(dissenting).
Unfortunately, I find myself unable to agree with the views expressed by Chief Judge Hastings and concurred in by Judge Castle.
The import of the court’s holding is that no actual controversy exists until the ordinance is applied to Transfer. Yet it is abundantly clear from the record and the city’s brief that Chicago intends to enforce the ordinance against Transfer eventually.1 A somewhat analogous prematurity argument was made during the course of the earlier litigation between the parties. The contention was that fed*60eral courts should not undertake to adjudicate the validity of the provision requiring a determination of public convenience and necessity before the issuance of a license until efforts to obtain an appropriate state court adjudication had been exhausted. The Court rejected the argument. City of Chicago v. Atchison, T. & S. F. Ry., 357 U.S. 77, 84, 78 S.Ct. 1063, 2 L.Ed.2d 1174 (1958). More significantly, I think, the. Court proceeded to dispose of the merits of the case despite the objection registered by Mr. Justice Harlan (Mr. Justice Frankfurter and Mr. Justice Burton joining in the dissent) :
Nevertheless, the validity of the ordinance should not be determined until Transfer has applied to Chicago for a “terminal” license and the local authorities have had an opportunity to act on the application. Not until then will it be known whether the ordinance, as it may be applied to Transfer’s operations, trespasses upon paramount federal concerns. Id. at 89, 78 S.Ct. at 1070.
Transfer is operating at the city’s sufferance, without having obtained a license. Before a license can be obtained Transfer must comply with at least one of the questioned requirements of the ordinance, namely, proof that it is financially responsible. In Atchison the issue was whether the City of Chicago could withhold the issuance of a license to Transfer until it had first been determined that public convenience and necessity required additional interterminal service. I see no difference in essence between the requirement to obtain a determination of public convenience and necessity and the requirement that the plaintiff offer proof of its financial responsibility as a condition to the issuance of a license. In either event, the city is asserting a power to prevent an interstate operation, a power which it does not possess.
In Atchison the Court said:
We are fully aware that use of local streets is involved, but no one suggests that Congress cannot require the City to permit interstate commerce to pass over those streets. Of course the City retains considerable authority to regulate how transfer vehicles shall be operated. It could hardly be denied, for example, that such vehicles must obey traffic signals, speed limits and other general safety regulations. Similarly the City may require registration of these vehicles and exact reasonable fees for their use of the local streets. Id. at 88, 78 S.Ct. at 1069.
In my opinion, not only the provision requiring proof of financial responsibility, but also the provisions which require that Transfer maintain its principal place of business in Chicago and that its drivers reside in that city have no relationship to the safety of plaintiff’s operations. These provisions are neither general traffic regulations nor safety measures. They do not fall within the permissible area open to local regulation as delineated by the Supreme Court in Atchison.
I would reverse the order of dismissal.
. Eor example, see the letter addressed to plaintiff by the Public Yehicle License Commissioner quoted in the majority opinion.