Amicus Curiae Brief — SC Hwy. Dept. v. Barnwell Bros.

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INTHE oS

SUPREME COURT oF THE TED STATES"

“OCTOBER emer.

7 “Rofl, ae

SOUTH ‘CAROLINA ‘STATE. HIGHWAY | -DEPART. —

2 MENT, Sori Canotanis Pusti0 SERVICE Comnasston, :

fet’ tar Sats Gs Aerating |

a our

BARNWELL BROS. INC.,, “POOLE TRANSPORTA:

TION, INC,, HORTON MOTOR LINES, INC,

Aly la . hag 6

“%

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES

. FOR THE. EASTERN DISTRICT OF SOUTH CAROLINA: © ..

* a. - ns

-KErers,

Attorney General 7 the

- State: of, ee: 7S tis

- Amcoe Corian. ee a

SUBJECT INDEX

NN OE CONE a .ehipsnchnserserceenes are ees 1

_ Summary of Argument ............ se eee e eee eee eee 5-15

ARGUMENT |

‘A statute with -.a legitimate object and — means

. related to the object is not open to attack because it

indirectly affects interstate commerce............ 5

IL.

A state may indiscriminately refuse to permit the use

of its highways for the purpose of gain or condition

- the manner of use for such gainful purpose according -

...to its uncontrolled judgment. The use of public

highways for the purpose of gain is a —_——n not —

ere rer ee Saree Pe Pe Seer ee ee

~The statute in question is to be judged by its applica-

_ tion to,all of the highways.in the State system, not by

selecting a few of the strongest highways in the sys-

tem and complaining that it is unfair in its appli- |

cation to them alone..... PPP CEO rr erry rrere 6 4

IV.

he sole and cunluhive power to regulate the manner of

use of state highways by yehicles operated for the

purpose of gain is in the States. Congress has no

. authority in such a field. In the case at bar, the jur-

_ isdiction of the court below must depend upon

whether or not the Commerce Clause invested Con-

_ gress with jurisdiction in such a field.. If it did not,

then the court was: without_jurisdiction........... rf

)¥>

The power of Congress over state roads sendtali only

in the power to regulate the business .of interstate

commerce, per se, not the — to displace the local

. |

Page |

police power having for its purpose the conservation

of state property. -The latter is not a regulation of

the business of interstate commerce.......... «..

ore

A initbites by the Federal governihent of the power

to control the conservation of the highways of a

state could not be a regulation of the business of iti-

terstate commerce. It would be a taking of property

for a public use without compensation in violation of ~

the Fifth Ameridment to the en of the

United States (ach OHESNGS ea shewebaeUs sebecensses

In maintaining and owning roads the States are not

engaged in interstate commerce..... TT ere reer

In so far as interstate commerce is concerned, there is

no analegy between the States in the ownership of

their roads and railroad companies and other. com-

mercial enterprises engaged in business of an inter-

state character ....... Madeh i aekute seca ee eeees |

| Ix.

The control of Congress over navigation affords no

- analogy to the situation in the case at bar..........

e wi * 4 ; ‘ :

. .

The previous -decisions of this court touching upon

state regulations of roads do not sustain the power _

of Congress to remove from the States the right to

conserve their roads...........-...... cccsosceres

XI. -

State power to control the manner of use of state roads

has not been surrendered by the states to Congress

by the acceptance of the benefits of the Federal High- -

at PN che din bb os 0uaGdORENO UUERaRE ERAS SER TERE

iil LO

“, CASES CITED / ou :

PP Page

Arizona v. California, 283 U. S. 423....... eceuendaue 5,17

Bailey v. People, 190 Ill. 28..... GORE S PR eer er 49

Bayside Fish Co. v. Gentry, 297 U. S. 422..... _.0+5, 19, 38

—— Booth v. Illinois, 184 U. S. 606............-- eee ener 6, 31 -

Bradley v. Public Utilities Commission, 289 U. 8. 92.. 79.

Buck v. Kuykendall, 267 U. S. 307..:.....:..--.-- . -23, 18

Carey v. South Dakota, 250 U. S. 118.......... pesand 8, 38

Colorado'v. U. S., 271 U. 8. 158... 2.2... eee eee ee 14, 68

Crane v. Campbell, 245 U. S. 304..........-. SG can 50

Detroit International Bridge Co..v. Corporation Tax

. Appeal Board, 294 U. S. 150.........--- eee eee 12, 63

Everard’s Breweries v. Day, 265 U. 8. 545........... 5, 19

Frost Trucking Co. v. Railroad Commission, 271 U.

ae Sak eee ee lanees 2 oe

Geer v. Connecticut, 161 U. 8. 519...............8, 38, 76

Gibbons v. Ogden, 9 Wheaton I...... 4a6 sive aeb ee

Gibson v. U. S., 166 U. S. 269.........-. 22 eee ‘email 15, 70 2

Gilman v. Philadelphia, 3 Wallace 713.............- 14, 72

Greenleaf Lumber Oo. v..Garrison, 237 U. 8. 251..... 15, 70

Heflebower v. U. S. 21 Ct. Cl. Reports 228....... gia Ge

Heiner. v. Donnan, 285 U. 8. 312............+++-- wa 2 0 0D, 40

Henderson Bridge Co. v. Kentucky, 166 U. S. 150... .12, 63.

Hendrick v. Maryland, 235 U. S. 610...........+-- , 18, 75

Hodge Co. v. Cincinnati, 284 U.S. 335........-..-.+-+ 6, 21

Hudson County Water Go. v. McCarter, 209 U. S. 349. .8, 38

Interstate Transit Inc. v. Lindsey, 283 U. S. 183...... 78

Jacobs, In Re, 98 N. Y. 98..... Ciehnnsintvedeaeces 57 }

Louisville Bank v. Radford, 295 U. S. 555............ 9, 47 :

McCulloch v. Maryland,.4 Wheaton 316.............. 19 ;

_ Michigan Commission v. Duke, 266 U.S. 570....... 11,58 - Rel

Middleton v. Texas Power and Light Co., 249 U. 8.152 28 | aa

Minnesota v. Barber, 136 U: S. 313..... ‘sesshsatiewe ae)

“Minnesota Rate Cases, 230 U. S. 352................ 2, 35 a

Missouri v. Holland, 252 U. 8S. 416........... errr Tt Bolg

Monangahela Navigation Co. v. U- S., 148 U.S. 312. ...9, 45 aa

Morris v. Duby, 274 U. S. 135........-.-sseeeee ee T4, D - See

Munn y. Illinois, 94 U. S. 183........-.-0-00-e- wake 13,06 2 #eeT.

a4:

, .

al PB ee “ :

, . — © Nt rare aN es

. —_

N.Y. N. H. and H. Railroad v. — York, 165'U. S. 628. 5, 19

Bee BOGE ©. Temes BA Oe MN kbs nee sencadcanianasss 33

Oklahoma v. Kansas Natural Gas Co., 221 U. S. 229. .39, 57...

Old Colony and Fall River R. R. Co. v. County of Ply- |

i ee i dekkasacussacndudesned 9, 48

Otis v. Parker, 2s aren cede deneas ss 6, 31

Packard v. Banton, Be Ree rer reer rere 6, 21

Passenger Cases, 7 Howard 282.............- ih oa 12.

Peabody v. U.S., 231 U.S. 530.........0..00..4....10, 55

. Pensacola Telegraph Co. v. Western Union Telegraph -

nee Os ho en A Ak hake n eh dksi ds adeea de . 24

Pierce Oil Co. v. City of Hope, 248 U.S. hae 3k

Producers Transportation o. v. R. R. Co., 251 U. 8.

, VRE ieee teh clean eek scree eel siete ead 6 O00 Trego '* §

- Pumpelly v..Green Bay, 80.U. 8. 166................ 9, 49:

Purity Extract Co. v. om, 226 U. 8. 192........2...6, 29

Banmrer, In Be, 140-0. GH. SB. oc ccc ccs scsecccacsdens 33

— Commission v. Southern Pacific Co., 264 U. 8.

Railroad Company v. Maryland, 88 U. S. 456. . .2, 15, 40, 73

St. Louis v. Western Union Telegraph Co., 148 'U. 8.

SRST RGR Oe akan oedema vies 8, 2s 42,50 |

Samuels v. MoCardy, 367 U. 8. 188. ....6. ecautan 4

Schechter nd rahng ly U. 8. 295 U. 8. able e:

Scott v. Manhattan Ry. Co., 17 N. Y. 8. 364...........9, 48

Scranton v. Wheeler, 179 U- 9. 141.....00...00ccee0e 15, 70

_ Searight v. Stokes, 44 U. 8. MGs cc ccscwcsse css 40,

. Semler v. Oregon State Board, 294 U.:S. 608......:..26, 30.

‘Shively v. Bowlby, 152 U. S. Re ee Pe Pe eeee Pree a

Sila v. Hesterberg, 211 U. 8. 31...... Wo sece deed ee By Oly B

Slaughter House Cases, 16 Wallace 36......... setae BD -

Smith v. Alabama, 124 U.S. 465..... Ee Pree e 16

Sproles v. Binford, 286 U. S. 374.. ee oe a Frsereined is

Sprout v. South Bend, 277 U.S. SERS aaes's 78

Stephenson v. Binford, 287 U. 8. 251. 26500. ae 21, 22

Texas and Pacific Ry. Co. v. Gulf ete. seh Co., 970 U. 8.

WT Sacduss ac hehcksamidbakbed ds ahie dass Dene

Texas v. Eastern Texas R. B. Co., 958 U. 8. 204.: . + L4, 68

Transportation Co. v. Chicago, 99 U. 6. 686........., B

Transportation Co, v. Parkersburg, 107 U. S. 691.. a

U. 8. v. California, 297 U. 8. 175...... ‘poepeomee e

U.S. v. Dewitt, 9 Wallace 41....... Lidieheentbea ts 33, 36

U.S. v. Great. Northern Ry. Co., Met -U,. GH. 1483. ci ks - 83 |

See ros YETTA

Cae

U. S. v. Lynah, 188 U. S. 448............4.. sackanwne 10. 53

| OL ©, MeCmome, F231. Ped. 208: .. 2.2 wc ccc c ccc eees 8, 39

U. S. v. Shauver, 214 Hed. 154....... RL hncaakas cu 8, 39

U.S. v. Shreveport Grain and Elevator Co., 287 U.S.77 83

Venner v. Michigan Central R. R. Co. 271 U.S. 120. 13, 65

Village of Euclid v.. Amber Realty Co. 272 U. 8. 365.. 6, 30

Ward v. Race Horse, 163 U. 8. 504.............0 000. 8, 38

Western Union Telegraph Co. v. Massachusetts, 125

| Wheeling & Belmont Bridge Go. v. Wheeling Bridge

Oe, 108 OU. SB. BBT-BOG... wc ccc cccccccceccccccecs

Wolf: v. Industrial OConrt, 262 U. &. 82%. ... 2.2.20... 13, 66

eel RE ER 24

nk. ccc aniheia casas 8,44

odes natbtehea linia G6 -ne9 9 Wied <% .

AP aeneOr oh ° tar

TREATISES AND TEXTS CITED

Cooley’s Constitutional Limitations (1927 Ed.)

Lewis on Eminent Domain (1909 Eé.)

McQuillen on Municipal Corporations —

| STATUTES CITED |

Motor Carrier Act, 1935, Ch. 8, Title 49, U. S. Code Anno.

Federal Highway Act of 1921, Title 23, U. S. Code, Anno.

Sections 481-482, Title 39, U. S. Code Anno.

Section One, South Carolina Statutes. at Large of 1933, p.

341,

| en TO CONGRESSIONAL DOCUMENTS

AND PROCEEDINGS

House Reports, 64th Congress, 1st session, 1915-1916, Vol.

I, Miscellaneous, page 4.

Report of Joint Committee on Federal Aid, House Docu-

ment No. 99, 63rd Congress, 3rd Session.

IN ‘THE

OCTOBER TERM, 1937.

No. 161,

SOUTH CAROLINA. STATE HIGHWAY DEPART-

MENT, Sour Carotina Pusiic Szrvicz Commission,

a - gr aL, APPELLANTS,

: ve “te

BARNWELL BROS. INC., POOLE TRANSPORTA-

TION, INC., HORTON MOTOR LINES, INC.,

ET AL, APPELLEES. |

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES

FOR THE EASTERN DISTRICT OF SOUTH CAROLINA.

BRIEF OF OTTO KERNER, ATTORNEY. GENERAL

OF ILLINOIS, AS AMICUS OURIAE.

- STATEMENT OF CASE.

. The Appellees have, challenged .the validity of a

statute of the State of South Carolina which places a

legal limit upon the widths and weights of motor vehicles

permitted to use the public highways of the State. .

SUPREME COURT OF THE-UNITED STATES

Os Tee

Fae Te See

OIE ELLE RIE MOTE INGE BENE EN SN RRR MA TE REINS

| 2

The court below found that the statute is sO unreason-

able and arbitrary that it places an undue burden upon in- ,

terstate eommerce, | |

State roads are the property of the respective states. 3

The importance ef the case from the standpoint of the

states is that the Appellees assail the right of the states

to regulate. the manner of use of their property, viz., the

fl - age of their highways.

i 3 ; The chief concern of the amicus curiae, the Attorney

fe General of Illinois, is the application of the Commerce

Clause of the Constitution of the United States to the facts

involved i in the appeal in so far as the decision of this court

may, as a rule of law, affect the pom of Illinois to noguinte re

the use of its highways. °

Public roads are artificial facilities furnished by the:

states to provide for transportation of persons or property,

on foot or in vehicles. In this they differ essentially from

é waterways the ownership of which, is held by the states

‘ subject to the servitude of Congress to control navigation.

; Waterways are natural facilities used for transportation

between the States and the United States and foreign eoun-

: tries. The distinction between waterways and roads is

very broad and was commented upon at length in the case

of Railroad Company v. Maryland, 88 U. S. 456, at page

In the Minnesota Rate Cases, 230 U. 8. 352, this court,

in citing Railroad Company v. Maryland, supra, had this

to say, (p. 416) ‘‘It has never been doubted: that the state

could, if it saw fit, build its own highways, canals and

railroads. (Railroad Company v. Maryland, 21 Wall. 456,

470, | 471.) It could build railroads traversing the entire

Bee state and thus join its border cities and commercial centers

by new highways of internal intercourse to be always avail-

able upon reasonable terms. Such provision for local traf-

fic might indeed alter relative advantages m competition,

. and, by virtue of economic forces, those engaged in inter-

state trade and transportation might find it. necessary to

. make readjustments exténding from market to market. %

through a wide sphere of influence; but such action of the : |

state-would not for that reason be regarded as creating a aay

direct restraint upon —— commerce and thus trans- a3

cending the state power.” pe pi

Public roads are hnistainnd by the states in. their 1 :

sovereign capacities in the discharge of their. duties to :

their citizens. They are designed and built primarily for 7

the use of their own citizens who may desire to use them

within the limits of the states. Although they may furnish

the means for the carrying on of commerce between states

_by motor vehicle, yet that is but an incident of their use.

Their primary purpose is to provide for commerce within.

the limits of the respective states.

' The important question before the court i is whatier or

not the Commerce Clause is broad enough to give this court

jurisdiction over the manner of use of state property, if

such property may be used incidentally in the carrying on

of interstate commerce. It is to be observed that the states _

themselves do not engage in interstate commerce. They

merel¥* mish facilities over which it is possible for others

to do so. isxliscussion, we do not deal with the juris-

diction of the provided by the Equal Protection and

Due Process Claus:

Section Two of Article Four of the Constituti&p of the

United States insuring the citizens of each state all privi- =

leges and: immunities of citizens in the several states. Our

argument is only concerned with the Commerce Clause.

