This has to a considerable extent cut off our southern markets."

Similar complaints come from Indiana and Ohio. An Indiana correspondent points out that not only the limitations in Kentucky and Tennessee, but also the Illinois maximum length of 35 feet for tractor-semitrailer, work out to the disadvantage of Indiana livestock shippers, as the limit in Indiana is 40 feet.

Much testimony is at hand indicating the restrictive effect of the Texas law, which limits net loads to 7,000 pounds (or 14,000 for trucks going to or from the nearest railroad station), whenever strict enforcement is attempted. The newspapers report that a drive has been made recently to secure more effective enforcement of this law. According to an item of April 1, 1938, 13 truck drivers, nearly all of whom were transporting fruits and vegetables, were arrested near Mason, Tex. Not only were they fined, but many were forced to reduce their net loads to 7,000 pounds by dumping the surplus which averaged approximately 2,500 to 3,000 pounds.32

Even before this recent drive the law, either through enforcement or the threat of such action, has had an appreciable restraining effect on interstate commerce. Thus, a Texas correspondent writes: 33

"Most States adjoining Texas have a much more liberal load limit, and, of course, the very low load limit in Texas tends to restrict the flow of livestock from bordering States to Fort Worth.

The various State licensing laws cause further burden on interstate commerce as some States insist on the purchase of the State license by the operator of an out-of-State truck. Shippers of livestock from both Oklahoma and New Mexico have often complained of the low load limit allowed in Texas, and the requirement that they purchase Texas State licenses in some instances. Some Southern Oklahoma shippers have stated that although they prefer as a rule to market their livestock at the Fort Worth market, they find it more advantageous to go to Oklahoma City on account of the restrictive truck laws and regulations existing in Texas."

32 San Angelo Standard, April 1, 1938; and San Antonio Express, April 2 and 5, 1938.

33 Apr. 8, 1938.

"We wanted a truckload of 250 sacks of onions out of Raymondville, Texas, which would be about half a carload as these first onions are not too good and we did not want to take a full carload; but under the State law trucks cannot exceed 7,000 lbs. and hence we had to pass up getting the truckload of onions for the reason the charges would be too high to transport this small amount."

Where State motor-vehicle regulations are only partly enforced there may be a strong temptation to apply them more rigorously against the out-of-State trucks than against the local carrier. Complaints arise, especially in those areas where enforcement is left to local agencies. Officials are frequently reluctant to hurt local interests by strict enforcement, but may enforce such regulations against trucks from other States or even distant parts of the same State without fear of political reprisal. In fact, honest local officials may be subject to considerable pressure to follow such a policy. The dean of a State agricultural college has recently written: 35

"The shipping of products, particularly by motor trucks, is also much impeded by the manner of enforcement of laws and regulations. Shippers report that local conditions frequently result in different degrees of enforcement sometimes resulting in loss or discrimination against individual shippers. There are even reported instances where such discrimination resulted from misunderstandings between neighboring law enforcement administrations."

Where fines go in part to the local enforcement agency, the situation may be further complicated. The charge is made that officials are sometimes tempted to assess fines on foreign trucks just sufficient to provide a small income

24 Apr. 4, 1938. 25 Mar. 15, 1938.

to themselves or to the local government, but not large enough to force the truckers to quit the business or to follow roundabout routes to avoid the areas where fines are imposed. This situation is probably not common; perhaps it now exists in no part of the country. But wherever drastic State motor-vehicle laws are not strictly enforced, warranted or unwarranted charges may be made against public officials.36

PORT-OF-ENTRY LEGISLATION

Under port-of-entry legislation, States have set up checking stations at points where main highways enter the State. Here officials halt incoming (and in some cases outgoing) traffic in order to subject motor vehicles to certain regulations, inspections, and taxes. Kansas, which inaugurated this type of legislation, experimented in 1933 with the policing of its borders to keep out "bootleg gasoline," and on January 1, 1934, put into effect a full-fledged port-ofentry system.

Under this program all trucks entering the State are required to obtain proper clearance. For trucks bearing Kansas license plates, this is a relatively simple matter. For others the procedure is more complicated. The driver of a carrier not having a Kansas registration is required to fill out a rather elaborate form describing the truck and its load, the proposed route of travel in the State, etc. State officials are required under the law to inspect the truck and its equipment to make sure it meets the requirements of Kansas, to check for proper insurance coverage, and to collect taxes that vary with the weight of the vehicle and the distance it is to travel in the State.

