*1 INC., SERVICE, TRANSFER RAILROAD Corporation, Delaware Plaintiff- Appellant, al.,

The CITY OF CHICAGO et Defendants-Appellees.

No. 15230. Appeals

United States Court Circuit.

Seventh

March

Swygert, Judge, dissented. Axelrod, Burke, David L. Arnold Axel-

rod, Steiner, & B. Et- Goodman Leonard telson, Raymond Denten, Ettelson, T. Ehrlich, Frankel, Chicago, O’Hagen, & 111., appellant. Tuohy, Sp. Corp.

John O. Asst. Coun- sel, Raymond Simon, Corp. F. Counsel *2 56 granted

City Chicago, Chicago, III., appel- for or invalid. district court of The summary against lees, Drebin, Corp. Sydney Transfer and R. Asst. Atchison, Topeka Counsel, railroads. and of the counsel. Ry. City Chicago, 136 Santa Fe Co. HASTINGS, Judge, and Before Chief 1955). (N.D. Ill., F.Supp. 476 This court Judg- SWYGERT, CASTLE and reversed, holding was Transfer es. instrumentality of the railroads inter oper and to state commerce that its Judge. HASTINGS, Chief subject ate was control federal Service, Inc., has Railroad Transfer power. Chicago’s attempt the commerce appealed from an of the district order regulation ed tional, was held to unconstitu dismissing com- court its second amended Chicago and could not declaratory injunctive plaint for and re- Chicago. operating from Transfer At City Chicago, lief Illinois the chison, Topeka Ry. & Santa Fe Co. v. designated officials) (and of its certain City Chicago, Cir., 7 240 F.2d 938 ground pre- on the that Transfer had not (1957). sented the versy. with an actual contro- affirmed, holding the Interstate Com operates transportation a Transfer Act, seq., pre merce U.S.C.A. et § having service for 21 railroads terminals Chicago preventing cluded from Chicago, transporting passengers and Chicago transfer service. v. At baggage from one terminal to another chison, Co., T. & R. S. F. 357 U.S. 84- change required. when a of terminals is wholly operates Transfer within the Subsequently, Chicago amended its Chicago. limits as it amended, requires ordinance.1 op- As does, Transfer furnishes link in vehicles, erators of terminal such as transportation passengers interstate Transfer, licenses, provided to obtain baggage is, therefore, subject and and proper condition; vehicles are and safe regulation by the Interstate Commerce responsibility; demonstrate financial Commission. principal maintain its office in Chi- contracting for Prior to with Transfer cago ; to residing Chicago; use drivers services, transportation its railroads vehicles; to have comfortable mo- utilized services another satisfactory vehicles which is carrier, Transportation tor Co. Parmelee Commissioner; to rules, orders, But, engaged after the railroad serv- and adopted or issued Transfer, ices of municipal by the Commissioner. code, effecting a number gives ordinance further either the changes type in its Mayor Commissioner provided by services important most Transfer. The deny suspend discretion revoke change required Transfer licenses. The standards for such action obtain a certificate of convenience expressed, and it is are difficult to necessity from the Public Vehi- ordinance, as determine whether approv- cle License Commissioner written, hearing provides for a before al of Council before Transfer or denial a license. revocation legally transport passengers After the amendment baggage. apply for Transfer refused to sent the fol- the Commissioner Transfer certificate, threatened lowing letter: arrest fine Transfer’s drivers if drove unlicensed vehicles. your “Please be advised that application pany in the has not the railroads sued made proper ve- federal district court to the ordi- licenses terminal operated by your company. inapplicable nance to Transfer hicles declared seq. Ill., Municipal 28-1 et § Code appeal- dismissal that Transfer this advised that “Please be further your complies company with ed. unless provisions of ordinance argues trial court 1961, you Friday, September 22, erred because the hereby office ordered qualify permissible local as a does not operation of cease and desist the your safety regulation of commerce. *3 lit-, vehicles until the ordinance ordinance bears It contends that the fully Chicago been safety, relationship but that or no to tie 2 complied by your company.” with Chicago arbitrary to it is an effort wholly regulate to apply unrelated li matters Transfer for the refused to opera- censes, filing and to harass Transfer’s suit for a declara instead therefore, ordinance, is tory judgment alleging injunction, tions. or impedi- being discriminatorily to constitute a serious claimed that Transfer was required pay to commerce. ment to a or tax for the license privilege and its vehicles Chicago course, ordi Of if the gave that the ordinance the Commission with can be said to conflict federal nance regulatory illegal discretionary power to recom to in measures so as burden mend revocation licenses.3 commerce, regula or if federal terstate found, alia, The district court inter regulation, preempted then tion has local charges proper appli- fee to a license Navajo prevail. law must Bibb v. federal police that, powers cation of and since 520, 529, Freight Lines, 359 79 U.S. S.Ct. Chicago had no action taken 962, (1959); City of Chi was, yet, there no actual cago Atchison, Co., T. & R. 357 S. F. parties. between 77, 87-88, 1063, 2 L.Ed.2d U.S. 78 S.Ct. trial court dismissed Transfer’s (1958). 1174 plaint. written, however, As the ordinance preemption, does not federal appealed. collide with

