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

Supreme Court brief1938

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Text

IN THE -

- foupcem Court of the United States

OCTOBER TeRM, 1937.

No. 161.

im Canotama PUBLIC SERVICE COMMISSION, ET AL.,

£ A ppellants,

‘BARNWELL BrorHenrs, INc., PooLe TRANSPORTATION,

Inc., Horton Moror ‘Lies, INC., ET AL.,

A ppéllees.

‘MOTION OF THE STATE OF FLORIDA FOR LEAVE

TO FILE BRIEF AS AMICUS CURIAE.

\. THE STATE OF FLORIDA, by the undersigned,

~ its Attorney General, respectfully moves this Honor-

\-able Court for leave to file in this case, as amicus curiae,

-the accompanying brief in support of the decree of the

District Court.

' The grounds for this motion, fully discussed hereafter

in the Preface to the brief, are:

First, the academic interest of the State of Florida in

_ the affirmance of a-decree which preserves those guar-

antees of the Commerce Clause of the Constitution of

the United States which are essential to the welfare of

each State and the Nation 4s a whole, and:

. ‘of Florida in the affirmance of a decree which is now in

> fact protecting the public and private interests of her

people from grave injury.

Cary D. LaAnpIs, :

Attorney General of Florida.

}

\SoutH CaroLtina State Highway DEPARTMENT, SovTH .

Second, the real.and immediate interest of the State -

- INDEX.

Motion of the Stati of Florida for Leave to File Brief

Ee rors hry oar ee an

Preface’ to the Brief .....:.... ~ ener sete eee | at

Statement of the Interest of the State of Florida i in me

Issues of This Case ...... Va bens PccGbeeuvenda

The Interest of the State of Florida in the National

System of Interstate Highways ........./.......

- The Interest’ of theState of Florida and Its People in

* the Successful Administration of the Purposes and

Policies of the Congress of the United States as

Expressed and Embo@ed i in Part II of the Inter- °

State Commerce Act (Motor Carrier Act, .1935)..

Undisputed and Unchallenged Findings of Fact by the

; District Court Make it Inewitable that the Enforce-

_ ment of the South Carolina Regulations Will De-

feat the Purposes and Subvert the Policies of the

Motor Carrier Actas Administered~in the South-

eastern Section of the United States............

‘The State of. Florida’ Foresees, in the Enforcement of .

‘Supgecr-Lnvex. . _. -Page

10°

the South Carolina Regulations,:the Perpetuation _

of the Interterritorial Freight’. Rate Boundary

‘Which Has for Many Years Constituted a Barrier

— the Free Flow of crema From the

OUR 6 6 oa sasineahaxsigeaguageeas sis eve eeeres

The District Court Has Found pon Adequate Evi-

dence that tue Burden Upon Interstate Commerce.

Resulting from the Enforcement of the South Car-

olina — will be Arbitrarily and Need-

lessly Imposed . anus eae eee ee ee eee ee ees

ol Brief for State of Florida as Atticus Curiae. VE iw as

Argument:

The District Court, Having 3 Found that the South Caro-. .

line Regulations Will Impose a Drastic Burden on

‘Interstate Commerce and that They Exceed the

“: Reasonable Necessity for Their Hxercise, Cor-

Bee

Index Continued.

Page

rectly Held that Their Enforcement Will Consti-

tute a Regulation of Interstate Commerce in the

Constitutional Sense and. Thus Will Contravene -

Article I, Section 8, Clause 3 of the Constitution

; Or ee I EE cg vv kes ace k knee beaseces 31

GENERAL PUBLICATIONS CITED.

Address of David A. Lillienthal, Director, Tennessee

Valley Authority, before Institute of Public Affairs

of University of Georgia,’ Athens, Ga., Oct. 29,

FE SE eer ep eee ee eee 26

“Bureau ofuablic Roads and Its Work,’’ revised June

30, 1930, Thomas H. McDonald ................ 46

First Report of Coordinator of Transportation, Sen.

Dock. 119, 73rd Cong. 2d Sess.; 1934 ............ 26

Georgetown Law Journal, Vol. 24, "No. 2, p. 424, Jan.

OS ia eis cu einn cxtinneess 15

. Government Activities in ‘the Field of Transportation,

Report No. 12 of Select Committee to Investigate

Executive —S, of the Government’ pursuant

to Sek. Res.

Motor Trucking For Hire, Census of Business, 1935,

‘Bureau of the Census, p. 40.0... cee eens 7

Regulation ‘of er ee Agencies, Sen. Dos. 152,

Tord, Comm, BE Beet, Be BO nv vncccnccvnsdesseeses 16

. Report of A Survey of Traffic in the State of Florida, —

U.S. Bureau of- Public Roads and State Road De-.

I IE WAS shaven ccncccaneescenes 7, 8,9

Report of Federal Coordinator of Transportation, 1934, -

p. 123, 74th “ig 1st Sess., House Doc, No. 89.. 15

Report of Special Committee, American Bar Assn., ‘

To Appraise Regulation of Motor Vehicles, Au-

DS Tere ene 4 RTT eT ee - 19

Survey—The Interterritorial Freight Rate Probiem of - |

the United States, 75th Cong. 1st Sess., House Doo. inn

Oe a eee eee ner ee re ee

Testimony, Thomas H. McDonald, Chief, U. S. Bureau.

of Public se before the . C. 6. Docket No..

BOD ooo Sates ccascdescvesteceneueccsesseses 11

ee.

oO.

0. 217 (74th Cong.) 1987, p.12.... lb >

Michigan Law Review, Vol. 38, No.2, Dec. 1! 4, p. 251 -.

Index Continued.

Page

Uniform Act Regulation Traffic « on : Highways, as re-

- vised and approved by Fourth National Confer-

ence on Street and Highway Safety, May 23-25,

a EARN 13 ihe A PAR et ee Is 1

CITATION OF CASES.

Baldwin v. G. A. F. Seelig, 294 U. S. 511........ 36, 44, 48

Bradley v. Pub: Util. Commn., 289 U. S. 92.......... 45

Buck v. Kuykendall, 267 U. S. 307..........--.----- 41°45

Cleveland, ete. Ry. Co, v. Illinois, 177 U. S. 514....0.. 35

Cohens v. Virginia, 6 Wheaton, NEN 40, 42, 50

Euclid v. Ambler, 272 U. S. (360. sae ee eee ee ee eee) $2

Ex Parte No. MQ-4, 1 M. C. C. 1-36....... Ne ad are 29

Foster Packing Co. v. Heydel, oS ee tee 38

Hahn Truck Line, Contract Carrier Appl>-1M. C. C.

Ba ee eas Oe Orta eee ee ee a ae tak 24

-Hendrick v. Maryland, 235 U. S. 610 .......... yaads 38

In Re Debs, 158 U. S. 564 .........:...:....... 0c. 48

Lake Shore & Mich. So. Ry. Co. v. Ohio, i73 U. S. 285 35

Minnesota Rate Cases, 930 J erry 34, 35

Morris v. Duby, 274 bE” Sie 14, 32, 40, 41, 44

Nashville, ete. R. Co: v. Walters, 294 U.S. 405...... 13, 44

Nebbia v. New York, 291 U. S. 502 .......... alee es 33

Pennsy}vénia v. West Virginia, 262 U. S. 553. itiudues 35, 50

Railroad v. Husemn, 95 U. B. 465 .........5....0/..... 35

Schlesinger v. Wisconsi Sg ee Seep pa 48

Seaboard Air Line Ry. v- Blackwell, 244 U. S. 310.... 36

South Covington, ete. Ry. Ca. v. Kentucky, 252 U.S. ,

RNR Ne ROE? BOR rare Sage yaaa ey Samareee )

S roles v. " Binford, 286 U. S. 374... .32, 36, 40, 41) 42, 47, 48

Weaver Vv. Palmer Bros. Co., 270 U.S. 402 cm -. 48

CITATION OF STATUTES.

Constitution, _

Commerce Clause, Art. I, Sec: 8, Clause 3../.26,14,31L, 2,

"34, 35, 47, 50.

Federal Highway Act, 1921, 42 Stat. L. 212....... 10, 11, 12°

Motor Carrier Act, 1935, Part II, Interstate Commerce

Act; Title 49 U. 8. C. 1, 49 Stat. L. 543. ....7, 14, 17, 29

-Seuth-Carolina Statute, Act No. 259, 1933, Approved

April 28, 1933 (38 St. at L. 340)........ 9, 10, 20, 21, 24,

5 |

PREFACE TO THE BRIEF,

Statement of the Interest of the State of Florida in the

~ , Issues of This Case.

The interest of the State of Florida in the issues now

drawn and soon to be orally debated at the bar of this

Court, is not merely academic; does not spring alone

from her desire that the precedents established and the

opinions published by this Court-continue to preserve

to the States and their peoples the guarantees of the

Commerce Clause of the Constitution of the United ~*

States. This State is also vitally and immediately con-

cerned in the preservation and continuation of the pro- —

tection now actually afforded by the District Court’s

decree to the public and private interests of her people.

The interests of the State of Florida are reflected in

the findings and opinion of the District Court:

‘‘Within the-past decade there has been a great =

development of interstate commerce by truck, and .

a corresponding change and development of indus-

try in the Southeastern part of the United States

_ based upon truck transportation. The market gar-

dening industry, the textile industry, the fertilizer

industry, and many others have changed im large

part their method of doing business as a result of

the facilities afforded them by the use of trucks in

- interstate commerce... .

‘<. _ . A large part of this interstate traffic, with

all that it means to the life of the people of the

Southeastern part of the United States, will be vir- .

tually barred from the highways of South Caro-

lina, and a barrier will be erected not merely

against the commerce of the State but also as

against the commerce of sister States (emphasis

added), if these restrictions are enforced (Opin-

ion, R. 65):. . . That the said standard paved

roads form. a well connected system of highways

2 .

which have been improved with federal funds as a

part of a national system; that they comprise the

best system of highways in the Southeastern part -

of the United States, and are capable of carrying

the commerce which has been developed by modern

truck transportation; that federal highways num-

bered 1, 15-A, 17, 21, 25, 29 and 52 comprise the -

great arteries of interstate commerce through the-

_— of South Carolina (Finding of Fact No. 18,

R. 81) . . . the great arteries of interstate com-

merce above referred to earry the larger part. of

interstate traffic moving to and from the State, as

well-as such traffic passing through the State to and

from Georgia and Florida and the States to the

North’’ (Opinion, R. 64) (Emphasis added).

