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penalties to be imposed upon him. Plaintiff alleged that the enforcement of the act would cause him irreparable injury, the loss of his contracts, the destruction of his business, and the loss of a substantial part of his capital investment. He assailed the act as invalid; and, among other things, averred that it contravenes the commerce clause of the Constitution of the United States, that it is repugnant to the due process clause of the Fourteenth Amendment, and that it violates the Constitution of Michigan, because it contains a plurality of objects, and its real object is not expressed in the title. The lower court held that section 7, providing for indemnity bonds imposes a direct burden on interstate commerce, and that the provisions of section 3 applicable to private carriers are foreign to the title of the act and fall under the condemnation of the state Constitution. See opinion of the same judges in Liberty *Highway Co. v. Michigan Public Utilities Commission (D. C.) 294 F. 703, 706, 708, decided the same day that the injunction was granted in this case.

*576

Plaintiff is a private carrier. His sole business is interstate commerce, and it is limited to the transportation covered by his three contracts. He has no power of eminent domain or franchise under the state, and no greater right to use the highways than any other member of the body public. He does not undertake to carry for the public and does not devote his property to any public use. He has done nothing to give rise to a duty to carry for others. The public is not dependent on him or the use of his property for service, and has no right to call on him for transportation. The act leaves it to the commission to require plaintiff, if he is to use the highways, to be prepared to furnish adequate service to the public. It would make him a common carrier and subject him to all the duties and burdens of that calling and would require him to furnish bond for the protection of those for whom he hauls.

At the time of the passage of the act, [1-3] This court has held that, in the abplaintiff had three contracts to transport sence of national legislation covering the from Detroit, Mich., to Toledo, Ohio, automo- subject, a state may rightfully prescribe unbile bodies made at the plants of three man-iform regulations necessary for public safety ufacturers in Detroit and intended for the and order in respect to the operation upon use of an automobile manufacturer at Toledo. He had been doing such hauling for some years, and had a large investment in property used exclusively for that purpose. He employed 75 men and operated 47 motor trucks and trailers upon the public highways of Michigan, which formed a part of the route between Detroit and Toledo. He had no other business and did not hold himself out as a carrier for the public. It was shown that defendants intended to enforce the act against him, and that, unless he obtained the permits required, they would cause his vehicles to be stopped on the highways by state police and local officers, and the prescribed

its highways of all motor vehicles-those moving in interstate commerce as well as others-that a reasonable, graduated license fee imposed by a state on motor vehicles used in interstate commerce does not constitute a direct burden on interstate commerce, and that a state which, at its own expense, furnishes special facilities for the use of those engaged in intrastate and interstate commerce may exact compensation therefor, and if the charges are reasonable and uniform, they constitute no burden on interstate commerce. Hendrick v. Maryland, 235 U. S. 610, 622, 35 S. Ct. 140, 59 L. Ed. 385; Kane v. New Jersey, 242 U. S. 160, 167, 37 S. Ct. 30, 61 L

1

(45 S.Ct.)

Ed. 222. Such regulations are deemed to be
*577
reasonable and to affect *interstate commerce
only incidentally and indirectly. But it is
well settled that a state has no power to fet-
ter the right to carry on interstate commerce
within its borders by the imposition of con-
ditions or regulations which are unnecessary
and pass beyond the bounds of what is rea-
sonable and suitable for the proper exercise
of its powers in the field that belongs to it.
Sioux Remedy Co. v. Cope, 235 U. S. 197, 201,
35 S. Ct. 57, 59 L. Ed. 193. One bound to
furnish_transportation to the public as a
common carrier must serve all, up to the
capacity of his facilities, without discrimi-
nation and for reasonable pay. The act
would put on plaintiff the duty to use his
trucks and other equipment as a
carrier in Michigan, and would prevent him
from using them exclusively to perform his
contracts. This is to take from him use of
instrumentalities by means of which he car-
ries on the interstate commerce in which he
is engaged as a private carrier and so di-
rectly to burden and interfere with it. See
Kansas Southern Ry. v. Kaw Valley District,
233 U. S. 75, 78, 79, 34 S. Ct. 564, 58 L. Ed.
857; Atlantic Coast Line v. Wharton, 207
U. S. 328, 334, 28 S. Ct. 121, 52 L. Ed. 230;
Illinois Central Railroad Co. v. Illinois, 163
U. S. 142, 153, 16 S. Ct. 1096, 41 L. Ed. 107.
And it is a burden upon interstate com-
merce to impose on plaintiff the onerous du-
ties and strict liability of common carrier,
and the obligation of furnishing such indem-