Transfer This court vacated nor has it been conflict with shown to on below remanded existing ground that, federal man- court, to unknown the trial burdening ner commerce. question had been particulars prior amended two to the unquestioned Since it Service, dismissal. Railroad Transfer locality may police pow exercise Chicago, 991, Inc. v. 334 F.2d regulation, process ers of if is ac due corded and do not conflict with or unduly right, privilege, burden federal remand, On trial court found that authority, a case this character would the amendments of which it had not been ordinarily previously on turn whether the prior aware did not affect its legiti ordinance is a within Furthermore, conclusions. one police powers. However, mate amendments had been rescinded in the interim, original need not now reading be deter and the of the mined, since the ordinance is not offen prior ordinance had been restored to deci- face, applied, sive has not been sion on remand. For the reasons that has not been shown to have in validly burdened inspect tax and terstate commerce. Transfer’s vehicles and that Transfer, taken no action detrimental Baking Woodring, Continental Co. v. the district dismissed Transfer’s 286 U.S. 76 L.Ed. 1155 complaint. second (1932) point. It is There, pages from is at 367- power now admits that it has no vehicles from the Public Vehicle License stop operations then, in inter- Commissioner. Since deposited Transfer has state commerce. required license fees for 1961, 1962, and 1963 with Clerk 1960, prior filing case, Transfer the United States District Court. applied for and received for its licenses responsibil- apparent page at relation S.Ct. ity. require To to maintain its Court stated: Chicago, offices to have drivers re- objection authority give proof side given to the commis- service responsibility financial is but to establish regulate supervise sion ‘to responsibility. require- accessible Such accounts, schedules, service and reasonably police pow- within ments operation,’ prescribe ‘to method promotion Similarly, ers welfare. system a uniform and classification comfortable vehicles is not re- accounts,’ of reports welfare, requirement from mote and a data, generally approval of a color scheme ‘supervise regulate’ all car- merely relate convenience iden- applies riers to which ‘in all the act Finally, requirement tification. affecting relationship’ matters orders, rules, reg- *4 between such eling carriers ‘the trav- may ulations of the Commissioner ulti- * * * shipping public’ mately nothing safety be but a and re- similarly question no raises sponsibility requirement, once are considered, can now be as there has adopted and issued and their substance action, no been action or threat of apparent.4 made appears, by so far as the commis- possibilities To state these is not to as- giving ground sion for the conten- approve sume their correctness nor to rights tion that the constitutional merely the ordinance: it is a demonstra- appellants or will have been be tion obviously that the * * ordinance is not * invaded. Whatever un- arbitrary clearly nor unrelated certainty may respect exist with legitimate police powers ends of a possible regulations of the commis- locality. regulations sion will be resolved as not, Chicago’s is as ordinance While promulgated. any If of these it, as a inscrutable Transfer would have safety limits, ap- transcend constitutional is true and welfare it pellants will appropriate have their * * * in all is not its relation to remedy. respects is also true that self-evident. It duty upon laid the commis- clearly provide for not the ordinance does * * * sion to insist that motor hearing or a administrative standards vehicles shall be ‘in a maintained oper- of a license to before termination sanitary condition,’ pre- safe and Chicago. What, ate on the streets of qualifications operators scribe however, unprovided for in the lan- age service, and hours of guage yet pro- of the ordinance be reporting accidents, application. vided in of its the course We has manifest reference consider- appli- reason to assume safety. ations of terms clarify cation of the ordinance will not by do statute not action language specific its in accordance with commission which does not have rea- proper just standards nor that a purpose. sonable relation to that In hearing provided will not be should the respect, this as well as in relation to stands, arise. As it ordi- the other above-mentioned, matters unequivocally be nance cannot classified appellants had no to resort to and, applied, until it is it lacks the test equity merely anticipa- of an because whereby its real nature is revealed. improper tion of or invalid action in pleaded any Transfer has not in administration.” jury consequently any has not shown While the aim ultimate burden on interstate commerce. Trans clear, apprehensions generate ordinance is fer’s do not ordinance does printed 4. The Commissioner’s first order to and examined Trans- doctors. This employees finger- complied fer was that its was with. controversy. is no claim that the Com There actual If limits, anyone any beyond applied constitutional missioner else has issued appropriate orders, any way rem rules or Transfer will have Baking discriminating edy. Co. v. Wood Transfer. Continental ring, supra. any- is