1. When a statute, valid upon its face, requires the issue of a
license or certificate as a condition precedent to carrying on a
business or following a vocation, one who is within the terms of
the statute, but has failed to make the required application, is
not at liberty to complain because of his anticipation of improper
or invalid action in administration. P.
283 U. S.
562.
2. This principle does not apply to one who is being criminally
prosecuted for failure to procure a license under a statute that,
as concerns him, is invalid upon its face.
Id.
3. A state statute applicable by its terms (with certain
exceptions) to all who operate motor vehicles in the business of
transporting persons or property "for compensation or as a common
carrier" over public highways in the state, prohibits such persons
from so operating without having first obtained from a state
commission a certificate of public convenience and necessity;
application for such a certificate shall be accompanied by a
schedule of tariffs; no certificate shall be valid without the
giving of a bond or an insurance policy by the applicant for the
protection of the public against injuries resulting from negligence
in the operation of such vehicles and for the protection of the
persons and property carried; it vests the commission with
supervisory authority over
Page 283 U. S. 554
those to whom it applies, and with authority to fix or approve
their rates, regulate their service, prescribe their methods of
keeping accounts, and generally to make rules governing their
operations, and it provides that schedules of their rates shall be
open to the public and that all alterations in their tariffs shall
be under the commission's control. The statute also lays a mileage
tax, in part payable upon the issuance of such certificate, and
makes violation of any of its provisions a misdemeanor, punishable
by fine or imprisonment, or by both.
Held:
(1) Since the statute on its face affixes the same conditions,
without discrimination, to all who apply for certificates of public
convenience and necessity, and embraces in those conditions a
scheme of supervision and control which constitutionally can be
applied only to common carriers, a private carrier for hire may not
constitutionally be arrested under it for failure to procure a
certificate and pay the required tax. P.
283 U. S.
562.
(2) A section of the statute declaring that, if any of its
provisions are held unconstitutional, the validity of the others
shall remain unaffected cannot serve, in advance of judicial
decision, to separate those parts which are constitutionally
applicable to private carriers from those that are not. P.
283 U. S.
563.
(3) If the statute be regarded as intending to afford one
constitutional scheme for common carriers and another for private
carriers, it fails to define the constitutional obligations of
private carriers with the certainty required of criminal statutes,
and is therefore void. P.
283 U. S.
564.
(4) In a penal prosecution for violation of a state statute, it
is a defense that the statute, as applied to defendant, is
unconstitutional on its face, and an arrest cannot be upheld upon
the ground that later, when the defendant sought relief by habeas
corpus, the statute was relieved of its infirmity by a construction
placed upon it by the state court. Pp.
283 U. S.
564-565.
(5) The unconstitutionality of the statute in this case is not
removed by a decision of the state court declaring that the
statutory provisions are severable, and that only those that are
legally applicable to private carriers are intended to apply to
them, without deciding which are so applicable. P.
283 U. S.
565.
4. A state statutory provision which requires those who operate
motor vehicles on the highways in the transportation of goods for
hire to furnish a bond or insurance policy for the protection of
the public against injuries received through negligence in such
operation, but which does not apply to those
"engaged exclusively
Page 283 U. S. 555
in the transporting agricultural, horticultural, dairy or other
farm products and fresh and salt fish and oysters and shrimp from
the point of production to the assembling or shipping point en
route to primary market, or to motor vehicle used exclusively in
transporting or delivering dairy products"
held repugnant to the equal protection clause of the
Fourteenth Amendment. P.
283 U. S.
566.
99 Fla. 1174, 128 So. 632, reversed.
Appeal from a judgment reversing a judgment discharging the
appellant in habeas corpus.
Page 283 U. S. 556
MR. CHIEF JUSTICE HUGHES delivered the opinion of the Court.
The appellant, a private carrier for hire, was arrested upon a
warrant charging him with operating vehicles upon the highways in
Duval County, Florida, without having obtained the certificate of
public convenience and necessity, and without having paid the tax,
required by Chapter 13700, Laws of Florida 1929. At the preliminary
hearing, the appellant challenged the validity of the statute, as
applied to him, upon the ground that it was repugnant to the due
process and equal protection clauses of the Fourteenth Amendment of
the Constitution of the United States. The appellant was held for
trial. Upon return to a writ of habeas corpus, the circuit
court
Page 283 U. S. 557
of the county decided that the statute, as applied to the
appellant, was unconstitutional, and the appellant was discharged
from custody. This judgment was reversed by the supreme court of
the state, which upheld the statute. 99 Fla. 1174, 128 So. 632. The
case comes here on appeal.
