Motion to Affirm — East Texas Lines v. Frozen Food Exp.

LIBRARY _. ee

SUPREME COURT, U.S e

“Nos. os. 162, 163, 164 :

Sato Sajeme ou

-Octoper Trem, 1955. u-

GM poe agree es

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East Texas ‘Moron Fanos LaNés, Ic. +» BY, es

: hee eek APPELLANTS :

; ‘ ; v. te , é ‘

- FROZEN Foop Express, THE SECRETARY. or AGRIC Sy

LURE, ET AL. *

| INTERSTATE ( QreRce cine APPEL ANT

t F ; ie 1, apt ae ;

| “Frozen. Foo “EXpanss, ET AL.

| AKRON, Caxros & Younastown R. R. CO. EY AL, ge :

: _ MprLLaNTs, : sche

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"FROZEN Foop EXeness, ET AL. ie eee

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ON APPEAL FROM THE UNITED STATES DISTRICT'COURT ~

‘FOR_THE SOUTHERR DISTRICT OF pra Sascincoregle

DIVISION | nae :

Ete ‘MOTION. TO. AFFIRM a , i

zi : SIMON ‘% SOBELOFF, fe! ES

So > Solicitor General, 3

“ sStantey nN. ‘BARNES, +e

ee eee: - Assistant Attorney Geterai &-

setts 2 "DANTE ‘M. BRIEDMAN, — -

Le Sigs 22 5 oe ar SP gssicrs Asvistant’ to the

en Ret BERS Attorney: ‘General,’

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; nt > ES ere 3 : a eR S

DE cae Se ee ee A

ROBERT L. FARRINGTON, © =,

: ae rt . ¢ . ra ree aS : . 4 . z. ;

ee < ~ Counsel, -— 5 . 4

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INDEX -

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IE CR hic ov gd kao eke ck ee PAE oboe ba ea rcin) %4

IN ico st eres ess

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i Cases: : 3 : oy o, :

a F ee

Anhéuser-Busch Assn. v. United’ States, 207 US.

So MRS eo gk Aa ktdin ee uae be erecas 6 z

East Texas Motes Freight Lies v. i Food

Express, 62 M.C.G. 646...5..... PUL ee kas . 2

ie Fruit Grow ers, Inc. v. Brogdex €o., 283.U.8 7

Serta Hartranft v v. Wiegmann, 121 U.S. 609. ised creas Se

Interstate Commerce Commission y. Allen E, Krob-

‘lin, 213 I. Supp. 499, affirm ed, 212 IF. 2d 599, cer- .

— tiorari denied; 0s. Oe. ts COS Si a8

Interstate Commerce Comimission v. W agner, ‘112 . 7

FM NE oka 90d ew cod 3k we es i 8

Interstate Commerce Commission v. Yeary Trans-

fer Co., 202. F. 2d IGE. 2 eacriciece gee: ehke wens

_ United States v. — 174 US . 670. Lec pe keenis 7

Statute:

aie. ,

_ Interstate Chaiidintiee Act, Patt II, 49 Stat. 543, op ES

amended, See. 203(b),6), 49 USC. ay Eadie coo 2

' Miscellancous: . eon Ae

79 Cong. oe. 19900 Foose cbs. sue ana 6

*H. Rep. No. 1645, 74th Cong., Ist Sess............. —~5.

~H. R. 7547, 81st Cong., 2d Sess........ oP ee , 6

H. Rep. No. 2175, 82nd Cong., 2d Sess... . .. Stare as ff

Omnibus Transportation Legislation, House Com- ° :

mittee Print, 76th Cong., 3rd Sess. .......... i 6

S$. 2357, 82nd Cong., 2d Sess... ... enens enero ~ §

S. Rep. No. 1615, 82nd Cong., 2d Sess......25...... 6

‘ of

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a the Supreme Court of the ited States |

a aies ke Term, 1955

-_ a

No. 162

iAst Trxas Moror FrReiGgut LINES, _INe;, ET AL., .