no claim that There applied requirements has one else jurisdiction found The district court any the ordinance manner to the detri- Transfer’s second entertain or harm of ment Transfer. complaint 1337.5 U.S.C.A. § agree. any- is no claim There We one has else acted under the ordinance sum, prior commencement deny proc- manner Transfer due complied this action in ess. with the the ordinance necessary by making appli- apprehensions fears and may happen for what cation vehicle licenses to it under ordi- paid required nance have not fee been translated into $1630 real- year Thereafter, paid into ities. required license fees No pre- actual has been 1962 and 1963. required sented the district court as action, Since the U.S.C.A. 2201.6 § op- carried its terminal transfer *5 foregoing reasons, For the we hold interruption eration without or inter- that the district court did not err dis- by Chicago any ference of the individ- missing Transfer’s second amended com- ual defendants. plaint. appealed order Chicago’s authority to and col- from is assess affirmed. lect its annual vehicle license fee has been Affirmed. established and the amount here is reasonable. SWYGERT, Judge (dissent- Chicago concedes that it now has no ing). operation of the Trans- Unfortunately, myself I find unable to fer’s business. agree expressed by with the views Chief operates wholly the within Judge Hastings by and concurred city complete limits of has a Judge Castle. monopoly competition, and is without ex- import holding of the court’s cept by licensed taxicabs. controversy that no actual exists until provisions con the applied The ordinance to Transfer. cerning safety, comfort, drivers, abundantly of it is Yet clear from the record responsibility city’s Tehicles and financial rea the brief that intends sonably safety against relate to welfare enforce the ordinance clearly eventually.1 police powers within the local A analogous pre somewhat maturity argument and do not burden interstate during was made the regula commerce litigation conflict with federal course of the earlier between tory powers. parties. the The contention was that fed- original appropriate pleading, may district courts have shall declare jurisdiction any pro- rights relations, legal civil action or any other ceeding any arising party seeking Act of Con- interested such declaration * * gress regulating protecting (Emphasis added.) commerce trade and commerce restraints example, 1. Eor see the letter addressed monopolies.” plaintiff by the Public Yehicle License quoted “In a case actual majority within opin Commissioner in the * * * jurisdiction, court of ion. States, upon United permit to ad- not undertake eral courts should judicate validity provision pass re- Of those streets. merce over quiring con- a determination considerable course authority retains regulate the issu- before transfer venience how operated. to obtain an of a license until efforts It could ance vehicles shall be hardly adjudication appropriate denied, example, be sig- rejected Court been exhausted. The such vehicles must traffic Atchison, argument. City Chicago nals, general speed limits and other Ry., safety regulations. Similarly T. & S. F. 1063, 357 U.S. 78 S.Ct. sig- City may registration More nificantly, think, proceeded I vehicles and the. these exact reasonable dispose case de- fees their of the local the merits streets. registered objection spite Id. at Mr. 78 S.Ct. at 1069. (Mr. Justice Harlan Frankfurter Justice my opinion, only provision not re- joining and Mr. Burton Justice the dis- quiring proof responsibility, of financial sent) : provisions but also the Nevertheless, validity principal place or- Transfer maintain its dinance should not business be determined that its drivers applied relationship until reside Transfer has to Chi- cago safety plaintiff’s operations. for a “terminal” license and general the local These had an authorities have are neither opportunity application. traffic to act on nor measures. They do permissible Not until then will it be known fall within the open area whether the to local as deline- applied operations, ated Court in Atchison. trespasses upon paramount federal I would reverse the order of dismissal. concerns. Id. at at 1070. city’s Transfer is at suf- ferance, having *6 without obtained a li-

cense. Before a can license be obtained comply Transfer must with at least one questioned requirements

of the of the ordinance, namely, proof that it is finan- cially responsible. In Atchison the issue ALLISON, James J. Petitioner-Appellant, was whether withhold the issuance of a license to America, UNITED STATES of Transfer until it had first been deter- Respondent-Appellee. public mined that convenience and neces- No. 15316. sity required additional interterminal I service. see difference essence Appeals United States Court of requirement between the to obtain a Seventh de- Circuit. termination of convenience and March requirement and the that the Rehearing April 19, Denied plaintiff proof offer of its financial re- Rehearing April Denied sponsibility as a condition to the issuance banc). (en event, license. In either asserting power an inter- operation, power which it does not possess. In Atchison said: fully

We are of local aware involved, sug-

streets is but no one

gests Congress cannot