Stephenson v. Binford , 53 F.2d 509 ( 1931 )

KENNERLY, District Judge

(dissenting).

In what is said respecting those regulations contained in the Legislative Act (House Bill 335), which concern traffic safety and highway protection, I fully concur. McLeaish v. Binford (D. C.) 52 F.(2d) 737; Sproles v. Binford (D. C.) 52 F.(2d) 730; and McLeaish v. Binford (D. C.) 52 F.(2d) 151, and cases there cited.

I cannot, however, see my way clear to concur in the disposition made of the questions raised and presented by complainant and interveners (who are I think clearly contract carriers or private carriers, and not common carriers) respecting those regulations in the act which in no real sense concern traffic safety and highway protection, but are in faet a regulation of the business, and a restriction of the right of contract, of the contract carriers. I think there is no material difference in legal effect between the Michigan, Washington, California, and Florida Acts and this act, and that Michigan v. Duke, 266 U. S. 571, 45 S. Ct. 191, 69 L. Ed. 445, 36 A. L. R. 1105; Buck v. Kuykendall, 267 U. S. 314, 45 S. Ct. 324, 69 L. Ed. 623, 38 A. L. R. 286; Frost v. Commission, 271 U. S. 583, 46 S. Ct. 605, 70 L. Ed. 1101, 47 A. L. R. 457; and Smith v. Cahoon, 283 U. S. 553, 51 S. Ct. 582, 75 L. Ed. 1264, are controlling. I think the temporary injunction prayed for, restraining the enforcement of the last-mentioned regulations, should be granted.