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NAVAJO FREIGHT LINES v. BIBB

February 26, 1958

NAVAJO FREIGHT LINES, INC., A NEW MEXICO CORPORATION, RINGSBY TRUCK LINES, INC., A NEBRASKA CORPORATION, PRUCKA TRANSPORTATION, INC., A NEBRASKA CORPORATION, DENVER CHICAGO TRUCKING CO., INC., A NEBRASKA CORPORATION, WATSON BROS. TRANSPORTATION CO., INC., A NEBRASKA CORPORATION, AND PACIFIC INTERMOUNTAIN EXPRESS CO., A NEVADA CORPORATION, PLAINTIFFS, AND ARKANSAS-BEST FREIGHT SYSTEM, INC., AN ARKANSAS CORPORATION, INTERVENOR,
v.
JOSEPH D. BIBB, DIRECTOR OF THE DEPARTMENT OF PUBLIC SAFETY OF THE STATE OF ILLINOIS, AND WILLIAM H. MORRIS, SUPERINTENDENT OF THE DIVISION OF STATE HIGHWAY POLICE, DEPARTMENT OF PUBLIC SAFETY OF THE STATE OF ILLINOIS, DEFENDANTS.



Before Major, Circuit Judge, and Briggle and Mercer, District Judges.

The opinion of the court was delivered by: Major, Circuit Judge.

Plaintiffs instituted this proceeding, praying for a declaratory judgment that Sec. 121.02 of the Uniform Act Regulating Traffic on Highways, being Sec. 218 b of Chap. 95 1/2, as amended (Ill.Rev. Stat.), effective July 8, 1957 (hereinafter referred to as the Act), be held unconstitutional and void, and that defendants be enjoined from enforcing or instituting proceedings against plaintiffs under the Act. Arkansas-Best Freight System, Inc., was granted leave to intervene. The District Court issued a temporary restraining order.

On January 15, 1958, a three-judge Court was convened in accordance with the requirements of Title 28 U.S.C.A. Sec. 2284. On January 15 and 16, 1958, the Court heard testimony offered by the respective parties, as well as argument of counsel, at the conclusion of which the matter was taken under advisement.

The Act under attack, entitled "Rear fender splash guards," provides:

    "It is unlawful for any person to operate any
  motor vehicle * * * upon the highways of this
  state * * * unless such vehicle is equipped with
  rear fender splash guards which shall comply with
  the specifications hereinafter provided in this
  Section * * *."

The specifications require that the splash guards (1) contour the wheel; (2) cover the top 90° of the rear 180 ° (excepting vehicles of less than five inches clearance, and requiring that they contour within two inches of the body); (3) extend downward to within ten inches of the ground; (4) have a lip or flange of two inches upon the outside edge, and (5) retain its general parallel condition under all operating conditions when mounted as required by the statute not more than six inches from the tread when fully loaded.

Plaintiffs named in the caption are all corporations organized and existing under laws of states other than Illinois. They are all engaged in the transportation of property by motor vehicle as a common carrier in interstate commerce generally over regular routes. They all operate pursuant to a certificate of public convenience and necessity issued by the Interstate Commerce Commission. None of plaintiffs other than Watson Bros. render any intrastate transportation in Illinois and hold no authority from the Illinois Commerce Commission to operate in such commerce. Watson Bros. operates to a limited extent in intrastate commerce in Illinois, for which it holds authority from the Illinois Commerce Commission.

Joseph D. Bibb is Director of the Department of Public Safety of the State of Illinois, which department maintains the division known as the State Highway Police, of which defendant William H. Morris is Superintendent. These officials are charged with the duty and responsibility of enforcing the provisions of the Uniform Act Regulating Traffic on Highways, including the section involved in this proceeding.