The statute provides for the regulation, through the state
railroad commission, of "auto transportation companies." These
companies are thus defined in § 1(h):
"The term 'auto transportation company,' when used in this Act,
means every corporation or person, their lessees, trustees or
receivers, owning, controlling, operating or managing any motor
propelled vehicle not usually operated on or over rails, used in
the business of transporting persons or property for compensation
or as a common carrier over any public highway in this state
between fixed termini or over a regular route; Provided, That the
term 'auto transportation company' as used in this Act, shall not
include corporations or persons engaged exclusively in the
transportation of children to or from school, or any transportation
company engaged exclusively in the transporting agricultural,
horticultural, dairy or other farm products and fresh and salt fish
and oysters and shrimp from the point of production to the
assembling or shipping point enroute to primary market, or to motor
vehicles used exclusively in transporting or delivering dairy
products or any transportation company engaged in operating
taxicabs, or hotel busses from a depot to a hotel in the same town
or city."
Every auto transportation company as thus defined is prohibited
(§ 2) from operating
"any motor vehicle for the transportation of persons or property
for compensation on any public highway in this state without first
having obtained from the Railroad Commission a certificate that the
present or future public convenience and necessity requires or will
require such operation."
There is an
Page 283 U. S. 558
exception in case of operation exclusively within the limits of
an incorporated city or town.
Application for such "Certificate of Public Convenience and
Necessity" (§ 3) must set forth certain information with respect to
the applicant and proposed service. Upon hearing, the commission
may issue the certificate as prayed for,
"or refuse to issue the same, or may issue the same with
modification, or upon such terms and conditions as in its judgment
the public convenience and necessity may require."
The commission may take into consideration various matters
bearing upon the applicant's previous operation and reliability, as
well as the effect that the granting of the certificate may have
upon "other transportation" facilities and upon "transportation as
a whole" within the territory sought to be served, and "any other
matters tending to qualify or disqualify" the applicant "as a
common carrier." It is further provided that, upon hearing, the
certificate shall be granted "as a matter of right" to such auto
transportation companies as were operating in good faith on the
19th day of April, 1929, over the route for which the certificate
is sought, "who shall comply in full with the provisions of this
Act." When application is made for a certificate "to operate in a
territory or on a line already served by a certificate holder," the
commission shall grant the certificate "only when the existing
certificate holder or holders serving such territory fail to
provide service and facilities to the satisfaction of said
Commission."
The following provision as to the giving of a bond in connection
with the application for certificate is found in § 4:
"The Commission shall, at the time of granting a certificate to
operate any transportation company for transporting persons or
property, fix and determine the amount of the bond to be given by
the applicant for the protection, in case of passenger vehicle, of
the passengers
Page 283 U. S. 559
and baggage carried in said vehicle and of the public against
injury caused by negligence of the person or corporation operating
the said vehicle, and, in the case of the vehicle transporting
freight, for the protection of the said freight so carried and of
the public against injuries received through negligence of the
person or corporation operating said freight carrying vehicle. . .
. The said bonds shall be conditioned to indemnify passengers and
the public receiving personal injuries by any act of negligence,
and for damages to property of any person other than the assured,
and such bonds shall contain such conditions, provisions, and
limitations as the Commission may prescribe, and said bonds shall
be payable to the State of Florida, and shall be for the benefit of
and subject to action thereon by any person or persons who shall
have sustained an actionable injury protected thereby,
notwithstanding any provisions in said bond to the contrary, and
every bond or insurance policy given shall be conclusively presumed
to have been given according to and to contain all of the
provisions of this Act. And no certificate shall be valid until
such bond has been filed and approved. . . ."
With the approval of the commission, the applicant may file an
insurance policy in lieu of bond.
The commission is empowered (§ 5) "to fix or approve the rates,
fares, charges, classifications, rules and regulations for each
auto transportation company," to regulate its "service and safety
of operations," to prescribe "a uniform system and classification
of accounts to be used which, among other things, shall set up
adequate depreciation charges," to require "the filing of annual
and other reports and all other data," and to supervise and
regulate it "in all other matters" affecting its relationship with
the traveling and shipping public.
