Motion — Morris v. Duby

IN THE

Supreme Court of the United States

OCTOBER TERM, 1926

No. 372

R. B. MORRIS, doing business as MORRIS &

LOWTHER; H. M. HEWITT and LEW NUNA-

MAKER, doing business as JOHN DAY VALLEY

FREIGHT LINE; H. L. LIVINGSTON, doing

business as BEND-PORTLAND TRANSIT, and

PORTLAND-HOOD RIVER TRUCK LINE,

INC., Appellants,

vs.

WM. DUBY, H. B. VAN DUZER, and W. H. MA-

LONE, as the OREGON STATE HIGHWAY

COMMISSION, Appellees.

Appeal From the District Court of the United States

From the District of Oregon.

MOTION TO VACATE DECREE AND

BRIEF IN SUPPORT

To the Honorable, the Chief Justice and the Associate

Justices of the Supreme Court of the United

States:

Come now the appellants in the above entitled

cause and move this Honorable Court to vacate that

“it Sa Se a tanABD aia leach dna Na ls aie od i i th Rall, inks, eae REC CTR Is ite <a ga aan

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certain decree made and entered October 29, 1926, in

the above entitled cause and show as follows:

1.

_ That as shown by the transeript of record in this

Court a judgment and decree was entered in the lower

Court on March 20, 1926, and in which judgment and

decree the defendants, now the appellees, recovered

their costs and disbursement taxed in the sum of

=) and the execution issue therefor. (P. R. 25,

That on said day proper appeal was prayed for

and perfected to this Court. (P. R. 25, 27.)

That on said day, to-wit, March 20, 1926, the said

order entered by the appellees herein reducing the

combined weight of truck and load from 22,000

pounds, as shown in the record, was still in force and

effect. (P. R. 3.)

't is shown that said order was entered by said ap-

pellees herein under and by virtue of the provisions

of Sections 35 and 36 of the Law of Oregon 1921, and

that the only power to so act by said appellees was

claimed under such sections of said State Law.

(P. R. 8.)

That the appellants received notice some time after

April 1, 1926, that the said appellees had, after the

appeal from the said judgment of the lower Court

had been perfected herein, revoked the order of the

said appellees in which the said combined weight cf

truck and load had been reduced from 22,000 pounds

to 16,500 pounds, and in the answer to the petition for

_—

a stay in the above entitled cause filed herein, it is

alleged that on March 25, 1926, such order had been

revoked, and such order also revoked all of the re-

strictions on the other 14 primary highways. Such

order being made by said appellees 5 days after the

appeal herein had been perfected, and jurisdiction

vested in your Court.

The order in controversy herein showed that the

said appellees acted under and by virtue of the laws

of Oregon for 1921, as amended in 1921, Special Ses-

sion, all as set out in said order, a copy of which is

set out in full in the transcript of record herein. (P.

R. 15-17.)

That on the 27th day of September, 1926, the briefs

of the appellants herein were mailed at Seattle, Wash-

ington, to the Supreme Court in the above entitled

cause, and at the same time briefs were mailed to the

Attorney General at Salem, Oregon, in the above en-

titled cause.

That on the 28th day of September, 1926, the ap-

pellees herein, acting solely under the provisions of

Sections 35 and 36 of the said State Law, as amend-

ed, did enter another order (which effects the same) 14

of the primary highways of the State, all Federa!

aided, restricting the use of motor trucks on certain

portions of said highways, including the 22.11 miles

on the Columbia River Highway between the East

Multnomah County Line and Hood River, in whieh

order the appellees reduced the combined weight of

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

but declared that such reduced weight should only

affect trucks having solid tires, and permitted trucks

with pneumatic tires to earry the legal combined

weight of 22,000 pounds and with a speed of not over

18 miles per hour, while the speed of the same truck

3

vex DROS Rae 0 Ry BK,

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with solid tires is limited to a speed of 12 miles per

hour.

That these appellants and others, operating trucks

with combined weight of truck and load of 22,000

pounds were and are compelled to use solid tires and

pay the said 50 cents per inch on such tires, and such

order, so made on September 28, 1926, was not made

by reason of any emergency, but fixed a definite time

of restriction, to-wit, from October 15, 1926, to April

15, 1927, and said order of said September 28, 1926,

as far as these appellants are concerned, has the same

force and effect as the said order complained of en-

tered in 1925.

