Appellants Brief — Morris v. Duby

SUBJECT—INDEX

Pages

Opinions of Lower Court in P. R..._-_._. ______.____.18-24 (Inclusive)

Jurisdiction cof the Supreme Court. ros ind aad aoa 1

Statement of the Case... -. ___-__- Anes RS SA 2

Specification of Errors _-_.-..--_-- hata nih a 16

Summary ee en ages Khan cence we wenneSesesasaswoness ------ 1

Argument ----- - or ecesecces — o« 25

Sections of Federal Highway yo (ase appenéiz) —— ——

Sections of State Law (see appendix) ‘

AUTHORITIES CITED

Paar

Achison v. Hudleson, 12 How. 291, 13 L ed 993 a4

Buck v. Kuykendall, 267 U. S. 307, 69 L. ed 201 33 f°

Chicago M. & St. P. R. Co. v. Minnesota, 134 US 418 32 Le ee #78 %

Cincinnati, N. O. & T. R. Co. vs. Rankin, 241 U S 319. @& L. e@ 1029 Be

Grand Trunk Western Ry. v. South ~~ 227 U S& 644 Ps

Grand Trunk Western R. Co. vs. U. 8. 252, U. 8 112. 64 L. ed ze

Kendrick v. Maryland, 235 U. 8. a 20

Kane v. New Jersey, 242 U. 8S. 160. _. . 20

Lake Superior, etc., R. R. Co. v. U. S. 93, U. 8. 442, 22 Lo ed 9656 26

Neil, Moore & Co. v. Ohio, 3 How. 720, 11 L. ed. 800 24

Neilsen v. Oregon, 212 U. S. 315, 319.43 L. ed. 528, 529 32

Pensacola Tel. Co. v. W. U. Tel. Co., 967. S. 1, 24 L. ed. 708 25

Rsilroad Commission cases, 116 U. S. 307, 29 L. ed. 636 3

Reagan v. Farmers’ Loan & T. Co, 154 U. S. 362, 38 L. ed. 1014 36

i3-e. C: L. See. 312... ered ‘ baniioiea - 2

Rice v. Minnesota & N. W. R. Co., 1 Black 380, 17 L. ed. 154___- 27

Searight v. Stokes et al., 3 How. 151, 11 L. ed. 687______-______- 24

St. Louis & S. F. R. Co. v. Gill, 156 U. S. 649, 39 L. ed. 567______- 36

State of Indiana v. U. S. 148, U. S. 148, 37 L. ed. 401- ; 24

State of New Jersey v. Wilson, 7 Cranch 165, 3 L. ed. 303__._____ 33

U. S. v. California & Oregon Land Co., 148 U. S. 31, 37 L. ed.

I A A oa a ce os rea on cates aaa we cagmna onside 25

U. S. v. Dalles Military Road Co., 140 U. S. 599, 35 L. ed. 561, 562__ 28

U. S. v. Union Pacific R. Co., 160 U. S. 1, 40 L. ed. 319____________ 26

U. S. v. Michigan, 190 U. S. 377, 399, 400, 401, 47 L. ed. 1103, 1110,

aa a data eae diate case alait Shas atid Sco iobesn', Oe

Wisconsin Central R. co. v. U. S., 164 U. S. 190, 41 L. ed. 399. 5 26

JURISDICTION OF THIS COURT

This action Was instituted in the lower court in

vrder to restrain the enforcement of certain provisions

vf a State law and the acts of the State High yay

Commission thereunder in enforcing certain orders

reducing the combined weight of trucks and loads and

to test the constitutionality of said State law and the

said acts of said Commission,

The plaintiffs prayed the protection of the Consti-

tution of the United States, the Federal Legislation

Jianting financial aid to the States in construction of

rial post roads, and the contract entered into by

the State which divested its jurisdiction over Federal

aided highways and vested sole jurisdiction thereof

in the Federal Government.

Under the provisions of Section 266, as amended,

vf the Judicial Code, the lower court, composed of

three judges, heard the application for such tempor-

“ly injurction, and on March 20, 1926, entered an

older denying such application, and on same day

entered a deeree dismissing the amended bill of com-

jaint and also the eause. (P. R. p. 25, 26).

The jurisdiction of this Court is invoked under

Section 238, as amended, of the Judicial Code, on the

ereunds that the provisions of a State law, and the

acts of the State Highway Commission thereunder,

sie in violation of the Constitution of the United

“tates, the Federal Legislation relating to Federal

vid highways, and the contract made by the State

‘dopting and agreeing to abide by the provisions of

the Federal Highway Act.

The protection of the Federal Constitution and Fed-

cial Legislation aiding rural post roads and the eon-

2 “ay

tract by the State adopting same was invoked by plain-

tiffs.

Buck v. Kuykendall, 267 U. 8. 307, 69 L. Ea.

623.

nds a SPY RE Sm vied

Sa real Se

a Wide) > sien does eel Gy curio:

foe ee eat ee See en re ie ee oe fae

PRs BRE HAL er aul mr ertce te!

STATEMENT OF THE CASE

The plaintiffs instituted this action on behalf of

themselves and all the other members of the Auto

Freight Transportation Association of Oregon and

Washington against the defendants, constituting the

Oregon State Highway Commission. (P. R. 1.)

The plaintiff Morris is and has been operating

wucks for more than four and one-half years last past

carrying freight for compensation from Portland,

Oregon, on the Columbia River Highway, to The

Dalles, Oregon, and intermediate points, as a com-

mon carrier; the other named plaintiffs have and are

now operating motor trucks as common carriers on

the same highway between Portland, Oregon, to The

Halles and beyond. (P. R. 2.)

As provided by law the plaintiffs had applied for

and were granted permits to operate their trucks as

common earriers from Portland to The Dalles or be-

yond, and have paid all the fees required by said

Commission in order to so use said trucks as common

carriers. Moreover, the plaintiffs filed and adopted

tariffs all as provided for in said law. Such tariffs

fixed a reasonable, just and remunerative charge for

freight carriage and were based upon the then eapa-

city of said motor trucks. (P. R. 2.) That plaintiffs

have no power to change such tariff rates without

hearing before said Commission and such scheduled

rates so filed could not be lowered without confisea-

ting and destroying the property rights and business

of the plaintiffs. (P. R. 3.) The plaintiffs were re-

quired to and did pay to the State the motor vehicle

fees and all other fees so demanded, such fees were

hased upon, not only the capacity of said trucks, but

also the width of the tires thereof; the plaintiffs were

compelled to pay the highest fees in said State in or-

- aaa ecg

PDS SEE NEHA ARAL AN pecan a

der to obtain the right to operate trucks for compen-

sation in said State with the maximum capacity as

fixed by the laws of said State, to-wit, 22,000 pounds

gross weight of truck and load. (P. R. 3.) Plaintiffs

earry freight on said motor trucks from divers points

along said Columbia River Highway for delivery as

a continuous service between the State of Oregon and

other States; that such interstate service has been ear-

ried on for vears and is constant and efficient and the

publie demand the continuance of the present rates

and service, which service is one made along the high-

way at the door of the eonsignee without additional

charge. (P. R. 3.) The plaintiffs and other mem-

bers of said Association have leased and operate a

terminal in Portland, Oregon, for the exclusive use

of said plaintiffs and members of said Association.

Such building was built for said Association at a cost

of $285,000.00 Such building occupies 40,000 square

feet and is Four stories in heighth on portions of said

property. The City of Portland compels all common

carriers of freight to install a terminal of this char-

acter and such Association was compelled to have such

building built and these plaintiffs and all members

of said Association have been and are now compelled

to share in the expenses of such terminal. Plaintiffs

have increased the volume of their business and are

now furnishing the publi¢ serviee which is demanded

by Public Convience and Necessity. (P. R. 3, 4.)

