Jurisdictional Statement — East Texas Lines v. Frozen Food Exp.

» &

N THE

Supreme ais of the United Siates

Octobe Y Term 1959

- No.. 162

East Texas Moror FREIGHT LINEs, INc., GILLETTE

- Motor Transport, Tne, Fors Trrek. Lives, Txe., -"

AMERICAN -TRUCKING AssoctaTions, INc., ET AL,

: ) ' Appellants

Vv.

: ¢

‘F'rozEN Foop Express, SECRETARY OF AGRICULTURE OF

tHE UNiTep STATES,.ET AL., Appellees’

‘Appeal trom the United States District ‘iden for the

Southern District of Texas, Houston concert ,

Bae. Si .

JURISDICTIONAL STATEMENT |

5 sae | Davin G. MacbonaLp .

: Francis W. McINERNyY . ‘

504 Commonwealth Buildin e -

“Of Counsel: _. ° Washington, D. C.

Mac eay, LYNCH AND Peter T. Be ——

RMBONALD Fritz R. Kaun

Washington, D. aa _» 1424 Sixteenth Street, LN W.

‘Canfaway, Reep, Kinwetn .° Washington, D. C.

~ AND BRooKS ee Wee ais

‘ . we «CLARENCE. R. Topp

sewies ae ©. *° “Dare C. Dien

. Reeper, GisiLxk AND GRIFFIN .944 Washington Building

Kansas City, Missouri Washington, D. C:

Pra ° s \ :

we Pusss or Byron S. Adams, Wasmncrok, D.C.

oe on INDEX -

gy.

Opinions Below FR | EAE Ce ere eee ear a” ae

e Jurisdiction *......5... kthcelane sue vaaeweud knees 2

Statute Involved ....... 8.00... be SpA vee ei bbe eens 3

7 Questions Presented ‘ : RAR Tre eae pee ae’. ii ~ ae

_. Statement of;the Case ....... Vanths ee Pan Sage eye

‘ The Questions are Substantial + + iv kkneaaN Me eens

(a) The Need. for Cc ertainty Pe seers ne aye

“bd. reese ‘of ¢ ‘onimission ‘Adniinistration— 30- +‘

Be cena soa ak oe Vetdst pao neecsaewresea”' 2H

(a) The Questions Presented Are Not Foreclosed

By Prior’Decisions of This Court .....0..6.,

‘(d) The- Questions Presented Require for Their

_ > Resolution Plenary Consideration With Briefs

’- -- + onthe Merits and Oral Argument ...... _

aR

Boles There i is Conflict on fhe Question Presented

Among the Fifth, Sixth and Fighth ‘Cir.

cuit-Courts of Appeal .i2...¢s.03.02...

(2) The District Court’s Decision Reverses Set-

tled Admjnistrative Construction .......

_ (3) Dispositive Action on -the Questions Pre:

sented Will Tend-to Lessen Further Liti-

_ gation Before the. Interstate Commerce

Cominission and the Federal Courts ....

Craidluaion (hk Wawa rere 4 deans ue cence’ veeges es er

_ Certificate & Service ........... se cepecceseeeoedece

ee Appendices :

Appendix A: Opiniqn of the United States District

+ ROPE TCC CEL YT Pee ETE TT EEC eT Tee T ES

Appendix B: Report and Ordeg of the Interstate

‘Commerce Commission ..... os 0cecceseccccenics

Appendix (*: Judgment of the United States Dis-

trict fore Pee nie 0'd0406 FRSA steeees

#9

i ; ’ Index Continned

oT ABLE OF AU THORITIES

cation, 26 M.C.C. 615 (Nev ember dh ses, eutus & be ;

age .

13

_ Jpiciat. Sincnianenn + ITRD: $8 Pp

Aleoa S. S. C8. Vv. U. S., 338 {: S. #21, 423; 70 Ss. Cty

= 2; i a i Oe ON Kai's aed 004 Kis cad kek br cerns ° 21

American Trucking Ass'n, ia ¥.. Se 344 US. °

Sa Se OR ae ek a nk wwe nc

- Commissioner v.South Texas Lumber C ompany, 333

U.S. 496-500; 68.8. Ct. 695; 92 L Ed. Ree ee 20)

_ Frozen Food Express, et.al, v. U. S., et al (C ‘wil.

Action 8396) 128 F. Supp. 374, 379 2.20... Feces 2

Frozen Food Express, et al, v. U. S., ‘et al (Civil ia

Action No, 8285) 128 F..Supp. 374; 877 2.2.2.0... . &

. LC.C. vy. Kroblin, 133 F. Supp. 599; 212 F. 2d 555:

_ (Cert. denied October 14, 1954) 99 L. ‘Kd. {Advance

ae EE ERM RG ka Reh see's eT Petry OT aa 8, 10, 15

1.C.C. v. Weldon, 90-#. oe $73 ere te

- Ludecke v. W atkins, ; 335 US . 160, 162;.68 8. Ct. 142 93

OL NE ES CCS DCC Che Sa Pah Casts ae Oak wh 21

Radio ior ho Cape of Pern v. U.'S.; 341 U. S. 412}

71S. Ct. S06 ; i es bso a es ees

Southwestern: Trading Company v. U. S., 208 Fy 2d

PS eae Aah ESRC ae ce aw hn ae eke ss ea

Sunal v. Large, 332 U. S. BE as Ci hd eek ows ie on

U.S Baltimore and Ohio R. Co., 333 U. S. 169; . .

43's. Ct. le Be | NA nee arene” 3

' United States v. Carner, 260 U.S. 482, 490 ........ +B

U. S..v. Hancock. Truck Lines, 324 U.S. 774; 65'S. Ct.

mee ot BS Ga REE ee ree 3

" . U.S. v. Reed Procking’ Co., Inc. (not reported) . 16

i sg 8 eat os 2d 367 (Cert. — October

- 8, 1051) 342. 2 SS Bea rete 17

Inrerstate C OM MERCE CS atatisston

Cases ‘CITED:

Determination of Exempt Agricultural ( ‘ommodities,

eS ee ee Aa aot ;

East Texas Motorg# reight Lines, Ine. et al. v. F rozen.

