The individual appellees, J.R. Reinhardt and J. Edwin Larson, in their petition for rehearing raise for the first time the contention that the suit against them is barred by the Eleventh Amendment of the United States Constitution. The Eleventh Amendment provides that the jurisdiction of federal courts shall not extend to "any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State." Reinhardt is the Senior Examiner for the State Treasurer and Insurance Commissioner of the State of Florida; Larson is the State Treasurer and Insurance Commissioner of the State of Florida. The plaintiff is a citizen of Georgia. The petitioners argue that under the decisions in Read v. National Equity Life Ins. Co., 10 Cir., 1940, 114 F.2d 977 and First Nat. Ben. Soc. v. Garrison, D.C.Cal., 1945, 58 F. Supp. 972 suits of this nature against a state insurance commissioner fall within the prohibitory provision of the Eleventh Amendment. A multitude of cases have discussed the question raised on rehearing.
But the principle that "a State may enact local laws under its police power in the interest of the welfare of the people, although they affect interstate commerce" until the area of regulation is preempted by Congress, is not applicable where the State or local government "passes beyond the exercise of its legitimate authority, and undertakes to regulate interstate commerce by imposing burdens upon it." First Nat. Ben. Soc. v. Garrison, 58 F. Supp. 972, 984 (S.D.Cal. 1945) and cases cited therein (note and emphasis omitted). The inquiry, then, is twofold: (1) whether plaintiff is engaged in interstate commerce, and, if so, (2) whether the ordinance in question is a regulation which exceeds the exercise of the city's legitimate authority.
PER CURIAM. Upon the authority of Robertson v. California, 66 S.Ct. 1160, the judgment of the District Court, 58 F. Supp. 972, is affirmed.
Only a case of manifest oppression will justify such interference; * * * .’ First Nat. Ben. Soc. v. Garrison, 58 F.Supp. 972, 991 (S.D.C.al.1945), aff'd, 155 F.2d 522 (9th Cir. 1945).
The issue is to be determined by the essential nature and effect of the suit as disclosed by the entire record, and if it appears that the Commonwealth is the real, substantial party against whom the claim is asserted, the jurisdictional attack based upon the plea of sovereign immunity must be upheld even though the Commonwealth is not specifically named as a defendant. In re Ayers, 123 U.S. 443, 492, 8 S.Ct. 164, 31 L.Ed. 216 (1887); Harrison Constr. Co. v. Ohio Turnpike Comm'n, 272 F.2d 337, 339 (6th Cir. 1959); Weyerhaeuser Co. v. State Roads Comm'n, 187 F. Supp. 766, 771 (D.Md. 1960); First Nat'l Benefit Soc'y v. Garrison, 58 F. Supp. 972, 990-991 (S.D.Cal. 1945), aff'd, 155 F.2d 522 (9th Cir. 1946). See Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 89 L.Ed. 389 (1945); Ex parte State of New York, No. 1, 256 U.S. 490, 500, 41 S.Ct. 588, 65 L.Ed. 1057 (1921); Hopkins v. Clemson Agricultural College, 221 U.S. 636, 642, 31 S.Ct. 654, 55 L.Ed. 890 (1911); Ex parte State of Nebraska, 209 U.S. 436, 445, 28 S.Ct. 581, 52 L.Ed. 876 (1908); People of State of Cal. ex rel. McColgan v. Bruce, 129 F.2d 421, 423 (9th Cir.), cert. denied, 317 U.S. 678, 63 S.Ct. 157, 87 L. Ed. 544 (1942); DeLong Corp. v. Oregon State Highway Comm'n, 233 F. Supp. 7, 10 (D.Ore. 1964), aff'd, 343 F.2d 911 (9th Cir.), cert. denied, 382 U.S. 877, 86 S.Ct. 161, 15 L.Ed.2d 119 (1965).
The guides in judging the validity of state legislation with regard to the exercise of its police powers are discussed in First Iowa Hydro-Elec. Coop. v. Federal Power Comm., 1945, 80 U.S. App.D.C. 211, 151 F.2d 20, 26, and First Nat. Ben. Soc. v. Garrison, D.C. 1945, 58 F. Supp. 972, 983-985. They are (1) when state and local laws are in conflict with an act of Congress, the law of Congress prevails; (2) when an act of Congress does not clearly prohibit state action but such prohibition is inferable from the scope and purpose of federal legislation, it must be clear that the state legislation is inconsistent with that of Congress in order to render it invalid; (3) when Congress has circumscribed its regulation of interstate commerce to a limited field the intent to supersede the exercise of police power by the state is not implied as to matters not covered by federal legislation; (4) when a state has enacted laws under its police power although they affect interstate commerce, such laws may stand until Congress takes possession of the field under its superior authority to regulate such commerce, but such federal action must be specific in order to be paramount; and (5) Congressional supersedure of local laws is not to be inferred unless clearly indicated by considerations
d by a public road where he cannot see at least one quarter of a mile ahead, approach and pass the crossing at such speed as to prevent accident in the event of an obstruction at the crossing, constitutes a direct, unreasonable and unconstitutional regulation of Interstate Commerce and is violative of Paragraph 3 of Section 8, Article I of the Constitution of the United States, when applied to a passenger train or freight train engaged in transporting freight or passengers in Interstate Commerce. Seaboard Air Line R. Co. v. Blackwell, 244 U.S. 310, 37 S.Ct. 640, 61 L.Ed. 1160; So. Ry. Co. v. King, 217 U.S. 524, 30 S.Ct. 594, 54 L.Ed. 868; So. P. Co. v. State of Arizona, 325 U.S. 761, 65 S.Ct. 1515, 89 L.Ed. 1915; Colorado Anti-Discrimination Commission v. Continental Air Lines, 372 U.S. 714, 83 S.Ct. 1022, 10 L.Ed.2d 84; Modlin v. Consumers Coop. Assn., 172 Kan. 428, 241 P.2d 692; Banks v. Baltimore Ohio R. Co., Ohio Com.Pl., 145 N.E.2d 350; Lusk v. Town of Dora, 5 Cir., 224 F. 650; First Natl. Benefit Soc. v. Garrison, D.C., 58 F. Supp. 972. The rule in Alabama for the measure of damages for the injury to a commercial vehicle is the damages which would remunerate the plaintiff for necessary repairs in substantially restoring the vehicle to its former condition and the market value of its use or hire during the time required to make such repairs and fit it for business. Wilson Co. v. Sims, 250 Ala. 414, 34 So.2d 689, 4 A.L.R. 1352; 78 A.L.R. 911; Kunkel v. Cohagen, 151 Neb. 774, 39 N.W.2d 609, 612. In arriving at the amount of the plaintiff's damages, the jury may take into consideration, in connection with all the evidence, the amount for which plaintiff's truck was sold after being repaired.