The evidence below was primarily directed to a show-

ing of the burden which the enforcement of the South

Carolina regulations would have upon the industry,

commerce, and life of the people of South Carolina.

This evidence was uncontradicted and the findings of

the District Court were not excepted to by appellants.

But the extent to which this enforcement will affect the

industry, commerce, and life of the peoples of the sur-

rounding States is well within the judicial knowledge

of this Court.

The burden of the law will be so far reaching that it.

will affect all the States of the Union in varying degree ;

but a consideration of the geographical location of the

State of Florida makes it manifest that the burden of

the law will fall most heavily upon her people. The.

territorial expanse of South Carolina lies athwart the

trunk arteries of interstate commerce which parallel the

Atlantic Seaboard. There are no other land routes to

carry the commerce between the State of Florida and its

markets in the East.and North. A narrow passage at

> the point where the States of Georgia and North Caro-

lina are contiguous is free from artificial barrier at the

hands of men, but. is blocked by the hand of nature.

There is only one road through this gap, ‘‘a narrow -

road, full of short curves and mountain climbs which

make ita very hazardous highway for trucks of any size

_to travel €R. 216).”’

‘Some conception of the importane>. to the State of

- Florida of the motor transportation along the Atlantic

- Seaboard can be obtained from statisties of past years, »

although these do not reflect the advances in this com-

merce of recent years, especially that developed since

the regulation and_promotion of the motor carrier in-

dustry under the Motor Carrier Act. Thus it is dis-

closed by a census of motor trucking for hire, conducted ©

by the Bureau of the Census for the year 1935,’ that the

277 Florida concerns subjected to the census had a reve-

nue for the year of $3,455,000. While only 23, or 8 per

cent, of these concerns were primarily engaged in inter-

state commerce, their share of the annual revenue was -

$1,032,000, or 30 per cent, of the total. However, it was

recognized by this very study that private trucking con-

' stitutes the major part of all trucking operations in the

United States (page 1), and it must:be further observed

that a great majority of the trucks operating into and

out of the State of Florida are licensed in other States.

Thus the Report of a Survey of Traffic in the State of

Florida (for the year 1933-34) published by the United

States Bureau of Public Roads and the State Road De-

partment of Florida revealed (page 59) that Florida

. citrus fruit is carried principally by out-of-state regis-

vered vehicles. We quote, from that report (p. 59) :

? Motor Trucking For Hire, Census ot Business, 1935, . Bureau

ia of the Census, p. 40. | > nen

fe 1 EAT SRE SE Her = nore

-**More than 80 per cent of all trucks crossing the

. border and transporting citrus fruits are licensed -

in States other than Florida. This indicates the

_ eenters of ownership of the trucks are probably

- near the ultimate destination of the shipments, the

trucks often being sent to Florida empty to obtain

their loads and return. Likewise, garden produce

is transported predominantly by out-of-State ve-

hicles, to the extent of 71 per cent of all such trucks.

Miscellaneous and empty outgoing trucks have

nearly equal distribution of registrations between

Florida and out-of-State licenses, while 41 per cent

of-all outgoing trucks are registered in Florida and

59 per cent are of foretgn registry.”’

It was further found (Report, supra, pages 55-57)

that: | ,

‘During the year survey, 215,599 trucks crossed

the State line, outbound from Florida to adjoining

or distant States. Of this volume 31,590 trucks, or

14.7 per cent of the total, were carriers of citrus

fruit; 17,245 trucks, or 8 per cent, were carriers of

truck garden produce ; 86,039 miscellaneous trucks, ~

representing 39.9 per cent; and 80,725 empty

trucks, or 37.4 per cent of the total. . . . Other than

to Atlanta, Georgia, shipments of truck garden pro-

duce were principally consigned to northern cities,

with Washington, D. C., Baltimore, Maryland, and >

cities through Virginia, North Carolina, and Ten-

nessee the principal destinations.

‘On U. S41, there was recorded the greatest |

number of ontgoing trucks, not only in carriers of

- citrus fruit but also of garden produce. This route

joins the Florida producing areas with Atlanta, °

Georgia, Chattanooga, Tennessee, and the northern

States west of the Appalachian Mountains and car-

ries 32 per cent of the total 31,590 interstate citrus

fruit trucks. Of nearly equal importance is U. 8.

17, north from Jacksonville, over which there

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moved. 29 per cent of all interstate. citrus fruit

tryeks, This road, and U. S, 1, also north from

- Jacksonville, are the channéls for Florida’s pro-

duce to reach the large northeastern markets and

supply the communities along the Atlantic sea-

board. U.S. 1 carried 20 per cent of the outgoing

citrus fruit trucks. ss

“Of the 14245 annual ottguing garden produce

~ « tracks? 37 per cent moved-over U.S, 41; 32 per cent

over U.S: 17; and 18 per cent over U. 8. 1. The

miscellancous truck movement on these 3 routes in|

percentages of total outgoing miscellaneous trucks

is: U.S, 41,18 per cent; U.S. 17, 10 per cent; and

U.S. 1, 20 per cent, pespectively.

. ‘In combination, the abdéve 3 routes are Florida’s

ecommervial gateways of truck commerce, account-

ing for 81.8 per cent of all citrus fruit exports, by

‘truck, and 8&2 per cent of the total garden produce.

On these 3 routes, miscellaneous trucks amounted

to 43.2 per cent and — trucks, 38.8 per cent of

the total of each carried on the 12 principal State

roads crossing the Georgia and Alabama borders,”’

Figures 22 and 28 reproduced from this Report, illus-

trate the protection afforded but one important Florida

indystry by the decree of the District Court, 3

n page 59 of the Report it is-found that much of the

truck gartten produce “‘is transported in modern refrig-

erator trucks carrying perishables with as high a de- -

gree of safety as that offered by railways.” ’ But the.

evidence below reveals, and the District Court found

(Finding of Fact No. 10, B. 79), that if the South Caro-

lina regulations be enforced, these refrigerated vehicles

(tragtor semi-trailers (R. 110) ) will be‘driven from the.

_highfways. These refrigerated vehicles, moving along

the Atlantic seaboard today, weigh empty 13,600 pounds

and carry a pay load of 20,000 pounds, a gross weight

_ of 33,600 pounds (R. 157). The enforeement of the

‘South Carolina regulations will reduce their pay loads

68 per cent, to 6,400 pounds, a pay load which could not ~

be carried more than a few miles save at a loss.

The Interest of the State of Florida in the Nattonal

| System of Interstate Highways.

A comprehensive survey of the growth and purpose

of the Federal Aid System of Highways is to be found

: on pages 19-40 of appellees’ brief, and we deem it-un- .

necessafy to review that history here.

Suffice it to say that by the cooperative efforts of Na-

tional and State governments. this Nation is now pos- ©

sessed of ‘‘an adequate and connected system of high-

ways interstate in character,’’ in accordance with the

mandate of Section 6 of the Federal Highway Act of

| 1921 (42 Stat. L. 212). |

- This system of highways has been constructed and

maintained according to standards established by the

United States Bureau of Public Roads, in the exercise

of the power conferred upon the Secretary of Agricul-

ture by Section 8 of the Federal Highway Act of 1921

‘‘to ‘approve the types and width of construction and

reconstruction and the character of improvement,. re-

pairs, and maintenance’’ of these highways. It was

early recognized that highways could not be ‘‘interstate

in character’’ if the standards by which such highways

were built in one State varied in large degree from those

by. which they were built in other States.

. While complete uniformity was and always will be

impossible, substantial uniformity in design and capac-

ity has been achieved so that this Nation now possesses

a national system of improved and interconnected inter-

state highways, which, from the standpoint of physical

characteristics, now permits the relatively unimpeded

movement of interstate transportation.” .

The general standard of weight capacity adopted by

the Bureau was 16,000 pounds per axle for high-pres-

sure, and 18,000 pounds per axle for low-pressure, pneu-

_ inatic tires and it has been for these capacities that the

Bureau has designed the main highways in the inter-

- connected system.’ Informed by its own knowledge of

the designs and capacities of these interstate highways .

over the Nation, the Bureau of Public Roads, in 1934,

under authority contained in the Federal Highway Act

of 1921, published a ‘‘Uniform Act Regulating Traffic

on Highways,’’ as revised and approved by the Fourth

National Conference on Street and Highway Safety,

May 23, 25, 1934, which was recommended for adoption

by all the States (R. 275). By Section 145 thereof (R.

277) wheel loads not in excess of 8,000 pounds and 9,000

pounds, and axle loads not in excess of 16,000 and 18,000

_ . pounds are recommended, depending upon whether

, high-pressure. or low-pressure pneumatic tires are used.

All the States of the Union, save about five, now have

tire, wheel, or axle limitations in substantial conform-

ity with these recommendations. _'

Substantial uniformity in width has likewise been

| —~.achieved in conformity with Section 9 of the Federal

Highway Act of 1921, which provided:

\ ~ that all highways constructed or reconstructed

the provisions of this Act shall be free from

tolls of all kinds...

7. “Government Activities in the Field of Transportation”, Re- ©

port Jo. 12 of Select Committee to Investigate Executive Agen-

cies of the Government pursuant to Senate Resolution No. 217

(74th Congress) 1937, p. 12.

- % Testimony of Thomas H. McDonald, Chief, U.S. Bureau of

Public Roads, before the Interstate Commerce Commission,

Docket No. 23,400. .