\ ~:

——

of the Fourteenth Amendment or.

SUMMARY OF ARGUMENT.

iS ?

A statute with a legitimate object and employing -

means related to the object is not open to attack because

it indirectly affects. interstate commerce. (Everard’s

Breweries v. Day, 265 U. 8. 545-559; N. Y. N. H. and H.

- Railroad v. New York, 165 U. 8. 628-629; Bayside Fish Co.

.v. Gentry, 297 U.8. 422-427). If the means provided by a

_ statute are related: to the object, the legislative power is

not to be disturbed: Whether such means are reasonably

necessary is not for the determination of a court. ( Arizona.

v. California, 283 U. S. 423-455-456.)

That heavy moter vehicles are destructive of : of roads i is

a fact of common knowledge. That has been obecrved by

this court in Hendrick v. Maryland, 235 U. S. 610, and in

other cases. Limitations of sizes and weights-of motor

vehicles have a direct relation to the conservation of roads.

The question of what degree of limitation is reasonably

necessary is, therefore, not open to judicial inquiry, since

the limitation is related to the object. The efficacy of the

_ means employed is a legislative question. Whether or not

' . the limitations of the South Carolina statute are more than

necessary to conserve its highway$ would necessitate the

court to determine what degree is necessary. .That would

be an invasion of the — field. ©

. ’

> 5 ®

“y eS > ~ ary a

we ~

b Set ,- 3° cop Soe .

abies ~ a Tey ow a2 Pe omen

Mer Sierd th Ne A Mee

wie

Fa ges TER a aca

~. eriminate.

ae:

A state may indiscriminately refuse to permit the use

its highways for. the purpose of gain or condition the

manner of use for. such gainful purpose as it sees fit.accord-

ing to its uncontrolled judgment. |

The use of public highways for the purpose of gain is

special and extraordinary. It is a privilege, not a right.

(Stephenson v. Binford, 287 U. S. 251-264; Packard. v.

Banton, 264 U. S. 140-144; Hodge Co. v. Cincinnati, 284

U. S. 335-837 ;Frost Trucking Co. v. Railroad Commission, —

271 U. S. 583-562.) Congress can regulate the business of |

an interstate motor carrier, if the state permits him to ope-

rate at all; but it i is the inherent right of the state to con-

dition the carried’s manner of use of its highways, or his

right to use the nen ne its action is indis-

. te its ptiohibitfons legislation may -properly include the

innocuous where its exclusion would make the enforcement

of the law more difficult and the statute less effective. Its

inclusion has its justification because it is regarded as es-

| sential i in the législative judgment to accomplish a purpose

_ Within the admitted power of government. (Purity eatract

Co. v. Lynch, 226 U. S. 192; Village of Euclid v. Amber.

» Realty Co.,-272 U. 8. 36; Semler v. Oregon State Board,

. 294 U. 8. 608; Booth v. Illinois, 184 U. 8, 425; Otis v. Par-

ker, 187 U. ‘8. 606; Pierce Ow Co. v. City of Hope, 248 U.S.

' e one set of limitations for the regulation of all of its high-

ways, wide and narrow, strong and ‘weak. To apply limi-

road system of a state, all.of which are interconnecting,

to make the statute unenforceable. Without one set of

limitations ‘applicable to all highways, the statute could

not be enforced. Any statute of this nature is to Ke judged

by its application to all of the rural highways, city streets

and bridges in a state. It is not to be judged by the selec-

tion of a fey of the stronger and wider highways from the

’- state system and applying it to them alone. °

IV.

The sole: and exclusive power to regulate the manner

of wse of highways by vehicles operated for. gain is in the

States. The Commerce Clause gives no jurisdiction to

Congress in such matters. For that reason the court below

ute under the authority of the Commerce Clause.

Minnesota Rate Cases, 230 U.S. a Schechter Corp.

v. U. S., 295 U. 8. 495.)

498.) Applying. the foregoing principle ‘to the type of stat-.

ute in question, we say that a state has the right to adopt

tations varying. with the width or bearing power of each -

particular highway or set of highways upon the entire -

would involve such a labyrinth of different regulations ‘as

was without jurisdiction to nullify the South Carolina stat- -

“State legislation, limited to internal commerce is not

invalid because it may affect the latter indirectly, (The ©

: V.

~The regulatory.power of Congress over’state roads is

limited to the power to regulate the business of interstate

commerce. State regulations for the protection of state

property do not regulate the business of interstate-com-

merce and Congress as no jurisdiction in such a field.

The Commerce Clause has no application to state stat-—

utes anacted for the purposé of conserving assets of the

States. (Geer v. Connecticut, 161 U. S. 519; Ward v. Race

Horse, 163 U. S. 504; ‘Siz v. Hesterberg; 211 U. S. 31;

Carey v. South Dakota, 250 U. S. 118; Hudson County

Water Co. vy. McCarter, 209 U. S. 349; U. S. v. Shawver,

214 Fed. 154; U. S. v. a 221 Fed. 288.) -

VI.

«£ regulation by Congress of State power to conserve -

its roads would not be a regulation of the ‘business of

interstate commerce. It.would be a taking of property for

a public use without compensation in violation of the Fifth

Amendment to the Constartion of the United States.

Congress could net provide for the manner of use of

. state roads without properly exercising the power of

‘eminent domain: The provisions of the Fifth Amendment

_ protect, atate roads from seizure by the United States with-

out payment of compensation just as much as private prop-

erty. (St. Louis v. Western Union Telegraph Co., 148

U..S. 92-100; Western Union Telegraph Co. v. Richmond,

994 U. 8. 160-169). So full is the ownership of their roads

that the States may even exact tolls for their use from the -

United States. (Searight v. Stokes, 44 U. S. 150-170, per

- Chief Justice Taney.) (Note—The States may have bar-

"yy gained away the right to collect tolls by accepting the

benefits of the Federal a Acts, See ‘Part X of

Argument.)

The Fifth hahaha’ is a limit upon Congress in the

exercise of its powers under the Commerce Clause,

(Monangahela Navigation Co. v. U. S., 148 U. S. 312-336.)

as well as a limit upon the exercise of other great powers

of Congress, such as the’ bankruptey power (Louisville

Bank v. Radford, 295 U. S. 555- 589). and the power to tax

(Heiner v. Donnan, 285 U. S. 312- 326).

Taking from the states the power to ‘determine how

their property shall be used. is a conversion of property.

The right of ownership of property, within the mean-

ing of constitutional provisions requiring the making of

- compensation upon the taking of property for a public use,

includes not only the tangible subject matter or corpus, _

but every right to use and exercise full dominion and con-

trol over it. (Scott-v. Manhattan Ry. Co., 17 N. Y. 8. 364

365; Cid Colony and Fall River R. R. Co. v. County of

Plymouth, 14 Gray 155-161, per Chief Justice Shaw;

. Pumpelly v. Green Bay Company, 80 U. S. 166-167.)

There is a distinction beween governmental interfer-

ence with the use of private property as a police power

measure and the taking of property for a special public :

bat

, | 10

use. Whenever a legislative act attempts to deprive ‘the

owner of some substantial interest in his property, the act

becomes one of eminent domain. (1 Lewis on Eminent .

Domain, Sec. 6, 1909 Ed.) Even. though the title to prop-

erty be not taken, a deprivation of the right of use is a

taking within the scope of the Fifth Amendment. (U. S.

v. Lynah, 188 U. S. 445.)’ Whenever the right of the pos-

session, use or enjoyment of property is in any degree

‘abridged by the power of eminent domain, the ppeperty is

pro tanto taken and the owner is entitled to compensation.

(Vol. 4, McQuillen on Municipal Corporations, Sec. 1589,

Second Ed.). Subjecting property to a public servitude is

a taking. (Peabody v. U. S., 231 U. S. 530.) Cooley’s defini-

tion of eminent domain includes the controlling of the use _

of private property for the public benefit, without regard

to the wishes of the owner. (Cooley’s Constitutional Limi- |

tations, 1927 Ed., pp. 1109-1110.)

‘There is a vast difference between a police regulation

restricting the owner in his own use of his property, such

as a zoning: ordinance, and a governmental fiat requiring

him to suffer restrictions to be placed upon his property,

not for his own use, but for a special use by others. The

latter situation is. exactly what would result in case Con-

gress should require the states to permit the use of their

roads by private parties etigaged in interstate commerce

with vehicles having whatever weights and dimensions’

which Congress might allow without regard to the wishes

of the States. The States would not only be restricted

to whatever use of the roads they might want to make them-

selves, but they would be required to submit the use of their

property to third persons against their will and in accord- —

ance with the will of Congress.

Such regulations by Congress would amount to the

nationalization of state property without the consent of the

states.:

Since it is a taking of private property for a public

use without just compensation for a state to compel a pri- ©

vate business to dedicate its property to the public use by

converting it into a public utility against its will (Producers

Transporation Co. v. R. R. Co., 251 U. S. 228-230; Michigan

Commission v. Duke, 266 U. S. 570-578) then by the same

| token we say that Congress cannot compel the dedication

of state property for the use of interstate commerce against

the will of the States without complying with the Fifth

* Amendment. The states have never dedicated their roads |

‘to the ‘national government for the use of interstate.

commerce. -

The power of Congress over state roads is limited to

regulating the business of interstate commerce, such as the

fixing of interstate rates, the issuance .of certificates of -

convenience and necessity. and the like. The determination

by Congress of the dimensions and weights of vehicles per-

mitted to use state roads would be a usurpation of the

. power of the States:to conserve their own property and not

_ a regulation of the business of interstate commerce. 7

SRL SA A

a ie

‘by which those

ie ——

ee:

In the ownership of their roads, the states are not en-

gaged in the business of interstate commerce as in the case

ofa manufacturer who ships goods in interstate commerce

or a railroad company which transports cars from state to

state. We contend that property of a State held in its sover-

eign capacity, not used by the state in carrying on the

business of interstate commerce, built entirely within the

confines of the State, and used, not by the State, but by

third parties as an incident to the passage of vehicles in

interstate commerce is not subject to the imposition by ~

Congress of the servitude of interstate use by whatever

type of vehicle Congréss may will the freedom of use. Two

sovereigns cannot control the manner of use of property at

. the same time. A concurrent .power in two distinct sover-

-eigns to regulate the same thing at the same time is incon-

sistent with sovereignty. «(The Passenger Cases, 7 How-

* ard 282-398.)

| Bridge co ties which furnish the instrumentality -

gaged in interstate commerce may pass

from state to stat¢ or from this country to Canada are not

‘engaged in interstate or foreign commerce. It is the per-

sons who use the bridges who are engaged in such com-

merce. (Henderson Bridge Co. v. Kentucky, 166 U. 8. 150-

153;Detroit International Bridge Co. v. Corporation Taz

Appeal Board, 294 U. 8. 150-153.) Such a situation is

strikingly similar to state owned roads. It is unlike that of

intrastate instrumentalities owned or controlled by rail-

roads engaged in interstate commerce, as units in an in-

terstate system. (Railroad Commission v. Southern Pacific

Co., 264 U. 8. 331; Texas and Pacific Ry. Co. v. Gulf etc.

Ry. Co., 270 U. S. 266; Venner v. Michigan Central R. R.

Co., 271 U. S. 127.) It is not like that of a state owned

railroad engaged in the business of hauling freight with

its own engines and making connections with interstate

(U. 8. v. California, 297 U. 8. 176.)

VOL

No analogy can be had in the case of governmental reg-

ulation of public utiltiy companies. Such companies, by

devoting their businesses to the public use grant the public

an interest in that use to the extent of that interest and

must submit to public control for the common good. (Munn

v. Illinois, 94 U. 8. 113-126;Wolf v. Industrial Court, 262

U.S. 522-535. ) |

Equally inapplicable is the analogy of the interstate

railroad company or the manufacturer who ships his goods

in interstate commerce. They must submit to control by

Congress as the price of the privilege of engaging in inter-

state commerce. A state is not engaged in - business of

interstate commerce. Its toads are held in its sovereign

capacity and are not designed for the carrying on of inter-—

state commerce by the state. The roads do not leave the

confines of a state. Neither are they. intrastate units or:.

local branches or extensions of an interstate system as in

. the case of railroads.

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7 _ The foundation of aareaninaal jurisdiction over the

abandonment of an intrastate railroad is that.it is operated

as a branch of an interstate system and its continued opera-

tion at a deficit might impair the business of the system.

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‘THe power ‘of Congress to regulate navigable waters :

cannot be made the basis of establishing similar power in

Congress over state roads. This power of Congress is —

sut generis. It is based upon the power to control naviga- 3

- tion. The word ‘<eomimerce”? as used in the Constitution

includes navigation. The power over commerce, including

‘the control of navigation, was one of the primary objects

i q as an artery of interstate commerce. (Colorado v. U. 8.,

+ 271 U. S..153.) The continued operation, solely in intra-

id state commerce, of an intrastate railroad owned by a local

. corporation is of purely local concern. (Tewas v. Eastern

i ‘Texas R. R. Co., 258 U. S. 204-216.) The underlying theme

' ; in all of the cases sustaining the regulations of Congress

q | over the intrastate operations of railroads is that an inter-

4 | state system uses the same instrumentalities to serve both |

4 intrastate and interstate commerce and regulation by'Con- -

; gress is necessary to secure efficient performance of inter-

state functions. A resume of such cases was made by the

; court in the case of Colorado v. U. a supra, at pages

: 163-164-165. - - @

for which the people adopted their government. (Gibbans

v. Ogden, 9 Wheaton 1-190; Gilman v. Philadelphia, 3 Wal-

lace 713-724.) State roads, which are artificially con-

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structed, and waterways, which are natural highways, have

no similarity as far as control of Congress is concerned.

. (Railroad Company v. Maryland, 88 U. 8. 456-470.) ‘

The reason that the Fifth Amendment does not pro-

"tect the owners of beds and shores of navigable waters

from damages done by the United States in performing

work in aid of navigation is that their ownership is sub-

ject to the servitude to control navigation created in favor

of the Federal government by the Constitution. (Green

leaf Lumber Co. v. Garrison, 237 U. S. 251-259; Gibson v.

U. S., 166 U. 8. 269; Scranton v. Wheeler, 179 U. S. 141.)

State roads are subject to n no such servitude.

‘The previous decisions of this Court, touching upon

state regulations of roads do not sustain the power of

.; Congress to remove from the states the ) Tight to conserve

' their roads. — |

ge Ss XL.

State power to conserve state reads has not been sur-

_ yendered by the States to Congress by the acceptance of

the benefits of the Federal Highway Acts. The history of —

~ the legislation in Congress is to the contrary. The aim of

_- Congress in making its appropriations to the States was

«to aid them in building post roads which roads should be

free from toll. The only obligation placed upon the states

by the Federal Highway Acts was that the highways should,

remain open for the passage of the mails and the roads

should be toll free.

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E . A state statute with a legitimate object and having

| i q means related to the object is not open to attack because

‘ j _ it indirectly affects interstate commieree.

Admittedly, if the sume object of a tage statute is.

: to discriminate between residents and non-residents or to

Fs regulate the passage of commerce in or out of a state, then ~

at _.8uch a statute is a regulation of the business of interstate ~

| | commerce, which is forbidden by the Commerce Clause. On —

the other hand, if the real or apparent object of the statute

is that of the management and control of the property of .

a state, the regulatign is not one of interstate commerce,

even though those tsa or leaving the state and using.

its highways for the purpose of gain may not do so with-

" out subscribing to the regulations of the State. The efficacy

of the statute is to be determined by the owner ‘of the prop-

erty, the State. Itgis not for others to say that the statute ~

has fallen short off its goal if its end be — and the

means employed ; related to it.

