Frost & Frost Trucking Co. v. Railroad Comm’n, 271 U.S. 583 (1926)

MR. JUSTICE HOLMES (dissenting).

The question is whether a state may require all corporations or persons, with immaterial exceptions, who operate automobiles, etc., for the transportation of persons or property over a regular route and between fixed termini on the public highways of the state, for compensation, to obtain a certificate from the Railroad Commission that public necessity and convenience require such operation. A fee has to be paid for this certificate, and transportation companies are made subject to the power of the railroad Commission to regulate their rates, accounts, and service. The provisions on this last point are immaterial here, as the case arises upon an order of the Commission under § 5 that the plaintiffs in error desist from transportation of property as above unless and until they obtain the certificate required, and, by the terms of the statute, every section and claim in it is independent of the validity of all the rest. § 10. Whatever the Supreme Court of California may have intimated, the only point that is decided, because that was the only question before it, was that the order of the Commission should stand.

This portion of the Act is to be considered with reference to the reasons that may have induced the legislature to pass it, for if a warrant can be found in such reasons, they must be presumed to have been the ground. I agree, of course, with the cases cited by my brother SUTHERLAND, to which may be added American Bank & Trust Co. v. Federal Reserve Bank, 256 U.S. 350, 358, that even generally lawful acts or conditions may become unlawful when done or imposed to accomplish an unlawful end. But that is only the converse of the proposition that acts in other circumstances unlawful may be justified by the purpose for which they are done. This applies to acts of the legislature as well as to the doings of private parties. The only valuable significance of the much abused phrase police power is this power of the state to limit what otherwise would be rights having a pecuniary value when a predominant public interest requires the restraint. The power of the state is limited in its turn by the constitutional guaranties of private rights, and it often is a delicate matter to decide which interest preponderates and how far the state may go without making compensation. The line cannot be drawn by generalities, but successive points in it must be fixed by weighing the particular facts. Extreme cases on the one side and on the other are Edgar A. Levy Leasing Co. v. Siegel, 258 U.S. 242, and Pennsylvania Coal Co. v. Mahon, 260 U.S. 393.

The point before us seems to me well within the legislative power. We all know what serious problems the automobile has introduced. The difficulties of keeping the streets reasonably clear for travel and for traffic are very great. If a state, speaking through its legislature, should think that, in order to make its highways most useful, the business traffic upon them must be controlled, I suppose that no one would doubt that it constitutionally could, as, I presume, most states or cities do, exercise some such control. The only question is how far it can go. I see nothing to prevent its going to the point of requiring a license and bringing the whole business under the control of a railroad commission so far as to determine the number, character, and conduct of transportation companies, and so to prevent the streets from being made useless and dangerous by the number and lawlessness of those who seek to use them. I see nothing in this act that would require private carriers to become common carriers, but if there were such a requirement, it, like the provisions concerning rates and accounts, would not be before us now, since, as I have said, the statute makes every section independent, and declares that, if valid, it shall stand even if all the others fall. As to what is before us, I see no great difference between requiring a certificate and requiring a bond, as in Packard v. Banton, 264 U.S. 140, and although, as I have said, I do not get much help from general propositions in a case of this sort, I cannot forbear quoting what seems to me applicable here. Distinguishing between activities that may be engaged in as a matter of right and those like the use of the streets that are carried on by government permission, it is said:

264 U.S. 145. I think that the judgment should be affirmed.

MR. JUSTICE BRANDEIS concurs in this opinion.