Before Castle, Circuit Judge, and Perry and Robson, District
The opinion of the court was delivered by: Per Curiam.
This action to set aside an order of the Interstate Commerce
Commission came on for hearing before this statutory
three-judge United States District Court upon plaintiffs'
complaint and defendants' answers thereto, and the court
having reviewed and considered the record consisting of a
certified transcript of the documents and proceedings before
the Interstate Commerce Commission (which copy was offered and
received in evidence); having heard oral arguments of counsel;
and having considered the briefs submitted by counsel, finds
the facts and states the conclusions of law as follows:
1. Plaintiffs are railroad companies. By leave of court the
Contract Carrier Conference of American Trucking Associations,
Inc., and certain motor common carriers were permitted to
intervene on the side of plaintiffs.
2. Defendants named in the complaint are United States of
America and the Interstate Commerce Commission. By leave of
court, Swift & Company, National Food Stores, Inc., and the
Secretary of Agriculture of the United States intervened as
3. This is an action before a statutory three-judge United
States District Court brought under 28 U.S.C. §§ 1336,
1398, 2284 and 2321-2325 to set aside an order of the
Interstate Commerce Commission entered February 16, 1959,
(five Commissioners dissenting) in Ex Parte No. MC-43, Lease
and Interchange of Vehicles by Motor Carriers.
4. The Commission's first order in Ex Parte No. MC-43, May
8, 1951, 52 M.C.C. 675, forbade the practice known in the
transportation industry as "trip-leasing." A large proportion
of the motor vehicle owners engaged in the interstate
transportation of property are not subject to the provisions
of the Interstate Commerce Act which require the securing of
certificates or permits to operate. These may be private
carriers who carry their own property in their own vehicles or
carriers for hire of exempt agricultural commodities. While
the private and exempt carriers may go anywhere, they have
often faced the prospect of empty return trips because of
inability to obtain loads they may lawfully carry. To avoid
empty movements these carriers developed the practice of
leasing their vehicle with a driver to a fully regulated motor
common or contract carrier for one trip in the direction they
wished to go. Transportation under the lease was performed in
the eyes of the law by the regulated carrier under the
authority of his certificate or permit, but the physical
movement of the property transported took place in the vehicle
owned by the private or exempt carrier and operated by his
driver. The regulated carrier paid the owner of the vehicle a
portion of freight charges paid by the shipper. American
Trucking Associations v. United States, (1953) 344 U.S. 298,
302, 303, 73 S.Ct. 307, 97 L.Ed. 337.
5. Trip-leasing, while not illegal in itself, was productive
of violations of the Interstate Commerce Act and of
demoralizing economic effects upon the regulated
transportation industry. 344 U.S. pp. 303-306, 73 S.Ct. 307.
For these reasons, after a long investigation, the Commission
forbade trip-leasing by an order requiring that a lease of a
vehicle with a driver to a regulated carrier must be in writing
and for a period of not less than 30 days during which
exclusive possession and control must remain with the lessee.
344 U.S. pp. 306-308, 73 S.Ct. 307; 52 M.C.C. 675, 744. This
order was sustained in American Trucking Associations, Inc. v.
United States, supra, 344 U.S. 298, 73 S.Ct. 307, 97 L.Ed. 337.
7. Insofar as it is material here, section 304(f) forbids
the Commission to regulate the duration of a lease of a motor
vehicle, with a driver, to a regulated carrier, if the motor
vehicle is owned by a private carrier and is used regularly by
the private carrier in the transportation of
"perishable products manufactured from perishable
property of a character embraced within section
303(b)(6) of this title * * *."
Section 303(b)(6) embraces in part the following:
"* * * `property consisting of ordinary
livestock, fish (including shell fish), or
agricultural (including horticultural)
commodities (not including manufactured products
thereof)' * * *."
The issue in this case is whether "ordinary livestock",
included in section 303(b)(6), are "perishable property"
within the meaning of section 304(f).
8. Swift & Company, an intervening defendant, carries fresh
meat in its own trucks in interstate trips outbound from its
packing plants to distributors, and is a private carrier in
such operations. During 1957, with the purpose of obtaining
inbound return loads, Swift sought arrangements to trip-lease
its meat trucks with drivers to a regulated carrier. The
Bureau of Motor Carriers of the Commission, by a letter signed
by W.Y. Blanning, Director of the Bureau, dated October 3,
1957, advised the regulated carrier that the proposed
trip-leasing was not exempted by section 304(f), stating in
"`Perishable' is construed to mean `inherently
subject to rapid deterioration, decomposition, or
decay.' Thus fresh meat fails to qualify under
the excepted provision for the reason that the
animals from which such meats are produced are
not in their natural form considered perishable."
9. On December 20, 1957, Swift & Company filed a petition
requesting that the Commission issue a declaratory order,
under section 5(d) of the Administrative Procedure Act, 5
U.S.C.A. § 1004(d), that fresh meat and other perishable meat
products are "perishable products manufactured from perishable
property of a character embraced within section 203(b)(6)" of
the Interstate Commerce Act within the meaning of section
204(f)(1) of the Act.
10. The said petition of Swift & Company alleged that it had
been hindered and prevented from trip-leasing its equipment by
the existence of Ruling No. 103, Ex Parte MC-43, issued
January 24, 1957, by the Bureau of Motor Carriers which