The defendants are the duly qualified and acting

Oregon State Highway Commission. (P. R. 4.)

In 1916 Congress enacted the Rural Post Road Act.

The State of Oregon by proper law adopted the pro-

visions of said Federal Legislation in the vear 1917,

and further in said year by another State law vested

—

in the State Highway Commission the authority to

take such action and perform such duties as may be

necessary to meet the requirements of said Federal

Legislation ; further to designate and authorize the

construction of certain hard surfaced highways, post

roads and forest roads, and provide for the construc-

tion, paving and maintenance « ds and highways.

(P. R. 4,5.) That under the pavvisions of said law

the said Columbia River Highway between the Mult-

nomah County Line Easterly through the city of

Hood River and Hood River County was ordered to

be permanently constructed and paved. (P. R. 5.)

5

Thereafter Congress amended such Rural Post

Road Act in 1921. (P. R. 6.)

That the State of Oregon has received many hun-

dreds of Thousands of dollars from the Federal Gov-

ernment under the provisions of said Federal Acts

and is now receiying yearly hundreds of thousands of

dollars. That the portion of the Columbia River

Highway, being 22.11 miles in length, between Mult-

nomah County Line and Hood River is a portion of

the interstate highwav constructed and used from As-

toria, Oregon, into the States of Washington and

Idaho, and the Federal moneys have been used under

ihe provisions of said Acts for the construction and

reconstruction of the said portion of said Columbia

River Highway. And further since January 1920

such portion of said highway has been improved and

reconstructed by widening such highway and straight-

ening curves therein, All under the provisions and

subject to the Federal Highway Acts. (P. R. 6.)

That at the time of the adoption of said Federal

Acts by the State of Oregon in the year 1917, the

State of Oregon permitted, allowed and encouraged

trucks limited to Five Tons capacity to use the high-

7

& 6

ways. That the pla.otiffs and members of said As-

sociation had constructed their motor trucks for the

said Five Tons capacity, and that thereafter the State

of Oregon enacted a law for the first time which fixed

the load limit of the gross weight of truck and load.

(P. BR. 6, 7.)

That until the year 1921 the legislature never vested

the State Highway Commission and the County

Courts with jurisdiction to modify, amend or change

any provisions of any law relating to the capacity of

any motor truck or the said gross weight of truck

and load. (P. R. 7.)

That after the State of Oregon had been receiving

and is still receiving moneys from the Federal Gov-

ernment under the provisions of said Rural Post Road

Act, as amended in 1921, and after the said Columbia

River Highway had been permanently constructed

and reconstructed, with the aid of Federal moneys be-

tween Astoria, Oregon and The Dalles, Oregon and

bevond, the State enacted another law, as amended

in 1923, by the provisions of which the State Highway

Commission and the County Courts could grant per-

mits to use a highway by vehicles of more than 22,000

pounds combined weight of truck and load upon giv-

ing a bond to indemnify the State or County for any

damage caused by such vehicles of a gross weight of

more than the combined weight of 22,000 pounds of

truck and load. Moreover, said Commission and said _

County Courts were authorized to reduce the legal

- maximum weights and speed, whenever any public

_ highway is ‘BEING DAMAGED BY REASON OF

BRING SUBJECTED TO ANY PARTICULAR

KIND OR CHARACTER OF TRAFFIC * * * AND

FOR THE PROTECTION FROM UNDUE DAY-

AGES OF ANY HIGHWAY OR HIGHWAYS,

a

ets orem ine en

7

OR OF ANY SECTION OR SECTIONS THERE-

OF, TO REDUCE THE MAXIMUM WEIGHT OR

SPEED IN THIS ACT.” In said law, as amended,

an operator of a motor vehicle is liable for damages

to highways. Such law, as amended, prescribes penal-

ties amounting not to exceed a $400.00 fine or im-

prisonment in a county jail for not to exceed one

year, or by both such fine and imprisonment. That

said law of 1921, as amended in 1923, fixed the same

limit on the combined weight of truck and load as

had been in force for some years prior to the year

1921, to-wit 22,000 pounds combined weight of truck

and load. Moreover, an additional tax upon the width

of tires was exacted and forced the plaintiffs to pay

such additional tax in order to operate their trucks

with the combined gross weight of truck and load.

(P. R. 8.)

After Four years of operation over the said Colum-

bia River Highway, including said portion of said

highway involved herein, and after the said passage

of said law of 1921, the defendants on the 28th day

of August 1925 issued an order reducing the combined

maximum weight of truck and load only on that por-

tion of the said Columbia River Highway between

Multnomah County Line and Hood River, Oregon.

im oo

A copy of such order is made a part hereof and

attached hereto, Exhibit ‘‘A’’.

That such order was to take effect on and after

October Ist, 1925. (P. R. 9.)

That the defendant issued such order without no-

tice to plaintiffs or any other person, firm or corpora-

tion interested and no evidence was considered and

no opportunity was ever given to plaintiffs or any

other person, firm or corporation interested to present

sha SX

Le. See .

: rere

7

Passe sietcine: 18, Ee Te

> rata

8

any evidence in connection with such order, but said

order was issued ex parte on the said defendant’s own

motion. (P. R. 9.)

That the plaintiffs and other members of said As-

sociation were forced to and had purchased motor

trucks constructed for the purpose of carrying the

said combined weight of truck and load, to-wit, 22,000

pounds; that the weight of said motor trucks without

load vary from 10,500 pound to 12,000 pounds; that

the load capacity of said trucks varied from 10,000

pounds to 11,500 pounds; the schedule of rates as filed

and had been in force from Portland, Oregon, and

to and through The Dalles, and such rates had b.en

fixed and were fixed and determined by the combined

weight of truck and load, to-wit, 22,000 pounds; that

the said Columbia River Highway, as aforesaid, from

Portland to The Dalles is adjacent and parallel to an

existing and operating railway serving such territory;

also steamboats operating on the Columbia River are

in competition with these plaintiffs; the rates of such

other common carriers were considered in the fixing

of the rates by these plaintiffs; the plaintiffs must

apply to the Public Service Commission to CHANGE

SUCH RATES AND MUST SHOW THAT any ad-

ditional increase of rates over the present tariff would

be reasonable and just, and in order to operate their

trucks on such portion of said Columbia River High-

way, the plaintiffs must charge and collect a_ rate

which will practieally double the rate now charged;

and would destroy the interstate business which has

been developed between the States of Oregon, Wash-

ington and Idaho; further any such increase of rates

would destroy any competition now existing along the

said Columbia River Highway, as aforesaid; further

the said Public Service Commission would not sane-

tion such increase of rates by the said plaintiffs, as

——_

now filed, as such additional increase would be un-

reasonable and unjust to the public. (P. R. 9, 10.)

That the portion of said Columbia River Highway

from Portland to the East line of Multnomah County,

was constructed and hardsurfaced by pavement ap-

proximately Eleven Years ago, while the portion of

said Highway West of the said Multnomah Line to

The Dalles, including the portion in controversy here-

in was constructed and hardsurfaced by paving about

Five Years ago. (P. R. 10.)

That the portion of said Columbia River Highway

from Portland to The Dalles was constructed and re-

constructed, after the adoption of the said Federal

Highway Act in the year 1917, under the direction

and control of the State Highway Commission as re-

quired under the provisions of the said Federal High-

way Act. (P. R. 10.)