Food: Express, 62 M.C:C: 646°. >... 0.6.2.6 c. ans §

Frank Battaglia Common Carrier Application; eae

; ls et SE <5 ceeds nukiey ch wees oO 12

Monarch Egg Corporation: ‘Contract Carrier, Apph-

12

He 3

ctr, -~ Index Continued

iii

Bove Porras 3 ae. ia

Monareh F ge Corp. Contract Carrier Ap pieation, .

AE MCCS 15 (October 1944). 02.2... er AZ.

Ollin We Allen Common’ Carrier Appilie ation, 2

MLCLC. 26 (February 1941) AP a ek PS. Breen 7 Oe

Ae a McCarthy Contract Carrier Application -— .

MOC, G15 (Match 19048) 2 oo ou. icc, Seika cs 12

W.W. Hughes Refrigerated Se ‘r¥ice, MC “105782, Sub’

3 Al Ss apes of W, W, Hughes, a b/ a (Pe ae) 10

the - §TATUTES GC ITED. -

‘Administrative Procedure Act. : ste

Title 5 U.S. Code Section. 1009 (sb 5 dee pat enec= oe

ericultural Adjustment Act a aes

Title & U.S. Code Se@tion 1291 -........... eee

Be nited. States Judicial Code | eat eke .

Dies V US. Code Sevtions pO le a one ae 3

OORT reree a.

3 2. re A ETaS Poe

f 2284 eS Oe a6 hee ee ) 2.

| cas | ys > | re 2

- Interstate Commerce Act

Title 49 U.S. Code e : ate .

Sections 301 <.,..... ECT SET eT Tree er 4

oN “303. (b) (6) pew 4, 5 3, 6, 8, 9, 18, 14, i3 20, 21

7 oe. | eereee nS Oe eee ON AER H

eee ee xesdaaadsiaaee ci. ee

re ree rey Pe ere 4

; 8 | RSs a are eae

: ee Sess bw hs kee ble eee eee 4

TEXT BOOKS CITED

Jericititinn of Supreme Court of the United States °°.

Robertson and Kirkham. (1951 ed.) .........-... et

. oe : =

r - IN THE os iN

- Supreme ‘Court of the United States

\ ~ October Term If 155.

-No. 162

<—

ar

Fast TEXAS Moror Frey “LINES, ' ING., GILLETTE

Motor—Frtnxsront, TNC: STONES | TRucK Luines, Ine.

AMERIC. AN TRUCKING ASSOCIATIONS, INC.. ET Al...

| Appellants )

y, bad

FE ROZEN Koop Ie XPRE SS, ‘SECRETARY OF’ Aturicu LTURE OF

THE U -NITED STATES, EP AL., Appellees.

—_-——-

Appeal from the United States District Court for ii

Soufhern District of Texas, Houston Division

*

JURISDICTIONAL. STATEMENT

In accordance with Rule 15 of the Rev ised Rules of

the Supreme Court of. the United. States, East Texas

Motor Freight Lines, Ine., Gill ette Motor Transport,

Tne., Jones Pruck Lines, Ine. American Trueking Asso-

ciations, Inc..°’ The Common Carrier Tr revular Route

’ Conference of. American True ‘king Associations and

Phe Contract © arrier ‘onferene e of Americ an Truck-

r)

ied ores 2 . “

anne <a

ing Associations, all inte#venors in defense of the ‘order

of the Interstate Commerce Commission in the Court

below, present this their statement as to Jurisdiction,

and in suppert thereof, respectfully state:

* OPINIONS BELOW

‘(a) The opinion of the: Gnited States District C ourt ,

for. the Southern District of Texas, Houston Division,

is reported at 128 F.Supp. 374. That opinion is re- -.

printed herein. as Appendix a «ae vee

‘The report. and order—of. the lataeseite Gusitneres

~ Commission, which vas the-subject matter-of the. suit

~ in the lewer court, is reported at 62 M.C.C, 646, That

_ report is reprinted herein as Appendix ‘'R”.

JURISDICTION |

(b) (i) Appellee, Frozen Food Express, instituted”

the _suit: before the United ° States District Court on

~ August 2, (1954, under the provisions of Sections 1336,

1398, and 2321 to 232¥ of the Judicial Code (28 U.S.C.

1336, 1398, 2284 and 2321 to 2325) arid Section 10 of

the Administrative: Procedure Act (5 U.S.C. 1009).

Appellee, The . Secretary of Agriculture for thé

United States moved for leave to intervene and filed

his complaint against the Interstate Commerce Com-

mission under the provisions of Section 205 (g) of the ~

Interstate Commerce Act (49 U.S!C. 305. (g)), Sectién |

©. 10 of the Administrative Procedure! Act, (5 U.S.C.

1009) and Sections 1336, 1398, 2284 and 2321.to 2325 -.

-inclusive, of the Judicial Code, (28 U,S.G, 1336,) 1398,

2984 and 2321 to 2325, and Section 201 of the Agrieul-

tural Adjustment Act of 1938 (7 U.S.C. 1291). The’

District Court allowed intervention by the See retary

of Agriculture. Fi ioe |

cd

.

og

. . >

; ° >

This’ appeal seeks review oT the. action of the Die

‘trict Couft enjoining the Inte rstate Commerce Com

mission from enforcing that portion of the Commission |

_ order yequiting Frozen Food Express to cease and de-

sist from transporting fresh and frozen dressed poul-

try jn interstate commerce: for compensation to, fren

_and between points where the latter does not hold.op-

serating authority. isitek by the Interstate. oo

_ Commission... :

(il) The judgment on the action-avas iieied by the .

‘District Court on February: 23, 1955 and is reproduced

herein as, Appendix “C%.* Noticé of Appeal to this

. Court was filed on Apri 20, 1955, with the Clerk of

the U nited States District C ourt for the Routwerd Dis-

trict of Texas.

