MR. JUSTICE MURPHY delivered the opinion of the Court.
A California statute prohibits the sale or arrangement of any transportation over the public highways of the State if the transporting carrier has no permit from the Interstate Commerce Commission.
Respondents operate a travel bureau in Los Angeles, and receive commissions for arranging "share-expense" passenger transportation in automobiles. Owners of private cars desiring passengers for a trip register with respondents' agency, as do prospective passengers. State lines are crossed in many of the trips. Until 1942 the federal act specifically exempted such "casual, occasional, or reciprocal" transportation.
Respondents were prosecuted under the state act. They admitted their unlawful activity, but demurred to the criminal complaint on the sole ground that the state statute entered an exclusive congressional domain. The trial court disagreed, and entered a judgment of conviction,
Certain first principles are no longer in doubt. Whether as inference from congressional silence, or as a negative implication from the grant of power itself, when Congress has not specifically acted we have accepted the Cooley case's broad delineation of the areas of state and national power over interstate commerce. Cooley v. Port Wardens, 12 How. 299; Southern Pacific Co. v. Arizona, 325 U.S. 761, 768. See Ribble, State and National Power Over Commerce, ch. 10. Absent congressional action, the familiar test is that of uniformity versus locality: if a case falls within an area in commerce thought to demand a uniform national rule, state action is struck down. If the activity is one of predominantly local interest, state action is sustained. More accurately, the question is whether the state interest is outweighed by a national interest in the unhampered operation of interstate commerce.
There is no longer any question that Congress can redefine the areas of local and national predominance, Prudential Insurance Co. v. Benjamin, 328 U.S. 408; Southern Pacific Co. v. Arizona, supra, at 769, despite theoretical inconsistency with the rationale of the Commerce Clause as a limitation in its own right. The words of the Clause — a grant of power — admit of no other result. When Congress enters the field by legislation, we try to discover to what extent it intended to exercise its power of redefinition; here we are closer to an intent that can be demonstrated with assurance, although we may employ
But whether Congress has or has not expressed itself, the fundamental inquiry, broadly stated, is the same: does the state action conflict with national policy? The Cooley rule and its later application, Southern Pacific Co. v. Arizona, supra, the question of congressional "occupation of the field," and the search for conflict in the very terms of state and federal statutes are but three separate particularizations of this initial principle.
We restate the familiar because respondents would have us pronounce an additional rule: that when Congress has made specified activity unlawful, "coincidence is as ineffective as opposition," and state laws "aiding" enforcement are invalid. Respondents seem to argue that this is as fundamental as the rule of conflict with national authority, and that it rests upon wholly independent premises.
But respondents seize upon only one part of the familiar phrase in Charleston & W.C.R. Co. v. Varnville Furniture Co., 237 U.S. 597, 604. We said that when "Congress has taken the particular subject-matter in hand coincidence is as ineffective as opposition. . . ." See also, Pennsylvania R. Co. v. Public Service Comm'n, 250 U.S. 566, 569; Missouri P.R. Co. v. Porter, 273 U.S. 341, 346. Respondents' argument assumes the stated premise — that Congress has "taken the particular subject-matter in hand," to the exclusion of state laws. The Court could not have intended to enunciate a mechanical rule, to be applied whatever the other circumstances indicating congressional intent. Neither the language nor the facts of the cases cited support an approach in such marked contrast with this Court's consistent decisional bases. The Varnville case struck down a South Carolina statute which had the effect of holding a connecting carrier liable for goods damaged in interstate
The "coincidence" rationale is only an application of the first principle of conflict with national policy. The phrase itself simply states that familiar rule. If state laws on commerce are identical with those of Congress, the Court may find congressional motive to exclude the states: Congress has provided certain limited penalties, "and a state law is not to be declared a help because it attempts to go farther than Congress has seen fit to go," Varnville, supra, at 604 — that is, if Congress has "occupied the field." But the fact of identity does not mean the automatic invalidity of state measures. Coincidence is only one factor in a complicated pattern of facts guiding us to congressional intent.
This has long been settled. Fox v. Ohio, 5 How. 410, announced uncertainly what United States v. Marigold, 9 How. 560, later made clear: that "the same act might, as to its character and tendencies, and the consequences it involved, constitute an offence against both the State and Federal governments, and might draw to its commission the penalties denounced by either, as appropriate to its character in reference to each." 9 How. at 569.
Asbell v. Kansas, 209 U.S. 251, is a further illustration. A Kansas statute provided criminal penalties for the importation of cattle from any point south of the State, except for immediate slaughter, without approval of the proper state officials or the Bureau of Animal Industry of the United States. The congressional Act, 32 Stat. 791, 792, allowed cattle to be transported into a state if inspected and passed by an inspector of the United States Bureau of Animal Industry. Violation of the federal act brought criminal sanctions. Yet we affirmed a conviction under the state law. We said that "if the state law conflicts with it [federal law] the state law must yield. But the law of Kansas now before us recognizes the supremacy of the national law and conforms to it."
To limit our inquiry to respondents' single standard would restrict us to unreality. For Congress is often explicit when it wishes state laws to conclude federal prosecution, to avoid the double punishment possible in a federal system. See, for example, 18 U.S.C. § 659, defining the crime of stealing from an interstate carrier; 18 U.S.C. § 660, misapplication of funds by an officer or employee of a carrier engaged in commerce. And when state enforcement mechanisms so helpful to federal officials are to be excluded, Congress may say so, as in the Labor Management Relations Act, 1947, 29 U.S.C. (Supp. I), § 160 (a). That Congress has specifically saved state laws in some instances, see, e.g., the Securities Act of 1933, 15 U.S.C. § 77r, indicates no general policy save clarity.
Respondents' automatic "coincidence means invalidity" theory, applied in an area as imbued with the state's interest as is this one, see infra, would lead us to the conclusion that a state may not make a dealer in perishable agricultural commodities respect its laws on the fraudulent nonpayment of an obligation, if that fraud occurred after an interstate shipment, 7 U.S.C. § 499b (4), for Congress has not expressly saved such prosecutions. We would hold, too, that extortion or robbery from interstate commerce under 18 U.S.C. § 1951 or 18 U.S.C. § 2117 is immune from state action; that the wrecking of a bridge over an interstate railroad is an "exclusively federal" offense, 18 U.S.C. § 1992; that the transmittal of a ransom note in interstate commerce cannot be punished by local authorities, 18 U.S.C. § 875. And see 18 U.S.C. §§ 331, 472, 479. In short, we would be setting aside great numbers of state statutes to satisfy a congressional purpose which would be only the product of this Court's
The question is whether Congress intended to override state laws identical with its own when it, through the Interstate Commerce Commission, regulated share-expense passenger automobile transportation, or whether it intended to let state laws stand. While the statute says nothing expressly on this point and we are aided by no legislative history directly in point,
General propositions derived from the whole sweep of the Commerce Clause are often helpful, and we think those just stated are persuasive indications of congressional intent in the case now before us. But the
Of course we no longer limit the states to their "traditional" police powers in considering a statute's validity under the Fourteenth Amendment. See Lincoln Federal Labor Union v. Northwestern Iron & Metal Co., 335 U.S. 525. But the tradition of "usual police powers" is still of aid in determining congressional intent to exclude state action on interstate commerce, at least when Congress has legislated. Many of the evils discussed by the I.C.C., above, are of the oldest within the ambit of the police power: protection against fraud and physical harm to a
The case would be different if there were conflict in the provisions of the federal and California statutes. But there is no conflict in terms, and no possibility of such conflict, for the state statute makes federal law its own in this particular. The case might also be different were there variegated state laws on this subject in 1941, when the I.C.C. removed the federal exemption. We might then infer congressional purpose to displace local laws and establish a uniform rule beyond which states may not go. See Southern R. Co. v. Railroad Commission, 236 U.S. 439. Whatever the result in that class of cases, it would be startling to discover congressional intention to "displace" state laws when there were no state laws to displace when Congress acted. And that is nearly the situation in the present case. When the I.C.C. removed the federal exemption, it mentioned twelve cities, other than Los Angeles and San Francisco, in which the problem was particularly acute.