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: OR ME meng me RR POT TINEYIN AAR DEW Mater TPS oop eer WIN FURY, 20h

= es sideman Y . ES PREM LUO

12 °

~. ‘That all highways in the primary or interstate

system constructed after the passage of this Act

shall have a right of way of ample width and a

wearing surface of an adequate width which shall

not be less than eighteen feet, unless, in the opinion

of the Secretary of Agriculture, it is rendered im-

practicable by physical conditions, excessive costs,

probable traffic requirements, or legal obstacles.”’ °

As a result, a standard 96 inch width limitation for

motor vehicles has long been recommended by the Bu-

reau of Public Roads to all the States (R. 280) and has

the support and recommendation of the American Asso-

ciation of State Highway Officials (R. 280). Forty-

seven of the 48 States have given recognition to this

uniformity of design in the interstate system and have

prescribed the 96 inch limitation. The present inven-

tory of interstate motor equipment has been designed

- . to this capacity (Finding of Fact No. 24, R. 83).

In order to protect the national investment, assure

the permanence of the Federal Aid system, and guard

against its disruption by State abandonment or refusal

to maintain the Federal Aid highways, it is provided by

Section/A4 of the Federal Highway Act of 1921:

‘*That should any State fail to maintain’ any

highway within its boundaries after construction

or reconstruction under the provisions of this Act,

the Secretary of Agriculture shall.then serve no-

tice upon the State highway department of that

fact, and if within ninety days after receipt.of such -

notice said highway has not been placed in proper

condition of maintenance, the Secretary of Agri- |

culture shall proceed immediately to have such

highway placed in a proper condition of mainte-

nance and charge the cost thereof against the Fed-

eral funds allotted to such State, and shall refuse

to approve any other project in such State, except |

as hereinafter provided.

wtte HREM Sere sie PARTE UROON TT MORSE IG AS NN AIM REE HBR A FOE ERNE SE

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stieienetaenenenennentsomnuetbberatmeetibnapennt copioadl tie—sert-ortgearerncoteratte

“Upon the reimbursement by the. State of the

amount expended by the Federal Government for

-such maintenance, said amount shall be paid into

the Federal highway fund for reapportionment

_ among all the States for the construction of roads

under this Act, and the Secretary of Agriculture

shall then approve further — submitted by

the State as in this Act provided. .

Between 1916 and October 31, 1936 the Federal Gov-

ernment had paid to the various States the sum of

$2,197,634,970.13, and about $500,000;000 had been ap-

portioned but not paid out (R. 137, 252) for the devel-

opment of the designated Federal aid system. This

- expenditure has been the investment of all the people of

the United States, the people of Florida as. well as the

people of:South Carolina. The purpose and desigh has

been national, not local. This Court in Nashville, ete.

R. Co. v. Walters, 294 U. S. 405, 417, recognized the

functional difference between these highways and the

_ local highways of the States:

‘‘The state highways of Tennessee (as ‘distin-

guished from county and city roads and turnpikes)

have their origin in the Federal aid highway legis-

lation. The aim of that legislation is ‘a connected

system of roads for the whole Nation’; ‘to provide

complete and economical highway transport .

throughout the Nation’, to furnish ‘a new means of

transportation no less important to the country as

a whole than that offered by the railroads}; to es- .

tablish ‘lines of motor a sage in 5 ras e com-

merce. a

While accurate statistics are unayailable, it cannot be

‘doubted but that 90 per cent of interstate motor carrier —

traffic is carried over highways in the Federal aid sys-

tem." '

* Michigan Law Review, Voi. 33, No. 2, December 1934, p. 251-

252. ,

PETER OR RS Set Ne RE TOU RR A ATER SST Ee ORE) PAP ERT A CRY eR eae he, Te ROE oe

eS y ghee Sates = wns Paty Sate = —

— = << oe SS rs

ee |

Ali the States and their peoples rightly feel a deep

concern in the proper functioning of the Federal aid

| system of highways. State legislation which needlessly

disrupts that system affects the interests not of that

State alorfe but the interests of all the States. While

"by. the Federal aid undertakihg the cost of maintenance

and the responsibility of regulation is left -with the

_ States, certainly the Commerce Clause of the Constitu-

_ tion of the United States is guarantee against regula-

tions which, exceeding their reasonable necessity, erect

a barricade around the borders of a State and deny to’

interstate commerce a reasonable use of the Federal aid

system within its borders. Thus this Court said in Mor-

ris v. Duby, 274 U: 8. 135, 145: —

‘‘Regulation as to the method of use... re.

mains with the States . . . unless the regulation is

so arbitrary and unreasonable as to defeat the use-

ful purposes for which Congress has made its large

contributions to bettering the highway systems of

the Union. . .”

The Interest of the State of Florida and I ts People in

the Successful Administration of the Purposes and

Policies of the. Congress of the United States as

- Expressed and Embodied in Part II of the Inter-

State Commerce Act (Motor Carrier Act, 1935).

The State of Florida, in common with all the States, -

is vitally concerned that the purposes and policies of

Congress, as expressed and embodied in Part II of the

Interstate Commerce Act (Motor Carrier Act, 1935), be .

effectively realized.

The 74th Congress of the United States in August,

1935, enacted Part II of the Interstate Commerce Act,

otherwise designated as the ‘‘ Motor Carrier Act, 1935.”’

It was declared by Section maa) thereof to be. es

policy of Cangas

6 ste NITY PRES as Siphenisnionntaieit bf SEPES santd ome acini a Ss ei

one ae ome FPS SS Se ts 2 par SEs tte seme.

—— eh a —

“to vegilieti transportation by motor carriers in

such manner as to recognize and preserve the in-

_ herent advantages of, and foster sound economic

conditions in, such transportation and among such

carriers in the public interest ;

‘‘to promote adequate, economic and. effieient ser-

_ vice by motor carriers, and reasonable charges

therefor, without unjust discriminations, undue

preferences or advantages, and unfair or destrue-

tive competitive practices; .

‘‘improve the relations between, and co-ordinate

transportation by and regulation ‘of motor carriers

and other carriers;

‘“‘develop and preserve a highway transportation

system properly adapted to the needs of the com-

rag of the United States and of the national de-

ense ;

**eo- operate with the several states and the duly au-

thorized officials thereof and with. any organiza-

tion of motor carriers in the administration and en-

forcement of this part.’’

This broad and comprehensive statute regulating and

promoting the transportation of persons and commodi-

ties in interstate commerce over land highways was

“not a wayward spark of the legislative fury, fanned

by the resentment of motor competitors.’’* Within the

ten year period prior to its passage at least thirty-five

bills had been introduced relating to the subject. Hear- .

ings were held on some; reports made in others; and

one’ was even debated in and passed by the House. The

first Act to be enacted, the one now in effect, came only

after long and serious study.

Throughout this formative period the’ States were

3 Georgetown Law Journal, Vol. 24, No. 2, p. 424, January, 1936.

*H. R. 10288, 71st Cong. 1st Sess. (1930). ~~

* Report of the Federal Coordinator of Transportation, 1934,

P. 123, 74th Cong. Ist Sess., House Document No. 89.

pressing strongly for comprehensive federal reguls- ‘3

~ tion.” | we .

a ete vel M grace Rta > paca rm mR A IRE OD PSA HB ER PORE NA tt RORTSRCE ce an

Rae

State efforts to regulate and promote commercial

motor transport in the public interest had become in-

creasingly ineffective due to the national nature of the

problem and constitutional inhibitions inherent in the

'. problem ‘of interstate regulation. The situation was

similar to that existing prior to the enactment in 1887

of the first Act to Regulate Commerce.

The first’ step taken by the States to meet the situa-

tion was the appointment in 1925 by. the National -As-

sociation ‘of Railroad and Utilities. Commissioners of

a Special Committee to draft a bill proposing federal

regulation of interstate common carriers of freight and

passengers “by motor vehicle. «This bill (S. 1734) was

introduced in the Senate in the First Session of the

Sixty-first Congress. At the same session a bill (H. R.

8266) practically identical in substance was introduced

in the House: Neither of these bills got beyond the com-

mittee stage, but since that time the States, through ~

- their State commissioners, consistently. advocated fed-

eral regulation. The Rayburn Bill (H. R. 6836, 73rd

Cong. 2nd Sess.) supported by the Federal Coordinator

of Railroads, Hon. Joseph B. Eaggman, was drawn by |

the Committee on Legislation of te National Associa-

tion of State Railroad and Utilities Commissioners.’

_ Reintroduced in the 74th Congress, it was enacted into

law without substantial modification. ~~

It was fitting and proper that all the States in the

Union should have thus cooperated to the salutary end

that the interstate transportation by motor carriers

over their several highway systems should be so regu-

lated by the national government as ‘‘to recognize and

preserve the inherent advantages of’’ and to ‘‘foster

sound economic conditions in, such transportation and’

a. Snanitutiais of Transportation — p. 25, 73d Cong. 2d.

Sess., Senate Document No. 152:-

ty |

/ among wie carriers in the public interest,’’ to “pro-.

mote adequate, economie and efficient service by motor

carriers,’’ to ‘improve the relations between, and co-

ordinate transportation by and regulation of motor car-

riers and other carriers,’’ to ‘‘develop and preserve

a highway transportation system properly adapted to .

the needs of the commerce of the United States.”

__ If these purposes can be achieved and these policies

administered, then the use of the States’ highways by

% interstate traffie will be a use consistent with their

proper purpose and function, and will in itself be an end

justifying the great cooperative expenditures and ef-

fort of the States and National Government under the

Federal Highway Acts, in the completion of a national

system of highways interstate in character.

Any. State law which tends to subvert and defeat

these purposes and policies, not only impairs the invest-

ment which that State and all the States have made

toward the creation of the national interstate highway

system, but denies to its own highways that protection

which can flow only from a syatem of interstate motor

| transportation regulated and promoted in the public

. interest.

_ The interest of all the States i in the effective realiza-

tion of the purposes and policies of the Motor Carrier

Act is accentuated by the faet that this Act, like the

Federal Highway Acts, contemplates and requires for

its successful administration, the cooperation of the Na-

tional and State governments.

_ Thus, it is expressly declared to be the poliey of Con-

gress ‘‘to cooperate with the several States‘and the duly _

authorized officials thereof . . . in the administration

and enforcement”’ of the Act.*

_ °® Motor Carrier Act, Sec. 202(a).