(iii) The jurisdicton of this Court is invoked tinder

‘the provisions of Dine We" 1253. of. the J udicial Code (28 ©

U.S.C. 1253).

(iv) The’ jririadictinn of this Court is believ ‘ed to be

sustained by a number of decisions of this Court, in-

cluding:

tC =, 5 Baltimore and Ohio R. Co:, 333 U.S. 169

‘@ S, Ct. 494; 92 L. Ed. 618

| v 5S. Vz Hancock Truck Lines, 324 USS. 114: 65

-, $. ct. 1003;89 Le Ed. 1357) - >

Ree ee of America v. U.§., 341 US.

4:71 S. Ct. 8063.95 L. Kd. 1062.7 | 4

American ‘Trucking Ass’n. Inc., v. U. S., 344

US, 298; 73.8. Ct. 307; 971. Ed. 337

.

STATUTE INVOLVED

©The essential issues dec cided by the Interstate Com-

merce Commission and by the lower court in the pro-

ceedings giving rise to this appeal required construc. |

e,

o

cee 4 Se : . +

° - . i sn

tion and application of Sec ‘Lion 203 (b) (6) of Part [I ..

: _rvfthe Interstate C ‘ommiere e Act. (49 U.S.C. 303(b).(6),

A number of the prov isions of the Interstate Goimmerce

- Act, (49 U.S. Code, 301, et Seq) are involved in this

appeal, including 203(h) (6), 206(a), 209(a), and

222 (b). (49° U.S.C. 303 (b) (6), 300 (a.), 309(a) and

.322(b) ). Thé N vational Transportation Policy. and. eer-. °

tain terms of Section 203(b) €6), being direc tly hefore,

this court for ait. eran and appecasen, ape set

. forth verbatim.

e ° :

Se dis ; . <a 7 wf

4

Jf

N ATIONAL TRA NSPORTATION® Po Icy,

Tt is hereby. dee clared ti be Ahe ational trins- le

- portation policy of the Congréss to provide for fair

and impartial regulation of all modes of transpor-

~ tation subject to the provisions of this Acf, so ad-

ininistered, as to recognize and preserve the inher-

ent advantages of each; to promote safe, adequate,

economical, and efficient service aiid: foster Sqund |

economic ‘conditions in transportation and .among »

the several carriers; fo encourage the -establish-

ment and maintenance of reasonable charges for

transportation services, without unjust discrim-

inations, undue preferences or adyantages, or un-_ -

fair or ‘destruc tive competitive practices; to ¢o-

operate with the several States and the duly au-

thorized officials thereof; and to. encourage fair.

wages and equitable working conditions;—all to

“the: end of developmg, coordinating x, and preserv-

-ing a national transportation system by water,

highway, and rail,as well as other means, adequate

to meet the needs of the: commerce of the United

States, of the Postal Servi ice,: and of the national

defense.: All of the provisions of this Act shall ‘be

administered and enforced wi ha wiew to COLT y-

ing-out the above declaration of poliéy. (Em-

phasis added) ~

“

°

4.

_ > Se) ; : e. o 4s

8

The ‘Agricultural Commodity Exemption -

es

‘Title 49 U.S: Code Section 308 (b) (6): - rs,

Nothing ine this part, except the provisifins of

Section, 204 relative to qualifications, and maxi--

mum: hours of service of en jloyeesgand safety

of operation ‘or standards of ‘equipment ‘shall be

" vonstrued to include * * * (6) motor vehicles used.

in-earrying property consisting of ordinary live-

stock, fish (ineluding shell fish), or agric cultural

| (including, horticultural] ) commodities (not inelud-

ing manufactured products thereof), if such motor

vehicles a used iy carrving any other prop-°

erty, or passengeys, for conspensation ie”

QUESTIONS PRESENTED

| (ce) The questions presented by this appeal are: :

(1) Whether the United States District C ourt erred

-in holding that fresh and frozen dressed poultry

are agricnitural products and not manufactured ¢

products thereof, and, therefore within the ex-

emptive language of Section 2033 sit teat of the

Interstate Commerce Act. ©

(2) (a) Whether the United States. District Court

exceeded its authority in setting aside, in part,:

ancorder of the Interstate Commerce Commis-.

sion which was supported by adequate findings

‘of fact, in tuth supported by substantial ey idence,

and correct con¢lusions of law. *

(bd). Subsidiary to the pfeceding questions is

whether the Commission’s order. entered in’

Docket No. MC-C-1605—East Texas Motor

‘Freight Lines, Inc. et al. v. Frozen Food Ex-

press, 62 M.C.C., 646 is supported by substantial —

evidence, adequate findings of .fact and correct

conclusions of law.: .. °°

6

&

ye

t

eo

&

“2 e + . e * . < =a

. , . y e

£3) W hether the U nlied:& Slates District Court erred

' in failing to sustain the’ interstate Commerce

Conimissfon’s finding of- fact that fresh and

e .~frézen dressed poultry constituted “manufae-

“tured” products of an_agricultural commodity

and hence do not fall withili the -exémption of

* Section 203(D) (6) of the Interstate Comme ree

! Act.

STATEMENT SOF THE CASE

ie December 23, 1953, East. Texas Motor F reight”

Tiniad. Gillette Motor Transport, Ing., and Jones Truck

Lines, Inc., appellants herein, pursuant to the provi-

_ $10Ns: of Section 204(¢) of Part IL of the Interstate

' Pommekes Act. (49 U.S.C. 304(«€) ), filed with the Inter-

state Commerce Commission their complaint alleging

that Frozen Food Express, appellee herein, Was en-

gaged ini the for- hire interstate transportation of fresh

and frozen meats, meat products, ‘and dressed poultry,

to, from, and -between points ‘in the U nited States not

authorized in its certificates cf public convenience and,

“necessity. The Commission was requested to issue an -

order requiring Frozen Food Express to cease and -

, desist from the allegedly unlawful-. operations.: On

"February 25, 19547 all parties to the complaint pro-

ceeding before the Commission submitted a stipulation

.of facts, accompatied by certain documentary evidence

in exhibit ‘form * The stipulated facts and exhibits

constituted the re@ord both before the C ommission and

- «the District Court.

