I dissent. The general principles that a state may not unreasonably burden interstate commerce, and that the requirement of a certificate of public convenience and necessity of an interstate carrier is such *Page 320 a burden, are, of course, well settled. The point at issue in this proceeding is, however, simply one of fact, whether the mere carriage of goods which are in the course of interstate and foreign shipment makes petitioner a carrier engaged exclusively in interstate and foreign commerce. In my opinion it does not. In the cases cited in the majority opinion, with one exception, the actual physical operations of the carriers were interstate; that is, their trucks moved between states. In the Galveston Truck Line Corporation case (2 F. Supp. 488), no facts appear in the opinion to show precisely what type of transportation was involved, although the phrase "link in interstate commerce" indicates that it was part of some system of carriers which operated between states. In the instant case, petitioner operates a common carrier system independently of any other carrier of those same goods. His trucks do not go outside the borders of the state. His operations are therefore intrastate. The goods, it is true, are in the course of interstate and foreign transportation, but no attempt is being made to hinder or regulate their movement. The action of the Commission is directed at the carrier and not at the goods. No unreasonable burden is placed upon interstate commerce by regulation of a carrier whose physical operations are entirely within this state.
There is authority which is completely in accord with this view. In Stephenson v. Binford, 53 F.2d 509 [P.U.R. 1932A, 1] (affirmed by the United States Supreme Court,287 U.S. 251 [53 Sup. Ct. 181, 77 L.Ed. 288]), the intervener made the identical contention that petitioner makes herein, namely, that "though he hauls between points entirely within the State of Texas, the goods which he hauls have moved into Texas interstate, and that he hauls them as part of their uncompleted movement". (53 F.2d 509, 511.) The court said (p. 516): "We do not . . . agree with the intervener Finnegan that he is an interstate carrier. His contract is made in Texas; his carriage is in Texas. Whether the goods which he is carrying have really come to rest before he picks them up, or are in the course of continuous transit, the record does not show. But, if it did show the facts to be as he contends, we think it would be a straining of the point to say, because the goods he handles intrastate have come from outside of it, that the requirement *Page 321 that the carrier who contracts wholly in Texas, and who carries wholly there, procure a permit to do so, and submit himself to the regulations which the state requires, constitutes a burden on interstate commerce." It is to be noted that the United States Supreme Court, in affirming the judgment, made no criticism of this language, and presumably the intervener Finnegan is now under regulation as a result of that decision. The Ohio Public Utilities Commission expressed itself to the same effect in the case of In re Railway Express Agency, Inc., P.U.R. 1931A, 177, 193; ". . . the operation of the truck proposed in the present case is purely intrastate, regardless of the fact that it may handle shipments that are in interstate commerce. The various decisions such as the Daniel Ball case and others cited by applicant apply simply to the questions as to whether or not a certain shipment is an interstate movement and do not in any way affect the fact that the proposed operation herein is an intrastate operation of a truck governed by the Ohio Motor Transportation Law and the rules of this commission."
I am satisfied that the decision of the respondent Commission properly characterizes petitioner's business, and I think that the order should be affirmed.
Shenk, J., and Waste, C.J., concurred.