That after the year 1917 and prior thereto, motor

trucks of the same size, weight and carrying capacity,

to-wit, a combined weight of truck and load of 22,000

pounds were and have been operated over said high-

way from Portland to The Dalles and beyond. That

said Columbia River Highway, and especially that

portion of the same as set out in the said order herein,

was constructed and reconstructed under the pro-

visions of said Federal Highway Act for the purpose

of taking care of not only the then traffie on such

highway, but also to take care of the future traffic

thereon. (P. R. 10.) “

That in the vear 1920, after the said construction

and reconstruction of said highway, Four trucks

carrving freight were operated with the combined

weight of truck and load of 22,000 pounds and since

that time the number of such capacity trucks have

heen increased until in the year 1925 Nine trucks were

9

a Ss Sire tala a Se A eg ratte swe

ei,

Vie te Oo Pete dag

“

Pat slant tes its ae 50)

ail aye

monet sn J

operating on such highway between Portland and The

Dalles and beyond that in 1925 other motor vehicles

on such highway had increased in number to an aver-

age daily of 1500 cars and motor trucks, called motor

busses, carrying passengers for compensation on said

highway between said points were more in number

than said Nine trucks and weigh with bus and load

approximately 16,000 pounds; all of such motor bus-

ses, as well as other motor vehicles except trucks, op-

erate at the maximum speed of 30 miles per hour,

(P. R. 9, 10.)

That the said Exhibit ‘‘A’’ as aforesaid, being the

said order of said Commission, recites that the said

portion of said highway in controversy is being dam-

aged and injured on account of the kind and char-

acter of traffic now being hauled thereon, and by rea-

son of the fact that loads of the maximum gross

weight moved at the maximum speed specified in the

law are breaking up, damaging and deteriorating the

said highway, and the Commission orders not only

that the combined weight of truck and load should be

reduced from 22,000 pounds to 16,500 pounds, and but

that the maximum weight of 600 pounds per inch for

tires having a width in excess of 30 inches shall be

reduced to 450 pounds per inch of tire width, and that

the maximum allowable load for tires having a width

of less than 30 inches shall be reduced from 500

pounds to 375 pounds per inch width of tires. It per-

mits only vehicles with a combined weight of load

and vehicle of less than 16,500 pounds, and vehicles

having a total tire width of less than 30 inches limited

to the weight on one axle by multiplying the sum of

the tire width of the two wheels on such axle by 375

pounds; and further vehicles having a total tire width

of 30 inches or more limited to the weight at con-

tact on the highway with the tread of the two wheels

10

ll

of any one axle by multiplying the sum of the tire

width of the said two wheels of 450 pounds. (P. R.

16, 17.)

Said order provides ‘‘that these rules and regula-

tions as made and found by the State Highway Com-

mission under the provisions’ of the state law of

1921, as amended, “‘shall be in force and effect from

and after October 1, 1925, until revoked or modified

by the State Highway Commission.’’ (P. R. 17.)

The plaintiffs deny the statements contained in

such order that the said Nine motor trucks limited

to combined weight of truck and load of 22,000 pounds

and the speed of 12 miles per hour, are damaging and

destroying the said portion of said highway in con-

troversy; the plaintiffs aver that said portion of said _

highway is in as good a condition as it has been for

years and has never been and is not now being dam-

aged or destroyed as set forth in said order, by either

ihe operation of said motor trucks or the said motor

busses or said automobiles, further plaintiffs aver

that all the other portions of said Columbia River

Highway between Portland and The Dalles are in the

same good condition and are not and have not been

damaged and destroyed by the operation of all the

said motor vehieles. (P. R. 11.)

That on information and belief the plaintiffs aver

that the defendants admit that said order so made

was not based upon either the present or past damage

or destruction of said portion of said highway, but

solely upon a fear that the said Nine motor trucks

might in the future so damage and destroy said por-

tion of said highway, and also it is admitted that

said portion of said highway was in first class con-

dition and repair, as well as the other said portions

of said highway. (P. R. 11, 12.)

ame

sca ete atie: —"

Ted oe OR eee ae

pecs massac. CU ALINE

12

Further on information and belief the plaintiffs

aver that the defendants have issued a blanket order

covering portions of Fourteen other Federal aided

highways limiting the use of motor trucks by redue-

ing the said combined weight from 22,000 pounds to

16,500 pounds, and that such plaintiffs’ operation on

such portion of said Highway furnishes competition

with railroad companies owning and operating rail-

road lines carrying freight thereon. (P. R. 12.)

The plaintiffs on information and belief aver that

the entire cost for a year prior to the issuance of

said order for the maintenance and repair of said

portion of said highway in controversy did not ex-

ceed the sum of $5,000. (P. R. 12.)

The plaintiffs are willing and able to and will in-

demnify the defendants by furnishing a good and suf-

ficient bond to pay all damages which they may cause

to said portions of said highway in controversy by

reason of their motor trucks operating with the com-

bined weight of 22,000 pounds for truck and load, as

provided for in the said State Law. (P. R. 12.)

It is alleged that the defendants’ actions under the

provisions of said sections of the said State laws are

arbitrary and unreasonable and are not based upon

any hearing, and are contrary to the true facts; that

such order discriminates against these plaintiffs and

destroys their business and property, as well as pre-

vents the public from enjoving the benefits derived

from said operation of said trucks at rates which are

now reasonable and just; that such order effects and

burdens interstate commerce; and is contrary to and

in contravention of the ‘‘Federal Highway Act” and

the Constitution of the United States, especially the

14th Amendment thereof; it destroys competition; it

enables the owners of private automobiles, motor bus-

—_—

ses and motor trucks of small capacity to monopolize

and use the said Federal aided highway contrary to

and in defiance of the said ‘‘ Federal Highway Act”’

and the contract made by the said State of Oregon.

(P. R. 12, 13.)

The plaintiffs, as well as all other members of said

Association, pray the protection of the commerce

clause of the Constitution of the United States, the

Constitution of the United States and the 14th

Amendment thereof, as well as of the contract entered

into between the said State of Oregon and the Fed-

eral Government, and also the provisions of said

“Federal Highway Act’’, also against the said illegal

acts of the said defendants, acting under the provis-

ions of the said sections 35 and 36 of the said laws of

1921 and section 36A of the Law of 1923, on the

grounds and for the reasons that the same are con-

trary to and in contravention of the Constitution of

the United States, especially the Commerce Clause

thereof and the 14th Amendment thereof, as well as

of the contract entered into between the said State

of Oregon and the Federal Government, and as well

as the provisions of the said ‘‘ Federal Highway Act’’.

(P. R. 13.)

13

The plaintiffs and all other members of the Asso-

ciation will be arrested daily in the conduct of their

business, if their motor trucks exceed the said com-

bined weight of 16,500 pounds, and will be forced and

compelled, either to discontinue their business or to

reduce the said combined weight, as fixed by the law

at 22,000 pounds, to the combined weight of 16,500

pounds, as provided for in said order, all of which

would deprive these plaintiffs of their rights to en-

gage in their said operation of their said motor trucks

carrying freight for compensation on the said Fed-

MLSS Ste OP ae 2 OTe,

Piast tae red.., bert sata gaa

14 |

eral aided highway, as well as preventing interstate

commerce and would destroy the use of their said mo-

tor trucks on said portion of said highway for which

privilege the said plaintiffs have paid all fees and

charges and the premises considered the plaintiffs will

sustain large, heavy irrepairable loss, damage and in-

jury, unless given protection by injunction, and the

plaintiffs have no plain, speedy and adequate remedy

at law. (P. R. 13, 14.)