common

nity bond to cover the automobile bodies
hauled under his contracts as conditions pre-
cedent to his right to continue to carry them
in interstate commerce. See Barrett v. New
York, 232 U. S. 14, 33, 34 S. Ct. 203, 58 L.
Ed. 483. Clearly, these requirements have
no relation to public safety or order in the
use of motor vehicles upon the highways, or
to the collection of compensation for the use
of the highways. The police power does not
extend so far. It must be held that, if ap-
plied to plaintiff and his business, the act

would violate the commerce clause of the
Constitution.

*578

[4, 5] Moreover, it is beyond the power of the state by legislative fiat to convert property used exclusively in the *business of a private carrier into a public utility, or to make the owner a public carrier, for that would be taking private property for public use without just compensation, which no state can do consistently with the due process of law clause of the Fourteenth Amendment. Producers Transportation Co. v. Railroad Commission, 251 U. S. 228, 230, 40 S. Ct. 131, 64 L. Ed. 239; Wolff Co. v. Industrial Commission, 262 U. S. 522, 535, 42 S. Ct. 630, 67 L. Ed. 1103, 27 A. L. R. 1280. On the facts 45 S.CT.-13

above referred to, it is clear that, if enforced against him, the act would deprive plaintiff of his property in violation of that clause of the Constitution.

not decided whether the act contravenes the [6] The Supreme Court of Michigan has state Constitution; and as we hold that the enforcement of the act against plaintiff would deprive him of his rights under the federal Constitution, and that therefore the decree must be affirmed, we do not pass on state questions. Pacific Tel. Co. v. Kuykendall, 265 U. S. 196, 204, 44 S. Ct. 553, 68 L. Ed. 975.

Decree affirmed.

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opinion of the Court.

By opinion handed down November 17, 1924, this court sustained the contention of the Commissioner of Immigration that the respondents should not have been discharged under the writ of habeas corpus as directed by the Circuit Court of Appeals, but agreed with that court in its criticism of the action of the immigration authorities in dealing with the respondents here, and made modificourt. Counsel for the respondents in a pecations and additions to the order of that tition for rehearing now ask additional modifications. Of these, the court deems it prop

er to grant two.

shall prejudice an application on behalf of First. Nothing in the order of this court Zenia Waldman to the discretion of the Secretary of Labor under section 21 of the Immi-. gration Act of February 5, 1917, c. 29, 39 Stat. 874, 891,1 to accept satisfactory security against her becoming a public charge and on its being furnished to admit her to this country.

shall prejudice an application for release on Second. Nothing in the order of this court bail of the respondents pending compliance with the mandate of this court.

1 Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4289kk.

MEMORANDUM DECISIONS

DISPOSED OF AT OCTOBER TERM, 1924

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No. 150. MUSCATINE LIGHTING COMPANY, appellant, v. CITY OF MUSCATINE et al. Dec. 15, 1924. Appeal from the District Court of the United States for the Southern District of Iowa. Messrs. Wm. Chamberlain, of Cedar Rapids, Iowa, and J. R. Lane, of Davenport, Iowa, for appellant. Mr. Ed. P. Ingham, of Muscatine, Iowa, for appellee.

