INTERSTATE COMMERCE COMMISSION EX PARTE No. MC-3 MOTOR CARRIER SAFETY REGULATIONS-PRIVATE CARRIERS IN THE MATTER OF NEED FOR ESTABLISHING REASON- Submitted December 5, 1939. Decided May 1, 1940 Need found for Federal regulation of private carriers of property to promote Warder Rannells, R. A. Cooke, C. D. Cass, Arthur C. Butler, Frank lag, Jr., G. Frank Morris, Henry P. Kahl, T. W. Mackey, John E. McCullough, Joseph Melvin Bruce, A. B. Pratt, W. R. Olsen, L. C. Westbrook, R. J. Wiley, W. H. Jones, C. O. Bergan, J. W. McCune, R. D. Lytle, W. F. McNaughton, Howard Ranson, Philip Chipman, Donald A. Schafer, William B. Adams, F. E. Landsburg, Charles Baker, Frank C. McColloch, Lee R. Smith, Ralph L. Shepherd, R. A. Paulson, Perry O. DeLap, V. F. Livesay, H. J. Roake, James J. Walton, Dave F. Smith, Edward M. Berol, H. R. Brashear, William P. Knight, A. H. Valentine, Harry H. Haynes, H. R. Risley, Ward Hall, J. J. Deuel, Emuel J. Forman, Irving F. Lyons, L. R. Keith, G. P. Rahe, Edwin G. Wilcox, R. E. Crandall, Louie H. Wolters, A. E. Combs, Charles R. Boyer, W. C. Tesche, R. H. Taylor, H. L. Armstrong, H. C. Smiley, J. W. Wrape, Robert E. Brumby, M. William Lenon, E. P. Smith, L. E. Holder, John S. Mosby, Waldo Frazier, C. Lysle, Reuben G. Crimm, Edgar Watkins, Jr., Ed Greer, John A. Ebel, L. E. Whitbeck, W. E. Albischer, E. F. Scott, Harry F. Suiter, E. J. Gressler, Luke W. Finlay, Jeremiah O'Leary, B. M. Angell, Theodore A. Drescher, O. David Zimring, Walter M. Wharton, George M. Tunison, F. A. Klopping, Charles D. Blaine, E. H. Sanders, M. S. Hartman, B. F. Johnson, Charles A. Stewart, E. W. Thompson, D. R. Simpson, Sam Hanna, Ed. P. Byars, E. L. Hart, C. R. Denk, Jr., Frank J. Mack, C. T. Kilgore, Martin Sack, and Albert F. Beasley for various parties. REPORT OF THE COMMISSION DIVISION 5, COMMISSIONERS EASTMAN, LEE, ROGERS, AND ALLDREDGE BY DIVISION 5: This is an investigation instituted on our own motion for the purpose of establishing for private carriers of property by motor vehicle, if need therefor is found, reasonable requirements to promote safety of operation and, to that end, of prescribing qualifications and maximum hours of service of employees and standards of equipment. Two hearings were held in Washington, D. C., and others were held in New York, N. Y., Chicago, Ill., Minneapolis, Minn., Spokane, Wash., Portland, Oreg., Los Angeles, Calif., Memphis, Tenn., Omaha, Nebr., Dallas, Tex., and Atlanta, Ga. Evidence was submitted by private carriers of property representing numerous industries, officials of various States, and common and contract carriers engaged in the transportation of passengers and property for compensation. In a statement accompanying the notice setting the times and places of hearings, attention was directed to our orders of December 23, 1936, and July 12, 1938. The first order was in Ex Parte No. MC4 and prescribed regulations governing the qualifications of drivers, safety of operation, and standards of equipment applicable to common and contract carriers engaged in the transportation of passengers and property in interstate or foreign commerce. The second order was in Ex Parte No. MC-2 and prescribed maximum hours of service for drivers of such common and contract carriers. The notice above referred to stated that it would be helpful to have evidence submitted as to what changes, if any, should be made in the regulations so prescribed for common and contract carriers in order to make them reasonably applicable to private carriers of property. The examiner's proposed report was duly served, and a number of private carriers of property filed exceptions with briefs in support thereof, and thereafter we heard oral argument. Authority to institute this investigation and prescribe regulations to promote the safety of operation of private carriers of property is found in section 204 (a) (3) of the Motor Carrier Act, 1935, which reads as follows: SEC. 204. (a) It shall be the duty of the Commission— (3) To establish for private carriers of property by motor vehicle, if need therefor is found, reasonable requirements to promote safety of operation, and to that end prescribe qualifications and maximum hours of service of employees, and standards of equipment. In the event such requirements are established, the term "motor carrier" shall be construed to include private carriers of property by motor vehicle in the administration of sections 204 (d) and (e); 205; 220; 221; 222 (a), (b), (d), (f), and (g); and 224. Section 203 (a) (17) of the act defines the term "private carrier of property by motor vehicles" as follows: The term "private carrier of property by motor vehicle" means any person not included in the terms "common carrier by motor vehicle" or "contract carrier by motor vehicle", who or which transports in interstate or foreign commerce by motor vehicle property of which such person is the owner, lessee, or bailee, when such transportation is for the purpose of sale, lease, rent, or bailment, or in furtherance of any commercial enterprise. Wherever the term "private carriers" is used in this report it means private carriers of property as defined in section 203 (a) (17) of the act. This definition includes any farmer who controls or operates motor vehicles in the transportation of his agricultural commodities and products thereof or in the transportation of supplies to his farm. Section 203 (b) (4a). MOTIONS TO DISMISS AND TO HOLD FURTHER HEARINGS Before discussing the evidence in this proceeding, it is necessary to dispose of three motions. During the course of the hearings, motions were filed by the National Council of Private Motor Truck Owners and by the American Bakers Association to dismiss and discontinue the proceedings. While the motions were