Ward v. Pub. Serv. Comm.

• Decision Date: 26 August 1937
• Docket Number: No. 35219.,35219.
• Citation: 108 S.W.2d 136
• Parties: JAMES W. WARD, Doing Business as J.W. WARD TRANSFER, v. PUBLIC SERVICE COMMISSION, Appellant.
• Court: Missouri Supreme Court

108 S.W.2d 136

JAMES W. WARD, Doing Business as J.W. WARD TRANSFER, v. PUBLIC SERVICE COMMISSION, Appellant.

No. 35219.

Supreme Court of Missouri.

Division Two, August 26, 1937.^*

Appeal from Circuit Court of City of St. Louis. — Hon. Granville Hogan, Judge.

REVERSED.

James P. Boyd, General Counsel, and Daniel C. Rogers, Assistant Counsel, for Public Service Commission.

With the statement of facts in the background we are led first to state a few fundamental principles on the question of whether an Act of Congress dealing with interstate commerce clause is held to supersede the rights of the states under the police powers to regulate same. Those principles may be found more freely discussed by the Supreme Court of the United States in reference to the Interstate Commerce Act of February 4, 1887, and amendments thereto. The principle is well stated in M., K. & T. Ry. Co. v. Harris, 234 U.S. 417; Mo. Pac. Ry. Co. v. Larabee Mills, 211 U.S. 623; Southern Ry. Co. v. Reid, 222 U.S. 437.

John C. Vogel and Arthur R. Felsen for respondent.

(1) The Circuit Court of the City of St. Louis had jurisdiction to enjoin the Public Service Commission from interfering with respondent in the operation of his trucks in interstate commerce without an interstate permit and without payment of fees required by Section 5272, Laws 1931. (a) Injunction is the proper remedy to test the unconstitutionality of a statute wherein there is irreparable injury. State ex rel. Pub. Ser. Comm. v. Mulloy, 62 S.W. (2d) 730, 333 Mo. 282; L. & L. Freight Lines, Inc., v. Douglass, 169 So. 501. (b) The trial court did not enjoin the Public Service Commission in the performance of its official duties, but enjoined it from attempting to enforce a statute of the State of Missouri which is in conflict with a subsequent Act of Congress of the United States, to-wit, the "Motor Carrier Act, 1935," and the enforcement of which would violate Section 8 of Article I of the Constitution of the United States. There was nothing pending before the Public Service Commission at the time it was enjoined calling for official action by the commission. (c) That portion of Section 5234, Revised States 1929, which provides that "No court of this State except the Circuit Court to the extent herein specified and the Supreme Court, on appeal, shall have jurisdiction to review, reverse, correct or annul any order or decision of the Commission or to suspend or delay the executing or operation thereof, or to enjoin, restrain or interfere with the Commission in the performance of its official duties," must be construed to mean that where a matter is officially pending before the commission or an application or petition or otherwise, and is awaiting a hearing or has been heard and an order or decision has been made, that then the action of the commission can be reviewed only by the method provided in Section 5234. Any other construction of the section renders it unconstitutional and where a law is susceptible of two constructions, one of which will render it constitutional and the other of which will render it unconstitutional, the courts must give it that construction by which it is validated. Automobile Gasoline Co. v. St. Louis, 326 Mo. 435; State ex rel. Carpenter v. St. Louis, 318 Mo. 870; State ex rel. Sekyra v. Schmoll, 313 Mo. 693; Kusnetzky v. Security Ins. Co., 313 Mo. 143. (d) That portion of Section 5234, Revised Statutes 1929, set out in (c) is unconstitutional, being an unconstitutional attempt to limit by statute the constitutional jurisdiction of the circuit courts in violation of Article VI of the Constitution of the State of Missouri. State ex rel. Gehrs v. Pub. Serv. Comm., 90 S.W. (2d) 390; State ex rel. Pitcairn v. Pub. Serv. Comm., 90 S.W. (2d) 392; Dorrance v. Dorrance, 257 Mo. 317, 165 S.W. 783; State ex rel. Cave v. Tincher, 258 Mo. 1, 166 S.W. 1028; State ex rel. York v. Locker, 266 Mo. 384, 181 S.W. 1001; Secs. 1, 22, Art. VI, Mo. Const. (2) The Congress of the United States has the power to regulate commerce among the several states. Sec. 8, Art. I, U.S. Const. (a) When Congress assumes control over a particular phase of interstate commerce existing State regulations become inoperative. Gibbons v. Ogden, 9 Wheat. 1; McDermott v. Wisconsin, 228 U.S. 115, 57 L. Ed. 754; Erie Railroad Co. v. People of the State of New York, 233 U.S. 671, 58 L. Ed. 1149; New York Cent. Railroad Co. v. Winfield, 244 U.S. 147, 61 L. Ed. 1045; Napier v. Atl. Coast Line Ry., 272 U.S. 605; State ex inf. Haley v. Mo. Pac. Ry. Co., 19 S.W. (2d) 879. (b) The "Motor Carrier Act, 1935" (February 4, 1887, Chap. 104, Part II, Sec. 201 as added August 9, 1935, Chap. 498, 49 Stat. 543) found in 49 U.S.C.A., Sec. 301 et seq., became operative on August 9, 1935, and vests in the Interstate Commerce Commission the sole and exclusive power to issue certificates of convenience and necessity and interstate permits to common carriers and contract carriers by motor vehicles engaged exclusively in interstate commerce and Sections 5268, 5269, 5270, 5271 and 5272, Laws 1931, p. 307, insofar as they authorize the Public Service Commission to require motor carriers and contract haulers engaged exclusively in interstate commerce to secure interstate permits from the Public Service Commission as a condition precedent to the use of the streets and highways of the State of Missouri became inoperative as to such interstate operators on August 9, 1935. State ex rel. L. & L. Freight Lines, Inc., v. Douglass, 169 So. 389; L. & L. Freight Lines, Inc., v. Douglass, 169 So. 501; Douglass v. Pan American Bus Lines, 81 Fed. (2d) 222. (c) The provisions of Section 5272, Laws 1931, for an annual license fee for the maintenance and repair of the public highways are so connected with the provisions for the issuance of a certificate of convenience and necessity or interstate permit that the two are inseparable and, since the provisions for the requiring an interstate permit have been rendered inoperative by the "Motor Carrier Act 1935," the whole section becomes inoperative. Barrett v. New York, 232 U.S. 14, 58 L. Ed. 483; Chicago, M. & St. P. Ry Co. v. Minneapolis, 238 Fed. 384; Williams v. Talladego, 226 U.S. 404, 57 L. Ed. 275; State ex rel. St. Louis Transit Co. v. Clifford, 228 Mo. 194; St. Louis v. Cool, 228 Mo. 209; City of Carthage v. Block, 139 Mo. App. 386; State v. St. Louis, I.M. & S. Ry. Co., 253 Mo. 642; State ex rel. Moody v. Wardell, 153 Mo. 319; State ex inf. Haley v. Mo. Pac. Ry. Co., 19 S.W. (2d) 879; State ex rel. Field v. Smith, 329 Mo. 1019, 49 S.W. (2d) 74.