APPELLANTS \ |

#, . | 5

FROZEN Foon Express, THE SECRETARY,OF AGKICUL-—

TURE, oa AL.

; it ota 163 , |

INTERSTATE CoMALERCE Cox MISSION, APPELLANT

U.; |

‘FROZEN Foop IX PRESS, by 1.

o

: No. 164

“Akron, Canton & Younastows BR, R. Co., ET ‘AL..,

' APPELLANTS ogg

Vv. |

FROZEN Foop Express, ET AL.

een fase 3 “ ;

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR TEE SOUTHERN DISTRICT OF TEXAS. HOUSTON ©

DIVISION

, “MOTION TO AFFIRM oo

Pursuant to Rule 16,Paragraph 1 (¢), of the

Revised Rules of this: Court, appellees United

States of America and Ezra Taft Benson, Secretar v

of Agriculture, move that the judgment. of the dis:

trich court: he affirmed. |

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| STATEMENT a

"These are direst appeals from that portion of 2

final judgment, entered February 23, 1! 955, by a

three. judge district co . convened pursuant to 28

U.S.C, 2284 and 2325, which set aside in part an or-

der of thet nterstate Commerce: Commission. The

order directed a motor carrier to cease and desist

from. transportizig certain commodities without a

' certificate of public convenience and. necessity.

Section 203 ( b) (6) of the interstate Commerce

Act exempts from the Act’s economic régulatory

provisions moter vehicles used In carrying “tor

dinary livestock, fish (including shell fish), or agri--

cultural (including horticultural) commodities

(i6t. including 1 iiaiititactiired products thereof }.”’

_In December 1953, three motor carriers filed a com-

plaint with the Commission alleging that appellee

Krozen Food Express had. transported fresh and

frozen meats and fresh and frozen dréssed poultry

without certificate authority. Frozen Food. ad-

mitted’ the transportation but. contended that: it .

, came within the agricultural exemption. 'T he Com-

mission held that neither commodity was exempt,

and issued a cease-and-desist ordér." East Texas

Motor Freight Lines vy. Frozen Food Express, 62—

M.CLC. 646, The Comifission concluded that -

~-although live poultty is an agricultural commodity,

“neither ‘killed poultry nor any ‘product thereof is .

-such a commodity. The Commission further held .

sender ee" ¥

The Case was decided on stipulated facts ‘without u hear-

img. -

rat fresh and frozen meats aré.neither ‘ordinary

vestock”’ nor *tagricultural commodities." *

On appeal the Secretary: of Agriculture inter-

ened as appellant and the United States, a statu--

ory defendant, agreed generally with his position.

he district court- unanimously set aside the cease-

nd-desist order in se far as it related to fresh and

rozen dressed poultry. The court held that those.

roducts are “agricultur ‘al commodities,” and that

he pracessing which they underwent did not make’

hem ‘manufactured produc ts thereof.’’ The court

held ‘the Commission’s finding that fresh and

rozen eats are not exempt, and no appeal has heen

aken from that determination.

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The pertine? nt facts relatir ig to

woultry, as found by the Commission (Jurisdic-

ional Statement, No, 162 2, App. I7a), areas fol-

OWS -

2 As the Commission noted (Jurisdictional Statement, No.

62, App. 15a), the Act always has provided separate” px-

mptions for “livestock” and for * ‘agricultural commodittes.”

rhe Commission held (7bid.) that “ordinary livestock” moran

miy to live animais which cease to be such upon being

laughtered, and that the exemption for “agricultural com-

nodities” does not include packing-house products.

3 More than two years prior to the issuance of, the cease-

ind-desist. order the Commission, after extensive adminis-

rative proceedings, had issued a. lengthy report. in which it *

letermined whether particular agricultural commodities were

within. the exemption. Frozen Foods filed a separate suit in

he district court to set aside the Determination, but the. court

lismissed the action without considering the merits, on the

sround that the Determifation was not’a rev iewable order.

The appeals in. Nos. 158-16] are from that judgment of dis-

missal.