Notwithstanding our findings of fact and conclusions of law entered concurrently with this opinion, we deem it advisable to elaborate on the factual as well as the legal situation. Navajo Freight Lines, Inc. (hereafter Navajo) is a New Mexico corporation with its principal office at Denver, Colorado. It operates between points in the states of Arizona, California, Colorado, Illinois, Indiana, Iowa, Kansas, Missouri, Nebraska, Nevada, New Mexico, Oklahoma and Texas. It operates approximately 32 million miles per year in interstate commerce, with 7% of its mileage over Illinois highways. Ringsby Truck Lines, Inc. (hereafter Ringsby) is a Nebraska corporation and operates between points in the states of California, Colorado, Illinois, Iowa, Kansas, Missouri, Nebraska, Nevada, Utah and Wyoming. It operates approximately 30 million miles per year in interstate commerce, of which 3% is over Illinois highways. Prucka Transportation, Inc. (hereafter Prucka) is a Nebraska corporation and operates between points in the states of Colorado, Illinois, Indiana, Iowa, Kansas, Missouri, Nebraska and Wyoming. It operates approximately 5 million miles per year in interstate commerce, of which 5% is over Illinois highways. Denver Chicago Trucking Co., Inc. (hereafter Denver) is a Nebraska corporation operating between points in the states of Arizona, California, Colorado, Connecticut, Idaho, Illinois, Indiana, Kansas, Massachusetts, Michigan, Missouri, New Jersey, New York, Ohio, Pennsylvania, Rhode Island, Utah, Washington and Wyoming. It operates approximately 57 million miles per year in interstate commerce, of which approximately 4% is over Illinois highways. Watson Bros. Transportation Co., Inc. (hereafter Watson) is a Nebraska corporation and operates between points in the states of Arizona, California, Colorado, Illinois, Iowa, Kansas, Minnesota, Missouri, Nebraska, New Mexico and Wyoming. It operates approximately 58 million miles per year in interstate commerce, of which 7% is over Illinois highways. Pacific Intermountain Express Co. (hereafter Pacific) is a Nevada corporation and operates between points in California, Colorado, Idaho, Illinois, Indiana, Kansas, Missouri, Montana, Nevada, Oregon, Utah, Washington and Wyoming. It operates approximately 90 million miles per year, of which 3% is over Illinois highways.

Each of the plaintiffs is at present operating its trailers with what is termed the conventional or straight mud or splash guard which is recognized as legal in all the forty-eight states except Illinois. Each of the plaintiffs, in order to operate in Illinois, will be required to equip its trailers with the contour type splash guard required by the Illinois Act, the cost of which is $30 or more per vehicle. Navajo will be required to make such installation on approximately 733 trailers, at a cost of $21,990; Ringsby, on approximately 468 trailers, at a cost of $14,040; Prucka, on approximately 150 trailers, at a cost of $4,500; Denver, on approximately 750 trailers, at a cost of $22,500; Watson, on approximately 1,528 trailers, at a cost of $45,840; Pacific, on approximately 1,200 trailers, at a cost of $36,000. Moreover, from two to four hours of labor are required to install or remove a contour splash guard. The expense incident to maintenance and replacement is heavy.

The service rendered by plaintiffs requires that they interchange trailers, and for many years this has been the practice. For example, a carrier which serves between Portland, Oregon and Denver, Colorado, will handle and originate a trailer load of perishable commodities destined for Chicago. The original carrier will move the trailer from Portland to Denver and then deliver it, without transferring the load, for movement to destination via any one of the plaintiffs herein. This interchange service constitutes a substantial proportion of the transportation business of each of the plaintiffs, ranging from 30% to 65%. For example, in the year 1956, the revenue derived by Pacific from traffic which moved through its Chicago terminal amounted to approximately $3,182,000. The revenue derived by Watson for the month of May, 1957, moving through its Chicago terminal, amounted to approximately $1,000,000, of which more than one-third was on traffic moved into the Chicago terminal from points outside of the state of Illinois. It derived revenue in the same month from freight moving through its Peoria, Illinois, terminal of approximately $107,000, of which about one-third was from freight moving into Peoria from points outside of the state of Illinois. Other plaintiffs received comparable revenue from interchange traffic passing through Illinois.

This statement, so far, is in the main a brief résum é of the factual allegations of the complaint either admitted or not disputed by defendants. It should also be noted, and this is without dispute, that each of the plaintiffs upon entering Illinois is required not only to equip a trailer owned by it so as to comply with the Illinois Act, but is also required to equip a trailer in use by it but owned by another carrier. This it has no right to do without the specific authority of the other carrier.

We were led to believe at the time of the hearing, and still believe, that all of the states, except Illinois and perhaps Oregon and Idaho, require nothing more than the conventional or straight mud flap, none of which would comply with the Illinois Act. During oral argument the following colloquy took place between Judge Briggle and Mr. Husted, counsel for defendants:

    "Judge Briggle: In other words, the Illinois
  Act is for 48 states, there is no other state
  that would be acceptable in Illinois?

"Mr. Husted: No.

    "Judge Briggle: You say Illinois would be
  acceptable in those states?

"Mr. Husted: Yes.

    "Judge Briggle: But no one of those is
  acceptable in Illinois, therefore, Illinois' act
  must be complied with by 48 states?

"Mr. Husted: That is true."

Later, counsel modified his answers by stating that the splash guard provided by Oregon and Idaho would be acceptable in Illinois. In the written brief subsequently filed, counsel brands as untrue "plaintiffs' contention that `splash guards which are permitted in all other states are illegal in Illinois' and that `the Attorney General admits this as to 45 states.'" The argument proceeds:

    "As above explained, almost all of the states
  which have anti-splash statutes require a cover
  or fender and certain ones permit the old style
  flap as an alternative or stop-gap measure.
  The fenders required by ...

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