The matters involved in this controversy exceed in

value the sum of $3,000.00 exclusive of interest and

costs. (P. R. 14.)

The plaintiffs pray that a temporary injunction

should be issued restraining the defendants from in-

terfering with the operation of plaintiffs’ trucks on

such portion of such highway operating their trucks

with the combined weight of truck and load to-wit,

22,000 pounds, until a final hearing and determina-

tion and that a permanent injunction issue enjoining

the enforcement of the said order in controversy as

being void and unconstitutional, and for other, fur-

ther and proper relief as may be just and equitable in

the premises, including costs and disbursements here-

in. Further the plaintiffs show that the constitution-

ality of the State Statute and the enforcement there-

of by the defendants is sought to be enjoined and

they pray that such application for a temporary in-

junction should be heard before a court consisting of

Three Judges, one of such Judges to be a Circuit

Judge. (P. R. 14, 15.)

The defendants filed a motion to dismiss the

amended bill of complaint ou the sole ground. that the

facts were not sufficient to constitute a cause of action

against the defendants or to entitle the plaintiffs to

the relief demanded. (P. R. 17, 18.)

15

Said application for a temporary injunction was

heard and the Court denied said application for such

temporary injunction and at the same time, the

amended bill of complaint was dismissed and the

plaintiffs had refused to plead further, the decree

dismissing the cause was entered. (P. R. 24, 25, 26.)

16

SPECIFICATIONS OF ERRORS

5.

The Court erred in refusing to grant the temporary

injunction prayed for.

TT.

The Court erred in dismissing the amended bill of

complaint.

III.

The Court erred in dismissing the cause of action.

IV.

The said order denying application for temporary

injunction and sustaining the motion to dismiss the

amended bill of complaint, and the decree dismissing

the cause of action are erroneous in these particulars:

A. That plaintiffs’ constitutional rights under the

contract between the Federal Government and the

State of Washington, evidenced by the ‘Federal

Highway Act” and adoption thereof by the State,

were not protected.

B. In deciding that the provisions contained in Sec-

tions 35, 36 and 36A of the State Law of 1921,

as amended in 1923, giving the County Courts and

State Highway Commission power to limit the ea-

pacity of trucks or limit the speed, are constitu-

tional and not contrary to the Federal Constitu-

tion, the Federal Legislation, relating to federal

aided highways, which the State had duly adopted.

C. In deciding that the order of said State Highway

Commission issued under the said provisions of

said law, reducing the maximum weight of truck

and load from 22,000 pounds to 16,500 pounds,

was constitutional, and did not offend the Federal

17

Constitution, the Federal Highway and the adop-

tion of the provisions of the said ‘‘ Federal High-

way Act”’ by the State.

D. In deciding that the State directly or through the

County Courts or the State Highway Commission

have the sole jurisdiction and power to promul-

gate and enforee rules and regulations, relating

to the conservation and preservation of federal

aided highways or the safety of traffic thereon.

E. In deciding that the State Highway Commission

had the jurisdiction and power to restrict the use

of federal aided highways by trucks carrying a

combined weight of truek and load in excess of

16,500 pounds without notice or hearing to the

owners and operators of such trucks and that the

said order was constitutional and not contrary to

the Federal Constitution, and the Federal Aid

Legislation, as adopted by the State.

F. In deciding interstate commerce was not burdened.

G. Tn deciding that such order was issued and en-

forced upon the sole reason of emergency, while

the admitted facts show no emergency existed.

H. In deciding that such order did not foster and

ereate a monopoly in favor of railroad companies

and steamboat companies, while the admitted facts

show that the only grounds for issuing and enfore-

ing such order were to destroy the competition

of motor trucks for the benefit of such railroad

companys and steamboat companys—not only in

intrastate commerce, but also in interstate com-

merece.

I. In deciding that such order did not irreparably

damage and injure the business of said owners

and operators of said trucks, contrary to the Fed-

eral Constitution, the Federal Highway Act and

contract of the State which adopted and agreed

EL PON. EY LN SOO

Percrrrnntin esr

to abide by all the provisions of said Federal Aid

Legislation, as well as the State legislation re-

lating to fees and the Publie Service Commission.

J. In deciding that such order was reasonable and

K.

not arbitrary.

In refusing the application for the temporary in-

junction, although the admitted facts showed that

the plaintiffs below, appellants herein offered to

safeguard any damage that might arise from op-

erating trucks under the same weight limit which

had been fixed for 10 years and was the limit in

1916 when said Post Rural Act had been enacted

by Congess, and under which the federal aided

highways had been and were now being con-

structed and reconstructed.

19

SUMMARY

This matter comes to this Court on appeal from the

District Court of the United States of the District

of Oregon.

The lower Court, composed of Three Judges, as

provided for by Section 266 of the Judicial Code, as

amended, denied the application of the plaintiffs be-

low for a temporary injunction, and dismissed the

amended bill of complaint, and dismissed the cause of

action.

The lower Court filed a written opinion (P. R. 23,

94), and referred to and made a part of such opinion

the prior written opinion of the same Court upon the

application for a temporary injunction based upon

the original bill of complaint. (P. R. 18, 23.)

In support of the order and decree entered in the

Court below the following argument is made:

That the Federal Highway Act, adopted by the

State of Oregon, protects the plaintiffs’ rights and

privileges depending upon such joint and concurrent

iegislation whenever the same are trenched upon;

but that the action of the State, as it did in 1921, fix-

ing the maximum load weight of trucks used upon

the highways at 22,000 pounds is not and does not

constitute a part of that concurrent legislation. It

does noi relate to any matter within the purview of

the joint and concurrent legislation of Congress and

the State respecting the construction and mainten-

ance of rural post roads. There is no constitutional

or legal reason why the State Legislature might not

in 1921 have fixed the maximum truck load less than

22,000 pounds, so that it did not make it so low as

practically to rule trucks off the highway, which

would raise a legislative question involving discretion

(pee . — iat SY

touching the reasonableness of the provisions of the

act. Legislation empowered the State Highway Com-

mission in cases of emergency to reduce the carrying

weight of trucks until the emergency was relieved

again. This is all the commission attempted and is

attempting to do in the present case. The order of

the commi:.*on is temporary, not permanent, it read-

ing ‘‘until revoked or modified.’’ The States are

compelled to maintain roads constructed in_ their

States; failure so to do vests the Secretary of Agricul

ture upon proper notice to proceed immediately to

place said highways in proper condition. If highways

fall into decay or disorder, then the same should be

protected until repaired or reconstructed. There is

no merit in the contention of the plaintiffs that the

order issued by the Highway Commission was en-

tered without notice. The public is not e1.‘itled to

such notice. The State has paramount control over

the use of the highways within its border, and it may

enact and enforce reasonable regulations governing

traffic over them, necessary to secure their preserva-

tion and maintenance, and the public safety. (13 R.

C. L. See. 212; Grand Trunk Western Ry. v. South

Bend, 227 U. S. 544). The highways of the State are

open to intrastate and interstate commerce alike, and

the state cannot, under the guise of legislation deny

one engaged in interstate commerce the use of its

highways. (Buck v Kuykendall, 267 U. 8S. 307). The

State may rightfully prescribe uniform regulation

to promote safety upon its highways and the conser-

vation of their use, applicable alike to all vehicles,

moving in interstate or intrastate, in the absence of

national legislation covering such subject. (Kendrick

v Maryland, 235 U. S. 610; Kane v New Jersey, 242

U. S. 160). The order of the highway commission is

not a discrimination against interstate commerce and

21

does deny such operators of the equal protection of

the law.