The Kansas plan has spread rapidly, having been put into operation in one form or another by Oklahoma, Nebraska, Arizona, New Mexico, California, Idaho, Utah, and Colorado. Up to the present time, Kansas and Oklahoma have set up the most elaborate systems, the former

26 The example may be cited of two sheriffs in one State who ran for reelection upon a platform pledging nonenforcement of the motorvehicle laws. Report of the Federal Coordinator of Transportation on the Regulation of Transportation Agencies Other than Railroads and on Proposed Changes in Railroad Regulation, Senate Doc. No. 152, 73d Cong., 2d sess., p. 195 footnote.

with 66 ports of entry, and the latter with 58. The other States vary considerably in the way in which they have organized their port-of-entry systems, but most of them appear to have sufficient stations to cover the main highways and effectively to enforce their registration and taxation requirements on out-of-State cars. Also, in a number of States (California, Arizona, and Idaho) ports of entry have been combined with, or are supplemented by, highway quarantine stations.

The ports of entry may act as a deterrent to interstate commerce because of the trouble and delay caused by the inspection procedure. When first subjected to this border inspection truckmen usually resent very much being held up by the clearing formalities. As they become accustomed to the system, however, they may not find it as troublesome as they had feared. Where the inspection of truck and equipment is superficial or nominal, as is often the case, and the clearing is courteously and expeditiously accomplished, the delay and annoyance are reduced to a minimum. It is the occasional trucker, the man who does a small business or only occasionally has his truck or trucks entering the State, who is most troubled by the port-ofentry inspection.37

Most States having ports of entry require carriers that make regular or repeated trips to take out State licenses. With such licenses they are expeditiously cleared; indeed, they may not have to stop at the border station. Moreover, large trucking organizations may be able to make arrangements by which their motor equipment is certified as satisfactory by a State inspector, their taxes are paid directly to the central State authority, and the necessary forms

37 A mimeographed letter (undated) received from the Kansas State Corporation Commission, April 1, 1938 says: "The purpose of the law is to provide for occasional or temporary truck or bus operations in or through the State, by out of state operators. Any motor carrier, whether common, contract, or private who intends to operate regularly or over a period of time should obtain proper certificate, license or permit, from the State Corporation Commission of this state. Motor vehicles operated under proper authority from the Commission and in good standing must also obtain proper clearance through the various Ports of Entry but are not required to pay the special tax as such taxes are collected in a different manner, based on the per ton miles operated and are considerably less per mile than the taxes due on special or occasional operations not under proper authority from the Commission."

are prepared ahead of time at a central office for the truck driver. So they are free of all or at least a large part of the delay that may be caused by border-station inspection. The greatest inconvenience therefore is likely to be caused to the small trucker or farmer.

The indirect effects of the port-of-entry system are probably much more important than trouble and delay of border inspection, at least in those States having severe regulations as to out-ofState vehicles. Thus, State laws as to ton-mile taxes, limitations on weights and sizes, insurance requirements, etc., may be, and apparently are, efficiently and strictly enforced by the States having a port-of-entry system.38 Much can be said for a system that results in efficient execution of State laws. On the other hand, if State laws having to do with licensing of out-of-State vehicles or with truck sizes, weight, and equipment are such as heavily to burden interstate commerce, then port-of-entry laws, by facilitating the enforcement of such legislation, may play an important part in discouraging interstate

commerce.

The initiation of port-of-entry legislation by a State is very likely to lead to retaliatory laws of a similar character in bordering States. The Kansas act has been in force for about 5 years, and the State is now completely surrounded by States that have adopted port-of-entry legislation.39 In fact, port-of-entry legislation seems to be an infection (benign or malignant, depending on the point of view) which spreads only by direct contact. All States that have adopted this scheme lie in the West and far West, and each now finds on its borders at least one other State that has passed such legislation.

On the other hand, fear of retaliatory action has been a most important factor in keeping States in the eastern part of the country from adopting the plan.40 Many Eastern States (among them Pennsylvania, New Jersey, and Virginia) have seriously considered, but finally decided against, the port-of-entry procedure. Delaware, apprehensive that such legislation

38 State collections from gasoline and ton-mile taxes have typically increased following the adoption of the port-of-entry system. 39 Missouri has not yet put its law into operation.

40 Maine has a system which approximates the port-of-entry plan.

would be adopted by its neighbors, adopted a law in 1935 by which it may go on to a port-ofentry system by executive order as soon as two of its neighbors establish ports of entry.

