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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1938
- **Citation:** 303 U.S. 177

## Text

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FILE -COPY 4

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

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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

12

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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

15

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

iv
. —_
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.
rT

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

ee

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

g

| 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
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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.

r

+
' 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 ©

8

: 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).

a

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 :

7

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

ll

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
et
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

13

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.

e ~- ; . - ~ to , maestey a
‘ —_ 4 ‘ Ss ibe, AES etl ORB ay TORRE IR aS O Be Fs Latte Pe AIS SET SR SE whee a eke A ed fey
? Sa peg NOS St. Bee te ER FOAL W EER My PRL NS SA I RCN SS SS . ‘i Rn A eh ag

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.

—

BO SiS eerie Bec PN ia og os
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Se ES ee ce el See Pd eR eee

TX,

‘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 ‘ aed . = = . ‘

ha 3 ; ; . 16 ~

5 f

ag ARGUMENT.

> . : I. .

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.

A

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’ ~

a a ee on - — — — olin
. ee te woe eieelieiadinteninata anaemia ie iit ss

Pos

fy
:
ao

20

‘ 6 : -_9 :
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. —

1.

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- ».
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-

23

_ 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 |

Se CEE
HST SSS

6 .

.
‘ «
ue + PE NCES HEY GTR Ate Se N SE HD te IR Re GR IMLS ES eB Sa RM tS OS aR RE OG "ee : hts
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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
aed Sat ea Seat ee | ‘ eg

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

6

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

é

: 6. .

26
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-

~

fo

»

‘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

.
dl

‘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

es

- 6 \
¢ : : \

29

& 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

Mv
» %

30

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

7

@-

£
Uy
rg
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

a

The power of the States to regulate their purely in-
ternal affairs has never been surrendered to Congress.

4

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
ae Oe

. ‘
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 ?
ae eS 2 v t
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, -

bd

—— : - — _- ~
.
Be ee a ie
e

* Keg Seny Wop DRIEST Ge os De

C

38

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

ae

-

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 ~ — :

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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

8

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 -

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,
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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

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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

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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 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

a

* 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

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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: ‘
rent power in two distinct sovereignties to ‘regulate the ©
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.

6s
' 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

4
“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

td

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

co

65
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

a

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
received and transported freight by its: own engines, and ©
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

67

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

_it if the owner does not engage in the business of interstate ©
commerce. This is especially true when the owner of the °

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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-
mental works in and of navigation, this court has refused ©
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

71

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-

72

‘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 |

73

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,

14

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

75

_ 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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76

the registration of drivers and the payment of Ifcense fees
the court made the abstract statement that in the absence
of ae 2

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

79

‘ 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
(oo 2 ; a
6

a ————— ' a

_ 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.

4

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2

82

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

that it should make careful provision for such admin- ©

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

was no intention upon the part of Congress that the states ©
should be compelled to surrender their aoreredanty | in ex- |

cl i a ¥ r 2 RL eT SER er aren ot ae

4

i

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

6.

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.”

9

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 :

88

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0281%3A07. Public record. Not legal advice.