Analysis of a Right to Travel Case

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Following will be presented a detailed look at the flawed logic of the Oklahoma Court of Appeals regarding the requirement of a license to excercize the right to travel.

Links to all cases cited:

HUMPHREYS v. STATE


ROBERTSON v. STATE EX REL. LESTER

BAILEY v. CITY OF TULSA

BRANTLEY v. STATE

Oklahoma v Moyers

COLLINS-DIETZ-MORRIS CO. v. STATE CORPORATION COMMISSION

Ex parte TINDALL

Ex parte SALES

BARBOUR v. WALKER

FROST v. RAILROAD COMMISSION OF STATE OF CALIFORNIA 271 U.S. 583 (1926)

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HUMPHREYS v. STATE
1987 OK CR 115
738 P.2d 188
Decided: 06/10/1987
Oklahoma Court of Criminal Appeals


http://www.oscn.net/applications/osc...sp?CiteID=6632

An Appeal from the District Court of Stephens County; Jari Askins, Special District Judge.
Lawrence Lewis Humphreys, appellant, was convicted of (1) Operation of a Motor Vehicle While License Suspended, Second and Subsequent Offense; (2) Possession of a Suspended Driver's License; (3) Transportation of Beer in an Open Container; (4) Failure to Maintain Security; and (5) Failure to Display Current Tag, in the District Court of Stephens County, Case No. CRM-84-423, sentenced to respectively to (1) thirty days in the county jail and a $250 fine; (2) a $200 fine; (3) a $50 fine; (4) a $250 fine; and (5) a $100 fine, and appeals. AFFIRMED.
Lawrence Lewis Humphreys, pro se.
Michael C. Turpen, Atty. Gen., and Susan Stewart ****erson, Asst. Atty. Gen., Oklahoma City, for appellee.
OPINION
PARKS, Judge:
[738 P.2d 189]
1 The appellant, Lawrence Lewis Humphreys, was tried by jury and convicted of: (1) Operation of a Motor Vehicle While License Suspended, Second and Subsequent Offense; (2) Possession of a Suspended Driver's License; (3) Transportation of Beer in an Open Container; (4) Failure to Maintain Security; and (5) Failure to Display Current Tag in the District Court of Stephens County, Case No. CRF-84-423. The jury returned verdicts of guilty on all five counts and set punishment respectively at: (1) thirty (30) days in county jail and a $250 fine; (2) a $200 fine; (3) a $50 fine; (4) a $250 fine; and (5) a $100 fine. Judgment and sentence were imposed in accordance with the jury's verdict. The appellant appeared in propria persona at trial and files his appeal pro se. We affirm.
2 The only assignment of error raised on appeal is one of jurisdiction. The appellant filed a thirty-one page brief in his own behalf. Reduced to its essence, the appeal asserts that the appellant has a constitutional right to travel upon the public roads; that use of a motor vehicle for the purpose of commerce or profit is a privilege which may be regulated by the State; use of a motor vehicle for one's own personal business or pleasure is a right which may not be regulated by the State and no license is required for the exercise of this right; and since the appellant was tried and arrested in district court for exercising his constitutional right to travel, the district court has no jurisdiction over him.
3 The facts, briefly stated, are on February 5, 1984, the Department of Public Safety, in accordance with 47 O.S. 1981 § 6-206 [47-6-206], suspended the appellant's privilege to drive a motor vehicle for three months as a result of his having ten speeding convictions within two years. The appellant had a right of review in the district court of his suspension, including the right of appeal to the Oklahoma Supreme Court, under [738 P.2d 190] 47 O.S. 1981 § 6-211 [47-6-211]. The appellant failed to exercise his right of review.
4 The appellant was subsequently arrested and pled guilty on April 24, 1984, to the charge of Driving While Driver's License Suspended, and paid a fine. The Department of Public Safety, pursuant to 47 O.S. 1981 § 6-303 [47-6-303](d), extended the suspension of the appellant's license for an additional three months. No appeal was taken of this conviction or suspension.
5 On August 20, 1984, the appellant executed and had notarized the following statement, which reads in pertinent part:
Since I am a private, natural person, without a franchise from any state and therefore do not need a drivers' (sic) license, I hereby cancel, revoke, rescind and otherwise render null and void for any and all purposes, any and all applications for a drivers' (sic) license and any and all licenses subsequently issued to me.
NOTICE: Henceforth, I intend to operate my vehicle as a matter of right in the ordinary and usual course of my business and life.
Evidence at trial revealed this notification was mailed to the County Courthouse and was reproduced in the form of 21,000 flyers, which were distributed to the public.
6 On August 29, 1984, the appellant was observed by a Velma, Oklahoma, police officer driving a vehicle which had an American Flag substituted for the license plate. The appellant was stopped by the police officer. Responding to a radio call, a trooper for the Department of Public Safety arrived, and the appellant was arrested for driving with a suspended driver's license. Subsequent to his arrest, the appellant's vehicle was inventoried, at which time a suspended driver's license was found, as well as an open can of beer. The appellant did not have a verification of liability insurance form on his person or in the vehicle.
7 Concerning the issue of jurisdiction raised on appeal, 20 O.S. 1981 § 91.1 [20-91.1], invested a district court with jurisdiction to hear civil matters and proceedings for violation of state statutes. Title 20 O.S.Supp. 1982 § 123 [20-123](A)(4) confers jurisdiction on a special judge to hear misdemeanor cases. The appellant was charged and convicted of five separate misdemeanor counts in violation of state statutes. We hold that all jurisdictional requirements were met and affirm the conviction.
8 Central to the appeal is the mistaken assertion that the appellant has an absolute right to operate a motor vehicle on the public roads and that the State may not regulate or license that activity. The authority for regulation of traffic over the highways is unquestionably a part of the police power of the State, and the State may impose reasonable restrictions and regulations over the use of the highways. See Collins-Dietz-Morris Co. v. State Corporation Commission, 154 Okl. 121, 7 P.2d 123, 130 (1931). The operation of a motor vehicle on a public highway "is not a natural, absolute right. . . ." Robertson v. State ex rel. Lester, 501 P.2d 1099, 1101 (Okla. 1972). "[T]he Legislature, in the exercise of its right to regulate the use of highways and of the inherent police power of the state, has the power to regulate circumstances under which automobiles may be operated upon the highways of the state." Brantley v. State, 548 P.2d 675, 676 (Okl.Cr. 1976). See also Miller v. State, 503 P.2d 886, 888 (Okl.Cr. 1972). Safety regulations which require possession of a valid driver's license as a precondition to operating a motor vehicle impact the means of travel upon the public roads, not the right to travel. Furthermore, the United States Supreme Court has found that possession of a driver's license is an entitlement which may be revoked by the State, regardless of whether the entitlement is denominated a "right" or a "privilege," provided the revocation comports with procedural due process requirements of notice and a hearing. See Bell v. Burson, 402 U.S. 535, 539, 91 S.Ct. 1586, 1589, 29 L.Ed.2d 90 (1971). When a driver's license is suspended for repeated convictions of traffic laws, the State is not required to hold a full hearing before the license is suspended. Due process is served if the hearing is provided subsequent to the [738 P.2d 191] suspension. See Dixon v. Love, 431 S.Ct. 105, 115, 97 S.Ct. 1723, 1729, 52 L.Ed.2d 172 (1977). The appellant was provided an opportunity under 47 O.S. 1981 § 6-211 [47-6-211] for a full evidentiary hearing, with the right of appeal to the Oklahoma Supreme Court, when his license was originally suspended. The appellant chose to ignore this forum and waived the right to appeal his license suspension. The State has done all it is required to do in providing procedural due process for the appellant.
9 Finding no merit to the appellant's assignment of error, the judgment and sentence of the District Court should be, and hereby is, AFFIRMED.
BRETT, P.J., and BUSSEY, J., concur.

