citizens, even though the same may incidentally affect interstate commerce.

Cooley v. Port Wardens, 12 How. 299, 13 L. ed. 996; Noble State Bank v. Haskell, 219 U. S. 104, 55 L. ed. 112, 32 L.R.A. (N.S.) 1062, 31 Sup. Ct. Rep. 186, Ann. Cas. 1912A, 487; Erie R. Co. v. Public Utility Comrs. 254 U. S. 394. 65 L. ed. 322, P.U.R.1921C, 143, 41 Sup. Ct. Rep. 169; Sherlock v. Alling, 93 U. S. 99, 23 L. ed. 819; Morgan's L. & T. R. & S. S. Co. v. Board of Health, 118 U. S. 455, 30 L. ed. 237, 6 Sup. Ct. Rep. 1114; Smith v. Alabama, 124 U. S. 465, 31 L. ed. 508, 1 Inters. Com. Rep. 804, 8 Sup. Ct. Rep. 564; Nashville, C. & St. L. R. Co. v. Alabama, 128 U. S. 96, 32 L. ed. 352, 2 Inters. Com. Rep. 238, 9 Sup. Ct. Rep. 28; Hennington v. Georgia, 163 U. S. 299, 41 L. ed. 166, 16 Sup. Ct. Rep. 1086; Missouri, K. & T. R. Co. v. Haber, 169 U. S. 613, 42 L. ed. 878, 18 Sup. Ct. Rep. 488; New York, N. H. & H. R. Co. v. New York, 165 U. S. 628, 41 L. ed. 853, 17 Sup. Ct. Rep. 418; Lake Shore & M. S. R. Co. v. Ohio, 173 U. S. 285, 43 L. ed. 702, 19 Sup. Ct. Rep. 465; Louisville & N. R. Co. v. Hughes, 201 Fed. 727; Minnesota Rate Cases (Simpson v. Shepard) 230 U. S. 352, 57 L. ed. 1511, 48 L.R.A. (N.S.) 1151, 33 Sup. Ct. Rep. 729, Ann. Cas. 1916A, 18; Escanaba & L. M. Transp. Co. v. Chicago, 107 U. S. 678, 27 L. ed. 442, 2 Sup. Ct. Rep. 185; Missouri P. R. Co. v. Larabee Flour Mills Co. 211 U. S. 612, 53 L. ed. 352, 29 Sup. Ct. Rep. 214; Atlantic Coast Line R. Co. v. Georgia, 234 U. S. 280, 58 L. ed. 1312, 34 Sup. Ct. Rep. 829.

The legislation of the state of Washington, and the action of its department of public works, constituted a reasonable and proper exercise of the state's sovereign power.

Hendrick v. Maryland, 235 U. S. 610, 59 L. ed. 385, 35 Sup. Ct. Rep. 140; Nolen v. Riechman, 225 Fed. 812; Lutz v. New Orleans, 235 Fed. 978; Lutze v. New Orleans, 150 C. C. A. 654, 237 Fed. 1018; Schoenfeld v. Seattle, 265 Fed. 726; Hadfield v. Lundin, 98 Wash. 657, L.R.A.1918B, 909, 168 Pac. 516, Ann. Cas. 1918C, 942; West v. Asbury Park, 89 N. J. L. 402, 99 Atl. 190; Jitney Bus Asso. v. Wilkes-Barre, 256 Pa. 462, 100 Atl. 954; West Suburban Transp. Co. v. Chicago & W. T. R. Co. 309 Ill. 87, 140 N. E. 56; Western Asso. v. Railroad Commission, 173 Cal. 802, 1 A.L.R. 1455, P.U.R.1917C, 178, 162