SBN a REE a le ET

vemaaine ————— meena:

The judicial power to inquire into ‘the motives of legis-

lation is lacking. If thé means provided by a statute are

not unrelated to its object, the legislative power is not to

_ be disturbed. Whether such means are reasonably neces-

_ sary is not for-the determination of a court. Such was the

"gist of the opinion of the court in the case of Arizona v.

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California, 283 U. S. 423-455-456. There Arizona contended

that the pretension of Congress that the construction of a

- Boulder Dam was for the purpose of navigation was false.

The Court refused to inquire into the motives of Congress

for the reasons just given.

_ The reasoning in that case applies exactly to the case

at bar. ; Aas

| (1) The states have full

power to govern the manner

(1) Congress has full .

power to regulate and con-

trol navigation. of use of their property.

(3) Where the means pro- (2) Where the means

vided by Congress to con- adopted by.a state to con-

trol navigation are not un-

related thereto,then whether

or not they are reaso ly

Thecessary to achieve? -the

result is not for the deter-

serve its property are not

‘uurelated thereto, then

whether or not they are

redSonably necessary to

‘achieve the result is not.

mination of the court. open to judicial inquiry.

The General Assembly of Soith Carolina has left no | Sid

doubt but that the object of the statute in question is for | .

' the protection of its roads. Section One of the Act (South

_ Carolina Statutes at Large of 1933, p. 341) is as follows:

‘‘Public Policy—Be it enacted. by, the General

Assembly of the State of South Carolina: It is hereby re 7

_declared to be the public policy of this State that heavy - bok R

motor trucks, alone or in combination with other © Be

trucks, increase the cost of highway construction and Te

maintenance, interfere with and. limit the use of the — me |

highways for normal traffic thereon, and endanger the . a

safety and lives of the traveling public, and that the fe id

18 . ‘*

regulations embodied in ‘this Act are negehsary to

achieve economy in highway costs, and to permit the

highway, to be used freely and'safely by the traveling

pudlic.”” « | 4

In Hendrick v. Maryland, 235 U. 8. 610, this Court

ein Stated that heavy vehicles are abnormally de-

structive of the roads upon which they are operated. In

many other cases, too numerous to mention, this Court has

‘ i similar statements. That is a fact of common knowl-

edge with which all agree. Therefore, the object of the

South Carolina statute is legitimate. The grievance of |

those who challenge the validity of the statute is not,

whether the object sought by South Carolina is legitimate

or that the means used are unrelated to the object. Their

_ contention is that the means employed are not reasenably :

necessary to attain the result sought. We say that because

the ‘object sought by South Carolina is one over which it —

has exclusive power and the. employed are related

to it, then the efficacy of the statute is not open to inquiry.

Thére can be no question but that restricting the weights

and imensions of heavy. motor vehicles has a very definite |

gelation to the conservation of the highways ; but the

appellees while not able to deny this, say, in effect, that

the particular means used by ‘South Carolina go beyond

what is necessary to satisfy the object, and that as a conse-

quence interstate commerce is burdened.

Judicial i inquiry is always open to whether or not the

_ means adopted by a legislative body are related to the

object. Here, there can be no question but that they are.

Phe only question raised by the plaintiffs is one of degree.

We say that since the means are related to the object, then

the degree employed is nt open to inquiry. _

The oft repeated words taken from the opinion of

Chief Justice Marshall in McCulloch v, Maryland, 4 Wheat.

316-421-423, are not inappropriate here: ‘‘Let the end be

legitimate, let it be within the scope of the constitution,

and. all meang which are appropriate, which are plainly

adapted to that-end, which are not prohibited, but corisist-

“ent with the spirit and letter of the constitution, are con-

_ stitutional. * * * Where the law is not prehibited and is

reasonably calculated to effect any of the objects intrusted

to the government, to’ undertake to inquire here into the

degree of i its necessity would be to pass the line which cir-

cumscribes the judicial department, and to tread on legis-

lative ground. This Court disclaims all pretensions to such

power.” Of like tenor, this Court said in Everard’s Brew-

eries v. Day, 265 U. S. 545-559: “It is likewise well settled

*that where the means adopted by Congress are not prohib-

ited and are:-calculated to effect the object intrusted to it,

¢this Court may not inquire into the degree of necessity.’’

In the case of N. Y., N. H. and H. Railroad v. New York,

165 U. §. 628, 629, it is said: ‘‘There may be reason to

doubt the efficacy of regulations of that kind. But that was

‘a matter for thé state to determine. We know from the |

face of the statate that it has a real, substantiat relation

_ to an object as to which the state is competent to legislate. =

In the case of Bayside Fish Co. v. Gentryggvi_U. 8. 422-

427, the Court said: ‘‘These provisions have a reasonable’ ~

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relation to the object of their enactment; namely; the con-

servation of the fish supply of the state, and we cannot in-

validate them because we might thtenk, as appellant in

eff ect — that they will fail gr have of their

purpose.’ ie

A state highway regulation which would kien for its

purpose the preferment of redidente over non-residents, or

would forbid the use of the highways as. to one while per-

_ mitting it as to another would be unconstitutional, both as-

to means and as to object. hat would be a direct regula-

tion of the business of interstate commerce. But a statute,

such as the one Yunder consideration, whose object and -

meané are within the reserved powers of the states, and i is

not a regulation of the business of interstate commerce, is

not rendered unconstitutional simply because it indirectly

affects interstate commerce. Little, if any, interstate com- _

Smerce can be carried on without. being subjected to the

burden of local regulations. —

A state may indiscriminately refuse to permit the. use

of its highways for the purpose of gain or condition the

- manner of use for such gainful purpose according to its

uncontrolled judgment. Nothing in the Constitution of

the United States overrides this right. The use of public

highways for the purpose of gain is a privilege, not a right. —

_ We have already stated that this case does not invoive

the use of highways for private. purposes. It was brought

a | 2 aon °

_ py the operators of motor trucks who use the highways for

the purpose of gain. pa a,

There is a broad distinction. between the two classes

of persons just mentioned in so far as the right to use pub-

‘lie highways is concernéd. In the case of Stephenson v.

Binford, 287 U. S. 251-264, this court said, ‘Tt is well estab-

lished law the highways of the state are public property ; ‘.

that their primary, and preferred use is for private pur-

poses; and that their use for purposes of gain is special and.

; extraordinary, which, generally at least, the legislature

may prohibit or condition as it sees fit.” In other cases,

such as Packard v. Banton, 264 U. 8. 140-144, and Hodge

Co. v. Cincinnati, 984 U. 8. 335- 337, and Frost Trucking Co.

'Y. Railroad Commission, 271 U. 8S. 583-592, this court has

enunciated the Ci

Ttis true that in the case of Frost Trucking-Co. vy. Rail-

road Com., supra, this court-invalidated the action of Cali-

‘fornia ‘i in requiring a private contract carrier to obtain a

certificate of convenience and necessity in order to use the

public highways ; but this court pointed out in Stephenson

v. Binford, supra, (p. 267) that the basis upon which the .

decision of the court hinged i in the Frost case was that a

"private contract carrier was obliged to dedicate his prop- ;

epty to the business of public trazisportation in order. to

avail himself of the privilege of using the highways. The

earrier could not be compelled to surrender his constitu- _

tional rights of nanG his property dedicated to the eee |

Sey AER OIE TRESS RNP ENE a ; aS

fe 2

service against his will in order to exercise the privilege

of using the highways: No such situation is presented in

the case at bar. We assert.that the cases just cited sustain

the power of a State tp wholly exelude commercial v¢hicles

from its highways or to condition their operation accord-

ing to whatever in its judgment the state may believe

will preserve its highways to their best advantage. The

Frost case did not involve the right of California to’ ex-

clude motor vehicles for the reason of the conservation of

the highways. It was an arbitrary refusal to permit pri- <

vate persons to engage in business by attaching unconsti-

tutional conditions upon the exercise of the privilege. It

involved an illegal regulation of the right to engage in

business at all. The use of the highways was only inci-

dentally involved. The right to conserve. the highways >».

was not involved. California-did not defend the suit upon

those grounds. In the Stephenson case this very distine-

tion was made of the Frost case. In the Stephenson case,

the court said (p. 275), ‘‘There as we pointed out (pp.

591-592) the California act, as construed by. the highest

court of that state, was in no real sense a regulation of

_ the use 6f the public highways. Its purpose was to pro-

- tect the business of those who were common carriers in ~

fact by controlling competitive conditions. Protection dr

conservation of the highways was noi involved. .The con-

dition which constrained the private contract carrier to

become a common carrier, therefore, had no relation to

the highways. In this view, the use of the highways fur-

_ mished .a purely unrelated occasion for imposing the "un"

cOnstitutional condition, affording no firmer basis. for that

condition than would have been the case if the contract

carrier were using a road in private ownership.”” Else-

- where we comment upon . the the case of Buck v. Kuyken-

dall, 267 U. S. 307. There much the same idea is expressed

upon the action of the State of Washington in refusing to

' permit a common carrier to use a highway in interstate

commerce. The court pointed out (p. 315) that the pri- © © ey

mary purpose of the action taken by the State “Gs not. .

regulation with a view to safety or conservation of the high-

ways, but the prohibition of competition. It determines

not the manner of use, but the persons by whom the high-

ways may be used.”’

An integstate railroad company or teleavank compahy

desiring to use the state highways for gainful. purposes, __

could not. put their tracks or telegraph poles in public

streets. (1) without authorization from Congress, and (2) |

without paying rental therefor and submitting to the con- : */

ditions laid down by local governments. Unless both of . ;

tKose conditions would be present a State might refuse ~ we 4

permission. Under the authority of Buck v. Kuykendall . - = | ;

and related cases, a State may not refuse to permit inter- oe |

state commerce to enter the State for the sole reason that . _“

it is interstate commerce ; but neither the Frost nor the “2

Buck cases give any clue that a State in the ‘interest of

_ ¢onservation, may not refuse to permif, its ‘highways to be |

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“used for gainful purpdses. While it is true that a State

ia may not-refuse to permit a telegraph company to enter

i i | a state under the express authority of Congress for the

= purpose ‘of engaging in interstate business, still the au-. ,

E" : thorities are uniform that the company can be compelled

| _. by tHe State’ to pay compenttation in ‘the nature of rent.

> for the use of streets. (Western Union Telegraph Co. v.°

‘Massachussetts; 125 U. S. 530-548; St. Louis v. Western

- Union Felegraph Co., 148 U. S. 92-102.) In the case of

telegraph companies, the Act of Congress conveys no title

and does not. attempt to found one by delegating the power

. ‘to take by eminent domain. ‘It mgde the erection of tele-

graph lines free to all submitting to its conditions, as

~ = et ee so te 2

against an attempt by a State to exclude them because they

. were foreign corporations or because of tts wish to estab-

lish a@ monopoly of its own.?? Except in a negative sense

such a statute is ony permissive,-not'a source of positive

' rights. (Western Union Telegraph Company v. Richmond,

224 U.S. 160-169.) Underlying the denial to.a State of the -

right to sefuse to permit telegraph companies from enter-

4 _. ing the'state to do business is that such a company is re-

2 Pa Pa ee Oe, Pe ey et eee ee ee

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garded as a part of the postal service. It: is in reality a .

_ branch or agency of the government for that purpose. (Pen-_

. sacola Telegtaph Co. v. Western Union Telegraph Co,, 96

U. 8.1). Even though such companies be regarded as est

- of the postal service, they must submit to state regulations.

‘The power of a state to exclude vehicles using its roads

- for the purpose of gain does not include, of course, the use

of highways by the government in the exercise of its powers

under the Constitution, such as its war powers, the trans-

mittal of the mail; ete.

- Congress had not provided that,telegraph companies

might enter upon and use post roads, they could not enter

upon and use "gtate hjghways for their commercial purpose ;

. and with or without an Act of Congress, they are not at

«liberty to use.them without: paying just compensatjon and

+ being subject: to. locai regulations. *A my¢h stronger case

is made out for state’s rights in the case of vehicles ope-

rated for the purpose of gain. - Such vehicles perform no ,

5 governmental function, unless they happen to carry the

mail. : ;

The Federal Motor me has not authorized

them to enter upon and use state highways with whatever

_ weight or dimension of motor truck they may want to

employ, nor could.it. Neither have they been authorzied

to use the highways without making just compensation.

_ All that is sought by the Federal Motor Carrier Act is to

regulate the business of interstate commerce by motor ve- ©

hicle. There is nothing in the Act that forbids a State

from withholding the privilege of the ‘usé of its highways

from all owners of commercial vehicles, residents and non-

residents alike. Neither is there anything in the Act which

forbids a State to provide that the weights and dimensions

. . of motor vehivles shall be in accordance with the will of

. the State, gifting equal treatment in that respect to both —

. eel

: 6. .

residents and non-residents. There is nothing in the Fed-

eral Motor Carrier Act which provides that. a State must

- permit the use of its highways by commercial vehicles.

The most that can be said of the Act is that in case a State

permits such use, then.Congress shall regulate, neg the

manner of use, but the business of the interstate carrier.

We insist that the States have the right to have their

property rights protected by this court; that those rights

_.. inelude the right to either refuse to permit the use of their

highways for gain at all or to condition the manner of

such gainful use in accordance with their own judgments.

If the States are of the opinion that the interests of their

residents and those of non-residents will be best served by

barring the use of their highways to commercial users

entirely or by regulating the manner of use by some means

related thereto, that right can not be abridged until a

superior power, Congress, does so in compliance with the

Fifth Amendment.

Il.

The statute in question is to be judged by its applica-

Gon to all of the highways in the state system, not by

‘selecting a few of the strongest highways in the system —

and complaining that it is unfair in its application to them

Most state roads are usually classified in three groups,

viz: (1) City Streets, (2) Local rural roads, and (3)

7. Statewide or through rural roads. As a general rule, city

_ streets are built with funds of the local community. Local

rural roads are built by the respective counties with county

funds. Statewide roads are built with funds from the state.

treasury. The bearing power or durability of city streets

-and local rural roads. varies with wealth and topography

of the particular community. Each road in the state, from

the shortest and most poorly constructed dirt road to the

-jongest and most durable highway is a component part in

‘an elaborate state highway system. This can be truly com-

pared with the multiplicity of veins, arteries and tiny blood .

vessels which go to make up the blood stream of the human |

is fed from the central arteries of traffic to:

important ones and vice versa, so that it is diffused

tem. As far as the main highways are

) rt stretch of weak pavement or.a weak

bridge is an embolism in the artery of commerce. A state-

wide highway system i is no stronger than its poorest roads _

or the weakest links upon i “ite ‘most durable roads. To

classify each particular highway in a state or any parti-

_.eular part of the highway system for vehicles weighing in

proportion to theggurability of the particular highway

or system gs just as hopelessly impractical as it would be

to suspend the law against gambling i in law abiding com-

munities and to keep it in force in others. Placing load

limit of 10,000 on per vehicle upon a main highway

* and 5,000 poun

‘on a side road is a tacit invitation for

.the truck operator, the point. of origin of whose load is

on the side road and whose destination is the main high-

‘way, to carry a 10,000 pound load on both highways. If

- the point of origin is on the main highway and the destina-

tion is the side road, the temptation to ae * the law is’

just as great, if not —

In enacting étatutes, a legislature must consider that

not all men are honest and law abiding ; that motor Vehicle

_ laws are scorned by many and are commonly violated ; that

such laws are exaendingly difficult to enforce ; and that

"there are in jtely more violators of motor vehicle laws

than there are thoge who pay the penalty.