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The authority for regulation of traffic over the highways is unquestionably a part of the police power of the State, and the State may impose reasonable restrictions and regulations over the use of the highways. See Collins-Dietz-Morris Co. v. State Corporation Commission, 154 Okl. 121, 7 P.2d 123, 130 (1931). The operation of a motor vehicle on a public highway "is not a natural, absolute right. . . ." Robertson v. State ex rel. Lester, 501 P.2d 1099, 1101 (Okla. 1972). "[T]he Legislature, in the exercise of its right to regulate the use of highways and of the inherent police power of the state, has the power to regulate circumstances under which automobiles may be operated upon the highways of the state." Brantley v. State, 548 P.2d 675, 676 (Okl.Cr. 1976). See also Miller v. State, 503 P.2d 886, 888 (Okl.Cr. 1972).

BAILEY v. CITY OF TULSA
1971 OK CR 499
491 P.2d 316

http://www.oscn.net/applications/osc...p?citeid=59398
However, the motorist by refusing to take the test, and thereby losing the privilege to drive for six months, is not forced to forfeit one right in order to exercise another right since operating a motor vehicle is a privilege, not a right, which may be conditioned. In Opinion of the Justices, 255 A.2d 643 (1969), the Maine Supreme Court in considering the Implied Consent Law stated:
"The proposed statute in effect imposes a condition upon the holding of a license to operate a motor vehicle upon the public ways of this State. The condition is that the licensee voluntarily consent to taking a sobriety test under certain prescribed conditions. The statutory requirement rests upon the premise that there is no absolute right to obtain and hold an operator's license. There is rather a privilege which for valid reasons involving the public safety may be granted or withheld by the State. * * It is true that the State may not unreasonably, arbitrarily or capriciously withhold a license but it may properly condition the grant upon compliance with reasonable police power requirements."
In Prucha v. Department of Motor Vehicles, 172 Neb. 415, 110 N.W.2d 75 (1961), the Court in upholding the Nebraska Implied Consent Law held:
"The essence of the implied consent law is that by driving a motor vehicle on the public highway, the operator consents to the taking of a chemical test to determine the alcoholic content of his body fluid. By the act of driving his car, he has waived his constitutional privilege of self-incrimination, which has always been considered to be a privilege of solely personal nature which may be waived."
In Walton v. City of Roanoke, 204 Va. 678, 133 S.E.2d 315 (1963), which held the Virginia Implied Consent Law did not violate the constitutional privilege against self-incrimination, the Court observed:
"Moreover, the defendant was not compelled under § 18.1-55 to submit to the blood test. He had a choice of either allowing the test to be made or refusing it. His refusal could not be used as evidence in his trial on the charge of driving under the influence of intoxicants but, if found to be unreasonable, constituted grounds for revocation of the privilege of operating his automobile upon the highways of this State. However, defendant is afforded a hearing on his latter issue subsequent to his trial for driving under the influence of intoxicants.
"The right to operate a motor vehicle on the highways of this State is not a property or unrestrained right, but a privilege which is subject to reasonable regulation under the police power of the State in the interest of public safety and welfare." 133 S.E.2d at 318.

BRANTLEY v. STATE
1976 OK CR 82
548 P.2d 675

http://www.oscn.net/applications/osc...asp?citeid=711
In State v. Moyers, 86 Okl.Cr. 101, 189 P.2d 952, this Court in its syllabus held that the Legislature, in exercise of its right to regulate the use of highways and of the inherent police power of the state, has the power to regulate circumstances under which automobiles may be operated upon the highways of the state. Section 6-112 of Title 47 provides as follows:
"Every licensee shall have his operator's or chauffeur's license in his immediate possession at all times when operating a motor vehicle and shall display the same upon demand of . . ., a peace officer, or a field deputy or inspector of the Department. . . ."



Oklahoma v Moyers
1948 OK CR 15
189 P.2d 952
86 Okl.Cr. 101

http://www.oscn.net/applications/osc...p?citeid=56871

Syllabus.)
2. Automobiles Power of Legislature Alone to Regulate Automobiles Upon Highways of State. Legislature, in exercise of right to regulate use of highways and of inherent police power of state alone, has power to regulate circumstances under which automobiles may be operated upon highways of state.

