Respondent Washington Metropolitan Area Transit Commission
(WMATC) sued to enjoin petitioner, a concessionaire under contract
with the Secretary of the Interior, from operating "minibus" guided
tours of the Mall, a park area in the center of Washington, D.C.
without obtaining from WMATC a certificate of convenience and
necessity. The WMATC concedes the Secretary's substantial powers
over the Mall under specific authority dating from 1898 and as part
of the national park lands over which he has broad statutory
jurisdiction. WMATC contends, however, that the interstate compact
under which it was established to centralize responsibility over
mass transit service in the Washington metropolitan area implicitly
limits the Secretary's power to contract for provision of tour
services by a concessionaire uncertified by WMATC. WMATC-certified
carriers furnishing mass transit and sightseeing services in
Washington, including D.C. Transit System, Inc., which contends
that its franchise also limits the Secretary's power, intervened as
plaintiffs. The District Court dismissed the suit, and the Court of
Appeals reversed.
Held:
1. When Congress established the WMATC, it did not intend to
create dual regulatory jurisdiction by divesting the Secretary of
the Interior of his longstanding "exclusive charge and control"
over the Mall, and the WMATC is without authority to require that
petitioner obtain from it a certificate of convenience and
necessity. Pp.
393 U. S.
189-194.
2. D.C. Transit's franchise, which protects it from competition
by an uncertified bus line transporting passengers over a given
route on a fixed schedule in areas under WMATC jurisdiction, does
not protect it against competition from petitioner's leisurely
sightseeing service on the Mall outside WMATC jurisdiction. Pp.
393 U. S.
194-196.
Reversed and remanded.
Page 393 U. S. 187
MR. JUSTICE WHITE delivered the opinion of the Court.
The Secretary of the Interior is responsible for maintaining our
national parks, and for providing facilities and services for their
public enjoyment through concessionaires or otherwise. [
Footnote 1] In meeting this
responsibility, he has contracted for petitioner to conduct guided
tours of the Mall, a grassy park located in the center of the City
of Washington and studded with national monuments and museums.
Visitors to the Mall may board petitioner's open "minibuses" which
travel among the various points of interest at speeds under 10
miles per hour. Guides on the buses and at certain stationary
locations describe the sights. Visitors may debark to tour the
museums, boarding a later bus to return to the point of
departure.
Page 393 U. S. 188
Suit was brought by the Washington Metropolitan Area Transit
Commission (hereafter WMATC) to enjoin petitioner from conducting
tours of the Mall without a certificate of convenience and
necessity from the WMATC. Carriers permitted by WMATC to provide
mass transit and sightseeing services in the City of Washington
intervened as plaintiffs, and the United States appeared as
amicus curiae. The concessionaire and the United States
contend that the Secretary's authority over national park lands,
and in particular his grant of "exclusive charge and control" over
the Mall dating from 1898, [
Footnote 2] permit him to contract for this service
without interference. The carriers and WMATC argue that the
interstate compact which created the WMATC implicitly limited the
Secretary's authority over the Mall, and gave rise to dual
jurisdiction over these tours in the Secretary and the WMATC. One
carrier, D.C. Transit System, Inc., also argues that its franchise
limits the Secretary's power. In a detailed opinion, the District
Court dismissed the suit. The Court of Appeals reversed without
opinion. We granted certiorari and, having heard the case and
examined the web of statutes on which it turns, we reverse, finding
the Secretary's exclusive authority to contract for services on the
Mall undiminished by the compact creating WMATC or by the charter
granted a private bus company.
Page 393 U. S. 189
I
That the Secretary has substantial power over the Mall is
undisputed. The parties agree that he is free to enter into the
contract in question. They also agree that he is free to exclude
traffic from the Mall altogether, or selectively to exclude from
the Mall any carrier licensed by the WMATC or following WMATC
instructions. Moreover, the parties agree that the Secretary could
operate the tour service himself without need to obtain permission
from anyone. [
Footnote 3] Yet
the WMATC argues that, before the Secretary's power may be
exercised through a concessionaire, the consent of the WMATC must
be obtained.
This interpretation of the statutes involved would result in a
dual regulatory jurisdiction overlapping on the most fundamental
matters. The Secretary is empowered by statute to
"contract for services . . . provided in the national parks . .
. for the public . . . as may be required in the administration of
the National Park Service. . . ."
