load, assesses the members their proportionate transportation charges, and delivers the merchandise to the respective stores. For example, such associations exist among our members both large and small, in cities such as Detroit, Cleve land, Chicago, Minneapolis, Dallas, Houston, etc. Through the instrumentalities of the nonprofit shipping association, the smaller retail stores are enabled to save freight charges on the transportation of their goods and reap some of the benefits that the larger stores might be able to accomplish by themselves. It is our belief that there are about 30 to 35 nonprofit shipping associations to which NRMA members belong. In practically all cases they belong to only one association, unless they are a multiple group of stores or a chain and then they may belong to several such associations. To sum up, we are vitally interested in a strong and efficient national transportation system, but are very concerned and apprehensive of the injunctive provision we have been discussing. We strongly urge the Surface Transporta tion Subcommittee of the U.S. Senate not to include such a potentially danger. ous provision as now found in amended H.R. 5401. APPENDIX IX WESTERN RIVERS CORP., Pittsburgh, Pa., May 18, 1965. SENATE COMMERCE COMMITTEE, Washington, D.C. GENTLEMEN: I appreciate the chance to appear before you to urge clarification of the language of H.R. 5401, which I understand you are considering under the title of S. 1134. My concern was aroused during an interview with the Acting Director of the Bureau of Water Carriers of the Interstate Commerce Commission. He merely pointed out a possible interpretation of the language of section 312 which could put this company out of business. I cannot imagine that such a result is the intent of the Congress. One and a half years ago, I personally bought a 49-percent, minority interest in the certificate originally issued to River Transportation Co., of St. Louis. Since that time, I have undertaken a valiant labor of reviving that operation, over the stout objection of several of the largest common carriers in the river. It has taken 1 year to publish rates acceptable to the Commission. Though that company has had rates on file continuously, the operation could have been considered dormant. This situation raises two questions. First, what is meant by "willful failure to engage" in the authorized operation. Any cessation of operations is willful. However, the previous test of dormacy used by the Commission was whether or not the cessation was caused by circumstances over which the holder of the authority had no control. This is quite a departure. Second, the new act says that "the Commission shall, * * * in any case of willful failure to engage in any operation authorized by any such certificate for a period of three or more years (whether occurring before or after the date of enactment ***" This, according to the Commission, could mean that if they found any period of 3 years during which the operation was suspended, clear back to 1940 when the original act was passed, they would have to revoke the certificate, in whole or in part. I can understand that some consider the 3-year period adequate for the holder of a certificate to revive his operation if he had shut down his boats for some reason. However, to make this provision retroactive not only reverses timehonored Commission interpretation on which I have relied, but seems patently unfair. I have made a considerable investment in both time and money to revive a dormant operation. I cannot believe that the Congress will drive me into bankruptcy. In Pan Atlantic S.S. Co., 85 MCC 485, the Commission stated clearly that it was without the power to revoke a dormant certificate. Still later, in F.D. 21193, decided March 19, 1965, the Commission stated that "Operations under dormant rights may be revived by the holder at any time." I have known for some time that the Commission has felt some embarassment about the existence of dormant certificates. However, the situation was caused by the "grandfather" provisions of the 1940 act, not by some dereliction of the Commission. We ask the Congress to modify the language of this act to say that the 3-year dormancy period shall be either immediately prior to enactment or at any time thereafter. The Commission has the duty to interpret the act, but their job should not be made intentionally difficult by ambiguous language. Since the layup of a boat is bound to be a willful act, something the boat cannot do by itself, the Commission should have only the responsibility of deciding whether or not the cessation was capricious. With respect to the 3-year period, it should not be permitted to reach back for 20 years. We respectfully ask the committee to revise the language of section 312 so as to remove this potential injustice. Most sincerely, EDMUND D. OSBOURNE, President. APPENDIX X STATEMENT OF WILLIAM H. OTT ON BEHALF OF PRIVATE TRUCK COUNCIL OF AMERICA, INC. My name is William H. Ott. My residence is Des Plaines, Ill. I am general traffic manager of Kraft Foods, with principal offices in Chicago, Ill. I am appearing here on behalf of the Private Truck Council of America, Inc., of which my company has been a member since the organization of the council 26 years ago. I am a member of the council's board of directors and was its first president, from 1939 to 1940. All of my work has been in relation to transportation matters. We very much appreciate this opportunity to appear before your subcommittee and reflect the problems and views of private truck operators. The Private Truck Council of America, Inc., is a national nonprofit membership organization composed of private motortruck operators, or so-called "private carriers of property by motor vehicle," and of other organizations of such operators, including the national trade associations of various industries. The council's membership, directly and through affiliated associations, includes businesses of many kinds which operate motor vehicles as an incident to their primary enterprises. Private truck operations are, for example, conducted