(45 S.Ct.)

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 *324

from interfering 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).

Washington.

For opinions of Mr. Justice Brandeis in

these cases, see 267 U. S. 307, 317, 45 S. Ct. 324, 326, 69 L. Ed.

The separate opinion of Mr. Justice McREYNOLDS.

I am of opinion that the courts below reached correct conclusions in these causes. The states have spent enormous sums in constructing roads, and must continue to maintain and protect them at great cost if they are to remain fit for travel.

The problems arising out of the sudden increase of motor vehicles present extraordinary difficulties. As yet nobody definitely knows what should be done. Manifestly, the exigency cannot be met through uniform rules laid down by Congress.

legislation and expenditures by the states. The challenged statutes do not discriminate against such commerce, do not seriously impede it, and indicate an honest purpose to promote the best interest of all by preventing unnecessary destruction and keeping the ways fit for maximum service.

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. Interstate commerce has been greatly aiddecided this day. The first is that the high-ed-amazingly facilitated, indeed-through ways 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 federal government has not and canthe purpose of Congress that state highways not undertake precise regulation. Control shall be open to interstate commerce. The by the states must continue; otherwise chasecond feature is that here the permit was otic conditions will quickly develop. The refused by the commission, not in obedience problems are essentially local, and should to a mandatory provision of the state stat-be left with the local authorities unless and ute, 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

until something is done which really tends to obstruct the free flow of commercial in

tercourse.

The situation is similar to the one grow

Case was held to be unconstitutional, not being out of the necessity for harbor regula

1123 A. 61.

tions. State statutes concerning pilotage,

CITY OF NEWARK et al. v. CENTRAL R. for development of "water front upon any

(Argued Nov. 21, 24, 1924. Decided March 2, the absence of allegations of fact showing con

Railroad's application to board of commerce and navigation of New Jersey for approval of plans for construction of railroad Affirmed.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Mr. Justice BUTLER delivered the opin- Congress gave its consent to the agreement. ion of the Court.

By the legislation empowering the company Jed were not exhausted by. the construction to construct, maintain and use the railroad, the state of New Jersey consented to the construction of the bridge in question.

of the tracks and bridge first provided. Its charter was of unlimited duration. Bridges, as well as other elements of the property, must be replaced when they wear out or become inadequate. The company was empowered to maintain and improve its railroad, as it might from time to time find necessary or expedient. It was not bound to have its performance limited to the capacity of the bridge first constructed, but it was free to add to its transportation facilities by laying down additional tracks over waters crossed by its bridges as well as upon land. Plainly, authority to provide, as needed, better and stronger bridges having additional tracks is to be regarded as within the purposes of and incidental to the powers expressly given. See Railway Companies v. Keokuk Bridge Co., 131 U. S. 371, 385, 389,

"That it shall and may be lawful for the Central Railroad Company of New Jersey to extend their railroad from some point in their track in the city of Elizabeth, to some point or points on New York Bay, in the county of Hudson, at or south of Jersey City; and for that purpose, in its construction and completion, maintenance, use and enjoyment, all and every 9 S. Ct. 770, 33 L. Ed. 157; Brainard v. provision of the act entitled, 'An act to incor- Clapp, 10 Cush. (Mass.) 6, 10, 57 Am. Dec. porate the Somerville & Easton Railroad Com-74; Western Union Telegraph Co. v. Polpany' [approved February 26, 1847], and of hemus, 178 F. 904, 906, 102 C. C. A. 105, 29 the several supplements thereto, shall extend L. R. A. (N. S.) 465. This case is not like and be applicable to the railroad now authorized Morris and Essex Railroad Co. v. Central to be constructed, in every respect as if the Railroad Co., 31 N. J. Law, 205, or McCran same had been originally authorized under the said act to which this is a supplement. [Sec- v. Erie Railroad Company (Court of Errors tion 1.] * That the said railroad com- and Appeals, New Jersey, March 6, 1924) 95 pany shall construct a suitable bridge over any N. J. Eq. 653, 124 A. 50. In the former, the navigable water that they may cross, with a company, having laid out its railroad in acpivot draw with two openings, each of seventy-cordance with the charter, was held to be five feet in width, at right angles to the main without power to add a branch or spur. In channel, located at a point convenient for the latter, it was held that a change of a [Section 2.]

navigation.

*

Section 6 of the act of incorporation of 1847 (P. L. p. 130) confers upon the president and directors of the company "all the rights and powers necessary and expedient to survey, lay out, and construct" the railroad "not exceeding one hundred feet in width, with as many sets of tracks and rails as they may deem necessary, and to erect embankments, bridges, ferries, and all other works necessary to lay rails and to do all other things which shall be suitable or necessary for the completion or repair of the said road or roads." These laws conferred on the company, not only the powers expressly defined, but also those which fairly are incidental thereto. Union Pacific Ry. Co. v. Chicago, etc., Ry. Co., 163 U. S. 564, 581, 16 S. Ct. 1173, 41 L. Ed. 265. Necessary bridges are essential parts of the railroad; they are stretches of railroad over water. As to bridges over navigable waters, the

part of the line shortening a curve could not be made without complying with section 16 of the Railroad Act of New Jersey, requiring the consent of the riparian commission (now the board of commerce and navigation) and the payment of compensation

#384

to that body for land under water *taken by the company. Here no extension, branch, spur, or change of route is involved.