The ultimate issue. before -the Commission was

whether the.operations complained of eame within the

exemption provisions of section 203(b)(6) and could,

as a result, be performed lawfully in the absence of a

ae

A

< . 7 . e - o 3 .

ce ertitic ate of publie-conve nience and necessity or permit

from fhe Commission. By -report, dated daly 13,

1954 (Appendix B); the Commission found and con-:

Aude Behm |

; (1) that tlie exemption of ‘vehicles used in ear-

° rying *tordinafy livestock’? does. not éxtend to

tresh.or frozen meats, the preducts of the slaughter

of sve ‘h livestock ; 13 that the exemption of ve-

—hicles used in ‘carrving tagriciiltural CGineluding:

horticultural) cammodities (not including the

manufactured products thereof)’ does not em--

brace vehicles used ‘in carrying ordinary livestock

in view of the’ speci ifie: exemptions in the same

section °of vehicles used in earrving that com-

modity; and.(3) that ae perma te, of vehicles

.° used in-carrying “agricultural (including horti-

@ultural ) commodities (not including manufae-

tured products: thereof)}’’ does not in any event

extent to vehi¢les used-in carrying either fresh or

frozen meat or fresh <i frozen .dressed’ poultry.

In accordané ‘e with its findings and cone aii the

Commission entered an order requiring the defendant

Frozen Food Express to cease and desist from all

motor. carrier operations in interstate and foreign

commerce found in the report. of the Commission to

be unlawful. oo

On August 2, 1954, appellee Frozen Food Express

instituted an action in the court below in which it

sought .to have set aside and annulled in its. entirety

the order of the Commission. In that suit no attack

was made on the Commission’s action with respect to

the adequaey of the Commission’s. findings nor the

sufficiency or. substantiality of the evidenee. The sole

contention was that the Commission erred as a matter

of law in its construction and application of the: pro- :

Visiows of 203(b)(6). - At the trial below, the Inter-

state Commerce. Commission, tovether with appellants »

heréin dnd other intervening defendants including -

certain railroads, defended the Commission's order;

however, the statutory defendant, the Attorney General

of the United States, refused to défend the action of

the Commission and joined: the intervening ph: aintiff,

the Secretary of Agr iculture, in.the latter’s eontention |

that the’ provisions of the statute in question. should

‘have been. construed, by ‘the Comnfission so as to.

exempt from the certificate r equirements of the Act

motor vehicles engaged .in the tr ansportation of fresh.

. and fravien meat and fresh and frozen poultry.

The court helow consolidated for consideration amd

dispésition the instant proceeding with a’ é¢ompanion

(Use, alse styled Ee rozci l'oGe Ex pre ss, et. a, we oF 05)

ct al; and docketed in the Distriet Court as Civil Action.

No. 8285. The lower court’s opinion in the jatter pro-

ceeding is reprinted. herein as Appendix pees it

shionld be noted ae decision of the Distriet Court

in the companion case also has been appealed to this

Court.

o~_— o

As may be séen from Appefidix ‘A’, the lower court

agreed with the Titerstate Commerce Commission in

the latter's holding that motor vehicles engaged in

interstate for-hire transportation of fresh and frozen

meat and.meat products: were not within the exemptive.

: language, but en the strength ‘of 1.0.C. vy. -Kroblin,

oo PF. Supp. 599; 212 F. 2d 555, refused te aecept the

Commission’s determination with respect .to fresh

and frozen dressed poultry and accordingly set. aside

thag part of the Commission's order restraining the

plaintiff from. transporting dressed poultry in’ the

absence of authority from the Commission. \

Ses

bax t

oe

~

THE QUESTIONS ARE SUBSTANTIAL

(a) The Need for Certainty Be Rt ig

- Among other issues, , this appeal presents to the court

a vqhestion requir ing detinitive interpretation and appli-

cation of the language of ah importént section of the

Interstate Commerce Act.) The precise question pre-

Je lg is Whether fresh and-frozen dressed. poultry "ee

an “‘agric ‘ultural commiodity?” and nota ‘manufactured:

product thereof.’ Whether the vast. ameunt of ‘proe-

éssed poultry now moving. by, anoter carrier in inter-

state commerce is exempt from the certificate and: eco-.

nomic regulation of the Interstate. Commerce Commis-

Sg HY : depends entirely’ pon this i court's 2 tin: al- vennhuiticon

‘of the question stated. The statutory terms involved

‘have been generally ° ‘ygcognized by the lower’ federal

‘

courts, the Tnterstafe Commerce, Commission, the

executive departments of the government, and by those

members of the public affected by the statute as am-

biguous in’ the extreme ‘and immensely difficult of

interpretation. The Distrigg Court in 7.C.C. v. Weldon,

90 F. Supp. "873 under stated the situation in observing :

(page 875) “The problem is not entirely free from

difficulty. * * **’ A review of the administrative and

judicial proceedin requiring construction of’ the

exemptive language" reveals that tle words of the stat- _ .

ute have prov oked not only confusion and uncertainty

among: members of the regulated transportation in- -

dustry’ but they have also- given rise to sharp. differ-

- ences in the application of the law bythe executive and. .

legislative agencies of the government. Notwithstand-—

ing the fact that Section 203(b)(6) of the Interstate -

Commerce Act has been law for almost. two dee -ades,

the uncertainty, doubt: and confusion concerning its

meaning and scope, ather than diminishing’ during

se

:

that period.of administration, has constantly incre: ~

There now exists: greater doubt. than ever before .:

to what commodities are embriived within the aaiaaes v

terms.. This Court was requested by the Interstate.

