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MIDWEST EMERY FREIGHT SYSTEM, INC. v. UNITED STATES

December 21, 1961

MIDWEST EMERY FREIGHT SYSTEM, INC.
v.
UNITED STATES OF AMERICA AND INTERSTATE COMMERCE COMMISSION.



Before Knoch, Circuit Judge, and Perry and Miner, District Judges.

The opinion of the court was delivered by: Perry, District Judge.

Plaintiff, Midwest Emery Freight System, Inc., seeks to vacate, enjoin, annul and set aside two orders, dated September 6, 1960 and February 1, 1961, respectively, of the Interstate Commerce Commission in Investigation and Suspension Docket No. M-12193 Twine and Crude Rubber — The Emery Transportation Company.*fn1

The action is brought pursuant to provisions of 28 U.S.C.A. §§ 1336, 1398, 2284, 2321, 2323, 2324, and 2325, and 5 U.S.C.A. § 1009. The United States of America is named as a defendant pursuant to 28 U.S.C.A. § 2322.

Plaintiff (a corporation organized under the laws of the State of Ohio and having its principal place of business in Chicago, Illinois) is a common carrier by motor vehicle of various commodities in interstate and foreign commerce pursuant to operating authority granted by the Interstate Commerce Commission. That operating authority, however, did not authorize plaintiff to transport crude rubber.

Common carriers by motor vehicle engaged in any interstate or foreign operation are required to have a certificate of public convenience and necessity issued by the Interstate Commerce Commission authorizing such operations. (49 U.S.C.A. §§ 306, 307) The Interstate Commerce Act provides, however, for certain exemptions, one of which is the agricultural exemption provision involved in the instant case and found in Section 203(b)(6) of the Act. (49 U.S.C.A. § 303(b)(6).)

Before it was amended by Congress in 1958, Section 203(b)(6) read as follows:

    "(b) Nothing in this part, except the provisions of
  Section 204 of this title relative to qualifications
  and maximum hours of service of employees and safety
  of operation or standards of equipment shall be
  construed to include * * *.
    "(6) motor vehicles used in carrying property
  consisting of ordinary livestock, * * *, or
  agricultural (including horticultural) commodities
  (not including manufactured products thereof), if
  such motor vehicles are not used in carrying any
  other property, or passengers, for compensation; * *
  *."

Effective August 12, 1958, Section 203(b)(6) was amended by the passage of Section 7 of the Transportation Act of 1958 (Public Law 85-625, 72 Stat. 573) which provides:

    "Sec. 7. (a) Clause (6) of subsection (b) of
  section 203 of the Interstate Commerce Act, as
  amended, is amended by striking out the semicolon at
  the end thereof and inserting in lieu thereof a colon
  and the following: `Provided, That the words
  "property consisting of ordinary livestock, fish
  (including shell fish), or agricultural (including
  horticultural), commodities (not including
  manufactured products thereof)" as used herein shall
  include property shown as "Exempt" in the "Commodity
  List" incorporated in ruling numbered 107, March 19,
  1958, Bureau of Motor Carriers, Interstate Commerce
  Commission, but shall not include property shown
  therein as "Not exempt": Provided further, however,
  That notwithstanding the preceding proviso the words
  "property consisting of ordinary livestock, fish
  (including shell fish), or agricultural (including
  horticultural) commodities (not including
  manufactured products thereof)" shall not be deemed
  to include frozen fruits, frozen berries, frozen
  vegetables, cocoa beans, coffee beans,

  tea, bananas, or hemp, and wool imported from any
  foreign country, wool tops and noils, or wool waste
  (carded, spun, woven, or knitted), and shall be
  deemed to include cooked or uncooked (including
  breaded) fish or shell fish when frozen or fresh (but
  not including fish and shell fish which have been
  treated for preserving, such as canned, smoked,
  pickled, spiced, corned or kippered products);'
    "(b) Unless otherwise specifically indicated
  therein, the holder of any certificate or permit
  heretofore issued by the Interstate Commerce
  Commission, or hereafter so issued pursuant to an
  application filed on or before the date on which this
  section takes effect, authorizing the holder thereof
  to engage as a common or contract carrier by motor
  vehicle in the transportation in interstate or
  foreign commerce of property made subject to the
  provisions of part II of the Interstate Commerce Act
  by paragraph (a) of this section, over any route or
  routes or within any territory, may without making
  application under that Act engage, to the same extent
  and subject to the same terms, conditions and
  limitations, as a common or contract carrier by motor
  vehicle, as the case may be, in the transportation of
  such property, over such route or routes or within
  such territory, in interstate or foreign commerce.
    "(c) Subject to the provisions of section 210 of
  the Interstate Commerce Act, if any person (or its
  predecessor in interest) was in bona fide operation
  on May 1, 1958, over any route or routes or within
  any territory, in the transportation of property for
  compensation by motor vehicle made subject to the
  provisions of part II of that Act by paragraph (a) of
  this section, in interstate or foreign commerce, and
  has so operated since that time (or if engaged in
  furnishing seasonal service only, was in bona fide
  operation on May 1, 1958, during the season
  ordinarily covered by its operations and has so
  operated since that time), except in either instance
  as to interruptions of service over which such
  applicant or its predecessor in interest had no
  control, the Interstate Commerce Commission shall
  without further proceedings issue a certificate or
  permit, as the type of operation may warrant,
  authorizing such operations as a common or contract
  carrier by motor vehicle if application is made to
  the said Commission as provided in part II of the
  Interstate Commerce Act and within one hundred and
  twenty days after the date on which this section
  takes effect. Pending the determination of any such
  application, the continuance of such operation
  without a certificate or permit shall be lawful. Any
  carrier which on the date this section takes effect
  is engaged in an operation of the character specified
  in the foregoing provisions of this paragraph, but
  was not engaged in such operation on May 1, 1958, may
  under such regulations as the Interstate Commerce
  Commission shall prescribe, if application for a
  certificate or permit is made to the said Commission
  within one hundred and twenty days after the date on
  which this section takes effect, continue such
  operation without a certificate or permit pending the
  determination of such application in accordance with
  the provisions of part II of the Interstate Commerce
  Act."

Under above quoted Section 7(c) of the Transportation Act of 1958, plaintiff filed with the Interstate Commerce Commission on December 10, 1958, an application for a motor-carrier "grandfather" certificate and an application for an "interim" certificate authorizing the transportation, among other commodities, of crude rubber.


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