The Constitution of the United States of America: Analysis and Interpretation
Chapter 23 : ADEQUATE SERVICE REGULATIONS In many other respects the power still remains with the St

ADEQUATE SERVICE REGULATIONS

In many other respects the power still remains with the States to require by statute or administrative order a fair and adequate service for their inhabitants from railway companies, including interstate carriers operating within their borders, so long as the burdens thus imposed upon interstate commerce are, in the judgment of the Court, "reasonable." In an instructive brace of cases the Court was asked to say whether a carrier, in the interest of providing proper local facilities of commerce, could be required to stop its interstate trains.

In one case a State regulation requiring all regular pa.s.senger trains operating wholly within the State to stop at all county seats was held to have been validly applied to interstate connection trains;[799] while in the other case a statute requiring _all_ pa.s.senger trains to stop at county seats was held invalid, there being "other and ample accommodation."[800] Comparing these and other like decisions, the Court has stated "the applicable general doctrine" to be as follows: (1) It is competent for a State to require adequate local facilities, even to the stoppage of interstate trains or the rearrangement of their schedules.

(2) Such facilities existing--that is, the local conditions being adequately met--the obligation of the railroad is performed, and the stoppage of interstate trains becomes an improper and illegal interference with interstate commerce. (3) And this, whether the interference be directly by the legislature or by its command through the orders of an administrative body. (4) The fact of local facilities this court may determine, such fact being necessarily involved in the determination of the Federal question whether an order concerning an interstate train does or does not directly regulate interstate commerce, by imposing an arbitrary requirement.[801] "There is, however," it later added, "no inevitable test of the instances; the facts in each must be considered."[802]

In the same way a State regulation requiring intersecting railways to make track connections was held valid,[803] as was also a regulation requiring equality of car service between s.h.i.+ppers;[804] while a regulation requiring the delivery of s.h.i.+pments on private sideways[805]

and one requiring cars for local s.h.i.+pments to be furnished on demand, were held to be invalid.[806] In the first brace of decisions, the application of the local regulation to interstate commerce was found not to be "unduly" burdensome; in the second brace the contrary conclusion was reached.

SAFETY AND OTHER REGULATIONS

A cla.s.s of regulations as to which the Court has exhibited marked tolerance although they "incidentally" embrace interstate transportation within their operation are those which purport to be in furtherance of "public safety."[807] The leading case is Smith _v._ Alabama,[808] in which the Court held it to be within the police power of the State to require locomotive engineers to be examined and licensed, and to enforce this requirement until Congress should decree otherwise in the case of an engineer employed exclusively in interstate transportation. Also upheld as applicable to interstate trains were a statute which forbade the heating of pa.s.senger cars by stoves;[809] a munic.i.p.al ordinance restricting the speed of trains within city limits;[810] the order of a public utility commission requiring the elimination of grade crossings;[811] a statute requiring electric headlights of a specified minimum capacity;[812] a statute requiring three brakemen on freight trains of over twenty-five cars.[813] In the last case the Court admitted that "under the evidence," there was "some room for controversy" as to whether the statute was necessary, but thought it "not so unreasonable as to justify the Court in adjudging it" to be "merely an arbitrary exercise of power" and "not germane" to objects which the State was ent.i.tled to accomplish.[814] And in 1943 the Court sustained, though again in somewhat doubtful terms, the order of a State railroad commission requiring a terminal railroad which served both interstate and local commerce to provide caboose cars for its employees.[815] At times, indeed, the Court has made surprising concession to local views that had nothing to do with safety. Hennington _v._ Georgia,[816] decided in 1896, where was sustained a Georgia statute forbidding freight trains to run on Sunday, is perhaps the supreme example. Whether such an act would pa.s.s muster today is doubtful. And earlier statutes reinforcing the legal liability of railroads as common carriers and the carriers of pa.s.sengers were sustained in the absence of legislation by Congress.[817]