That the specifications of errors contained in the

brief of appellants show that the principle questions

for determination was the constitutionality of such

provisions of the State Law, being Sections 35, 36, and

J6A, and the order entered by the appellees in 1925

rested entirely upon the constitutionality of the law

vesting the appellees with the jurisdiction and power

to enter such order.

Also that interstate commerce was unconstitution-

ally burdened by such provisions of the said State

Law as so administered. (Brief pp. 16, 17.)

So this Court will find that the appellants directly

attacked the constitutionality of said Sections 35 and

36 of said State Law, in paragraph 11 of the argu-

ment. (Brief p. 30.)

The amended complaint attacked the constitution-

ality of said sections of said law. (P. R. 13, 15.)

5

Wherefore these appellants pray this Honorable

Court to vacate and set aside the said order dismissing

said appeal entered on the 29th day of October, 1926;

and vacate the order and decree herein; and further

these appellants again renew their application made

for a Stay applied for in this Court on May 24, 1926;

and for all proper and further relief in the premises.

W. R. CRAWFORD,

EDWIN C. EWING,

Solicitors for Appellants.

i a ira a ne -

Ait at a NaN ses HAAN A ip

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ARGUMENT

The record shows that the appellees, immediately

after the appeal had been perfected to this Court, had

entered an order revoking such order reducing the

combined weight of truck and load. The appellants

made application in May to this Court for a stay

order, or the advancement of the hearing on the ap-

peal. In answer to such petition the appellees filed

an answer, and in such answer they show that their

order had been revoked and desired the dismissal of

the appeal.

As soon as the appellants had served the appellees

with their brief, the appellees again made an order

with the same force and effect as the order in 1925

which is set out in tlis cause as exhibit ‘‘A”’ to the

amended complaint. Such new order was made Sep-

tember 28, 1926.

This Court on October 29, 1926, entered a decree

dismissing the appeal with instructions to the lower

Court to dismiss the bill of complaint on the ground

that the case had become a moot one through the

rescission of the assailed order of the Oregon State

Highway Commission, with leave given appellants to

ove to vacate such decree.

This Court inadvertently overlooked the principle

matter involved in the appeal. That is, that this ac-

tion was instituted for the purpose of testing the con-

stitutionality of Sections 35, 36, and 36A of the Law

of 1921, as amended. The appellants made such ques-

tion the material question, as without such provisions

of said State law, the said State Highway Commission

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had no power to enter the order of 1925. We consider

that if there was notiing else contained in said amend-

ed bill of complaint, except the question of the consti-

tutionality of said provisions of said State law, we are

entitled to have this Court pass upon such question.

This Court in its decree of dismissal only considered

the revoking of the said order without considering the

hasis upon which said order was issued by the ap-

pellees.

Again, the appellees themselves have endeavored to

prevent a review of the constitutionality of said Sec-

tions 35 and 36:-of the Laws of 1921, as amended, by

revoking their order after the appeal had been per-

fected to this Court, and thereafter praying this

Court to dismiss such appeal, and then on September

° 1926, the appellees entered another order and

again reduced the said combined weight of trucks and

loads of these appellants and others, and these appel-

lants are in the same position they were in when said

appeal was perfected on March 20, 1926. We ven-

ture to say that if we should institute another action

similar to the one instituted by these appellants in

the fall of 1925, and the matter should come on for

hearing, and if these appellants would perfect an ap-

peal, these appellees would again revoke such order

made this vear, and again this Court would be asked

to dismiss the appeal as a moot one.

Fortunately, your Court has had the opportunity

to examine into situations of this kind, and we call

this Court’s attention to the following cases:

This Court in its opinion delivered by Mr. Justice

Peckham said:

‘As to the first ground, we think the fact of the

dissolution of the association does not prevent this

cout from taking cognizance of the appeal and

SERENE Try tay raentew gi m aer

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deciding the case upon its merits. The prayer of

the bill filed in this suit asks, not only for the

dissolutivou of the association, but, among other

things, that the defendants should be restrained

from continuing in a like combination, and that

they should be enjoined from further conspiring,

agreeing, or combining and acting together to

maintain rules and regulations and rates for

carrying freight upon their several lines, ete

The mere dissolution of the association is not the

most important object of this litigation. The

judgment of this court is sought upon the ques.

tion of the legality of the agreement itself for

the carrying out of which the association was

formed, and if such agreement be declared to be

illegal, the court is asked, not only to dissolve the

association named in the bill, but that the defend-

ants. should be enjoined for the future. * * * *

As an answer to the fact of the dissolution of

the association, it is shown on the part of the

government that these very ‘efendants, or most

of them, immediately entere: a substantially

similar agreement, which remain in foree

for a certain time, and un ich the companies

acted, and in regard to vu it does not appear

that they are not still acting.