"-Conimerce. Commission during this term, by a petition

for writ of certiorari in 1.C.C. v. K roblin, case No. 264

to reduce the area of uncertainty and doubt as to.the

scope of the exemption. However, the petition for _

writ of certiorari was denied on October 14; 1954 —.

“ULB. — 99 L. ed. (Advance p. 35)., As a result, the

uncertainties ¢reated - by the Qnited States District

Court for the” Northern District of lowa and the

United States Court of Appeals for the Eighth Cireuit

by their opinions in /.C ov. Krobtin, 90 B. Supp. & *;

“wand -212 FP. (2d) 555 have led to additional litigation:

. beth before the Interstate Commerce Commission and

- thefederal courts 19 which the mevitig ‘parties seek .

to further broaden the so-called agricultural commodity

exemption. For example, there is presently pending

before the Interstate Commerce Commission an appli- _

. eation proceeding — Application of W. W.

Hughes, d/b/a W. . Hughes Refrigerated bar” 4 }

MC-105782, Sub 3. ae contending-that the

operations proposed are exemptand therefore do not

require a certificate, has moved that. the Commission

_ dismiss the application, In support of the applicant’s

.motion to dismiss, he has urged the Commission on ‘the

authority of the Kroblin decision to hold that such food

products as frozen prepared fruit and vegetables. (in- -

eluding frozen frgnch fried potatoes and frozen candied

sweet potatoes), frozen meats (including frozen ham-_

burger patties and buttered. beef steaks), frozen fish

and frozen’ seafood products (inchiding. deviled crabs,

fried scallops, fried shrimp, fried fish. fillets, tish sticks

and other fish: products), are ‘unmanufac tured, |

.e)

.

* Bee

| 3 a ‘ . re at

During the pendency of the time-consuming and

expensive proceedings of the type: just described, the

non-regulated applicant parties continue to partic ipate

in the transportation of the questicued commodities and

on equal footing with competitors t! hey naturally desire

to take advantage of non-tariff rate situations brought

about. through the collapse of regulation, vet some are’

understandably reluctant to-go to unregulated carriage

divert such traffic from those moror Garriers who have.

caequired certificates or permits from ‘the Commission.

Because of the uncertain and unsatisfac tory state of the

law, the regulated carriers know not. whether they can

lawfully depart from published. tariffs and operate

bevond the scope .of their authorities. At the same

time, however, they are powerless to protect their

operations and franchises as well as their: established

‘good-will’? with the shipping publie for the: reason

that the Department of Justice is unwilling to accept

the position of the Commission and enforce the cer-

tificeate requirements of the Act: through criminal

prosecutions. Shippers a the questioned ‘commnodi-’

ties are experiencing related problems: So as to remain

in the absence ‘of assurance that non- -regulated trans-

- portation is lawful and. here to stay. :-Moreover, it-can

he assumed that the unrest and uncertainty among

both earriers and shippers will remaim so long as the

Interstate Commerce Commission adheres to the posi-

‘tion stated in its report supporting the order here under |

review that ‘‘until a final décision contrary to ‘the

_ findings in the exemption ease is reached by the courts,

we adhere to the conclusion that the transportation

of fresh and frozen meats and fresh and frozen dressed

poultry are subjeet to the certificate and permit re-

quiréments of the Act.” (Appendix B)

©

s

While the gravity of thé situation, generally may be

sensed from the ‘facts immediately above stated, the

importance of the issues presented on this appeal can‘

. best be realized-through a review of the history of the

Interstate Commerce Commission’s administration 6f

the section with respect’ to poultry and by more

detailed reference to the Kroblin Case. ze,

o

(b) History of Commission Administration—1935-1952_

The Interstate Commerce Commission, during the

-. entire eourse of its administre ition of Part IT of the.

~ Iiterstate Commerce Act, has held fiat dressed poultr vy:

is not an exempt agricultural «commodity. hi Frank

Battaglia Common Carrier Application, 18 M.C.C. 167

(May 1939), the Commission adopted the tindiigs and -

conclusions recomniended. by a joint hoard. Whieh denied: -

the grant of the application bec ‘ause of applicant’s

sfailure to prove need for the proposed operation, but

concluded that butter, cheese,and dressed poultry were

manufactured commodities for which authority was

required. Subsequent to the Battaglia Case, the Com-

mission, in Monarch Egg Corporation Contract Carrier.

Application, 26 M.C.C. 615 (November 1940), held that

the transportation of dressed poultry was subject to.

the certificate requirements of Part IL of th Act; The

Commission reached similar conelusions in Ollin W.

Allen Common Carrier Applicat ion, 28° M.C.C, 26

(February 1941) and R. C. McCarthy Contract Carrier —

Application, 32 M:C.C. 615 (March 1942), _ re

The Monarch Egy Case, supra, was reopened by the

Commission at the request of the Department of Agri-

eulttire and after further hearing the Commission sus-

tained its prior conclusions and again held that dressed

poultty could not be-considered an unmanufactured

13

agricultural ¢dmmodity. — Egy C orp. Contract

Carricr Application, 44 M.C.C. 15 (October 1944). rm

support of its, conclusions the Coenniaes stated

: ‘page 19;

> We found in the prior report : that - the term

“ordinary: livestock’? embraced poultry as well as

‘attle, horses, sheep, etes_but that dressed poultry,

picked but not drawn, “does not come within tie

term livestock.”’ In view of the definition of erdi-

nary livestock set forth in Section 20 (11), which

the legislative history ahove-discussed indicates

should be applied also to the term as used in See-

tion 205°(b) (6), it is apparent that poultry in any

condition is not ‘ordinary livestock’’.. However,

they are raised on the farm,’ and clearly are ime,

cluded Within the broader description “agricul-

tural ecommodities.”*. It therefore becomes neces-

sarv to determine whether poultry which have been

killed and picked but not drawn are unmanufac-

tured agricultural commodities within the meaning

of the present exemption. |

As-in the case ‘of shelled pecans ‘and walnuts,

there is-a complete absence of any showing of the

customs and practices obtaining in the marketing

of poultry, but certain facts in this connection are

so well known that we mav take cognizanée of them

for the purpose of the present determination. — It

is-common knowledge that, generally, farmers.do

not kill and pick poultry in marketing it. Prob-

ably ‘without. exc eption, or at most with rare ex-

ceptions, ‘the commercial killing and dressing of

poultry is done by meat-packing companies or by

special poultry packers, Its subsequent transpor-

tation is under refrigeration. As suche it can no

longer be considered an unmanufactured agrieu-

tural com modddy. (# mphasis added)