Under § 6, every auto transportation company, as defined by the
Act, must forthwith file, with its application
Page 283 U. S. 560
for a certificate, "a schedule of its rates and fares, and a
time schedule of all motor vehicles operated" which are to be
subject to public inspection. Rates and time schedules are to be
changed only with the sanction of the commission, and it is made
unlawful for any such company to receive a greater or less charge
for any service rendered than that shown by the filed
schedules.
Violation of any provision of the Act is made a misdemeanor (§
13) punishable by fine or imprisonment, or by both.
Section 14 provides for the collection of a tax from every auto
transportation company to which has been granted a certificate of
public convenience and necessity. This is a mileage tax graded
according to the capacity of the vehicle. The tax is to be paid
quarterly in advance, beginning with the issue of the certificate.
Five percent of the moneys collected are to be used to defray the
expense of the administration of the Act, and the remainder is to
be distributed among the counties in proportion to the use of their
highways (§ 15).
Other provisions prohibit discrimination and "free fares" except
as stated.
Upon the appeal in this case, the supreme court of the state
thus construed the statute (p. 1180):
"The statute applies to corporations and persons who use
motor-propelled vehicles in the business of transporting persons or
property for compensation over public highways in this state
between fixed termini or over a regular route, whether such
transportation for compensation is as common carriers or as
carriers for particular persons under special contract; but the
statute does not require private carriers to become common
carriers, and the provisions of the statute that are legally
applicable only to common carriers are not intended to be applied
to, and are not applicable to, corporations or persons who are not
common carriers, though engaged in the transportation
Page 283 U. S. 562
to which the statute refers, and the provisions of the statute
that are legally applicable to private carriers for compensation
are capable of being effectuated, leaving the provisions that are
legally applicable only to common carriers to be applied to such
common carriers as are covered by the statute. . . . The
requirements as to procuring certificates of convenience and
necessity for doing the business on the highways and as to the tax
imposed on the business may be reasonably applied to private
carriers for compensation for the privilege of transporting for
hire as a business on the public roads of the state, in the
exercise of the police and taxing power of the state to conserve
the proper use of the public highways and to serve proper sovereign
purposes."
The state court gave no indication as to the particular
provisions of the statute which were deemed to be "legally
applicable" only to common carriers, or as to those which were
considered to be legally applicable to private carriers, except
that it was decided that the latter were bound to procure
certificates and to pay the tax.
There is no controversy with respect to the status of the
appellant. The Supreme Court said that he
"owned and operated two motor-propelled vehicles in the business
of transporting property for compensation upon the public highways
between fixed termini and over regular routes, all within the
state, not [as] a common carrier, but as a private carrier under
special contract."
From the undisputed evidence upon the preliminary hearing, it
appears that the appellant was employed under an exclusive contract
with the Atlantic & Pacific Tea Company in hauling its
merchandise from Jacksonville to various places in Florida. He has
never held himself out as a common carrier.
From statements made at the bar, it would appear that the
appellant was engaged in the business above mentioned when the Act
was passed, and hence that he would
Page 283 U. S. 562
be entitled to a certificate, provided he complied fully with
the provisions of the Act. By the terms of the Act, such compliance
would be necessary. The appellant did not apply for a certificate,
and the principle is well established that, when a statute, valid
upon its face, requires the issue of a license or certificate as a
condition precedent to carrying on a business or following a
vocation, one who is within the terms of the statute, but has
failed to make the required application, is not at liberty to
complain because of his anticipation of improper or invalid action
in administration.
Gundling v. Chicago, 177 U.
S. 183,
177 U. S. 186;
Lehon v. Atlanta, 242 U. S. 53,
242 U. S. 55-56;
Hall v. Geiger-Jones Co., 242 U. S.
539,
242 U. S.
553-554. This principle, however, is not applicable
where a statute is invalid upon its face and an attempt is made to
enforce its penalties in violation of constitutional right. In the
present instance, the appellant has been arrested and held for
trial. He is in jeopardy, and the state court, entertaining his
application for discharge, has denied the constitutional right
asserted. The question of the validity of the statute upon which
the prosecution is based is necessarily presented.
The statute, on its face, makes no distinction between common
carriers and a private carrier such as the appellant. It applies,
without any stated exception, to every auto transportation company
within the statutory definition, and this admittedly included the
appellant. It not only required an application for a certificate of
public convenience and necessity, but that this should be
accompanied by a schedule of tariffs, and no such certificate was
to be valid without the giving of a bond by the applicant for the
protection both of the public against injuries and of the persons
or property carried. The state commission was explicitly vested
with authority to supervise "every" auto transportation company
that was embraced within the definition, to fix or approve its
rates and charges, to regulate its service, to prescribe its
method
Page 283 U. S. 563
of keeping accounts which should set up adequate depreciation
charges, and generally to make rules governing its operations.