The Act goes beyond mere declaration. Embodied —

in: the Act as. a fundamental feature is the plan for the

utilization of State administrative machinery in effec-

ting federal regulatory power. This striking tech-

nique for effective Federa] and State cooperative regu-

lation was. molded into the Motor Carrier Act at the

instance of all the States; motivated by a desire to pre- -

serve the powers and capitalize upon the experience of

the State commissions, to coordinate interstate and in-

trastate motor carrier policies, and to commit the solu-_ .

tion of local interstate problems to State officials inti- .

mate with local conditions.

Section 205(b) of the Act requires that all controver-

sies ini which the interstate operations involve no more

than three States shall be referred by the Commission

to joint boards for hearing and recommendations of ap-

propriate orders if any of the following matters are in-.

volved: applications for the issuance of certificates,

permits, or licenses; the suspension, change, or revoca-

tion of such certificd¥es, permits, or licenses; applica-

_. tions for the approval and authorization of consolida-

tions, mergers, and acquisitions of control or operating

contracts ; complaints as to violations by carriers of the

requirements established by the Commission with re-

spect to continuoug and adequate service, etc.; com-

plaints as to the violations of the Commission’s rules _

by brokers; and gomplaints as to rates, fares, and

charges of motor.carriers. The Commission in its dis-

cretion may alse refer to joint boards any of the fore-

going matters when more than three States are involved,

and it may refer to said boards any investigation or

other matter not specifically mentioned above.

These joint boards provided for by the Act are boards

composed of one member from each State in which the

particular interstate carrier operation in controversy |

at the time is to be performed, nominated by the regula-

tory commission of the State from its own membership

or otherwise, or by the Governor. - Their duties, powers,

and jurisdiction are the same as those of members and

examiners of the Commission, and any order recom-

mended by a joint board is subject to the same rules as

_ an order recommended by a member or an examiner of

the Commission. Thus Section 205(a) provides that if

no exceptions are filed within the specified time, the:

recommended order shall become the: order of the Com-

“ Inission unless stayed or postponed by the Commission

within the specified period. If, however, exceptions are

filed with the Commission, it is bound to consider the

same and a review or further proceedings are author-

ized if sufficient reason appears therefor from the rec-

ord. The Commission may also review decisions of

' joint boards on its own motion. «bate i

As of this writing, 257 Joint Boards have been

created under the Act. The Interstate Commercé Com-

mission properly accords great weight to the recommen-

dations of these Boards, followimg:them in approxi-

mately 85 per cent of the instances where their reports

have been reviewed. This is almost the same percent-

age that obtains in the case of recommendations by the

Bureau’s own examiner.” :

Thus it is that the State of Florida, in common with

all the States of the Union, must observe with ‘grave

concern the enforcement of State regulation which will —

defeat and subvert the policies and purposes of Part II

of the Interstate Commerce Act. sacra

Appraise Regulation of Motor Vehicles, August, 1937, page 13.

‘

20 | j

U ndisputed and Unchallenged Findings of Fact'by the

DistricPCourt Make it Inevitable that the Enforce-

_ ment of the South Carvlina Regulations Will

feat the Purposes and Subvert the Policies of the

Motor Carrier Act as Administered in the South-

eastern Section of the United States.

The drastic effect of the enforcemetit of the South

- Carolina regulations upon interstate commerce in the

Southeastern section. of the United States is concisely

expressed in the District Court’s Findings of Fact,

Nos. 7 to 16, inclusive (R. 78-81), which were unex-

cepted to by appellants. These Findings are based

upon extensive and detailed testimony of carriers, ship-

pers and traffic experts, private and governmental, tes-

timony unchallenged at the trial below and, indeed, con-

firmed by judicial knowledge.

. These findings make it plain that. the pan a of |

the South Carolina regulations will defeat the purposes

and subvert the policies of the Motor Carrier Act. -

From 85 per cent to 90 pér cent of the equipment

used in interstate commerce is 96 inches wide and will

be automatically barred at the borders of South Caro-

__lina*by the 90 inch width limitation (Finding of Fact

No. 24, R. 83). The motor equipnient in 47 States must

needs be junked and hereafter limited to the proposed ~

South Carolina standard, or special equipment must be

purchased in each State for use into, across or from

South Carolina. The gross weight. limitation will re-

duce the ordinary pay loads of interstate vehicles over

150 per cent (See Table II, Appellees’ Brief, p. 72).

_From whatever State of origin, the interstate vehicle ~

- must either carry a pay load so small that it is unprofit-

able to operate, or must stop at the borders of South

Carolina and reload into two smaller trucks, with all the

—~

—

attendant’ cost, delay and impairment of service. (Find-

ing of Fact No..7, R. 78. .

How then may the common carrier comply with its .

statutory duty (Section 216(b)) ‘‘to provide safe and \

adequate service, equipment and facilities for the trans-

portation of property in interstate commerce,’’ or how

may the Commission itself exercis# its power (Section.

204(a)) ‘to establish reasonable requirements with re-

spect to continuous and ‘adequate service’’?

. By Section 216(c) of the Aet common carriers of 4.

property by motor vehicle ‘‘may establish reasonable -

‘ through routes and joint rates . . . with other such

carriers, or with common carriers by railroad, express,

or water,’’ but the District Court expressly found

_ (Finding oF Fact No. 8, R. 78) that ‘‘enforcement of

the South Carolina law . : . would prevent the inter-

change of motor truck equipment and the establishment

of through routes and joint rates on shipments: ss

into, out of and across South.Carolina.”’ 4

By Section 216(b) of the Act itis made the duty of. |

common carriers by motor vehicles ‘‘to establish, ob- =,

serve, and enforce just and reasonable rates... . .”’

and by Section 216(d) it is declared unlawful for any Ve

edmmon carrier by motor vehicle ‘‘to make, give or |

cause any undue or unreasonable preference or advan-

tage to any particular person, port, gateway, locality, or

description of traffic . . . or to subject any particular -

person, port, gateway, locality, or description of traffic

. _ to any unjust discrimination or any undue er unrea-

sonal peqetics or disadvantage in any respect what-

soever.’

The disastrous effect of the énforcenient ¢ the South

Carolina regulations upon.the rates and rate returns |

of motor carriers is described in the testimony of Em- -

ory A. Boudreau, Assistant Chief: of the Section of

4 >

3 w .

ere ® . See ES EN RII

—"y

Traffic, Bureau of Motor Carriers, Interstate Commerce

Commission (R. 138-142). oe” Pees

Two vivid is epee from his testimony are quoted ©

in appellees’ brief at. page 61, and we respectfully refer

th® Court to that reference. But with especial regard

to the rate situation for traffic originating in or des-

tined to the States of Georgia and Florida and crossing

the State of South Carolina, we quote further from his .

testimony (R. 141-142): | =

‘‘The increased rate would be the same on traffic

passing through South Carolina, althaugh the rate

‘might be lowered by the carrier if iy established

transfer arrangements at state line points, say, like

-Rockingham,-North Carolina, or Augusta, Georgia:

Now the distance from Raleigh, North. Carolina,

-and Macon, Georgia, is approximately 418 miles

and if a carrier was restricted in ‘his operation. to

- 20,000 pounds gross weight, and he oe such

equipment from terminal to terminal, ould re-

- quire a rate of 9914 cents per one hanaral pounds, -

whereas if he can operate 40,000 pounds from ter-

minal to terminal the rate would be 5 5014 cents per

one hundred pounds, or a difference of forty-nine

cents.

‘*With reference to unl ding at the border, if a

. carrier established transfer points at Rockingham,

North Carolina and Augusta, Georgia, where lhe

could transfer his loadsfrom a 40,000 pounds gross

weight vehicle to a 20,000 pound. gross weight ve-

hicle, in order to cross ‘the state of South Carolina,

he would still require an increase of 20.9 cents; or

21 cents per one hundred pounds over the rate re-

quired if he is permitted to operate the larger ve-

hicle from terminal to terminal. kn other words,

he would require 72 cents for such transfer ar-

rangement, as against 5014 cents if permitted to

operate his 40,000 pound vehicle through.

‘“‘Of course in these transfer examples I have

cited I have not taken into consideration the cost of ©

LPOG COE GIES MITES AEE BE PIM

» -%

transfer, the possible cost of equipment or termi-

nals that might have to be purchased at the no

fer points.”” ’

In making these rate comparisons the witness was

considering only the effect of the enforcement of the |

weight restrictions, and not the 90-inch width-restric-

tion which will bar from 85 to 90 per cent of all inter-

state vehicles from crossing the borders of South Caro-

lina. If this element be considered, of course these rate

contrasts will be aggravated enormously. | |

_ The witness’. rate comparisons, it .is true, were based

upon cost of operation and not competition, and if these ot

regulations be enforced practical rates will vary down-

ward from the witness’ estimated rates, but how under

- these conditions will be promoted the policy of Con- o*

'. gress to “‘foster sound economic conditions,in such

transportation and among such carriers in the public es

interest (Sec. 202(a)) ?” - is

' It is provided by Section 216(i) of the Act: :

‘In the exercise of its power to prescribe just

and reasonable rates for the transportation of pas-:

sengers or property by common carriers by motor

vehicle the Commission shall give due considera-

tion, among other factors, to the inherent advan- :

; tages of transportation by such carriers; to the ef- ee

fect of rates upon the movement of traffic by such

varriers ; to the need, in the public interest, of ade-

quate and effieient transportation service by such

carriers at the lowest cost consistent with the fur-

nishing of such service; and to- the need of reve-

nues sufficient to enable such carriers, under hon-

~ est, economical) and efficient management, to pro-

vide such service.”? $

2 ; : ;

It will be impossible for the Cnliicinsion to reconcile

the needs of the. carriers and the needs of the public, as

here required, under the burden which will be inflicted

by enforcement of the regulations and in face of the

competition that will exist from other pneme: of trans-

portation.

The District Court specifically found (Finding of

Fact No. 15, R. 80-81) that ‘‘the enforcement of the

South Carolina law would result in the diversion of

large cargoes normally consigned to the port of Charles-

- ton,,to other competing ports in other States along the

Atlantic seaboarg.’’ Yet such a result is but illustra-

tive of the many undue and unreasonable preferences

which will be created, and discriminations and preju-_ .

dices to which ports and localities, and the State of Flor-

ida itself, will be subjected, if. these regulations be en-

forced.