It is said that I.C.C. recognition of the difficulties facing state regulation of interstate commerce, 33 M.C.C. at 76, because of cases such as Buck v. Kuykendall, supra, is of importance here. But this case concerns only the state's mechanisms for enforcing a statute identical with that of the federal government, though rooted in different policy considerations. We cannot predicate exclusion upon the simple recognition of Constitutional difficulties not present in the cause before us. Since the
This is not a hypothetical case on "normal Congressional intent." It is California's attempt to deal with a real danger to its residents. We know that coincidence, with its consequent possibility of double punishment, is an important factor to be considered. In many cases it may be a persuasive indication of congressional intent. But we must look at the whole case. In this case the factors indicating exclusion of state laws are of no consequence in the light of the small number of local regulations and the state's normal power to enforce safety and good-faith requirements for the use of its own highways.
MR. JUSTICE FRANKFURTER, dissenting.
My brother BURTON has set forth in convincing detail how the regulation of "travel bureaus" for arranging transportation of passengers by motor carriers engaged in interstate commerce was taken over by federal authority, after experience had disclosed the inadequacy of State regulation. What I have to say only serves to emphasize my agreement with his conclusion.
In California v. Thompson, 313 U.S. 109, this Court recognized that positive intervention of Congress was required to displace the reserve power of the State to promote safety and honesty in the business of arranging for motor carrier transportation even beyond State lines. As to such business the power of Congress to regulate commerce "among the several States" was an excluding, not an exclusive, power — State action was not barred by the Commerce Clause but only by appropriate congressional action. State action is displaced only to the extent that Congress chooses to displace it. One would suppose that, when Congress has proscribed defined conduct and attached specific consequences to violations of such outlawry,
For the first time in the hundred and twenty-five years since the problem of determining when State regulation has been displaced by federal enactment came before this Court, Gibbons v. Ogden, 9 Wheat. 1, the Court today decides that the States can impose an additional punishment for a federal offense unless Congress in so many words forbids the States to do it. When Congress deals with a specific evil in a specific way, subject to specified sanctions, it is not reasonable to require Congress to add, "and hereafter the States may not also punish for this very offense," to preclude the States from outlawing the same specific evil under different sanctions.
Of course the same physical act may offend a State policy and another policy of the United States. Assaulting a United States marshal would offend a State's policy against street brawls, but it may also be an obstruction to the administration of federal law. Scores of such instances, inevitable in a federal government, will readily suggest themselves. That was the kind of a situation presented by United States v. Marigold, 9 How. 560. Passing counterfeit currency may, in one aspect, be "a private cheat practiced by one citizen of Ohio upon another," and therefore invoke a State's concern in "protecting her citizens against frauds," 9 How. 568, 569, but the same passing becomes of vital concern to the Federal Government because it tends to debase the currency. Such a situation is quite different from this case. It merits repetition to say that we are now reversing a State court for holding that the very same conduct for the disobedience of which federal regulation imposes a maximum fine of one hundred dollars for the first offense cannot be prosecuted in a State court under a State law imposing a larger fine and, perchance, a prison sentence.
The talk about "conflict" as a basis for displacing State by federal enactment is relevant only in situations where Congress has chosen to "circumscribe its regulation and occupy only a limited field," while State regulation is "outside that limited field," and yet an inference of negation of State action is sought to be drawn. See Kelly v. Washington, 302 U.S. 1, 10. Even in such circumstances this Court has drawn inferences of implied exclusion of
MR. JUSTICE BURTON, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE JACKSON join, dissenting.
The question presented is whether § 654.1 of the Penal Code of California
From 1933 until 1947 the California legislation on this subject expressly distinguished between intrastate and interstate transportation. It provided that the state legislation was to be applicable to interstate motor carriers only "until such time as Congress of the United States shall act, . . ."
Section 654.1, which was added to the Penal Code of California in 1947, contained no provision distinguishing between intrastate and interstate commerce in this field. It mentioned only "transportation . . . over the public highways of the State of California. . . ." The state court below nevertheless interpreted the Section as seeking to include interstate as well as intrastate transportation and then held that it was invalid insofar as it applied to interstate transportation.
The substantial identity between the statutes ends with their definitions of the offense. Only the Federal Act requires a broker's license and the general exemptions from the respective Acts are in great conflict.
The issue requires answers to two questions: I. Did the California Code invade the exclusive jurisdiction which Congress was exercising through its Interstate Commerce Act? II. If so, was the conviction under the California Code invalid on the ground that Congress had taken exclusive jurisdiction over that offense and had not consented to share its jurisdiction with California as here proposed? For the reasons to be stated, we believe the answer to each of those questions should be yes.
The California Code invaded the exclusive jurisdiction which Congress was exercising through its Interstate Commerce Act.
The petitioner's concession that the respondents' acts simultaneously violated the terms of both statutes sharply distinguishes the issue here from those often presented in this general field of controversy. (1) We do not have here the much litigated issue as to the validity of state statutes prohibiting or otherwise regulating acts committed in the course of interstate commerce but in a field of that commerce where Congress has taken no action. In the instant case, Congress has taken jurisdiction by statute not only in this general field but over the precise type of interstate motor carrier transportation of passengers that is the subject of the state legislation and of the complaint in this case. (2) Similarly, we do not have here a case where a state has applied its prohibitory or otherwise regulatory measures to some intrastate transaction taking place before or after, and separable from, the transactions in interstate commerce over which the Federal Government has taken jurisdiction. (3) We
We start not merely with the inherent right of a state to exercise its police power over acts within its jurisdiction. We start also with the constitutional provisions by which the supreme legislative power of the respective states has been delegated to Congress to regulate interstate commerce.
Once Congress has lawfully exercised its legislative supremacy in one of its allotted fields and has not accompanied that exercise with an indication of its consent to share it with the states, the burden of overcoming the supremacy of the federal law in that field is upon any state seeking to do so.
