The opinion of the court was delivered by: BAILEY
Each of the above-named plaintiffs has brought an action to set aside an order of the Interstate Commerce Commission of January 18, 1944, as extended by an order of February 14, 1944. These actions have been consolidated for trial.
The orders of the Commission were made pursuant to an investigation instituted at the request or complaint of the Secretary of War, concurred in by the Secretary of the Navy, into the reasonableness and lawfulness of fares for the transportation of passengers between all points in the District of Columbia on the one hand, and points on the Virginia side of the Potomac River to and including the Pentagon Building, the Navy Arlington Annex, the Army Air Force Annex at Gravelly Point, and the Washington National Airport, on the other hand.
The Pentagon is located adjacent to U.S. Route No. 1, nearly two miles south of the Virginia end of the Memorial Bridge across the Potomac River, and about 1.5 miles west of the Virginia end of the 14th Street Highway Bridge. The Navy Annex is about two miles south of the Virginia end of the Memorial Bridge, and about one mile west of the Pentagon Building. It is reached from the Memorial Bridge over Arlington Ridge Road, which does not run by the Pentagon. The Army Annex is on the Mt. Vernon Memorial Highway, about 1.75 miles sough of the Virginia end of the Highway Bridge, and the Airport is approximately 0.5 mile be yond.
After hearings the Commission undertook to fix fares between all points of the District of Columbia, on the one hand, including those served by the electric street railways of the Capital Transit Company, and the Pentagon, the Navy Annex, the Army Annex, and the Airport, on the other hand, including joint fares between the Capital Transit Company and the Virginia Companies. Each of the plaintiffs claims that the Commission was without jurisdiction to make the order complained of.
The Interstate Commerce Commission Act, Section 203(b), (7a), and (8), 49 U.S.C.A. § 303 (b) (7a), and (8) excepts from the jurisdiction of the Commission certain municipal zones. This section provides:
"(7a) * * * nor, unless and to the extent that the Commission shall from time to time find that such application is necessary to carry out the national transportation policy declared in this Act, shall the provisions of this part, except the provisions of section 204 relative to qualifications and maximum hours of service of employees and safety of operation or standards of equipment apply to: (8) The transportation of passengers or property in interstate or foreign commerce wholly within a municipality or between contiguous municipalities or within a zone adjacent to and commercially a part of any such municipality or municipalities, except when such transportation is under a common control, management, or arrangement for a continuous carriage or shipment to or from a point without such municipality, municipalities, or zone, and provided that the motor carrier engaged in such transportation of passengers over regular or irregular route or routes in interstate commerce is also lawfully engaged in the intrastate transportation of passengers over the entire length of such interstate route or routes in accordance with the laws of each State having jurisdiction; * * *."
All the operations in question are performed within the territorial limits of the District of Columbia municipal zone prescribed by the Interstate Commerce Commission, Washington District of Columbia Commercial Zone, 3 M.C.C. 243. The first question that arises is the meaning of the phrase "lawfully engaged in the intrastate transportation of passengers over the entire length of such interstate route or routes in accordance with the laws of each state having hurisdiction." The Commission contends that the Capital Transit Company is not engaged in intrastate transportation in Virginia and that the Virginia companies are engaged in only limited intrastate transportation in the District of Columbia. But the transportation from the Virginia line to the Pentagon is intrastate, and is subject to regulation by the State Corporation Commission of Virginia, and the Virginia companies not only do local business in Virginia but, while their intrastate business in the District of Columbia may be said to be limited, their transportation in the District of Columbia is regulated by the Utilities Commission of the District of Columbia. The fact that the Capital Transit Company does not pick up and discharge passengers at many stops in Virginia does not prevent its transportation in Virginia from being intrastate. As stated by the Commission:
"This is urban, mass transportation between points in the District and points in Virginia just beyond the District line, and is the same in all characteristics as transportation between residential areas of the District and commercial and Government establishments in the District."
The transportation involved here is not interurban but, as the Commission says, urban transportation and, as such, it was not, in our opinion, the intention of Congress to confer jurisdiction on the Commission to regulate fares for transportation of this nature.
Section 216(e) of the Motor Carrier Act, 49 U.S.C.A. § 316(e), contains this proviso:
"Provided, however, That nothing in this part [the Motor Carrier Act is Part II of the Interstate Commerce Act, 49 U.S.C.A. § 301 et seq.] shall empower the Commission to prescribe, or in any manner regulate, the rate, fare, or charge for intrastate transportation, or for any service connected therewith, for the purpose of ...