PER CURIAM. Dismissed for the want of jurisdiction, upon the authority of Heike v. United States, 217 U. S. 423, 429, 30 S. Ct. 539, 54 L. Ed. 821; Rexford v. BrunswickBalke-Collender Co., 228 U. S. 339, 345, 346, 33 S. Ct. 515, 57 L. Ed. 864; Lincoln Gas & Electric Co. v. Lincoln, 253 U. S. 477, 40 S. Ct. 585, 64 L. Ed. 1022.

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Kan., for plaintiff in error. Messrs. Charles
B. Griffith and John G. Egan, both of Topeka,
Kan., for defendant in error.

PER CURIAM. Dismissed for the want of
jurisdiction upon the authority of Maryland v.
Baltimore & Ohio R. R. Co., 3 How. 534, 550,
11 L. Ed. 714; Pawhuska v. Pawhuska Oil &
Gas Co., 250 U. S. 394, 399, 39 S. Ct. 526, 63
L. Ed. 1054; Trenton v. New Jersey, 262 U.
S. 182, 188, 43 S. Ct. 534, 67 L. Ed. 937, 29
A. L. R. 1471; Newark v. New Jersey, 262
U. S. 192, 196, 43 S. Ct. 539, 67 L. Ed. 943.

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No. 219. RED SEAL OIL COMPANY, appellant, v. Albert BITTNER et al. Dec. 15, 1924. Appeal from the District Court of the United States for the Northern District of Illinois. Mr. Edward H. S. Martin, of Chicago, Ill., for appellant.

PER CURIAM. Dismissed for the want of jurisdiction upon the authority of Hohorst v. Packet Co., 148 U. S. 262, 264, 13 S. Ct. 590, 37 L. Ed. 443; Collins v. Miller, 252 U. S. 364, 370, 40 S. Ct. 347, 64 L. Ed. 616; Arnold v. United States, 263 U. S. 427, 434, 44 S. Ct. 144, 68 L. Ed. 371.

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No. 313. William LEATHER et al., appellants, v. Mark J. WHITE. Dec. 15, 1924. Appeal from the United States Circuit Court of Appeals for the Seventh Circuit. For opinion below, see 296 F. 477. Mr. Oliver J. Cook, of Chicago, Ill., for appellants.

PER CURIAM. Affirmed with costs, upon the authority of Belknap v. Schild, 161 U. S. 10, 16, 16 S. Ct. 443, 40 L. Ed. 599; Stanley V. Schwalby, 162 U. S. 255, 270, 16 S. Ct. 754, 40 L. Ed. 960.

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No. 354. WILLIAM ASH COMPANY et al., plaintiffs in error, v. The RECLAMATION BOARD OF THE STATE OF CALIFORNIA et al. Dec. 15, 1924. In error to the Supreme Court of the State of California. For opinion 191 Cal. 650, 218 P. 27. Mr. J. W. Dorsey, below, see Sutter-Butte By-Pass Assessment, of San Francisco, Cal., for plaintiffs in error.

PER CURIAM. Dismissed for the want of jurisdiction upon the authority of Shulthis v. McDougal, 225 U. S. 561, 569, 32 S. Ct. 704, 56 L. Ed. 1205; Hull v. Burr, 234 U. S. 712, 720, 34 S. Ct. 892, 58 L. Ed. 1557; Norton v. Whiteside, 239 U. S. 144, 147, 36 S. Ct. 97, 60 L. Ed. 186.

No. 151. The BOARD OF COUNTY COMMISSIONERS OF BARBER COUNTY, State of KANSAS, plaintiff in error, v. Carl J. PETERSON, Bank Commissioner, etc. Dec. 15. 1924. In error to the Supreme Court of the State of Kansas. For opinion below, see 113 Kan. 180, 213 P. 1054. Messrs. Chester I. No. 580. C. E. SCHAFF, as Receiver, etc., Long and Austin M. Cowan, both of Wichita, petitioner, v. Mrs. Beerah RIDLEHUBER,

9

(266 U. S. 629)

(45 S.Ct.)

