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UNITED STATES ET AL. v. J. B. MONTGOMERY

decided: March 23, 1964.

UNITED STATES ET AL
v.
J. B. MONTGOMERY, INC.



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO.

Warren, Black, Douglas, Clark, Harlan, Brennan, Stewart, White, Goldberg

Author: Clark

[ 376 U.S. Page 389]

 MR. JUSTICE CLARK delivered the opinion of the Court.

This appeal tests the validity of an order of the Interstate Commerce Commission issued under § 212 (c) of the Interstate Commerce Act as amended in 1957, 71 Stat. 411, 49 U. S. C. § 312 (c),*fn1 converting the appellee's contract

[ 376 U.S. Page 390]

     carrier permit into a common carrier certificate but limiting its coverage "to movements from, to, or between outlets or other facilities of particular businesses of the class of shippers with whom it may now contract." Appellee contends that this limitation violates the mandate of the Congress in § 212 (c) that any certificate so issued "shall authorize the transportation, as a common carrier, of the same commodities between the same points or within the same territory as authorized in the permit." The Commission answers that the restrictions are necessary to maintain "substantial parity" between the appellee's old and new operations. The District Court held the Commission "without statutory authority to impose the restrictions in question" and set aside the order and remanded the case for further proceedings. 206 F.Supp. 455, 461. Probable jurisdiction was noted. 372 U.S. 952. We affirm the judgment.

I.

Prior to 1957 appellee operated under a contract carrier permit originally issued in 1943 under the "grandfather" clause contained in § 209 (a) of the Motor Carrier Act, 1935, 49 Stat. 543, 552.*fn2 It permitted carriage of: (1) such

[ 376 U.S. Page 391]

     commodities as are usually dealt in by wholesale or retail hardware and automobile-accessory business houses, and in connection therewith, equipment, materials and supplies used in the conduct of such business; (2) such commodities as are usually dealt in, or used, by meat, fruit, and vegetable packing houses; and (3) such commodities as are usually dealt in, or used, by wholesale and retail department stores. The permit contained a "Keystone restriction"*fn3 which limited appellee to transporting such commodities only under contracts with persons operating the businesses specified. It permitted the carriage of a wide variety of commodities within specified territories, without limitation of consignee, but only for those shippers under contract with appellee and engaged in the specified businesses.

In 1957, at the behest of the Commission, the Congress amended the statutory definition of a contract carrier, § 203 (a)(15) of the Interstate Commerce Act, so as to thereafter read:

"The term 'contract carrier by motor vehicle' means any person which ...


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