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COLLINS-DIETZ-MORRIS CO. v. STATE CORPORATION COMMISSION.
1931 OK 301
7 P.2d 123
154 Okla. 121

http://www.oscn.net/applications/osc...p?citeid=39729
The authority for regulation of traffic over the public highways is well recognized. It is unquestionably a part of the police power of the state. Chicago, R. I. & P. Ry. right to say what use shall be made of those highways and to prescribe reasonable restrictions on and conditions for their use. Where legislation imposes reasonable restrictions and conditions, it will not be disturbed by this court. The language of this court in Ex parte Tindall, 102 Okla. 192, 229 P. 125, is applicable herein. See, also, Ex parte Sales, 108 Okla. 29, 233 P. 186, Barbour v. Walker, 126 Okla. 227, 259 P. 552, and Kane v. New Jersey, 242 U.S. 160, 61 L. Ed. 222, 37 S. Ct. 30. We cannot say that the imposition of a tax upon those who use the public highways for transportation of merchandise for "compensation" is an unreasonable condition imposed on such use. While the plaintiff is neither a public service company nor a transportation company within the meaning of section 18, article 9, of the Constitution, and while it is not subject to regulation as such, its right to the use of the public highways of the state is subject to reasonable regulation, and, by the provisions of the act, that regulatory power is placed in the Corporation Commission. In so far as the act is intended to operate as a regulation or restriction upon or a condition to the use of the highways, and those regulations, restrictions, and conditions are reasonable, it is not inoperative and void. We will look to the terms of the act to determine the reasonableness thereof.
15 While this court assumed jurisdiction in this matter on account of the public importance of the question presented and under the authority of section 846, C. O. S. 1921, it declines to determine whether or not the legislative act in question is constitutional as to persons who are not shown by the agreed case to be affected thereby, and the provisions of the legislative act which do not affect the plaintiff in this action will be construed no further than is necessary to determine the rights of the plaintiff in this action.
Ex parte TINDALL
1924 OK 669
229 P. 125
102 Okla. 192

http://www.oscn.net/applications/osc...p?CiteID=45966
Now, the Fourteenth Amendment to the Constitution of the United States contains three distinct guaranties or protective provisions, to wit:
1st. That no state shall pass any law abridging the privileges and immunities of citizens of the United States.
2nd. No state shall deprive any person of life, liberty, or property without due process of law.
3rd. No state shall deny any person within its jurisdiction of equal protection under the laws.
24 In view of the proposition that it is petitioner's business which, in its character of a "public service enterprise," is seeking, herein to avoid the provisions of the act in question, and not the petitioner himself, in his individual capacity as a private citizen, as such, and in view of the proposition that the nature and character of petitioner's business is within the proper sphere of the "police power" of the state, we cannot sustain the contention that any of the three foregoing provisions of the Fourteenth Amendment are contravened or violated by any of the provisions of the act in question.
Bearing in mind that the business of petitioner is that of a "transportation company" for hire, and therefore a "public service enterprise" and subject to state control, keeping in mind, also, that the state may exercise control over the public highways, and that this is a business seeking to appropriate the public highways to its own use as a roadbed, seeking to charge the public a profit for a service to be rendered over the public highways, there is no merit in the contention that the state, within the sphere of its police power, cannot exercise a reasonable control over such business.
"It is laid down as a fundamental principle that persons or corporations engaged in occupations in which the public have an interest or use may be regulated by statute." 6 R. C. L., sec. 217, p. 224; Munn v. Ill. (U. S.) 24 L. Ed. 77; also 8 Cyc. 1070; 12 C. J. 1167-1172; Black's Const. Law (3rd Ed.) 97, 413, 397-394; 399. 403.
40 The gist of petitioner's contention on the above two grounds is that under the act a person desiring to engage in the transportation business over the public highways must, first, obtain a license to do so; and that the Corporation Commission is vested with power to grant or refuse such license, and that the power to grant a license to one, and refuse a license to another, is granting to the Corporation Commission an arbitrary power of granting an exclusive privilege and thereby creating a monopoly in violation of the two foregoing provisions of the state Constitution.
41 But this contention will not stand the test of fair analysis nor the weight of decisions.
"Since all rights are held subject to the police power of the state, when necessary the Legislature may prohibit absolutely the maintenance of any particular business if the public safety or the public morals require its discontinuance; and the hand of the Legislature cannot be stayed from providing for its discontinuance by any incidental inconvenience which individuals or corporations may suffer. * * *
"The test of the power is found in the effect the pursuit of the calling has upon the public weal rather than in the inherent nature of the calling itself." 6 R. C. L., sec. 214, p. 221-2.
42 This doctrine is so essential and so sound as to be properly applied to "private business enterprises" as well as to "public service enterprises." It applies to private business enterprises whenever such business affects the public welfare and essentially applies to public service concerns because of the right of the public to regulate a service for which the public must pay a fee and profit. To deny this right to the public would be to deny the public of that sacred right which petitioner has so strenuously argued on his own behalf, viz., that of "due process of law." To allow operators of motor vehicles to appropriate the public highways to their own free use, and to charge the public a fee and profit for the service to be rendered over same without license to do so and without regulation, would constitute a clear, concrete example of taking property without "due process of law."
43 Hence the contention is unsound and without merit.

Ex parte SALES
1924 OK 668
233 P. 186
108 Okla. 29

http://www.oscn.net/applications/osc...p?CiteID=45965

The facts herein are identical with those in cause No. 14674, In re Application of Tindall for writ of habeas corpus, this day decided, 102 Okla. 192, 229 P. 125.
3 In this case as in the Tindall Case, supra, the petitioner makes no denial of having violated the statutes, and like Tindall, has not sought to avail himself of the privileges granted by the statute, but has assumed to conduct a business in open defiance of the statute. Each has assailed the validity of the statute upon the same grounds, except that petitioner herein contends, in addition to the grounds alleged by Tindall, that the statute is invalid because violative of section 1 and section 34, art. 9, section 33 and section 57, art. 5, section 33, art. 2 and section 7, art. 18, of the Constitution of Oklahoma.
4 As to the contention that the act is violative of section 1, art. 9 of the Constitution, we see no reasonable grounds, in fact, no grounds for such contention. Section 1 simply defines the terms "corporation," "company," "charter," and "license," as they are used in said article 9. There is nothing in the act in question that violates any of the definitions contained in said section 1, and the same may be said as to its violation of the definitions contained in section 34 of said article.
5 Said section 34 contains the following language:
"The term 'public service corporation' shall include all transportation and transmission companies, all gas, electric light, heat and power companies, and all persons authorized to exercise the right of eminent domain, or to use or occupy any right of way, street, alley, or public highway, whether along, over, or under the same, in a manner not permitted to the general public, the term 'person,' as used in this article, shall include individuals, partnerships and corporations, in the singular as well as plural number. * * *"
6 Hence it must be seen, as discussed in the Tindall Case, supra, that the nature and character of petitioner's business, and the nature and character of the business sought to be regulated by the act in question, come clearly within the specific definitions above. It is a 'transportation business" for hire and profit over the "public highways," and is therefore a "public service enterprise," within the foregoing definition.