How,.under the embarrassment of theas burdens will

fare the policy of Congress to ‘‘recognize and preserve

the imherent advantages of’’ transportation by motor

vehicle (Sec. 202(a)) ? ‘Speed, one of the principal ‘in-

herent A&dvantages’”’ will be done to nought, although:

_ “The Commission has held in a number of deci-

sions that speed of delivery is an inherent advan-

tage of transportation by motor carriers over trans-

portation by competing rail carriers which it is re-

quired by Section 202(a) of the Act to recognize as

in conformity with the public interest, even though

_ rail carriers are rendering sufficient but slower ser-

vice.” Hahn Truck Line, Contract Carrier Ap-

plication, 1 M. C. C. 479, decided wereny 15,

1937.

One of the “inherent advantages” of motor ienisaiate

tation which is of especial concern to the Southeastern

section of the United States and to the State of Florida

is the“facilitated movement of fresh vegetables and.

fruits and other agricultural products from production

a 25 » 4

fields to the snctneipsiiten areas of the North ond East.

This advantage will also be done to nought by the en-

forcement of the regulations (Finding of Fact No. 10,

* R. 79), not. only. because the time of delivery will be

‘doubled by border interchange and increased handling

—or-as an alternative, the payload maintained below

profit—but because the refrigerated vehicle vital to the

industry, will be driven from interstate commerce along

the Atlantic seaboard (Finding of Fact No. 10, R. 79).

This follows from the fact that the modern refrigerated_

tractor semi-trailer in use today along the Atlantic sea-

board weighs 13,600 pounds, empty. Loaded, it weighs

33,600 pounds with a ten ton pay load (R: 157). Thus

' loaded, it is moving the traffic today, and is threatened

only by the South Carolina regulations which will re-

duce its pay“toad of 10 tons to only 3.2 tons, or 6400

pounds, @ reduction of 68 per cent.

The State of Florida Foresees, in the Enforcement of

the South Carolina Regulations, the Perpetuation

of the Interterritorial Freight Rate Boundary

_ Which Has for Many Years Constituted a Barrier

Against the Free flow of Commerce From the

- South.” :

The burden upon the South inflicted by the tian

torial freight rate barrier flung across its arteries of in- |

terstate commerce leading to the Nation’s markets, has

been increasingly recognized in recent years. That bur-

den was well described by David E. Ljllienthal, Direc-

ue’. . An objectionable phase of the EP situation.for

many years has been the maintenance of regional differences and

d@tinctions, which are very imperfectly related to differences in

cdsts and of territorial boundary lines (‘Chinese walls’) where -

rate systems and practices change. It has tended to provincial-

ts Sige the railroads and beet national unity of action. It has

—_

e .

4 ‘ =

; °

—o — rn ng een pee ee Se en eT SEY

o > 4

KS et UTR WIth ete ote

rf nie yee ae

26 -

tor, Tennessee Valley Authority, before the Institute of —

Public Affairs of the University of Georgia, at Athens,

Ga., October , 1936, when he said:

” “here are hisiithni toa sound industrial devel-_

opment in the South.. Some of them are artificial

—made by man and removable by man. For ex-

ample, the South is surrounded by a Chinese wall

of reight rates that place it at a disadvantage in,

the marketing of its industrial products. There is

not time tonight to do more than mention this bur: :

den on Southern industry, but it furnishes one

fication) for the pressure or/ wage rates in South-

reason (some would even go 89 far as to say a justi-

ern industry. And it has‘cofme to be recognized that

low wages, which means low waethadlen power, is

one of the most serious forms of the ae: of

wealth and 1 income,’’ |

The Southern States are now engaged in an effort to

remove the artificial rate barriers against industrial .

progress in the South. On May 26; 1937, the Governors

of Alabama, Fioffda, Georgia, Kentucky, Louisiana,

Mississippi, ‘North Carolina, South Carolina and Ten-

nessee filed an application with the Interstate Com-

merce Commission (I. C. C. Docket: No. 27746) charg-

ing that ‘‘the acts, practices, rates, charges, rules and

- been a prolific “source of complaints to ‘the Commission. Re--

' gional competition in rates and services has been as keen as ‘the’

direct competitien of parallel lines, and has had equally unde-

sirable and-pneven results.” First Report of Coordinator of

Transportation, Senate Document No: 119, 73d Cong., 2d. Sess.,

1934, -p. 29.

For a fuller outline. of the nature, extent, and’ seriousness of

this problem reference may be made to a Survey entitled ‘‘The

Interterritorial Freight Rate Problem of the United States”, con-

ducted by the Board of Directors of the Tennessee Valley Au-

. thority, transmitted by the President of the United States to the

- 75th Congress, Ist a and printed as House Document No.

264, - :

regulations of defendants (rail-earriers) is a denial of

the national purpose of the Interstate Commerce Act

and constitutes an arbitrary barrier against shippers

shippifig corgmodities from Southern territory.” But.

_ the enforcement of the South Carolina regulations will

2. perpetuate these barriers‘and render futile present ef-

forts to find a permanent solutiomto the/interterritorial

‘freight rate problem. This result is reflected in the tes-

‘— timeny of Thomas J. Burke, Commissioner of the’

' Charleston County Traffic Bureau (CR. 105) :

“The freight rates in the Southeastern part of

the eountry are somewhat, higher than those in the

Middle West. If the ompetition with rail-

roads was eliminated uck competitive rates

now in effect: would go out and you would go back

to the norma! level of rates, which is higher than

these competitive rates. This would mean that

-. ecommerce flowing into, out of and across South

Carolina would be’ carried at — rates to the

_ public .-. .

' **The situation as to the higher rates i inthe South- .

eastern part of the country a gradual proc- ©

ess. In 1928 the rates w all revised in the

southern part of the Unitéd States under what is

known as the Southern Class Rate Investigation—

that was class rates—but since that time we.have

revised the commodity rates. At the time the class

rates were revised the level in the South was 25

per cent higher than the midwest section ¢f the

. country. That level today has risen to about per

cent highér.

‘“‘The truck competition with the uitinesill has

tended to keep the levels of the rates down. If it *

were removed, this would be.a detriment to the

~ shippers and to the citizens of this State and sec-

tion.’ .

Pere ee RITE

2g \ |

The District Court has Found Upon Adequate Evidencé

that the Burden Upon Interstate Commerce Be-

sulting From the Enforcement of the South Caro-

lina Regulation will be Asviirivily and Needlessly .-

' Imposed.

That the District*Court was justified in finding that

_ the disastrous burden upon interstate commerce in the

Southeastern section of the United States which will

_ result from the enforcement of the South Carolina regu-

lations will be needlessly and arbitrarily imposed, be-

cause these regulations exceed the reasonable necessity

for their exercise, adequately appears from the lower

ourt’ 8 opinion and from the ers discussion 1 in -

appellees’ brief, pages 63-100. wd

That the regulations exceed their reasonable necessi-

ties not only from the standpoint of the conservation of

the highways but also from the standpoint of the

safety of the highways is apparent from the find-

ings of the lower Court (Finding of Faet No. .23

and 24) and its Opinion (R. 67,73). The evidence dis- _

el that contraryéto the supposed purposes of the

A@, its enforcement: will increase the hazard of the

highways by increasing the number of vehicles on the

highways, encouraging the use of light, \over-loaded

vehicles of flimsy construction, small ti ace and |

braking surface, discouraging the use of power brakes,

proper tires and substantially built vehicles properly.

adapted to safe driving, and by encouraging poor dis-

tribution of loads over the axles.

The reasonable necessities of the states in limiting the

- size and weight of motor vehicles operating in interstate

commerce for the purpose of safety should be con-

sidered in the light of the provisions of the Motor Car-

rier Act, 1935, which empowers the Interstate Com-

merce Commission (Sec. 204 (a) (1) (2))-to establish

reasonable réquirements for common and contract car- _

riers with respect to qualifications and maximum hours

‘of service of employees, and safety. of operation and

“equipment ; and (Sec. 204 (a) (3)) to establish for pri-

vate carriers of property, if need therefor is found, rea-

sonable requirements to promote safety of operation, ;

and to that end to prescribe qualifications and maxi-

mum hours of service of ——— and standards of

equipment.

Pursuant. to such power ‘the Interstgte- Conimerece

Commission, gn December 23, 1936, approved, adopted

and prescribed comprehensive rules and regulations,

to become effective [uly 1, 1937, concerning the matter

of qualifications of. mployees. and safety of operation ©

and equipment of such common and eontract carriers, .

desigiled to bring about greater safety on interstate

highways in accordance with the declared policy of the

Act. These presqgjbed regulations covered such mat-

ters as qualificaticts of drivers, reckless driving, speed,

driving, spping, lights, brakes, parts and accesSories,

loading and reporting of accidents. 4

These initial regulations did not include sides and

weights of motor vehicles in interstate commerce.

Nevertheless, tle’ Cémmission by its Report issued on

July 1, 1936, included sizes and weights of motor

vehicles as a part of its proposed long-term program for

highway sa“*ety, and in its Report of December 23, 1936

(Ex Parte No. MC4, 1 M. C. C. 1-36), accompanying its

order.of that date above referred to, expressly recog-

nized a jurisdiction over sizes and weights for the pur-

Sere SS Oe ST

30 at

| : eee a cs Bp

pose of safety and deferréd action thereon for the

reason, among others, that ‘‘the art of motor. vehicle

construction and, operation is one of constant change

and improvelgent”’ and in order ‘‘to leave the way,open

the further technical advance,”’ and to study and outline |

th :

elements of the,problem.

A —~

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IN TH

Supreme Court of the Bnited States

OcTOBER TERM 1937 ©

No. 161

SouTH:CarRoLina STaTE Highway DEPARTMENT, SOUTH

-SAROLINA PUBLIC SERVICE COMMISSION, ET AL.,

<y Appellants,

BARNWELL BroruHeErs, INc., POOLE TRANSPORTATION,

Inc., Horton Moror ‘Lines, INC., ET AL.,

| A ppellees.

