Request By:
Mr. Matthew R. Westfall
Middleton, Reutlinger & Baird
Attorneys at Law
501 South Second Street
Louisville, Kentucky 40202
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas C. Jacobs, Deputy Attorney General
You have asked, "Whether 49 U.S.C., subsection 304, et seq. has pre-empted the enforcement of KRS 337.365 against common carriers by motor vehicle subject to the jurisdiction of the Interstate Commerce Commission?"
KRS 337.365 reads as follows:
"No employer shall require any employee to work for more than four (4) hours without rest periods for at least ten (10) minutes. This shall be in addition to the regularly scheduled lunch period. No reduction in compensation shall be made for hourly or salaried employes."
It is the opinion of this office that KRS 337.365 is pre-empted by 49 U.S.C., subsection 304 et seq.
Part II of the Interstate Commerce Act, The Motor Carrier Act, 49 U.S.C. subsection 301 etseq., was passed to establish uniformity of regulation within the industry, for the purpose of "developing, coordinating and preserving a national transportation system by water, highway and rail, as well as by other means, adequate to meet the needs of the commerce of the United States, of the Postal Service and of the national defense." (Act of September 8, 1940, c. 722 Title 1, subsection 1, 54 Stat. 899)
This overriding need for uniformity in the conduct and regulation of interstate commerce is central to the issue of pre-emption by federal law.
Kentucky OAG 77-65 held that:
"The supremacy clause of the United States Constitution mandates the conclusions not only that federal law supersedes and renders void conflicting state law where the federal law is within the realm of powers delegated to the federal government, but also that, where Congress has selected an area within its domain for exclusive federal jurisdiction, the power of the states to adopt even non-conflicting or complementary laws in that area is displaced."
That opinion properly discusses the question of pre-emption:
"It is relatively obvious that where Congress has legislated upon a subject which is within its constitutional control and over which it has the right to assume exclusive jurisdiction and has manifested its intention to deal therewith in full, the authority of the states is necessarily excluded, and any state legislation on the subject is void. . . Moreover, the state has no right to interfere or, by way of complement to the legislation of Congress, to prescribe additional regulations and what they deem auxiliary provisions for the same purpose." [16 Am. Jur. 2d Constitutional Law subsection 207].
"The United States Supreme Court has made clear that "conflict" and "obstruction" (the basis of OAG 76-572) are not the only tests. In Campbell v. Hussey, 368 U.S. 297, 7 L.ED. 2d 299, 82 S. Ct. 327 (1961), the Supreme Court held that a Georgia law relating to tobacco marketing identification was pre-empted by the federal law on the subject even though they did not conflict, saying:
We do not have here the question whether Georgia's law conflicts with the federal law. Rather we have the question of pre-emption. Under the federal law there can be but one "official" standard - one that is "uniform" and that eliminates all confusion by classifying tobacco not by geographical origin but by its characteristics. In other words, our view is that Congress, in legislating concerning they types of tobacco sold at auction, pre-empted the field and left no room for any supplementary state regulation concerning those same types. . . [368. U.S. at 300-301, 7 L. Ed. 2d at 301-302].
* * *
We have then a case where the federal law excludes local regulation, even though the latter does no more than supplement the former. Under the definition of types of grades of tobacco and the labeling which the Federal Government has adopted, complementary state regulation is as fatal as state regulations which conflict with the federal scheme." [citations omitted] [368 U.S. at 303, 7 L. Ed. 2d at 303].
Congress has manifested its interest to occupy fully the area in which K.R.S. 337.365 appears to operate with respect to motor carriers engaged in interstate commerce.
49 U.S.C. subsection 302 (b) (1) provides:
"Nothing in this part except as provided in Section 226A, shall be construed to affect the powers of taxation of the several States or to authorize a motor carrier to do an intrastate business on the highways of any State, or to interfere with the exclusive exercise by each State of the power of regulation of intrastate commerce by motor carriers on the highways thereof." (Emphasis added)
Several courts have properly held that states are pre-empted from operating in areas covered by the Motor Carrier Act. The Supreme Court of Tennessee has held that the states are without "jurisdiction" to act in areas occupied by the Motor Carrier Act. Dunlap v Dixie Greyhound Lines, Inc., 160 S.W.2d 413. (1942)
The taxation and intrastate exceptions to the coverage of the Motor Carrier Act were recognized in Tucker v. Casualty Reciprocal Exchange, 40 F. Supp. 383 (N.D., Ga., 1941).
"It is of course well recognized that where Congress assumes the regulation and control of interstate commerce its power is supreme and any State regulations to the contrary are of no effect. However, the Motor Carrier Act of 1935 is not only a case where Congress does not assume to occupy the entire and exclusive field of transportation by motor carriers, but on the contrary evidences by explicit language an express intention to leave intrastate commerce by motor carriers to the control of the several States. Its declaration of policy, Title 40, subsection 302(c) U.S.C.A., provides: "Nothing in this chapter shall be construed to affect the powers of taxation of the several States or to authorize a motor carrier to do an intrastate business on the highways of any State, or to interfere with the exclusive exercise by each State of the power of regulation of intrastate commerce by motor carriers on the highways thereof."
Thus Congress expressly states the recognized fact that there are two fields of transportation: one interstate, the other intrastate, and that the regulation it provided was confined to interstate commerce. A carrier operating exclusively interstate is subject only to the Acts of Congress and the regulations of the Interstate Commerce Commission thereunder." 40 F. Supp. at 385. (Emphasis added)
In OAG 76-65, the Attorney General cited People of New York v. Dawson, 12 WH cases 582 (1955) for the proposition that a state law regulating the maximum hours of truck and bus drivers could not stand. The court noted that:
"The Interstate Commerce Commission was given exclusive power to regulate contract carriers by motor vehicle and to establish reasonable rules and regulations to have a uniform system in the trucking business between the different states." 12 WH cases at 584
It is our opinion that it was the intent of Congress that uniformity should prevail. Congress occupies fully the area of regulation of interstate trucking. State law cannot concurrently occupy that area. K.R.S. 337.365 cannot be applied to drivers, drivers' helpers, loaders and mechanics and other employees of interstate motor carriers who perform activities affecting the safety of operation of motor vehicles in the transportation on the public highways of passengers or property.