The fallacy of the above argument is apparent.

An examination of the provisions of the Federal Leg-

islation adopted by the State, as set out in the ap-

pendix hereto, discloses that the Federal Government

had taken sole jurisdiction of federal aided highways

for certain purposes, and the State legislation enacted

in 1921, as amended in 192? «.s well as the order of

the State Highway Commissic.. made in the fall of

1925, are prohibited by such Federal Legislation,

which vests the Secretary of Agriculture with sole

and exclusive jurisdiction to promulgate the rules

and regulations for the conservation of such federal

aided highways and the safety of traffic thereon.

Moreover, all the allegations of the amended bill

of complaint are admitted by the motion to dismiss

and all the admitted facts disprove the statements

upon which said argument rests. The admitted facts

show that there is no emergency but such portion

of said federal aided highway ic in proper condition

of maintenance and repair; that the order was not to

prevent such operation of such character of traffic

for the purpose of repairing such highway, but for

the sole purpose of making a »ermanent reduction

of the carrving capacity of said trucks; no mention

is made in such argument that the admitted facts

show that such order was made for the purpose of

destroying the competition of not only such trucks

operating on this portion of said highwavs, but other

trucks operating on portions of other 14 federal aided

highways, with railroad lines and steamboat lines;

no mention in such argument that the plaintiffs were

able to and offered to give proper bond in any amount

fixed by the court to safeguard against any damage

Rea ER Geetha yan Yea HA Ie ROHN SSRI HR OS

ini cetanatiea

22

done by such operation; it is admitted that the plain-

tiffs, appellants herein, have been and will daily suf-

fer irreparable damage and loss, not only in their in-

trastate business, but also in their interstate business,

That the plaintiffs, appellants herein, prayed the

protection of the Constitution of the United States,

the Federal Legislation, relating to financial aid to

States, and the contract which the States adopted and

under the provisions of such Federal Legislation, the

State has had millions of dollars and is now receiving

financial aid from the Federal Government.

23

ARGUMENT

I.

THE UNITED STATES HAD BEEN VESTED

WITH THE SOLE JURISDICTION OVER FED-

ERAL AIDED HIGHWAYS BY THE LAW EN-

ACTED BY THE STATH IN THE YEAR 1917.

AND THE STATE HAD AGREED TO SURREN-

DER SUCH JURISDICTION TO THE UNITED

STATES AND HAS AND IS NOW RECEIVING

THE FINANCIAL BENEFITS OF SUCH FED-

ERAL LEGISLATION.

The portions of such Federal legislation set out in

appendix show conclusively that Congress did not in-

tend that the millions and millions of dollars of gov-

ernment moneys should be apportioned to the differ-

ent States without safeguarding the construction, re-

construction, maintenance of such highways and the

safety of traffic thereon.

Congress had prior to the year 1916 been continu-

ally harrassed and embarassed by its failure to re-

tain the sole jurisdiction over internal improvements

subsidized by the Federal Government.

We refer to a few cases in point.

After the government had ceded to Maryland, Penn-

svlvania, Ohio and Indiana, the Cumberland Road

which had been constructed by the Government under

the one consideration, namely, that no tolls could be

exacted for the use of stage and coaches carrying

mails, and ete., the States of Maryland, Pennsylvania

and Ohio by legislative acts endeavored to evade and

cancel that one consideration and it was necessary to

appeal to the Courts for protection. The Supreme

jot oa a

WIS ha Caeser tel diet

epi ae

4

4

;

4

;

24

Court of the United States declared that such State

jaws were in violation of such contract and the in-

dividual operators of such stage coaches were entitled

to use such highway carrying United States mail as

well as passengers without the exaction of any tolls.

Searight vs. Stokes et al., 3 How. 151, 11 L. ed.

537.

Neil, Moore &: Co., v. Ohio, 3 How. 720, 11 L.

ed. 800.

Achison v. Hudleson, 12 How. 291, 13 L. ed.

993.

The State of Indiana endeavored to recover moneys

which it claimed the Government owed it by reason

of the building of such highway out of the sales of

the Government’s public lands, and the Government

was compelled to resist such suit and was successful.

State of Indiana v. U. S., 148 U. S. 148, 37 L.

ed. 401.

Congress in 1864 granted the State of Oregon aid

in the construction of a military road from Eugene

City to the Eastern boundary of the State under cer-

tain conditions, viz: ‘‘That said road shall be con-

structed with such width, graduation, and bridges as

to permit of its regular use as a wagon road, and in

such other special manner as the state of Oregon

may preseribe’’; further in See. 4, it was provided

‘‘and when the governor of such state shall certify

to the Secretary of Interior that any ten continuous

miles of said road are completed,’’ * * *. The state

was only authorized to sell the granted land only as

the construction had progressed. There was no pro-

vision compelling the state to maintain such military

—

bse sb 5s Ohad eS

* Ate Thy Se

25

road in good condition and as the Supreme Court

said: ‘‘Having earned the grant by constructing the

road, it may well be that the road company took no

further interest in it,’’ * * *.

U.S. v. California & Oregon Land Co., 148 U.

S. 31, 37 L. ed. 354, 356, 362.

In 1867 Congress granted to the State of Oregon

certain public lands to aid in the construction of a mili-

tary wagon road from Dalles City, on the Columbia

River Easterly to the Idaho line opposite Fort Boise ;

that such public land should not be disposed of by the

state except for such purpose; ‘‘That the said road

should be and remain a public highway for the use of

the government of the United States, free from tolls

or other charges upon the transportation of any prop-

erty, troops or mails of the United States, and the

said road should be constructed with such width, gra-

dation and bridges as to permit of its regular use as

a wagon road,’’ * * *. The United States endeavored

to recover some of the lands granted to the state and

sold by it on the ground of the fraud of the Governor.

U.S. v. Dalles Military Road Co., 140 U. S.

599, 35 L. ed. 561, 562.

After the enactment of the Telegraph Act the state

of Florida tried by legislative act to prevent the exer-

cise of the rights of a telegraph company under the

Act of Congess and the Supreme Court declared such

legislation of said State unconstitutional.

Pensacola Tel. Co. v. W. U. Tel. Co., 96 U.S.

1, 24 L. ed. 708.

The Supreme Court declared an act of the State

of Idaho unconstitutional which created a monopoly

Ne ee Ree

NecieS MB is REE RB ian Nats Bi a cS a Heat Hl BB. INE

)

|

i

;

rf

on the public highway in such State which had been

granted government aid.

U.S. v. Union Pacifie R. Co., 160 U.S. 1, 40

L. ed. 319.

The United States Supreme Court construed the

contract entered into between the United States and

a Railroad, under which the government donated pub-

lic lands to the railroad to aid in its construction in

consideration that the United States could have the

use of the road ‘‘free from all tolls or other charge

for transportation of any property or troops of the

United States.’’

Take Superior Etc., R. R. Co. v. U. S., 93 U.

S. 442, 23 L. ed. 965.

The attempts of railroads to evade their contracts

with the government based upon land grants, is il-

lustrated by the following cases:

Grand Trunk Western R. Co. v. U. S., 252 U.

S. 112: 64 L. ed.

Also:

Wisconsin Central R. Co. v. U. S., 164 U.S.

190; 41 L. ed. 399.

The same situation arose in grants by the United

States for construction of canals.