Act of May 26, 1930, c. 324, § 3, 46 Stat. 382, 16 U.S.C. § 17b.
Moreover, he is
"to encourage and enable private persons and corporations . . .
to provide and operate facilities and services which he deems
desirable. . . ."
Pub.L. 89-249, § 2, 79 Stat. 969, 16 U.S.C. § 20a (1964 ed.,
Supp. III). Congress was well aware that the services provided by
these national park concessionaires include transportation.
Hearings on H.R. 5796, 5872, 5873, 5886, and 5887 before the
Subcommittee on National Parks of the House Committee on Interior
and Insular Affairs, 88th Cong., 2d Sess., 151-159 (1964). In this
case, the Secretary
Page 393 U. S. 190
concluded that there was a public need for a motorized, guided
tour of the grounds under his control, and that petitioner was most
fit to provide it.
The WMATC, however, also asserts the power to decide whether
this tour serves "public convenience and necessity," and the power
to require the concessionaire to "conform to the . . . requirements
of the Commission" and the "terms and conditions" which it may
impose. Pub.L. 86-794, Tit. II, Art. XII § 4(b), 74 Stat. 1037. The
Secretary's contract leaves the tour's route under his control, but
the WMATC would in its certificate specify the "service to be
rendered and the routes over which" the concessionaire might run
within the Mall. Pub.L. 86-794, Tit. II, Art. XII, § 4(d)(1), 74
Stat. 1037. Moreover, the WMATC might require the provision of
additional service on or off the Mall and forbid the discontinuance
of any existing service. Pub.L. 86-794, Tit. II, Art. XII, §§ 4(e)
and (i), 74 Stat. 1038, 1039. The contract with the Secretary
provides fare schedules, pursuant to statutory authority in the
Secretary to regulate the concessionaire's charges. Pub.L. 89-249,
§ 3, 79 Stat. 969, 16 U.S.C. § 20b (1964 ed., Supp. III). The WMATC
would have the power to "suspend any fare, regulation, or practice"
depending on the WMATC's views of the financial condition,
efficiency, and effectiveness of the concessionaire and the
reasonableness of the rate. Pub.L. 86-794, Tit. II, Art. XII, § 6,
74 Stat. 1040. And under the same section the WMATC could set
whatever fare it found reasonable, although a profit of 6 1/2% or
less could not be prohibited. The Secretary is given statutory
authority to require the keeping of records by the concessionaire
and to inspect those records, and the Comptroller General is
required to examine the concessionaire's books every five years.
Pub.L. 89-249, § 9, 79 Stat. 971, 16 U.S.C. § 20g
Page 393 U. S. 191
(1964 ed., Supp. III). The WMATC would also have the power to
require reports and to prescribe and have access to the records to
be kept. Pub.L. 86-794, Tit.II, Art. XII, 10, 74 Stat. 1042.
Finally, the Secretary is given by statute the general power to
specify by contract the duties of a concessionaire, 16 U.S.C. §§
17b, 20-20g (1964 ed. and Supp. III); the WMATC would claim this
power by regulation and rule. Pub.L. 86-794, Tit. II, Art. XII, §
16, 74 Stat. 1045.
We cannot ascribe to Congress a purpose of subjecting the
concessionaire to these two separate masters, who show at the
outset their inability to agree by presence on the opposite sides
of this lawsuit. There is no indication from statutory language or
legislative history that Congress intended to divest the Secretary
partly or wholly of his authority in establishing the WMATC. When
the WMATC was formed, there was in the statute books, as there is
now, a provision that the "park system of the District of Columbia
is placed under the exclusive charge and control of the Director of
the National Park Service." Act of July 1, 1898, c. 543, § 2, 30
Stat. 570, as amended, D.C.Code § 8-108(1967). He was, and is,
explicitly "authorized and empowered to make and enforce all
regulations for the control of vehicles and traffic." Act of June
5, 1920, c. 235, § 1, 41 Stat. 898, D.C.Code § 8-109 (1967). And
this extends to sidewalks and streets which "lie between and
separate the said public grounds." Act of March 4, 1909, c. 299, §
1, 35 Stat. 994, D.C.Code § 8-144 (1967). [
Footnote 4] The creation
Page 393 U. S. 192
of the Public Utilities Commission -- the predecessor of the
WMATC -- was not intended "to interfere with the exclusive charge
and control . . . committed to" the predecessor of the National
Park Service. Act of March 3, 1925, c. 443, § 16(b), 43 Stat. 1126,
as amended, D.C.Code § 40-613 (1967).