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BARBOUR v. WALKER
1927 OK 253
259 P. 552
126 Okla. 227

http://www.oscn.net/applications/osc...p?CiteID=50096




In the trial of the case plaintiffs contended that as holders of certificates of public convenience and necessity they were entitled to injunctive relief; that chapter 113 was broad enough to, and did include, all persons operating motor trucks for hire in the manner alleged, whether such persons were engaged as common carriers or as private carriers. Defendants contended that the act does not regulate private carriers not engaged as common carriers. The judgment of the court in granting the temporary injunction was in effect a determination that defendants were in fact motor carriers within the meaning of chapter 113, and were thus subject to control and regulation thereby.
5 In this court defendants, for reversal of the judgment, contend, first, that they are private carriers, and that as such they are not within the purview of chapter 113, S. L. 1923; and second, that if said chapter 113 is operative as to them, the said act is unconstitutional and void as in violation of their rights under the 14th Amendment to the Constitution of the United States, and under section 7 of article 2 of the state Constitution. We will consider these contentions together, as they may be properly resolved into the one general proposition, namely, that defendants have the right as private motor carriers to the use of the public highways of the state for private enterprise and profit without let, hindrance, or interference from the public authorities of the state.
6 The constitutionality of chapter 113 has heretofore received consideration by this court in the case of Ex parte Tindall, 102 Okla. 192, 229 P. 125. The law was there challenged on the identical grounds here relied on. Upon a thorough analysis of the act, which need not here be reiterated, its validity was sustained. In addition to what was there said as to the purpose and necessity of the law, we may here well observe that, prior to the advent of automotive power, regulation of the use of the public highways was not essentially required, as no phase of the public welfare was either inconvenienced or exposed to danger as now, though they were used for both common travel and private gain, particularly between points where there were no railroad facilities. Construction and maintenance of the highways then were left to county and township organizations with the financial means therefor raised largely, if not altogether, by local taxation. Public use thereof was not as marked then as now, for the traveling public found it convenient to pass to their destination by means of travel by rail rather than by the horse power vehicle. With the advent of the automobile our mode of travel was transformed in less than a decade. This transformation required a change in our system of highway construction from that of the ordinary improvised dirt roads to that of highly improved and hard surfaced roads. This accelerated the establishment of our State Highway Department whereunder we are now expending millions of dollars annually to meet the requirements of the traveling public. Speed laws were found to be necessary to maintain order and to minimize danger in the use of the highways. In addition to the primary purposes, that of accommodation of the traveling public in the common acceptation of the term, utilization of our highways, constructed and maintained at large public expense, by transportation thereover of both passengers and property for private gain developed even between points where railroad facilities were available, and on that scale where regulation of the use of our highways for private enterprise became a necessary function of government, for if not so regulated appropriation thereof for private purposes would eventually place the public in the position of furnishing the highways for private enterprise rather than for the public purposes for which they were established.
7 To obviate this condition rapidly materializing, the Legislature in its wisdom in protection of the public welfare enacted chapter 113, and other provisions of law not here necessary to notice. The law is based upon the theory that the individual citizen has no vested right to use the highways of the state for private enterprise to the detriment of the general public, and that where the individual interest conflicts with the public interest, as must be the necessary result in the use of the public highways for private purposes without regulation, the government is never impotent to protect the public welfare. The principle applied in the regulation of the use of the highways for private enterprise rests upon public convenience and public necessity, a principle recognized and in a large degree applied by the national government in placing the control and regulation of the railroads of the country in the hands of the Interstate Commerce Commission. Title 49, Transportation, chapter 1, sec. 1, U.S.C. 1926, 44 Stat. 1649.
8 It was upon this theory and the application of this principle that this court in Ex parte Tindall held that the state was within the rightful exercise of its police power in the regulation of the use of the highways in sustaining the constitutionality of the law here again challenged, and denied that it in anywise was in contravention of either the 14th Amendment to the federal Constitution as in abridgment of any right or privilege of the citizen, or in deprivation of property without due process of law, or in denial to the citizen of the equal protection of the law; or of section 7, article 2 of the state Constitution on the same subject. It was there also held that the real purpose of the act was "to regulate the use of the public highways by transportation companies" through "the regulation and control of motor vehicles operating as common carriers for hire and profit over the public highways," and that:
"The operation of motor vehicles, for the purpose of carrying passengers and freight, for hire and profit over the public highways as a transportation roadbed, is a 'public service enterprise' within the constitutional definition of such an enterprise, and as such, subject to regulation and control by the state."
9 In addressing itself to the administration of the law through the State Corporation Commission charged therewith, of which it was also complained was the lodgment of arbitrary power with the Commission, the court used this language:
"It would be impossible for the Commission, acting under such act, to grant a special privilege detrimental to the interests of the public, or to create a monopoly with like effect. The public has a voice in the enforcement of this act and the right to speak whenever its interests are not subserved. It has a right to say that no person or corporation shall use its public highways as a transportation line for hire; it has a right to say that any one who may be permitted to operate over such lines in such manner must have a license to do so, and has a voice as to whether its necessities and convenience require that one, two, or three shall be licensed to render the required service, or that none is required. It might be a material benefit to the public to have one transportation line over a given highway, and a substantial detriment to have more than one, hence the limit to the number is determined by the public needs. It is not that the petitioner or any other private concern has a vested right or any right to appropriate the public highways to its own free use and benefit for profit, but that the public, from the standpoint of its convenience and necessities, as well as from the standpoint of property rights in the public highways, may demand a 'public service' if it needs it, or reject it if it is not needed, and a voice as to how much of such service it needs and the conditions under which it may be rendered, and no private rights are paramount to the public good."