Mr. Justice Peckham in delivering the opinion of

the court said:

“Defendant refers to certain grants of land

made to Illinois, Indiana, and Ohio, and perhaps

to some other states, where such grants were made

to aid in the construction of canals in those

27

states, and where possible profits from the con-

struction of such canals were within the contem-

plation of the various grants. But in the acts

referred to there are no restrictions upon the

tolls which the states may charge for the use of

their respective canals, the only limitation im-

posed being that the government should have

their free use for the passage of its vessels; while,

in this act the tolls which the state may charge

are to be only such after the payment for its con-

struction, ete.. as should be sufficient to pay the

necessary expenses for the care, charge, and re-

pairs thereof.

The state of Michigan, through an Act of the

legislature, duly accepted the terms of the Act of

Congress, and agreed to carry out all the condi-

tions therein made obligatory upon that state.

An attentive reading of that statute shows its pur-

pose to conform to all of the provisions of the

Federal statute. * * *.

If any particular part of the statute in this

case were ambiguous or its meaning doubtful, of

course the intention must be deduced from the

whole statute and every part of it. Hence the

importance of those provisions which, in effect,

if carried out, prevent the state from making

any direct profit by the construction of the canal,

or from the tolls received from vessels passing

through it. And, where words are ambigous leg-

islative grants must be interpreted most strongly

against the grantee and for the government, and

are not to be extended by implication in favor of

the grantee beyond the natural and obvious mean-

ing of the words employed. Any ambiguity must

operate against the grantee and in favor of the

public. Rice v. Minnesota & N. W. R. Co. 1

Black, 380, 17 L. ed. 154. This rule of construc-

tion obtains in grants from the United States to

States or corporations in the aid of the construc-

tion of publie works.”’

as von csc eae

28

In such Act of Congress there were certain duties

imposed upon the States and the Secretary of the

Interior was delegated to take charge of all of the

matters involved in such contracts. There was no in-

tention that the State would reap profit out of this

grant by the government, but the State was to profit

from the construction of such internal improvements

wholly within the State by the completion and opera-

tion of such canal.

U.S. v. Michigan, 190 U. 8. 377, 399, 400, 401;

47 L.. ed. 1103, 1110, 1111.

When the State adopted and agreed to abide by all

of the provisions of such Federal legislation and has

and is now receiving financial benefits therefrom,

such State is estopped from in any way contesting

the sole jurisdiction and authority contained in the

said provisions of said Federal legislation.

The State cannot exact toll of any kind.

No project ean be initiated except under the ap-

proval of the Secretary of Agriculture.

And no moneys can be paid over to the State until

after the Secretary of Agriculture has issued proper

approval of the construction and reconstruction of

any Federal Aided Highway.

The State must comply with the provisions of the

Federal legislation which forces the construction or

reconstruction with proper material and types of sur-

face so as to make such highway permanent and of

such strength and width required to adequately take

care not only of the present traffic, but also for the

probable future traffic.

It is the duty of the Secretary of Agriculture to

carry out the provisions of such Federal legislation

and certify that such highway so constructed or re-

constructed is built with such types of surface and

material so as to give sufficient strength and width

to adequately take care of not only the present traf-

fic, but also the probable future traffic.

It is the duty of the State to keep such highways

in proper condition of maintenance, and if it fails to

do so, then the Secretary of Agriculture, after due

notice and finding that such highway has not been

put in proper condition, and it is the duty of the

Secretary of Agriculture to put such highway in prop-

er condition of maintenance and use the allotment of

such state for such purpose.

The Secretary of Agriculture is vested with the

sole jurisdiction and authority to issue all needful

rules and regulations for the carrying out of all the

provisions of this act, and is vested with the sole

jurisdiction to preserve and protect the highways and

insure the safety of traffic thereon.

The amendment of 1922 strengthens the provisions

of such legislation by the insertion of penalties, so

that any one convicted with intent to defraud the

United States in any matter relating to the construc-

tion, reconstruction, in maintenance etc., shall be pun-

ished by imprisonment not to exceed five years or by

a fine not to exceed $10,000.00, or by both fine and

imprisonment within said limits.

A study of the above cases and the provisions of

the Federal Legislation, adopted by the State, shows

conclusively that Congress intended to and did take

over the sole jurisdiction, supervision and regulation

of such highways and empowered and directed the

Seeretary of Agriculture to carry out the provisions

of such Federal Legislation.

|

a oat

We submit that the United States has the sole

jurisdiction over the construction, reconstruction,

types of surface, the material used, the width and

strength of pavement and the operation of traffic

thereon, and the State has lost the power to exact tolls

of any kind for the use of such highways and to enact

and enforce any law relating to the construction, re-

construction, types of surface, the material used, the

width and strength of pavement and to designate the

capacity of motor trucks or to interfere in any way

with traffic cn such highways.

30

If.

THE PROVISIONS, SEC. 35 AND 36, OF THE

STATE LAW ENACTED IN 1921, AS AMENDED

IN 1923 AND THE ACTS OF THE STATE HIGH-

WAY COMMISSION THEREUNDER IN RE-

DUCING THE CAPACITY OF CERTAIN MO-

TOR TRUCKS, ARE UNCONSTITUTIONAL

AND VOID, BEING IN CONTRAVENTION TO

AND IN VIOLATION OF THE CONSTITUTION

OF THE UNITED STATES, THE ‘FEDERAL

HIGHWAY ACT” AND OF ALL THE PROVIS-

IONS OF SAID “FEDERAL HIGHWAY ACT”

AVOPTED BY THE STATE IN 1917.

The said State law enacted in 1921, as amended in

1923, (appendix page 67) granted power to County

Judges and the State Highway Commission to reduce

the capacity of trucks and under which law the State

Highway Commission on August 28, 1925, issued an

order reducing the capacity of said trucks from 22,

000 pounds to 16,500 pounds. (P. R. p. 15, 16.)

31

It is admitted that the Secretary of Agriculture

had not in any ordered, directed or commanded

said State Highway Commission to make such order,

but it acted on its own violition and thereby obstructed,

interfered with and destroyed this character of traf-

fic, namely, trucks built for the carriage of freight

with this legal capacity which limit had been fixed

for more than 19 years last past and for which char-

acter of traffic the said highway in controversy had

been constructed and reconstructed. (P. R. p. 6, 10,

20.)

When the State by legislative Act did adopt the pro-

visions of said Federal Legislation and agreed to

abide by all of the said provisions, it transferred all

of its powers in that respect to the Federal Govern-

ment.

The “FEDERAL HIGHWAY ACT” provided

that the entire jurisdiction over Federal aided high-

ways was to be vested in the Federal Government and

gave the power and authority to the Secretary of

Agriculture to carry out the provisions of such Act.

The Secretary of Agriculture has the only power

to take steps to conserve and preserve such highways

and insure the safety of traffic thereon, and the enact-

ment of the said provisions of this law of 1921, as

amended in 1923, and the acts of the State Highway

Commission in issuing and enforcing such order, were

directly in violation and contrary to the agreement

made by said State in the adoption of said provisions

of said law in the year 1917. (Appendix page 61).

The order issued by the State Highway Commis-

sion discloses that the very language used in the pro-

visions of the said ‘‘Federal Highway Act,’’ to-wit,

“rules and regulations’? were adopted by the State

Highway Commission under the provisions of the

destin scaniaineememnins |

how sae Sete

Dictate cis isis8 inser inners

32

law of 1921, as amended in 1923. (P. R. p. 17.) In

other words the State, indirectly through the State

Highway Commission, is exercising jurisdiction and

is interfering with the carrying out of the provisions

of the said ‘‘ Federal Highway Act’’ by the Secretary

of Agriculture.

