# M. & M. TRANSPORTATION COMPANY v. United States

> District Court, D. Massachusetts · January 14, 1955 · 128 F. Supp. 296

URL: https://www.frixlaw.com/law-library/cases/9516566

## Case

- **Full name:** M. & M. TRANSPORTATION COMPANY and Stone’s Express, Inc., Plaintiffs, v. UNITED STATES of America and Interstate Commerce Commission, Defendants
- **Court:** District Court, D. Massachusetts
- **Decided:** January 14, 1955
- **Citations:** 128 F. Supp. 296; 1955 U.S. Dist. LEXIS 3845; 1955 WL 76287
- **Precedential status:** Published
- **Opinion:** Concurrence by Aldrich
- **Judges:** Magruder, McCarthy, Aldrich
- **Cited by:** 14 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9516566

## Opinion text

ALDRICH, District Judge
(concurring).
I am willing to concur, albeit reluctantly, that the complaint should be dismissed. This hesitation is due to the fact that I find it a little difficult to assume as readily as does the majority that there is “not the slightest reason to infer that without [one] finding,” which the court finds to be without substantial support, the Commission’s ultimate conclusion would have been any different. Basically the Commission made few findings of the sort required to support its order. The finding which I understand the majority concedes to be unwarranted in the relatively brief supportative part of the Commission’s opinion appears twice. It is with reluctance that I conclude that without it the ultimate decision would have been the same. Indeed, were it not for the heavy burden on the plaintiffs I would reach the opposite result.
What troubles me more seriously are certain observations in the majority opinion dealing with the meaning and interpretation of § 5’s “consistent with the public interest.”
The Transportation Act of 1920 was a relatively simple affair. The act has grown into its present comprehensive and complex condition sporadically. The almost inevitable result is that an entirely uniform meaning and purpose, if it still exists, is hard to discover. This seems particularly so with respect to the elusive phrase “consistent with the public interest.”
As I read its opinion, the majority is at least receptive to the idea that “consistent with the public interest” as used in § 5 is to be equated with the *303 phrase “not inconsistent with the public interest” — in other words, that it is a mere neutral status. While this is not an impossible result, both the history of the act and such principles of uniformity of construction as it now permits lead me to the opposite conclusion.
Before the Commission under the Transportation Act of 1920 could approve joint ownership or control there had to be a finding that it “will be in the public interest,” or that the “public interest will be promoted.” Ch. 91, § 407, 41 Stat. 481 . In the subsequent amplification and reenactment of these provisions these phrases were displaced with “will be consistent with the public interest,” “to public advantage,” “would not be contrary to public interest.” 49 U.S.C.A. § 5 (2) (b) and (e). The extent that this introduced new meanings is the question. Although the wording was changed, I believe that fundamentally the same result was intended. Not that “consistent with the public interest” means “public convenience and necessity”, or even, as contended by plaintiffs here, “public need,” but that it at least means something positive. In other words, I think “consistent with” means “in the public interest,” and something more than the mere negative “not inconsistent.” The phrase used once, “public advantage,” which the majority distinguishes, I believe is a grammatical, and not a semantic difference.
No purpose will be served by my laboring this matter, except to note that all that is required for the Commission to approve a complete merger under § 5(2) is that it be consistent with the public interest, whereas mere joint agreements under § 5(1) require a showing of better service to the public, or of economy in operation, and that they will not unduly restrain competition. Consequently a neutral interpretation of § 5(2) would seem to make a complete merger more easily endorsable than a joint agreement. I would not care to uphold decisions under § 5(2) that have only neutral findings to support them.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9516566. Public record. Not legal advice.