Administratrix, etc. Dec. 15, 1924. For opin-1 certiorari to the United States Circuit Court ion below, see 261 S. W. 523. Messrs. Joseph of Appeals for the Third Circuit denied. M. Bryson, of St. Louis, Mo., and Alex. Britton, of Washington, D. C., for petitioner. Petition for a writ of certiorari to the Court of Civil Appeals for the Third Supreme Judicial District of the State of Texas denied.

(266 U. S. 590)

No. 590. J. C. CROWSON, plaintiff in error, v. Michael CODY et al. Dec. 15, 1924. In error to the Supreme Court of the State of Alabama. For opinion below, see 100 So. 821. Mr. W. A. Gunter, of Montgomery, Ala., for plaintiff in error.

PER CURIAM. Dismissed for the want of jurisdiction upon the authority of Shulthis v. McDougal, 225 U. S. 561, 569, 32 S. Ct. 704, 56 L. Ed. 1205; Hull v. Burr, 234 U. S. 712, 720, 34 S. Ct. 892, 58 L. Ed. 1557; Norton v. Whiteside, 239 U. S. 144, 147, 36 S. Ct. 97, 60 L. Ed. 186.

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(266 U. S. 630)

No. 736. C. LEVENSALER et al., etc., petitioners, v. UNITED STATES SHIPPING BOARD EMERGENCY FLEET CORPORATION. Dec. 15, 1924. For opinion below, see 1 F.(2d) 1021. Messrs. J. Harry Covington and Spencer Gordon, both of Washington, D. C., for petitioners. Petition for a writ of certiorari to the Court of Appeals of the District of Columbia denied.

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No. 753. The STATE INDUSTRIAL BOARD

OF THE STATE OF NEW YORK, petitioner,
V. U. S. RAILROAD ADMINISTRATION,
NEW YORK CENTRAL RAILROAD COM-
PANY. Dec. 15, 1924. For opinion below, see
Snow v. U. S. Railroad Administration, 239
N. Y. 528, 147 N. E. 181, which affirms order
209 App. Div. 308, 204 N. Y. S. 514. Messrs.
Carl Sherman and E. C. Aiken, both of Albany,
N. Y., for petitioner. Petition for a writ of
certiorari to the Supreme Court of the State of
New York denied.

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No. 13. STATE OF OKLAHOMA, Complainant, v. STATE OF TEXAS, Defendant (United States, Intervener). Submitted Jan. 5, 1925. Decided Jan. 5, 1925. See, also, 266 U. S. 583, 45 S. Ct. 122, 69 L. Ed. Report submitted by Arthur A. Stiles and Arthur D. Kidder, Boundary Line Commissioners. Mr. S. P. Freeling, of Oklahoma City, Okl., for the State of Oklahoma. Messrs. C. W. Taylor, of Corsicana, Tex., and Orville Bullington and A. H. Carrigan, both of Wichita Falls, Tex., for the State of Texas. The commissioners heretofore designated to run, locate and mark upon the ground portions of the boundary line between the States of Texas and Oklahoma, where it follows the course of the Red River, having this day presented a report, with accompanying maps, showing that they have run, located and marked upon the ground the portion of the boundary along the Fort Augur Area, that is to say, from the westerly end of the Big Bend Area to a southerly extension of the west line of range sixteen west in Oklahoma; and it appearing from such report that the said commissioners have transmitted copies of such report, with the accompanying maps, by registered mail to the Attorney General of the United States, the Attorney General of the State of Texas and the Attorney General of the State of Oklahoma,

196

and have lodged with the clerk fifty additional copies of such report and maps for the use of such private interveners as may apply for them; it is ordered that the said report, with the accompanying maps, be received and filed by the clerk. And it is further ordered that all objections or exceptions to such report, if there be any such objections or exceptions, shall be presented to the court or filed with the clerk within a period of four weeks from this date; and the period heretofore fixed for presenting or filing such objections or exceptions is limited and modified accordingly.