The lower Court decided that these plaintiffs, ap-

pellants herein, had a ‘‘legal status from which the

states can neither withdraw nor alter, modify or

Ree ,’ whenever ‘‘their rights and

privileges depending upon such joint and concurrent

legislation, are trenched upon.’’ But the Court said

that the reduction of such combined weight of 22,000

pounds to 16,500 pounds did not constitute ‘‘a part of

that concurrent legislation”’ ................. Again in the

opinion it is said that such provisions of said State

law of 1921 is a subject embraced by the title. “It

does not relate to any matter within the purview of

the joint and concurrent legislation of Congress and

the state respecting the construction and maintenance

of rural post roads.” (P. R. p. 21, 22.)

The Supreme Court of the United States speaking

by Mr. Justice Brewer said:

‘Concurrent jurisdiction, properly so-called,

on rivers, is familiar to our legislation, and means

the jurisdiction of two powers over one and the

same place.”’

Neilsen v. Oregon, 212 U.S. 315, 319, 53 L. ed.

528, 529.

We are not able to subscribe to the statement that

the Federal Government and the State have joint and

concurrent jurisdiction, as the provisions of the ‘‘Fed-

eral Highway Act’’ as adopted by the State have taken

away any jurisdiction from the State over this sub-

ject, namely the interference of traffic on Federal

33

aided highways by reducing the capacity of motor

trucks when the Federal Government had determined

in the ‘‘Federal Highway Act’’ (appendix page 44)

that such highways should be constructed or reecon-

structed with sufficient width and strength, and types

of surface and material, sufficient to adequately take

eare of the needs of the then traffic as well as proba-

ble future traffic and the Secretary has sole jurisdic-

tion to make ‘‘rules and regulations’’ conserving such

highways and insuring the safety thereon. It is ad-_

mitted that the said highways had been for many

years used by trucks with the capacity of 5 tons,

and by such character of traffic.

A legislative Act, declaring that certain lands

which should be purchased for the Indians, should

not, thereafter, be subject to any tax, constituted a

contract, which could not be rescinded by a subse-

quent legislative act; such repealing act being void

under that clause of the constitution of the United

States which prohibits a state from passing any law

impairing the obligation of contracts.

State of New Jersey v. Wilson, 7 Cranch. 165,

3 Ld. ed. 303.

Also:

Buck v. Kuykendall, 267 U. 8. 307, 69 L. ed.

301,

We refer to the decisions on this question cited

under paragraph 1 of this argument.

We submit that said provisions of said State law

and the acts of said State Highway Commission are

unconstitutional, void and violate the provisions of

the Constitution of the United States, the Federal

Highway Act and the adoption of the provisions

thereof by the legislative Act of the State.

i .

PRPS SIN re WS sas ea er age

j

. hess for many years, using the Federal aided high-

34

III.

THE ORDER OF THE STATE HIGHWAY

COMMISSION BURDENS INTERSTATE COM-

MERCE AND IS UNCONSTITUTIONAL.

It is admitted that the appellants were engaged in

transporting freight between Portland, Oregon and

the States of Washington and Idaho for compensa-

tion, and that they had been so engaged in such busi-

way from Portland to The Dalles and beyond; and

that such appellants had at large expense constructed

trucks in order to carry the largest capacity of

freight that had been considered for years as the

limit capacity. They had paid the largest fees in the

State for carrying such capacity; also had obtained

permits from the Publie Service Commission of the

State and as required they had filed their tariffs,

which tariffs were just and reasonable and were de-

termined by the said capacity loads, and no tariff

could be accepted by said Public Service Commission

carrying a charge approximately 100% in excess of

the rates now on file; such appellants had been con-

pelled to join with others in the construction and

maintenance of a terminal at Portland, Oregon at

an expense of many thousands of dollars. Such or-

der, which was made on August 28, 1925, went into

foree on October 1, 1925, would compel the appellants

to cut down their capacity 50%; while such order

only covered 22:11 miles from the East Line of Mult-

nomah County Line to Hood River, yet the effect

of such order is to eut down the capacity on said

Columbia River Highway from Portland to The

Dalles and beyond; the appellants are carriers of food

products and collect and deliver the same from pro-

ducer to consumer and deliver to producers articles

_— :

necessary in the production of such food products.

(The Government in 1919 appropriated $300,000.00

to the Postmaster General in order to experiment with

motor trucks so as to cheapen the cost of food prod-

ucts from producer to consumer. (Appendix page 48) ;

such order has irreparably damaged and injured the

appellants and their business and has and will bur-

den interstate commerce and destroy their rights and

privileges obtained from the said Public Service Com-

mission; such order is a burden on interstate com-

merce and is contrary to and in violation of the Con-

stitution of the United States and the Federal High-

way Act, and the contract of the State in adopting all

of the provisions of such Federal Highway Act.

This order has the direct result of effecting the

just and reasonable charges on such interstate busi-

ness, by destroying the present tariffs and doubling

the cost of such freight charges, even if the Publie

Service Commission would find that such inerease

would be just and reasonable, but such Commission

has declared that it would not eountenance such in-

creased charges. If the State had directly fixed the

present tariff and reduced the same 50% on said in-

terstate business, the appellants would be entitled to

an injunction and a decree after final hearing on the

ground that such exaction would have been contrary

to and in violation of the Constitution of the United

States as being arbitrary, unreasonable and confisea-

tory. We consider that such order has the same ef-

fect.

Railroad Commission cases, 116 U. 8. 307, 29

L. ed. 636;

Chicago M. & St. P. R. Co. v. Minnesota, 134

U. S. 418, 33 L. ed. 970;

a

eS este

Bettas :

re ER RAs a ste sice orgy, RURARCNeNNCEDRANRICELAS

Bae i iat

é

&

£

ry

@

4

“4

-

“

z

5 od

3

i

=

3

a

Reagan v. Farmers’ Loan & T. Co., 154 U. §,

362, 38 L. ed. 1014;

St. Louis & S. F. R. Co. v. Gill, 156 U.S. 649,

39 L. ed. 567;

Buck v. Kuykendall, 267 U. 8. 307, 69 L. ed.

301.

We call the Court’s attention to the citations under

paragraph 1 in this argument.

SUCH OKDER OF SAID STATE HIGHWAY

COMMISSION AND THE ENFORCEMENT

THEREOF WERE ARBITRARY, UNREASONA-

BLE, VOID, AND UNCONSTITUTIONAL, AND

CREATED A MONOPOLY IN FAVOR OF

OTHER COMMON CARRIERS IN COMPETI-

TION WITH THE TRUCKS OF SAID APPEL-

LANTS.

The admitted facts show that there was absolutely

no oceasion to make such order, as the said portion

of said Columbia River Highway was in as good a con-

dition as it had been for years and it had not been

and is not being damaged or destroyed by the opera-

tion of Nine motor trucks carrying freight with a

combined weight of truck and load of 22,000 pounds.

(P. R. p. 11.)

Furthermore it is admitted that the said State

Highway Commission did not issue said order based

upon the present or past damage or destruction of

said portion of said highway, but upon a fear that in

some future day such Nine motor trucks might s0

damage and destroy said portion of said Columbia

River Highway, and although said portion of said

37

highway was in first class condition and repair as

well as the other said portions of said highway. (P.

R. p. 11, 12.)

That said State Highway Commission had issued

a blanket order covering 14 other Federal aided high-

ways or portions of the same, and attempted to re-

duce the said combined weight of truck and load

from 22,000 pounds to 16,500 pounds. (P. R. p. 12.)