Mr. Justice Butler reemphasized this in sweeping terms in Missouri Pac. R. Co. v. Porter, 273 U.S. 341, 346, by concluding the opinion of the Court as follows:
Related to this exclusive jurisdiction of Congress, established by Article VI of the Constitution, is the general policy against subjecting anyone to punishment more than once for the commission of a single act. Unless care is taken to prevent this, such double punishment may result from the overlapping of the federal and state jurisdictions. However, its unfairness to the individual, as well as its cumbersomeness for enforcement purposes, suggests that it should not be read into legislation in the absence of clear language demonstrating a purpose to permit it. In a case which related to the interpretation of a federal statute that might duplicate or build upon a state law, this Court said:
So here we should be reluctant to read into a federal statute congressional consent to state legislation which authorized prosecution and punishment by the State in addition to federal prosecution and punishment.
Where there is legislative intent to share the exclusiveness of the congressional jurisdiction, appropriate language can make that intent clear. An outstanding example of such authorization is in the Eighteenth Amendment, now repealed. It was there provided that "The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation." (U.S. Const.) More recently, clear language was used by Congress to insure the validity of state cooperation in the "Migratory Bird Conservation Act." approved February 18, 1929:
Still closer to the present situation is the language used by the Congress that passed the Motor Carrier Act, 1935. In "The Whaling Treaty Act" it said:
The Motor Carrier Act, 1935, did not overlook the subject of exclusive state and federal jurisdiction over the respective fields of intrastate and interstate commerce touched by the Act. It did not, however, approve joint and conflicting control by both at the same time. It expressly vested in the Interstate Commerce Commission
Congress thus dealt directly with the problem of state and federal regulation of motor carrier transportation, either interstate or intrastate in character. Congress indicated no consent to share with others its exclusive jurisdiction over the regulation of interstate commerce. If
This brings us to the final question of statutory interpretation. Did Congress impliedly consent to this attempted sharing of its established jurisdiction within the narrow limits of § 203 (b) (9)?
The conviction under the California Code was invalid because Congress had taken exclusive jurisdiction over that offense and had not consented to share its jurisdiction with California.
It is a contradiction in terms to say that a state, without the consent of Congress, may duplicate or share in the exclusive jurisdiction of Congress. If the jurisdiction of Congress has become exclusive, the state's jurisdiction must, by hypothesis, be derived thereafter from Congress or cease to exist. In this case there was no express consent by Congress to share with the states the federally protected exclusive jurisdiction over this type of transaction in interstate commerce. The question remains, however, whether, under all the circumstances, Congress shall be held to have impliedly consented to share its exclusive jurisdiction with California. The text of the legislation and the course of events. which led the Federal Government to take jurisdiction, not only disclose an absence of any basis for a claim that Congress impliedly consented to the California legislation but present overwhelming evidence of a deliberate, careful and unconditional assumption by Congress of federal jurisdiction,
The precise fundamental issue is not the identity, similarity, diversity, or even repugnance, of the two statutes. The fundamental issue is that of the presence or absence of congressional consent to the sharing of its exclusive jurisdiction. The degree of immediate or potential conflict between the statutes has a material relation to the issue of congressional consent. Clear conflict between the statutes would be practically conclusive against the state. The less the conflict, the less obvious is the basis for the objection of Congress to sharing its jurisdiction with the state. However, even a complete absence of conflict, resulting in a mere duplication of offenses, would not remove all basis for objection and would not necessarily establish the required congressional consent. For example, the inherent objectionability of the double punishment of an offender for a single act always argues against its inherent authorization. Similarly, the difficulties inherent in diverse legislative and enforcement policies always argue against the introduction of new state offenses, as distinguished from state cooperation in prosecuting existing federal offenses. Here there was substantial potential conflict between the prescribed state penalties and the federal penalties, although the prohibited acts were the same. Likewise, there was a substantial difference between the two statutes in the exceptions to their application and in such related provisions
In the instant case the most impressive material, emphasizing the unwillingness of Congress to share its exclusive control with a control through state legislation, is found in the legislative, administrative and judicial proceedings which led to the taking of complete jurisdiction by Congress. When federal jurisdiction was thus taken, in 1942, it was clear to Congress that there existed highly unsatisfactory state regulation of the interstate transactions in question. There is no evidence of a subsequent change in the attitude of Congress. The course of events tells the story. It suggests no consent by Congress to a duplication of federal and state control. On the other hand, it demonstrates the existence of ample reasons for taking and retaining exclusive federal jurisdiction over this kind of interstate transportation. It is an example of the effective integration of our federal and state jurisdictions when each is given exclusive control over designated activities, rather than simultaneous, dual and conflicting control over the same activities.
1. June 5, 1931. — A California statute was approved defining motor carrier transportation agents (comparable to travel bureaus arranging share-the-expense trips), and providing for the State's regulation, supervision and licensing of such agents. This Act referred expressly to transportation between points within California and to transportation to the border of that State when one of the points to be reached was outside the State. It expressly permitted these state-licensed transportation agencies to arrange for motor transportation by a motor carrier not holding a valid certificate of public convenience
2. May 15, 1933. — Another California statute repealed the Act of June 5, 1931. The new statute declared it to be the policy of California to regulate and control motor carrier transportation agents acting as "intermediaries between the public and those motor carriers of passengers operating, as common carriers or otherwise, over the public highways of the State, for compensation, that are not required by law to obtain, or that have not obtained, a certificate from the Railroad Commission of the State of California. . . ." 1933 Cal. Stat., c. 390, § 1, p. 1012. This statute, like that of 1931, recognized and prescribed licenses for the travel bureaus dealing in share-the-expense interstate, as well as intrastate, motor trips by unlicensed carriers. This statute and this declaration remained in effect until 1947. It was during this same time that the Interstate Commerce Commission, after investigation, declared that it found that such operations, at least as applied to interstate commerce, were contrary to public policy. The Commission's extended investigation resulted, in 1942, in the deliberate application of the Interstate Commerce Act to these interstate operations under express authority of Congress. The federal law thereupon expressly prohibited such transportation by unlicensed carriers, in interstate commerce, and also prohibited travel bureaus or brokers from selling or arranging such unlicensed trips in interstate commerce. The conflict in policy thus became clear, at least by 1942.
The relation of the 1933 California Act to interstate commerce and its conflict with the federal policy stated by the Interstate Commerce Commission is emphasized
The California Act also included, until 1941, the following: "The provision of this act shall apply regardless of whether such transportation so sold, or offered to be sold, is interstate or intrastate." Id. at p. 1013. In general, the Act amplified the plan of the 1931 Act. It required the bonding and licensing of motor carrier transportation agents (or travel bureaus) arranging for unlicensed interstate, as well as intrastate, motor carrier transportation. Both State Acts contained a section providing explicitly for the separability of any section, subsection, sentence, clause or phrase which might be held unconstitutional.
3. August 9, 1935. — Following an extended survey of the rapidly increasing volume of interstate motor transportation, the Motor Carrier Act, 1935, was enacted by Congress as Part II of the Interstate Commerce Act. For the purposes of this case, the most important feature of this Act was its provision for the partial and conditional exemption from its operation of the kind of motor carrier transportation here involved. Section 203 (b) (9) excluded from its operation, except for safety purposes, "the casual, occasional, or reciprocal transportation of passengers or property in interstate or foreign commerce for compensation by any person not engaged in transportation by motor vehicle as a regular occupation or business." 49 Stat. 546. This exclusion of casual and occasional motor carriers was only a conditional exemption, expressive of federal concern over the apparent inadequacy of the state control over casual and occasional
The close relation between the Commission, the policy of Congress enunciated in the Act and the federal control over the casual and occasional motor carrier transportation of passengers has been emphasized thus from the inception of the Motor Carrier Act, 1935, to the present.