TIPTON, J.

This is an appeal from the Circuit Court of the City of St. Louis, wherein that court enjoined the appellant from interfering with or stopping or attempting to interfere with or stop, respondent, his agents, servants and employees from using the streets and highways of the city of St. Louis and the State of Missouri in interstate commerce as a motor carrier of property and as a contract hauler of property without securing and having interstate permits issued by appellant, or without paying the fees provided in Section 5272 of Article VIII, Chapter 33, of the Laws of Missouri, 1931 and perpetually enjoined the appellant from instituting or causing to be institute against respondent any civil action or actions to collect the penalties provided in Section 5272, supra, for using his motor vehicles in interstate commerce over the streets and highways of the city of St. Louis and the State of Missouri without securing and having interstate permits issued by the appellant, or without paying the fees provided for in Section 5272, supra.

From the judgment of that court, the appellant has duly appealed to this court.

The respondent states the question for our determination, as follows:

"Under the Motor Carrier Act, 1935, can a common carrier and a contract hauler engage exclusively in interstate commerce and entering Missouri only in the City of St. Louis be required to take out interstate permits from the Missouri Public Service Commission and be required to pay the fees provided for in Section 5272 of the Laws of Missouri, 1931, as a condition precedent to his use of the streets of the City of St. Louis for his interstate transportation of property?"

For the purpose of this case, the respondent does not question the constitutionality of the Missouri Bus and Truck Act of 1931 other than to contend that it has been superseded by the Interstate Bus and Truck Act of Congress which went into effect August 9, 1935.

[1] In its answer, the appellant contended that the Circuit Court of the City of St. Louis was without jurisdiction to hear this cause on account of Section 5234, Revised Statutes 1929. The respondent in his reply pleaded that this section is unconstitutional because it violates Sections 1 and 21 of Article VI of our State Constitution.

The pertinent parts of Section 5234, supra, are as follows:

"Within thirty days after the application for a rehearing is denied, or, if the application is granted, then within thirty days after the rendition of the decision on rehearing, the applicant may apply to the circuit court of the county where the hearing was held or in which the commission has its principal office for a writ of certiorari or review... . No court of this State, except the circuit courts to the extent herein specified and the Supreme Court on appeal, shall have jurisdiction to review, reverse, correct or annul any order or decision of the commission or to suspend or delay the executing thereof, or to enjoin, restrain or interfere with the commission in the performance of its official duties." (Italics ours.)

At the time that the circuit court enjoined the appellant, no application for a permit or any other matter was pending before it for decision. It follows that there was no hearing in the city of St. Louis, and if the appellant was enjoined from acting in its official capacity, then the Circuit Court of...