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October 11, 1962

The UNITED STATES of America and The Interstate Commerce Commission,Defendants

The opinion of the court was delivered by: HOLTZOFF

This is an action against the United States and the Interstate Commerce Commission, brought under 28 U.S.C. §§ 1336 and 2325, by the plaintiff Atwood's Transport Lines, Inc., a corporation engaged in bus transportation between Washington, D.C., and certain points in Maryland, to set aside an order of the Interstate Commerce Commission which directed the plaintiff to cease and desist from conducting transportation of passengers from Alexandria and Fort Belvoir, Virginia, to various unspecified points and places in the United States. The facts are not in dispute.

The plaintiff has been operating buses under certificates of public convenience and necessity issued by the Interstate Commerce Commission between Washington, D.C. and Point Lookout, Maryland, and between Washington, D.C. and the site of the United States Atomic Energy Commission near Germantown, Maryland. The plaintiff is also authorized to run buses between Jarboesville, Maryland and Piney Point, Maryland, and to carry passengers in charter operations between Washington, D.C. and Alexandria, Arlington National Cemetery and Mount Vernon, Virginia. In addition, the plaintiff has been transporting passengers in charter operations from Alexandria and Fort Belvoir, Virginia, to various unspecified points and places in the United States. It is the last mentioned activity that is challenged in this action.

 The pertinent statutory provision is found in the Interstate Commerce Act, 49 U.S.C. § 308(c), and reads as follows:

 '(c) Any common carrier by motor vehicle transporting passengers under a certificate issued under this chapter may transport in interstate or foreign commerce to any place special or chartered parties under such rules and regulations as the Commission shall have prescribed.'

 In 1941 the Interstate Commerce Commission implemented this statutory authority by adopting a series of regulations governing service to special or chartered parties. *fn1" Rule III of these regulations reads as follows:

 'Origin territory. Any common carrier of passengers by motor vehicle subject to these rules may transport special or chartered parties (1) which originate at any point or points on the regular route or routes or at any off-route point or points, authorized to be served by such carrier, or (2) which originate at any point or points within the territory served by its regular route or routes.' *fn2"

 The present controversy was initiated by a complaint filed before the Interstate Commerce Commission by the Alexandria, Barcroft and Washington Transit Company, which has been permitted to intervene in this action. The complaint charged that charter operations undertaken by the plaintiff, from Fort Belvoir, Virginia, were illegal and unauthorized. The proceeding before the Commission terminated in a final decision that Fort Belvoir and Alexandria charter operations were not within plaintiff's incidental authority. An order was issued directing the plaintiff to cease and desist from these operations. The plaintiff then brought this suit to set aside the order of the Commission and this three-judge court was convened in accordance with the statutory requirement. The facts having been admitted in the pleadings, the matter is before he court as though each side had moved for judgment on the pleadings.

 It is contended by the plaintiff that Rule III, quoted above, is invalid as lacking sufficient definiteness in that the phrase, 'the territory served by its regular route or routes' is too vague. It is argued that what constitutes such territory may be a matter of opinion. At the outset there is a question whether this line of argument is not a non sequitur. If it should be held that the regulations adopted by the Commission to implement 49 U.S.C. 308(c) are invalid, the result would be the same as though no regulations had been promulgated. The statute, however, authorizes transportation of special or chartered parties under such rules and regulations as the Commission shall have prescribed. If the Commission fails to prescribe valid rules and regulations, a serious doubt would arise whether any such operation may be conducted. It is not necessary, however, to pursue this aspect of the matter. This Court holds that the regulation is valid.

 Rules and regulations promulgated by Governmental establishments pursuant to statutory authority have the force and effect of law, and concededly are subject to the same tests as statutes. It is argued that since a knowing and wilful violation of the statute involved in this action or of any rule and regulation thereunder, is a criminal offense, 49 U.S.C. § 322, the regulation in question is subject to the same requirement of definiteness as a penal statute. While a statute must be sufficiently specific to apprize persons affected by it of its requirements and of the elements constituting any criminal offense, nevertheless, the law does not require the impossible or even the impracticable. Absolute detailed certainty with the precision of a mathematical formula, is not exacted. Some leeway may be left to the discretion of the courts and administrative agencies in interpreting and enforcing a statute or regulation, even if it has a criminal aspect. It is sufficient if members of the public are placed on notice as to what is required or prohibited, and what would be deemed a criminal violation.

 In this instance the Commission explained the reasons why the words 'the territory served by its regular route or routes' were not limited further. It stated:

 'Any general rule defining the origin territory which will fit the exact conditions peculiar to all carriers operating under varied conditions, involving such factors as density of traffic, ability of competitors to furnish suitable equipment, and proximity of garages to particular origin points, is difficult of formulation. The carriers generally concede that they should be permitted to originate chartered parties within a territory beyond the route or routes actually served in regular service. In defining origin territory, certainly a reasonable flexibility should be permitted in order that adequate service may be available to communities located in sparsely settled areas such as exist in the western portion of the United States, as compared with available service in the more densely settled areas in the East. While a limitation of origin territory to places within a 10-mile radius of the regular routes appears reasonable in the latter instance, it would be too restrictive in the former.' *fn3"

 The Court is of the opinion that the Commission acted reasonably in not defining or restricting the words in question any more precisely or exactly than it did. Consequently the regulation is not subject to objection on the score of vagueness. This conclusion is amply supported by the authorities.

