1. The Interstate Commerce Commission denied an application of a
common carrier by motor vehicle for a certificate of public
convenience and necessity authorizing him to operate over a
designated route, and ordered him to cease operating, holding
inapplicable to his case a provision of § 206(a) of the Motor
Carrier Act, upon which he relied, whereby carriers in
bona
fide operation on
Page 307 U. S. 149
June 1, 1935, and since are relieved from further proof of
public convenience and necessity.
Held that the
construction of the Act in this ruling is reviewable by suit in the
District Court to set aside and annul the order. P.
307 U. S.
152.
2. Under § 206(a) of the Motor Carrier Act of 1935, a carrier
who was in
bona fide operation as a common carrier by
motor vehicle on June 1, 1935, over the route or routes or within
the territory for which application is made and has so operated
since that time is entitled to a certificate of public convenience
and necessity without further proof that public convenience and
necessity will be served by such operation.
Held
inapplicable where operation over the route applied for, between
fixed termini, began in May, 1936, whereas the previous operation
was an "anywhere for hire" service that was abandoned when the new
route was instituted. P.
307 U. S.
154.
3. Where an application for a certificate based solely upon the
exception in § 206(a) of the Motor Carrier Act is found unsupported
by the evidence, the Commission is not obliged to inquire whether
it should be allowed under the general provisions of § 207(a). P.
307 U. S. 156.
23 F. Supp. 810, reversed.
Appeal from a decree of the District Court of three judges which
set aside an order of the Interstate Commerce Commission denying an
application for a certificate under the Motor Carrier Act and
commanding the applicant to cease and desist from operating.
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
The case is here on appeal, under Section 238 of the Judicial
Code as amended, 28 U.S.C. § 345, to review a final
Page 307 U. S. 150
decree, setting aside an order of the Interstate Commerce
Commission, granted by a district court of three judges under the
Motor Carrier Act, 1935, 49 U.S.C.Supp. § 305(h), in connection
with the Urgent Deficiencies Act of October 22, 1913, 28 U.S.C. §
45, 47a.
The application to the special facts of this case of what is
colloquially known as "the grandfather clause" of the Motor Carrier
Act is the substantive question at issue. There is a preliminary
jurisdictional problem touching those phases of the relations of
the Interstate Commerce Commission to the courts which are implied
by the claim that the Commission had issued a "negative order."
Section 206 of the Motor Carrier Act, Act of August 9, 1935, 49
Stat. 543, forbids common carriers by motor vehicle subject to its
provisions from engaging in interstate operations without a
certificate of public convenience and necessity to be issued by the
Interstate Commerce Commission under § 207 of the Act. "The
grandfather clause" of § 206, however, provides that,
"if any such carrier . . . was in
bona fide operation
as a common carrier by motor vehicle on June 1, 1935, over the
route or routes or within the territory for which application is
made and has so operated since that time, . . . the Commission
shall issue such certificate without requiring further proof that
public convenience and necessity will be served by such
operation."
On January 24, 1936, the appellee, Maher, filed an application
under the "grandfather clause" for a certificate to engage in the
transportation of passengers and baggage over U.S. Highway No. 99
between Portland and Seattle and intermediate points. After a
hearing was had before a "Joint Board" composed of members from the
states involved (§§ 203(a)(4) and 205) at which competing carriers
and the Public Utilities Commission of Oregon appeared in
opposition to the application, and after a report was filed by the
Joint Board with the Interstate
Page 307 U. S. 151
Commerce Commission recommending that the application be denied,
the Interstate Commerce Commission, Division 5, on October 27,
1937, found the facts to be as follows: from 1931 until May 29,
1936, the appellee had engaged in
bona fide "anywhere for
hire" operations in Oregon with occasional entries into Washington.
There were rare trips to Seattle, no service at all to most of the
intervening points, and no showing that passengers were transported
on return trips to Portland. On May 29, 1936, the appellee began
his regular route service between Portland and Seattle, which he
conducted regularly since that time. But upon the institution of
the regular route service between Portland and Seattle, the
appellee discontinued the "anywhere for hire" operations
theretofore conducted. Upon this showing, Division 5 found that the
service conducted by the appellee since May 29, 1936, was a
different service from that conducted by him prior to that time,
and therefore concluded that he did not come within "the
grandfather clause." And so the Commission denied Maher's
application and ordered him "to cease and desist" from "all
operations" as a common carrier in interstate commerce. Thereupon
the appellee filed the present suit in the District Court for the
District of Oregon against the United States and the Interstate
Commerce Commission, praying that the Commission's order be set
aside and "any construction thereunder" enjoined. The suit was
disposed of on the pleadings, the answer of the Commission having
incorporated its report and orders. A majority of the District
Court entertained jurisdiction, and held that the appellee was
entitled to an "anywhere for hire" permit under "the grandfather
clause" as well as the regular route permit under § 207. 23 F.