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Most poultry is shipped alive from farms to proc-

essing. plants, where the birds are ‘first placed Gn.

an endless chain and then earried by the chain

~ through the various stages of processing, which in-

clude killing, picking, pinning; singeing, cropping— -

and venting, washing; ¢hilling, eviscerating, pack-

- aging, and freezing. Picking is done both by ma-

chinery and by hand, the mechanical picker consist-

ing of revolving drums equipped with rubber fin-

gers. In.some plants the removal.of feathers is ac-

complished by the use of hot wax. The usual method

of chilling is to place the carcasses in. metal baskets

which are then submerged i in tanks of ice water long

enough to remove all body. heat. In. the eviscerat-

ing process, the hody cavity is. — open and. the

viscera removed, with the liver, heart, and gizzard |

being cleaned and replaced in, the careass. The |

eviscerated poultry is then usually wrapped” in

waterproof paper and packed with ice in crates or’

barrels. -Various methods of dry wrapping are also

employ ed. The freezing of poultry must be accom-

plished as rapidly as possible and is generally done

in a mechanically refrigerated room in which the

temperature is maintained.at minus 40° Fahrenheit.

(sic) and the air is circulated at speeds up to.70

miles an hour. After the birds have been frozen hy. .

this quick-free ze- method, they are placed in cold

storage until ready for shipment.” ig

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ARGUMENT

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These appeals present only the narrow question -

whether fresh and frozen dressed poultry consti- .

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ite’ non-manufactured agricultural products which

re within the agricultural exemption of Section

03 (bh) (6). We submit that the district court’s

ffirmative answer to that question is clearly cor-

ect, and that there is no oceasion for further re-

iew by this Court. ae |

The rationale of the Commission's decision was —

hat although live poultry admittedly is an agrienl-—

ural commodity, killed poultry or any. product

hereof-is not. But poultry. does not cease to be an

gricultural commodity and become a ““manufae-

ured product’*merely because it has been killed.

The stipulated facts showed, as the district court:

tated (Jurisdictional Statement, No. 162, App.

a), *‘that beforé a chicken or duck became -

lressed poultry,’ the bird was killed, his feathers

nd.entrails removed, he was chilled, and in’some _

ases frozen, packaged, etc.” Such limited proc-

ssing, .whic ‘+h does not alter the basic character of

he product as *tpoultry,“.as not sufficient to turn

Finto a “manufactured product”? within the mean-

ng of Section 203 (b). (6). This conclusion is sup-

orted by the legislative history of the Act, the set-

led. judicial construction of the term ‘‘manufac-

ured,’’ and the only other judicial decision on the

ier | | ‘

. In an earlier draft, the Motor Carrier Act

laa an exemption only for “livestock or gm- mee

rocessed -agricultural products’? (HH. Rep. No,

645, 74th Cong., Ist Sess., p. 1, emphasis supplied).

jut after fear had been expressed during debate in

he House that this provision would not exempt €

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sueh processed products as ginhed cotton or pas-

teurized milk, the bill was amended to *“‘strike out

the word ‘unprocessed’ and make it apply only to

manufactured products.’’ 79 Cong. Ree. = ail

The present e xemption for “agricultural * * * 2om-

modities | (not including’ manufactured produc ts

thereof )”’ thus was intended to cover all non- man-

ufavtured agricultural products, processed as well

“as unprocessed. This interpretation of the Act is

further supported by the fact that Congress repeat-—

‘edly has rejected all attempts to amend the Act to

limit the exemption to transportation frem the

u aAad Cath

7 “point of production to the point of eae tmarket-

= Ing, processing, manufacture or trans-shipment.' |

The Commisgion’s s findings shdw that dressed or

frozen. poultr’ v, has undergone substantial process-

ing. But sue h processing is not enough to change

it intoa manufactured product. Manufacture ‘‘im-

plies a change, but every change is not manufac-

~ ture, and yet every change.in an article is the result

of treatment, labor and manipulation. But some-.’