This court*has sai

that a legislature underst nds and correctly appreciates

at there is a strong presumption

‘the needs of its own i and that its TAws are directed

to problems made manifest by experience. - (Middleton -

v. Fexas Power and Light Co., 249 U.S. 152-157)., That

is quite pertinent in‘the consideration of the type of statute

_ an entire state highway system appreciates and under-’

stands the character, extent, durability and age of. the

graphy of the country, the amount. of usage of particular

reads or roads in particular sections of the state and a

multitude of other things regarding: physical conditions.

It-considers the ability of its police officers to enforce the

-law.and-the probability or improbability for the law to be

; violated. It also considers the financial conditions of. the

‘in question here. Le#islation passed for the protection of .

roads of a state taken as a whole.’ It eonsiders’the topo- F

respective communities, their ability to pay past indebted- -

ness incurred fn road construction and their ability to raise

- 6 \

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& 4 ode

funds for future construction and maintenance. No such ;

ye -eilegislation can exclude a single factor which we have-men- —

tioned and it will be presumed that it considered them all.

_ These’ considerations erystalize themselves into law ex-

‘ pressing the legislative judgment. Such a statute strikes

_ a balance which must be wo to be fair for the entire

~ road system taken as a unit.

The object of such a statute is the protection of all the

highways of a state, not. just a few. Without considering

the controverted factual questions in the case ‘at. bar, the

validity of the statute is not to be considered in connection

with the strongest and most durable highways of the state,

but in connection with all of them. The means used are re-

lated-to all of the highways. The inclusion of strong high- —

ways in a statute enacted to protect the weak does not ih-

validate the statute. A state is not bound to classify its

highways, by excluding some from its operation and in-

‘ eluding others. ‘Legislation has a right, and very often

does, include innocuous things in its prohibitions in order

to make its affon effective.

In the case of Purity Extract Co. v. Lynch, 226 U. S:

192-201, this court said, ‘It is also well established that,

when a State exerting its reorganized authority undertakes

to suppress what it is free to regard as a public evil, it

may adnet such measures having reasonable relation to’

that end as it may deem necessary iff ofder to make its

action effective. It does not follow that because a trans-

action separately considered is innocuous it may not be

- included in a probibition, the scope of which is regarded i as

» %

essential in the legislative judgment to accomplish a pur-

‘pose within the admitted power of govefnment.?’ In the

ease of Village of Euclid v. Amber Realty Co., 272 U. 8.

365, it was contended that a zoning ordinance included in

its regulations and prohibitions industries’ which were

neither dangerous nor‘offensive. The court said, (p. 388),

‘‘But this‘is no more than, happens in respect of many

practice forbidding laws which this court has upheld al-

though drawn in general terms so as to include individual

cases that may turn out to be innocuous in themselves.

The inclusion of a reasonable margin to insure effective .

enforcement, will not put upon a law, otherwise valid, the

stamp of invalidity. Such laws may also find their justifi-

cation in the fact that, in some fields the bad fades into the

good by such insensible degrees that the two are not cap-

able of being readily distinguished and separated in terms _

of legislation: In the light of these considerations, we are

not prepared to say that the end in viéw was not sufficient

to justify the general rule of the ordinance, although some

industries of an innocent character might fall within the

prescribed class.”” In sustaining the validity of a dental

practice act of the Stafe of Oregon this court said in the

case of Semler v. Oregon State Board, 294 U. S. 608-613,

‘‘'The legislature was entitled to consider the general effects

of the practices which it described, and if these effects were

injurious in facilitating. unwarranted and misleading

claims, to counteract them by a general rule, even though in _

particular instances there might t be no actual deception or _

misstatement. ’’

‘ 31 7 :

The principle to which we have referred has been sus-

tained many times. In Booth v. Illinois, 184 U. S. 425, an

Tlinois statute was upheld which made it criminal to give

an option to buy grain at a future time, which although it

was aimed at gambling on the Board of Trade, included

transactions which did not amount to gambling and were

not immoral. In Otis v. Parker, 187 U. 8. 606, substantially

the same type of statute as in the Booth case was directed

- at the sale of shares of capital stock of: corporations on

margin. In the case of Silz v. Hesterberg, 211 U. 8. 31, a

New York statute prohibited the possession of certain game

during the closed season. While it was a statute aimed to

protect the wild game of the state, its prohibitions em-

braced not only domestic but imported gatne. It appeared

~ that unless both domestic and foreign game were included,

dealers in game might easily sell birds of a domestic kind ~

under the claim that they were taken in another state. In |

Pierce Oil Co. v. City of Hope, 248 U.'S. 498, an ordinance

was sustained which forbade the sale of gasoline within

300 feet of any dwelling hguse. The court said, (p. 500),

“If it were true that the necessarily general form of the

law embraced some innocent objects, that of itself would

not be broad enough to invalidate it to remove such an ob-

% _ ject from its grasp.”

.-> Even if the means employed by the South Carolina

statute had no relation to the object as applied toa part of

roads. in the state system, their inclusion in the statute

- would not defeat its validity. Excluding such roads from

t/%

‘rh

- ee 32

the statute would a bring about ‘the opportunity to

violate the law upon the highways included. The inclusion ‘

of the strong highways with the weak is necessary to pro-: ,

tect the latter. The legislature was not bound to sacrifice

its city streets andalocal rural roads in order to *promote

the operation of heavy vehicles upon its main highways.

It was not required to heap maintenance and construction

_ costs upon local governmental units in-the repair of local

roads. It was not required to increase its police force or

rely upon the honesty of the motor vehicle operator not to

‘violate the law. It was not required to adopt an intricate

system of highway classifications, fixing different limita-

tions ‘as to each highway or bridge in the state according -

_ to its capacity.” It had a right to, and did, adopt a statute

| which would ‘Produce the greatest = for_the- ‘greatest

number. pwc ete :

“The wh and exclusive ‘power to regulate the manner

of use of state highways by vehicles operated for the pur-

- pose of gain is in the states. Congress has no authority

_ in such a field. In the case at bar, the jurisdiction of the

court below must depend upon whether or not. the Com-

merce Clause invested Congress with jurisdiction in such ©

a field. If it did not, then the court was without

The power of the States to regulate their purely in-

ternal affairs has never been surrendered to Congress.

38 _

: (New York. Miln, 11 Pet. 102-139; Slaughter House acs,

16 Wall: 36-63. ) A regulation by Congress of the internal

commerce of a state is: void. (U. S. v.. Dewitt, 9 Wallace

41.) State power to impose restraints and burdens upon

persons and property in conservation and promotion of

‘public health, good order and prosperity is a power

: originally and always belonging to the ‘States, not sux:

rendered by them to the general government, nor directly.

restrained by the Constitution, and essentially. exclusive. .

(In Re Rahrer, 140 U. S. 545-554.) It is well established

that an abridgment of rights by a State, unless it comes

im conflict with the constitution or a law of the United .

States, is an affair between the State and ‘its citizens, of

which this court can-take no cognizance. (Transporation

Co. v. Chicago, 99 U. 8. 635-643.)

The Commerce Clause is‘a delegation of power from

the States to Congress to regulate. It follows, therefore,

that if Congress would. have no power to regulate the

weights and dimensions of motor vehicles using state roads,

then such power is reserved in the States; and the judicial

branch of the National government would: have no author-

ity to prevent state regulation i in a field over which Con- —

gress has no control. 7

(1) The South Carolina statute ‘sie not discriminate |

against non-residents in favor of residents. It treats all

alike. i

_ (2) ‘The statute ‘places no restrictions upon the in-

a terstate use of the highways by either residents or non- —

f ft residénts whé may desire to use them. The limitations of

: Z the statute are more than ample for such use. The statute

. ‘ is aimed at the use of highways by heavy all commercial

i. vehicles ‘operated for the purpose of gain. The use of

a a ‘« public highways forthe purpose of gain is an extraordi-

43 F ; __ nary one © which may be granted or withheld by a State.

‘ | it isa privilege, not a right as in the case of a non-profit

Tt _. use. No burden is placed upon the interstate use of the

highways by citizens of the several states, who may desire

_ lation falls upon those who exercise a privilege; and it

"operates upon them equally and without discrimination.

It does not opérate against the assertion of a right. ,

sence pares al Eh eee

a (3) The statute does not forbid or ourtelt either resi-

aa dents or non-residents to enter or leave the state for the

| —_ purpose of transacting ordinary business within the state

_° or in interstate commerce. They are free to do so. The

import or export of goods is not forbidden or curtailed. |

i (4) No complaint is made as to the impotton of

taxes or license or inspection fees. |

We contend that the States alone ili power to grant

or withhold the privilege of using their highways for the

purpose of gain or to condition the manner of use for such

purpose however they, see fit, provided that such conditions

do not discrimmate among those of that class or between

to use them for non-profit purposes as of right.. The regu-

, 35 ee oe .

citizens of the several states and accord equal privileges

toall. Since no discriminations are practiced and residents °

and non-resideitts are accorded equal privileges, the j juris-

| diction of the court below must stand or fall solely upon -

_ whether or not the regulation of the manner of use. of the ~

- highways by vehicles operating for the purpose of gain ©

was a field in which Congress might enter. If it were such ,

a8 field, then no state could burden the operation of sych

vehicles in interstate commerce by that type of regulation.

_ On the other hand, if the sole and exclusive power is in the

. stat@® and the field is one in which Congress may not enter,

then in the absence of discriminatory action and with the ~

accordance of equal privileges, the States are free to regu-

late in whatever manner they see fit. Therefore, the ques-

- tion with which we shall ‘hereinafter concern ourselves is

_ whether or not and under what conditions Corfgress might

enter such a field. Merely because a State regulation may

incidentially effect interstate commerce does not suffice to.

give Congress jurisdiction if the field is the internal affairs

_ of the States. State legislation, limited to internal com- 7

merce, which does not include the subjects of interstate

‘ecommerce is not invalid because it may affect the latter

indirectly. (The Minnesota ‘Rate Cases, 230 U. S. 352-410. ¥

(Schechter Corp. v. U. S., 495-546). The subject matter for

congressional action must be one of interstate commerce.

The manner of use of a state road does not fall within

such subject matter.

one

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. ‘

SP RIE A tC TOR

pt PTE ahaa. dal Gi DN ep Fn © Lanna ena es Wi Oe ola ae. i eh MS ee Ge i

3 e

It may be Stated as a general proposition that all

eases sustaining the jurisdiction of this court t6 prevent

' the enforcement of state regulation under the authority

of the Commerce Clause may be classified as follows: :

(1) Cases where the jurisdiction of Congr&s is ini-

mediately exclusive ; that is, exclusive without ny action a

‘ taken on the _ of Congress. | _

a (2) Cases in which Congress hi has already entered the '

. field. : ;

(3) Cases in which (a) the jurisdiction of ‘Congress

is not immediately exclusive, and (b) Congress has not yet

entered the field, ‘but the regulations of the State are bur-

_*- densome. . |

It is to be noted that in each of. the three foregoing

classes of cases the jurisdiction of this court is made to.

depend upon the® jurisdiction of Congress. If the jurisdic-

tion of Congress i is lacking, then the subject matter is not -

one of interstate commerce in which this court’ may inter-

vene. This is dramati atically. illustrated by a comparison of

-U. 8. v. Dewitt, 9 Wallace 41, with Mimnesota v. Barber, |

"136 U. S. 313. In the latter case a Minnesota statute for-

bade the sale of meat within the state unless it was in-

| \spected by state authorities. * As applied to‘meat shipped

- into‘the state from without, it was a subject matter of in-

po _ terstate commerce, over which Congress had control, thus

giving this court jurisdiction. to enjoin state action. In.

the Dewitt case, this court held an Act of Congress invalid

. tao &

. a o . .

at . : > fe = i ?

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oe th . . -

a 7

which forbade the sale of illuminating oils. ‘There this

court said, (p. 43-44), ‘“That Congress has power to regu-

_ late commerce with foreign nations and among the several

States» and with the Indian tribes, the Constitution ex-

. pressly declares. But this express grant of power to regu-

late commerce among the States has always been under-

stood as limited by ‘ts terms; and as a virtual denial of any

power to interfere with the internal trade and business of

the separate States.”’

in Transporiation Co. v. Parkersburg, 107 U. 8S. 691,

it was pointed out (p. 701) that it is Congress and not the

Judicial Department to which the Constitution has. given

the power to regulate commerce ; that there are cases where

the courts will interpose to prevent state action where

_ Congress has not yet acted; but those are cases where

states ‘have interfered with the freedom of interstate com-

merce and the non-action or silence of Congress is an indi-

cation of its will that no such restraint shall be imposed.

. In-view of the Parkersburg case and other cases, we say

-that the jurisdiction of this Court in matters of interstate

. commerce is co-extensive with the jurisdiction of Congress.

V. °

ote The power of Congress over state roads consists only

in the power to regulate the business of interstate eom-

merce, per se, not **e power to displace the local police

power having for its purpose the conservation of state

property. ! 6 ee

of interstate commerce, -

—— : - — _- ~

Be ee a ie

* Keg Seny Wop DRIEST Ge os De

The ‘regulation of the business of interstate commerce

is one thing. State regulations which are aimed to con-

serve state property and may incidentally affect interstate

commerce are quite another. The former is under the

control of Congress. The latter has never been surren-

dered to the central government, but is in the si

Without doubt, regulations of the dimensions and

weights of motor vehicles do. affect interstate comme?ce ;

but they only affect interstate commerce in the ‘same way

‘in which state laws punishing the crime of murder may

- affect those who happen to be engaged in interstate com-

merce at the time of the commission of such an offense.

This Court hes repeatedly held that the Commerce

Clause has no application to state statutes having for their

aim the consefvation and protection of state property. In

| Geer Vv: Connecticut, 161 U.S. 519, a statute of Connecticut

was upheld which prohibited the exportation of wild game

from the state upon the theory that wild.game are the ~

property of the state, and the state has the inherent power

to provide for their. conservation. The same principle was.

approved in Ward v. Race Horse,.163 U. S, 504; in Silz -

%. Hesterberg, 211 U. 8. 31, and Carey v. South Dakota, 250

U.S. 118. The inherent power of a state to preserve its

natural resources was given additional sanction i in Hudson

Water Co. v. McCarter,-209 U. 8. 349. This same doctrine

was recently approved. (Bayside Fish Co. v. Gentry, 297

WA S: 422-427.) pleas

is an authority co

39 |

Two well considered District Court decisions nullified

‘the first Federal Migratery Bird Act upon the theory that

- the Commerce Clause gave no authority to Congress to

regulate the property of the states. (U. 8. v. Shauver, 214

Fed. 154; U. 8. v. McCullogh, 221 Fed. 288.) The second

Migratory Bird Act, which was enacted under the treaty —

making-power of Congress, was upheld by this Court upon

. the theory that such power transcends all state action»

(Missouri v. Holland, 252.U. S. 416.) Such Act was not

systainéd under the Commerce Clause. The case 9f Okla-

-homa v. Kansas Natural Gas Co., 221 U. 8S. 229, imnot

contra to the previous,cases upholding the -right of

' states to preserve their natural resources. That decision -

nullified an Oklahoma statute haying to do with the expor-

tation of natural gas from the state; but the Court carefully

- distinguished between the inherent power of .a state to

protect its own property by prohibiting the exportation of

* watural resources which are its property, such as wild

game, as detinguished from such property as natural gas,

which is the property of the surface pi sprietors and not

that of the state.” It is our position that the Oklahoma case

the power of a state to protect

its property, withou ‘being fettered by the Commerce

~ Clanse. °

It ig, true ‘that a state road is not a natural resource.