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(266 U. S. 594)

No. 91. TAMPA-INTER-OCEAN STEAMSHIP COMPANY, Inc., plaintiff in error, v. The STATE OF LOUISIANA. Jan. 5, 1925. For opinion below, see 153 La. 971, 96 So. 828. Messrs. George H. Terriberry, W. W. Young, and Joseph M. Rault, all of New Orleans, La., for plaintiff in error. Motion to reargue principles of Texas Transport & Terminal Company v. New Orleans, 264 U. S. 150, 44 S. Ct. 242, 68 L. Ed. 611, denied.

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No. 371. NORTHERN PACIFIC RAIL-
WAY COMPANY et al., plaintiffs in error, v.
The DEPARTMENT OF PUBLIC WORKS OF
WASHINGTON et al. Jan. 5, 1925. For opin-
ion below, see 125 Wash. 577, 584, 217 P. 13,
507. Mr. John H. Carroll, of Washington,
Messrs. John H.
D. C., for plaintiff in error.
Dunbar and Raymond W. Clifford, both of
Olympia, Wash., and Scott Z. Henderson, of
Mo-
Tacoma, Wash., for defendant in error.
tion to dismiss this cause denied.

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No. 624. BLACK ROCK POWER & IRRIGATION COMPANY, Appellant, v. W, R. ADAMSON and Lyle Adamson, his wife, et al. Jan. 5, 1925. Appeal from the United States Circuit Court of Appeals for the Ninth Circuit. For opinion below, see 297 F. 905. See, also, 266 U. S. 630, 45 S. Ct. 196, 69 L. Ed. Messrs. George Donworth, of Seattle, Wash., and Elmer E. Todd, of Seattle, Wash., for appellant. Dismissed for want of jurisdiction upon the authority of section 128, Judicial Code (Comp. St. § 1120); Shulthis v. McDougal, 225 U. S. 561, 569, 32 S. Ct. 704, 56 L. Ed. 1205; Hull v. Burr, 234 U. S. 712, 720, 34 S. Ct. 892, 58 L. Ed. 1557; Delaware, Lackawanna & Western R. R. Co. v. Yurkonis, 238 U. S. 439, 444, 35 S. Ct. 902, 59 L. Ed. 1397.

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(266 U. S. 592)

No. 494. A. A. HOLMES, plaintiff in error, v. L. W. BRONAUGH. Jan. 5, 1925. In error to the Supreme Court of the State of Oklahoma. For opinion below, see 102 Okl. 249, 225 P. 512. Mr. Reford Bond, of Chickasha, Okl., for plaintiff in error.

PER CURIAM. Dismissed for want of jurisdiction upon the authority of section 237 of the Judicial Code as amended by the act of September 6, 1916, c. 448. § 2, 39 Stat. 726, (Comp. St. § 1214) Philadelphia & Reading Coal & Iron Co. v. Gilbert, 245 U. S. 162, 38 S. Ct. 58, 62 L. Ed. 221; Ireland v. Woods, 246 U. S. 323, 328, 38 S. Ct. 319, 62 L. Ed. 745; Stadelman v. Miner, 246 U. S. 544, 546, 38 S. Ct. 359, 62 L. Ed. 875; Chicago Great Western R. R. Co. v. Basham, 249 U. S. 164, 165, 39 S. Ct. 213, 63 L. Ed. 534; Citizens' Bank v. Opperman, 249 U. S. 448, 450, 39 S. Ct. 330, 63 L. Ed. 701; Jett Bros. v. Carrollton, 252 U. S. 1, 5, 6, 40 S. Ct. 255, 64 L. Ed. 421.

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