In this context the WMATC was established. After World War II,
metropolitan Washington had expanded rapidly into Maryland and
Virginia. The logistics of moving vast numbers of people on their
daily round became increasingly complicated and increasingly in
need of coordinated supervision. Congress therefore gave its
consent and approval through a joint resolution to an interstate
compact which "centralizes to a great degree in a single agency . .
. the regulatory powers of private transit now shared by four
regulatory agencies." S.Rep. No.1906, 86th Cong., 2d Sess., 2
(1960). These four agencies were "the public utility regulatory
agencies of the States of Virginia, Maryland, and the District of
Columbia and the Interstate Commerce Commission." Pub.L. 86-794, 74
Stat. 1031. The Secretary was not included in this listing.
Moreover, Congress specifically provided that nothing in the Act or
compact
"shall affect the normal and ordinary police powers . . . of the
Director of the National Park Service with respect to the
regulation of vehicles, control of traffic and use of streets,
highways, and other vehicular facilities. . . . [
Footnote 5]
Page 393 U. S. 193
Finally, the House Report on the compact lists the federal
legislation which was suspended to give effect to the compact, and
the laws giving exclusive control of the Mall to the Secretary are
not on the list. H.R.Rep. No. 1621, 86th Cong., 2d Sess., 29-30
(1960)."
There is thus no reason to ignore the principle that repeals by
implication are not favored, [
Footnote 6] or to suspect that the Congress, in creating
the WMATC, disturbed the exclusivity of the Secretary's control
over the Mall either by extinguishing entirely his power to
contract for transportation services or by burdening the
concessionaire with two separate agencies engaged in regulating
precisely the same aspects of its conduct. Congress was endeavoring
to simplify the regulation of transportation by creating the WMATC,
not to thrust it further into a bureaucratic morass. It therefore
established the WMATC to regulate the mass transit of commuters and
workers. A system of minibuses, proceeding in a circular route
around the Mall at less than 10 miles per hour, and stopping from
time to time to describe the sights before disgorging most
passengers where it picked them up, serves quite a different
function. [
Footnote 7] The Mall
is, and was intended to be,
Page 393 U. S. 194
an expansive, open sanctuary in the midst of a metropolis; a
spot suitable for Americans to visit to examine the historical
artifacts of their country and to reflect on monuments to the men
and events of its history. The Secretary has long had exclusive
control of the Mall, and ample power to develop it for these
purposes. We hold that the WMATC has not been empowered to impose
its own regulatory requirements on the same subject matter.
II
If the WMATC is without jurisdiction to issue a certificate of
convenience and necessity in this case, as we have found, then the
D.C. Transit System's interpretation of its franchise as protecting
it from any uncertified sightseeing service on the Mall would give
it an absolute monopoly of service there: the WMATC, lacking
jurisdiction over the Mall, would have no authority to certify
another carrier. The Secretary, if D.C. Transit is right, would
have to take D.C. Transit or no one. Nothing in the statute confers
so rigid a monopoly.
Section 1(a) of D.C. Transit's franchise, Pub.L. 757, c. 669,
Tit. I, pt. 1, 70 Stat. 598, confers the power to operate a "mass
transportation system." [
Footnote
8] That this does not include sightseeing is clearly shown
by
Page 393 U. S. 195
the separate grant of power to operate "charter or sightseeing
services" in § 6, 70 Stat. 599. [
Footnote 9] The section giving D.C. Transit a measure of
exclusivity is § 3, 70 Stat. 598, which protects it from any
uncertified "competitive . . . bus line" for the "transportation of
passengers of the character which runs over a given route on a
fixed schedule. . . ." [
Footnote
10] In determining what is "competitive," one must refer back
to the sections which grant the franchise.
Even if §§ 1 and 3 together would protect "mass transportation"
on the Mall from uncertified competition, and even if § 3 protects
§ 6 activity, it does not follow that D.C. Transit has a monopoly
over sightseeing on the Mall. Section 6 explicitly saves the "laws
. . . of the District of Columbia," including the "exclusive charge
and control" of the Secretary over the Mall. D.C.Code § 8-108
(1967). D.C. Transit admits the Secretary could exclude its
sightseeing service from the Mall; if so, surely the franchise
protection does not extend there. Moreover, §§ 3 and 6 together
cannot confer a monopoly of Mall sightseeing, both because this
would involve an impairment of the Secretary's power under District
law contrary to § 6 and because it would be unreasonable to
construe the protection of § 3 against carriers uncertified
Page 393 U. S. 196
by the WMATC to apply where the WMATC has no powers of
certification.