Pac. 391; New Orleans v. Le Blanc, 139 La. 113, 71 So. 248; Huston v. Des Moines, 176 Iowa, 455, 156 N. W. 883; Cummins v. Jones, 79 Or. 276, 155 Pac. 171; Desser v. Wichita, 96 Kan. 820, L.R.A.1916D, 246, 153 Pac. 1194; Ex parte Sullivan, 77 Tex. Crim. Rep. 72, P.U.R.1915E, 441, 178 S. W. 537; Memphis v. State, 133 Tenn. 83, L.R.A. 1916B, 1151, P.U.R.1916A, 825, 179 S. W. 631, Ann. Cas. 1917C, 1056; Ex parte Dickey, 76 W. Va. 576, L.R.A. 1915F, 840, P.U.R.1915E, 93, 85 S. E. 781; Motor Transit Co. v. Railroad Commission, 189 Cal. 573, 209 Pac. 586; Cocke v. Halsey, 16 Pet. 71, 10 L. ed. 891; Interstate Motor Transit Co. v. Kuydendall, 284 Fed. 882; Northern P. R. Co. v. Schoenfeldt, 123 Wash. 579, 213 Pac. 26; Liberty Highway Co. v. Michigan Pub. Utilities Commission, 294 Fed. 703; George W. Bush & Sons Co. v. Public Serv. Commission, 143 Md. 570, 123 Atl. 61; Choate v. Commerce Commission, 309 Ill. 248, 141 N. E. 12; Bluefield v. Public Serv. Commission, 94 W. Va. 334, 118 S. E. 542; Chambersburg, G. & W. Street R. Co. v. Hardman (Pa.) P.U.R.1921C, 628; Re Engelke (N. Y.) P.U.R.1922C, 71; Bartels v. Hessler Bros. P.U.R.1922D, 193; Geneseo-Rock Island Bus Co. v. Hilbert (Ill.) P.U.R. 1923E, 311; Re Jacobson (Wash.) P.U.R.1923E, 481; Re Barnes (Wash.) P.U.R.1923E, 719; Re Buck (Wash.) P.U.R.1923E, 737.

(Ill.)

Mr. Justice Brandeis delivered the opinion of the court:

This is an appeal, under § 238 of the Judicial Code, from a final decree of the Federal court for western Washington, dismissing a bill brought to enjoin the enforcement of § 4 of chapter 111 of the Laws of Washington, 1921. That section prohibits common carriers for hire from using the highways by auto vehicles between fixed termini or over regular routes, without having first obtained from the director of public works a certificate declaring that public convenience and necessity require such operation. The highest court of the state has construed the section as applying to common carriers engaged exclusively in interstate commerce. Northern P. R. Co. v. Schoenfeldt, 123 Wash. 579, 213 Pac. 26; State ex

He

obtained from Oregon the license prescribed by its laws. Having complied with the laws of Washington relating to motor vehicles, their owners and drivers (Carlsen v. Cooney, 123 Wash. 441, 212 Pac. 575), and alleging willingness to comply with all applicable regulations concerning common carriers, Buck applied there for the prescribed certificate of public convenience and necessity. It was refused. The ground of refusal was that, under the laws of the state, the certificate may not be granted for any territory which is already being adequately served by the holder of a certificate; and that, in addition to frequent steam railroad service, adequate transportation facilities between Seattle and Portland were already being provided by means of four connecting auto stage lines, all of which held such certificates from the state of Washington. Re Buck (Wash.) P.U.R.1923E, 737. To enjoin interference by its officials with the operation of the projected line, Buck brought this suit against Kuykendall, the director of public of public works. The case was first heard, under § 266 of the Judicial Code, before three judges, on an application for a preliminary injunction.

1 An additional ground for refusing the certificate was that the applicant did not appear to have financial ability. This ground of rejection does not require separate consideration; among other reasons, because the plaintiff later asserted, in his bill, that he possessed the requisite financial ability, and the motion to dismiss admitted the allegation.

38 A.L.R.-19.

They denied the application. 295 Fed. 197. A further application for the injunction, made after amending the bill, was likewise denied. 295 Fed. 203. Then the case was heard by the district judge upon a motion to dismiss the amended bill. The final decree dismissing the bill was entered without further opinion. See also Interstate Motor Transit Co. v. Kuykendall, 284 Fed. 882.

That part of the Pacific highway which lies within the state of Washington was built by it with Federal aid, pursuant to the Act of July 11, 1916, chap. 241, 39 Stat. at L. 355, as amended February 28, 1919, chap. 69, 40 Stat. at L. 1189, 1200, Comp. Stat. § 7477bb, Fed. Stat. Anno. Supp. 1919, p. 299, and the Federal Highway Act, November 9, 1921, chap. 119, 42 Stat. at L. 212, Comp. Stat. § 74771a, Fed. Stat. Anno. Supp. 1921, p. 95. Plaintiff claimed that the action taken by the Washington officials, and threatened, violates rights conferred by these Federal acts, and guaranteed both by the 14th Amendment and the commerce clause. In support of the decree dismissing the bill this argument is made: The right to travel interstate by auto vehicle upon the public highways may be a privilege or immunity of citizens of the United States. Compare Crandall v. Nevada, 6 Wall. 35, 18 L. ed. 745. A citizen may have, under the 14th Amendment, the right to travel and transport his property upon them by auto vehicle. But he has no right to make the highways his place of business by using them as a common carrier for hire. Such use is a privilege which may be granted or withheld by the state in its discretion, without violating either the due process clause or the equal protection clause. Packard v. Banton, 264 U. S. 140, 144, 64 L. ed. 596, 607, 44 Sup. Ct. Rep. 257. The highways belong to the state. It may make provision appropriate for securing the safety and convenience of the public in the use of them. Kane v. New Jersey, 242 U. S. 160,