separately filed and not identical, each was based on two principal contentions. The first contention is that section 204 (a) (3) of the act, when properly construed in connection with section 225 thereof, does not authorize us to establish for private carriers of property by motor vehicle, if need therefor is found, reasonable requirements to promote safety of operation, but merely authorizes us to investigate the subject and report to Congress. The second contention is that if section 204 (a) (3) is interpreted to authorize us to prescribe such regulations, the section is unconstitutional. In briefs filed in support of the exceptions to the examiner's proposed report, and in their oral argument before us, counsel for the National Council of Private Motor Truck Owners and for the American Bakers Association modified their second contention. They direct attention to the well-recognized rule of statutory construction that if a statute is subject to two interpretations, one of which is clearly constitutional and the other of doubtful constitutionality, we should adopt the first interpretation. They then contend that if the statute is construed to authorize us merely to investigate and report to Congress, it is entirely constitutional. On the other hand, they insist that if the statute is interpreted to authorize us to prescribe regulations to promote safety of operation, if need therefor is found, it is of doubtful constitutionality, because, in their view, sufficient standards are not established by the statute to guide us in our findings. We shall discuss these contentions in their reverse order. Many sections of both part I and part II of the Interstate Commerce Act confer authority on us to authorize carriers subject thereto to do certain things if we find them to be in the public interest or not contrary to the public interest or if we find them to be required by the public convenience and necessity. Section 1 (18) of part I provides that no railroad company subject to the act may construct or acquire or operate any extension of its lines or abandon any portion thereof until there shall have first been obtained from us a certificate that the present or future public convenience and necessity does or will require such construction or abandonment. Section 1 (20) provides that we shall have power to issue such certificate if in our judgment the public convenience and necessity so require. Section 206 of part II provides that no common carrier by motor vehicle subject to the provisions thereof, with certain exceptions, shall engage in any interstate or foreign operation unless there is in force with respect to such carrier a certificate of public convenience and necessity issued by us authorizing such operation. Section 207 provides that upon application we shall issue such certificate if among other things we find that the proposed service, to the extent author ized, is or will be required by the present or future public convenience and necessity. Section 209 provides that no contract carrier by motor vehicle shall engage in interstate or foreign commerce unless there is in force with respect to such carrier a permit issued by the Commission, and it likewise provides that upon the filing of an application we shall grant such permit, if among other things, it appears that the proposed operation, to the extent authorized by the permit, will be consistent with the public interest. Section 5 (4) (b) of part I authorizes us to approve the consolidation, merger, purchase, lease, operating contract, or acquisition of control of one or more carriers by railroad, if after hearing we find that, subject to such terms and conditions as we find just and reasonable, the proposed consolidation, merger, purchase, lease, operating contract, or acquisition of control will, among other things, promote the public interest. Section 20a (2) of part I makes it unlawful for rail carriers to issue securities, etc., unless and until we by order shall authorize such issuance. The section further provides that we shall not make such order unless we find that such issue is, among other things, compatible with the public interest. Section 214 of part II contains similar provisions concerning the issuance of securities by motor carriers subject to the act. Section 15 (3) of part I provides that we may and shall, whenever deemed by us to be necessary or desirable in the public interest, require rail carriers to establish through routes, joint classifications, and joint rates. Other instances could be given, but the foregoing will suffice to show that the authority granted us by section 204 (a) (3) to find the need is not unusual but on the contrary is in accord with the long and well established practice of Congress. Some of the sections of part I of the act referred to above have been attacked as unconstitutional on the ground that Congress delegated to us legislative authority without sufficient guiding standards. In no instance were any sections of the act held unconstitutional on this ground. Attention is directed to the opinion of the Supreme Court in the case of New York Central Securities Co. v. United States, 287 U. S. 12. That case involved a lease by the New York Central Railroad of the properties of the Cleveland, Cincinnati and St. Louis Railway Company and of the Michigan Central Railroad Company. In our report and order in that case, 150 I. C. C. 278, we found, as required by section 5 of part I, that the contemplated acquisition by lease would be in the public interest. Our action was attacked on the ground that this provision of section 5 was an unconstitutional delegation of power by Congress, in that sufficient standards were not established for the determination of the term "in the public interest." |