This provision conditionally exempted from federal control not only the casual and occasional transportation service itself but, by rendering such transportation not "subject to" Part II of the Interstate Commerce Act, it also conditionally exempted, from the federal brokerage license requirements, the travel bureaus which sold or arranged for such casual and occasional unlicensed and unregulated interstate transportation.
4. June 14, 1938. — Frank Broker Application, 8 M.C.C. 15. Division 5 of the Interstate Commerce Commission made an important ruling on this application. February 11, 1936, the applicant, doing business as
5. February 6, 1939. — Michaux Broker Application, 11 M.C.C. 317. Division 5 of the Interstate Commerce Commission denied this application, filed in June, 1936, for a broker's license under the Federal Act. The applicant sought to carry on an interstate travel bureau operation in Chicago. The Commission found that, if the
6. May 1, 1940, and May 17, 1940.
The second was an investigation into the subject of rules and regulations to govern brokers of passenger transportation subject to Part II of the Interstate Commerce Act. The first investigation later disclosed, among other things, that the —
7. September 18, 1940. — Amendments were enacted to Part II, Interstate Commerce Act. Although the final report in Ex parte No. MC-35 was not made until 1942, some of the conditions referred to above were reflected in an amendment made to § 203 (b) (9) in 1940.
In substance this amounted to a congressional assumption of jurisdiction, in 1940, in conflict with a part of the existing California policy which approved and attempted to regulate these transactions not only in intrastate but also in interstate transactions. This action of Congress, conforming to the Commission's declaration of policy in the Broker Application cases, substituted this federal prohibition in place of state regulation of these interstate activities. This attitude was strongly reenforced in 1942 and there has been no contrary federal action at any time. See also, Copes Broker Application, 27 M.C.C. 153, 155-156, 169-172, decided by the full Commission, December 20, 1940.
8. April 28, 1941. — California v. Thompson, 313 U.S. 109. This case overruled Di Santo v. Pennsylvania, 273 U.S. 34. It held that the 1933 California Act, at least prior to 1940, was valid, but the Court made it clear that it did so because Congress had not then taken jurisdiction over travel bureau or brokerage operations in selling or arranging for casual or occasional interstate motor carrier transportation of passengers. The opinion of the Court is full of reservations as to what might be the contrary effect of the taking of federal jurisdiction over these transactions. For example, the Court said:
9. June 2, 1941. — The 1933 California Act, which had been slightly revised in 1935, was substantially amended. The Amendment struck out the express application of the Act to interstate as well as intrastate transportation. While the Act evidently still applied, through its general language, to both types of transportation, the omission reflected the State's anticipation of the coming federal control over the interstate transactions. This anticipation was expressly stated in an amendment to § 2 limiting the State's regulation of these interstate transactions to a period in "the absence of action on the part of Congress or the Interstate Commerce Commission regulating or requiring licenses of motor carrier transportation agents acting as such for motor carriers carrying passengers in interstate commerce. . . ."
10. March 21, 1942. — This is the most significant date in these proceedings. It marked the issuance of the order of the Interstate Commerce Commission, effective May 15, 1942, in Ex parte No. MC-35, 33 M.C.C. 69, 49 C.F.R. Cum. Supp. § 210.1.
The intent of Congress and of its specially qualified Interstate Commerce Commission to take complete control of these interstate operations and to supersede the existing state regulation had been indicated in the amendment to § 203 (b) (9), made September 18, 1940. It was demonstrated beyond question in the Commission's report in Ex parte No. MC-35, supra. That report summarized two years of nationwide investigations. It dealt with the travel bureau problem especially upon an interstate basis. It made specific reference to interstate operations between California and Texas. Typical excerpts from the report have been quoted supra, pp. 765-767.
The validity and binding effect of this order was upheld by the United States District Court for the Northern District of Illinois, November 18, 1942. See Findings of Fact and Conclusions of Law, in Levin v. United States, sub nom., T.A. Drake et al. v. United States et al., 3 Fed. Car. Cas. (CCH) ¶ 80,100, judgment affirmed, per curiam, 319 U.S. 728.
12. July 8, 1947. — The present California statute was approved. It repealed the Act of 1933, as amended in 1935 and 1941. While the application of the new Act to interstate transactions is not express, it was interpreted
Jurisdiction over these interstate transactions was assumed by Congress after thorough investigation of the need for such action. That legislation enacted was supreme and therefore exclusive. This does not mean that it might not have been shared with the states if Congress had so provided. We believe, however, that it does mean that, in order for the federal jurisdiction to have been so shared, there must have been some express or implied consent by Congress to do so. The position of Congress was perfectly clear in 1942. There has been no evidence of a change in it.
In Appendix C, infra, p. 784, there are placed in convenient juxtaposition the principal circumstances in this case which demonstrate conflicts between the California and federal legislation and policies, classified as follows:
(1) Conflicts inherent in the statutory texts.
(2) Emphasis expressly placed upon the mutual exclusiveness of the state and federal regulations.
(3) Conflicts between state and federal policies which led to the taking of federal jurisdiction over travel bureaus and share-the-expense motor transportation engaged in casual interstate operations.
In the absence of contraverting evidence, the above list of circumstances presents a convincing argument against the conclusion that Congress, in this instance, either expressly or impliedly consented to share with California the regulation of casual, occasional or reciprocal transportation of passengers by motor vehicle in interstate commerce.
For these reasons we believe that the judgment should be affirmed.
The California Act of 1947.
"An act to repeal `An act to define motor carrier transportation agent; to provide for the regulation, supervision and licensing thereof, and to provide for the enforcement of said act and penalties for the violation thereof; and repealing an act entitled "An act to define motor carrier transportation agent; to provide for the regulation, supervision and licensing thereof, and to provide for the enforcement of said act and penalties for the violation thereof," approved June 5, 1931, and all acts or parts of acts inconsistent with the provisions of this act,' approved May 15, 1933, and to add Sections 654.1, 654.2, and 654.3 to the Penal Code, relating to transportation of persons.
"[Approved by Governor July 8, 1947. Filed with Secretary of State July 8, 1947.]
"The people of the State of California do enact as follows:
"SECTION 1. The act cited in the title hereof is repealed.
"SEC. 2. Section 654.1 is added to the Penal Code, to read:
"654.1. It shall be unlawful for any person, acting individually or as an officer or employee of a corporation, or as a member of a copartnership or as a commission
"SEC. 3. Section 654.2 is added to the Penal Code, to read:
"654.2. The provisions of Section 654.1 of the Penal Code shall not apply to the selling, furnishing or providing of transportation of any person or persons
"(1) When no compensation is paid or to be paid, either directly or indirectly, for such transportation;
"(2) To the furnishing or providing of transportation to or from work, of employees engaged in farm work on any farm of the State of California;
"(3) To the furnishing or providing of transportation to and from work of employees of any nonprofit cooperative association, organized pursuant to any law of the State of California;
"(4) To the transportation of persons wholly or substantially within the limits of a single municipality or of contiguous municipalities;
"(5) To transportation of persons over a route wholly or partly within a national park or state park where such transportation is sold in conjunction with or as part of a rail trip over a regularly operated motor bus transportation system or line;
"SEC. 4. Section 654.3 is added to the Penal Code, to read:
"654.3. Violation of Section 654.1 shall be a misdemeanor, and upon first conviction the punishment shall be a fine of not over two hundred fifty dollars ($250), or imprisonment in jail for not over 90 days, or both such fine and imprisonment. Upon second conviction the punishment shall be imprisonment in jail for not less than 30 days and not more than 180 days. Upon a third or subsequent conviction the punishment shall be confinement in jail for not less than 90 days and not more than one year, and a person suffering three or more convictions shall not be eligible to probation, the provisions of any law to the contrary notwithstanding." 1947 Cal. Stat., c. 1215, pp. 2723-2725.