The next reported. decision by the Commission. was

issued in Determination of Exempt Agricultural Com-

14

“modities, 52 MiC.C. 511, where it was held by the

nememesmnye 3 at page 557, as follows:

‘* .. we find that the te rm ‘agricultural com-

modities (not ‘including , manufactured products

thereof)’ as used Ail Section 203° (b) (6) of the

Interstate Commerce Act means: Products raised:

or produced on farms by. tillage and cultivation .

of the soil (such as vegetables, fruits and nuts) ;

forest products; live poultry and bees; and com-

modities produced by ordinary livestock, live poul-

try, and bees (such as milk, wool, eggs, and honey),

put not including any such products or commodi-

ties whitch, as a result ‘of.some treatment have been

so changed as to possess new forms, qualities, or

properties, or result in combinations.

‘We find that the term agric ultaral> -commodi- >

- Hes (not ineluding manufactured product ts there-

of)’ as used in Section 203 (b) (6) ineludes .. .

(9) live. poultry, namely, chickens, turkeys, ducks, ©

geese, and taal cee (Emphasis added)

The foregoing cases represent all of those in ‘which

the Inter state Commerce Commission, in reported deci-

sions, gave specific consideration to dressed poultry.

However, the Commission’s interpretation of % an appli-

cation of the provisions of Section 203(b) (6) was con-

-tinuous and consistent ina countless number of motor

carrier applieation proceedings not reported in the

permanent bound volumes of the Commission... Oper-

-

ating authorities involving thee transportation of —_

dressed poultry were obtained by a number of motor

carriers pursuant to applications filed with and heard —

_ by the Interstate Commerce Commission and supported

‘by evidence submitted on behalf of all of the most

‘important meat packers of the country as,well as many

of the most important commercial poultry processors.

\

15

There is nothing revealed in unreported cases of the

Commission which would indicate that any of the.

shipper interests or any carrier applicant ever con-

tended prior to or since the Determination Case that «

dressed poultry should be classitied as, a so-called. ex-

empt commodity: The contention that dressed poultry

was within the purview of. the exemption was not

advanced with any vigor until the vear 1948, at which |

time the Seéretary of Agriculture alone jrged the

Commission to reverse its long-standing position with.

respect to dressed poultry -and classify it as exempt.

At this point jtis appropriate to point out that no

individual cAmmerdal poultry processor intervened in.

the Determination Cysé.for the purpose of urging-the-———__

acceptance of the views of the Secretary of Agriculture ij

with respect to the elassification of dyessed poultry.

Since no immediate attack had been made -on the

eonelusions reached by the Commission in .the Deter-

mination Case, it had been- generally assumed that any

question with respect to whether motor vehicles trans-

porting dressed poultry were embraced within the

exemptive language had been put to rest. However,

on: October 17, 1952, the Commission filed a complaint:

against Allen FE. Kroblin, Ine. in the United States.

District Court for the Northern District of Towa alleg-

ing that the defendant was.unlawfully engaged in the

transportation of New York dressed and eviscerated

poultry in? interstate commerce. The relief sought by

the Commission was to restrain the defendant from the

further performance of the operations complained of

until such time.as it had acquired appropriate author-

ity from thé Interstate Commerce Commission. The

District Court refused to grant the injunction en the:

grounds that the commodities tfansported by the. de-

16 aes

fendant were unmanufactured - agric cultural ceommiodi-

ties, and, on appeal, was’sustained by the United States.

Circuit Courtof Appeals. This Court denied certiorari ’

on October 14, 1954. . o 2. Ye : ie

Prior to the Aroblin: decision, the Department: of.

Justice had generally followed ‘the Interstate Com-

merce Commission’s interpretation of the statute witli

respect to poultry and had subjected to criminal prose- _

cution a number of carriers for engaging in the trans- |

portation of dressed poultry without appropriate ”_

operating authority from the Commission:—On Mareh

19, 19: -a- criminal proceeding of the character

inentioned, the United States District Court for the

District of Delaware, in U. S.v. Reed Trucking Co.,

Tne. (not: reported), the defendant was fined $250 for

transporting dressed poultry without “authority. The ~

~ same: Court on October 4, 1950, imposed fines on. Reed

Trucking Co., Inc. and -H & H Poyltry Company total-

ing $16300 because the shipper had been granted rate

‘concessions. on dressed poultry traffic. Had the traffic

been exempt, published rates - -would not have been

required and. the prosecutions could not have been

brought suécessfully. — anne

‘This Court’s refusal to grant certiorari in the Krob-

lin Case, supra, apparently has aot changed the Coni-

mission’s position. As indicated earlier, however, a

position contrary to that assumed. by the Commission

is taken by hoth the Department of Agriculture and

the Department. of Justice. - Both executive, depart-

.

,

-

‘ments urged the Court helow to reject the holdings of

the ( omission. in thetr entirety. ee ’

The existing conflict in interpret ration of the stadt

between the Department ot Justice and the Commis-

vi

's' . makes it impossible to effectively administer the

pain for .while’ the Commission’ still requires

carriers to obtain certificates, the. Department of

adios refuses to prosecute carriers for not faving

‘eertiticates when , transporting - dressed poultry traffic.

(e) The Questions Presented Are ‘Not Foreclosed By Prior

Decisions’of This Court.’