INVALID STATE REGULATIONS

"The principle that, without controlling Congressional action, a State may not regulate interstate commerce so as substantially to affect its flow or deprive it of needed uniformity in its regulation is not to be avoided by 'simply invoking the convenient apologetics of the police power.'" So remarks Chief Justice Stone in his summarizing opinion cited above, in Southern Pacific Co. _v._ Arizona.[818] Among others he lists the following instances in which State legislation was invalidated on the basis of this rule: "In the Kaw Valley case[819] the Court held that the State was without const.i.tutional power to order a railroad to remove a railroad bridge over which its interstate trains pa.s.sed, as a means of preventing floods in the district and of improving its drainage, because it was 'not pretended that local welfare needs the removal of the defendants' bridges at the expense of the dominant requirements of commerce with other States, but merely that it would be helped by raising them.' And in Seaboard Air Line R. Co. _v._ Blackwell,[820] it was held that the interference with interstate rail transportation resulting from a State statute requiring as a safety measure that trains come almost to a stop at grade crossings, outweigh the local interest in safety, when it appealed that compliance increased the scheduled running time more than six hours in a distance of one hundred and twenty-three miles."[821] And "more recently in Kelly _v._ Was.h.i.+ngton,"[822] the Chief Justice continued, "we have pointed out that when a State goes beyond safety measures which are permissible because only local in their effect upon interstate commerce, and 'attempts to impose particular standards as to structure, design, equipment and operation [of vessels plying interstate] which in the judgment of its authorities may be desirable but pa.s.s beyond what is plainly essential to safety and seaworthiness, the State will encounter the principle that such requirements, if imposed at all, must be through the action of Congress which can establish a uniform rule. Whether the State in a particular matter goes too far must be left to be determined when the precise question arises.'"

STATE REGULATION OF LENGTH OF TRAINS

Applying the test of these precedents, the Chief Justice concluded that Arizona, in making it unlawful to operate within the State a railroad train of more than fourteen pa.s.senger or seventy freight cars, had gone "too far"; and in support of this conclusion he recites the following facts: "In Arizona, approximately 93% of the freight traffic and 95% of the pa.s.senger traffic is interstate. Because of the Train Limit Law appellant is required to haul over 30% more trains in Arizona than would otherwise have been necessary. The record shows a definite relations.h.i.+p between operating costs and the length of trains, the increase in length resulting in a reduction of operating costs per car. The additional cost of operation of trains complying with the Train Limit Law in Arizona amounts for the two railroads traversing that State to about $1,000,000 a year. The reduction in train lengths also impedes efficient operation.

More locomotives and more manpower are required; the necessary conversion and reconversion of train lengths at terminals and the delay caused by breaking up and remaking long trains upon entering and leaving the state in order to comply with the law, delays the traffic and diminishes its volume moved in a given time, especially when traffic is heavy.

"At present the seventy freight car laws are enforced only in Arizona and Oklahoma, with a fourteen car pa.s.senger car limit in Arizona. The record here shows that the enforcement of the Arizona statute results in freight trains being broken up and reformed at the California border and in New Mexico, some distance from the Arizona line. Frequently it is not feasible to operate a newly a.s.sembled train from the New Mexico yard nearest to Arizona, with the result that the Arizona limitation governs the flow of traffic as far east as El Paso, Texas. For similar reasons the Arizona law often controls the length of pa.s.senger trains all the way from Los Angeles to El Paso.

"If one State may regulate train lengths, so may all the others, and they need not prescribe the same maximum limitation. The practical effect of such regulation is to control train operations beyond the boundaries of the State exacting it because of the necessity of breaking up and rea.s.sembling long trains at the nearest terminal points before entering and after leaving the regulating State. The serious impediment to the free flow of commerce by the local regulation of train lengths and the practical necessity that such regulation, if any, must be prescribed by a single body having a nation-wide authority are apparent.

"The trial court found that the Arizona law had no reasonable relation to safety, and made train operation more dangerous. Examination of the evidence and the detailed findings makes it clear that this conclusion was rested on facts found which indicate that such increased danger of accident and personal injury as may result from the greater length of trains is more than offset by the increase in the number of accidents resulting from the larger number of trains when train lengths are reduced. In considering the effect of the statute as a safety measure, therefore, the factor of controlling significance for present purposes is not whether there is basis for the conclusion of the Arizona Supreme Court that the increase in length of trains beyond the statutory maximum has an adverse effect upon safety of operation. The decisive question is whether in the circ.u.mstances the total effect of the law as a safety measure in reducing accidents and casualties is so slight or problematical as not to outweigh the national interest in keeping interstate commerce free from interferences which seriously impede it and subject it to local regulation which does not have a uniform effect on the interstate train journey which it interrupts."[823]

THE LESSON OF SOUTHERN PACIFIC CO. _v._ ARIZONA

The lesson to be extracted from Southern Pacific Co. _v._ Arizona is a threefold one: 1) Where uniformity is judged by the Court to be "essential for the functioning of commerce, a State may not interpose its regulation"; 2) in resolving this question the Court will canva.s.s what it considers to be relevant facts extensively; 3) its task is, however, in the last a.n.a.lysis, one of weighing competing values, in brief, arbitral rather than strictly judicial.