And even were § 3 so construed, its protection against
"transportation of passengers of the character which runs over a
given route on a fixed schedule" was evidently aimed at commuter
service whose most important qualities are speed and
predictability, not the service here whose most important qualities
are interesting dialogue and leisurely exposure of the rider to new
and perhaps unexpected experiences. The agenda of the tour will be
varied by the Secretary according to the events of the day. The
franchise does not protect D.C. Transit against competition in this
sort of service on the Mall.
We reverse the judgment of the Court of Appeals and reinstate
the judgment of the District Court. If the Congress, which has the
matter before it, wishes to clarify or alter the relationship of
these statutes and agencies, it is entirely free to do so.
Reversed and remanded.
MR. JUSTICE MARSHALL took no part in the consideration or
decision of this case.
[
Footnote 1]
16 U.S.C. §§ 1, 17b, 20 (1964 ed. and Supp. III). This
responsibility is met principally through the National Park
Service, which was created by the Act of August 25, 1916, c. 40, §
1, 39 Stat. 535, as an agency of the Department of the Interior.
Since there is no conflict between them, we shall refer directly to
the Secretary of the Interior, rather than to the Director of the
National Park Service.
[
Footnote 2]
In the Act of July 1, 1898, c. 543, § 2, 30 Stat. 570, Congress
placed the District of Columbia parks under the "exclusive charge
and control" of the United States Army Chief of Engineers. This
authority was transferred in the Act of February 26, 1925, c. 339,
43 Stat. 983, to the Director of Public Buildings and Public Parks
of the National Capital. And in Executive Order No. 6166, June 10,
1933, H.R.Doc. No. 69, 73d Cong., 1st Sess., § 2, this authority
finally devolved upon the agency now called the National Park
Service. Act of March 2, 1934, c. 38, § 1, 48 Stat. 389.
[
Footnote 3]
D.C. Transit System, Inc., an intervening carrier, contends
otherwise. But that position is not directly at issue in our view
of the case.
[
Footnote 4]
The Secretary's power does not extend beyond these limits,
however. In order to institute a transportation service from the
Mall to a proposed Visitors' Center in Union Station, he sought
specific authorization from Congress to add to and confirm his
existing authority and provide a service embracing both the Mall
and its surroundings. S.Rep. No. 959, 90th Cong., 2d Sess., 8-10
(1968). Congress simply directed him to study the transportation
needs of the entire area. Pub.L. 90-264, Tit. I, § 104, 82 Stat. 44
(1968); S.Rep. No. 959, 90th Cong., 2d Sess., 3 (1968); H.R.Rep.
No. 810, 90th Cong., 1st Sess., 5 (1967).
[
Footnote 5]
Pub.L. 86-794, § 3, 74 Stat. 1050. The term "police power" is a
vague one which "embraces an almost infinite variety of subjects."
Munn v. Illinois, 94 U. S. 113,
94 U. S. 145
(1877) (economic regulation of grain storage an aspect of police
power). It is broad enough to embrace the full range of the
Secretary's power over the Mall, which, even prior to the compact,
was ordinarily directed to ends quite different from that of the
surrounding municipalities in regulating their streets. The
Secretary sought explicit recognition of these differences through
use of more specific language in the compact, but his clarification
was not adopted. H.R.Rep. No. 161, 86th Cong., 2d Sess., 20, 48-49
(1960).
[
Footnote 6]
E.g., 41 U. S. United
States, 16 Pet. 342,
41 U. S. 363
(1842);
FTC v. A. P. W. Paper Co., 328 U.
S. 193,
328 U. S. 202
(1946).
[
Footnote 7]
This transportation is undertaken by contract with the Federal
Government to serve a purpose of the Federal Government, and so
might be thought to fall within the specific exemption from the
compact for transportation by the Federal Government. Pub.L.
