INTERSTATE COMMERCE - RIGHT OF STATE TO DENY USE OF HIGHWAYS TO CARRIER HAVING CERTIFICATE FROM INTERSTATE COMMERCE COMMISSION

A common carrier engaged in interstate commerce applied to the Interstate Commerce Commission for a certificate of convenience and necessity as required by section 206 of the Federal Motor Carrier Act of 1935. The carrier relied on the proviso authorizing the commission to grant a certificate without a showing of public convenience and necessity where the applicant was a carrier in bona fide operation on June 1, 1935; the statute further privileged a carrier applying for a certificate under this proviso to continue operation pending determination of its application. The State Railroad Commission of Texas earlier in 1934 had denied a certificate of convenience and necessity to the carrier on the ground that the carrier's operation would unduly increase the hazards of traffic congestion. The carrier received an injunction from the district court of the state restraining the commission from interfering with its operation.

However, in 1936 the state court of civil appeals reversed and dissolved the injunction. Pending the application before the Interstate Commerce Commission, the carrier brought this present suit to restrain the state commission from interfering with its operations on the theory that the subsequently enacted federal legislation precluded all power of the state with respect to the right to operate in interstate commerce. It alleged, further, that it had complied with all the police safety requirements of the state. The federal circuit court of appeals refused the injunction on the ground that since Congress has not manifested an intent to occupy the field in question, and absent a direct conflict between the federal and state laws, the regulation was within the jurisdiction of the state.

Held, that the decision should be affirmed on the ground that the petitioner was not in bona fide operation on June 1, 1935, and hence could assert no right to operate under the Federal Motor Carrier Act. McDonald v. Thompson, (U. S. 1938) 59 S. Ct. 176.