# Motion — Morris v. Duby

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## Record

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

## Text

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

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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

6

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

—

7

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

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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_0662%3A05. Public record. Not legal advice.