- His an artificial structure. But it is state property, built

and mnsintained. by ri state in discharge of one of ~ — :

=“

est sovereign powers, \that. of providing its citizens with

means of transportation and communication. The. ‘essence

of Oklahoma v. Kansas Natural Gas Company, supra, and ~.

* the other cases just cited \i ds that it is the property right or.

iba of ownership of a’ \state which gives the state im-

- munity from the Commerce Clause. Consequently, a state

road- comes within the same category as any other prop-

c j erty a state. ‘| | \ 7

yan

ic: Hmmevwhere we refer to J ustice Taney’s pronouncement

’ does:not in any way take from or limit, this power. For

“regarding the power of a state to regulate. its own highways

(Seaxeght wv. Stokes, 44 U. S: 150-170). A more compre-

2 hensive : discussion of the same subject by Justice Bradley °

is to be found in the case of Railroad Company v. Mary- .

land, 88 U. S. 456. Permit is t pause a moment to quote 4.

a sentence from Justice Bradlyy’ 8 opiniog in the latter’

case which 18 quite pertinent at this point: ‘‘This un-

limited right of the State to aes tach or to authorize as is

‘india canals ee a arises re the simple. fact :

that they are its. own works, or yp doe under its au- ;

thority. It gives them being.”’ ie: ee

The power of a state to own, maintain and conserve its

) propérty for a public purpose, be it a, statehouse, a peniten-

_ tiary or a road is a sovereign power. Without such power,

there could be-no sovereignty. The decisions of this court

previously alluded to indicate that the Commerce Clause -

< 1

ale 3 |

that reason, when a state builds a road, which may be

traversed by interstate commerce, it does not dedicate the

road for regulation by Congress under the Commerce

Clause. That power of regulation i is in the state.

ane, 2 pe

{ ere

A'regulation by the Federal government of the power

| ‘to control the conservation of the highways of a state

would not be a regulation of the business of interstate

commerce. It would be a taking of property for a public —

. compensation in violation of the Fifth Amend-

t to the Constitution of the United States.

Assume that sini roads were’ so _— unoceupied

_ state lands. Could the Federal government build roads

_ across those unoccupied lands without making compensa-

. tion to the state as required by. the Fifth Amendment? -. If

the answer is. “no”’, then. what difference -does it make if.

_ the state lands are occupied by: a slab of concrete or a coy-

ering of gravel and are ased as roads! There are ‘thous-

-ands of miles of unimproved rural dirt. roads in” “this

- eountry which, save for.a small amount of grading, are in.

a state of nature:° From a physical standpoint they are in

much the same condition as an equal amount of state-owned.

Jand used for farming or reserved for future pub bhic use.

‘Could it be possible that the Federal government could - .

‘seize either a state farm or a dirt road for the\purpose of

building its own highway without making the state whole?

Iti is: obvious that the answer does not lie i in the character

f, Ce ete wiht

EERE ST

42 P Y f

of the property. A state-has as much a property right ina

road ag it has in a farm or a state house. The questions -/

- to be considered are (1) whether or not the Fifth Amend- ©

ment requires that the United States must compensate a.

state before taking gne of its highways and (2). whether

or not a regulation. by Congress of the nature under con-

sideration here constitutes a taking within the inhibition.

of the — Amendment.

(1)

In regard to whether or not the Fifth Amendment, re-

quires eompensation to be made by the United States for

the taking of a state highway, the question has been defi-

nitely settled i in the affirmative by this court. (St. Louis

v. Western Uaion Co., 148 U. S. 92). There a telegraph

company had attacked the constitutionality of an ordinance

which exacted a charge of five dollars‘a pole for the use of

city streets. The court upheld the ordinance. In deliver-

ing the opinion of the court, Justice Brewer said the fol-

lowing (p. 100):

‘*It is a misconception, however, to suppose that

the franchise or privilege granted by the act of 1866 |

carries with it the unrestricted right to appropriate

the public property of a State, It is like any other

franchise, to be exercised in subordination to” ‘public —

as to private Tights. While a grant.upon one govern-

ment may supersede and abridge franchises and rights

held at the will of its grantor, it cannot abridge any |

property rights of a public character created by the

authority of another sovereignty. No one would sup-

pose that a franchise from the Federal government to

a corporation, State or national, to construct interstate

roads or lines of travel, transportation or communica-

tion, would authorizé it to enter upon the private prop-

erty of an individual, and appropriate it without com-

pensation. No matter how broad ‘and comprehensive

might be the terms in which the franchise was granted,

it would be confessedly subordinate to the right of the

individual not to be deprived of. his property without

just compensation. And the principle is the same

when, under the of a franchise from the national

governme corporation assumes to enter upon

property of a public nature belonging to’a State, . It

would not be claimed, for instance, that under a fran-

chise from Congress to construct and operate an inter-

state railroad the grantee thereof could enter upon the

state-house grounds of the State, and construct its

depot there, without paying the value of the property

thus appropriated. Although the state-house grounds .

be property devoted to public uses, it is property de-

- voted. to the public uses of the State, and property

whose ownership. and control are in the State, and it is

not within the competency of the national government

to dispossess the State of such control and use, or ap-

propriate the same to its own benefit, or the benefit of

any of its corporations or grantees, without suitable

’ compensation to the State. .This rule extends to streets

and highways; they are the public property of the ..

State. While for purposes of travel and common use

they are open to the citizens of every State alike, and

no State can by such common use, yet when an appro-

‘priation of any part of this public property to an eax-

clusive use is sought, whether by a citizen or corpora-

tion of the same eor another state or a corpo-

ration of the national government, tt is within the com-

petency of the State, representing the sovereignty of

that local public, to exact for its benefit cOmpensation .

for this exclusive appropriation. It matters not for

what the exclusive appropriation is taken, whether for

steam railroads or street railroads, telegraphs or tele-

phones, the State may if it chooses exact from the

party or corporation given such exclusive use pecuni-

ary compensation to the general public for being de-

prived of the common use of the portion thus appro-

. priated.”’ Sea? ae

“

| > In Western Union Telegraph Co. v. Richmond,224 U.S.

160-169, the court said, ‘fThe inability of the State to pro-

hibit the appellant from getting a foothold within its terri-

tory, both because of the statute and of its carrying on of

Commerce among the states, gives the appellant no right

to use the soil of the streets, even though post roads, as

against private owners or as against the city or state where

it owns the land.” ©

The principle of law enunciated by the court in the

cases just cited is not a far cry from the statement of

Justice Taney in the case of Searight v. Stokes, 44 U. S.

150-170. -There it appeared that the Cumberland Road

had been ceded to Pennsylvania by the United States upon

the proviso that vehicles carrying the United States mails

court was called upon the determine whether or not such

proviso should apply to a: private eontract hauler who, in -

addition to carrying the mails, transported passengers and .-

baggage, The court held that such private party came

within the proviso, In considering the case, Justice Taney

said the following:

«#*** Tf the state had made this road herself,

and had not entered into any compact upon the sub-

ject with the United States, she might undoubtedly

have erected toll-gates thereon, and if the United

States afterwards adopted it as a post-road, the car- -

. Tiages engaged in their service in transporting the

mail, or otherwise, would have been liable ta pay the

same charges that were imposed by the state on other

vehicles of the same kind. And as any rights which

the United States might be supposed to have acquired

RRO. «SUPE OS NR as eT REO, ai eA SO La TR ‘ Pye ee,

F 2 ; 9 |

in this road have been surrendered to the state, the

_power of the later is as extensive in collecting toll as

if the road had beén made by herself, except in™80 far ~~

as she is restricted by her compact; and that compact

does nothing more than exempt,the carriages laden

with the property of the United States, and the per-

sons and baggage of those who are engaged in their

‘ service. Toll may therefore be imposed upon every

‘ thing else in. any manner passing over the road; re-

stricting, however, the application of the money col-

lected: to the repair of the road, and to the salaries

and compensation of the persons employed by the

State in that duty.”’

It is apparent, from what has just been quoted that

the court ‘considered the property right of the State of. -

Pennsylvania in its roads was of such magnitude that it

is beyond the power of the Federal government to use them

- without’ paying compensation. -It is quite possible that

"the states have surrendered the right to collect tolls from © -

_ the national government by the acceptance of the benefits

of the Federal Highway Acts of 1916 dnd 192%: (See Point -

‘X of Argument.) However, no other tight of the States

in their roads has been surrendered. :

“That the Fifth Arnendment is a limit upon Congress

. ‘in the exercise-of its authority under the Commerce Clause,

there can be no doubt. - (Monongahela Navigation Co. v.

_ U.S, 148 U. S. 312-336.) . In that case, Justice Brewer

“> @

said, ‘‘But like the other powers granted to Congress by

the Constitution, the power to regulate commerce is sub-

' ject to all the limitations imposed by such instrument, and

athong them is that of the Fifth Amendment, we have here-

tofore quoted. Congress has ‘supreme ‘control over the

salar ee ere TA 52z rE POM

=? “pteresz 7%

ee one a Seen 3

Prep BA Sie i tag ee Sate 3 ee a

Cee nor foe

regulation of commerce, but if, in exercising that supreme

control, it deems it necessary to take private property, then

it must proceed subject to the limitations imposed by this

- Fifth Amendment, and can take only on payment of just

‘compensation. The power to regulate commerce is not

given in any broader terms than that to establish post-

. Offices and post-roads ; but, - if Congress wishes to take

private property upon which to build a post-office, it must

either agree upon the price with the owner, or in condemna-

tion pay just compensation therefor. And if that property -

be improved under authority of a charter granted by the

State, with a franchise to take tolls for the use of the im-

provement, in order to determine the just compensation,

such franchise must, be taken into account. Because Con-

gress has power to take the property, it does not follow

that it may destroy the franchise without compensation.

Whatever be the true value of that which it takes from the

individual owner must be paid to him, before it can be said

that just compensation for the property has been made.

And that which is true in respect to a condemnation of

property for a post-office is equally true when condemna-

tion is sought for the purpose of improving a natural high-

way. Suppose, in the improvement of a navigable stream,.

it was deemed essential to ‘construct a canal with locks,

in order to pass around rapids or falls. “Of the power of

Congress to condemn whatever land may be necessary for

such canal, there can be no question; and of the equal neces-

sity of paying full compensation for all private property

47 ee te

taken there can be as little doubt. If a man’s house must

be taken, that must be paid for; and, if the property is held ©

and improved under a franchise from the State, with power

to take tolls, that franchise must ‘be paid for, because it

is a substantial element in the value. of thg property taken.

So, coming to the case Hefore us, while the power of Con-

gress to take this property is unquestionable, yet the power

to take is subject to the constitutional limitation of just

compensation. ~ It should be noticed that here there is un-

questionably a taking of the property, and not a mere

destruction. It is not a case in which the government re-

quires the removal of an obstruction. What differences

would exist between the two cases, if any, it ig unnecessary

here.to inquire. All that we need consider is the: measure

of compensation when the government, in the exercise of

its sovereign power, takes the property. r

Not only is the Fifth Amendment a limit upon the

power of Congress over ‘interstate commerce, but over

other great powers given by the Constitution, such as the

bankruptey power (Louisville Bank v. Radford, 295 U. 8.

555-589) and the power to tax (Heiner v. Donnan, 285 U. 8.

- 319-326).

(2)

The next quéstion regards whether or not the regula-

tion in question of a state road by Congress would amount _

to & taking within the inhibition of the Fifth Amendment. |

In other words, we maintain that a basic regulation by

1) mee an

Soo me

: ad

Re ee TO pe ee TANT he LGN et SRE AS ine Re Re

PRS RN Sie EP eT sh SO ea BR a

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48 |

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* Congress of the manner of usé of state property would

violate the very letter and spirit*ef the Fifth Amendment.

Elsewhere we argue that @ regulation of the nature |

we are considering i is not per sea ‘regulation of interstate

commerce ; but that such a “regulation by Congress would

. deprive a state of the power to conserve its own property.

We insist that such a situation would result in a taking.of. .

; property. _ Virtually all courts of last resort agree that the

term “property” as used in “constitutional provisions re-

quiring compensation for taking private property includes

not only the tangible subject matter or corpus, but also

every right which accom pnies ownership, such as.the right

to use and exercise full thinion over the property. The

rule is well stated in the case of Scott v. Manhattan Ry. Co.,

17 N. Y. S. 364-365, where it is said: ‘As the value of |

property results wholly from its use, it follows that to -

> deprive the owner of its most advantageous use is a de-

privation of property. Indeed, all that.is beneficial in prop-

o« erty arises from its use, and the fruits of that use; and

whatever deprives a person of them deprives him of all

. that is desirable or valuable in the title or possesion; and

whatever limits or interferes with the most advantageous :

use of the property does a substantial injury to the title _

' and possession, which is not compensatedeby nominal dam-

: In the case of Old Colony and Fall River R. R. Co. :

va County of Plymouth, 14 Gray, 155-161, Chief Justice.

Shaw said: “The word <sticeiallia in the tenth article ul

ad 49 . \

the Bill of Rights, which provides that ‘whenever the public

exigencies require that the property of any individual

should be appropriated fo public uses, he shall receive a

reasonable compensation therefor’ should have such a lib-

ab eral construction as to include every valuable interest

: which can be enjoyed as property and recognized as such.’’

_ The Supreme Court of Illinois expressed the rule succinctly

-. Gn'the case of Bailey v. People, 190 Ill. 28-33, where it is

| said: ‘The term property includes every interest any

one may have in any and everSthing that is the subject of

... ownership by. man, together with the right to freely pos-

‘ges, use, enjoy and dispose.of the same.’’ In the case of

Pumpelly v. Green Bay Company, 80 U. S. 166-177, Justice

Miller said: ‘‘It would be a very curious and unsatisfac-.

+ tory result if, in construing a provision of constitutional

law, always understood to have been adopted for protec-

tion and security to the rights of the individual as against .

> the government, and which has received the commendation

of jurists, statesmen and commentators as placing the just

principles of the common law on that subject beyond the

’ power of ordinary legislation to change or control them, it

shall be held that if the government refrains from the abso-

lute conversion of real property to the uses of the ‘public

it can destroy its value entirely, can inflict irreparable and

permanent injury to any extent; can, in effect, subject it.

to total destruction without making any compensation, be-

e cause, in the narrowest.sense of that word, it is not taken

“for a public use. Such a construction would pervert the

constitutional provision into a restrittion upon the rights

| of the citizen, as those rights stood at omumon law, instead

- of the government; and make it an authority for the i inva-

sion of private rights under the pretext of public good,

which. had no warrant in the law or practices of our

ancestors.’’ |

The situation in the case at bar has no analogy what-

soever ‘to the decisions of this Court upholding statutes

outlawing the use of intoxicating liquor, even though it

might-have been lawfully acquired or owned prior te the ~

passage of the statute. (Samuels v. McCurdy, 267 U. S.

188; Crane v. Campbell, 245 U. S. 304.) Those statutes

were upheld upon the ground that the evils attendant upon

the use of intoxicating liquor are such that the state has

the absolute power to prohibit their sale or possession in ~.

the interest of the welfare of its citizens; but no court has 7

ever taken it upon itself to permit the seizure or use by

the sovereign of private property which has no inherent |

qualities of evil requiring its confiscation. Such a rule of

4 law would violate: the very ’ foundations of democratic

government. )

As far as the Fifth Amendment is concerned, could ~~

theze be any difference between the United States entering

upon and building a road upon unoccupied state land with-

“out making compensation therefor and the United States

fixing regulations for the use of state land occupied as a

public road? Since the right of property includes the right

* to manage it and exercise dominion and control over it,

where does any right of property remain if a non-owner

arrogates to himself the power to manage ‘an@eontrol it?