Schedules of rates of "every such auto transportation company" were
to be open to the public, and all alterations in tariffs were to be
subject to the commission's control. On the face of the statute,
the scheme was obviously one for the supervision and control of
those carriers which, by reason of the nature of their undertaking
or business, were subject to regulation by public authority in
relation to rates and service. No separate scheme of regulation can
be discerned in the terms of the Act with respect to those
considerations of safety and proper operation affecting the use of
highways which may appropriately relate to private carriers as well
as to common carriers. All carriers within the Act, whether public
or private, are put by the terms of the statute upon precisely the
same footing. All must obtain certificates of public convenience
and necessity upon like application and conditions. It is true that
the statute does not, in express terms, demand that a private
carrier shall constitute itself a common carrier, but the statute
purports to subject all the carriers which are within the terms of
its definition to the same obligations. Such a scheme of regulation
of the business of a private carrier such as the appellant is
manifestly beyond the power of the state.
See Michigan Public
Utilities Commission v. Duke, 266 U.
S. 570,
266 U. S.
576-578;
Frost & Frost Trucking Co. v. Railroad
Comm'n, 271 U. S. 583,
271 U. S.
592.
If it be said that the statute contemplated the severability of
its requirements in providing (§ 18) that, if any of its provisions
were held to be unconstitutional, the validity of the remaining
portions should remain unaffected, the answer is that no line of
severance is indicated in the terms of the Act. The effect of this
saving clause is merely that, if one provision is struck down as
invalid, others may stand. But, until such separation has been
Page 283 U. S. 564
accomplished by judicial decision, the statute remains with its
inclusive purport, and those concerned in its application have no
means of knowing definitely what eventually will be eliminated and
what will be left. This was the situation which confronted the
appellant when obedience to the statute was demanded and punishment
for violation was sought to be inflicted.
If, ignoring the explicit comprehensiveness of their
requirements, it could be said that the provisions of the statute
should be severed so as to afford one scheme for common carriers
and another for private carriers such as the appellant, the result
would be to make the statute, until such severance was determined
by competent authority, void for uncertainty. Either the statute
imposed upon the appellant obligations to which the state had no
constitutional authority to subject him or it failed to define such
obligations as the state had the right to impose with the fair
degree of certainty which is required of criminal statutes.
Considered as severable, the statute prescribed for private
carriers "no standard of conduct that it is possible to know."
International Harvester Co. v. Kentucky, 234 U.
S. 216,
234 U. S. 221;
Collins v. Kentucky, 234 U. S. 634,
234 U. S. 638;
United States v. L. Cohen Grocery Co., 255 U. S.
81;
Weeds, Inc. v. United States, 255 U.
S. 109;
Connally v. General Construction Co.,
269 U. S. 385,
269 U. S. 391.
It is idle to say that one could take a statute of this sort,
establishing requirements binding upon private and common carriers
alike, and divide its terms so as to make a valid scheme applicable
to private carriers. The legislature could not thus impose upon
laymen at the peril of criminal prosecution, the duty of severing
the statutory provisions and of thus resolving important
constitutional questions with respect to the scope of a field of
regulation as to which even courts are not yet in accord.
The construction placed upon the statute by the supreme court of
the state does not avoid the difficulty.
Page 283 U. S. 565
It should be observed that this is not an action in equity where
the enforcement of a statute awaits the final determination of the
court as to validity and scope. There is no controversy as to the
facts, and the appellant has been held liable to the penalties of
the Act for his disobedience to it as it stood when it was enacted.
He was entitled at that time to assert his constitutional right by
virtue of the invalidity of the statute upon its face. Apart from
this consideration, the construction of the statute by the state
court does not determine what terms of the statute are binding upon
private carriers such as the appellant. The court states that
"the provisions of the statute that are legally applicable only
to common carriers are not intended to be applied to, and are not
applicable to, corporations or persons who are not common
carriers,"
and that
"the provisions of the statute that are legally applicable to
private carriers for compensation are capable of being effectuated,
leaving the provisions that are legally applicable only to common
carriers to be applied to such common carriers as are covered by
the statute."
