George W. Bush & Sons Co. v. Public Service Commission

⁵⁷¹ Pattison, J., delivered the opinion of the Court. The appeal in this ease is, from an order of the Circuit Court of Baltimore City, passed on the- 2'Tth day of February, 1928, sustaining a demurrer to, and dismissing, the amended bill of the appellant, George, W. Bush & Sons Company, a corporation organized under the laws of the State of Delaware, against the appellees, who constitute the Public; Service Commission of Maryland. The facts alleged in the hill are substantially as follows: The plaintiff at the time of, and prior to, the filing of the bill, was, operating, as a common carrier, a line- of steamboats on the Delaware River for the transportation, for hire, of goods, merchandise and other properties, between the cities of Philadelphia and Wilmington and, for a period approximately eighteen months before the tenth day of November, 1922, it was also operating a line of motor trucks in the transportation, for hire-, of goods and merchandise and other property, from points in Maryland to Wilmington and other points in Delaware, connecting with its line of steamboats upon the Delaware River. While so operating its truck line, it was, prior to the tenth day of November, 1922, notified by the Public Service Obmmission of Maryland, that it would be required to file an application with, and obtain from the commission permits, before it could lawfully operate its truck lines in Maryland, over the routes upon which it was then operating.

The plaintiff, on the 20th clay of August, 1922, filed its application in the prescribed form with the commission, asking for permits to operate motor vehicles over State, state aid, improved county roads, and streets and roads of incorporated towns or cities, in the State of Maryland, in the public transportation of merchandise or freight over specified routes between Ohestertown, Maryland and the Miaryland-Delawaxe state line by way of Elkton, between Providence, Maryland, the Maryland-Delaware state line by way of Elkton, and between Havre de Gracei, Maryland, and the ⁵⁷² Maryland-Delaware state line by way of Elkton, with the declared intention and purpose of extending the operation of its motor vehicles through and beyond the said Maryland-Delaware state line to Wilmington and other points in the State of Delaware. The commission set the application down for hearing on the 29th day of Hovember, 1922. On that day evidence was heard in respect to the facts contained in the application, and in said hearing the plaintiff asked that its application be deemed by the commission as asking for permits to operate said lines of motor trucks, for the purpose already stated, between points in Maryland and points in Delaware in the doing of both an interstate and an intrastate business, as well as permits to operate said lines doing an interstate business solely, which request, as alleged in the hill, was granted by the commission. The plaintiff at the time also made known to the commission that, if the permits were granted to it to do an interstate business solely, it would take out and pay for all licenses and comply in all respects with the statutes of the State, or any rule or regulation prescribed in respect thereto by any agency or instrumentality of the State.

The commission refused the permits asked for and, in the order refusing them, passed on the 20th day of February, 1922, declared “that the public welfare and convenience do not require tbe granting of tbe permits for wbieb applieations bave been made, as aforesaid, by tbe said Tbe George W. Busb & Sons Co., but tbat on tbe contrary that tbe granting of sucb permits would be prejudicial to tbe welfare and convenience of tbe public.” Tbe bill alleged tbe appellant’s solvency, ability and willingness to operate its trucks in compliance with tbe law, and tbe rules and regulations of tbe commission passed and made in respect thereto. Tbe appellant further alleged tbat it was entitled to tbe permits asked for and that the operation of tbe trucks would ⁵⁷³ not cause any damage or injury to the highways and bridges., other than that, caused by the same kind of motor trucks which wore, permitted to be used, and wore used thereon by others. They said the highways were not o-ver crowded, nor unduly congested, and that all the bridges, on the highways mentioned in the application are so constructed as to permit the use, over them, of heavier trucks than those used by the plaintiff. The hill asked for an injunction restraining the conunis.sion from enforcing against the plaintiff or from prosecuting it. for or on account of any alleged violation of the law or any order of the commission prohibiting the operation by it of said motor trucks in the manner stated in the appellant’s applications.

A demurrer filed to the amended bill of the commission was by an order of the court sustained, and the bill dismissed. It w'as from that order, as we have1 already said, that this appeal was taken. The commission, in its refusal to grant the permits asked for by the appellant, was governed and controlled by its construction of the Act of 1916, eh. 114, sec. 4, as. amended by section 4 of chapter 401 of the Act of 1922, which is as follows: “That it shall be the duty of the Public Service Commission of Maryland, upon the application of any motor vehicle owner for a permit to operate any motor vehicle for the public transportation of merchandise or freight over any specified route to investigate the expediency of granting said permit, the number of motor vehicles to be used, and the rate to be charged, and if, in the judgment of the Public Service Commission, it is deemed best for the public welfare and convenience that said permit should be granted, said Public Service Commission is hereby empowered and authorized to grant such permit subject to such conditions and terms and for such duration of time, not exceeding the period of twenty years, as it ⁵⁷⁴ may deem advisable. But, i£ said Public Service Commission deems the granting of such permit prejudicial to the welfare and convenience of the public, then the said Public Service Commission is hereby empowered and authorized to refuse the granting of same.

The said Public Service Commission of Maryland is further empowered and authorized to make such rules and regulations as it may deem necessary to govern the control and operation of same, and enforce same by such penalties, or forfeitures, as it may prescribe, including the revocation of the permit granted under the provisions of this act.” The act in terms empowered and authorized the commission toi refuse the granting of the permits asked for by the appellant, if it deemed the granting of them was prejudicial to the welfare or convenience of the public. The first contention of the appellant is that it was never intended by the Legislature of this State that said section 4 of the statute should apply to the operation of motor trucks over routes between points in this state and points in another state. There is certainly nothing' in the wording of the statute to indicate that it was the legislative intent to exclude such routes from its provisions, and unless it be found that the inclusion of them within the statute will be in conflict with the federal constitution or some federal statute passed pursuant thereto, the statute of this State should be held to apply to them; and this question isi involved in the second contention of the appellee, that the Legislature of this. State has no right to enact any law making the procurement of a permit necessary, before any person, firm, or corporation may lawfully operate a, motor truck line between points in this state and points in some other states, because in so doing the act would be in violation of article 1, section 8, clause 3 of the federal constitution, under which the power “to regulate commerce among the several states” was, by the states., delegated to the federal government. ⁵⁷⁵ There have been many eases arising under the: above provision, known as the commerce clause of the federal constitution, and a number of them have heen cited by the appellant in support of its contention.

The two that it seems» chiefly to rely upon are Crutcher v. Kentucky, 141 U. S. 47 ; Adams Express Co. v. New York, 232 U.S. 14 . In the first of these oases (Crutcher v. Kentucky) an aot of the legislature of Kentucky provided that an agent of an express company not incorporated under the laws» of that state should not carry on business therein, without first obtaining a license from the state, and that such agents should, before obtaining such license, satisfy the auditor of the state that the company represented by him had an actual capital of at least the amount named therein, and if -he engaged in business without obtaining a license, he was subject to the payment of a fine. The Supreme Court in that case held the aot was unconstitutional, as it was: found to he in violation of the provision above mentioned. In the Adams Express Co. case, an ordinance of the City of Hew York required an express company to obtain a local license as a condition precedent to its conducting, within the city, its interstate business.

This ordinance, like the Kentucky statute, was declared unconstitutional, in that it required a party to take out a license for carrying on interstate commerce», in conflict with the commerce» clause of the Constitution. In these» cases there» was an attempt to» prohibit persons from engaging in the classes of business therein mentioned until they had first paid the direct license or tax imposed upon them. The requirement of the act here under consideration is, that those washing to use the roads and highways, mentioned in their application, for the public transportation of merchandise or freight, shall first obtain a permit from