“Two petitions for certiorari have been presented to

this Court ites questions concerning the applica-

_tion ‘of Section 203 3(b) (6). ~The first ease, Weldon vy,

LGC.C., 188. F. y 367; 342 U.S. 827, presented the

question of whether motor vehicles tisé transport

shelled raw peanuts were within the exemption. The _

second case, 1.0.0. v . Kroblin, supra, presented the

question of whether motor vehicles transporting New

York dressed poultry were within the exemption. In

both cases,. this Court denied certiorari leaving the

Court of Appeals’ decisions in: effect. Appellants con-

tend that those decisions are in direct conflict. Cee

In accordance with the decisions of this Court which

caution against dr awing inferences as to the merits

of cases from denials of petitions for writs of certiorari,

appellants contend that the cases above cited certainly

have not foreclosed the question presented from éon-

sideration by this Court. Authority for the position

ass@med by appellants is contained in Jurisdiction of

the- Supreme Court of the United States ‘hy Robertson

_ and Kirkham, 1951 Edition, where it is stated: ¢Page

603). Beis, es etl Sea

The fact that the Supréme Court does not sit as _

a court of errors and appeals’ in passing upon

applications for writs of certiorari is pointédly

enphasized by its practice of giving no reasons,

_in most, cases, for its refusal of the 4 oe

Caines x. Washington, 277 . S. 81, 87; by its

~ x

.

ee See

general practice of entering an étder denying the °

. petition and not dismissing jt, even though the case

be one of which:the Supreme Court-tas no juris-

diction; and by its repeated warnings to the bar

’ that the deniaLofa writ of certiorari ianports no

erpression of opinion upon the merits of the case,

— ’ . , . > ’

——~“as the bar has been told many times, United States

v. Carver, 260 U, S. 482, 490. Et js likewise true

that a denial of a petition for writ of certiorari,

without more; imports-no expression .of opinion

-as to the jurisdiction of the Supreme Court .to

issue the writ, Er Parte Bakelite Corporation,

279 U. S. 438, 448, nor as te the jurisdiction of any |

_o other court to entertain a case. -

We quoie also the same authors’ comments with

respeetsto the impropriety of inferring that ‘denial of

certiorari ‘terminates consideration of the questions

involved by the Supreme Court: (page. 605)

The danger with which such indulgence.in infer-

ence is “attended. would appear to be* sufficiently.

demonstrated by the not inconsiderable nuniber”

of. cases in which the petition for certiorari las

been denied on first applieation,, but has been sub-.

sequently granted either on petition for rehearing

or sta sponte, because of an intervening conflict

of decision or because subsequent events imported

‘into the ease an element of importance it previ- —

ously did not possess or Decause an apparent pro-

-cedural defect had. been cured or shown not to

. exist. Indeed, where counsel has relied on denials

of certiorari in similar cases as a reason for failing

to appeal in a subsequent case, the Court has held

Mat such failure was not justified. Sunaty. Large,

332 U.S. 174. | a |

19

o

‘(d) The Questions Presented Require for dheir Resolution

Plenary Consideration With Briefs on the Merits and Oral

Argument _— a ea.

The fundamental’ problem presented in this ease is,

as earlier’ stated,. one requiring construction of the

vlanguage of the federal statute. The key terms of the

provision in question aye not free of ambiguity and,

as a conseqf®nce, they have provoked “eénsiderable

litigation before both the federal emirts and the Inter-

state Commerce Commission. Opposing litigants in.

the various proceedings, conceding the existence of

‘ambiguity in the words ofythe statute itself,. have

resorted to the legislative history of the secti#on td

support their respective claims as to Congressional

intent. Unfortunately, howover, the legislative history

contains no greater certainty than the statutory terms

themselves. It is therefore necessary and appropriate

that this Court have the advantage of considering | all -

factors and circumstances leading to the enactment of

Part IT of the Interstate Commerce ct and partigu-

Jatly the agricultural exemption. Since the provision :

here in question 1 is but a segment ofa complete scheme

of regulation * for-meter transportation in interstate

commerce, this-Court shéuld ‘have the opportunity of -

considering the issues presented as they relate. to the

‘entire pattern of regulation. Appellants: submit that’

to achieve that end, briefs on the merits and oral

argument are necessar v.

This ease is presented to the Court on apes and -

appellants believe that the matters already asserted

justify full consideration by the Court. In addition,

however, they desire to emphasize that this case: has

a number of aspeets which, based on prior decisivas of -

this Court, would -even justify. the grant of a writ of

certiorari. - Those aspects are indicated below.

.

_—

/

20

- (1) Tere Is Coxeiicr oN THE QUESTION PRESENTED |

al ¥ . 3 ~ Phe 7 s 2

AMONG THE FirrHy, SIXTH AND: EkiGHTH CIRCTIT

CouRTS OF APPEAL. Ai teveiue

_— >

~ Customaril¥ this Court has entertained cases from

a lower federal court wheré itghas been shown.that the

decision sought to be reviewed is in conflict with prier

decisions of one or more other Circuit. Courts.of Ap-

peal. Appeliants contend that an analysis of the Dis- -

- t¥iet Court’s decision, although in. agreement with the

Eighth Cireuit in the Kroblin Case, is in conflict or at

least ‘subst intially. inconsistent in theory with the

. Weldon Case in the. Sixth Cirenit Court of Appeals

and. with Southw estern, Trading Company v., U.S. —

208 F’, 2d 708, from the ¥ ifth Circuit Court of Appeals.

(2: jo THE District Cov RT’S Dec ISION Rev ERSES SETTLED

a ADMINISTRATIVE CONSTRUCTION. | |

_ Long standing administrative construction by an

ageney charged with the enforcenient ‘of the statute in

question has been given great weight by ‘the federal

courts and where a lower court has disagreéd with

- administrative interpret? ition this Court’ has fre-

quently granted certiorari for the purpose o@ returning

certainty to the law, Commissjoner Vv. South Teas

— Lumber Company, 333 U.S. 496; 499-500; 68 S. Ct.