The affidavit was properly signed by W.D. Blackwell. Alpaugh v. Wolverton (Va.), 36 S.E.2d 906; Brown v. The Board of Topeka, 349 U.S. 294, 99 L.Ed. 1083, 75 S.Ct. 753; Civil Rights Cases, 109 U.S. 3, 27 L.Ed. 835, 3 S.Ct. 18; Connally v. General Construction Co., 269 U.S. 385, 70 L.Ed. 322, 46 S.Ct. 126; First Nat. Benefit Soc. v. Garrison, 58 F. Supp. 972; Fletcher v. Coney Island, 134 N.E.2d 371; Gorin v. United States, 111 F.2d 712; Gorin v. United States, 312 U.S. 19, 85 L.Ed. 488, 61 S.Ct. 429; Legal Tender Cases, 79 U.S. 574, 12 Wall. 457, 20 L.Ed. 287; Maryland v. Drews, 5 Race Relations Law Reporter, Summer 1960 Edition (No. 2) pp. 469, 470; Ratcliff v. State, 234 Miss. 724, 107 So.2d 728; Roth v. United States, 354 U.S. 476, 1 L.Ed.2d 1498, 77 S.Ct. 1304; Slack v. Atlantic White Tower System, 181 F. Supp. 124; State v. Clyburn (N.C.), 101 S.E.2d 295; Tamelleo v. New Hampshire Jockey Club, Inc., 163 A.2d 10; Taylor v. State, 194 Miss. 1, 11 So.2d 663, 319 U.S. 583, 87 L.Ed. 1600, 63 S.Ct. 1200; Williams v. Howard Johnson's Restaurant, 268 F.2d 845; Wilmington Parking Authority v. Burton (Del.), 157 A.2d 894; Chap. 246, Laws 1960; 5 Race Relations Law Reporter, Fall 1960 Ed. (No. 3). III.
The "predominant national concern," on occasion (e.g. Southern Pacific Company v. State of Arizona, supra) utilized as a formula for adjudging repugance, may well support the emergency action of Congress in interposing this Act, by subordinating, for a brief season, the narrow issue between local and interstate commerce to realistic considerations which penetrate beneath the words of our Constitution and divine its spirit. Our views find accord in the decisions of other state courts to which we are content merely to make citation: The following state cases discuss the South-Eastern Underwriters case and support our conclusion with reference to same: Prudential Ins. Co. v. Forbes, No. 25,224 in Circuit Ct. of Ingham County, Michigan, decided Aug. 21, 1945; Insurance Tax Cases, 160 Kan. 300, 161 P.2d 726; First Nat. Ben. Soc. v. Garrison (D.C.), 58 F. Supp. 972; Keehn v. Hi-Grade Coal Fuel Co., 23 N.J. Misc. 102, 41 A.2d 525; Ware v. Travelers Ins. Co., 9 Cir., 150 F.2d 463; Mendola v. Dineen, 185 Misc. 540, 57 N.Y.S.2d 219; Prudential Ins. Co. v. Benjamin, 66 S.Ct. 1142; Prudential Ins. Co. v. Murphy, 207 S.C. 324, 35 S.E.2d 586, (S. Car.); State v. Prudential Ins. Co. (Ind. Sup.), 64 N.E.2d 150. It is our considered conclusion that the Congress, by vouchsafing to the states a period of armistice within which to make orderly withdrawal from the field with salvage of its stores, has thereby constitutionally promoted the general welfare.
The following State cases discuss the South-Eastern Underwriters case and support our conclusion with reference to same: Prudential Ins. Co. v. Forbes, No. 25224 in Circuit Ct. of Ingham Co., Mich., decided Aug. 21, 1945; Prudential Ins. Co. v. Murphy, 35 So.2d 586 (So. Car.), decided Sept. 13, 1945. Insurance Tax Cases, 160 Kas. 300, decided Sept. 15, 1945; First Nat. Ben. Soc. v. Garrison, 58 F. Supp. 972, decided Jan. 16, 1945; Keehn v. Hi-Grade Coal Fuel Co., 41A.2d 525, decided Feb. 20, 1945; Ware v. Travelers Ins. Co., 150 F.2d 463 (C.C.A. 9) decided June 29, 1945; Mendola v. Dineen, (1945) 185 Misc. 540, 57 N.Y.S.2d 219. Since the South-Eastern Underwriters decision, however, we can no longer consider state regulation and taxation of insurance upon the Paul v. Virginia hypothesis that insurance is not commerce.