BRIEF FOR STATE OF FLORIDA AS AMICUS

_ CURIAE.

ARGUMENT.

The District Court, Having Found ‘That the South Caro- .

lina Regulations Will Impose 4 Drastic Burden on In-

terstate Commerce.and That They Exceed the Reason-

able Necessity for. Their Exercise, Correctly Held That

Their Enforcement Will Constitute a Regulation of In-

terstate Commerce in the Constitutional Sense and Thus

Will Contravene Article I, Section 8, Clause 3 of the_

Constitution of the United States.

Appellants’ briefs and. supporting “bri iefs contend

that pven though the District Court’s fitdings of fact be

_.. admitted, there is eseape from the District Court’s con-

. SS SS

clusion of law that the regulations inflict an unconsti-

tutional burden on interstate commerce; that even

though. these regulations exceéd the reasonable neces-

sity for their exercise-and will! inflict upon interstate

commerce a. disastrous burden, they are yet. within the

power of the State. 4

e — of these briefs may be analyzed as

follox

(1) Since the District Court found that the regula-

tions were consistent with the Due Process Clause of

the Fourteenth Amendment, the Commerce Clause sub-

_jects them to no further test other than that they shall

not discriminate against interstate commerce, which

by their terms they do not do;

(2) The effect of the enforcement of the regulations

upon the purposes and policies of Congress as expressed

in the Federal Highway Acts and Part II of the Inter-

state Commerce Act (Motor Carrier Act, 1935) is of -

no significance in determining their validity under the

Commerce Clause ;

(3) That if it be conceded that State police power

generally may not exceed its reasonable necessity as it

affects interstate commerce, the Commerce Clause im-

poses no such restraint upon the regulation by the State

of its own property; that in the regulation of its own.

highways State power is absolute, save only that it shall

not discriminate against interstate commerce ; and»

(4) That by its decisions in Morris v. Duby, 274 U.S.

135, and Sproles v: Binford, 286 U. 8. 374 this Court

established these arguments as the law of the land.

We earnestly submit that these arguments, separately.

or collectively, find no support in the past decisions of -

this Court, and are subversive of fundamental guaran-

tees under the Commerce Clause of the Constitution of

the United States.

The error inherent in all four of the arguments ad-

vanced by appellants springs from their failure to re-

cognize that the test of the validity of State police regu-

lation under the Commerce Clause is separate and dis-

tinct from the test under the Fourteenth Amendment.

_ Appellants assert that since the lower court found.

that the regulations (1) have not been superseded by

Federal legislation, (2) deal with a subject which ad-

mits of diversity of treatment according to the special

requirements of local conditions, (3) apply indiscrimi-

_nately to intrastate and interstate commerce, and (4)

are consistent with the Fourteenth Amendment, there is

. no other test to apply and the regulations are valid

regardless of the effect of their oe upon inter-

state commerce.

This argument, however, tomeaiei the fundamental

principle that State police regulation substantially af-

_fecting (although not diseriminating against) inter-

state commerce must not only be consistent with -due

process (that is, ‘‘shall not _be unreasonable, arbitrary

or capricious” and ‘‘the means selected shall have a real

and substantial relation to the objects sought to be at-

tained,’’ Nebbia v. New York, 291 U. S. 502, 525), but ~

must also not exceed the reasonable necessity for the

exercise of the police power. There is a wide range of

discretion for State police power under the Fourteenth

Amendment ; the State is not confined by the Due Proc-\

ess Clause to its reasonable necessities. As thus tested,

even as appellants contend, the wisdom and the justice

of the law is for the State legislature to determine.

But no such range of discretion, no such4iltimate power

to judge the wisdom and justice of their ami laws,

—

aden

remains to the States when the effect of the enforcement ©

of a law is to burden interstate commerce.

The Due Process Clause involves adjustments be-

tween the public, viewed as a State or a subdivision

thereof, and an individual or individuals; the Com- |

merce Clause involves adjustments between State and

Federal power. Though every taking without due proe-

ess of law is a burden ‘on interstate commerce, if the

subject dealt with is such commerce, it — not follow

that the reverse is true.

The constitutional basis for the distinction is ine.

' The paramount authérity of Congress over the regula-

tion of interstate commerce has often been asserted by

. this Court and can no longer be doubted.. Minnesota

Rate Cases, 230 U. S. 352. Nevertheless, it has been

recognized that'there exists in the States a permissible —

exercise of authority which they may use until Congress

has taken possession of the field. of regulation. This

Court has thus described this residual State power”

(Minnesota Rate Cases, 230 U.S. 352, 402) :

_ ‘*Within these limitations there necessarily re-

mains to the States, until.Congress acts, a wide

range for the permissible exercise of power ap-

propriate to. their territorial jurisdiction although

interstate commerce may be affected. It extends

to those matters of a local nature as to which it is

impossible to derive from the constitutional grant

an intention that they should go uncontrolled pend-.

ing Federal intervention. Thus, there are certain

subjects having the most obvious and direct rela-

tion to interstate commerce, which nevertheless,

with the acquiescence of Congress, have been con-

trolled by state legislation from the foundation of

the Government because of the necessity that they .

‘should not remain inregulated and that their regu-

lation: rr: be adapted to varying local exigen-

cies;... ”> (Emphasis added) |

‘“‘By the Constitution, Art. I, Section 8, Cl. 3, the

power to regulate interstate commerce is expressly com-

mitted to Congress and therefore impliedly forbidden to

the States.”’ Pennsylvania v. West Virgina, 262 U.S.

503, 596. “*

The exertion of this residual State power does not -

impose regulation (in the constitutional sense) upon

interstate commerce which might be affected—it merely

imposes a necessary condition, no less necessary and no ©

more a regulation than that imposed by mountain |

rartges er broad rivers flung by the hand of God. across

the paths of commierce. Alike they are necessary condt-

tions, not regulations of interstate commerce.

But the converse of this principle is that State legis-

lation which exceeds the reasonable necessity for its —

exercise is no longer a condition of interstate commerce ;

it is regulation and forbidden by the Commerce Clause.

This principle, dear to the States and Nation alike, is

firmly rooted in the dicta and decisions of this Court,

as demonstrated in- appellees’ brief at pages 104-115.

We need not repeat the quotations here. This Court

has said that the police power of a State cannot ‘‘ob-

struct foreign commerce or interstate commerce beyond

the necessity for its exercise.’’ Railroad v. Husen, 95°

U.S. 465, 474; or “unnecessarily hamper commerce be- .

tween the States”? Cleveland, etc. Ry. Co. v. Illinois,

177 U. S. 514, 516; or subject interstate commerce ‘‘to

unreasonable demands”, South Covington, etc. Ry. Co.

. Vv. Kentucky, 252 U. S. 399, 404; or ‘‘to requirements

that are wnreasonable or. pass beyond the bounds of

_. suitable local protection,’ Minnesota Rate Cases, 230

- U.S. 351, 401; or ‘“‘go beyond the necessities of the case”’

Lake Shore € Mich. So. ~~ Ca. v. —_ 173 U. 8. 285,

300. |

| | 7

sie enema — a

Perfect illustration of the application of the principle

is found in Seaboard Air Line Ry. v. Blackwell, 244 U.-

—§. 310, discussed at pages 104 to 108 of appellees’ brief.

‘Recognition of the principle is to be found in the re-

.. eent opinion of this Court in Baldwin v. G. A. F. Seelig,

294 U. $7511, 522, 525:

‘*Nice distinctions have been made it times be-

tween direct and indirect burdens. . . the line of

division between direct and indirect restraints of

commerce involves in its marking a reference to

considerations of degree.” .

Failure to give recognition to the Sunianenti dis-

*tinctions between the test under the Commerce Clause

and the-test. under the Fourteenth Amendment leads -

appellants into further error in their discussions of

the presumptions of validity underlying the South

Carolina regulations and the power of the Courts to ex-

amine into their reasonableness. Thus appellants say

(Ky. Br. 24):

“The case, however, is fully covered by the well

established principle that granted the power of the

legislative body, the wisdom or propriety or even - |

. justice of its act is not open to the courts. And in

‘the case of a staté’s exercise of its police power to

th he courts to interfere is still further restricted, the

rule being that in such a ease,.if there is any basis

for a difference of opinion as to the propriety of

the statute, it comes within the scope of legislative

discretion, and the judgment of the Legislature |

and not of the Court prevails.

: “The Court, in. omg ge | this identical ques- _

tion in connection with the Texas statute limiting

the weight and size of trucks, thus stated the’ prin-

ciple in Sproles v. Binford, supra (388) :

_ | “When the subject lies within the police

power of the State, debatable questions as to

37 os gee

reasonableness are not for.the courts but for the. -—

legislature, which is entitled to form its,own

judgment, and its action within its range of dis-

cretion cannot be set aside because compliance is

burdensome.’ (Citing authorities.) ”’

In the sentence of the Court’s opinion immediately

preceding the sentence quoted by appellants, it is ex-

pressly stated that the presumption under considera-..’

_ tion v@s the presumption attaching to the validity of

’ legislation under the Due Process Clause of the Four-

teenth Amendment.

Where State laws are attacked under the Due Pro-

cess Clause on the ground that they are arbitrary or

oppressive, there is and should be’a strong presumption

in their favor. A State should be allowed a stibstantial

opportunity to work out its own salvation so far as that

sumption in favor of a State statute attacked under the

Commerce Clause is the general presumption of con-

stitutiona]ity attaching to all legislation, federal, state,

or municipal. The determination of the question of

whether or not the practical effect of State regulations

will burden interstate comimerce, or whether or not

these regulations exceed their reasonable necessities,

are primary questions to be determined by the courts

when such regulations are attacked under the Corh-

merce Clause. These questions are not for the State

legislature to judge, nor is the judgment of the State

legislature binding merely because differences of

opinion might exist. In such cases, it is a judicial :

determination not a legislative one.

