the contract carrier in the Act of 1935 before its amendment by the Act of 1940 appear to be uniform.
In Pregler Extension of Operation, 23 M.C.C. 691, 695, it was held a contract carrier must perform "special and individual service which is required by the peculiar needs of a particular shipper."
This strict construction of the definition of "contract carrier" is also in accord with the declaration of policy found in Section 202(a) of the original Motor Carrier Act, and now found in Section 1 of the Transportation Act of 1940, 49 U.S.C.A. preceding section 301.
Again this strict construction appears also to be plainly within the intent of Congress.
One of the purposes indicated in the statement of policy that motivated the Congress in the passage of the act, infra, was to do away with "unfair or destructive competitive practices * * *" which would prevail if a contract carrier was permitted to operate in the area served by common carrier.
The fact that the so-called Craig decision was one not made by a unanimous Commission is of no significance, as the legal effect of such a finding is the same as if supported by all the members. Baltimore & O. Railroad Co. v. United States, 298 U.S. 349, 56 S. Ct. 797, 80 L. Ed. 1209.
The rulings of the Commission are entitled to great weight, and the function of the courts is to construe the language of the statute so as to give effect to the intent of Congress. This is axiomatic and especially true where the interpretations involve "contemporaneous construction of a statute by the men charged with the responsibility of setting its machinery in motion; of making the parts work efficiently and smoothly while they are yet untried and new." United States v. American Trucking Associations, 310 U.S. 534, at page 549, 60 S. Ct. 1059, at page 1067, 84 L. Ed. 1345; Norwegian Nitrogen Co. v. United States, 288 U.S. 294, at page 315, 53 S. Ct. 350, 77 L. Ed. 796.
The correctness of the conclusion of the Commission which the plaintiff challenges, that under the specialization test so applied, it is a common rather than a contract carrier, is demonstrated by the finding and borne out by the evidence.
The finding was that the plaintiff had devoted three vehicles exclusively out of a total of thirteen to the shipper's transportation needs between the points for which authority was requested. (T. 18.)
The equipment consisted of ordinary trucks not especially made or adapted to fit the shipper's transportation needs, while the applicant has held itself out to the public to transport general commodities as a common carrier between points and over the same route for which authority was requested to operate as a contract carrier. (T. 41, 56, 57.) Again it was found that "neither the mode of receiving, transporting, and delivering of freight, the type of commodities transported, the class of shippers served, nor any other feature can be pointed to as distinguishing applicant's service for the shipper from common carriage." (Docket No. MC925, 286.) "Although it is necessary for the shipper to have the daily use of applicant's vehicles, its representative admitted that outside of the rate advantage, he knew of no reason why applicant's service for his company could not be performed equally as satisfactorily as a common carrier * * *." Id.
Except for a rate concession, the same service was held out to all other shippers under slightly different arrangements.
The plaintiff, however, argues further that the test of specialization is met by it by virtue of its contract with the shipper and the fact that the shipper is able to continue its "farming-out" method of production, and that thus the plaintiff's service is "coordinated with shipper organization." (T. 39, 40.) We cannot agree. If there is any such, it appears to be the reduced rate which the shipper received, while the specialization of physical operation, so-called, appears to be that of the shipper rather than of the plaintiff.
"Whether an applicant seeking exemption [from the requirement of proving factual convenience and necessity] had in fact been in operation within the immunizing period of the statute was bound to raise controverted matters of fact. Their determination Congress entrusted to the Commission." United States v. Maher, 307 U.S. 148, 154, 155, 59 S. Ct. 768, 771, 83 L. Ed. 1162.
The provisions of the act requiring proof of public convenience and necessity, upon which the necessary certificate or permit is issued for operators otherwise inhibited, are remedial, to which the so-called "grandfather" sections (206(a) and 209(a) establish exceptions, and such sections must be read in harmony with the purpose of the act itself and extend to those carriers plainly within its terms. McDonald v. Thompson, 305 U.S. 263, 59 S. Ct. 176, 83 L. Ed. 164.
After full hearing, the Commission has found and set forth basic and primary findings which lead as they must to its final conclusion of fact that the operations of the plaintiff are those of a common carrier. This is suficient. Saginaw Broadcasting Co. v. Federal Communications Comm., 68 App. D.C. 282, 96 F.2d 554, 559, 560; United States v. Baltimore & O. Railroad, 293 U.S. 454, 464, 465, 55 S. Ct. 268, 79 L. Ed. 587.
It cannot be said that the Commission's finding deprives the plaintiff of its property without due process of law. The test applied represents no departure from the fundamental concepts involved. After a full examination of the record, we hold that the finding made had a basis in substantial evidence and was not arbitrary or capricious. Shields v. Utah Idaho Cent. Railroad Co., 305 U.S. 177, 185, 59 S. Ct. 160, 83 L. Ed. 111.
The Fifth Amendment in the field of federal activity does not prohibit governmental regulation for the public welfare. It, like the Fourteenth as applied to the States, conditions or limits the exercise of the admitted power, by seeing that the end accomplished shall be achieved by methods consistent with due process, which demands only that the law shall not be unreasonable, arbitrary, or capricious, and that the means chosen shall have a real and substantial relation to the object sought to be attained -- the reasonableness of each regulation depending upon the pertinent facts. Nebbia v. People of State of New York, 291 U.S. 502, 525, 54 S. Ct. 505, 78 L. Ed. 940, 89 A.L.R. 1469; United States v. Joint Traffic Association, 171 U.S. 505, 559, 571, 573, 19 S. Ct. 25, 43 L. Ed. 259; Atlantic Coast Line v. Riverside Mills, 219 U.S. 186, 31 S. Ct. 164, 55 L. Ed. 167, 31 L.R.A., N.S., 7; Chicago, B. & Q. Railroad Co. v. McGuire, 219 U.S. 549, 31 S. Ct. 259, 55 L. Ed. 328.
We do not feel that the plaintiff on the facts presented is being compelled to transmute or to alter radically its type of operation, but on the contrary, by denominating it a common carrier, the Commission has catalogued its activities within their proper sphere. Fordham Bus Corp. v. United States, D.C.S.D.N.Y., 41 F.Supp. 712.
With reference to the suggestion of the applicant, that such discrimination as might arise, if dual authority were granted it, could be obviated by deleting from its certificate of common carriage the commodities for which contract carriage authority is sought, we express no opinion. The only matter before this court is the validity of the order under review.
The complaint is dismissed, and parties may submit proposed findings and decree.