The opinion of the court was delivered by: STALEY
This is a suit for a permanent injunction, restraining defendant from enforcing certain of the weight limitations of the Pennsylvania Motor Vehicle Code against plaintiff's vehicles. Most of the important facts were stipulated.
Plaintiff, an Ohio corporation, is a common carrier by motor truck and operates between points in Ohio and western Pennsylvania under a consolidated certificate issued by the Interstate Commerce Commission. Defendant commands the squadron of the Pennsylvania State Police having jurisdiction of that part of the state over which plaintiff operates.
In carrying out their duty to enforce the maximum weight provisions of the Pennsylvania Motor Vehicle Code, defendant's subordinates have stopped and weighed plaintiff's vehicles and, when found to be overweight, have detained the vehicle until the excess was removed and arrested and caused the driver to be fined. There appear to have been quite a few such incidents, but the one that brought matters to a head occurred on March 11, 1952. On that day, defendant's subordinates stopped and weighed petitioner's truck and four-wheeled trailer in Freedom, Beaver County, Pennsylvania. The outfit as a whole was found to be within the legal limits, but the gross weight of the four-wheeled trailer was 30,680 pounds, which was 3,380 pounds over the maximum gross weight allowed by Section 903(c) of the Motor Vehicle Code
for a Class G four-wheeled trailer. This vehicle was registered under the laws of Ohio.
Except for one or two points which we will discuss later, plaintiff's contentions do not present a substantial federal question. It is no longer open to dispute that a state, in the exercise of its police power and in the absence of Congressional action, may impose reasonable restrictions upon the weight and size of vehicles which travel over its highways, equally applicable to intrastate and interstate commerce, without running afoul of the Commerce or Due Process Clauses, art. 1, § 8, cl. 3 and Amend. 14. Maurer v. Hamilton, 1940, 309 U.S. 598, 60 S. Ct. 726, 84 L. Ed. 969; South Carolina State Highway Department v. Barnwell Brothers, Inc., 1938, 303 U.S. 177, 58 S. Ct. 510, 82 L. Ed. 734; Sproles v. Binford, 1932, 286 U.S. 374, 52 S. Ct. 581, 76 L. Ed. 1167; Morris v. Duby, 1927, 274 U.S. 135, 47 S. Ct. 548, 71 L. Ed. 966. Those cases give a conclusively adverse answer to nearly every one of the many points raised by plaintiff. If this were all there were to the case, there would have been no justification for convening three judges. California Water Service Co. v. City of Redding, 1938, 304 U.S. 252, 58 S. Ct. 865, 82 L. Ed. 1323; Oklahoma Gas & Electric Co. v. Oklahoma Packing Co., 1934, 292 U.S. 386, 54 S. Ct. 732, 78 L. Ed. 1318. There is more, however, and it is the interesting part.
of the Pennsylvania Motor Vehicle Code authorizes the Secretary of Revenue to enter into agreements with other states, exempting residents of those states from compliance with Pennsylvania's law relating to equipment, inspection, size, weight, and construction of vehicles which may be operated in Pennsylvania, provided that such residents comply with the laws of their state and provided that like exemptions are granted to Pennsylvania residents when using the highways of the other state. There was introduced into evidence a letter, dated September 6, 1938, from the then Secretary of Revenue to the Secretary of State of the State of Delaware, to the effect that Pennsylvania weight limitations would not apply to vehicles while in Pennsylvania if they were registered in Delaware and in compliance with Delaware's laws, when carrying loads originating outside of Pennsylvania. The evidence shows that that reciprocal agreement was cancelled as of April 20, 1952, and it appears to have been the only one ever entered into. Plaintiff asserts, however, that, because of the Delaware agreement, Pennsylvania weight laws discriminated unfairly against citizens of other states and that the effect of Section 409(b) of the Motor Vehicle Code was to abrogate weight-limit laws in Pennsylvania and to show that they were not at all related to safety or preserving the roads. It is said that since the Secretary may agree to allow trucks operated by residents of other states to operate in Pennsylvania at the weights allowed by their home states, Pennsylvania might have forty-eight different weight laws, having nothing to do with safety. Thus, the argument goes, the weight restrictions are an invalid exercise of the police power. In reply, defendant insists that, even if Section 409(b) were unconstitutional, it is severable and, therefore, does not taint the entire weight-restriction scheme. Section 409(b) and never been interpreted by the Pennsylvania courts. Consequently, in accordance with Shipman v. DuPre, 1950, 339 U.S. 321, 70 S. Ct. 640, 94 L. Ed. 877, and American Federation of Labor v. Watson, 1946, 327 U.S. 582, 66 S. Ct. 761, 90 L. Ed. 873, we retained jurisdiction of the cause but stayed proceedings in this court to afford the parties an opportunity to obtain a determination of the constitutionality of Section 409(b) and the interrelated weight-limitation provisions by the state courts and, if unconstitutional, a determination as to severability. The defendant in this court brought a declaratory judgment action in the Court of Common Pleas of Dauphin County. That court assumed Section 409(b) to be unconstitutional but held it severable from the remainder of the Code.