86-794, Tit. II, Art. XII, § 1(a)(2), 74 Stat. 1036. Moreover, it
is not primarily designed to transport people "between any points",
but rather back to the same point of departure, and might therefore
be excepted from the WMATC's jurisdiction. Pub.L. 86-794, Tit. II,
Art. XII, § 1(a), 74 Stat. 1035. But we find it unnecessary to
reach these arguments, which would involve much more severe limits
on the power of the WMATC throughout the city.
[
Footnote 8]
"There is hereby granted to D.C. Transit System, Inc. . . . a
franchise to operate a mass transportation system of passengers for
hire within the District of Columbia . . . the cities of Alexandria
and Falls Church, and the counties of Arlington and Fairfax in the
Commonwealth of Virginia and the counties of Montgomery and Prince
Georges in the State of Maryland . . .
Provided, That
nothing in this section shall be construed to exempt the
Corporation from any law or ordinance of the Commonwealth of
Virginia or the State of Maryland or any political subdivision of
such Commonwealth or State, or of any rule, regulation, or order
issued under the authority of any such law or ordinance, or from
applicable provisions of the Interstate Commerce Act and rules and
regulations prescribed thereunder."
[
Footnote 9]
"The Corporation is hereby authorized and empowered to engage in
special charter or sightseeing services subject to compliance with
applicable laws, rules and regulations of the District of Columbia
and of the municipalities or political subdivisions of the States
in which such service is to be performed, and with applicable
provisions of the Interstate Commerce Act and rules and regulations
prescribed thereunder."
[
Footnote 10]
"No competitive street railway or bus line, that is, bus or
railway line for the transportation of passengers of the character
which runs over a given route on a fixed schedule, shall be
established to operate in the District of Columbia without the
prior issuance of a certificate by the Public Utilities Commission
of the District of Columbia . . . to the effect that the
competitive line is necessary for the convenience of the
public."
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE STEWART concurs,
dissenting.
We have said over and again that we do not sit to review
decisions on local law by District of Columbia courts where the
reach of that law is confined to the District.
District of
Columbia v. Pace, 320 U. S. 698,
320 U. S. 702;
Busby v. Electric Utilities Union, 323 U. S.
72,
323 U. S.
75.
That law is not only peculiarly local; it is a compendium of a
variety of laws drawn from numerous sources,
*
Page 393 U. S. 197
with which the judges in the District are much more familiar
than are we. No legal problem is more obviously peculiar to the
District than the one posed by the present case. Traffic, including
the movement of tourists, is a special concern of local government.
The District Court held that the Secretary of the Interior, not
WMATC, was the appropriate licensing authority. The Court of
Appeals, by a two-to-one vote, reversed, but did not file an
opinion because "the interests of the parties and of the public
would be better served" by a prompt disposition of the case. The
Court of Appeals en banc, two judges dissenting, denied a petition
for rehearing.
The contrariety of views below suggests that this question of
local law is not free from doubt. Certainly it is not a case where
the decision is so palpably wrong as to make it the exceptional
case for review by this Court. Nor is this question of local law so
enmeshed with constitutional questions as to make appropriate its
resolution here.
See District of Columbia v. Little,
339 U. S. 1,
339 U. S. 4, n. l;
District of Columbia v. Thompson Co., 346 U.
S. 100.
These considerations make much more appropriate here than in
Fisher v. United States, 328 U. S. 463,
328 U. S. 476
(from which the quotation is taken), the following observation:
"Matters relating to law enforcement in the District are
entrusted to the courts of the District. Our policy is not to
interfere with the local rules of
Page 393 U. S. 198
law which they fashion, save in exceptional situations where
egregious error has been committed."
"Where the choice of the Court of Appeals of the District of
Columbia in local matters between conflicting legal conclusions
seems nicely balanced, we do not interfere."
The present case could not be more precisely described.
* The law of the District of Columbia is (1) the principles and
maxims of equity as they existed in England and in the Colonies in
1776; (2) the common law of England and the Acts of Parliament
which were in effect in the Colonies in 1776 (and which were not
locally inapplicable); (3) the laws of Virginia and Maryland as
they existed on February 27, 1801 (2 Stat. 103); (4) the Acts of
the Legislative Assembly created by the Act of February 21, 1871
(16 Stat. 419); (5) all Acts of Congress applicable to the
District.
See District of Columbia Code (1940 ed.), Tit.
1-24, p IX
et seq.; Comp.Stat. D.C. 1887-1889,
pp.V-VI.