. 582, 583, 75 L.Ed. 1264, in which the Unitted States Supreme Court declared unconstitutional a statute of the state of Florida enacted for the purpose of regulating auto transportation in that state. The act construed contained the following section (Laws Fla. 1929, c. 13700, § 1(h): "The term 'auto transportation company' when 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 or as a common carrier over any public highway in this State between fixed termini or over a regular route; Provided, That the term 'auto transportation company' as used in this Act, shall not include corporations or persons engaged exclusively in the transportation of children to or from school, or any transportation company engaged exclusively in the transporting agricultural, horticultural, dairy or other farm products and fresh and Salt Fish and Oysters and Shrimp from the point of production to the assembling or shipping point enroute to primary market, or to motor vehicles used exclusively in transporting or delivering dairy products or any transportation company engaged in operating taxicabs, or hotel busses from a depot to a hotel in the same town or city."

In support of their position, petitioners rely mainly upon the case of Continental Baking Company v. Woodring, 286 U.S. 352, 52 S.Ct. 595, 596, 76 L.Ed. 1155, 81 A. L. R. 1402, a Kansas case, in which the United States Supreme Court declared an act of that state relating to the regulation of motor traffic constitutional. Sections 1 and 2 of the act (Laws Kan. 1931, c. 236), are as follows (special attention is directed to section 2, by way of comparison with the above-quoted provision of the Florida act):

"Section 1. (a) The terms 'motor vehicle' when used in this act means any automobile, automobile truck, trailer, motor bus, or any other self-propelled or motor-driven vehicle used upon any public highway of this state for the purpose of transporting persons or property. (b) The term 'public motor carrier of

...