(1) National Transportation Policy.
"It is hereby declared to be the national transportation policy of the Congress to provide for fair and impartial regulation of all modes of transportation subject to the provisions of this Act, so administered as to recognize and preserve the inherent advantages of each; to promote safe, adequate, economical, and efficient service and foster
The foregoing "National Transportation Policy" has, for many purposes, superseded the declaration of the policy of Congress enunciated in the original § 202 of the Motor Carrier Act, 1935, to which a cross reference was made expressly in § 203 (b), 49 Stat. 545. This cross reference prescribed that, in order to make Part II of the Interstate Commerce Act applicable to the kind of interstate transportation described in § 203 (b) (9), the Commission must "find that such application is necessary to carry out the policy of Congress enunciated in section 202, . . . ." The policy of Congress thus referred to as being enunciated in § 202 was contained in the original form of § 202 (a), 49 Stat. 543. It read as follows:
"SEC. 202. (a) It is hereby declared to be the policy of Congress to regulate transportation by motor carriers in such manner as to recognize and preserve the inherent advantages of, and foster sound economic conditions in, such transportation and among such carriers in the public
The foregoing original § 202 (a) was repealed, September 18, 1940, 54 Stat. 920. At the same time the designation of the original § 202 (b) and (c) were changed respectively to § 202 (a) and (b). (Both of these sub-sections are material and they are printed in Appendix B (2), infra.)
Accordingly, § 202 of Part II of the Interstate Commerce Act ceased to contain any statement of the general "policy of Congress" corresponding to that contained in the original form of § 202 (a). On the other hand, the very same Act which thus removed this declaration of policy from Part II of the Interstate Commerce Act inserted "before Part I" of that Act a new paragraph entitled "National Transportation Policy." This is the paragraph quoted above from 54 Stat. 899. In the codification of Title 49, a reference to this new paragraph was substituted for the original reference to § 202. The codified clause thus required the Commission to "find that such application is necessary to carry out the national transportation policy declared in the Interstate Commerce Act, . . ." 49 U.S.C. § 303 (b), instead of "the policy of Congress enunciated in section 202, . . . ." We have adopted that interpretation in this opinion.
(2) Material Provisions of Part II of the Interstate Commerce Act.
"SEC. 202. (a) The provisions of this part apply to the transportation of passengers or property by motor carriers engaged in interstate or foreign commerce and to the procurement of and the provision of facilities for such transportation, and the regulation of such transportation, and of the procurement thereof, and the provision of facilities therefor, is hereby vested in the Interstate Commerce Commission.
"(b) Nothing in this part shall be construed to affect the powers of taxation of the several States or to authorize a motor carrier to do an intrastate business on the highways of any State, or to interfere with the exclusive exercise by each State of the power of regulation of intrastate commerce by motor carriers on the highways thereof." 49 Stat. 543, as amended, 54 Stat. 920, 49 U.S.C. § 302 (a) and (b).
"SEC. 203. . . .
"(b) Nothing in this part, except the provisions of section 204 relative to qualifications and maximum hours of service of employees and safety of operation or standards of equipment shall be construed to include (1) motor vehicles employed solely in transporting school children and teachers to or from school; or (2) taxicabs, or other motor vehicles performing a bona fide taxicab service, having a capacity of not more than six passengers and not operated on a regular route or between fixed termini; or (3) motor vehicles owned or operated by or on behalf of hotels and used exclusively for the transportation of hotel patrons between hotels and local railroad or other common carrier stations; or (4) motor vehicles operated, under authorization, regulation, and control of the Secretary of the Interior, principally for the purpose of transporting persons in and about the national parks and
"SEC. 211. (a) No person shall for compensation sell or offer for sale transportation subject to this part or shall make any contract, agreement, or arrangement to provide, procure, furnish, or arrange for such transportation or shall hold himself or itself out by advertisement, solicitation, or otherwise as one who sells, provides, procures, contracts, or arranges for such transportation, unless such person holds a broker's license issued by the Commission to engage in such transactions: Provided, however, That no such person shall engage in transportation subject to this part unless he holds a certificate or permit as provided in this part. In the execution of any contract, agreement, or arrangement to sell, provide, procure, furnish, or arrange for such transportation, it shall be unlawful for such person to employ any carrier by motor vehicle who or which is not the lawful holder of an effective certificate or permit issued as provided in this part: And provided further, That the provisions of this paragraph shall not apply to any carrier holding a certificate
"SEC. 222. (a) Any person knowingly and willfully violating any provision of this part, or any rule, regulation, requirement, or order thereunder, or any term or condition of any certificate, permit, or license, for which a penalty is not otherwise herein provided, shall, upon conviction thereof, be fined not more than $100 for the first offense and not more than $500 for any subsequent offense. Each day of such violation shall constitute a separate offense." 49 Stat. 564, 49 U.S.C. § 322 (a).
Summary of conflicts between California and federal legislation and policies.
(1) Conflicts inherent in the statutory texts.
CALIFORNIA STATUTE. | FEDERAL STATUTE. (See Appendix A, supra.) | (See Appendix B (2), supra.) (a) Persons Affected and Activities Prohibited. | SEC. 203. (a) As used in this | part — | 654.1. It shall be unlawful for | (1) The term "person" means any person, acting individually or | any individual, firm, as an officer or employee of a | copartnership, corporation, corporation, or as a member of | company, association, or a copartnership or as a commission | joint-stock association; and agent or employee of another | includes any trustee, receiver, person, firm or corporation, to | assignee, or personal sell or offer for sale or, to | representative thereof. 49 Stat. negotiate, provide or arrange for, or | 544, 49 U.S.C. § 303 (a) to advertise or hold himself out | (1). | | SEC. 211. (a) No person shall | for compensation, sell or offer | for
as one who sells or offers for sale | sale transportation subject to or negotiates, provides or arranges | this part or shall make any for transportation of a | contract, agreement, or person or persons on an individual | arrangement to provide, procure, fare basis over the public | furnish, or arrange for such highways of the State of California | transportation or shall hold unless such transportation is | himself or itself out by to be furnished or provided solely | advertisement, solicitation, or by, and such sale is authorized | otherwise as one who sells, by, a carrier having a valid and | provides, procures, contracts, exissting certificate of convenience | or arranges for such and necessity, or other valid and | transportation, unless such person existing permit from the Public | holds a broker's license issued by Utilities Commission of the State | the Commission to engage in such of California, or from the Interstate | transactions: Provided however, Commerce Commission of | That no such person shall engage the United States, authorizing | in transportation subject to this the holder of such certificate or | part unless he holds a certificate permit to provide such transportation. | or permit as provided in this | part. In the execution of any (In addition to the textual | contract, agreement, or variations between the state and | arrangement to sell, provide, federal prohibitions, this measure | procure, furnish, or arrange for differs from the federal measure | such transportation, it shall be because this merely prohibits | unlawful for such person to employ travel bureau operations as | any carrier by motor vehicle who such unless the carrier has a | or which is not the lawful holder state or federal license or permit | of an effective certificate or and it does not require that the | permit issued as provided in this broker selling or arranging for the | part: . . . . transportation must be a licensed | broker.) | (In addition to the textual | variations between the state and | federal prohibitions, this | differs from the state measure | because this measure not only | prohibits interstate travel bureau | operations as such unless the | carrier holds a federal license or | permit, but it also requires that | the broker selling or arranging | for the transportation must hold | a federal broker's license.)
