of the Interstate Commerce Act's proviso, 49 U.S.C. § 303(b)
(7a), excepting from its coverage "the transportation of persons
or property by motor vehicle when incidental to transportation by
aircraft." The Commission in two rulings, MC-C-3437 on May 4,
1964, and MC-C-4000 on July 17, 1964, held that transportation of
persons and property by motor vehicle as a result of an
emergency, was "incidental" to transportation by aircraft, and
not "substituted" service as plaintiffs maintain. The court
concludes that the Commission's construction of the proviso is
correct and the relief prayed for in the complaint must therefore
The two plaintiffs are associations; the one, National Bus
Traffic Association, Inc., is composed of some 400 carriers of
passengers, and the other, National Association of Motor Bus
Owners, represents approximately 1,000 bus carriers. Suit is
predicated on the statutes providing for review of the
Commission's decisions, and three-judge court jurisdiction
(28 U.S.C. § 1336, 1398, 2284 and 2321-2325, inclusive). The
decisions reviewed are reported at 95 M.C.C. 71 and 95 M.C.C.
526.*fn1 The Commission's regulations here challenged in part
were the result of notices of proposed rule-making proceedings
(49 C.F.R. § 210.40(b) and 49 C.F.R. § 210.45(b)).
Defendants are the United States of America and the Interstate
Four parties, Airport Transport, Inc., Airline Transport, Inc.,
Airline Limousine, Inc., and Air Transport Association of
America, who participated in the proceedings before the
Commission, were granted leave to intervene in this suit. Their
motions stated that they provide specialized transportation for
airline passengers and baggage from the airports serving
Washington, D.C., and Baltimore, Maryland, areas, including
transportation in emergency situations.
Plaintiffs maintain that "incidental transportation" as stated
in the statutory proviso means local pickup, delivery or transfer
service prior to or subsequent to movement by aircraft and not
intercity line-haul service (Sky Freight Delivery Service, Inc.,
Com.Cr.Application, 47 M.C.C. 229; Kenny Extension-Air Freight,
61 M.C.C. 587; Peoples Exp. Co., Extension of Operation-Air
Freight, 48 M.C.C. 393). They contend that where the
transportation extends from one airport to the territory normally
served by another, it is a substituted motor-for-air line-haul
transportation rather than incidental to air transportation and
its treatment as incidental transportation is without rational
basis and is prohibitory and capricious (Eastern Central Motor
Carriers Association v. United States of America, 239 F. Supp. 591
(D.C. 1965), and Dell Publishing Co. v. Summerfield, D.C.,
198 F. Supp. 843, aff'd 113 U.S.App.D.C. 1, 303 F.2d 766). Lacking
such rational basis the decisions should be set aside (Burlington
Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct.
239, 9 L.Ed.2d 207; Securities and Exchange Commission v. Chenery
Corporation, 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943).
Plaintiffs further assert that the fact the substitution is on
an irregular or sporadic basis and is paid for by the air carrier
does not change the basic nature of the service from that of
line-haul; nor does need of such service justify that conclusion.
Plaintiffs claim that either the air carrier must have
authority to engage in line-haul transportation by motor vehicle
in its own right or the motor carriers utilized to perform such
services must be appropriately authorized to act as such carriers
in their individual capacities.
Interveners present the issue as one of reasonableness of the
Commission's interpretation of the proviso in respect to what
transportation is "incidental" to transportation by air, and
state that an administrative agency's determination is entitled
to great weight and not to be upset unless clearly erroneous
(United States v. American Trucking Associations, Inc.,
310 U.S. 534, 60 S.Ct. 1059, 84 L.Ed. 1345).
It is pointed out by interveners that the section under
consideration has been amended eight times since the 1948 Graff
decision (Theodore Edward Graff Common Carrier Application, 48
M.C.C. 310) and the subsection containing the exemption has been
amended three times, from which fact may be deduced congressional
approval of the Commission's construction (State of Missouri v.
Ross, Trustee, et al., 299 U.S. 72, 75, 57 S.Ct. 60, 81 L.Ed.
Interveners contend that the judgment and expertise of an
administrative determination is entitled to respect and should
not be set aside except for weighty reasons (Billings v.
Truesdell, 321 U.S. 542, 64 S.Ct. 737, 88 L.Ed. 917).
The court is of the opinion that the Commission's
differentiation of emergency situations is not arbitrary or
capricious, but on the contrary is amply warranted. The
inter-city trip, which is not generally "incidental" to the air
transportation, is inescapable when an emergency occurs and the
usual local landing is not possible. The airline absorbs the cost
of the longer journey and does not further discommode the
passenger or shipper.
The arguments advanced by defendants and interveners, outlined
above, are soundly premised. Thus, the fact of re-enactment of
the statute without change after the interpretation here
challenged is legally significant. The Supreme Court in
Commissioner of Internal Revenue v. Estate of Noel, et al.,
380 U.S. 678, 85 S.Ct. 1238, 14 L.Ed.2d 159 (1965), again approved
the principle. It said, at 682, 85 S.Ct. at 1240:
"* * * We have held in many cases that such a long
standing administrative interpretation, applying to a
substantially re-enacted statute, is deemed to have
received congressional approval and has the effect of
While construction of the word "incidental" in the statute
might not call for "expertise" wisdom, nevertheless the
Interstate Commerce Commission is probably far more aware than a
court of the overall considerations applicable to classify a
particular trip accurately. It was recently stated that "Courts
should be `slow to overturn an administrative decision, * * *'"
although they are not to "rubber-stamp" such determinations
(National Labor Relations Board v. Brown, 380 U.S. 278, 291, 85
S.Ct. 980, 988, 13 L.Ed.2d 839 (1965)). The same guide, stated a
little differently, is set forth in Federal Communications
Commission v. Schreiber, 381 U.S. 279, at 290, 85 S.Ct. 1459, at
1468, 14 L.Ed.2d 383 (1965), where the Supreme Court said:
"* * * [I]n providing for judicial review of
administrative procedural rule-making, Congress has
not empowered district courts to substitute their
judgment for that of the agency. Instead, it has
limited judicial responsibility to insuring
consistency with governing statutes and the demands
of the Constitution."
In 1948, the Interstate Commerce Commission, dealt with the
precise issue in the Theodore Edward Graff Common Carrier
Application, 48 M.C.C. 310, and concluded that service growing
out of an emergency was within the exception of the proviso. Its
reasons there stated, at 315-316, are as pertinent today as in