*695; 92 L.. Ed: 831., It has been shown that at least

with -respect to poultry, the . Interstate Commerce

Commission, for a period: of more than 15 years, has

consistently: construed the. provisions of Section 20:5»

_(b) (6) so as to require authority for its transportation.

® aos

. - . ; \

9 - tty oe ‘

; \

“\ : a 21

on idle f : a f ar

6 i =e

(3), DISPostTivE Act TION ON THE QUESTIONS PRESENTED

“Witt Tend To Liesseny FURTHER Litigation qBe-

‘FORE THE: INTERSTATE CoM MERCE, COMMISSION’ AND

THE FEDERAL COURTS. 8 :

= * In-Aleoa &. S..Co. v. US. 4. 338 US. 421, 42 23:3 70'S.

5

4

Ct. 190; 94 ‘L. Ed. 225, this Court stated:

“we granted certiorari because dotevnitation

of the issue raised here will guide adjustment of

a large body, of similar claims now pending.”

fn similar’ circumstances, certiorari Was granted in

Ludecke v. Watkins, 335 U.S. 160, 162; 6 68 S. €¢. 1429;

92 L. Ed. 1861, where i it Was stated by the Court (feot-

note 2, page 162) :-

**We are advised that ia are 5: 530 afien enemies

-ordered to depart from the United States, whase

disposition awaits the outcome.of this case.

B

Bis he foregoing cases quite clearly . indicate that the

reason fi oy fully considering the matters presented was

that final resolution by ,the Supreme. Court of the

questions involved would fend to eliminate further

litigation in the lower courts. Appellants submit that

the Supreme Court; by fully disposing of. the inter-

pretation question here’ present; will effectively check

a substantial part of the litigation’ now anticipated

under Section 203(b) @). 7 7 :

%

e

fj: CONCLUSION -

PROBABLE JURISDICTION. SHOULD BE NOTED.

‘Respectfully submitted,

Davip G. Macponaup

: c

| FRANCIS W. McInerny

Attorneys for,

East Texas \ Motor Freight

eid teeter t Lines, Ine. °

Gillette "Motor Transport, ‘Inc.

Jones Truck Lines, Inc.

Perer/I', BEARDSLEY.

Fritz R, Kann

Attorneys. for ;

American Trucking Ass’ us, Tne.

, os Le eee CLARENCE R. Topp :

:, Date: C, DjLLON:

, Attorneys for.

The Contract Carrier and -

Irregular Route Carrier?

se aa Conferences of American

ore _ Trucking Ass’ns, Ine.

4

_ Of Counsel:

. Macteay, Lygeu ann Macponatp is

Washington, D. C. | : ee, el

= -Cattaway, Reep, Kipwe. AND ) BRooKs pet

* Dallas, Texas 3%)

Rernen, GISLER-AND Grivers:

Kansas City, - Missouri

543 4 s

Cottiticate of Service 8 =i te

In compliance with, Rules 13 (2) and 33 (4), (2) and

(3-b) of the Revised Rules of the Supreme Court of the

United States, I, Francis W. MeInerny, one of the atforneys *

for the sev eral Appellants on whose behalf tlie fe regoing

Jurisdictional Statement is submitted, and a- Member of the

Bar of the-Supreme Court of the United States, herebs

certify that I have served copies of the foregoing document

on counsel for the several parties to this pr oceeding ~ ,

indicated below. , oe

This, the 7th day of June, 19 ong SES ee a

j Francis W. MeTnerny

Copies nevved in duly addressed envelopes with first-

class postage prepaid:

Honorable Simon E. Sobeloft Drew L. Carraway, Esquire a

‘ege ‘itor General Rice, Carpenter ag Carraway .

S. Department of Justice ‘1111 E Street, W.

¥ ashington 25, D. C. . Washington 4, 5 C.

James E. Kilday and : Edward .M. Reidy and

Charles 'S. Sullivan, Jr., Leo H. Por, Esquires 4

Esquirés | Office of the General Counsel

Special ‘Assistants’ to the- _ Anterstate Coinmerce

Attorney General _ Commission ° ;

U. 8. ts: cane of Justice Washington’ 25, D. C..

Washington -2 » D.C. , “‘t.

( charles WwW. Sur) and ©. Charles Ps Reynolds, Esquire F

Walter M. Matson, Esquires '. Shoreham Building ». 7

yy of the Solicitor — . Ww ashington 5 5: D.C,

_S. Déepartnient of perenne

¥ ashington 25, D. C. ;

Carl Helmetag, Esquire

Pennsylvania Railroad Company |

1740 Suburban Station, Building ye

Philadelphia, Pennsy Iva ania

2b :

a

Copies served j in duly addressed envelopes with air- mail”

postage prepaid:

e

Maleolm R. Wilkey, Renuire *. Edwin’ N. Bell, nada

“Vnited States Attorney > Esperson, Building =~

Houston, Texas ate Houston, Texas

Carl L. Phinney, Esquire W. H. Vaughan, Jr., Esquire

Phinney and Hallman ; * Fulbright, Crooker, Freeman,

617 Kirst National Bank Rates and Jaworski’

Building eee .. .Secoitd National Bank Building

Dallas, Texas .. - - eA ds Houston 2, Texas.

James W. Nisbet, Esquire . J. C. Hutcheson, IIT, Esquire

Association of Western . - Espersen Building’ x

Railways’ - Houston, Texas .

_280\Union Station Building

Chicdgo 6, Mlinois Se sg

“Marcus Whiting, Esquire

_ Armour and Company . .

< Union Steckyards

.- Chieago-9, Illinois

‘| ra

‘

’

& ‘

‘

a

vB

ir) ‘ .

-~ ‘°

G er

wr.

2 aid

oo 8 g

oJ i ?

. 4 ‘

»

ae >

, ra

@ §v

>

ALL if DOOEOE te ANG AAAs REBT EN Ee Bias ch ASO OUI St

’