The lesson of Southern Pacific is further exemplified by the more recent holding in Morgan _v._ Virginia,[824] in which the Court was confronted with a State statute which, in providing for the segregation of white and colored pa.s.sengers, required pa.s.sengers to change seats from time to time as might become necessary to increase the number of seats available to the one race or the other. First, reciting the rule of uniformity, Justice Heed, for the Court, said: "Congress, within the limits of the Fifth Amendment, has authority to burden [interstate] commerce if that seems to it a desirable means of accomplis.h.i.+ng a permitted end. * * *

As no State law can reach beyond its own border nor bar transportation of pa.s.sengers across its boundaries, diverse seating requirements for the races in interstate journeys result. As there is no federal act dealing with the separation of races in interstate transportation, we must decide the validity of this Virginia statute on the challenge that it interferes with commerce, as a matter of balance between the exercise of the local police power and the need for national uniformity in the regulations for interstate travel. It seems clear to us that seating arrangements for the different races in interstate motor travel require a single, uniform rule to promote and protect national travel.

Consequently, we hold the Virginia statute in controversy invalid."

STATE REGULATION OF MOTOR VEHICLES; VALID REGULATIONS

Cases arising under this caption further ill.u.s.trate the compet.i.tion for judicial recognition between the interstate commerce interest and local interests, especially that of public safety. A new element enters the problem, however, which lends some added weight to the claims of the police power, the fact, namely, that motor vehicles use highways furnished and maintained by the State.

A State is ent.i.tled to enact a comprehensive scheme for the licensing and regulation of motor vehicles using its highways with a view to insuring itself of reasonable compensation for the facilities afforded and to providing adequate protection of the public safety; and such scheme may embrace out-of-State vehicles using the State's highways.[825] Thus legislation limiting the net loads of trucks using the State's highways is valid;[826] as are also, in the absence of national legislation on the subject, State regulations limiting the weight and width of the vehicles themselves, provided such regulations are applied without discrimination as between vehicles moving in interstate commerce and those operating only intrastate.[827] Likewise, a State may deny a certificate of public convenience and necessity to one desiring to operate a common carrier over a particular highway to an out-of-State destination in an adjacent State, on the ground that the specified route is already congested. So it was held in Bradley _v._ Public Utilities Commission of Ohio,[828] in which the Court took cognizance of the full hearing accorded the appellant, and of his failure to choose another route, although he was at liberty to do so.

And in Maurer _v._ Hamilton a Pennsylvania[829] statute prohibiting the operation over its highways of any motor vehicle carrying any other vehicle over the head of the operator was upheld in the absence of conflicting Congressional legislation. Similarly, in Welch _v._ New Hamps.h.i.+re[830] a statute of that State establis.h.i.+ng maximum hours for drivers of motor vehicles was held not to be superseded by the Federal Motor Carrier Act prior to the effective date of regulations by the Interstate Commerce Commission dealing with the subject. Nor was pendency before the Interstate Commerce Commission of an application under the Motor Carrier Act for a license to operate a motor carrier in interstate commerce found to supersede as to the applicant the authority of a State to enforce "reasonable regulations" of traffic upon its highways. "In the absence of the exercise of federal authority," said the Court, "and in the light of local exigencies, the State is free to act in order to protect its legitimate interests even though interstate commerce is directly affected."[831] And for the same reason New York City was ent.i.tled to apply to trucks engaged in the delivery of goods from New Jersey a traffic regulation forbidding the operation on the streets of an advertising vehicle.[832] Said Justice Douglas for the Court: "Many of these trucks are engaged in delivering goods in interstate commerce from New Jersey to New York. Where traffic control and the use of highways are involved and where there is no conflicting federal regulation, great leeway is allowed local authorities, even though the local regulation materially interferes with interstate commerce."[833] Also, the Court has consistently sustained State regulations requiring motor carriers to provide adequate insurance protection for injuries caused by the negligent operation of their vehicles.[834]