10 In Ex parte ****ey, 76 W. Va. 576 85 S.E. 781, L.R.A. 1915F, 840, we find this apt expression of the court:
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"The right of a citizen to travel upon the highway and transport his property thereon, in the ordinary course of life and business, differs radically and obviously from that of one who makes the highway his place of business and uses it for private gain, in the running of a stage coach or omnibus. The former is the usual and ordinary right of a citizen, a common right, a right common to all, while the latter is special, unusual and extraordinary. As to the former, the extent of legislative power is that of regulation; but, as to the latter, its power is broader, the right may be wholly denied, or it may be permitted to some and denied to others, because of its extraordinary nature. This distinction, elementary and fundamental in character, is recognized by all the authorities. 'A distinction must be made between the general use, which all of the public are permitted to make of the street for ordinary purposes, and the special and peculiar use, which is made by classes of persons in the pursuit of their occupation or business, such as hackmen, drivers of express wagons, omnibuses,' etc., Tiedeman on Municipal Corporations, sec. 229. 'The rule must be considered settled that no person can acquire the right to make a special or exceptional use of a public highway, not common to all citizens of the state, except by grant from the sovereign power.' Jersey City Gas Co. v. Dwight, 29 N.J. Eq. 242; McQuillen, Municipal Corporations, 1620."
11 This principle has been applied many times. Liberty Highway Co. v. Michigan Public Utilities Commission, 294 F. 703, and many other cases there cited, including Ex parte ****ey, supra.
12 In Kane v. New Jersey, 242 U.S. 160, 37 S. Ct. 30, 61 L. Ed. 222, we find this language:
"The power of a state to regulate the use of motor vehicles on its highways has been recently considered by this court and broadly sustained. It extends to nonresidents as well as to residents. It includes the right to exact reasonable compensation for special facilities afforded as well as reasonable provisions to insure safety."
13 While in that case neither the right of private use nor the principle of public convenience and necessity as the measure of such use was present, yet, under the reasoning of the court, there would seem to be no good ground, where private use would tend to be inimical to the public good as would be inevitable without regulation, to deny the power of the state to measure the extent of that use by the convenience of the public and the necessity for transportation facilities. In the law involved, the state in its sovereign capacity was dealing with a subject over which it appears to us, in every view of the case, it had control. In the construction and maintenance of the highways now available to the traveling public the state has expended millions of dollars, and is still continuing to cobweb the state with hard surfaced highways for the accommodation and convenience of her citizens and all those who find it convenient to pass her way. In the enactment of this legislation no rights of any of her citizens have been contravened, for the law does not restrict the common right of the citizen to use the public highways for purposes of travel, and it does not comport with reason to say that the use of them for private gain may be exercised alike by all as it is certain that such a situation will never arise. Our view of the right of the state to enact this legislation and of the relation of the citizen thereto is best expressed by the Supreme Court of the United States in Davis v. Commonwealth of Mass., 167 U.S. 43, 17 S. Ct. 731, 42 L. Ed. 71, wherein was involved the right of the citizen to the undisturbed use of Boston Commons, when the court said, that:
"The Fourteenth Amendment to the Constitution of the United States does not destroy the power of the states to enact police regulations as to the subjects within their control (Barbier v. Connolly, 113 U.S. 27, 31, 5 S. Ct. 357, 28 L. Ed. 923; Railway Co. v. Beckwith, 129 U.S. 26, 29, 9 S. Ct. 207, 32 L. Ed. 585; Giozza v. Tiernan, 148 U.S. 657, 13 S. Ct. 721, 37 L. Ed. 599; Jones v. Brim, 165 U.S. 180, 17 S. Ct. 282, 41 L. Ed. 677), and does not have the effect of creating a particular and personal right in the citizen to use public property in defiance of the constitution and laws of the state."
14 We therefore regard the case of Ex parte Tindall as conclusive upon the propositions here involved, unless, as defendants contend, that by virtue of their being private motor carriers and having never held themselves out to the public as common carriers, the case of Frost v. Railroad Commission, 271 U.S. 583, 46 S. Ct. 605, 70 L. Ed. 1101, is controlling. That case involved the constitutionality of the law of the state of California, similar in many of its provisions to chapter 113. The state case is reported in 197 Cal. 230, 240 P. 26. Briefly, the facts in that case were that Frost and Frost Trucking Company had a single contract to transport citrus commodities for the Redland Orange Growers' Association from Redlands to Los Angeles. The Railroad Commission of California, corresponding generally in duties to that of our State Corporation Commission, was charged as here with the administration of the law there involved. Complaint was made before it that the transporting company was operating without a certificate of public convenience and necessity, whereupon it was cited to show cause why an order should not be issued requiring it to desist in its operations in violation of law. The law classified motor carriers as common carriers, subject to regulation as such. The company contended, as here, that it was engaged in a private enterprise, and was without the purview of the statute, and that if it was held to be within the provisions of the law, then the law, as to it, was invalid as in contravention of the 14th Amendment to the federal Constitution and like provisions of the state Constitution. Upon hearing, the commission denied these contentions and rendered judgment accordingly.
15 The company appealed to the state Supreme Court, and there renewed its contentions. The state court sustained the Commission and declared the act to be constitutional. The company, by appropriate proceeding, brought the case to the Supreme Court of the United States for review. In the state court it was the theory that the law was not in fact a regulation of the use of the highways, but a regulation of the business of transportation companies, it being said that the,
"Auto Stage and Truck Transportation Act regulating transportation companies, including private carriers, is not in fact a regulation of the use of the highways, nor does it take private property for public use without compensation in violation of Const. Cal. art. 1, paragraph 13, and Const. U.S. Amend. 14, nor does it violate the due process clause; but what the act does, in effect, is to make a conditional offer of a special privilege. "
16 The national court, in passing upon the validity of the law, held that this view and construction of the act by the state court was binding upon it, and thus the question of the regulation of the use of public highways for private gain was not squarely presented to the high court. The effect of the state's construction of the law was, that a private motor carrier operating under a single contract was converted into a common carrier by legislative fiat, and this the national court denied as being in contravention of the due process clause of the 14th Amendment. And following up the state's theory, the court further held that it was not within the power of the state to grant a privilege which required the relinquishment of a constitutional right.

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U.S. Supreme Court
FROST v. RAILROAD COMMISSION OF STATE OF CALIFORNIA, 271 U.S. 583 (1926)
271 U.S. 583

FROST et al.
v.
RAILROAD COMMISSION OF STATE OF CALIFORNIA.
No. 828.