by members of the baking, petroleum, chemical, beverage, meatpacking, dairy, and most other industries. The council's purposes include cooperating with Government in the public interest and in the interest of safe and economic operation of private motortrucks, and presenting to Government the views of private motortruck operators. COUNCIL'S OPPOSITION RESTRICTED TO TWO PROVISIONS We appear here in opposition to the proposed provisions for enforcement of the Motor Carrier Act, 1935 (part II of the Interstate Commerce Act) through lawsuits by private persons and through civil forfeitures applicable to innocent and minor violations which are contained in S. 1727 and H.R. 5401. The provision for private lawsuits is in the second full paragraph of section 4 of S. 1727, and there is a similar, although not identical, provision in section 5 of H.R. 5401. The provision for civil forfeitures is section 3 of S. 1727, and there is a similar, although not identical, provision in section 3 of H.R. 5401. We have no objection to any other provisions of S. 1727 and H.R. 5401; we emphatically approve of sections 1 and 2, as they do have considerable merit. Mr. Chairman, in order to conserve the time of the subcommittee and focus attention on the matter of importance to private truck operators, may I read or summarize portions of this statement, and then ask that the remainder be included in the transcript? COUNCIL'S OPPOSITION TO PRIVATE LAWSUITS-SECOND PARAGRAPH, SECTION 4, S. 1727 The concern of private truck operators is mainly over the provision for private lawsuits, which we respectfully urge the subcommittee to delete from any bill to be recommended. We favor effective and adequate administration and enforcement of the provisions of the act; we are for giving the responsible agency, the Interstate Commerce Commission, whatever is needed to accomplish such administration and enforcement. Congress and the Nation have a great investment in the Commission as the specialized expert agency having primary jurisdiction in the regulation of surface transportation, and in the body of law developed through the exercise of that primary jurisdiction by this expert quasi-judicial body. The investment should be protected. We should not compromise our investment by allowing the Commission to be bypassed by private plaintiffs, as the second paragraph of section 4 of S. 1727 and section 5 of H.R. 5401 would do. 49-278-65-20 True, there is a reference to the Commission's primary jurisdiction at the end of section 4 of S. 1727 and another at the end of section 5 of H.R. 5401, but, as I shall explain before concluding, those references in our judgment would be ineffective. It has been urged, in support of the proposed provision for suits by allegedly damaged private parties, that this is needed and good because the Commission itself lacks funds and personnel for enforcement. There are at least two fallacies in that argument. First, it is far better to give the Commission itself whatever is reasonably needed in funds and personnel, rather than to invite all the harm to transportation and the public interest which is inherent in bypassing the Commission; this is a subject I will refer to in more detail later. Second, there already is a procedure by which allegedly damaged private parties can themselves invoke the protection of the act, by initiating consideration by the Commission. Section 204 (c) of the act already provides that: "Upon complaint in writing to the Commission by any person, State board, organization, or body politic, or upon its own initiative without complaint, the Commission may investigate whether any motor carrier or broker has failed to comply with any provision of this chapter, or with any requirement established pursuant thereto. If the Commission, after notice and hearing, finds upon any such investigation that the motor carrier or broker has failed to comply with any such provision or requirement, the Commission shall issue an appropriate order to compel the carrier or broker to comply therewith. Whenever the Commission is of opinion that any complaint does not state reasonable grounds for investigation and action on its part, it may dismiss such complaint." (In An interested party to the case who disagrees with the action of the Commission on a complaint under that section is entitled to review by the courts. terstate Commerce Act, sec. 205 (g), 49 U.S.C. sec. 305 (g); Judiciary and Judicial Procedure, 28 U.S.C. secs. 1336, 2321, et seq.) That is the orderly procedure which is already provided in the statutes, consistently with the doctrine of "primary jurisdiction"1 given to the various agencies set up to deal adequately, as the courts unaided could not be expected to do, with the modern-day burden and complexity of regulation in special areas such as the one with which you and we are concerned here. The clause at the end of section 4 of S. 1727 reading "Nothing in this paragraph shall be construed to * * * deprive the Commission of its primary jurisdiction to determine the validity of an operation in dispute under the primary business test," would not answer these objections. The clause could be construed as only permissive; there would be nothing in it to assure a true "agency proceeding." At best the clause would require litigation to determine whether it is, in fact, permissive or mandatory. "The Commission" could mean in practical fact for this purpose one Commissioner, or even a member of the staff, and there would be no assurance of exercise by the Commission itself of its primary jurisdiction. WHAT DOES PRIMARY JURISDICTION MEAN? The exercise of primary jurisdiction means a quasi-judicial proceeding before the Commission itself, or before its examiner with a right to seek reconsideration by its appropriate division and by the full Commission, with full due process before this specialized and expert body, including the right of interested persons to present evidence and argument and to have the Commission render a decision with findings and reasons based on the open record of that evidence. For a Commissioner, or an employed member of