A great deal of opposition to this whole system has appeared and shippers and producers often believe their interstate markets are seriously hurt by it. Truck shipments of livestock have been especially affected by Kansas and Oklahoma border-station inspection. A leading Kansas livestock shipper declared in respect to the system in these two States:41

"These ports of entry with their resultant formalities have been a decided factor in diverting certain livestock shipments from an interstate haul to an intrastate haul."

Certain markets have been especially hurt. A well-informed observer writes:42 "Stock movements to St. Joseph by truck from southeastern Nebraska come mostly through Kansas and because of unfavorable Kansas laws and regulations this movement is materially less than would be the case otherwise."

He goes on to say that a bridge across the Missouri River at Rulo, Nebr., has been urged in order to make it possible to avoid Kansas in making these shipments.

PURPOSE OF STATE MOTOR-VEHICLE LEGISLATION

Having now set forth the main features of these State motor-vehicle laws and regulations and shown how they may be a factor in obstructing the free flow of trade across State borders, let us raise the question, Are these laws designed to have such a result, or are the interferences to interstate commerce entirely unintended and incidental?

Whether purpose is determined on the basis of legislative history, the statement of purpose in the act itself, or the results of the act in actual practice, it seems reasonably clear that the main object of most of this legislation is to raise revenue and to regulate highway traffic in such a way as to promote safety and to conserve property.

Yet any discussion would be less than candid which did not recognize that other purposes are

41 April 11, 1938.

42 April 7, 1938.

obviously present. Special interests in the States are often on the alert to influence motorvehicle legislation to their own advantage. The fact that in their registration requirements on out-of-State vehicles States are prone to give special exemptions to important economic interests seems to indicate that revenue and highway safety and conservation are not their only objectives. Thus, many States make concessions to farmers who carry their own produce. Registration requirements are eased under certain conditions for trucks carrying dairy products in Missouri; ore, minerals, and mining supplies in Nevada; and livestock in New Mexico.

The railroads have an obvious interest in motor-vehicle legislation, not only as heavy taxpayers themselves, but also as the chief competitors of motor vehicles. Both in trade groups and before State legislatures they have taken a prominent part in urging stricter regulation of highway traffic. For a number of years an internal struggle has been waged within the United States Chamber of Commerce between the automobile and trucking interests on the one hand and the railroads on the other over the question as to whether the chamber should go on record as favoring the uniform State legislation concerning size, weight, and speed of trucks recommended by the American Association of State Highway Officials. Up to the present time the railroad group has successfully blocked approval of such a resolution.43

Before the State legislatures the railroads have been active in promoting the types of legislation which have been shown in the previous discussion to be most restrictive. They have favored the establishment of ports of entry and the adoption of low limits on the size and weight of trucks.

43 See for example the following, published by the United States Chamber of Commerce: Regulation and Taxation of Highway Transportation, Jan. 30, 1933; Referendum Number Sixty-Five; Competing Forms of Transportation (Special Bulletin), Nov. 25, 1933; and Standards for Highway Vehicles Committee Report, Dec. 1934. A communication from the chamber informs us that the following resolution was adopted at the annual meeting, May 1935: "Determination of the standards for highway construction and the size and weight of motor vehicles operating over them should be left to the several States in accordance with their respective situations and problems." For the railroad position on size and weight legislation see the handbook issued by the Association of American Railroads entitled Sizes and Weight of Motor Vehicles (Washington, D. C., 1938).

Thus, early in 1936 the presidents of the three leading railroads in New England urged the adoption of the Kansas port-of-entry system by the States of New England." The South Carolina law of 1933 and the Texas law of 1931, both favored by railroad interests, are examples of the most drastic of size- or weight-limitation laws.45

Some provisions in the State laws indicate that "protectionist" interests have had some direct part in motor-vehicle legislation. Certain goods may be taken into or out of New Mexico but may not be taken through the State unless a New Mexico license is purchased. Some of the laws suggest that the States are more anxious to promote exports than to invite imports. For instance, Texas provides that nonresident owners of trucks living in an adjoining State may enter Texas without securing a license if their purpose is to buy goods, wares, and merchandise. No such exemption is made for those who take trucks into the State to sell products. Florida gives special privileges to nonresidents who come into the State to buy citrus fruit. An Arkansas law states in forthright fashion that owners of trucks may drive them into the State without securing an Arkansas permit or license if they bring the trucks in empty and for the purpose of buying or removing Arkansas products or merchandise.