(b) Exemptions. 654.2. The provisions of Section | SEC. 211. (a) . . . And 654.1 of the Penal Code | provided further, That the shall not apply to the | provisions of this paragraph selling, furnishing or providing of | shall not apply to any carrier transportation of any person or | holding a certificate or a permit persons | under the provisions of this part | or to any bona fide employee or (1) When no compensation is | agent of such motor carrier, so paid or to be paid, either | far as concerns transportation to directly or indirectly, for such | be furnished wholly by such transportation; | carrier or jointly with other | motor carriers holding like (2) To the furnishing or providing | certificates or permits, or with a of transportation to or from | common carrier by railroad, work, of employees engaged | express, or water. in farm work on any farm of | the State of California; | SEC. 203. . . . | (3) To the furnishing or providing | (b) Nothing in this part, except of transportation to and | the provisions of section 204 from work of employees of any | relative to qualifications and nonprofit cooperative association, | maximum hours of service of organized pursuant to any | employees and safety of operation law of the State of California; | or standards of equipment | shall be construed to include (1) (4) To the transportation of | motor vehicles employed solely in persons wholly or substantially | transporting school children and within the limits of a single | teachers to or from school; or municipality or of contiguous | (2) taxicabs, or other motor municipalities; | vehicles performing a bona fide | taxicab service, having a capacity (5) To transportation of persons | of not more than six passengers over a route wholly or partly | and not operated on a regular within a national park or | route or between fixed termini; state park where such transportation | or (3) motor vehicles owned or is sold in conjunction with | operated by or on behalf of hotels or as part of a rail trip or trip | and used exclusively for the over a regularly operated motor | transportation of hotel patrons bus transportation system or | between hotels and local railroad line; | or other common carrier stations; | or (4) motor vehicles operated, (6) To the transportation of | under authorization, regulation, passengers by a person who is | and control of the Secretary of driving his own vehicle and the | the Interior, principally for the transportation of persons other | purpose of transporting persons than himself and members of his | family when transporting such | persons to or from their place |
of employment and when the | in and about the national parks owner of such vehicle is driving | and national monuments; or (4a) to or from his place of employment; | motor vehicles controlled and provided that arrangements | operated by any farmer when used for any such transportation | in the transportation of his provided under the provisions | agricultural commodities and of this subsection shall be | products thereof, or in the made directly between the owner | transportation of supplies to his of such vehicle and the person | farm; or (5) motor vehicles who uses or intends to use such | controlled and operated by a transportation. | cooperative association as defined | in the Agricultural Marketing Act, | approved June 15, 1929, as | amend or by a federation of such | cooperative associations, if such | federation possesses no greater | powers or purposes than | cooperative associations so | defined; or (6) motor vehicles | used in carrying property | consisting of ordinary livestock, | fish (including shell fish), or | agricultural commodities (not | including manufactured products | thereof), if such motor vehicles | are not used in carrying any other | property, or passangers, for | compensation; or (7) motor | vehicles used exclusively in the | distribution of newspapers; or | (7a) the transportation of persons | or property by motor vehicle when | incidental to transportation by | aircraft; not, unless and to the | extent that the Commission shall | from time to time find that such | application is necessary to carry | out the policy of Congress | policy of Congress enunciated | in section 202, shall the | provisions of this part, except | the provisions of section 204 | relative to qualifications and | maximum hours of service of | employees
| and safety of operation or | standards of equipment apply | to: (8) The transportation of | passengers or property in | interstate or foreign commerce | wholly within a municipality or | between contiguous municipalities | or within a zone adjacent to and | commercially a part of any such | municipality or municipalities, | except when such transportation | is under a common control, | management, or arrangement for a | continuous carriage or shipment | to or from a point without such | municipality, municipalities, or | zone, and provided that the motor | carrier engaged in such | transportation of passengers over | regular or irregular route or | routes in interstate commerce is | also lawfully engaged in the | intrastate transportation of | passengers over the entire length | of such interstate route or routes | in accordance with the laws of | each State having jurisdiction; or | (9) the casual, occasional, or | reciprocal transportation of | passengers of property by motor | vehicle in interstate or foreign | commerce for compensation by | any person not engaged in | transportation by motor vehicle as | a regular occupation or business, | unless, in the case of | transportation of passengers, such | transportation is sold or offered | for sale, or provided or procured | or furnished or arranged for, by a | broker, or by any other person who | sells or offers for sale | transportation furnished by a | person
| lawfully engaged in the | transportation of passengers | by motor vehicle under a | certificate or permit issued | under this part or under a pending | application for such a certificate | or permit. (c) Penalties. 654.3. Violation of Section | SEC. 222. (a) Any person 654.1 shall be a misdemeanor, | knowingly and willfully violating and upon first conviction the | any provisions of this part, or punishment shall be a fine of not | any rule, regulation, requirement, over two hundred fifty dollars | or order thereunder, or any term ($250), or imprisonment in jail | or condition of any certificate, for not over 90 days, or both | permit, or license, for which a such fine and imprisonment. | penalty is not otherwise herein Upon second conviction the punishment | provided, shall, upon conviction shall be imprisonment in | thereof, be fined not more than jail for not less than 30 days and | $100 for the first offense and not not more than 180 days. Upon | more than $500 for any subsequent a third or subsequent conviction | offense. Each day of such the punishment shall be confinement | violation shall constitute a in jail for not less than 90 | separate offense. days and not more than one year, | and a person suffering three or | more convictions shall not be eligible | to probation, the provisions | of any law to the contrary | notwithstanding. |
(2) Emphasis expressly placed upon the mutual exclusiveness of the state and federal regulations assigning intrastate regulation to the states, and interstate regulation to the Interstate Commerce Commission upon its finding it necessary.