INVALID STATE ACTS AFFECTING MOTOR CARRIERS

A State law which imposes upon all persons engaged in transporting for hire by motor vehicle over the public highways of the State the burdens and duties of common carriers and requires them to furnish bonds to secure the payment of claims and liabilities resulting from injury to property carried, may not be validly applied to a private carrier which is engaged exclusively in hauling from one State to another State the goods of particular factories under standing contracts with their owners, the said carrier enjoying neither a special franchise nor using the eminent domain power.[835] On the other hand, a State statute which prohibits common carriers for hire from using the highways of the State between fixed termini or over regular routes without having first obtained from a director of public works a certificate of public convenience, is primarily not a regulation to secure safety on the highways or to conserve them, but a ban on compet.i.tion and, as applied to a common carrier by motor vehicle of pa.s.sengers and express purely in interstate commerce, is both violation of the Commerce Clause and defeats the express purpose of Congressional legislation rendering federal aid for the construction of interstate highways.[836]

TRANSPORTATION AGENCIES

The special characteristics of motor travel have brought about a reversal of the Court's att.i.tude toward State control of transportation agencies. Sustaining in 1941 a California statute requiring that agents engaged in negotiating for the transportation of pa.s.sengers in motor vehicles over the highways of the State take out a license, Justice (later Chief Justice) Stone, speaking for the Court, said: "In Di Santo _v._ Pennsylvania,[837] this Court took a different view * * *, it held that a Pennsylvania statute requiring others than railroad or steams.h.i.+p companies, who engage in the intrastate sale of steams.h.i.+p tickets or of orders for transportation to and from foreign countries, to procure a license by giving proof of good moral character and filing a bond as security against fraud and misrepresentation to purchasers, was an infringement of the Commerce Clause. Since the decision in that case this Court has been repeatedly called upon to examine the const.i.tutionality of numerous local regulations affecting interstate motor vehicle traffic. It has uniformly held that in the absence of pertinent Congressional legislation there is const.i.tutional power in the States to regulate interstate commerce by motor vehicle wherever it affects the safety of the public or the safety and convenient use of its highways, provided only that the regulation does not in any other respect unnecessarily obstruct interstate commerce."[838]

NAVIGATION; GENERAL DOCTRINE

In Gibbons _v._ Ogden[839] the Court, speaking by Chief Justice Marshall, held that New York legislation which excluded from the navigable waters of that State steam vessels enrolled and licensed under an act of Congress to engage in the coasting trade was in conflict with the act of Congress and hence void. In Willson _v._ Blackbird Creek and Marsh Co.[840] the same Court held that in the absence of an act of Congress, "the object of which was to control State legislation over those small navigable creeks into which the tide flows," the State of Delaware was ent.i.tled to incorporate a company vested with the right to erect a dam across such a creek. From these two cases the Court in Cooley _v._ the Board of Wardens,[841] decided in 1851, extracted the rule that in the absence of conflicting legislation by Congress States were ent.i.tled to enact legislation adapted to the local needs of interstate and foreign commerce, that a pilotage law was of this description, and was, accordingly, const.i.tutionally applicable until Congress acted to the contrary to vessels engaged in the coasting trade.

In the main, these three holdings have controlled the decision of cases under the above and the following caption, there being generally no applicable act of Congress involved. But the power which the rule attributed to the States, they must use "reasonably," something they have not always done in the judgment of the Court.

Thus an Alabama statute which required that owners of vessels using the public waters of the enacting State be enrolled, pay fees, file statements as to owners.h.i.+p, etc., was held to be inapplicable to vessels licensed under the act of Congress to engage in the coasting trade;[842]

as was also a Louisiana statute ordering masters and wardens of the port of Orleans to survey the hatches of all vessels arriving there and to enact a fee for so doing.[843] "The unreason and the oppressive character of the act" was held to take it out of the cla.s.s of local legislation protected by the rule of the Cooley case.[844] Likewise, while control by a State of navigable waters wholly within its borders has been often a.s.serted to be complete in the absence of regulation by Congress,[845] Congress may a.s.sume control at any time;[846] and when such waters connect with other similar waters "so as to form a waterway to other States or foreign nations, [they] cannot be obstructed or impeded so as to impair, defeat, or place any burden upon a right to their navigation granted by Congress."[847]

On the other hand, in Kelly _v._ Was.h.i.+ngton,[848] decided in 1937, the Court sustained the State in applying to motor-driven tugs operating in navigable waters of the United States legislation which provided for the inspection and regulation of every vessel operated by machinery if the same was not subject to inspection under the laws of the United States.