- thing more is necessary * *.*. There must be trans-

. formation; a new and different article must emerge,

‘having a distinctive name, character or use.’ ”’

-Anheuser-Buscli Assn. v. United States, 207 U.S

556, 562. Although a. chicken admittedly is

“changed” by dressing and freezing, such change

oe | |

*See Ommbus Transportation Legislation, ‘House, Comniit-

tee Print, 76th Cong.. 3rd Sess.; S. 2357, 82nd Cong.. 2d Sess. :

. 8. Rep. No. 1615, 82nd Cong., 2d Sess.; H. Rep. No. 2175,

82nd Cong., 2d Sess. One proposed bill (H.R. 7547, 81st

Cong., 2d Sess.) wouldshave specifically limited the agriceni-

tural exemption, in the case of poultry, to “live poultry.”

ey

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is not enough to make it a new and different arti-

Je’: it is’stilla chicken, albeit a frozen and dressed

one, | i |

This ( ‘ourt repeatedly has held that processing

vomparadle to that undergone by poultry in dress-

ing and freezing does not produce a ‘manufac-

tured’* article. Such non-manufaetured products

have included dressed lumber Clumber whickyhas

been .planed, grooved, and tongued or beaded) ¢

oranges which have been impregnated with borax

to make them decay-resistant,” sea shells which, af- ‘

tor removal af several layers of inner shells; have

heen polished and had mottoes etched. on the pol-

ished inner shell,’ and corks which have been

cleaned in an air pressure machine, washed,

steamed, dri ed, and bathed and coated.* |

|We submit that the district court correctly in- |

terpreted Section 203 (b) (6) as exempting the

transportation of agricultural commodities which,

although they have undergone substantial process-

ing, have not-heen converted into different products

by manufacture, The processing which cotton un-

dergoes in einning is compezable to that undergone

by poultry in dressing and freezing. Each remains

basically the same product despite the processing,

and each is: therefore covered by th® exemption.

2. In Interstate Commerce Com mission V. Allen

E. Kroblin, 113 F. Supp. 599 (N.D. Towa), the dis-

— ee gee

*('nited States v. Dudley, 174, U.S. 6g

® Fruit Growers, Inc. v. Brogdex_Co., 283 US. 1.

7 Hartranft v. Wiegmann, 121 US. 609.

* Anheuser-Busch Assn: v. United States, 207 US. 556.

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trict court, afteran exhaustive review of the legisla-

tivehistory, concluded that dressed or eviscerated

peultry was a non-manutactured agricultural prod-

e

uct and accordingly. was exempt under Section 205

(b) (6). .The Court of Appeals unanimously af-_

firmed, 212 F. 2d 555 (C.A. 8) and this Court denied _

certiorari, 348 U.S. 836. .The Kroblin case, in-.

volved substantially the same. question as the. cases

- at bar, and there is no more compelling reason for -

further review by this Court here than there was igh

Kroblin. Other lower federal courts also have held

that similar processing of agricultural commoditics

does not turn them into manufactured products un-

der. Section 203. (b) (6). #.g., Interstate -Com-

merce Con mission ViY eary Transfer Co., 202 F, 2d

151 (CLA. 6) (redried tobacco) ; Interstate Com-

merce Commission V. W agner, 112 F. Supp. 109

(M.D. Feae.) } f scoured wool).

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CONCLUSION —

“For the foregoing reasons we sehiels that the

decision below is clearly correct, and that the ques-

tions involved do not call for further review by

this Court; The judgment of the district court

should accordingly be affirmed.

Respectfully submitted,

Simon E. SoBELOFF,.—

et a - Solicitor General.

StTanLey N. BAkNés,

Z issistant Attorney General.

‘Dax . M. FRIEDMAN,

"Special Assistant to the meshilers 3 General. |

- Roper L. FARRINGTON, | ince

_ General Counsel.

Nem, Brooks; am =.

Assistant General Counsel.

Donaxp A. CAMPBELL, -

Attorney. eed 7

Department of Agriculture. 3

Avatsr 1955

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wv O. S$ GOVERNMENT PRINTING OFFICE. 1088 - sesece ph)

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