Supp. 810. Circuit Judge Haney found jurisdiction to review the
cease and desist order, although not the order denying the
certificate of convenience and necessity, but sustained the
Commission's view of the Act.
Page 307 U. S. 152
The jurisdictional problem presents another instance of the
Interstate Commerce Commission's having been invested with power to
free a complainant of restrictions placed upon his conduct by a
statutory scheme, and having definitively rejected the claim for
dispensation. The applicant before the Commission then came into
court to "set aside" and "annul" the "order" of the Interstate
Commerce Commission, claiming that the Commission's action was
based on a wrong reading of the authority which the Act of Congress
gave it. To the hearing of such a claim there is no jurisdictional
barrier, as we have held today in
Rochester Telephone Corp. v.
United States, ante, p.
307 U. S. 125.
[
Footnote 1]
On the merits, the case brings into question the validity of the
construction placed by the Interstate Commerce Commission upon §
206(a) of the Motor Carrier Act relieving carriers operating on
June 1, 1935, under the circumstances defined by the terms of §
206(a) from the requirements of § 207. [
Footnote 2] The latter section requires a finding
Page 307 U. S. 153
by the Commission that the granting of such a certificate is
demanded by public convenience and necessity. But, under § 206(a),
the Commission must issue "such certificate without requiring
further proof that public convenience and necessity will be served"
by an applicant who
"was in
bona fide operation as a common carrier by
motor vehicle on June 1, 1935, over the route or routes or within
the territory for which application is made and has so operated
since that time."
By this legislation, Congress responded to the felt need for
regulating interstate motor transportation through familiar
administrative devices, while, at the same time, it satisfied the
dictates of fairness by affording sanction for enterprises
theretofore established. Whether an applicant seeking exemption
Page 307 U. S. 154
had in fact been in operation within the immunizing period of
the statute was bound to raise controverted matters of fact. Their
determination Congress entrusted to the Commission. The legal
issues presented by this record are relatively simple once the
somewhat confused operations of the appellee's business are clearly
defined.
Invoking the "grandfather clause," the appellee sought from the
Commission a certificate authorizing continuance of his regular
service between the fixed termini of Portland and Seattle on U.S.
Highway 99. But the Commission found that the regular operation
over this route had only been instituted on May 29, 1936.
Theretofore, and including the crucial period prior to June 1,
1935, the appellee had been engaged in quite different services
from those for which it asked a certificate -- namely, "an
Page 307 U. S. 155
irregular, so-called
anywhere for hire' operation in Oregon
with occasional trips to points in Washington" over any route
adapted to a particular trip, but using at least for part of the
distance U.S. Highway 99 on trips to Washington. These irregular
operations were discontinued after the appellee's regular route was
established. Applying these findings, which are binding here, the
Commission ruled that the appellee did not bring himself within the
privilege of the "grandfather clause." In making this application
of the statute, the Commission properly construed it.
The recognized practices of an industry give life to the dead
words of a statute dealing with it. In differentiating between
operations over the "route or routes" for which an application
under the "grandfather clause" is made, as against operations
"within the territory," Congress plainly adopted the familiar
distinction between "anywhere for hire" bus operations over
irregular routes and regular route bus operations between fixed
termini. [
Footnote 3] Such
recognition is implicit also in the provision of § 208(a) that
"Any certificate issued under §§ 206 or 207 shall specify the
service to be rendered and the routes over which, the fixed
termini, if any, between which, and the intermediate and off-route
points, if any at which, and in case of operations not over
specified routes or between fixed termini, the territory within
which, the motor carrier is authorized to operate."
Since the new regular route of appellee was not in existence on
June, 1935, and the irregular "anywhere for hire" service was not
"so operated," as required by § 206, when the Commission passed
upon the application for a
Page 307 U. S. 156
"grandfather" certificate, the Commission rightly rejected the
application.