 One of the leading cases on this point is Nash v. United States, 229 U.S. 373, 377, 33 S. Ct. 780, 781, 57 L. Ed. 1232, in which the validity of the Sherman Antitrust Act was attacked because of an alleged lack of definiteness in failure to define the phrase, 'contracts in restraint of trade'. It was argued that since the court had recently construed the Act as being applicable only to such contracts in restraint of trade as prejudiced the public interest, the crime defined by the statute contained an element of degree as to which there might be differences of opinion. This contention was overruled and the constitutionality of the Act was sustained in an opinion written by Mr. Justice Holmes, in which he summarized the applicable principle as follows:

 '* * * the law is full of instances where a man's fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree. If his judgment is wrong, not only may he incur a fine or a short imprisonment, as here; he may incur the penalty of death.'

 In United States v. Alford, 274 U.S. 264, 267, 47 S. Ct. 597, 71 L. Ed. 1040, a statute punishing anyone who built a fire in or near any forest, or other inflammable material upon the public domain, was upheld as against an objection that the word 'near' was too indefinite.

 In United States v. Wurzbach, 280 U.S. 396, 399, 50 S. Ct. 167, 74 L. Ed. 508, the Supreme Court sustained the validity of an Act of Congress punishing any one of certain enumerated Governmental officials, for soliciting or receiving contributions for any political purpose from any other official. The contention that the words 'political purpose' were too vague to meet the requirement of definiteness was overruled.

 A State statute regulating motor vehicles was involved in Sproles v. Binford, 286 U.S. 374, 393, 52 S. Ct. 581, 587, 76 L. Ed. 1167. Objections on the ground of alleged lack of definiteness were advanced against a provision exempting vehicles from limitations as to height and as to weights of loads, when used only for transportation from point of origin to the nearest practicable common carrier receiving or loading point, or vice versa, 'by the shortest practicable route'. The court, in an opinion by Mr. Chief Justice Hughes, held that the words 'shortest practicable route' were not too vague to be understood. He added:

 'The requirement of reasonable certainty does not preclude the use of ordinary terms to express ideas which find adequate interpretation in common usage and understanding.'

 In Robinson v. United States, 324 U.S. 282, 285-286, 65 S. Ct. 666, 89 L. Ed. 944, the Court, in an opinion by Mr. Justice Black, overruled a contention that the Federal Kidnapping statute was invalid because of alleged uncertainty as to the precise meaning and scope of the word 'unharmed' and the phrase 'liberated unharmed'.

 In United States v. Petrillo, 332 U.S. 1, 7-8, 67 S. Ct. 1538, 1541-1542, 91 L. Ed. 1877, the Court sustained as against an objection that it was too indefinite, a provision of the Communications Act, which made it a criminal offense to coerce a licensee of a broadcasting station to employ any persons in excess of the number of employees needed to perform actual services. Mr. Justice Black wrote as follows on this point:

 'We think that the language Congress used provides an adequate warning as to what conduct falls under its ban, and marks boundaries sufficiently distinct for judges and juries fairly to administer the law in accordance with the will of Congress. That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense. 'The Constitution has erected procedural safeguards to protect against conviction for crime except for violation of laws which have clearly defined conduct thereafter to be punished; but the Constitution does not require impossible standards. The language here challenged conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. The Constitution requires no more.'

 In American Communications Ass'n, C.I.O. v. Douds, 339 U.S. 382, 412, 70 S. Ct. 674, 691, 94 L. Ed. 925, the Court upheld provisions of the Labor Management Relations Act disqualifying any labor union from presenting any petition or complaint to the National Labor Relations Board unless every officer of the organization and every officer of any national or international labor organization of which it was an affiliate or constituent unit, filed an affidavit that he was not a member of the Communist Party or affiliated with it, and was not a member of or supported any organization that believed in or taught the overthrow of the United States Government by force or by any illegal or unconstitutional methods. Knowingly and wilfully filing a false affidavit was made a criminal offense. The objection that the statute was unconstitutionally vague was overruled by the Supreme Court in an opinion written by Mr. Chief Justice Vinson, who wrote as follows:

 'The argument as to vagueness stresses the breadth of such terms as 'affiliated,' 'supports' and 'illegal or unconstitutional methods.' There is little doubt that imagination can conjure up hypothetical cases in which the meaning of these terms will be in nice question. The applicable standard, however, is not one of wholly consistent academic definition of abstract terms. It is, rather, the practical criterion of fair notice to those to whom the statute is directed. The particular context is all important.