But the court does not point out what provisions are "legally
applicable" to private carriers. The decision thus aims to remove
the constitutional objection of invalid application only by
creating another constitutional objection of lack of appropriate
certainty. Had the legislature written into the statute itself that
it was binding upon private carriers "only so far as the provisions
are legally applicable," it would have transcended the permissible
limits of statutory indefiniteness.
Among the provisions of the statute binding upon those who apply
for and obtain certificates of public convenience and necessity is
one that a bond, or insurance policy, approved by the state
commission, shall be furnished in order to afford security for the
public against injuries as well as for the protection of persons
and property transported. If we leave on one side the requirement
that a
Page 283 U. S. 566
certificate holder who is a private carrier shall give a bond or
policy for the goods carried by him, irrespective of his contract
with his employer whose goods he carries, and if we consider only
the provision for the protection of the public with respect to the
use of the highways, another constitutional difficulty is
encountered -- that is, of an unconstitutional discrimination. If
the provisions of the Act were treated as severable, and
requirements relating to the safety of the public are separately
considered, we are brought to the terms of the Act with respect to
those who are required to obtain certificates of public convenience
and necessity, and thus to supply the stipulated security. The Act
provides that the term "auto transportation company," upon which
the obligations of the Act are imposed, shall not include
"any transportation company engaged exclusively in the
transporting agricultural, horticultural, dairy or other farm
products and fresh and salt fish and oysters and shrimp from the
point of production to the assembling or shipping point enroute to
primary market, or to motor vehicles used exclusively in
transporting or delivering dairy products."
The point with respect to this discrimination is not that a
distinction is made between common carriers and private carriers,
but between private carriers themselves, although they are alike
engaged in transporting property for compensation over public
highways between fixed termini or over a regular route.
The principle that the state has a broad discretion in
classification in the exercise of its power of regulation is
constantly recognized by the decisions of this Court.
Central
Lumber Co. v. South Dakota, 226 U. S. 157,
226 U. S. 161;
Miller v. Wilson, 236 U. S. 373,
236 U. S.
382-384;
Bekins Van Lines v. Riley,
280 U. S. 80,
280 U. S. 82;
Silver v. Silver, 280 U. S. 117,
280 U. S. 123;
Carley & Hamilton v. Snook, 281 U. S.
66,
281 U. S. 73.
But the constitutional guaranty of equal protection of the laws is
interposed against discriminations that are entirely
Page 283 U. S. 567
arbitrary. In determining what is within the range of discretion
and what is arbitrary, regard must be had to the particular subject
of the state's action. In the present instance, the regulation as
to the giving of a bond or insurance policy to protect the public
generally, in order to be sustained, must be deemed to relate to
the public safety. This is a matter of grave concern as the
highways become increasingly crowded with motor vehicles, and we
entertain no doubt of the power of the state to insist upon
suitable protection for the public against injuries through the
operations on its highways of carriers for hire, whether they are
common carriers or private carriers. But, in establishing such a
regulation, there does not appear to be the slightest justification
for making a distinction between those who carry for hire farm
products, or milk or butter, or fish or oysters, and those who
carry for hire bread or sugar, or tea or coffee, or groceries in
general, or other useful commodities. So far as the statute was
designed to safeguard the public with respect to the use of the
highways, we think that the discrimination it makes between the
private carriers which are relieved of the necessity of obtaining
certificates and giving security, and a carrier such as the
appellant, was wholly arbitrary, and constituted a violation of the
appellant's constitutional right. "Such a classification is not
based on anything having relation to the purpose for which it is
made."
Air-Way Electric Appliance Corp. v. Day,
266 U. S. 71,
266 U. S. 85;
Connolly v. Union Sewer Pipe Co., 184 U.
S. 540,
184 U. S.
563-564;
Southern Ry. Co. v. Greene,
216 U. S. 400,
216 U. S. 417;
Truax v. Corrigan, 257 U. S. 312,
257 U. S.
332-333;
Louisville Gas & Electric Co. v.
Coleman, 277 U. S. 32,
277 U. S.
37.
For these reasons, we hold that the statute was invalid as
applied to the appellant, and it is unnecessary to consider the
questions that have been raised with respect to the validity of the
provision for the mileage tax, separately considered. The judgment
is reversed, and the
Page 283 U. S. 568
cause is remanded for further proceedings not inconsistent with
this opinion.
Judgment reversed.