267 U.S. 317
GEORGE W. BUSH & SONS CO.
MALOY et al., Public Service Commission of Maryland.
Argued Jan. 16, 1925.
Decided March 2, 1925.
[267 U.S. 317, 318] Messrs. Wm. L. Rawls and George Weems Williams, both of Baltimore, Md ., for plaintiff in error.
[267 U.S. 317, 320] Messrs. Thomas H. Robinson, Edward H. Burke and William N. Maloy, all of Baltimore, Md., for defendant in error.
Mr. Justice BRANDEIS delivered the opinion of the Court.
A statute of Maryland prohibits common carriers of merchandise or freight by motor vehicle from using the public highways over specified routes without a permit. The Public Service Commission is charged with the duty to 'investigate the expediency of granting said permit' when applied for, and it is authorized to refuse the same if it 'deems the granting of such permit prejudicial to the welfare and convenience of the public.' Laws Md., 1922, c. 401, 4.
George W. Bush & Sons Company applied for a permit to do an exclusively interstate business as a common carrier of freight over specified routes, alleging its willingness and intention to comply with all applicable regulations concerning the operation of motor vehicles. After due hearing the permit was denied. This suit was brought in a court of the state to restrain the state officials from interfering [267 U.S. 317, 324] with such use of the company's trucks. The bill alleged, and it was admitted by demurrer, that the highways were not unduly congested; that they are so constructed that they can carry burdens heavier than that which would be imposed by plaintiff's trucks; that the operation of its trucks would impose no different burden upon the highways than the operation of the trucks of the same kind and character by private persons, which was freely permitted; and that, in refusing the permit, the commission had considered merely 'whether or not existing lines of transportation would be benefited or prejudiced and in this way the public interest affected.' The plaintiff claimed that, regardless of permit, it was entitled to use the highways as a common carrier in exclusively interstate commerce. The trial court dismissed the bill. Its decree was affirmed by the highest court of the state. 143 Md. 570.1 The case is here on writ of error under section 237 of the Judicial Code (Comp. St. 1214).
This case presents two features which were not present in Buck v. Kuykendall (No. 345) 267 U.S. 307 , 45 S. Ct. 324, 69 L. Ed. --, decided this day. The first is that the highways here in question were not constructed or improved with federal aid. This difference does not prevent the application of the rule declared in the Buck Case. The federal aid legislation is of significance, not because of the aid given by the United States for the construction of particular highways, but because those acts make clear the purpose of Congress that state highways shall be open to interstate commerce. The second feature is that here the permit was refused by the commission, not in obedience to a mandatory provision of the state statute, but in the exercise, in a proper manner, of the broad discretion vested in it. This difference also is not of legal significance in this connection. The state action in the Buck Case was held to be unconstitutional, not because the statute prescribed an arbitrary test for the granting of permits, or because the director of [267 U.S. 317, 325] public works had exercised the power conferred arbitrarily or unreasonably, but because the statute as construed and applied invaded a field reserved by the commerce clause for federal regulation.
Mr. Justice McREYNOLDS dissents. See 267 U.S. 325 , 45 S. Ct. 327, 69 L. Ed. --.
[ Footnote 1 ] 123 A. 61.