the Commission staff, to decide privately in his office whether to appear actively in a private suit is no substitute for due process before this specialized agency. Indeed, many if not most of the theories which the Commission has rejected in establishing and continuing to apply the "primary business test" in its formal proceedings after according interested parties opportunity to be heard, have been instigated by employed members of the Commission staff and on occasion embraced by an individual Commissioner in a dissenting opinion. With no guarantee that the Commission would truly exercise its primary jurisdiction, it is entirely possible that private suits would be allowed to proceed in courts unfamiliar with this 1 For a good discussion of the doctrine of "primary jurisdiction" and its importance, we respectfully refer members of the committee to Corpus Juris Secundum, vol. 73, "Public Administrative Bodies and Procedure," sec. 40, pp. 347-351. special field of law, in no position to give such cases adequate time and attention, and lacking the benefit of prior findings and determinations by the responsible body of experts. Such would be contrary to the basic principle of administrative law established through long experience. The clause with regard to Commission jurisdiction at the end of section 5 of H.R. 5401, is plainly only permissive; it reads as follows: "(3) In any action brought under subsection (b) (2) of this section, the Commission may notify the district court of the United States in which such action is pending that it intends to consider the matter in a proceeding before the Commission. Upon the filing of such a notice the court shall stay further action pending disposition of the proceeding before the Commission." That clause in the House bill, if it were invoked, would call for a true quasijudicial or agency proceeding before the Commission. But the trouble again is that it would be only permissive, and there is no assurance as to how the decision would be made, or by whom, as to whether to invoke it at all. Again, as with the clause in the Senate bill, it could be one Commissioner, or even a member of the staff, and there would be no assurance of exercise by the Commission itself of its primary jurisdiction. Our organization has had first-hand experience in these matters, having been an intervenor in various cases in which the right of legitimate manufacturers and distributors to operate trucks in the course of and as a bona fide incident to their businesses has been in jeopardy, including the landmark Lenoir, Schenley (Brooks Transportation) and Burlington Mills cases. (Lenoir Chair Co. contract carrier application and Schenley Distillers Corp. contract carrier application, 51 M.C.C. 65, appealed as Brooks Transportation Company, Incorporated et al. v. United States of America and Interstate Commerce Commission, 93 F. Supp. 517, aff'd 340 U.S. 925 (1950); Burlington Mills Corp., transportation for compensation, 53 M.C.C. 327.) Had the now-proposed provision for private suits for injunctions been law at the time those cases were heard, the same attacks on legitimate businesses could have been made directly in the courts, and neither the Private Truck Council of America, Inc., nor the associations of for-hire carriers would have had the right to be heard on the far-reaching issues raised in such cases, even if we had known of them in time. CLEAR AND PATENT VIOLATIONS The limitation of such suits to "clear and patent violation" is no answer to the objections to such a provision. Without benefit of prior proceedings and findings by the Commission itself in the particular case, the court would not have such findings by that quasi-judicial body, but merely the personal view of counsel for the parties as to what is "clear and patent," in the light, if any, of Commission or court opinions in other cases they might cite. What is clear and patent cannot be determined from the pleading; it is a matter of proof of facts. Indeed, under the provision in the bills it would be necessary for the court to try the case in order to know whether it had jurisdiction to try it-a self-contradiction.2 That is so because the issue of whether there is "clear and patent" violation would involve questions of fact or mixed questions of law and fact. The provision that the Commission could appear as of right in any such private action would mean that in some cases, when a Commission representative chose to do so, the court would be given some knowledge of possible relevant 2 "The phrases 'clear, precise, and indubitable' or 'clear and convincing' or 'clear and satisfactory' as used in rule concerning plaintiff's evidence in proceeding to reform written instrument have technical meaning which is that witnesses must be found to be credible, that facts to which they testified are distinctly remembered and the details thereof narrated exactly and in due order, and that the testimony is so clear, direct, weighty, and convincing as to enable jury to come to clear conviction without hesitancy of truth of precise facts in issue." 7 Words and Phrases "Clear," citing Tate v. Metropolitan Life Insurance Co., 27 A.2d 283, 285, 149 Pa. Supra. 558. (Citing also to the same general effect Ferguson v. Rafferty, 18 A.484, 485, 128 Pa. 337, 6 L.R.A. 33; Jermyn v. McClure, 45 A.938, 942, 195 Pa. 245; Jackman v. Lawrence Drilling & Development Co., 187 P.258, 260, 106 Kan. 59; Spencer v. Colt, 89 Pa. 314, 318.) "* * * Absolute certainty is, of course, not required." Op. Cit. citing Jackman, supra. "For purposes of rule stating that findings of District Court are not to be set aside unless 'clearly erroneous,' the quoted words do not have a fixed meaning and their content varies with nature of evidence; ultimately the rule is that finding is 'clearly erroneous' when, although there is evidence to support it, reviewing court entire evidence is left with definite and firm conviction that mistake has been committed." Ibid "Clearly Erroneous," citing Iravani Mottaghi v. Barkey Importing Co., C.A.N.Y. 244 f. 2d 238, 248, and citing other cases to the same general effect. |