The court traced the history of the Motor Vehicle Code, stating that, as originally enacted in 1929, it did not contain Section 409(b) or any similar subsection. That subsection was an amendment, enacted in 1937. Both the 1929 Act and the 1937 amendment contained identical severability clauses.
In 1939, Section 409 was further amended, but not as to subsection (b). Furthermore, the Statutory Construction Act has more to say about severability.
The Dauphin County Court adverted also to the rule that a statute, itself constitutional, is not affected by an unconstitutional amendment. Frost v. Corporation Commission, 1929, 278 U.S. 515, 526-527, 49 S. Ct. 235, 73 L. Ed. 483; Mazurek v. Farmers' Mut. Fire Ins. Co., 1935, 320 Pa. 33, 181 A. 570, 102 A.L.R. 798.
As we have said, we have a state determination of severability but not by the state's highest court. In the state action, the plaintiff was successful and could not, and the defendant did not, appeal. We must accept a state's determination of the severability of the various sections of its own statute. Allen-Bradley Local v. Wisconsin Employment Relations Board, 1942, 315 U.S. 740, 747-748, 62 S. Ct. 820, 86 L. Ed. 1154. Nor may we deviate from that determination because it is not a pronouncement of the highest court of the state. Fidelity Union Trust Co. v. Field, 1940, 311 U.S. 169, 61 S. Ct. 176, 85 L. Ed. 109. But cf. King v. Order of United Commercial Travelers, 1948, 333 U.S. 153, 68 S. Ct. 488, 92 L. Ed. 608. Indeed, we are not only not '* * * convinced * * * that the highest court of the state would decide otherwise,' West v. American Telephone & Telegraph Co., 1940, 311 U.S. 223, 237, 61 S. Ct. 179, 183, 85 L. Ed. 139, but we are convinced that the Supreme Court of Pennsylvania would hold just as the Court of Common Pleas of Dauphin County did.
With Section 409(b) severable from the weight provisions of the Motor Vehicle Code, plaintiff's argument that that subsection made the weight limits bad by showing that they were not based upon considerations of safety or highway preservation fails. The alternative contention, that Section 409(b) plus the Delaware agreement, but considered quite apart from the weight sections of the Code, was discriminatory against Ohio residents, fails for lack of a present showing of harm. That is, the Delaware agreement has been cancelled, and, without it, plaintiff cannot show that he now suffers. This he must do, for the right to relief by injunction depends upon the factual situation as of the time of the decree rather than as of the filing of the bill. United Corporation v. Federal Trade Commission, 4 Cir., 1940, 110 F.2d 473.
Finally plaintiff points to supposedly contradictory provisions as to weight and speed and concludes that the weight restrictions are unreasonable because in reality they are wholly unrelated to safety. For instance, by Section 903(a) the maximum weight of a Class Z gas-powered commercial vehicle is 30,000 pounds, while by Section 903(b) an electrically powered commercial vehicle of the same class may weigh only 26,000 pounds; Section 1002(c), 75 P.S. § 501(c), allows buses to go twenty miles per hour faster than truck-trailer combinations even though the latter may have more tires and brake drums than the bus. But these putative inequities have not been shown to have harmed plaintiff. It may not conjure possible harm to some future plaintiff; it may complain only of those features of the Code that injure it. Watson v. Buck, 1941, 313 U.S. 387, 402, 61 S. Ct. 962, 85 L. Ed. 1416; Commonwealth v. Alderman, 1923, 275 Pa. 483, 119 A. 551. Nor is the Motor Vehicle Code unconstitutional because it does not cure every highway problem at one stroke. Keokee Consolidated Coke Co. v. Taylor, 1914, 234 U.S. 224, 34 S. Ct. 856, 58 L. Ed. 1288; Patsone v. Pennsylvania, 1914, 232 U.S. 138, 34 S. Ct. 281, 58 L. Ed. 539.
Plaintiff has made other contentions which we find without merit.
For the reasons stated, plaintiff's petition will be dismissed at its cost.
1. Plaintiff, an Ohio corporation, is a common carrier by motor truck between points in Ohio and western Pennsylvania under a consolidated certificate issued by the Interstate Commerce Commission.
2. Defendant commands Squadron One of the Pennsylvania State Police and, as such, supervises the administration and enforcement of the Pennsylvania Motor Vehicle Code, 75 P.S.Pa. 1 et seq., over that part of ...