If the mere dissolution of the association work-

ed an abatement of the suit as to all the defend-

ants, as is the claim made on their part, it is plaiv

that they have thus discovered an effectual means

to prevent the judgment of this court being given

upon the question really involved in the case. The

defendants have succeeded in the court below, it

would only be necessary thereafter to dissolve

their association and instantly form another of 4

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similar kind, and the fact of the dissolution would

prevent an appeal to this court or procure its dis-

missal if taken. This result does not and ought

not to follow.

United States v. Trans-Missouri F reight Asso-

ciation, 166 U. 8. 290, 308, 41 IL. ed. 1007,

1016.

Again, this Court announced the same principle in

the opinion delivered by Mr. Justice McKenna:

‘But in those cases the acts sought to be en-

joined had been completely executed, and there

was nothing that the judgment of the court, if

the suits had been entertained. could have affected.

The case at bar comes within the rule announced

in United States v. Trans-Missouri Fretght Asso.,

166 U. S. 290, 308, 41 L. ed. 1007, 1016, 17 Sup.

Ct. Rep. 540, and Boise City I rrig. & Land Co. v.

Clark (C. C. App. 9th C.) 65 ©. C. A. 399, 131

Fed. 415.

In the ease at bar the order of the Commission

may to some extent (the exact extent it is unnec-

essary to define) be the basis of further proceed-

ings. But there is a broader consideration, The

question involved in the orders of the Interstate

Commerce Commission are usually continuing (as

are manifestly those in the case at bar), and these

considerations ought not to be, as they might be,

defeated, by short-term orders, capable of repeti-

tion, yet evading review, and at one time the gov-

ernment, and at another time the carriers, have

their rights determined by the Commission with-

out a chance of redress.”’

Southern Pacific Terminal Com pany v. Inter-

state Commerce Commission, 219 U. S. 498,

515, 55 LL. ed. 310, 316,

” TAS NEE, ORM ae eRe Cy aay

cs

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Further Mr. Chief Justice Taft said in delivering

the opinion in the following case:

‘*The second ground urged for dismissal is that

the tax for 1919, sought to be enjoined, has been

collected from the taxpayers of the City by the

Treasurer of the Commonwealth, so that the case

has become a moot one. But the tax had been

paid before the Supreme Judicial Court took up,

considered, and decided the case. It must, there-

fore, have found, as it was entirely justified in

doing, that the bill, in its averments, prayer, and

real object was directed not only against the col-

lection of the tax pending, but against future pay-

ments out of the treasury of the commonwealth,

and against the continued operation of the Trus-

tees under the Statute of 1918.”’

Boston v. Jackson, 260 U. S. 275, 313, 67 L. ed.

274, 281.

Mr. Justice Holmes said, in delivering the opinion

of this Court:

‘‘Perhaps it should be added to the foregoing

statement that the bill was filed in September,

1902, and alleged the plaintiff’s desire to vote at

an election coming off in November. This elee-

tion has gone by, so that it is impossible to give

specific relief with regard to that. But we are

not prepared to dismiss the bill or the appeal on

that ground, because to be enabled to cast a vote

in that election is not, as in Mills v. Green, 158

U. S. 651, 657, 40 L. ed. 293, 295, 16 Sup. Ct. Rep.

132, the whole object of the bill. It is not even

the principal object of the relief sought by the

plaintiff.”’

Giles v. Harris, 189 U. S. 474, 484, 47 L. ed.

909, 911.

1]

We earnestly pray that this Court should vacate

the decree of dismissal, and the constitutionality of

such provisions of said State law should be decided,

and in addition that from the record presented in

this Court, the appellees should be restrained from

proceeding in any manner under Sections 35 and 36

of said law of 1921, as amended, until the final de-

termination of the constitutionality of such sections

of said law; and for such proper relief in the prem-

ises,

Respectfully submitted,

W. R. CRAWFORD,

EDWIN C. EWING,

Solicitors for Appellants.