“One challenging the validity of a site enact-

ment on the ground that it is repugnant. to the

‘commerce clause is not necessarily bound by the

legislative declaration of purpose. It is open to

him to show that in their practical operation its

_provisions directly burden or, destroy igterstate

commerce.’’ Foster Packing Co: v. Haydel, 278

U.S. 1, 10. cane, a

‘*The reasonableness of the-state’s action # al- .

ways subject to inquiry insofar as it affects.inter-

state commerce...’ Hendrick v. Maryland, 235 -

U.S. 610, 622.

It is apparent that there are two conditions precedent

to the application of the principle above discussed:

First, that a.substantial burden on interstate commerce

will be caused by the enforcement of State legislation,

and second, that such legislation exceed the reasonable

necessity for its exercise. The District Court has found

that both of these conditions exist under the evidence —

in this case. In reaching this conclusion the lower

Court gave consideration to the effect of the enforce- ;

~ ment of the South Carolina regulations upon the pur-

poses and policies of the Congress of the United States -

as expressed in the Federal Highway Acts and in Part

II of the Interstate Commerce Act (Motor Carrier Act,

1935). The District Court said (Opinion, R. 74):

‘*There is another angle from which t ason-

ableness of police regulations burdening/interstate

commerce in this way must be judged. Not only

\. _ has Congress aided in the construction‘of the roads

So that they may’ become highways of .such com-

- merce, but in the enactment of the motor carriers’

act, it has recognized truck traffic as a }egitimate’

part of that commerce essential to the welfare of ..

the public and subject to regulation for that reason. .

As said of Federal aid legislation in Bush Co. v.

Maloy, 267.U. 8.317, 324, this legislation regulating

motor carriers is of significance because it makes

_ @lear the purpose of Congress that state highways |

: Shall be’ oper to commerce of that character. Con-

gress has not attempted to regulate size and weight.

- and there are great practical difficulties in the way

of such regulation by Congress. It is of great im-

portance, therefore, that regulation of this

by the states be held within reasonable boun nd

_. that they be not permitted, under guise Of txercis-

ing the police poweryto exclude from their high-

ways by unr Riconaite regulations the interstate

commerce Which Congress is regulating in the

public interest and for the carrying of which it has

aided in the construction of roads thagform parts

ofa great national system of highways.”’ |

Appellants thallenge the relevancy of these consider-

_ ations ofr the theory (SAO. Br, 109-114) that since the

lower Court fo neither of these Federal Acts.

superseded fhe power of the state to regulate the size

and weight of motor vehicles using the highways, the

enactment of this legislation had no effect whatsoever

upon the State power. It is they say a case of ‘‘all the

one thing or all the other.”” (S.C. Br. 110)...

Appellants here betray a fundamental misconception

of the rationale of the D istrict Court’s consideration of

these Federal Acts. ‘ That the enactment of these

Federal acts did not supersede or otherwise limit’ the ~

power of the States is not to say. that the effect of the

enforcement of the State regulations upon the purposes

and ‘policies of these acts is not a relevant factor in

determining, first whether or not such enforcement i int

poses a substanti~/ hurden on interstate, commerce, and

second whether or not, in view of the natifre and fune-

tions of the highways constructed under the Federal

‘Highway Acts, and the nature and functions of the

commerce regttated and promoted under Part II of the

Interstate Commerce Act, the regulations exceed the

reasonable necefsity for their exercise. ;

It is also in the light of the necessity for the concur-

rence of these two conditions, that is that a substantial

EASE — =z; ~ eee sd : a , :

2 we : : 5 2 ats —_

x ° | ; [ . 40

burden on interstate comnierce exist and that the regu-

lations exceéd the. reasonable necessity for their exer-

cise, that we must examiné the two prior decisions of \

this Court involving State restrictions of the size and:

_ weight of motor vehicles, M orris v. Duby, 274 U. 8. 135

" and Sproles v. Binford, 286 U. S. 374.

; Even if it were possible to find i in the joes used

by this Court in thdse cases support fon appellants’

' contention that the State power in issue sited only

+> *. by the Due Process- Clause of the Fourtee end-

-«¢ ment, it would still be necessary to analyze thé- actual .

- decisions in those two vases in accordance with the tra-

- ditional policy of ‘this Court as expressed in Euclid_v.

Ambler, 272 U. S. 365, 397:

This i is in aceordancg with the traditional puller

* of this Court. In the realm of constitutional law,

* especially, this Court has perceived the embarrass- ~

‘ _ ment which is likely to result from an attempt to _

formulate rules-or decide questions beyond the

“ necessities of the immediate issue. It has preferred

to follow the niethed of a gradual approach to the

general by. a systematically guarded application

? and extension of constitutional principles to par- -

~ : hand attempts to establish general rules to which

. * future cases must be fitted. This pee applies

“ with peculiar force to the solution of questions aris-

‘ing under the due process clause of the constitution

- * as applied e exercise ‘of flexible powers of

police, with which we are here concerned”’.

a) And’ it was early said by Chief Justice Marshall in

Cohens v. Virginia, & Wheaton 264, 399:

“It is a maxim not tq be disregarded, that general

‘expressions, in every 0 inion, are to be taken in

| - connection with the which those expressions

are If they go — the fase, they may be

; ‘ten

o.-\ wir ee

41 j

respected, but ought not to control the judgment in

a subsequent suit when the very point is presentéd

. for decision. The reason of this maxim is obvious.

The question actually before the Court is investi-. -

gated with care, and considered in its full extent.

Other principles which may serve to illustrate it, .

are considered in their relation to the case decided,

but their — bearing on all other cases is

seldom compfetely investigated.”’ a

But there is in fact no support for appellants’ theory

. either in the dicta or inthe actual deeisions of the Court .

in Morris v. Duby. and Sproles v. Binford.- In the -

_ former case it was said (at page 143) that regulations

of the size and weight of motor vehicles must be ‘‘rea-

sonable’’ and the same expression is found in Sproles v. .

Binford (at page 390), without further attempt to de-

‘fine the content of the word ‘‘reasonable’’. It is signifi-

cant that this Court said in Buck v. Kuykendall, 267 U. |

S. 307, 315 that: :

‘Appropriate state regulations, adopted pri-

marily to promote safety upon the highways and

conservation in their use, are not obnoxious to the

commerce clause, when the indirect burden im-

re upon interstate commerce is not unreason-

able.”’ - |

But it is obvious that in neither of these two cases .

- did the fgcts disclose the existence, either separately.

er-concurrently, of the two conditions which are neces-

sary to invoke the protection of the Commerce Clause;

/~and which are present in the instant case. In neither

Morris v. Duby nor Sproles v. Binford did the facts

show:a substantial burden on or interference with inter-

state commerce. Thus one indispensable condition was

_ absent, and its absence rendered it unnecessary for this

Court to determine whether or not the state regulations

Ree > a ’

Reso inlaw G ween eth Rice SANS ON, av Ne POO CORN SO

- Wheaton 264, 899 and

397, that the lower Court in the instant case examined

42 «

exceeded the reasonable necessity for their exercise, and

confined the actual decision to the validity of the regula-

tions under the Fourteenth Amendment. This is ap-. .

parent in the very language of the opinion in Sproles

v. Binford which — briefs quote and requote

with such fervor:

‘In exercising its auth rity over its a

the State is not. limited to the raising of revenue

fof maintenance.and reconstruction, or to regula-

... tions as to the mariner in which vehicles: shall. be

operated, but the State may also prevent the wear

and hazards due to excessive weight of load.

Limitations of size and weight are manifestly sub-

jects within the broad range of legislative discre- —

tion. To make scientific precision a criterion of

constitutional power would be to subject the State

to an intolerable supervision hostile to the basic .

principles of our Government and wholly beyond

_ the protection which the general clause of the 14th

amendment was intended to secure.’

An examination of tle Findings of Fact of the Dis-

trict Court which tried the case of Sproles v. Binford,”

‘reveals that there was no proof or finding of a substan- e

tial burden on‘ interstate commerce..

It was in accordance with the traditional ‘eitieg of -

this Court, as espned in. Cohens v. Virginia, 6

uelid v. Ambler, 272 U. S..365,

the cases of Morris v. Duby and a asies v. Binford

(Opinion R. 73):

‘We — given careful Sniddvaiiion to what

". was said in Morris v. Duby and Sproles y. Binford,

. supra, and were at first-inclined to thin that these ;

~ decisions were conclusive of the. case before us.

ae Transcript of Record, p. 126-140, Office” Supreme Court of 7

United States, Vol. 112, Case 826: —

**%

“ : ( “uh

Upon more mature consideration, we do not think

this is correct. It is true that in Morris v. Duby a

state statute prescribing a maximum load weight.

of 16,500 pounds was upheld, and in Sproles v. Bin-.

ford one prescribing a net- load of 7,000 pounds;

but in neither of these cases was their any such

showing of the unreasonableness of the limitation .

and of the direct burden upon interstate commerce

when applied to a system of. standard concrete

roads as is contained in the record before us. The

same is true of State v. Nutt, supra. In Sproles v.

inford the court commented on the fact (p. 385)

“that the roads capable of carrying a greater load

- than the maximum permitted by the statute did not

form a regularly connected system and were scat-

tered throughout the state and that the operations

of complainant were conducted over all types of

‘a

system of standard highways of the. finest charac-

ter; and-there is no reasonable relatf@# between the

limitations complained of and the preservation of

safety of such highways. In the light of experience

and of scientific knowledge, there is no ground for

reasonable difference of opinion ag to the gross load

limitation of 20,000 pounds not being necessary for

-the protection of such’ roads thémselves, and there,

is even less justification for the requirement that.

the tractor-semi-trailer combjnation be counted one -

unit for the purpose of computing gross load.’’

, The appellants contend that State regulations of the

use of their highways cannot be subjected to the test-of

the Commerce Clause because the States own their high-

ways. The term’ ‘‘ownership”’ is nomen generalissi-

mum, and the rights and duties which are the attributes —

- of ownership are as varied as the many characters which

ownership may assume. , = |

It is needless in this case to indulge in metaphysical

exploration into the concephof ownership and it.is need-.

highways and bridges. Here we have a connected. .