It was conceded that there was "elaborate" federal legislation in the field, but it was a.s.serted that the Was.h.i.+ngton statute filled a gap.

"The principle is thoroughly established," said Chief Justice Hughes for the Court, "that the exercise by the State of its police power, which would be valid if not superseded by federal action, is superseded only where the repugnance or conflict is so 'direct and positive' that the two acts cannot 'be reconciled or consistently stand together.'"[849]

And in Bob-Lo Excursion Co. _v._ Michigan,[850] the Court, elbowing aside a decision of many years standing,[851] ruled that the commerce clause does not preclude a State, in the absence of federal statute or treaty, from forbidding racial discrimination by one carrying pa.s.sengers by vessel to and from a port in the United States to an island situated in Canadian territory.

BRIDGES, DAMS, FERRIES, WHARVES

The holding in Willson _v._ Blackbird Creek Marsh Co.[852] has been invoked by the Court many times in support of State legislation permitting the construction across navigable streams of dams, booms, and other sh.o.r.e protections,[853] as well as in support of State legislation authorizing the erection of bridges and the operation of ferries across such streams.[854] Bridges, it is true, may obstruct some commerce, but they may more than compensate for this by aiding other commerce.[855] In Justice Field's words in Huse _v._ Glover,[856] it should not be forgotten that: "the State is interested in the domestic as well as in the interstate and foreign commerce conducted on the Illinois River, and to increase its facilities, and thus augment its growth, it has full power. It is only when, in the judgment of Congress, its action is deemed to encroach upon the navigation of the river as a means of interstate and foreign Commerce, that that body may interfere and control or supersede it. * * * How the highways of a State, whether on land or by water, shall be best improved for the public good is a matter for State determination, subject always to the right of Congress to interpose in the cases mentioned."[857] The same principle applies to the construction of piers and wharves in a navigable stream,[858] as well as to harbor improvements by a State for the aid and protection of navigation;[859] and reasonable tolls may be charged for the use of such aids, and reasonable regulations laid down governing their employment.[860]

Ferries

A State may license individuals to operate a ferry across an interstate river bounding its territory, or may incorporate a company for the purpose.[861] Nor may a neighbor State make the securing of its consent and license a condition precedent to the operation of such a ferry to one of its towns.[862] Earlier the right of a State to regulate the rates to be charged by an interstate bridge company for pa.s.sage across its structure was denied by a closely divided Court.[863] The ruling does not, however, control the regulation of rates to be charged by an interstate ferry company. These the chartering State may, in the absence of action by Congress, regulate except in the case of ferries operated in connection with railroads,[864] as to which Congress has acted with the result of excluding all State action.[865] A State may also regulate the rates of a vessel plying between two points within the State although the journey is over the high seas; although again action by Congress may supersede State action at any time.[866]