When the said portion of said Columbia River

Highway was constructed and reconstructed there

were four trucks operated thereon with the largest

legal capacity, and the portion of said Columbia Riv-

er Highway West from the East Line of Multno-

mah County had been constructed and reconstructed

many years prior to the portion in controversy and

used by said trucks with such capacity for many

years. (P. R. p. 10, 11.)

In the year 1917 the State enacted a certain law

which provided that this said portion of said Colum-

bia River Highway between the East Line of Mult-

nomah County through the City of Hood River, and

through The Dalles on to the Idaho Line should be

paved with hard surface paving, and that such high-

way should be permanently constructed and so fin-

ished by hard surfacing the same, and that such por-

tion from the said East Multnomah Line through

llood River City through The Dalles to the Idaho

State Line was constructed in a permanent manner

by hard surfacing by paving, about Five years ago.

(P. R. p. 10.)

That under the provisions of the ‘‘ Federal Highway

Act” the Secretary of Agriculture had approved

such portion of said highway, declaring that said

highway had been permanently constructed by a

Sus Sispahib atnlh Pinte Seeker oat F a |

7

:

x

3

*

5

L

>

:

FA

te

us J

38

proper type of surface and with proper materials so

as to take care of not only the then traffic, but the

probable increase of traffic thereon.

The Court must presume that the Secretary of

Agriculture had carried out the provisions of said

‘*Federal Highway Act’’ and that the State in con-

structing and reconstructing said portion of said high-

way had through its State Highway Commission com-

plied with not only the ‘‘Federal Highway Act’’, but

also the commands contained in the said State law.

(Appendix page 44).

We are therefore surprised to find that that por-

tion of said highway 22:11 miles in length constructed

and reconstructed a few years ago, has been dam-

aged and destroyed by the addition of Five trucks

operating as the additional traffic on such portion

of said highway, although adjacent portions of the

Columbia River Highway constructed and used many

years prior are not included in such order. If the

Federal and State authorities have exercised their

duties, there could be no reasonable justification of

such order of said State Highway Commission, and

as such highway is in proper maintenance and _ re-

pair, as admitted by the motion to dismiss the

amended bill of complaint, we must conclude that the

order of the State Highway Commission which des-

troyed the operation of trucks carrying the combined

weight of truck and load of 22,000 pounds, and the

order of same effect regarding the 14 other Federal

aided highways, parallel to railroad lines, were made

for the sole purpose of destroying the competition by

such trucks with the railroad line and steamboat line

parallel to the Columbia River Highway and with

the railroad lines parallel to the other 14 Federal

aided highways. (P. R. p. 9, 10, 12.)

39

Either the State Highway Commission has, itself

or other persons have combined with it, to defraud

the United States in the construction or reconstruc-

tion of said portion of said Columbia River Highway

(see penalty clause in appendix p. 74) or else the acts

of said commission are arbitrary and unreasonable.

Cincinnati, N. O. & T. R. Co. v. Rankin, 241 U.

S. 319, 60 L. ed. 1022.

We submit that such order is arbitrary and unrea-

sonable and is not based on any facts and is contrary

to all the facts.

We call the Court’s attention to the citations under

paragraph ITI.

V.

THE LOWER COURT IN DENYING THE AP-

PLICATION FOR INJUNCTION AND ENTER-

ING THE DECREE DISMISSING THE AMEND-

ED BILL OF COMPLAINT AND THE CAUSE,

HELD THAT THE SAID ORDER OF SAID

STATE HIGHWAY COMMISSION WAS BASED

SOLELY UPON EMERGENCY.

The opinion of the lower court recites that the

order was made by reason of the emergency exist-

ing for the immediate repair of the said 22.11 miles

in controversy. (P. R. p. 22, 23.)

An examination of the record in this cause shows

that there is not one sentence in said record upon

which the lower court could so act.

The record shows that the portion of said highway

in controversy was in proper condition of mainten-

OW LL REE NGT O SERN LIS Pa DY Rap

ee ee eee Ss ee eh ee a

40

ance and repair, and also that there was no necessity

for reducing such limit of combined weight of load

and truck of 22,000. (P. R. p. 9, 10, 11, 12.)

Moreover, the appellants had offered to file good

and sufficient bond in any amount the court would

fix, in order to continue their operation of their

trucks carrying the combined weight of truck and

load and safeguard the State for any damage which

might arise from the operation of said trucks with

the additions! combined weight fixed by said order,

to-wit; 16,500. (P. R. p. 12.)

It is admitted that for the year 1925 the State

Highway Commission was only compelled to expend

$5,000.00 in the maintenance and repair of said por-

tion of said highway. (P. R. p. 12.)

The silent witness of the record itself shows con-

clusively that the foundation upon which the lower

court rendered its order and decree was contrary to

the record.

The order was entered by the State Highway Com-

mission on August 28th, 1925, and was to go into ef-

fect 32 days afterwards, namely on October Ist, 1925.

(P. R. p. 17.)

After the filing of the original bill and after the

decision of the lower court filed on January 11th,

1926, (P. R. p. 18,) based upon the allegations of

such original complaint, the plaintiffs below filed

the amended bill of complaint on January 25th, 1926.

(P. R. p. 1.)

So that from October 1st, 1925, up to January 25th,

1926, when the amended bill of complaint was filed

in which it is alleged that such highway was in per-

fect condition of maintenance and repair and in spite

of the fact that all allegations of said amended bill

41

of complaint were admitted by the said motion to

dismiss, the lower court on March 20th, 1926, (P. R.

p. 25,) reiterated that the allegations of the amended

bill of complaint showed an immediate necessity for

repairing such 22.11 miles of such highway and there-

fore it was necessary for the State Highway Com-

mission to enter said order of August 28th, 1925.

In the opinion of the lower court rendered upon

the amended bill of complaint, it is said that the

State has the power over the highways in the State

and “it may enact and impose reasonable regulations

governing the traffic over them, necessary to secure

their preservation and maintenance, and the public

safety.’’ Further that there is no national legislation

covering this subject.

In support of such assertions the court cited the

case of Grand Trunk Western Ry. v. South Bend,

227 U. 8. 644; Buck v. Kuykendall, 267 U. 8. 307;

Hendrick v. Marvland, 235 U. 8. 610; Kane v. New

Jersey, 242 U. S. 160. (P. R. p. 24.)

We call attention to this Court that the cases of

G. T. W. Ry. v. South Bend, Hendrick v. Maryland

and Kane v. New Jersey were determined and decided

before the original ‘Post Road Act” of 1916 was en-

acted, therefore such decisions have no value in this

present discussion. As to the ease of Buck v. Kuy-

kendall, we are at a loss to know how such case can

be an authority agamst our position. In such ease

this Court sustained Buck in his attempts to have

Section 4, of Chapter III, of the Laws of Washing-

ton 1921, and the acts of Kuykendall, Director of

Public Utilities in said State declared void and un-

constitutional upon certain grounds, one being the

Federal legislation aiding States in the construction

of rural post roads, another ground being that inter-

a

42

state commerce was burdened by such provisions of

said law and the acts of Kuykendall.

We claim that the Buck case decides that the pro-

visions of the ‘‘Federal Highway Act’’ divest the pow-

er of the State to legislate in violation of and contrary

to said provisions which were adopted by the State

by proper legislative act.

We submit that the order denying the application

for temporary injunction and the decree dismissing

the amended bill of complaint and the cause are er-

roneous, and that the same be reversed, and your Hon-

' orable Court enter such decree as may be proy r, the

premises considered.

Respectfully submitted,

W. R. CRAWFORD,

EDWIN C. EWING,

i

i

Solicitors for Appellants.