LEGAL STATUS OF STATE LEGISLATION

The legal right of a State to tax out-of-State motor vehicles that use its highways has been the subject of considerable controversy. But it is now well established that taxes and fees may be levied on interstate motor carriers when the purpose is to obtain compensation for the use of the highways or to help cover the cost of regulation and policing. Even where special taxes are levied on interstate carriers they may be approved by the courts unless it can be shown that such taxes are clearly discriminatory or have no reasonable relation to the privileges granted.47

46

44 Boston Post, Boston, Mass., Feb. 20, 1936.

45 Of course, automobile and trucking interests have also done what they could to bring about State legislation favorable to themselves. 44 See, for example, Hendrick v. Maryland, 235 U. S. 610 (1915); Kane v. New Jersey, 242 U. S. 160 (1916); Clark v. Poor, 274 U. S. 554 (1927).

47 Interstate Busses Corp. v. Blodgett, 276 U. 8. 245 (1928); Ingels v. Norf, 300 U. S. 290 (1937).

However, past action by the Federal courts clearly indicates that if any of these laws can be shown to be clearly discriminatory or deliberately designed to burden interstate commerce, they are unconstitutional.48

The legal status of State laws that limit the size or weight of motor vehicles has been somewhat clarified by recent decisions of the courts. Apparently, at least until Congress shall act, States may limit the size and weight of trucks moving in interstate commerce even though such laws may restrict interstate commerce. The Texas law that limits net loads to 7,000 pounds and the South Carolina law that limits gross weight to 20,000 pounds have both been declared constitutional by the United States Supreme Court.49 Length and width restrictions by the States have also been upheld by the courts. The chief basis for these decisions appears to be the right of the States to promote highway safety and to secure economy in the use of the roads. 50

FEDERAL REGULATION OF MOTOR VEHICLES

Congress has devoted much time since 1925 to the subject of Federal regulation of motor vehicles operating in interstate commerce. Finally, following two reports of the Federal Coordinator of Transportation (March 10, 1934, and January 31, 1935) which strongly urged the need of a unified system of regulation including all forms of transportation, Congress adopted the Motor Carrier Act in 1935.51 The Interstate Commerce Commission is still engaged in the process of setting up and completing the machinery of regulation. On many important points the powers of the Commission will have to be clarified through court action. The law has been actually in effect, therefore, too short a time to show clearly what its results will be. A brief examination of the present situation may be attempted, however, in order to discover

48 Sprout v. South Bend, 277 U. S. 163 (1928); Interstate Transit, Inc. v. Lindsey, 283 U. S. 183 (1931).

49 The South Carolina law has since been repealed. See p. 47. 50 South Carolina State Highway Department v. Barnwell Brothers, Inc., 303 U. S. 177 (1938); State v. Wetzel, 208 Wis. 603 (1932); Sproles v. Binford, 286 U. S. 374 (1932).

51 Signed by the President August 9, 1935.

tendencies that are already appearing under the 1935 law.

From the standpoint of this study the chief advantage so far evident is the trend toward uniformity in safety regulations. Four general orders having to do with various subjects affecting safety of motor-vehicle operation have been issued. Particularly important from the standpoint of facilitating interstate commerce is the Interstate Commerce Commission order effective July 1, 1937, which set up standards for equipment of motor carriers engaged in interstate commerce. The complicated and often conflicting State regulations as to lights, brakes, flares, etc., are now replaced, so far as interstate transportation is concerned, by uniform requirements for the whole country. (States may still have the power to require equipment additional to that prescribed by the Interstate Commerce Commission. This question is now before the courts.) Already many States have changed their laws or regulations concerning interstate transportation to conform with those set up by the Interstate Commerce Commission. This much-needed uniformity in truck-equipment requirements ought appreciably to facilitate the flow of interstate trade.52

It must be emphasized that the law goes only a very short distance in removing existing barriers to interstate movement of motor vehicles. The right of States to require registration of interstate motor vehicles is not affected. In fact, there is now the additional trouble of securing an Interstate Commerce Commission registration. As yet the Interstate Commerce Commission has made little progress in bringing about greater uniformity of weight and size regulations. Recently they have ordered a general investigation of the subject. The actual power of the Commission to prescribe maximum size and weight restrictions on vehicles engaged in interstate transportation has been the subject of much controversy. Court action will undoubtedly be necessary to clarify the situation.

82 In certain parts of the country, however, where strict equipment laws did not previously exist or, if on the statute books, were unenforced, the cost of complying with the Interstate Commerce Commission regulations may force some truckers out of interstate trade.