TELEGRAPHS AND TELEPHONES

An Indiana statute which required telegraph companies to deliver dispatches by messenger to the persons to whom they were addressed if the latter resided within one mile of the telegraph station or within the city or town where it was located, and which prescribed the order of preference to be given various kinds of messages, was held to be an unconst.i.tutional interference with interstate commerce;[867] as was also the order of the Ma.s.sachusetts Public Service Commission interfering with the transmission to firms within the State's borders of continuous quotations of the New York Stock Exchange by means of ticker service.[868] But a Virginia statute which imposed a penalty on a telegraph company for failure in its "clear common-law duty" of transmitting messages without unreasonable delay, was held, in the absence of legislation by Congress, to be valid;[869] as was also a Michigan statute which prohibited the stipulation by a company against liability for nonperformance of such duty.[870] However, a South Carolina statute which sought to make mental anguish caused by the negligent nondelivery of a telegram a cause of action, was held to be, as applied to messages transmitted from one State to another or to the District of Columbia, an unconst.i.tutional attempt to regulate interstate commerce.[871] A State has no authority to interfere with the operation of the lines of telegraph companies constructed along postal routes within its borders under the authority of the Post Road Act of 1866,[872] nor to exclude altogether a company proposing to take advantage of the act;[873] but that act does not deprive the State or a munic.i.p.ality of the right to subject telegraph companies to reasonable regulations, and an ordinance regulating the erection and use of poles and wires in the streets does not interfere with the exercise of authority under that act.[874] The jurisdiction conferred by The Transportation Act of 1920 upon the Interstate Commerce Commission, and since transferred to the Federal Communications Commission, over accounts and depreciation rates of telephone companies does not, in the absence of exercise by the federal agency of its power, operate to curtail the a.n.a.logous State authority;[875] nor is an unconst.i.tutional burden laid upon interstate commerce by the action of a State agency in requiring a telephone company to revise its intrastate toll rates so as to conform to rates charged for comparable distances in interstate service.[876]

GAS AND ELECTRICITY

The business of piping natural gas from one State to another to local distributors which sell it locally to consumers is a branch of interstate commerce which a State may not regulate.[877] Likewise, an order by a State commission fixing rates on electric current generated within the States and sold to a distributor in another State, imposes an unconst.i.tutional burden on interstate commerce, although the regulation of such rates would necessarily benefit local consumers of electricity furnished by the same company.[878] In the absence, on the other hand, of contrary regulation by Congress a State may regulate the sale to consumers in its cities of natural gas produced in and transmitted from another State;[879] nor did Congress, by the National Gas Act of 1938, impose any such contrary regulation.[880] Likewise, a State is left free by the same act to require a gas company engaged in interstate commerce to obtain a certificate of convenience before selling directly to customers in the State.[881] And where a pipe line is used to distribute both gas that is brought in from without the State and gas that is produced and used within the State, and the two are commingled, but their proportionate quant.i.ties are known, an order by the State commission directing the gas company to continue supplying gas from the line to a certain community does not burden interstate commerce.[882]

The transportation of natural gas from sources outside the State to local consumers in its munic.i.p.alities ceases to be interstate commerce at the point where it pa.s.ses from a pressure producing station into local distributing stations, and from that point is subject to State regulation.[883] A State public utilities commission is ent.i.tled to require a natural gas distributing company seeking an increase of rates to show the fairness and reasonableness of the rate paid by it to the pipe line company from which it obtains its supplies, both companies being subsidiaries of a third.[884] A State agency may require a company which sells natural gas to local consumers and distributing companies, transporting it in pipe lines from other States, to file contracts, agreements, etc., for sales and deliveries to the distributing companies;[885] nor does the fact that a natural gas pipe line from the place of production to the distributing points in the same State cuts across a corner of another State render it improper, in determining maximum rates for gas sold by the owner of the pipe line to distributing companies, to include the value of the total line in the rate base.[886]

A State may, as a conservation measure, fix the minimum prices at the wellhead on natural gas produced in the State and sold interstate.[887]

FOREIGN CORPORATIONS

A State may require that a foreign corporation as a condition of its being admitted to do a local business or to having access to its courts obtain a license, and in connection therewith furnish information as to its home State or country, the location of its princ.i.p.al office, the names of its officers and directors, its authorized capitalization, and the like, and that it pay a reasonable license fee;[888] nor is a corporation licensed by the National Government to act as a customs broker thereby relieved from meeting such conditions.[889] So it was decided in 1944. The holding does not necessarily disturb one made thirty years earlier in which the Court ruled that a statute which closed the courts of the enacting State to any action on any contract in the State by a foreign corporation unless it had previously appointed a resident agent to accept process, could not be const.i.tutionally applied to the right of a foreign corporation to sue on an interstate transaction.[890] A suit brought in a State court by a foreign corporation having its princ.i.p.al place of business in the State against another foreign corporation engaged in interstate commerce on a cause of action arising outside the State does not impose an undue burden on such commerce; and the forum being in other respects appropriate, its jurisdiction is not forfeited because the property attached is an instrumentality of interstate commerce.[891] There is nothing in the commerce clause which immunizes a foreign corporation doing business in a State from any fair inquiry, judicial or legislative, that is required by local laws.[892]