Argued April 21, 22, 1926.
Decided June 7, 1926.


[271 U.S. 583, 584] Mr. Max Thelen, of San Francisco, Cal., for plaintiffs in error.


[271 U.S. 583, 585] Mr. Carl I. Wheat, of San Francisco, Cal., for defendant in error.


[271 U.S. 583, 589]

Mr. Justice SUTHERLAND delivered the opinion of the Court.

This case involves the constitutional validity of the Auto Stage and Truck Transportation Act of California (Statutes of California 1917, p. 330, c. 213), as construed and applied to plaintiffs in error by the state Supreme Court. The specific challenge is that, as so construed and applied, it takes their property for public use without just compensation, deprives them of their property without due process of law, and denies them the equal protection of the laws, in violation of the Fourteenth Amendment to the federal Constitution. The act provides for the supervision and regulation of transportation for compensation over public highways by automobiles, auto trucks, etc., by the Railroad Commission. The term 'transportation company' is defined to mean a common carrier for compensation over any public highway between fixed termini or over a regular route. By section 3(a) no corporation or person is permitted to operate any automobile, auto truck, etc., 'for the transportation of persons or property as a common carrier for compensation on any public highway in this state between any fixed termini ... unless a permit has first been secured as herein provided.' Permits are issued upon application by the incorporated city or town, city and county, or county within or through which the applicant intends to operate. By section 4, the Railroad Commission is empowered to supervise [271 U.S. 583, 590] and regulate such transportation companies, and to fix their rates, fares, charges, classifications, rules, and regulations, and generally, to regulate them in all matters affecting their relationship with the traveling and shipping public. Section 5 requires, in addition to the permit, that the applicant must obtain from the Railroad Commission a certificate declaring that public convenience and necessity require the exercise of such right or privilege, and it provides that the commission may attach to the exercise of the rights granted such terms and conditions as in its judgment the public convenience and necessity may require. Operation under a permit without such certificate is prohibited. In 1919, the act was amended (Statutes 1919, c. 280. p. 457), so as to bring under the regulative control of the commission automotive carriers of persons or property operating under private contracts of carriage, and the term 'transportation company' was enlarged so as to include such a carrier. It was further provided that no such transportation company shall operate for compensation over the highways without first having secured from the commission a certificate of public convenience and necessity so to do.

Plaintiffs in error were engaged under a single private contract in transporting, for signle private contract in transporting, for stipulated compensation, citrus fruit over the were brought before the commission charged with violating the act, for the reason that they has not secured from the commission a certificate of public convenience and necessity. The commission, while agreeing that plaintiffs in error were, in fact, private carriers, held that they were subject to the provisions of the act and directed them to suspend their operations under their contract unless and until they should secure a certificate that public convenience and necessity required the resumption or continuance thereof. The commission's order was upheld by the state Supreme Court. 240 P. 26. [271 U.S. 583, 591] On behalf of plaintiffs in error the contention is that, in its application to private carriers, the act has the effect of transforming them into public carriers by legislative fiat. Upon the other side it is said that the sole purpose of the legislation 'is to impress upon such private carriers certain regulations so long as they desire to use the publicly built and owned highways as the chief situs of their business of hauling goods for compensation,' and that 'they are not, and cannot be, forced, directly or indirectly, to become common carriers.'

It is unnecessary to inquire which view is correct, since the act has been authoritatively construed by the state Supreme Court. That court, while saying that the state was without power, by mere legislative fiat or even by constitutional enactment, to transmute a private carrier into a public carrier, declared that the state had the power to grant or altogether withhold from its citizens the privilege of using its public highways for the purpose of transacting private business thereon, and that therefore the Legislature might grant the right on such conditions as it saw fit to impose. In the light of this general statement of principle, it was held that the effect of the transportation act is to offer a special privilege of using the public highways to the private carrier for compensation upon condition that he shall dedicate his property to the quasi public use of public transportation; that the private carrier is not obliged to submit himself to the condition, but, if he does not, he is not entitled to the privilege of using the highways.

It is very clear that the act, as thus applied, is in no real sense a regulation of the use of the public highways. It is a regulation of the business of those who are engaged in using them. Its primary purpose evidently is to protect the business of those who are common carriers in fact by controlling competitive conditions. Protection or conservation of the highways is not involved. This, in effect, [271 U.S. 583, 592] is the view of the court below plainly expressed. 240 P. 26.

Thus, it will be seen that, under the act as construed by the state court, whose construction is binding upon us, a private carrier may avail himself of the use of the highways only upon condition that he dedicate his property to the business of public transportation and subject himself to all the duties and burdens imposed by the act upon common carriers. In other words, the case presented is not that of a private carrier, who, in order to have the privilege of using the highways, is required merely to secure a certificate of public convenience and become subject to regulations appropriate to that kind of a carrier, but it is that of a private carrier, who, in order to enjoy the use of the highways, must submit to the condition of becoming a common carrier and of being regulated as such by the Railroad Commission. The certificate of public convenience, required by section 5, is exacted of a common carrier, and is purely incidental to that status. The requirement does not apply to a private carrier qua private carrier, but to him only in his imposed statutory character of common carrier. Apart from that signification, so far as he is concerned, it does not exist.

That, consistently with the due process clause of the Fourteenth Amendment, a private carrier cannot be converted against his will into a common carrier by mere legislative command, is a rule not open to doubt, and is not brought into question here. It was expressly so decided in Michigan Commission v. Duke, 266 U.S. 570 , 577,578, 45 v. Duke, 266 U.S. 570, 577 , 578 S., 45 also, Hissem v. Guran, 112 Ohio St. 59, 146 N. E. 808; State v. Nelson, 65 Utah, 457, 462, 238 P. 237. The naked question which we have to determine, therefore, is whether the state may bring about the same result by imposing the unconstitutional requirement as a condition precedent to the enjoyment of a privilege, which, without so deciding, we shall assume to be within the power of the state altogether to [271 U.S. 583, 593] withhold if it sees fit to do so. Upon the answer to this question, the constitutionality of the statute now under review will depend.