| Federal Act — Motor Carrier Act, | 1935, Part II, Interstate 1933 California Act. | Commerce Act. | The state policy of regulation | "The provisions of this part of motor carrier transportation | apply to the transportation of
agents and unlicensed | passengers or property by motor share-the-expense motor carriers was | carriers engaged in interstate or to apply to interstate, as well as | foreign commerce . . . and the transportation intrastate, | regulation of such transportation, "until such time as Congress of the | . . . is hereby vested in the United States shall act, . . . ." | Interstate Commerce Commission." P. 760, supra. | § 202 (a), Appendix B | (2), supra. | | "Nothing in this part shall be | construed . . . to interfere with | the exclusive exercise by each | State of the power of regulation | of intrastate commerce by motor | carriers on the highways thereof." | § 202 (b), Appendix B (2), supra. | | Nothing in this part was to | include the casual, occasional, or | reciprocal transportation of | passengers by motor vehicle in | interstate commerce for | compensation by any person not | engaged in such transportation as | a regular occupation or business | "unless and to the extent that the | Commission shall from time to | time find that such application | is necessary to carry out the | policy of Congress enunciated in | section 202, . . . ." § 203 (b), | Appendix B (2), supra. | | Federal Act — 1940 Amendment | to Part II of the Interstate 1941 California Amendments. | Commerce Act. | The state regulation of the | This partly removed the interstate transportation was limited | exemption of the Federal Act from to a period in "the absence of action | the casual, occasional, or on the part of Congress or the | reciprocal transporters of persons Interstate Commerce Commission | or property in interstate regulating or requiring licenses of | commerce. The removal applied to motor carrier | cases, for example, where the | transportation
transportation agents acting as | was sold or arranged for by such for motor carriers carrying | a broker. Note 20, supra. passengers in interstate commerce | . . . ." P. 769, supra. | | Federal Order — 1942 Order of | the Interstate Commerce 1947 California Act. | Commission. | This repealed the 1933 Act, as | This further removed the amended in 1941, and mentioned | exemption from the casual, only "transportation . . . over | occasional, or reciprocal the public highways of the State | transporters or persons or of California. . . ." Appendix | property in interstate commerce. A, supra. This could be interpreted | This federal order brought these as limited to interstate | interstate operations under the transportation but it was interpreted, | Federal Act and under the by the court below, as an | regulations of the Commission. By invalid attempt to invade the | virtue of the self-terminating federal jurisdiction over interstate | provisions of the California Act, commerce. Note 7, supra. | this order cut off the state | regulation of these interstate | operations. Note 23, supra.
(3) Conflicts between state and federal policies which led to the taking of federal jurisdiction over travel bureaus and share-the-expense motor transportation engaged in casual interstate operations.
The 1931 California Act recognized | In 1935 and 1940, Part II of and licensed travel bureaus arranging | the Interstate Commerce Act share-the-expense interstate, as well | gave warning that federal control as intrastate, motor trips by | would be taken when the Interstate unlicensed carriers. Pp. 759-760, | Commerce Commission found it supra. | necessary in order to carry out | the policy of Congress. Pp. The 1933 California Act continued | 761-762, 767-768, supra. this policy as to interstate as well | as interstate transportation. It | stated, however, that such application | to interstate transportation would | continue only until such time as the | congress of the United States took | action. Pp. 760-761, supra. |
| The 1941 California Amendments | In 1940, the Interstate Commerce emphasized the limitation | Commission began its expressly upon state regulation of interstate | authorized investigations transportation. Pp. 769-770, | into the operations of travel supra. | bureaus and share-the-expense | interstate motor transportation. | Pp. 765-767, supra. In 1942, | these resulted in the Commission's | conclusion that such operations, | as applied to interstate | commerce, were contrary to public | policy. It declined to issue | a license even to a regular | transportation broker unless he | agreed to regrain from such | operations. It expressly found | that state and local officials | were unable to regulate such | operations because a large | proportion of the transportation | was interstate. | In 1942, the anticipated federal | In 1942, the Interstate Commerce action automatically cut off | Commission order largely the California regulation of these | removed the statutory exemption interstate operations. Pp. 770-774, | of these travel bureaus and supra. | operations from the Interstate | control has been continuously | exercised over them since that | date. Pp. 770-773, supra.
The text also seems to supply the underlying rationale for the two cases cited in Varnville, at 604, to support the familiar quotation on "coincidence." Southern R. Co. v. Railroad Comm'n, 236 U.S. 439, and Chicago, R.I. & P.R. Co. v. Hardwick Farmers Elevator Co., 226 U.S. 426. And see Jerome v. United States, 318 U.S. 101, 105.
There is, however, an expression of deference to state action on intrastate commerce, 49 U.S.C. § 302 (b), as strengthened on the floor of the Senate, 79 Cong. Rec. 5735-5737. See 79 Cong. Rec. 12197; 49 U.S.C. § 305 (a).
In 1941 there was likewise no regulation or attempt at regulation of any kind in Arizona, Montana, New Mexico, or Utah, although Wyoming attempted some measure of control. Idaho's only requirement was a registration fee.
United States: fine of not more than $100 for the first offense and not more than $500 for any subsequent offense. 49 Stat. 564, 49 U.S.C. § 322 (a).
California: fine of not over $250 or imprisonment for not over 90 days or both, and on the second conviction, imprisonment for not less than 30 days or more than 180 days. For subsequent convictions, imprisonment for not less than 90 days and not more than one year. Cal. Pen. Code § 654.3 (Deering, 1947 Supp.).
Washington: fine of not over $250 or not over 90 days in jail; apparently additional offenses do not increase the punishment. Wash. Rev. Stat. Ann. § 2266 (1940), §§ 6397-19, 6397-20 (1941 Supp.).
Wyoming: fine of not less than $25, nor more than $100, or imprisonment for not more than six months or both. Wyoming Comp. Stat. Ann. §§ 60-1309, 60-1362 (1945). The applicability of these sections to a situation of the present type is not free from doubt.
"Respondent [The People of the State of California] concedes and even demonstrates that under the circumstances of this case the federal law and section 654.1, Penal Code, forbid and punish the same acts, but contends that this is permissible and does not invalidate the state law, even as applicable to acts in interstate commerce. If we look to the rule in California for determining whether a city ordinance is in conflict with a state law and for that reason void, the city being limited by our Constitution to such police regulations `as do not conflict with general laws,' we find it established that `there is a conflict where the ordinance and the general law punish precisely the same acts.' . . . Respondent contends that this is not the rule applicable as between state and federal legislation, but on review of the authorities we conclude that the rule in interstate commerce matters has substantially the same effect as that above stated. Of such a case, the United States Supreme Court said long ago: `This legislation [enacted by Congress] covers the same ground as the New York Statute, and they cannot co-exist.' (New York v. Compagnie General Transatlantique (1883), 107 U.S. 59, 63 [2 S.Ct. 87, 27 L.Ed. 383, 385].) . . .
"We conclude, therefore, that section 654.1, Penal Code, cannot be validly applied to transportation in interstate commerce, and since the complaint herein expressly limits itself to such transportation, it states no offense punishable under the section and the demurrer should have been sustained." (Emphasis added.) People v. Zook, 87 Cal.App.2d Supp. 921, 922, 925, 197 P.2d 851, 852, 854.
