Lloyd Fry Roofing Company v. Wood/Dissent Douglas

, with whom and  join, dissenting.

Whether the driver-owners involved here are contract or private carriers is immaterial to the determination of the federal question presented. That question is whether Arkansas can require a person engaged exclusively in the interstate transportation of goods by motor carrier to obtain a certificate of necessity and convenience from Arkansas. That is precisely what Arkansas has required, as made clear by the opinion of the State Supreme Court in the instant case. The Court said,

"We are of the opinion that the driver-owners involved in this litigation were contract carriers" (as defined in the Arkansas statute) and " were therefore required to have a certificate of necessity and convenience from the Arkansas Public Service Commission." 219 Ark. 553, 557, 244 S.W.2d 147, 149.

The label "Certificate of Necessity and Convenience" is more accurate than the word "permit," for the Arkansas law makes the grant of permission dependent upon a consideration of the following factors: The relevant parts of § 11 of Act No. 367, Ark. Acts 1941, pp. 947–949, are as follows: "(a) No person shall engage in the business of a contract carrier by motor vehicle over any public highway in this State unless there [p164] is in force with respect to such carrier a permit issued by the Commission, authorizing such persons to engage in such business

"(c) Subject to this Act a permit shall be issued to any qualified applicant therefor authorizing in whole or in part the operations covered by the application, if it appears from the application or from any hearing held thereon, that the applicant is fit, willing, and able to properly perform the service of a contract carrier by motor vehicle and to conform to the provisions of this Act and the lawful requirements, rules and regulations of the Commission, and the proposed operation, to the extent authorized by the permit, will promote the public interest and the policy declared in Section Two (2) of this Act; otherwise such application shall be denied

"(e) In granting applications for permits, the Commission shall take into consideration the reliability and financial condition of the applicant and his sense of responsibility toward the public; the transportation service being maintained by any railroad, street railway or motor carrier; the likelihood of the proposed service being permanent and continuous throughout twelve months of the year, and the effect which such proposed transportation service may have upon existing transportation service; and any other matters tending to show the necessity or want of necessity for granting said application. "(f) the Commission shall specify in the permit the business of the contract carrier covered thereby and the scope thereof and shall attach to it, at the time of issuance, and from time to time thereafter, such reasonable terms, conditions, and limitations consistent with the character of the holder as a contract carrier as are necessary to carry out, with respect to the operations of such carrier, the requirements established by the Commission under this Act; provided, however, that no terms, conditions, or limitations shall restrict the right of the carrier to substitute or add contracts within the scope of the permit, or to add to his or its equipment facilities, within the scope of the permit, as the development of the business and the demands of the public may require." "the reliability and financial condition of the applicant"—his "sense of responsibility toward the public"—"the transportation service being maintained by any railroad, street railway [p164] or motor carrier"—"the likelihood of the proposed service being permanent and continuous throughout twelve months of the year"—"the effect which such proposed transportation service may have upon existing transportation [p165] service"—"any other matters tending to show the necessity or want of necessity for granting said application." The permit will issue if it appears that "the applicant is fit, willing, and able" properly to perform the service and if the proposed operation "will promote the public interest" and the policy of the Act.

This statute is a regulation of interstate commerce, not a regulation of the use of Arkansas' highways. It is precisely the kind of control which the State of Washington tried to exercise over motor carriers and which was denied her by Buck v. Kuykendall, 267 U.S. 307. As Mr. Justice Brandeis, speaking for the Court in that case, said, the effect of this kind of state regulation is "not merely to burden, but to obstruct" interstate commerce. Id., at 316.

State regulations in the interest of safety, the exaction of a fee for highway maintenance, and the like are of a different character. See Highway Dept. v. Barnwell Bros., 303 U.S. 177, 189, and cases cited. So is a requirement that an interstate carrier get a permit to do intrastate business. See Eichholz v. Commission, 306 U.S. 268, 622.

The certificate or permit exacted here is one authorizing an interstate contract carrier "to engage in such business." Until today no state could impose any such condition on one engaged exclusively in interstate commerce. Until today such a certificate was the concern solely of the Interstate Commerce Commission. Congress gave the Commission authority to regulate interstate contract carriers. (49 U.S.C. § 304(a)(2)). Congress made it mandatory for them to obtain a permit to do business (id., § 309). It gave the Commission broad powers of investigation over these carriers (id., § 304(c)), provided for injunctions against violations (id., § 322(b)), and imposed [p166] criminal sanctions (id., § 322(a)). There is no phase of the operation, which Arkansas in this action seeks to regulate, that Congress has left untouched. It is the Interstate Commerce Commission that must determine whether this leasing operation is bona fide or a sham, whether the carriers are private interstate carriers requiring no permit or interstate contract carriers requiring one. Congress in other words has preempted the field, precluding both inconsistent and overlapping state regulations. See Hines v. Davidowitz, 312 U.S. 52; Hill v. Florida, 325 U.S. 538; Rice v. Santa Fe Elevator Corp., 331 U.S. 218; Bethlehem Steel Co. v. State Board, 330 U.S. 767; La Crosse Tel. Corp. v. Wisconsin Board, 336 U.S. 18; Plankinton Packing Co. v. Wisconsin Board, 338 U.S. 953; Automobile Workers v. O'Brien, 339 U.S. 454.