# Appellants Brief — Morris v. Duby

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appellants Brief
- **Published:** January 1, 1927
- **Citation:** 274 U.S. 135

## Text

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.

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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,

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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

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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

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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.)

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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-

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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

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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

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3

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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 |

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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_0662%3A02. Public record. Not legal advice.