61 L. ed. 222, 37 Sup. Ct. Rep. 30. It may impose fees with a view both to raising funds to defray the cost of supervision and maintenance, and to obtaining compensation for the use of the road facilities provided. Hendrick v. Maryland, 235 U. S. 610, 59 L. ed. 385, 35 Sup. Ct. Rep. 140. See also Pierce Oil Corp. v. Hopkins, 264 U. S. 137, 68 L. ed. 593, 44 Sup. Ct. Rep. 251. With the increase in number and size of the vehicles used on a highway, both the danger and the wear and tear grow. To exclude unnecessary vehicles-particularly the large ones commonly used by carriers for hire -promotes both safety and economy. State regulation of that character is valid even as applied to interstate commerce, in the absence of legislation by Congress which deals specifically with the subject. dalia R. Co. v. Public Serv. Commission, 242 U. S. 255, 61 L. ed. 276, P.U.R.1917B, 1004, 37 Sup. Ct. Rep. 93; Missouri P. R. Co. v. Larabee Flour Mills Co. 211 U. S. 612, 53 L. ed. 352, 29 Sup. Ct. Rep. 214. Neither the recent Federal highway acts, nor the earlier post road acts (Rev. Stat. § 3964, Comp. Stat. § 7456, 8 Fed. Stat. Anno. 2d ed. p. 181; Act of March 1, 1884, chap. 9, 23 Stat. at L. 3, Comp. Stat. § 7457, 8 Fed. Stat. Anno. 2d ed. 188), do that. The state statute is not objectionable, because it is designed primarily to promote good service by excluding unnecessary competing carriers. That purpose also is within the state's police power.

Van

The argument is not sound. It may be assumed that § 4 of the state statute is consistent with the 14th Amendment; and also, that appropriate state regulations, adopted primarily to promote safety upon the highways and conservation in their use, are not obnoxious to the commerce clause, where the indirect burden imposed upon interstate commerce is not unreasonable. Compare Michigan Pub. Utilities Commission v. Duke, No. 283, decided January 12, 1925 [266 U. S. 570, 69 L. ed. 445, 36 A.L.R.

1105, 45 Sup. Ct. Rep. 191]. The provision here in question is of a different character. Its primary purpose is not regulation with a view to safety or to conservation of the highways, but the prohibition of competition. It determines not the manner of use, but the persons by whom the highways may be used. It prohibits such use to some persons while permitting it to others for the same purpose and in the same manner. Moreover, it determines whether the prohibition shall be applied by resort, through state officials, to a test which is peculiarly within the province of Federal action,-the existence of adequate facilities for conducting interstate commerce. The vice of the legislation is dramatically exposed by the fact that the state of Oregon had issued its certificate, which, despite existing facilities, declared that public convenience and necessity required the establishment by Buck of the auto stage line between Seattle and Portland. Thus, the provision of the Washington statute is a regulation, not of the use of its own highways, but of interstate commerce. Its effect upon such commerce is not merely to burden but to obstruct it. Such state action is forbidden by the commerce clause. It also defeats the purpose of Congress expressed in the legislation giving Federal aid for the construction of interstate highways.

Commerce

power of state to forbid use of

interstate high

way by common

carrier.

By motion to dismiss, filed in this court, the state makes the further contention that Buck is estopped from seeking relief against the provisions of § 4. The argument is this: this: Buck's claim is not that the department's action is unconstitutional because arbitrary or unreasonable. It is that § 4 is unconstitutional because use of the highways for interstate commerce is denied unless the prescribed certificate shall have been secured. Buck applied for a certificate. Thus he invoked the exercise of the power which he now assails. One who in