Is property any the less taken, if “the right \of control is

( taken from the owner than if it is seized in its entirety by

_en intruder? If the right of control vanishes, where does

the right of property remaint ~° - ;

It is hornbook law that the right of ownership.of pri-

vate property is subject to reasonable logal police regula-

tions, such as building ordinances, wtistrictions upon the

sale of intoxicating liquor, zoning Taws, and the like; but

beyond that point, governmental control over property

amounts to a taking for a public use. Wherein lies the

point at which police regulations over private property end

and the taking for a public use begins? There-is a vast

difference between an incidental injury. to private property

resulting from the exercise of proper police regulations

and the taking of property by the sovereign for a public

use without paying compensation as required by the

‘ constitution. | :

The distinction is apparent between a governmental

interference with property rights (1) as the result of the

exercise of police powers and (2)° where there i is a taking

_ and using for a public use. The. object sought in each case

is different, although there may. be an interference with

the use in both instances. In the first case, the-interference -

~ is not primarily for a special use ta the public but is for ve

So Pa OTA Oa Se RATER

Be dy ee Ce a

‘ §2

the protection of the health, morals and general welfare of

‘the citizens. Tn the case of a reasonable exercise of police

power. to attain that end, the ‘property owner must submit.

_ In the second case the end sought is rimarily the special

| “use of private property for a public purpose. The public

is to use the property. The property taken has no inherent

qualities which ‘require regulation for good order or for:

the protection of society. This distinction was well put

by the Court of Claims in the case of Heflebower v. U. S.,

21 Ct. Cl. Reports 228-237, where it is said: ‘But there is

a distinction to be drawn between property. used for gov-

ernment purposes ‘and property adestroyed for the public

safety. If the conditions admitted of the property being

acquired by contract’ and | of being used for the benefit of

garded as acquired under an implied contract; but if the

taking, using or occupying was in the nature of destruction.

for the general welfare or incident to the inevitable rav-

ages of war, such as the march of troops, the conflict: of

| armies, the destruction of - supplies; and whether brought

the government; the obligation attaches, and must be re- -

about by casualty or authority, and -whether on hostile or

national territory, the loss in the absence of positive legis-

lation, must be. borne on whom it falls; and no obligation

to pay can be imputed to the government: - Further ex-

pression of the same. thought is to be found i in 1 Lewis on

‘Eminent Domain, Sec. 6, 1909 Ed., where the author says;

“But the moment the legislature passes beyond mere regu-

. lation, _ — to iesears the individual of his prop-

. 53

erty, ¢ or of some substantial aheinat inde then the aet

becomes one of eminent domain, and is ‘subject: to. the obli- .

gations and limitations which attend an exercise of that

power.’’

‘This Court has held that where the government floods

lands belonging to a private owner, there is a taking within

the scope of the Fifth Amendment; that while the title may

not be appropriated, yet such an invasion takes away, the

use of property so that: it i is of little consequence in A*yhom

the fee may vest. (U.S, v. Lynah, 188 U. S, 445.)

In Vol. 4, McQuillen on Municipal Corpgfations (2nd

Ed.), Sec. 1589, the author says: ‘<The )

- constitutes a ‘taking’ of property

| been the subject of many

estion of what

n the meaning of

~ such constitutional provisi

decisions, and in connection therewith the question of what -

is ‘property’ has been necessarily involved, The law as-- |

to what constitutes a taking has undergone a radical change .

during the ‘last few years. Formerly it was limited to the

: aetual physical appropriation of property og a divesting

of title, but now the rule adopted in many jurisdictions

and: supported. by the better reasoning ‘is.that when a-per-

son is deprived of any of certain rights in and appurtenant

to tangible things, he is to that extent deprived of his prop-

erty, and his property may be taken in the: constitutional

<<«?

sense, though his title and possession. remain undisturbed ; .

and it may be laid down as a general proposition, based

upon the. nature of property itself, that, whenever the ‘law-

compensation.’

ee upon the property.

Me aR Quay 9p Jon aR RENE hee ak gas epee eee, bt Ree

geptetn rer re a

ful rights of an individual to the possession, use or enjoy-

ment: of his land are in any degree abridged or destroyed

‘by reason of the exercise of the power of eminent domain,

his: property is, pro tanto, taken, and he is entitled to

°o

_ There is a marked difference between a police regula-

tion, such as a zoning ordinance, which only requires the ~~

owner of property to submit to restrictions in his own use

of his own property, and a governmental fiat requiring

the owner of property to suffer restrictions to be placed

- upon his property, not for his own use, but for a —

use by others.

Police regulations which are reasonable. and which do

not require the owner to:turn over his property to the

public for a special use do net amount to taking of prop-

- erty in the constitutional sense of the term. Property is

not taken .when the owner enjoys its exclusive use, even

‘though he may be restricted in the enjoyment of‘it, On the

other hard, when the owner is forbidden to regulate the

use which the public may make of his property, a taking

oceurg for the reason that there occurs a burden of —

2) fe

It is the subjection of private property to a public ser-

‘vitude that marks it as a taking of property for a public’

use. For example, this Court has held that where the War

' Department fired its guns so that the shells would cross

in the air over private property, the property was subject

to such a servitude as to constitute a taking within. the

-meaning of the Fifth Amendment. — v. United

States, 231 U. S. §30.)

In Cooley’s Constitutional Limitations (1927 Ed.), -

pp. 1109-1110, the learned author defines eminent domain

as follows: ‘‘The right itself is generally defined as if it

were restricted to such cases, and.is said to be that supe-

rior right of ‘property pertaining to the sovereignty by

which the private property acquired hy its citizens under

its protection may be taken or tts use controlled for the

public benefit without regard to the wishes of the owner.’

The point we désire to make clear is-that any: Act of

Congress which would permit the use of state roads by

persons engaged in interstate commerce with any type of

vehicle which Congréss would ‘consent to be used without

regard to the wishes of the owner (the States) would not

be a mere regulation of the business of interstate com-

merce. Such action would compel the States to permit a

special use-of their lands against their will by third per- |

sons. Requiring the states to submit the use of their prop-

_ erty to third persons against their will would bring the ac-

tion of Congress squarely within Mr. Cooley’s .definition |

of what is an exercise of the power of eminent domain,

‘‘its use controlled for the public benefit without regard

to the wishes of the owner. ”? That would be compulsory

dedication of property for the unbridled use of those who

had no interest or right of ar in it whatever. The

(56

property would pass from the domain of the States to the

domain of the United States through eminent domain with-

out compliance with the Fifth Amendment.

The manufacturer who ships his goods in interstate

commerce, though submitting to the regulation by Con-

gress in the use of-his property, is not required to permit

the general public to make a special use of his property.

Regulations of such a nature by Congress do not amount

to an exercise of the power of eminent domain. On the

other hand, regulations by Congress which would eompel

private property itself to be dedicated for.a special public

use ; regulations which would require private property to

_ submit to a public servitude for a use by other than the

_ owner without compensation pass ftom the realm of legiti-

mate regulations. to that of the nape exercise of the

power of eminent domain.

In case Ookgres would take from the states the ‘power

_ to regulate traffic upon their highways what rights would

the states have in the residue? We submit that, save for

the right to collect taxes, the naked power of ownership

alone would remain. Because of their peculiar nature,

roads can only be used for the bearing of traffic, nothing ~

else. ‘When the power to regulate traffic is gone all power

of management or control departs with it. Taking from the

states the power to regulate traffic upon their roads strikes

| at the very heart of ownership. That is a taking of prop-

erty. Such action upon the part of Congress would deprive .

—

the States of the exclusive t use of their property and devote

it to the service “ the national government against their

will.

_ the case of. Oklahoma v. Kansas Natural Gas Co., 221

U.S. 229, ‘this court held a state statute invalid which pre-

| vented the owner of natural gas from exporting it from the

es state. The court said, (p. 254), ‘It does not protect the

rights of all surface owners against the abuses of any. It ©

does not alone regulate the right of reduction to possession

of’the gas, but when the right is exercised, when the gas be-

comes property, takes from it the attributes of property, the

right to dispose of it; indeed, selects its market to reserve it

for future purchasers and use within the state on the ground

that the welfare of the state will thereby be subserved. * * ”

Gas, when-reduced to possession, is a commodity ; it belongs

to the owner, and, when reduced.to possession, is his in- .

dividual property, subject -to sale by him * * a

A clear statement is to be found in the case In Re

Jacobs, 98 N. Y. 98-105, where it is said, ‘‘The constitutional

" guaranty that no person shall be deprived of his property

without due process of law may be violated without the.

physical taking of property. for- public or private use.

Property may be destroyed or its value annihilated; it is

owned and enjoyed for, some useful purpose and it has no

value naoless it can be used. Its capability for enjoyment

and adaptability to some use are essential characteristics

a and attributes without which property cannot be conceived ;

and hence any law which destroys it.or its value, or takes

away any of its essential attributes, deprives the owner of

his property.”’

The regulation of traffic by Congress upon the road-

ways of a state would amount to the nationalization of

state property without the consent of the states. A state

has no authority to convert a private enterprise into a

public utility under the guise of its police powers. (Pro-

ducers Transportation Co. v. R. BR. Co., #051 U. S. 228-230;

Michigan Commission v. Duke, 266 U. S. 570-578.) In the

Producers Transportation Company case, the court said,

‘*The State could not by mere legislative fiat or by any

regulating order of a commission convert it into a public

3 utility or make its owner a common carrier; for that would

be taking private property for public use without just com-

pensation, which no state can do consistently with the due

process of law clause of the Fourteenth- Amendment. oe

: ‘same token we say that Congress has no power ‘to

tionalize state roads against the will of the states with-

out making compensation therefor as required by the Fifth

Amendment. If the ordinary police powers of a state do

not permit private property to be converted into a public

utility—if that is a taking of property without making

compensation in violation of the Constitution, then what

is to be said about an Act of Congress which would convert -

state roads into national highways by taking the regulatory

_ powers of the states away from them and vesting them in

—

Since it is clear that the Fifth Amendment protects

the states just as much ag it does private parties from

seizure of their property by the United States, and .that

the deprivation of the owner -of property of his right to

manage and regulate its use is a taking of property just

as much as if the owner were physically ousted from pos-\_. |

session, then we maintain that the Fifth Amendment is a

limitation upon the power of Congress to control the traffic

upon state roads. Ta

_ If, as Justice Bradley. anid, in St. Louis v. Western

Union Telegraph Co., supra, Congress is without power

to permit a telegraph company to use city streets with its

poles without ‘making compensation, then what authority

has Congress to permit an unbridled use of traffic upon

those same streets? The only difference is in the character

of use. If fhe. power of regulation of traffic is in Congress

and Congress should elect to act under that power, then

the power of Congress is subject to no restraints. Its

- power under the Commerce Clause knows no limits, save

those fixed by the Constitution itself.

If the Fifth Amendment is not a bar to Congress, what

is there in the Constitution to prevent Congress from. re-

_ moving all restraints ‘upon traffic? If the states have

| dedicated their highways to Congress for the purpose of

regulation under the Commerce Clause, what restraint upon

Congress remains? It is undeniable that if the power to

regulate. the weights of | motor vehicles is exclusively i in the

- 60

states, then the people of the states, anita through thei

legislative representatives, might: choose to remove all

restrictions so that:the rapid destruction of the highways

would follow. If, on the other. hand, such power is in

Congress when it chooses to act, then it too might lift all”

restrictions with the resulting loss‘of millions of ‘dollars

of property paid for by the people of the respective states.

Thus, it is seen that the use of public-roads, whether by a |

telegraph company by the occupancy of poles, or by the

unbridled use of traffic, while differing in kind, might both

arrive at the same result, a complete eviction of the state —

from its property, unless we say that the bar of the Fifth |

Amendment is as full in the one case as it is in the other.

VIL.

In thainteining and owning roads the states are not

engaged in interstate commerce. _

True it is that when Congress regulates the business

of interstate commerce, private, property rights must yield

to a reasonable exercise by Congress of its powers under

the Commerce Clause. The railroad company must sub-

mit to a multitude of regulations which in each instance

_interferes“with the management and control of its property.

The same applies to a common carrier by motor vehicle

who elects to cross state lines. *The manufacturer who

would ship his products in interstate commerce must also

yield. |

61 ‘

- What is there, -then, that sets the states apart in the

regulation of their roads so that they are immune from the

_ Congressional ‘action?

The states are not engaged in the business of inter-

-. state commerce. Except in certain extraordinary cases,

they can cross no state lines to exercise their sovereign

’ powers elsewhere. ' Theit exercise of sovereignty is ordi-

narily limited to their own confines. They build their high-

ways in their sovereign capacities in discharge of their

duties to their own citizens. Their highways do not cross

_ state lines. They do not maintain highways in other states.

The only connection the highways of the states have with

interstate commérce is that they may be used by vehicles

passing from one state to another. One of the inherent

_ powers of sovereignty is to exercise police powers for the

protection of sovereign property. ‘This power is as in-

_ herent as the pawer to tax. Congressional powers cannot

subordinate this indispensable. power of sovereignty with-

out taking the property of the states. When the power of

the sovereign to control its property goes, its property

rights: follow. Its sovereignty is gone. There cannot be

~ two rights of sovereignty in the same property, one- state

and the other Federal. The power of conservation’ cannot —

exist in both governments at the same time. It is incon-

. eeivable: how the property of a state, not used by the state

in the business of interstate commerce, never dedicated by

| the state to the use of interstate commerce, built within the: ~

confines of the state and used, not by the state, but by third

parties, as an incident to the passage of vehicles in inter-

‘ state commerce, can be controlled by Congress without the

exercise of the power of eminent domain. Such Congres-

sional action would not be the regulation of interstate com:

merce. It would be the control by Congress of state prop-

* erty, a management of sovereign property other than its

own; a government of property, not a management of in-

terstate commerce; .a superintendent of state assets not

used by the’states in interstate commerce; the foisting of

* the same Federal management upon state property a6 Bon-

gress may assert upon commercial enterprise as the price

the latter must pay for the privilege of engaging in com-

merce between the states. It would be an exclusive exercise

of power by Congress in which the states, might not inter-

fere. The exercise of control by one sovereign exclud

control by the other. As Justicé Mclean expressed it in.

-The Passenger cases, (7 Howard 282-398) : a eoncul>

same thing is as inconsistent in principle as it is imprac-

ticable in action. It involves a moral and physical impos-

sibility. - - - - If the powers be equal, as must be the case,

—_-& both being | sovereign, one may undo what the other _

and this must be the result of their action.”

The Sinnngeaint and,control of publi. property is

government. ‘Without this, there could be no government.

Without it, the States could not be sovereign.

' While it is true that the Commerce Clause extends to

every instrumentality: used by one engaged in interstate

eommerce, provided that the instrumentality is under the

ownership or contrel of the person engaged in interstate

commerce, it by no means extends to ,instrumentalities

owned or controlled by those not secimau' in interstate com-~

_ merce. ‘There is a wide difference between instrumentali- 7

ties of interstate commerce which are owned and employed

by operators engaged in interstate commerce, and instru-

mentalities of interstate commeree used by such operators,

bat not owned or. controlled by them. “That was the effeet

of the éases of Detroit International Bridge Co. v. Corpo-

ratiow Tax Appeal Board, 294 U.'S. — and Bendemnes

Bridge Co. v- Kentucky, 166 U. 8. —

The first named case involved the power of the State

of Michigan to assess a privilege tax upon a toll bridge

corporation which maintained a bridge between this eoun-

try and Canada The opinion of the coutt discloses that:

the bridge corporation eollected tolls. from vehidles and

pedestrians crossing its structure, but that it operated ne

vehicles. Upon the authority of the ease ef Henderson

Bridge Co. Vv. Kentucky, supra, the court held that the i‘.

bridge corporation was not engaged in interstate commerce.