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There is involved in the inquiry not a single power, but two distinct powers. One of these, the power to prohibit the use of the public highways in proper cases, the state possesses; and the other, the power to compel a private carrier to assume against his will the duties and burdens of a common carrier, the state does not possess. It is clear that any attempt to exert the latter, separately and substantively, must fall before the partamount authority of the Constitution. May it stand in the conditional form in which it is here made? If so, constitutional guaranties, so carefully safeguarded against direct assault, are open to destruction by the indirect, but no less effective, process of requiring a surrender, which, though in form voluntary, in fact lacks none of the elements of compulsion. Having regard to form alone, the act here is an offer to the private carrier of a privilege, which the state may grant or deny, upon a condition which the carrier is free to accept or reject. In reality, the carrier is given no choice, except a choice between the rock and the whirlpool-an option to forego a privilege which may be vital to his livelihood or submit to a requirement which may constitute an intolerable burden.

It would be a palpable incongruity to strike down an act of state legislation which, by words of express divestment, seeks to strip the citizen of rights guaranteed by the federal Constitution, but to uphold an act by which the same result is accomplished under the guise of a surrender of a right in exchange for a valuable privilege which the state threatens otherwise to withhold. It is not necessary to challenge the proposition that, as a general rule, the state, having power to deny a privilege altogether, may grant it upon such conditions as it sees fit to impose. But the power of the state in that respect is not [271 U.S. 583, 594] unlimited, and one of the limitations is that it may not impose conditions which require the relinquishment of constitutional rights. If the state may compel the surrender of one constitutional right as a condition of its favor, it may, in like manner, compel a surrender of all. It is inconceivable that guaranties embedded in the Constitution of the United States may thus be manipulated out of existence.

The prior decisions of this court amply justify this conclusion. In Paul v. Virginia, 8 Wall. 168, 181, the rule was stated to be that the state, having the power to exclude foreign corporations from its limits, may admit them upon such terms and conditions as the state may think proper to impose. But in Insurance Co. v. Morse, 20 Wall. 445, 456, it was said that this sweeping language must be understood with reference to the facts of that case; and that it could not be extended to include conditions repugnant to the Constitution and laws of the United States. In Barron v. Burnside, 121 U.S. 186, 197 , 7 S. Ct. 931, this limitation was expressly reaffirmed. Mr. Justice Blatchford, speaking for the court, said (page 200 (7 S. Ct. 936)):

'The question as to the right of a state to impose upon a corporation engaged in interstate commerce the duty of obtaining a permit from the state, as a condition of its right to carry on such commerce, is a question which it is not necessary to decide in this case. In all the cases in which this court has considered the subject of the granting by a state to a foreign corporation of its consent to the transaction of business in the state, it has uniformly asserted that no conditions can be imposed by the state which are repugnant to the Constitution and laws of the United States. La Fayette Ins. Co. v. French, 18 How. 404, 407 (15 L. Ed. 451); Ducat v. Chicago, 10 Wall. 410, 415 (19 L. Ed. 972); Insurance Co. v. Morse, 20 Wall. 445, 456 ( 22 L. Ed. 365); St. Clair v. Cox, 106 U.S. 350 , 356 (1 S. Ct. 354); Phila. Fire Ass'n v. New York, 119 U.S. 110 , 120 (7 S. Ct. 108).'
In Southern Pacific Co. V. Denton, 146 U.S. 202, 207 , 13 S. Ct. 44, there was under consideration a Texas statute re- [271 U.S. 583, 595] quiring a foreign corporation desiring to do business in the state to agree that it would not remove any suit from a court of the state into the Circuit Court of the United States. This court held the statute invalid, saying:

'But that statute, requiring the corporation, as a condition precedent to obtaining a permit to do business within the state, to surrender a right and privilege secured to it by the Constitution and laws of the United States, was unconstitutional and void, and could give no validity or effect to any agreement or action of the Corporation in obedience to its provisions.'
After the Denton Case came Security Mutual Life Ins. Co. v. Prewitt, 202 U.S. 246 , 26 S. Ct. 619, 6 Ann. Cas. 317. That decision purported to follow the case of Doyle v. Continental Ins. Co., 94 U.S. 535 , and to differentiate Barron v. Burnside, supra, and it was thought to have materially modified the rule laid down in the Morse, Burnside, and Denton Cases. But, however this may be, both the Prewitt and Doyle Cases have been quite recently overruled, and the views of the minority therein expressed declared to be now the law of this court. Terral v. Burke Constr. Co., 257 U.S. 529, 533 , 42 S. Ct. 188, 21 A. L. R. 186. In the light of this declaration, these dissenting views become pertinent and controlling. In the Doyle Case, Mr. Justice Bradley, speaking for the minority, said (pages 543, 544):

'Though a state may have the power, if it sees fit to subject its citizens to the inconvenience, of prohibiting all foreign corporations from transacting business within its jurisdiction, it has no power to impose unconstitutional conditions upon their doing so. Total prohibition may produce suffering, and may manifest a spirit of unfriendliness towards sister states; but prohibition, except upon conditions derogatory to the jurisdiction and sovereignty of the United States, is mischievous, and productive of hostility and disloyalty to the general government. If a [271 U.S. 583, 596] state is unwise enough to legislate the one, it has no constitutional power to legislate the other. ...
'The whole thing, however free from intentional disloyalty, is derogatory to that mutual comity and respect which ought to prevail between the state and general governments, and ought to meet the condemnation of the courts whenever brought within their proper cognizance.'

In the Prewitt Case, Mr. Justice Day, dissenting, said (pages 267-269 ( 26 S. Ct. 628)):