 'The only criminal punishment specified is the application of 35(A) of the Criminal Code, 18 U.S.C. § 1001, which covers only those false statements made 'knowingly and willfully.' The question in any criminal prosecution involving a non-Communist affidavit must therefore be whether the affiant acted in good faith or knowingly lied concerning his affiliations, beliefs, support of organizations, etc. And since the constitutional vice in a vague or indefinite statute is the injustice to the accused in placing him on trial for an offense, the nature of which he is given no fair warning, the fact that punishment is restricted to acts done with knowledge that they contravene the statute makes this objection untenable.'

 The decision in Boyce Motor Lines v. United States, 342 U.S. 337, 340, 72 S. Ct. 329, 330-331, 96 L. Ed. 367, is of particular interest, because, like the instant case, it involved a regulation promulgated by the Interstate Commerce Commission, the validity of which was assailed on the ground of indefiniteness. The regulation required drivers of motor vehicles transporting any explosive, inflammable liquid, inflammable compressed gas, or poisonous gas, to avoid 'so far as practicable, and, where feasible, by prearrangement of routes, driving into or through congested thoroughfares, places where crowds are assembled, street car tracks, tunnels, viaducts, and dangerous crossings.' It was argued that the words, 'so far as practicable, and, where feasible' were so vague and indefinite as to make the standard of guilt conjectural. The Court overruled this contention and held that the provision established a reasonably certain standard of conduct. The validity of the regulation was sustained. The opinion of the Court, written by Mr. Justice Clark, contained the following discussion of this question:

 'A criminal statute must be sufficiently definite to give notice of the required conduct to one who would avoid its penalties, and to guide the judge in its application and the lawyer in defending one charged with its violation. But few words possess the precision of mathematical symbols, most statutes must deal with untold and unforeseen variations in factual situations, and the practical necessities of discharging the business of government inevitably limit the specificity with which legislators can spell out prohibitions. Consequently, no more than a reasonable degree of certainty can be demanded. Nor is it unfair to require that one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line.'

 In Roth v. United States, 354 U.S. 476, 491, 77 S. Ct. 1304, 1312, 1 L. Ed. 1498, in an opinion written by Mr. Justice Brennan, the Supreme Court held that the words, 'obscene, lewd, lascivious, or filthy * * * or other publication of an indecent character', were sufficiently definite to constitute a proper standard. The Court remarked in the course of its opinion that 'lack of precision is not itself offensive to the requirements of due process'.

 In McGowan v. Maryland, 366 U.S. 420, 428, 81 S. Ct. 1101, 6 L. Ed. 2d 393, the Supreme Court sustained the validity of a State Sunday closing law. It was claimed that an exemption for retail sales of merchandise essential to, or customarily sold at, or incidental to, the operation of bathing beaches, amusement parks, etc. in Anne Arundel County, was unconstitutionally vague. This contention was overruled in an opinion written by Mr. Chief Justice Warren.

 The foregoing authorities inescapably lead to the conclusion that the phrase contained in the regulation involved in the instant case, -- 'territory served by its regular route or routes' -- , is sufficiently definite and is not vulnerable to the objection that it is too vague. It is of some significance, although not in itself conclusive, that this regulation has been in existence for over twenty years and all counsel agree that its validity has never been challenged. It is quite apparent that the industry has accepted and acquiesced in the regulation and has been living under it.

 There remains for consideration the question whether the application of the regulation in the case at bar was in any respect arbitrary or capricious, and whether the decision of the Commission was reasonable on the basis of the facts before it, and is supported by the evidence. The question before the Commission was whether Alexandria and Fort Belvoir, Virginia, were within the territory served by the plaintiff's regular routes. The plaintiff was authorized to serve only specified points situated in Maryland. It had no authorized route in Virginia. The plaintiff's terminal is located at 12th Street and New York Avenue, in the heart of downtown Washington. Its routes proceeded through Maryland and in a southeasterly direction to Point Lookout, and in a northerly or northwesterly direction to the Atomic Energy Commission at Germantown, Maryland. The plaintiff's regular routes did not traverse any section of Virginia. On the other hand, Alexandria and Fort Belvoir are located on the Virginia side of the Potomac River. The Commission found that Alexandria was approximately two miles from the District of Columbia boundary line, while Fort Belvoir was 14.5 to 19.5 miles from the border, depending upon what route was used. Under the circumstances the record fully justified the conclusion of the Commission that Alexandria and Fort Belvoir, Virginia, may not be considered to be within the territory served by the plaintiff's regular routes.

 In United States v. Pierce Auto Freight Lines, 327 U.S. 515, 536, 66 S. Ct. 687, 90 L. Ed. 821, the Court in sustaining an order of the Interstate Commerce Commission observed that the function of the reviewing court was restricted and limited to ascertaining whether there was warrant in the law and the facts for what the Commission had done, and that the court may not substitute its own view concerning what should be done.

 In Mississippi Valley Barge Line Co. v. United States, 292 U.S. 282, 286, 54 S. Ct. 692, 693, 78 L. Ed. 1260, the Court in upholding an order of the Interstate Commerce Commission stated in an opinion written by Mr. Justice Cardozo:

 'The judicial function is exhausted when there is found to be a rational basis for the conclusions approved by the administrative body.'

 Judgment for the defendants.

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