The case of H enderson Bridge Company vy. |Kentucky in-_

volved the power of the State of Kentucky to include fran-

chises that state had granted to the corporation in deter- -

mining the valuation of the company’s property for taxs-

tien. The court said, (p 169) ns

“The cothpany was dawned by the State of

Kentucky and ‘the state could properly include ‘the -

franchises it had granted in the valuation of the com-

. pany’s property for taxation. *.* * The regulation of

tolls for transportation over the bridge. considered in -

Covington and Cincinnati Bridge Co. v. Kentucky, 154

_.U. 8, 204, presented an entirely different question.

Clearly the tax: was not a tax on interstate business ~

carried on over or by means of the bridgé, because the

bridge company | did not transact such business. That

business was carriéd on by the persons or corporations

. which ‘paid. the beicae company some for the oe

3 using the, bridge.’’

-- It is to he observed from these cases that the. res ‘e |

instrumentality incidentally used in interstate commerce

was not owned or controlled by the persons who were en-

gaged in ‘carrying on interstate. commerce. The. bridge

corporations did: not transact the business of interstate

; RSS although they ‘owned instrumentalities : eapable

1 of such use by —

_ Substantially the s same dasha ane ne the decisions

of this court ‘in. connection with the control of Congress“

: over the intrastate activities ‘of railroad: ‘companies. We

refer to some of those cases elséwhere, However, we shall

, refer toa few of them here to illustrate our point.

The power of Congress is supreme, in the following

Cases :

When state authorities seek to compel ‘the erection of

‘a union state so expensive as to deplete the financial. re-

sources of the railroad, Railroad Commission v. South. Pac. -

. Co., 264.U. 8. 331; when a railroad seeks to construct an

intrastate branch line which will deplete its own financial

_ resources or those of another interstate carrier, Texas ¢

Pac. Ry. Co. v. Gulf etc. Ry. Co., 270 U. S. 266; the issuance

of securities by a railroad company, Venner v. Michigan :

Cent. R. RB. Co., 271 U. S. 127. . .

Tn all of a cases the aire instrumentality over

which the control of Congress was exercised was but a unit

in an interstate system; and the unit was. under. the control

or ownership of the interstate system.

No case has ever been brought. to our attention where

an instrumentality or commerce not owned or ‘controlled by

one engaged in interstate commerce has been held to be an

instrumentality of interstate commerce. The ae in

the case of state-owned Aoads is strikingly simfar to that

of the bridge cases just referred to. It is unlike that of the

railroad cases, .

The case of a state-owned. railroad is to a sharply

ae. Such a, railroad if engaged in interstate

commerce is subject to control by Congress. (U.S. v. Cali-—

fornia, 297 U. 8. 175. ) In that case the railroad had track

connections with an interstate line and linked that and three

other interstate Jines y=. yards in San Francisco. It

hauled freight and cars offered it by railroads, steamship s

companies and industrial plants for a flat charge per car.

It is important to note that the railroad was engaged i in the

- business of hauling freight -_ interstate Hines. ;

VO.

. In so far as interstate commerce is concerned, there is

no analogy between the states in the ownership of their

roads and railroad companies and other commercial enter-

prises engaged in business of an interstate character.

No analogy is furnished in the case of governmental

regulation of public utility companies unless it can be said

- that. by building a road a state dedicates it’ for the use of .

the United States. That which gives the inherent power of °

government to regulate public utitlities is that a. public

utility company by devoting its ‘business to the public use,

grants the public an interest in that use to the extent of

that interest, and must submit to be controlled by the pub- |

' lic for the common good to the extent of the interest it has .

thus created. (Munn v. Illinois, 94 U. S. 113-126; Wolff

v. Industrial Court, 262 U. 8. 522-535.) In the case of one

who seeks to engage in an interstate business, he must sub-

mit-to the power of Congress under the Commerce Clause

to regulate interstate business so that no analogy is fur-

nished there. Submitting to the control of Congress over

interstate commerce is a prerequisite to the right to en-

gage in an interstate business.

The interstate railroad company or the manufacturer

who ships his goods in interstate commerce must submit

to the control of Congress as the price for the privilege of

engaging in interstate commerce. Cases of this Court upon

. . the subject matter of those two groups clearly have no

application to the right of a state not engaged in inter-

state commerce to insist upon the right to say how it shall

preserve its property. The business of operating a rail-

road and all of its ramifications are so clearly subjects of

interstate commerce within the sphere of Congressional

action that but little comment need be required to distin-

guish such a situation from that of state owned roads. The

railroad is a public utility, It dedicates its property to the |

non. service and to the control of Congress in engaging

in the business of interstate commerce. It is a corporation

organized for pecuniary profit. Its roadbed may extend

from state to state. Its primary object is for the carrying

on of. commerce intrastate and interstate. Tt ‘ships goods

and carries passengers. The state is not a public utility.

. It does not dedicate its property to the use of Congress.

It.does not engage in the business of interstate commerce.

It does not ship goods or carry passengers froth state to

state. It does not engage in private commercial enterprise.

Its roads are held in its sovereign capacity. Its roads are .

not designed for the purpose of carrying on interstate

commerce by the state. The mere fact that one engaged

in interstate commerce may have the privilege of using

the property of one not engaged in interstate commerce -~

does not subject the property of the latter to the control

‘of Congress. However beneficial property may be to inter-

state com: ierce, Congress can acquire no jurisdiction over

commerce. This is especially true when the owner of the °

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68.

property i 1s. one of the states and is not in the business of

engaging in commercial intercourse with its sistér states.

That which gives Congress jurisdiction to permit the

abandonment of an ‘unprofitable intrastate railroad over

‘ the protest’ of the state in which it is located. is that it is

operated as a branch of a road which is engaged in inter-

state commerce and its unremunerative uperation might

impair the main line as an artery of interstate ‘commerce.

(Colorado v. U. S., 271 U. 8. 153.) Not long before the

decision of the court in the case just cited, this Court re- -

~ fused to permit the Interstate Commerce Commissiga. to

- authorize the abandonment of a Texas railroad upon the

protest of the Attorney General of that State. (Texas v.

‘Eastern Texas R. R. Co., 203 U.&. 204.) In that case the

* road was owned and operated by a Téxas corporation. It

was an intrastate road and did not itself engage in inter-

state commerce, although interstate roads used its track.

In the Colorado case the Court distinguished the Texas

case and said of it (p. 169): ‘‘There the railroad was per-

“mitted to be relieved only from. continuing operations in -

interstate commerce. It was being operated independently

and not as a branch of any railroad engaged in interstate

commeree.’’ In the Texas case the Attorney General chal-

lenged the constitutionality of the power of the Commission

‘to invade the field of intrastate commerce by permitting

* guch an abandonment. The Court stated that while such a

challenge provoked a serious constitutional question, it

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was not necessary to pass upon it for the reason that the ‘

Interstate Commerce Act gave no jurisdiction to the Com-

mission to permit ‘such an abandonment. While itis true

that in the Texas case the court did not pass upon the con-

. stitutionality of the power of Congress to permit the aban-

donment of an intrastate line, merely remarking that the

question was a. serious one, the Court made the following

statement which we. think is, quite significant (p. 216):

‘“The road lies entirely within a single state, is owned by

a corporation of that state, and is not a part of another ,

line. Its continued operation solely in intrastate commerce

cannot be of more than local concern. It is not as if the .

road were @ branch or ‘extension whose unremunerative |

operation would or might burden. or cripple the main line ~

and thereby affect its utility or service as an sed of in-

terstate: ‘and foreign commerce.’ |

Although the Court did not in either « case pass upon

the power of Congress to invade the field of state power

by permitting the abandonment of an intrastate railroad

not a part of a railroad system engaged i in interstate com-

merce, i it is important to observe that the basis of the deci-

ay sion of the Court i in the Colorado case was that the intra--

state line was a part of a road which was actually engaged

in interstate commerce and that the continuance of its oper-

_ ation would directly affect the interstate operations of the

| interstate system. We contend that this is the basis, and

the only basis, . which gives Congressional power over the:

sondinanmon of railroad eee and — facilities.

70 e . “

If it is necessary that railrodd affairs of an intrastate

nature must hafe such a direct and substantial bearing

‘upon an interstate system as would seriously impair the

operations of the interstate business of the road before

Congress can have jurisdiction, /then how can it be said

that a sovereign state, not engaged in interstate commerce,

must submit its roads to the control of Congress for the

only reason that persons engaged in private commercial

| enterprise in which the state has no interest, may avail -

themselves of the privilege of using its roads?

$ IX. , ‘

The control of Congress over navigation affords no

analogy to the situation in the case at bar.

, In the case of damages suffered by the owners of beds

and shores of navigable waters resulting from ‘govern-

to require that compensation be made and has held that

the Fifth Amendment has no application. (Gibson v. U. S.,

166 U. S. 269; Scranton v. Wheeler, 179 U.S. 141.) These

cases and others upon the same subject were fully dis- -

cussed. in the case of Greenleaf Lumber.Co. v.. Garrison,

237 U. S. 251. The comments made by the court in that

| case make it manifest that those cases have no application

to the case at bar for the reason that, as the court expressed _

it, (p. 259) ‘“All navigable waters are under the ‘control

of ‘the United States for the purpose of regulating and

improving navigation, and although the title to the shore

and the submerged soil is in the various states and in-

dividual owners-under them, it is always subject to the

servitude in respect to navigation created in favor of the

Federal governnient by the Constitution.”’

- No such situation is present in the case at bar for

the reason that artificial structures, such as. roads, have

beeri built upon land owned by the states without being

subject to the servitude of the Federal government which

was the condition. imposed upon all navigable waters when

the states were admitted to the Union. Title to the navig- .

able waters passed from the United States to the States

at that time subject to the servitude.

The Greenleaf Lumber Co. case comments upon -gub-

stantially all of the cases decided by the Supreme Court

prior to that time in which it had been held that the Fifth -

Amendment gave no protection to a property owner. It

is to be observed that all of the cases reviewed by the court

in the Greenleaf Lumber Co. case were bottomed upon the

theory that a property owner can acquire no interest in a

‘navigable waterway which is not subject to the servitude

of the Federal government to make improvements in aid

of navigation. We are familiar with no other line of cases,

_ either before or after the Greenleaf Lumber Co. case, which —

justify the United States in taking property without mak-

‘ing just cotnpensation. We are confident there are none.

The: jurisdiction of Congress over navigable waters

_ is sui generis. Their very nature subjects them to the con-

‘trol of Congress. The term ‘commerce’? includes naviga-

tion. The grant of power to Congress is to regulate naviga-

tion per se; and it is the right to regulate navigation that

accounts for the. plenary power of Congress over all

navigable waterways.. This was tersely expressed in the

'. ease of Gilman v. Philadelphia, 3 Wallace 713-724, where

it is said, ‘Commerce includes navigation. The power to

regulate commerce comprehends the control for: that pur-

pose, of all the navigable waters of the United States which —

"are accessible from a State other-than those in which they

be. For this purpose they are the public property of the

nation, and subject to all the requisite legislation by Con-

: gress.’” In the. historic case. ‘of Gibbons v. Ogden, 9

Wheaton 1, Chief Justice Marshall said, (p. 190), ‘All

America understands and “has uniformly understood the

word ‘commerce’ to comprehend navigation. — * The

_ power ‘over commerce, including navigation, was one of

‘the primary objects for which the people of America

adopted their government, and must have been contem-

plated when forming it.’’ Since Gikbons v. — there

has been no doubt but that the poyer. of Congress over

‘ navigable streams is within the special province of Con-

" gress sa from the fact that navigation. is commerce.

We have already. stated that the power to regulate naviga-

tion was retained by Congress when the states were ad-

mitted to the Union. In the case of the thirteen original

states this power was surrendered by them to the United |

States when the constitution was adopted. (Shively v.

' Bowlby, 152 U. 8.1.) In the case of Railroad Company-v.

- Maryland, 88 U. 8. 456-470, the court stated that while

Congress had power to regulate and control navigable

waterways, such power does not extend to artificial means

of travel, such as roads built and maintained by the Stafes.

All navigable waters are subject to the servitude of

- Congress to control navigation. State roads are subject

_- to no such servitude. -

; 4

: ‘The previous decisions of this Court touching upon

. state regulations of roads do not sustain the power of

Congress to remove from the states the right to conserve

their roads. — ites

All of — decisions may be generally dantiiel in

three groups, viz

(1) Cases involving motor vehicle taxes, which is by

far the largest group.

- (2) Cases involving the validity rene of

— and dimensions.

. ” Cases involving the right of a motor vehicle ope-

rator to engage in interstate commerce.

So far, but two cases which have had the attention of

this court have dealt directly with the power of the States

to regulate the weights and. dimensions of motor vehicles,

Morris v. Duby, 274 U. 8. 135 and. Sproles v. Binford, 286

U. S. 374. In both cases the validit} of the state statutes

was upheld. In neither of those cases did'the court say that

‘Congress might regulate the use of state Toads without

exercising the power of eminent domain. While: “it, is true

that i in both opinions the court made the general statement

that in thé absence of national legislation the States may

prescribe uniform regulations for motor vehicles and such

statement might connote that Congress has power to de-

feat state power in this respect, yet an analysis of those

cases does not sustain such a construction. a |

Congress might conceivably fix the weights and dimen-

‘sions of vehicles engaged in interstate commerce, so long

as such weights and dimensions would be within the limits

allowed by the particular states. For example, assume that .

the weight limits of a particular state would be 20,000 —

pounds per vehicle. Congress might consider that the busi-

ness of interstate commerce would be facilitated by the

use of light weight commercial vehicles and might forbid

the use of vehicles in interstate commerce weighing more

gress, having entered the field, its jurisdiction would be

exclusive up to.the goint of the limit fixed by the State.

One could not en in interstate commerce by motor

_ vehicle without complying with the limits fixed by Congress.

~ than 10,000 pounds, or any other weight up to 20,000. Con- .

Beyond that point, Congress would bé substituting its -

judgment as to what might be a reasonable limit to conserve

_ the highways for that of the State. Below. the limit of

20,000 pounds the regulation of Congress would not trench

upon the power of the State to protect its property. The

_ State could not permit a vehicle having a weight of 20,000 _

' pounds to engage in interstate commerce, if the limit fixed

by Congress were 10,000 pounds.. That and no more was |

intended by the court in Sproles v. Binford, and M orris Vv.

- Duby, when it said that in the absence of national legisla-

tion the States may prescribe uniform regulations appli-

cable alike to vehicles moving in interstate commerce and : |

those of its own citizens.

The phrase used. in the Sproles and Morris cases con-

cerning the power of the States to regulate motor vehicles

in the absence of national legislation has been frequently

employed by the court in motor vehicle cases during. the

- last twenty or more years. It had its origin: in the case of

Hendrick v. Maryland, 235 U. S. 610. We maintain that

the oft repeated use of such phrase is never amouiited to

a ruling by this court that Congress Sage invade the field _

of State power to regulate the conservation and safety of .

use of State property for the following reasons:

(1) Hendrick v. Maryland was a-motor vehicle tax

case. It involved the power of Maryland to exact registra- i

tion and license fees from the owners of motor vehicles.