But the District Court set aside the Commission's order on
another ground. It held that, when the Commission rejected
appellee's claim under the "grandfather clause," another provision
of § 206(a) sprang into relevance, to-wit,
"Otherwise the application for such certificate shall be decided
in accordance with the procedure provided for in § 207(a) of this
chapter, and such certificate shall be issued or denied
accordingly."
We do not read the statute as laying a compulsion upon the
Commission to canvass all the questions of public and private
interest that are implicit in an application for a certificate
based on "public convenience and necessity" when the applicant
himself only seeks the favor of the "grandfather clause" and makes
no claim, either before the Commission or in his bill seeking to
enjoin its action, to have the Commission act outside the
"grandfather clause."
Reversed.
[
Footnote 1]
For reasons on which its legislative history appears to shed no
light, the phrase "negative order" crept into § 205 of the Motor
Carrier Act in a context not covering the present situation.
[
Footnote 2]
"Sec. 206. (a) No common carrier by motor vehicle subject to the
provisions of this chapter shall engage in any interstate or
foreign operation on any public highway, or within any reservation
under the exclusive jurisdiction of the United States, unless there
is in force with respect to such carrier a certificate of public
convenience and necessity issued by the Commission authorizing such
operations:
Provided, however, That, subject to section
210, if any such carrier or predecessor in interest was in
bona
fide operation as a common carrier by motor vehicle on June 1,
1935, over the route or routes or within the territory for which
application is made and has so operated since that time, or if
engaged in furnishing seasonal service only, was in
bona
fide operation on June 1, 1935, during the season ordinarily
covered by its operation, except in either instance as to
interruptions of service over which the applicant or its
predecessor in interest had no control, the Commission shall issue
such certificate without requiring further proof that public
convenience and necessity will be served by such operation, and
without further proceedings if application for such certificate was
made to the Commission as provided in paragraph (b) of this section
and within one hundred and twenty days after this section shall
take effect, and if such carrier was registered on June 1, 1935,
under any code of fair competition requiring registration, the fact
of registration shall be evidence of
bona fide operation
to be considered in connection with the issuance of such
certificate. Otherwise the application for such certificate shall
be decided in accordance with the procedure provided for in section
207(a) of this chapter, and such certificate shall be issued or
denied accordingly. Pending the determination of any such
application, the continuance of such operation shall be lawful:
And provided further, That this paragraph shall not be so
construed as to require any such carrier lawfully engaged in
operation solely within any State to obtain from the Commission a
certificate authorizing the transportation by such carrier of
passengers or property in interstate or foreign commerce between
places within such State if there be a board in such State having
authority to grant or approve such certificates and if such carrier
has obtained such certificate from such board. Such transportation
shall, however, be otherwise subject to the jurisdiction of the
Commission under this part."
"(b) Application for certificates shall be made in writing to
the Commission, be verified under oath, and shall be in such form
and contain such information and be accompanied by proof of service
upon such interested parties as the Commission shall, by
regulation, require. Any person, not included within the provisions
of paragraph (a) of this section, who or which is engaged in
transportation in interstate or foreign commerce as a common
carrier by motor vehicle when this section takes effect may
continue such operation for a period of one hundred and twenty days
thereafter without a certificate and, if application for such
certificate is made to the Commission within such period, the
carrier may, under such regulations as the Commission shall
prescribe, continue such operation until otherwise ordered by the
Commission."
"Sec. 207.(a) Subject to section 210, a certificate shall be
issued to any qualified applicant therefor authorizing the whole or
any part of the operations covered by the application if it is
found that the applicant is fit, willing, and able properly to
perform the service proposed and to conform to the provisions of
this chapter and the requirements, rules, and regulations of the
Commission thereunder, and that the proposed service, to the extent
to be authorized by the certificate is or will be required by the
present or future public convenience and necessity; otherwise, such
application shall be denied:
Provided, however, That no
such certificate shall be issued to any common carrier of
passengers by motor vehicle for operations over other than a
regular route or routes, and between fixed termini, except as such
carriers may be authorized to engage in special or charter
operations."
[
Footnote 3]
See Motor Bus & Motor Truck Operation, 140 I.C.C.
685, 699; Coordination of Motor Transportation, 182 I.C.C. 263,
274.
See also Coordination of Motor Transportation,
Sen.Doc. No. 43, 72d Cong., 1st Sess., pp. 34-35; Regulation of
Transportation Agencies, Sen.Doc. No. 152, 73d Cong., 2d Sess., pp.
176, 191-192.