United States v. Contract Steel Carriers/Opinion of the Court

The Interstate Commerce Commission brings an appeal from a three-judge district court, 49 U.S.C. § 305(g), 49 U.S.C.A. § 305(g), that reversed an order of the ICC, 62 M.C.C. 413, directing appellee Contract Steel Carriers to cease operations as a common carrier by motor vehicle. D.C., 128 F.Supp. 25.

Appellee holds licenses covering different areas surrounding Chicago, Houston, and St. Louis. As these are substantially in the same form, a single illustration will suffice. It covers contract carriage of 'Steel articles, and such materials as are used or  useful in highway construction projects, except cement,   rock, sand, and gravel, over irregular routes, in   connection with said carrier's presently authorized   operations,

'From points and places in the Chicago, Ill. Commercial Zone,     as defined by the Commission in 1 M.C.C. 673, to points and      places in Arkansas, Iowa, Kansas, Missouri, Oklahoma, and      Texas, and return with no transportation for compensation.'      No. MC 96505 SUB 6.

The facts are fully set out in the reports referred to above. In essence they show that appellee, by active solicitation from 1951 to 1954 in the areas mentioned, had secured 69 contracts to serve shippers. These had been filed with the Commission and there is no charge of any violation of the restrictions of the license or the requirements of individual contracts except that the appellee has held itself out by its actions to be a common carrier.

The Commission found this holdingout from an advertisement, run without legal advice and since discontinued, offering its transportation service without mentioning whether it was contract or common carriage.

' * *  * the great increase in the number of contracts held by      it are attributable in large degree to aggressive sales      activities and affirmative precontract traffic solicitation,      which amounts to a public offer or holding out. In this     connection, it is also asserted that defendant maintained an employee in Des Moines, Iowa,      whose duties included the active solicitation of traffic. * *      * There is evidence that business has been lost by      interveners after a representative of defendant called upon      receivers of steel in Iowa, leaving a copy of defendant's      schedule of minimum rates and charges, and a copy of a blank      contract to be executed by such shippers.' 62 M.C.C. 413, 414      415.

'Although the facts here are meager in some respects, they     reveal a pattern of extraordinary expansion in a period of      approximately 8 months and an easy turnover of contracts      thereafter. We believe that there is ample evidence to show     that this expansion was brought about, to some extent at      least, by indiscriminate solicitation and advertising, among      other things.' Id., at 421.

In Craig Contract Carrier Application, 31 M.C.C. 705, 712, the ICC stated that the services of a contract carrier must be individual and specialized. A requirement of specialization is supported by respectable legislative history. See, e.g., 79 Cong.Rec. 5651. In this case the ICC found that appellee had not sufficiently specialized its operation. However, we conclude that if specialization is to be read into 49 U.S.C. § 303(a)(15), 49 U.S.C.A. § 303(a) (15) by the legislative history, it is satisfied here since appellee hauls only strictly limited types of steel products under individual and continuing contractual agreements with a comparatively small number of shippers throughout a large area.

We hold also that the fact that appellee has actively solicited business within the bounds of his license does not support a finding that it was 'holding itself out to the general public.' A contract carrier is free to aggressively search for new business within the limits of his license. Because the ICC's order is not supported by evidence in the record and is contrary to the definitions of contract and common carriers in § 303(14) and (15), we affirm the District Court.

Affirmed.

Mr. Justice FRANKFURTER, whom Mr. Justice HARLAN joins, dissenting.

The Motor Carrier Act, 49 Stat. 543, 544, 49 U.S.C. § 303(a)(14), 49 U.S.C.A. § 303(a)(14), gives to the term "common carrier by motor vehicle" the classic meaning that 'common carrier' had acquired and maintained during the course of centuries. In short, the test of what is a 'common carrier' under this Act is what legal history has established as the test, and we do not find that the Interstate Commerce Commission has departed from this test. We cannot believe that if the evidence, as disclosed by the record, which need not be recited, had appeared in a common-law action against the respondent, a court would be justified in taking the case from the jury, and that if the jury had found against the respondent, its verdict would not be allowed to stand. The finding by the Interstate Commerce Commission that the respondent was a 'common carrier,' and therefore subject to the regulatory provisions of the Act, ought not to have less weight than a jury's verdict. Accordingly, other issues raised in the case are not reached, and we would reverse the judgment below.