There was no issue in the ease about the power of the -

State to regulate the weights and dimensions of motor

vehicles. In sustaining the power of Maryland to require

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the registration of drivers and the payment of Ifcense fees

the court made the abstract statement that in the absence

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lations for public safety and order in respect'to the opera-

egislation, a state may prescribe unifornfyegu- *

tion of motor vehicles and to that end might require the —

registration of drivers and payment of license fees. There

was nothing said in that case, and the fourt did not pass

. upon the power of the State to conserve its property. The

demarks of the court were directed solely to the extent to

‘ which the State might go in regulating the business of inter-

state commerce. The Commerce Clause prevents a State

from taxing interstate commerce or. burdening interstate -

commerce with taxes. And this applies eqtially to motor .

vehicle taxes as well as other forms of state taxes. It is

manifest that what the court said in the Hendrick case

lations of drivers and the “i of motor vehicle taxes

was limited solely to the issue’in that case and was not in-

. tended to include anything about the conservation = state

—

_ about the application of the Commerce Clause to state regu-

, (2) The decisions of this court cited in the Hendrick

case were those sustaining the power of a State to enact

reasonable police regulations. Most of them, such as Smith

v. Alabama, 124 U. S. 465, deal with the police power of a

State over railroad companies. N owhere in. the opinion

did the court fefer to Geer v. Connecticut, 161 U. S. 519, or

. any of the other casés sustaining the inherent power of a

State to protect its property. That would seem to make

-77

it-very clear that the remarks of the court were limited to

. the power of Congress to limit the business of _interstate

ecommerce. . > ¥

It is important to note that in Morris v. Duby, after

the Court cited Hendrick v. Maryland in support of the

. power of a state to regulate in the absence of national

legislation, (p. 143) the Court préceeded at, pp. 144-145 to

say: ‘‘Conserving limstation is something ‘that must rest

with the road supervising authorities of the state, not only

on the general constitutional distinction between national

and state powers, but also for the additional reason that

under convention between the United States and the state, |

mM respect of these jointly aided roads, the maintenance

after scabies is primarily imposed on the State. ” We

submit that the statement just quoted makes it plain that

in the opinion of the Court the power of a state.to conserve

its property is inherent. And that all that was intended

by the citation of Hendrick v. M aryland was that the states _

may not regulate the business of interstate commerce by

imposing burdensome taxes and the like or by permitting

the use of motor vehicles engaged in interstate commerce

having weights and dimensions exceeding those forbidden

by Federal regulations. Any other construction of the

opinion of the Court would result in an irreconcilable con-

flict within the opinion. Sproles v. Binford, while citing

Hendrick v. Maryland, as we have already dinesiok makes

— no statement in derogation of state power to conserve state

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property. Sproles v. Binford cites Morris v. Duby, -which

latter case, we maintain, is strong authority to sustain the

state power. ae

What gives” jurisdiction to a Federal Court in cases

' involving the validity of state motor vehicle taxes is that

a state has no power to burden the business of interstate

commerce. The question of the power of the states to pro-

. tect and conserve their property does not enter into those

caeen. In such cases as Inf@rstate Transit, Inc., v. Lindsey,

583 U. S. 183, and Sprout v. South Bend, 277 U. S. 163,

—_— vehicle pe a were held invalid for the reason that

the taxes imposed were not of a. compensatory nature, but

“were. taxes upon the privilege of engaging in- the business

of interstate commerce. Hence they amounted to a regula- ,

. tion of the business of interstate commerce and were in-

“valid for that reason. It may be safely said that wherever

this Court has held a motor vehicle, tax invalid it has been

upon the grounds that the tax was one upon the privilege

of engaging in interstate commerce.

Carrying the thought still further, support for our |

, position is found in the case of Buck v. Kuykendall, 267

U.S. 307. There the Directér of Public Works of the State

-of Washington, acting under a statute of that state, refused

to issue a certificate of convenience and necessity to the

operator of an interstate auto stage line. In holding the

statute unconstitutional, this Court said (pp. 315-316) : ‘Its

- primary purpose is not regulation with a view to saftey

‘ or conservation of the highways, but the progjbition of

competition. It determines not the manner of use, but the

persons by whom the highways may be used.* It prohibits.

such use to some persons while permitting it to others for

the same purpose and in the same manner. * * * hus,

the provision of the Washington statute is a regulatian,

not of the use of. its own highways, but of intérstate com-

merce.’’ In a more recent case, Bradley v. Public Utilities

Commission, 289 U. S. 92, Bradley, who was an interstate

operator, .had been denied a certificate of convenience and

necessity by the Public Utilities Commission: of Ohio upon =

. the grounds that the route selected by him was already too

| congested with traffic. | In upholding the action of the Com- |

‘mission, this Court distinguished the Buck case by pointing

out, that in that case, safety of operation was merely an

incident of: the denial of the certificate ; that its purpose

- was to prevent competition. But that in the Bradley case

the denial of the certificate was primarily in the interest

of safety and its. effect upon interstate commerce wag

merely an incident..

Underlying all of the cases upon the subject of motor

'.. vehicle use of state roads is the liberal policy of this Court’

im giving the police powers of the states as wide a latitude

dis possible but at the same time preventing. any interfer-

ence upon the part of the states in the regulation of the

’ business of interstate commerce. The cases involve a mul-

’ titude of different . types of statutes, facts and cireum-

e stances. Each case presents a different faétual problem. .

But the one yardstick by which afl are measured is whether

or not there has been an unreasonable interference with

the business of interstate commerce. In none of them was

anything said which might subtract from state power to

regulate the use of state property or that Congress might

do so without following the Fifth Amendment.

We think that Congress has full authority to. regulate

the business of interstate commerce by fixing the rates of

motor carriers, providing for uniform systems of accounts,

regulating the hours of service of drivers and all other

matters touching. upon the business of interstate commerce

by motor vehicle. All those matters are regulations of the

business of interstate commerce. But béyond that point,

permitting Congress to enter into the field of determining

fexshe states what type of vehicle would or would not be

ruinous to its roads; substituting its judgment in the mat-

ter of conservation of state property for that of the owner; |

and taking control of such conservation away from the

owner would constitute an unlawful exercise of the power of

eminent domain. Se .

There is not a syllable contained in any of the deci-

-sions of this Court which would even hint that the Com-

merce Clause gives Congress such unlimited powers. We

repeat that statements found in these opinions to. the effect

that the states are free to act until Congress enters the field

mean no more than that in matters affecting the business

of interstate commerce the states are free to act so long

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_ with the facilities necessary to a proper performance of

81 » Rae . , : : a

as their regulations are reasonabie. N othing more was

intended.

State power to control the manner of use of state roads

has not been surrendered by the states to Congress by the _ ?

acceptance of the benefits of the Federal Highway Acts.

An excerpt from the report of the House Committee -

on Roads of January 6, 1916 is quite pertinent. It is as

follows: - : .

‘FEDERAL PARTICIPATION ”’ is

‘“‘Roads are local concerns, and primarily it is the

duty of the States to provide them for their people.

‘To. earty and deliver the mail is a function of the

Federal Government, and it is its duty to provide itself .

this function, such as postmasters, post-offices and post-

roads. A post-road is just as truly a postal facility as is

. -& post-office. As in most rural communities it has been Ks |

found less expensive gnd more expedient to rent post-offices

than to build them, so it would be less expensive and more

expedient to use the roads of the States as post-roads than: .

it would to construct and maintain an independent system. —

In such case it would seem but just that the General Gov- ~

. ernment should make some contrihutien to thé construction

and maintenance of the roads which it thus uses.

Nae

In times past when the volume and weight of postal.

matter were negligible the interest of the General Govern- —

ment i in the ‘condition of the roads was not substantial, but |

‘with ‘the advent of rural free delivery came a Federal ,

necessity for better roads, and with the now ‘rapidly eX-

panding parcel post that necessity has become acute.

JURISDICTION OVER ROADS.

Primarily roads are local concerns and jurisdiction

_over them belongs to the States and, local authorities. This

jurisdiction should never be dstyshed by the General Gov-

ernment.’’

House Reports, 64th Congress, 1st Session, 1915-1916,

Vol. I, Miscellaneous I, page 4. : .

The following is taken from the report of the Joint

_ Committee on Federal Aid in the+ Construction of Post

Roads, House PCGiments No. 99, (63rd Congress, ard

Session:

“That. Congress should avoid criticism of the

- character above'mentioned is no more important than

istration of the. Federal highway participation as will

rotect the several states in their right to control their

ocal highway affairs and guard against dictatorship

from a Federal Bureau in Washington.’’ (pp. 22-23.)

- “The foregoing makes it plain that in 1916, when the

first of the two highway acts was passed by Congress, there

should be compelled to surrender their aoreredanty | in ex- |

cl i a ¥ r 2 RL eT SER er aren ot ae

change for the appropriations to be made by the central

government. The Federal HighwaY Act of 1921 is only |

Ieasddivesy of the 1916 Act and makes no substantial

changes in the earlier Act. The House Committee stated,

in its: ‘report. in substance, that since it had’ been less ex-

pensive for the government to use the exigting toads of

the states for fhe purpose of post roads than to build an

_ indspendent system, it would be just for the government-

to return the obligation to the states by making some con-

tribution fo the states covering the cost of maintenance and

construction; But that in accegting contributions, the jur-

isdiction. of theetates verge. would not and should

not be disturbed. -

While it is true that reports of legislative committees

cannot be resorted to for the purpose of construing a

statute contrary to natural import (U, S. v. Shreveport

Grain and Elevator Co., 287 U. S. 77-83), yet, if the mean- ’-

ing of a statute be uncertain, the court is at liberty to have

recourse to its legislative history and the statements of

those in charge of it during its consideration by Congress

for the purpose of ascertaining the intent of the legisla-

tive body (U. 8. v. Great Northern Ry. Co., 287 U.S. 144-

454.) There is no direct language in either highway act

providing for the extension of Federal power to state roads. -

It is our position that if the court should consider the in- |

* “teation of Congress uncertain, all doubt about the construc- f ‘|

tion of the statute as to state power, if there be any, is a

expunged by reference to the Congressional authorities

just cited. ' -

In the case of Morris v. Duby, supra, the court re-

viewed the three Federal Highway Acts quite extensively

(pp. 140, 141) and reached the conclusion (p. 144) that

_ ,, there was nothing in the legislation of either the State of

Oregon or of Congress to bind the State to continue the

weight limits in force in Oregon prior to the acceptance

of the Federal legislation by Oregon. In concluding, the

court said (p. 145), ‘Regulations ‘as to the method of use,

therefore, necessarily remains with the State and cannot

be interfered with unless the regulation is so arbitrary and

unreasonable as to defeat the useful purposes for which

Congress has made its large contribution to bettering the

highway systems of the Union and to — the carry-

ing of the mails over them.’’

It is important to observe that immediately preced-

the statement fist quoted, the court had stated that

conserving limitation was. something that must rest with

the State upon the constitutional distinction between na-

tional and state powers. What then did the court mean by

‘saying next that state regulations must not be so arbitrary

and unreasonuble as to defeat the useful purpose for which

Congress has made its appropriations? The Federal High-

Tag Act of 1921 is entitled ‘‘An-Act to amend the Act

entitled ‘An Act to provide that the United States shall

aid the States im the construction of rural post roads, and

- for other purposes’ approved July ‘11, 1916 as amended .

and supplemented, and for other purposes.’’ (See. 1. U. S.

Code Anno, Title 23.) The only substantial limitation’ in

the use of the highways placed upon the States by the Act

of 1921 also found in the 1916 Act was that ‘‘ All highways

-- eonstructed or reconstructed under the provisions of this

- chapter shall be free from tolls of all kinds:”? (Sec. 9—

Title 23, U. S. Code Anno.) None of ‘the amendments to the

Act subsequent to the year 1921. place any further limita-

tions upon the States, save Section 9-B (U. S. Code Anno.

Supflement) which permits the charging of tolls upon

Sta wned 5 bridges only until such time as the cost _

of rec$nit pn shal] have been paid.

. "When the title of of the Act and the li limitations just refer-

red to are considered together, it is apparent that the use-

ful purpose for which Congress appropriated funds was to

aid\the States in the construction (by the states, not by

Congress) of roads which might be used as rural post roads

by the former, ca from tolls. Amy other construction of

what wag the purpose of.the Act and how far the States

are bound by it must rest in implication ; anid sovereign»

powers of ~ States are not ‘surrendered by i cation.

This ‘court in Wheeling and Belmont Bridge Co. v.

Wheeling Bridge Co., 138 U. 8. 287-293, ‘An alleged sur- ~

. render or suspension of a power of government respecting

any matter of public concern must be shown by clear ‘and

unequivocal language ; it cannot be inferred from any in-

hibitions upon particular officers, or special tribunals, or

from any doubtful or uncertain expressions.”

It.must be remembered that, with a few notable his-

- torical exceptions, the United States has never built post

roads. Roads built by the states have been designated by

Congress as post roads and post routes by the Acts of

Congress of 1872’and 1884. (Secs. 481-482, Title 39, U. S.

Code Anno.) In recent years Congress has contributed

funds to aid the states in post road construction ; but the

contribution made is negligible by comparison with the total

local investntent in city streets, county roads and rural

aiaee | . -

If, as the court saldy conserving limitation, must rest

with the states, then if -w construe the — of. the

opinion to mean that Congres may say’ what limitation

may be placed. upon the manner of use of the roads in order

to prevent the defeat of the useful purpose for whiah Con-

gress made its contribution, it ‘would follow that the first

‘part of the court’s stdtement (concerning the power of con-

serving limitation being in the states) would be rendered

meaningless. How could conserving limitation~rest in ‘the

states if Congress could say what in its judgment would be

such a limitation as to defeat the purpose for which it

made its contribution? ‘We believe that the court intended

this and no more, viz: (1) The States cannot employ any

indirect methods or bterfuge to exact tolls for the use of

the roads. (2) The States cannot by arbitrary or capri-

cious action so burden the use of the roads as to interfere

_ ane use e for os purpose - carrying the mails.

4s - 87

The States might not by arbitrary regulation prevent

vehicles carrying the mails fro dering efficient service. .

In other words, this court ae a.state statute

regulating the weights and dimensions of motor vehicles,

' as applied to vehicles car ying the mails; is so lacking in

any reasonable basis as to defeat the useful ,purpose for

which Congress made its contribution. By’ accepting the.

benefits of the contributions by Congress, the ‘States may

have agreed not-to burden the use of roads by vehicles

carrying the mails; but they did not agree to let Congress.

say what regulations might be reasonable. They did not

agree to give Congress further power under the Commerce

Clause. This court may prevent the States from violating

_ their pacts with Congress by enacting legislation which,

when applied to vehicles carrying the mails, is unreasonable ~

-and arbitrary. Such power is in this court because it has |

_ the right to prevent a State from violating its agreement

with Congress; but not bécause the State has delegated

to Congress the power to regulate. That power was not

surrendered to Congress by the States. This court said so

in Morris v. Duby. Permit us to again repeat the language :

of the court. ‘‘An examination ef the Acts of Congress

disclosed. no. provision, express or implied, by. which there

is withheld from the State its ordinary police power to

conserve the highways- Conserying limitation is

something that must rest with the road supervising authori-. .

ties of the State.’’

o :

Finally, the application of canon of statutory -construc-

tion, expressio unius, should remove any doubts about

holding against the retention of state authority. By ex-

pressing the particular conditions set forth in the Highway

Acts, Congress limited‘the obligation of the States to those

limitations. By accepting the benefits of the Acts, the

States had the right to expect that no other — con-

ditions might be added by implication.

Respectfully submitted,

Orro KeERNER,

Attorney General of the

State of Illinois,

Amicus CURIAE.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.