1. A final judgment of the district court, three judges sitting,
which dismisses a bill challenging the constitutionality of a state
statute and seeking to enjoin its enforcement, is reviewable in
this Court, on appeal under Jud.Code § 266, as amended by Act
of February 13, 1925, when an interlocutory injunction had been
applied for and a restraining order issued. P.
274 U. S.
556.
2. A state regulation providing that, before operating over the
state highways, a common carrier by motor shall apply for and
obtain a certificate or permit therefor from a state commission and
shall pay an extra tax for the maintenance and repair of the
highways and for the administration and enforcement of the laws
governing their use is constitutional though applied to carriers
engaged exclusively in interstate commerce. P.
274 U. S.
556.
3. That the tax so exacted is not all used for maintenance and
repair of the highways, but some of it for defraying expenses of
the commission in administration and enforcement of the act and
some for other purposes, is no concern of the taxpayer, it being
assessed for a proper purpose, and not unreasonable in amount. P.
274 U. S.
557.
Page 274 U. S. 555
4. An additional provision that no certificate should issue
until a policy covering liability and cargo insurance had been
filed with the commission is not a ground for complaint in this
case, even if it be unconstitutional in its application to the
plaintiffs as interstate carriers, since there are other provisions
declaring that the act shall apply to interstate commerce only
insofar as permitted by the federal Constitution and that the
invalidity of any part shall not affect any other part, and since
the requirement of such insurance was not the ground for
plaintiffs' refusal to apply for the certificate or pay the tax,
and was waived by the defendant commission in this Court. P.
274 U. S.
557.
Affirmed.
Appeal from a decree of the district court dismissing a bill to
enjoin the defendants, constituting the Public Utilities Commission
of Ohio, from enforcing against Clark and Riggs, interstate
carriers by motor, provisions of the Ohio Motor Transportation
Act.
MR. JUSTICE BRANDEIS delivered the opinion of the Court.
The Ohio Motor Transportation Act of 1923, as amended, Gen.Code,
§§ 614-84 to 614-102, provides that a motor
transportation company desiring to operate within the state shall
apply to the Public Utilities Commission for a certificate so to
do, and shall not begin to operate without first obtaining it; also
that such a company must pay at the time of the issuance of the
certificate and annually thereafter, a tax graduated according
Page 274 U. S. 556
to the number and capacity of the vehicles used. §§
614-87, 614-94.
Clark and Riggs operate as common carriers a motor truck line
between Aurora, Indiana, and Cincinnati, Ohio, exclusively in
interstate commerce. They ignored the provisions of the Act, and
operated without applying for a certificate or paying the tax. The
they brought this suit in the Federal Court for Southern Ohio to
enjoin the Commission from enforcing as against them the provisions
of the Act. The case was heard in the district court before three
judges on final hearing, under § 266 of the Judicial Code, as
amended by the Act of February 13, 1925. It appeared that, while
the Act calls the certificate one of "public convenience and
necessity," the Commission had recognized, before this suit was
begun, that, under
Buck v. Kuykendall, 267 U.
S. 307, and
Bush v. Maloy, 267 U.
S. 317, it had no discretion where the carrier was
engaged exclusively in interstate commerce, and was willing to
grant to plaintiffs a certificate upon application and compliance
with other provisions of the law.
See Cannon Ball
Transportation Co. v. Public Utilities Commission, 113 Ohio
St. 565, 567. The bill was dismissed. It is here on direct appeal.
This Court has jurisdiction, as an interlocutory injunction had
been applied for and a restraining order issued.
Moore v.
Fidelity & Deposit Co., 272 U. S. 317,
272 U. S.
320-321;
Smith v. Wilson, 273 U.
S. 388.
The plaintiffs claim that, as applied to them, the Act violates
the commerce clause of the federal Constitution. They insist that,
as they are engaged exclusively in interstate commerce, they are
not subject to regulation by the state; that it is without power to
require that, before using its highways, they apply for and obtain
a certificate, and that it is also without power to impose, in
addition to the annual license fee demanded of all persons using
automobiles on the highways, a tax upon them, under
Page 274 U. S. 557
§ 614-94, for the maintenance and repair of the highways
and for the administration and enforcement of the laws governing
the use of the same. The contrary is settled. The highways are
public property. Users of them, although engaged exclusively in
interstate commerce, are subject to regulation by the state to
ensure safety and convenience and the conservation of the highways.
Morris v. Duby, ante, p.
274 U. S. 135;
Hess v. Pawloski, ante, p.
274 U. S. 352.
Users of them, although engaged exclusively in interstate commerce,
may be required to contribute to their cost and upkeep. Common
carriers for hire, who make the highways their place of business,
may properly be charged an extra tax for such use.
Hendrick v.
Maryland, 235 U. S. 610;
Kane v. New Jersey, 242 U. S. 160.
Compare Packard v. Banton, 264 U.
S. 140,
264 U. S.
144.
There is no suggestion that the tax discriminates against
interstate commerce. Nor is it suggested that the tax is so large
as to obstruct interstate commerce. It is said that all of the tax
is not used for maintenance and repair of the highways; that some
of it is used for defraying the expenses of the Commission in the
administration or enforcement of the Act, and some for other
purposes. This, if true, is immaterial. Since the tax is assessed
for a proper purpose and is not objectionable in amount, the use to
which the proceeds are put is not a matter which concerns the
plaintiffs.
Plaintiffs urge that the decree should be reversed because of
the provision in the Act concerning insurance. The act provides
that no certificate shall issue until a policy covering liability
and cargo insurance has been filed with the Commission. §
614-99. The lower court held that, under
Michigan Public
Utilities Commission v. Duke, 266 U.
S. 570, this provision could not be applied to
exclusively interstate carriers,
Red Ball Transit Co. v.
Marshall, 8 F.2d 635,
639, and counsel for the Commission
Page 274 U. S. 558
stated in this Court that the requirement for insurance would
not be insisted upon. Plaintiffs urge that, because this was not
conceded at the outset, it was error to deny the injunction. The
circumstances were such that it was clearly within the discretion
of the court to decline to issue an injunction, and since an
injunction was the only relief sought, it properly dismissed the
bill.
Compare Chicago G. W. Ry. Co. v. Kendall,
266 U. S. 94,
266 U. S.
100-101. The plaintiffs did not apply for a certificate
or offer to pay the taxes. They refused or failed to do so not
because insurance was demanded, but because of their belief that,
being engaged exclusively in interstate commerce, they could not be
required to apply for a certificate or to pay the tax. Their claim
was unfounded. Moreover, the Act made each section and part thereof
independent, and declared that "the holding of any section or part
thereof to be void or ineffective for any cause shall not affect
any other section or part thereof." § 614-102. And the Act
also provided that it should apply to interstate commerce only
insofar as such regulation was permitted by the federal
Constitution. § 614-101.
It is not clear whether the liability insurance for which the
Act provides is against loss resulting to their persons from the
applicant's negligence in using the highways within the state or is
for loss to passengers resulting from such negligence, or for both
purposes. We have no occasion to consider whether, under any
suggested interpretation, liability insurance, as distinguished
from insurance on the interstate cargo, may be required of a
carrier engaged wholly in interstate commerce.
Compare Hess v.
Pawloski, supra. The decree dismissing the bill is affirmed,
but without prejudice to the right of the plaintiffs to seek
appropriate relief by another suit if they should hereafter be
required by the Commission to comply with conditions or provisions
not warranted by law.
Affirmed.