'In the opinion of the court in this case the doctrine that a corporation cannot be permitted to be deprived of its right to do business because of the assertion of a federal right is said not to be denied, because the right of a foreign corporation to do business in a state is not secured or guaranteed by the federal Constitution. Conceding the soundness of this general proposition, it by no means follows that a foreign corporation may be excluded solely because it exercises a right secured by the federal Constitution. For, conceding the right of a state to exclude foreign corporations, we must no overlook the limitation upon that right, now equally well settled in the jurisprudence of this court, that the right to do business cannot be made to depend upon the surrender of a right created and guaranteed by the federal Constitution. If this were otherwise, the state would be permitted to destroy a right created and protected by the federal Constitution under the guise of exercising a privilege belonging to the state, and as we have pointed out, the state might thus deprive business within its borders, except upon the condition that it strip itself of the protection given it by the federal Constitution. * *
'While we concede the right of a state to exclude foreign corporations from doing business within its borders for reasons not destructive of federal rights, we deny that the right can be made to depend upon the sur- [271 U.S. 583, 597] render of the protection of the federal Constitution, which secures to alien citizens the right to resort to the courts of the United States.
'In the cases decided in this court subsequently to Barron v. Burnside, while the general proposition is affirmed that a state may prescribe conditions upon which a foreign corporation may do business within its borders, in no one of them is it asserted that the state may exclude or expel such corporations because they insist upon the exercise of a right created by the federal Constitution. On the contrary, this court has repeatedly said that such right of exclusion was qualified by the superior right of all citizens to enjoy the protection of the federal Constitution.'
In Western Union Tel. Co. v. Kansas, 216 U.S. 1 , 34-48, 30 S. Ct. 190, upon a full review of the prior decisions, the principles set forth in the foregoing quotations was again reaffirmed. That case involved the validity of a Kansas statute which provided that a corporation of another state, though engaged in interstate business, must, as a condition of doing local business, pay to the state certain graduated percentages of its capital stock. It was held that this requirement operated as a burden on the interstate business of the company, in violation of the commerce clause of the Constitution,

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as well as a tax on its property beyond the limits of the state, in violation of the due process of law clause; that thus it was violative of the constitutional rights of the company; and that the right of the company to continue to do business in Kansas was not and could not be affected by the condition. The general principle was again announced in the following words (pages 47, 48 ( 30 S. Ct. 206)):

'The right of the telegraph company to continue the transaction of local business in Kansas could not be made to depend upon its submission to a condition prescribed by that state, which was hostile both to the letter and spirit [271 U.S. 583, 598] of the Constitution. The company was not bound, under any circumstances, to surrender its constitutional exemption from state taxation, direct or indirect, in respect of its interstate business and its property outside of the state, any more than it would have been bound to surrender any other right secured by the national Constitution.'
Since that decision, the same principle has been reiterated many times and never departed from. Pullman Co. v. Kansas, 216 U.S. 56, 63 , 30 S. Ct. 232; International Text-Book Co. v. Pigg, 217 U.S. 91 , 30 S. Ct. 481, 27 L. R. A. (N. S.) 493, 18 Ann. Cas. 1103; Herndon v. Chi., R. I. & Pac. Ry., 218 U.S. 135, 158 , 30 S. Ct. 633; Harrison v. St. L. & San Francisco R. R., 232 U.S. 318, 332 , 34 S. Ct. 333, L. R. A. 1917F, 1187; Looney v. Crane Co., 245 U.S. 178, 187 , 38 S. Ct. 85; International Paper Co. v. Massachusetts, 246 U.S. 135, 142 , 143 S., 38 S. Ct. 292, Ann. Cas. 1918C, 617; Western Union Tel. Co. v. Foster, 247 U.S. 105, 114 , 38 S. Ct. 438, 1 A. L. R. 1278; Public Utility Commrs. v. Ynchausti & Co., 251 U.S. 401, 404 , 40 S. Ct. 277; Terrall v. Burke Constr. Co., supra; Burnes Nat. Bank v. Duncan, 265 U.S. 17, 24 , 44 S. Ct. 427; Fidelity & Deposit Co. of Maryland v. Tafoya et al., 270 U.S. 426 , 46 S. Ct. 331 (decided March 15, 1926).

And the principle, that a state is without power to impose an unconstitutional requirement as a condition for granting a privilege, is broader than the applications thus far made of it. In Western Union Tel. Co. v. Foster, supra, two telegraph companies were engaged in transmitting the quotations of the New York Stock Exchange among the states. This was held to be interstate commerce, and an order of the public Service commission of Massachusetts, requiring the companies to remove a discrimination, was held to infringe their constitutional rights. One of the grounds upon which the order was defended was that it rested upon the power of the state over the streets which it was necessary for the telegraph to cross. That contention was answered broadly (page 114 (38 S. Ct. 439)):

'But, if we assume that the plaintiffs in error under their present charters could be excluded from the streets, [271 U.S. 583, 599] the consequence would not follow. Acts generally lawful may become unlawful when done to accomplish an unlawful end (United States v. Reading Co., 226 U.S. 324, 357 , 33 S. Ct. 90), and a constitutional power cannot be used by way of condition to attain an unconstitutional result (Western Union Telegraph Co. v. Kansas, 216 U.S. 1 , 30 S. Ct. 190; Pullman Co. v. Kansas, 216 U.S. 56 , 30 S. Ct. 232; Sioux Remedy Co. v. Cope, 235 U.S. 197, 203 , 35 S. Ct. 57. The regulation in question is quite as great an interference as a tax of the kind that repeated decisions have held void. It cannot be justified 'under that somewhat ambiguous term of police powers."
And, in almost the last expression of this court upon the subject, Burnes Nat. Bank v. Duncan, supra, the rule is none the less broadly but more succinctly stated to be (page 24 (44 S. Ct. 428)):

'The states cannot use their most characteristic powers to reach unconstitutional results. Western Union Telegraph Co. v. Kansas, 216 U.S. 1 (30 S. Ct. 190); Pullman Co. v. Kansas, 216 U.S. 56 (30 S. Ct. 232); Western Union Telegraph Co. v. Foster, 247 U.S. 105 , 114 (38 S. Ct. 438, 1 A. L. R. 1278).'
We hold that the act under review, as applied by the court below, violates the rights of plaintiffs in error as guaranteed by the due process clause of the Fourteenth Amendment, and that the privilege of using the public highways of California in the performance of their contract is not and cannot be affected by the unconstitutional condition imposed. Western Union Tel. Co. v. Kansas, supra page 48 (30 S. Ct. 190).

The court below seemed to think that, if the state may not subject the plaintiffs in error to the provisions of the act in respect of common carriers, it will be within the power of any carrier, by the simple device of making private contracts to an unlimited number to secure all the privileges afforded common carriers without assuming any of their duties or obligations. It is enough to say that no such case is presented here, and we are not to be [271 U.S. 583, 600] understood as challenging the power of the state, or of the Railroad Commission under the present statute, whenever it shall appear that a carrier, posing as a private carrier, is in substance and reality a common carrier, to so declare and regulate his or its operations accordingly.

Judgment reversed.


Mr. Justice HOLMES (dissenting).