Congress intended to include under the provisions of part 2 intercity motor vehicle operations of railroads but at the same time to exclude, from that part, motor vehicle operations within terminal districts.
Plaintiff insists that this construction of the proviso is wrong because, even granting the decisions of the Commission and of the courts do hold that pick-up and delivery service is subject to part 1 of the act, because such service constitutes "terminal facilities and transportation," the courts and the Commission have also held that this particular service is not subject to the provisions of section 1 (18) of part 1 of the act (49 U.S.C.A. § 1(18), which requires a carrier seeking to extend its line of railroad to obtain a certificate of convenience and necessity -- and hence that by the use of the words "to the extent that these operations are subject to the provisions of Part I [chapter 1 of this title]" Congress meant that, to the extent that the operations are not subject to the provisions of Part 1, they are included in and covered by the provisions of section 206(a) of part 2 (49 U.S.C.A. § 306(a). In other words that, since the courts and the Commission have held railroad operation of motor truck terminal service subject to part 1 of the act only to the extent that it constitutes terminal facilities and transportation and have also held it is not subject to the provisions of section 1(18) of part 1 of the act requiring a certificate of public convenience, it is therefore to that extent not subject to the provisions of part 1, from which it follows that the exception in section 203(a)(14) is not applicable. But we are unable to follow this argument or agree in the conclusion.
As we have seen, the Commission has repeatedly held that, under the provisions of the original Interstate Commerce Act (part 1), it has jurisdiction over railroad operation of terminal motor truck services as constituting terminal facilities within the meaning of section 1(3) of the act, but that it had no jurisdiction of line-haul motortruck operation by railroads -- because the same did not constitute terminal facilities.
It is therefore perfectly plain that at the passage of the act of 1935 Congress had notice that there were two kinds of railroad motor vehicle operations: One, in terminal districts as a part of the service of transportation; and the other, in what is commonly known as line-haul or over the road service, that is to say, from one city or town to another. As to the first, the Commission had consistently asserted jurisdiction under the provisions of the original Interstate Commerce Act, but, as to the second, it had held that the use of motor trucks in line-haul or over the road service was not subject to its jurisdiction. In these circumstances the unmistakable purpose of Congress, as we think, in the use of the language in section 203(a)(14) was to supply the missing jurisdiction as to motor line-haul service by railroads, and to require in such cases a certificate of public convenience and necessity -- but to do no more. The reason for this is plain when it is considered that for many years the terminal service had been held a part of the transportation service of the carriers as to which jurisdiction was complete; whereas intercity service was a wholly new adventure. In this view we are of opinion that the correct interpretation of section 203(a)(14) is that every interstate common carrier by motor vehicle, including carriers by rail or water, shall first obtain a certificate of public convenience and necessity -- except to the extent that such motor vehicle transportation was then subject to the jurisdiction of the Commission under the original act. This interpretation finds support in the legislative history of the more recent act for, as is pointed out by the Commission in its opinion, Senator Wheeler, chairman of the committee having the bill in charge, said in explanation of the particular clause we are discussing: "The term 'common carrier by motor vehicle' includes both regular and irregular route operators and embraces the motor vehicle operations of rail, water, express, and forwarding companies except to the extent that these operations are subject to the provisions of Part 1."
II. The validity of the orders of the Commission is also attacked on the ground that the allowances which the railroads make to the consignors and consignees who themselves perform the pick-up and delivery service are rebates and unlawful. The tariffs provide for an allowance of 5 cents per hundred pounds when the consignor or consignee performs the service at his own expense. But it is perfectly clear that this allowance is not a rebate as that word is used in the act. It is, as we have seen, provided for in the published tariffs, and there is nothing either unlawful or unreasonable in permitting a shipper or consignee, where he himself performs a part of the transportation service, to receive a reasonable compensation or allowance therefor. This is clearly indicated by the Supreme Court in United States v. Baltimore & Ohio, 231 U.S. 274, 34 S. Ct. 75, 58 L. Ed. 218, where it is said that a railroad may compensate a shipper for services rendered and facilities furnished in connection with his own shipment.
III. Still another point urged is that the railroads should not be permitted to establish rates on the "added traffic theory" of rate making. This contention involves a theory of rate making, as to which the authority of the Commission is paramount; and, unless the result is clearly wrong, is not subject to court review. On this motion the evidence considered by the Commission is not before us, and there is nothing by which we can make a fair comparison. And, even if it should appear that the rates published in the tariffs do not fully compensate for the services proposed, it must also be remembered that the Commission has, after a thorough investigation, increased the rates from 30 cents per hundred pounds to 45 cents per hundred pounds. In the absence of a showing that this is clearly unreasonable, it would be highly improper for this court to substitute its judgment -- even if it had anything before it on which to form a judgment -- for that of the Commission. Therefore, without at this time and on this motion passing upon the question whether plaintiff has any standing to maintain the suit, we are of opinion that the motion for interlocutory injunction should be denied. A decree in accordance with this opinion will be entered on presentation, and the parties may submit proposed findings.