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NATIONAL BUS TRAFFIC ASSOCIATION v. UNITED STATES

November 29, 1962

NATIONAL BUS TRAFFIC ASSOCIATION ET AL., PLAINTIFFS,
v.
UNITED STATES OF AMERICA AND INTERSTATE COMMERCE COMMISSION, DEFENDANTS.



Before Schnackenberg, Circuit Judge, and Perry and Austin, District Judges.

The opinion of the court was delivered by: Per Curiam.

This action to set aside and annul an order of Division 1 of the Interstate Commerce Commission came on for hearing on June 12, 1962, before this statutory three-judge United States District Court upon the plaintiffs' complaint and the defendants' answer thereto. The court heard the oral arguments of counsel for the respective parties, and has considered said arguments and the written briefs of counsel. The plaintiffs and defendants have submitted, jointly, and this court adopts, the following Findings of Fact.

FINDINGS OF FACT

1. The Plaintiffs are the National Bus Traffic Association, an Illinois corporation whose membership is composed of some 350 carriers of passengers by motor vehicle in interstate or foreign commerce; the Greyhound Corporation, a Delaware corporation which holds authority to transport passengers and their baggage, and mail, express and newspapers in the same vehicle with passengers, over regular routes throughout the United States except Alaska and Hawaii; the Transcontinental Bus System, Inc., a Delaware corporation authorized to transport passengers and their baggage, and mail, express and newspapers in the same vehicle with passengers, over regular routes in a twelve-state area; Bluebird Coach Lines, Inc., an Illinois corporation authorized to transport passengers and their baggage, and mail, express and newspapers in the same vehicle with passengers, over regular routes principally located in the Illinois area; and De Luxe Trailways, Inc., an Illinois corporation authorized to transport passengers and their baggage, and mail, express and newspapers in the same vehicle with passengers, over regular routes, principally between Illinois and Missouri.

2. The defendants are the United States of America and the Interstate Commerce Commission (hereinafter called the Commission.)

3. This action was brought by the plaintiffs under 28 U.S.C. Sections 1336, 1398, 2284, and 2321-2325, to set aside an order of Division 1 of the Commission dated July 29, 1960, in its Docket No. MC-119262, Ernest Keller, Jr., Common Carrier Application, 83 M.C.C. 339, which holds that the statutory exemption from the Commission's regulatory authority provided by Section 203(b)(1) of the Interstate Commerce Act, 49 U.S.C. § 303(b) (1), for "motor vehicles employed solely in transporting school children and teachers to and from school" includes vehicles used to transport school children and teachers on educational trips, when such trips are sponsored and paid for by the school as official school functions.

4. The proceedings before the Commission were initiated on November 20, 1929, by an application filed by Ernest Keller, Jr., for a common carrier certificate authorizing the transportation over irregular routes of passengers and their baggage in charter service. A hearing was held before Joint Board No. 68 on January 20, 1960. None of the plaintiffs in this court proceeding participated in that hearing. At the hearing, it was revealed that the applicant's proposed operations would be confined to the transportation of school children and teachers on school-sponsored educational trips. The recommended Report and Order of the Joint Board, issued on January 27, 1960, concluded that the application should be dismissed because the proposed operations were within the exemption provided by Section 203(b) (1).

5. No exceptions were filed to the Joint Board's report, but Division 1 of the Commission entered an order, on its own motion, staying the Joint Board's order. The report and order of Division 1, entered on July 29, 1960, concluded (83 M.C.C. at 340-41):

  "* * * We interpret `to and from school,' as used in
  the exception, as embracing interstate transportation
  to or from any place where such transportation is
  directly connected with and contributes to the
  educational development of school children. * * *
  When such trips, as the ones here proposed, are
  sponsored and paid for by the school as official
  school functions, the transportation provided
  therefor, by a carrier whose vehicles are employed
  solely in transporting school children and teachers,
  in our opinion, falls within the purview of the
  exemption contained in section 203(b)(1). * * *"

7. On November 9, 1960, the National Bus Traffic Association, one of the plaintiffs in this court proceeding, filed with the Commission a petition seeking (a) Leave to intervene in the proceeding; (b) Waiver of Rule 101(e), and (c) Reopening and reconsideration of the report and order of Division 1. As grounds for relief, the petitioner asserted that the decision of Division 1 constituted a new interpretation of section 203(b)(1); and that until such decision was announced, it had no cause to believe that the scope of section 203(b)(1) was in issue in the proceeding.

8. The Commission's order of March 3, 1961, denying the petition for leave to intervene, read in part as follows:

    "Upon consideration of the record in the
  above-entitled proceeding, and of petition of
  National Bus Traffic Association, Inc., dated
  November 9, 1960, for (a) leave to intervene, (b)
  waiver of Rule 1.101(e) of the General Rules of
  Practice, and (c) reopening and reconsideration; and
  good cause appearing therefor:
    "It is ordered, That said request for leave to
  intervene be, and it is hereby, denied, for the
  reason that petitioner has not shown sufficient cause
  to justify its intervention in this proceeding at
  this late date. This action makes disposition of the
  ...

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