"COMPLAINT — Filed January 8, 1948
"Personally appeared before me, this 8th day of January, 1948, E.W. Hively of Los Angeles City, who, first being duly sworn, complains and says: That on or about the 7th day of January, 1948, at and in Los Angeles City, in the County of Los Angeles, State of California, a misdemeanor, to-wit: Violation of Section 654.1 of the Penal Code of the State of California was committed by Berl B. Zook and Wilmer K. Craig (whose true name to affiant is unknown), who at the time and place last aforesaid, did wilfully and unlawfully, at 925 West 7th Street, in the City of Los Angeles, sell, and offer to sell, negotiated, provided and arranged for, and advertised and held themselves out as persons who sell and offer to sell and negotiate, provide and arrange for the transportation of persons on an individual fare basis over the public highways of the State of California by a carrier other than a carrier having a valid and existing certificate of convenience and necessity or other valid and existing permit from the Public Utilities Commission of the State of California or from the Interstate Commerce Commission of the United States authorizing such holder of a certificate or other permit to provide such transportation of passengers in that the said Berl B. Zook and Wilmer K. Craig, held themselves out as persons willing to sell and negotiate for the above described transportation and sold to James A. Moss and Dorothy Mae Elbag, transportation from Los Angeles to Fort Worth, Texas, over a carrier which was not licensed in any manner by the State of California or the Interstate Commerce Commission to carry passengers for compensation or hire and negotiated for the sale of such transportation and arranged for such transportation.
"All of which is contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the People of the State of California. Said Complaint therefore prays that a warrant may be issued for the arrest of said Defendant. . . . .. . . . . . . (whose true name . . . . . . . . . . . . to affiant is unknown) and that . . . . . . . . . . . . he . . . . . . . . .. . . may be dealt with according to law.
The respondents demurred to this complaint. The demurrer was overruled by the Municipal Court of the City of Los Angeles, California. The respondents, upon a stipulated statement of facts, were convicted and sentenced by that court. Their motion in arrest of judgment was denied. The Appellate Department of the Superior Court of the State of California, in and for the County of Los Angeles, reversed the judgment and remanded the cause to the Municipal Court with directions to sustain the demurrer. The appeal from the order in arrest of judgment was dismissed.
"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." (Id. Art. VI.)
The petitioner, in aid of its argument, has pointed to the declaration of policy as originally stated in the Motor Carrier Act, 1935. There is no aid for the petitioner there. That declaration contained the general phrase, "It is hereby declared to be the policy of Congress to . . . cooperate with the several States and the duly authorized officials thereof and with any organization of motor carriers in the administration and enforcement of this part." 49 Stat. 543. For full text, see Appendix B (1), infra. p. 778. When this declaration was repealed in 1940 and largely incorporated in a statement of the "National Transportation Policy," preceding Part I of the Interstate Commerce Act, Congress added language emphasizing the federal rather than the state features of the policy. The material clauses then read:
"It is hereby declared to be the national transportation policy of the Congress . . . to cooperate with the several States and the duly authorized officials thereof; . . . all to the end of developing, coordinating, and preserving a national transportation system by water, highway, and rail, as well as other means, adequate to meet the needs of the commerce of the United States, of the Postal Service, and of the national defense. . . ." 54 Stat. 899. For full text and comment, see Appendix B (1), infra, p. 778.
It was because the Commission, in 1942, found it necessary in order to carry out this National Transportation Policy that it withdrew the exemption in § 203 (b) (9) which is now before us and which theretofore, to a large extent, had kept interstate travel bureaus and interstate share-the-expense operators exempt from the Interstate Commerce Act.
"(9) the casual, occasional, or reciprocal transportation of passengers or property by motor vehicle in interstate or foreign commerce for compensation by any person not engaged in transportation by motor vehicle as a regular occupation or business, unless, in the case of transportation of passengers, such transportation is sold or offered for sale, or provided or procured or furnished or arranged for, by a broker, or by any other person who sells or offers for sale transportation furnished by a person lawfully engaged in the transportation of passengers by motor vehicle under a certificate or permit issued under this part or under a pending application for such a certificate or permit." (Emphasis added.) 54 Stat. 921, 49 U.S.C. § 303 (b) (9).
"In the absence of action on the part of Congress or the Interstate Commerce Commission regulating or requiring licenses of motor carrier transportation agents acting as such for motor carriers carrying passengers in interstate commerce (in this paragraph referred to as `interstate motor carrier transportation agents') this act shall apply to and regulate such interstate motor carrier transportation agents to the same extent and in the same manner that it regulates or requires the licensing of motor carrier transportation agents acting as such for motor carriers carrying passengers in intrastate commerce (in this paragraph referred to as `intrastate motor carrier transportation agents')." 1941 Cal. Stat., c. 539, pp. 1862, 1863, amending 1933 Cal. Stat., c. 390, which was the Act cited in the title of this 1941 Act.
"At a Session of the INTERSTATE COMMERCE COMMISSION, Division 5, held at its office in Washington, D.C., on the 21st day of March, A.D. 1942.
"EX PARTE NO. MC-35
"EXEMPTION OF CASUAL, OCCASIONAL, OR RECIPROCAL TRANSPORTATION OF PASSENGERS BY MOTOR VEHICLE
"It appearing, That by order of May 1, 1940, the Commission, division 5, entered into an investigation into practices with respect to the casual, occasional, or reciprocal transportation of passengers in interstate or foreign commerce for compensation for the purpose of determining whether the exemption of such transportation as provided in section 203 (b) (9) of the act should be removed to the extent necessary to make applicable all provisions of the act to such transportation when it is sold, or offered for sale, or provided, or procured, or furnished, or arranged for by any person who holds himself or itself out as one who sells, or offers for sale transportation wholly or partially subject to the act, or who negotiates for, or holds himself out by solicitation, advertisement, or otherwise, as one who sells, provides, furnishes, contracts, or arranges for, such transportation;
"And it further appearing, That a full investigation of the matters and things involved has been made and that the division, on the date hereof, has made and filed a report containing its findings of fact and conclusions thereon, which report is hereby referred to and made a part hereof:
"It is ordered, That the Code of Federal Regulations be, and it is hereby, amended by adding the following:
"Title 49 — Transportation and Railroads
"Chapter 1 — Interstate Commerce Commission
"Subchapter B — Carriers by Motor Vehicle
"Part 210 — Exemptions
"Sec. 210. 1 Casual, occasional, or reciprocal transportation of passengers for compensation when such transportation is sold or arranged by anyone for compensation. The partial exemption from regulation under the provisions of Part II of the Interstate Commerce Act of the casual, occasional, and reciprocal transportation of passengers by motor vehicle in interstate or foreign commerce for compensation as provided in section 203 (b) (9) of the act be, and it is hereby, removed to the extent necessary to make applicable all provisions of Part II of the act to such transportation when sold or offered for sale, or provided or furnished or arranged for, by any person who sells, offers for sale, provides, furnishes, contracts, or arranges for such transportation for compensation or as a regular occupation or business. (Sec. 203 (b) (9), 49 Stat. 546, 54 Stat. 919, 921; 49 U.S.C. 303 (b) (9)).
"It is further ordered, That this order shall become effective May 15, 1942.
"And it is further ordered, That notice of this order be given to the general public affected thereby by publishing it in the Federal Register and by depositing copies thereof in the office of the Secretary of the Commission in Washington, D.C.
We are indebted to the Interstate Commerce Commission for the full text of the above order. The amendment to the Code of Federal Regulations made by this order appears in 49 C.F.R. Cum. Supp. § 210.1.