[4] The replacement was authorized by the United States. The Act of August 8, 1919, authorized the company to construct a bridge suitable to the interests of navigation, between Elizabeth and Bayonne, in accordance with the Bridge Act of March 23, 1906. The latter requires the plans and specifications to be approved by the Chief of Engineers and Secretary of War (section 1), and provides that, whenever Congress shall authorize a bridge over navigable waters of the United States, the authority shall cease unless construction be commenced within one year and act of 1860 specified draws and the num*ber completed within three years (section 6). and width of openings. But it did not pre- The company failed to commence construcscribe the number of tracks or other elements tion within one year. But the Act of Febwhich were to constitute the railroad. The ruary 15, 1921, made the time for commenccompany was empowered to have as many ing and completing the bridge two and five tracks, within the width specified, as it deem-years respectively from the date of its pased necessary. That the company in the first sage. The Chief of Engineers and Secretary instance might have built a four-track bridge of War, December 29, 1922, approved the of permanent materials such as is now pro- plans. The supremacy of the power of Conposed, instead of a smaller wooden struc-gress to regulate commerce with foreign nature, cannot be doubted. The powers grant- tions and among the states and of the reg

*383

(45 S.Ct.)

ulations made by the exertion of that power for the development of any water front." is so well known as not to require citation The construction or replacement of a railof authority. Undoubtedly that power ex- road bridge across a bay or river is not nectends to the navigable waters of Newark Bay essarily a "water front development." The and to the plans for the replacement of the company was empowered under the act of bridge in question. As both state and fed- 1860 not only to construct and maintain eral governments have authorized or consent- its railroad and the existing double-track ed to the construction of the bridge, we need bridge across the bay, but also to replace not decide whether the acts of Congress and that bridge by another having additional approval of the plans by the Chief of En-tracks, whenever the company found it exgineers and Secretary of War would be suf-pedient so to do. We find nothing in the act ficient, without the consent of the state, or whether, in respect of the navigable waters of Newark Bay wholly within the state of New Jersey, the legislation of Congress supersedes the laws of the state.

The laws of New Jersey do not require approval of the plans for the proposed bridge by the state board of commerce and navigation.

*385

[5, 6] *Section 4, c. 123, Laws of 1914, provides:

*

to indicate an intention to require the plans for such replacement to be submitted to the state board. It is plain that the construction to be undertaken by the company for the maintenance and betterment of its rail*386

road bridge over the bay is not a “water. front development to be undertaken subsequent to the passage" of chapter 123, Laws of 1914.

[7, 8] Approval by the Port Authority of the company's plans for the proposed bridge "All plans for the development of any water There is no provision in was not required. front upon any navigable water or stream of any of the laws relating to the Port Authorthis state, or bounding thereon * * in the ity or to the comprehensive plan for the nature of individual improvement or develop- development of the port, which requires such ment, or as a part of a general plan which in-approval. And the Port Authority does not volves the construction, change, alteration or claim that the company was required to obmodification of a dock, wharf, pier, bulkhead, tain its permission. In its answer, it prays bridge, pipe line, cable, or any other similar or the court "to determine its legal duties in dissimilar water front development, to be undertaken subsequent to the passage of this act, shall first be submitted to the said commission [the board of commerce and navigation, sections 5, 13, c. 242, Laws of 1915], and no such development * * * shall be commenced or executed without the approval of this commission first had and received. *

And it declares that any such development or improvement commenced or executed without such approval shall be deemed to be a purpresture and a public nuisance. The company in February, 1917, June, 1918, and February, 1922, applied to that board for the approval of its plans for the proposed bridge. All its applications were denied. Nevertheless, the company is free to insist that such approval was not required. See Buck v. Kuykendall, 267 U. S. 307, 45 S. Ct. 324, 69 L. Ed. The plans for the new bridge to replace the old one are not shown by any allegations of fact to constitute a "plan

the premises," and expresses willingness to pass on the application for a permit, if the court shall determine one is required. The complaint alleges that the bridge is not included in the comprehensive plan, and that the existing and proposed bridges "are in conflict therewith, obstructive thereof, and inimical thereto." But the fact that the bridge is not included does not make it unlawful, or leave the company without authority to construct it. It does not appear that the Port Authority has attempted or has power to deprive the company of its right to maintain, improve, and use that part of its railroad. The assertion that the bridge is in conflict with the comprehensive plan is not supported by any facts alleged in the complaint or in the answer to the Port Authority. The pleader's naked assertion is not enough to support the contention that the consent of the Port Authority was required. Decree affirmed.