Petitions to Review, Enjoin, Set Aside, and Suspend Orders of the Interstate Commerce Commission
Tone and Bauer, Circuit Judges, and Hoffman, Senior District Judge.*fn* Tone, Circuit Judge concurring in part, dissenting in part.
HOFFMAN, Senior District Judge.
These cases are before us on the respective petitions of two nationwide carriers, Aero Mayflower Transit Company, Inc. (Mayflower), and Allied Van Lines, Inc. (Allied), for review of orders of the Interstate Commerce Commission suspending their authority to transport certain household goods. Imposed as penalties for violations of prior suspension orders, the suspensions, which have been stayed pending review, are for 30 days in the case of Mayflower and 15 in the case of Allied. The petitioners do not, in substance, deny the facts asserted against them. The sole question presented is whether these facts constitute "willful" violations under § 212(a) of the Interstate Commerce Act, 49 U.S.C. § 312(a) of the Interstate Commerce Act, 49 U.S.C. § 312(a), which authorizes the Commission to revoke or suspend the transportation privileges of carriers for willful violations of the Act or Commission rules and orders.
The prior suspension orders grew out of Commission efforts to enforce consumer-oriented regulations promulgated by the Commission in 1970. Known to the industry as the "Household Goods" regulations, these regulations, 49 CFR §§ 1056 et seq., contain rules regarding the establishment of rates and disclosure of information to the shipper, and require, inter alia, transportation with "reasonable dispatch" of the goods accepted by carriers for shipment. In 1972, the Commission initiated, pursuant to statutory authority, a series of hearings to determine whether petitioners and other carriers had complied with the regulations. The proceedings as to both Mayflower and Allied were resolved by settlement in which the respective carriers admitted certain facts and agreed to 15-day suspensions of their authority to transport "proviso (2)" commodities, a class of household goods that includes, inter alia, office furniture.*fn1 The Mayflower suspension was to run from December 1, 1972, to December 15, 1972; the Allied suspension from January 15, 1973, to January 30, 1973.
After these initial suspension periods expired, the Commission initiated further investigations to determine whether petitioners had complied with the terms of the suspension orders. A computer print-out of 3100 Mayflower shipments between November 24, 1972, and December 22, 1972, disclosed 34 "apparent violations" to Commission investigators. Mayflower admitted the facts constituting 22 of these. The proceedings were thereupon reopened, and Administrative Law Judge George P. Morin found the 22 violations to be "willful" under § 212(a) of the Interstate Commerce Act. Accordingly, he imposed a second 15-day suspension. The Commission, Division 1, not only affirmed the decision of the ALJ, but also extended the suspension to 30 days.
The investigation of Allied produced 14 "apparent violations" from a computer record of 6,820 shipments. Allied admitted the facts constituting 13 of the asserted violations. After hearing evidence, Administrative Law Judge Alvin H. Schutrumph concluded that the 13 violations were not "willful" under § 212(a) of the Interstate Commerce Act. Upon exceptions taken by the Interstate Commerce Commission Bureau of Enforcement, the Commission, Division 1, reversed the decision of the ALJ and imposed a 15-day suspension of Allied's proviso (2) authority, even though it adopted the findings of the ALJ. In both the Mayflower and Allied cases, the Commission denied petitions for reconsideration and granted stays of the suspensions pending review in this court.
Section 212(a) authorizes the suspension or revocation of the certificate, permit, or license of a carrier upon a showing of "willful failure to comply with any provision of this chapter, or with any lawful order, rule, or regulation of the Commission promulgated thereunder, or with any term, condition, or limitation of such certificate . . . ." While no definition of "willful" appears in the Interstate Commerce Act, in United States v. Illinois Central R.R. Co., 303 U.S. 239, 82 L. Ed. 773, 58 S. Ct. 533 (1939), the Supreme Court construed "willfully" in the context of a statute similar to § 212(a). Illinois Central was an action by the United States to recover a penalty assessed against a railway carrier for violations of the Cruelty to Animals Act, 45 U.S.C. §§ 71-74. Under that statute, no carrier is permitted to confine cattle in railroad cars for longer than 28 hours without unloading them for rest, water and feeding, unless the period is extended to a maximum 36 hours upon written request of the owner. Any railroad "knowingly and willfully" violating these provisions is subject to the payment of a fine of not less than $100.00 nor more than $500.00. In Illinois Central, the respondent admitted the facts asserted against it. The sole question presented, therefore, was whether the carrier had "knowingly and willfully" violated the Cruelty to Animals Act.
According to the Court, which actually adopted in haec verba the definition fashioned by then Circuit Judge Van Devanter in St. Louis & S.F.R. Co. v. United States, 169 F.69, 71 (8th Cir. 1909), "willfully" means
". . . purposely or obstinately and is designed to describe the attitude of a carrier, who, having a free will or choice, either intentionally disregards the statute or is plainly indifferent to its requirements."
United States v. Illinois Central R.R. Co., 303 U.S. at 243. There was no question in that case that cattle transported by respondent had been continuously confined for one hour beyond the 36 hour limit. Respondent's New Orleans yardmaster, who had been informed in advance as to the arrival of the cattle and the appropriate hour for their unloading, negligently failed to notify an employee whose duty it was to carry out the unloading. Although the yardmaster had actually obtained an extra engine and crew for transporting the cattle to the stockyards, the court found that the failure of the respondent to remove the cattle, which had been brought to the yard for unloading, unquestionably disclosed a disregard of the statute and indifference to its requirements. Accordingly, the Court concluded that respondent had knowingly and willfully violated the statute. In the opinion by Justice Butler, the Court recognized its obligation "to give effect to the humanitarian provisions of the statute," and pointed out that as between the government and the respondent, the statutory breach was "precisely the same in kind and degree as it would have been if its yardmaster's failure had been intentional instead of merely negligent." 303 U.S. at 244.
As a matter of law, it is clear that a criminal intent to commit an act known to be wrongful is not necessary to establish willfulness in a civil context. As the Illinois Central Court observed,
"in statutes denouncing offenses involving turpitude, 'willfully' is generally used to mean with evil purpose, criminal intent or the like, but in those denouncing acts not in themselves wrong, ...