‘less also to engage in constitutional debate as to whether

a State might, in the absence of the Federal Highway .—

Acts, close its roads to all commercial transportation,

or to the transportation of commodities, or deny the

use of its roads entirely to transportation for hire. Out

of wisdom born of a recognition by all the States that

the Constitution ‘was framed upon the theory,that the

peoples of the several States must sink or swim together,

and that in the long run prosperity and salvation are

in union and not division,’’ * the several States and the

National Government have by their several conventions

‘ pursuant to the Federal Highway Acts rendered it for-

ever unnecessary to consider these questions, and have

cooperated in building and maintaining a great system

of improved highways, interstate in character, connect- —

ing the whole nation and dedicated to the needs of inter-

state commerce. Nashville; etc. v. Walters, 294 U.S.

405, 417. Under these acts, it is true, the States retain -

the ownership of the highways,.the easements, and

rights of way, and the duty to maintain, but this is not

to exclude the equities of the nation in these highways

and the protection of the Commerce Clause which at-

taches to that equity and conditions the rights of owner-

ship to the extent that State regulation of the use of its

highways will not unreasonably burden interstate com- |

merece.

We repeat what was said in Morris v. oo 274 U. S.

125:

*<« Regulation as to the method of use .. . remains

with the States ... unless the re lation is so arbi-

trary and unreasonable as to defeat the useful pur-

poses for which Congress has made its large contri-

butions to bettering the highway systems of the

Union .. cine (emphasis added )

- Baldwin v. G. A. F. Seelig, 294 U. S. 511, 523.

' And in Bush v. Malog, 267 U: S. 317, it was said:

‘‘The Federal Aid legislation is df significance,

not ‘because of the aid given by the United States

for the constru of particular highways, but

because pamg erogelind clear the purpose of Con-

- gress that State highways shall. be open to nter-

state commerce. (Emphasis added.)

In Buck v. Kuykendall, 267 U.S. 307, this Court’con-

sidered a State attempt to deny an interstate operator _ |

the right to operate within the State on the ground that

adequate highway transportation facilities already

existed. The State’s action was held invalid not only

as a burden on interstate commerce and an invasion of 7 j

federal power, but as the Court said (page 316) because |

‘‘it also defeats the purpose of Congress expressed in

‘the legislation giving federal aid for the construction

_ of interstate highways.”’

_* The later decision of this Court in Bradley v. Pub.

Util. Commn. 289 U. S. 92, upholding a State Commis-

_sion order denying an interstate operator a certificate

to operate over a particular highway because of eon-

gestion, does not detract from the fundamental prin-

ciple that a State may not close its highways to inter-

state commerce. In that decision (page 94) it was said:

“It is contended that the order of the Commis-

sion is void because it exdludes Bradley from inter-

state commerce. The order does not in terms ex-

clude him from operating interstate. The denial of -

the certificate @xcludes him merely from Route 20.

In specifying the route, Bradley complied with the

statutory requirement that an applicant for a cer-

tificate shall set forth ‘the complete route’ over

which he desires to operate. Ohio General Code,

§614-90(c). But the statute confers upon an appli-

cant the right to-amend his application before or

after hearing or action by the Ccmatiaien §614-

91. And it authorizes him, after the certificate is re-

a~T

fused, to ‘file a new: a plication or supplement any.

former application, for the purpose of- changing’

the route. §614-98. No amendment of the appli-

cation was made or new application filed. For aught

that appears, some alternate or amended route

was available on which there was no ——

The equity of the people of the: United States in the

Federal aid highways is indicated by the provisions of

Section 14 of the Federal Highway Act of 1921, quoted

above, which was designed to assure the permanency of

the interstate highway system, by providing that in

case any State failed to maintain any Federal aid high-

way within its boundaries, the Federal Government

‘‘shall proceed immediately to have such highway

placed in a proper condition of maintenance.’’ The cost,

of this Federal. maintenance is charged against the

Federal funds allotted to such State, and upon reim-

bursement by the State, the amount is to be paid into -

the Federal highway fund ‘‘for reapportionment among

_ all the States for the construction of roads” under the

Act. :

It is tribute to the spirit i in which all the States have

cooperated under their several conventions with the

Federal Government, and witness to the great value. to

all the States of the natignal interstate system of high-

ways, that it. has not yet been necessary in any State

to enforce the drastic provisions of the Federal law.“

But of what avail is the protection of this provision

of the Federal law, accepted and agreed to by all the

States, and to what end the assurance that the physical

capacity of the Federal aid highways be maintained, ‘if,

in the exercise of a power said by appellants to exist by

14 The om of Public Roads and Its Work, Revised Jane 30,

1930, Thomas H. McDonald.

* virtue of the States’ ‘absolute ownership” of these

‘roads, regulations may be enforced which will deny a

reasonable use of the Federal aid system to interstate

- conamerce and permit this system in un large measure to

waste in idleness ?

Certainly by virtue of the great national ipvenbennd

in the Federal aid system and the conventions between

all of the several States and the Nation, the people of

the United States may assert such an equity in the inter-

state highways as will entitle them to the protection of:

the corollary of the Commerce Clause that interstate

~ commerce shall not be burdened by State legislation. ex-

ceeding its reasonable necessity. It cannot be ‘doubted

that. this was the-intent of this Court when it said-in

Morris. v. Duby, 274 U.S. 135, 145: :

‘Regulation as to the method, of use, theiews

necessarily remains with the State and can not be

interfered with unless the regulation is so arbitrary

.and unreasonable as to defeat the useful purposes

_ for which Congress has made: its large contribu-

tion to ae the highway systems of the

Union. .

- Nor do we believe that the national equity in the |

Federal aid system can be dissipated, nor the protec-

tion of the Commerce Clause denied, on appellants’

theory. (S. C. Brief. 95-106) that the primary Federal

aid system of highways within the boundaries of a State

is an ‘innocent object”’, which can be dragged. down

to the level of its local and rural roads for the conven-

iences of administration and enforcement. Such a doc-

trine: implies an utter negation of the entire Federal

aid program and an unconscionable breach of the con-

ventions pursuant to which this me of merreye

has been built up.. |

48 |

This attempt to excuse the defeat of the Federal-aid

‘program deserves the same answer as that given by this

Court to a similar ‘‘reasonable relationship”’ suggested

by counsel in support of the New York Milk Control

Act, as it affected interstate commerce :

‘‘Whatever relation there may be... is too re-

mote and indirect to justify obstructions to the

normal flow of commerce in its movement between

624.

Even. when determining the : validity of State laws

under the Fourteenth Amendment, this Court has said:

—‘Constitutional guarantees cannot be made to

“yield to mere corivenience.’” Weaver v. Palmer

Bros. Co., 270 U. 8. 402, 415,

are not to be so lightly treated, they are superior to

this sup joren necessity.”’ Schlesinger v.. Wiscon- |

sin, 270

CON CLUSION.

The record in this case presents for the first time a

situation foreseen by this Court in Morris v. Duby; 274

U. S. 135, when it said that State regulation of the size

and weight of motor vehicles in interstate commerce

must not be ‘‘so arbitrary and unreasonable as to de-

feat the useful purposes for which Congress has made

its large contributions to bettering the highway systems

of the Union... .”

The stérn language of the Supreme Court In Re Debs, |

158 U. S. 564 (1894) points the true course (591):

‘‘Up to a recent date commerce, both interstate

and international,, was mainly by water, .and

it is not strange that both the legislation of Con-

gress and the cases in the courts have been prin-

cipally concerned therewith, The fact that in re-

_ cent years interstate commerce has ¢ome mainly

_* to be carried on by*xailroads and~over artificial

highways has in no makner narrowed the scope of:

the constitutional provision, or abridged the power

of Congress over su mmerce. On the contrary,

the same fullness of control exists in the one case

as in the other, and the same power to remove ob-

structions from the one as from the other. |

‘“‘Constitutional provisipns do not change, bit

their operation extends t¢ new matters as the mode

of business and the habits\of life of the people vary

with each succeeding generation. The law of the

common carrier is the same today as when trans-

portation on land was by coach and wagon, and on |

water by canal boat and sailing vessel, yet in its

actual operation it touches and regulates trans- —

portation by modes then unknown, the railroad |

train and the steamship. Just so is it with the

grant to the national government of power over

interstate commerce. The Constitution has not

changed. The power is the same. But it operates

today upon modes of interstate co ce unknown

_ ta the fathers, and it will operate with equal force

- upon any new modés of such commerce which the

. future may develop."

When, finally, we come to weigh the National inter-

ests against the State interests as they are separately —

affected by the South Carolina Act; the conclusion is _

clearly right and necessary: that under all the circum- ‘

stances'the South Carolina Act exceeds the scope of

the State’s police power, and goes far beyond the needs

of the State to unduly, burden the flow of interstate -

. commerce, to defeat the purposes of Federal aid, and

to subvert the purposes of the Motor Carrier Act. It

therefore violates the Commerce Clause of thé Con-

stitution of the United States. _ ee

| 50 *

Any other conclusion of law, tiene on the evidence i in

this éase, would deny: to the N ational interests the pro-

_ tection which the Commerce Clause was intended to

afford. —

“Bae Contttin, Art, I , 88, Cl. 3, the power

to regulate interstate commerce is expressly com m,/”

mitted to Congress and therefo: _impliedly for- |

ie straints, to prevent interference through conflict-

i ing or hostile State laws and to insure uniformity _.

| in regulation. It means that in the matter of inter-. |

state commerce gre a single nation—one and 3

3 thesame people. All the States have assented to it, |

= _ all aré alike bound by it and all are equally pro-- |

| is 508, 5 by it.’’ Penna. v. West Virginia, 262°0. 8: |

ee, ' . §53, 596.

See Fo Re

. The. United States form, for many, and for: |

most important. purposes, a single nation...In 3

- ‘War, we are one people. In making peace, we are’ 4

one people. In all commercial-regulations; we are |

one and the same people ... America has chosen to 4

be’ in many respects and to many purposes, a na- §

i : tion ; and for all these purposes her government is q

“dl cake complete ; to all these objects it is competent.” |

Chief Justice Marshall in Cohens v.. Virgima, 6. |

‘Wheaton, 264, 413. | . ner :

—— submitted,

t Ss ihe, : Cary D. Lanpis? “iy

4 4 | Attorney General of Florida. |

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