Willis Shaw Frozen Express, Inc. v. United States

PETITIONER:Willis Shaw Frozen Express, Inc.
RESPONDENT:United States
LOCATION:U.S. District Court for the Southern District of New York

DOCKET NO.: 201
DECIDED BY: Warren Court (1962-1965)
LOWER COURT:

CITATION: 377 US 159 (1964)
ARGUED: Apr 23, 1964 / Apr 27, 1964
DECIDED: May 04, 1964

Facts of the case

Question

  • Oral Argument – April 23, 1964
  • Audio Transcription for Oral Argument – April 23, 1964 in Willis Shaw Frozen Express, Inc. v. United States

    Audio Transcription for Oral Argument – April 27, 1964 in Willis Shaw Frozen Express, Inc. v. United States

    Earl Warren:

    Versus United States et al.

    A. Alvis Layne:

    Mr. Chief Justice.

    Earl Warren:

    Mr. Layne.

    A. Alvis Layne:

    May it please the Court.

    On Thursday, I pointed out that this appeal involves a construction and application of the Transportation Act of 1958 which imposed on truck transportation of certain agricultural commodities, economic regulation, rate and operating authority regulation of the Interstate Commerce Commission.

    But which directed the Commission to issue operating authority to truckers in bona fide operation on May 1, 1958 over any route or routes or within any territory, transporting this agricultural commodity.

    This provision, directing the issue on some operating rights, was designed to assure that these previously unregulated truckers could continue in business.

    I also pointed out that the Interstate Commerce Commission had interpreted and applied this statute to Shaw, the appellant here, a substantial common carrier of refrigerated and frozen agricultural commodities so as to limit sharply Shaw’s future operations as compared with his prior bona fide operation.

    The Commission did this by ignoring the transportation characteristics of the frozen fruits, frozen vegetables and frozen berries involved.

    And the Commission wholly ignored the scope of service, actually held out by Shaw.

    The Commission in fact refused to receive or consider evidence of Shaw’s ability to perform on the ground that such evidence was irrelevant to its determination under the statute as it was being applied.

    The Commission fragmented Shaw’s prior operations into a series of disconnected and unrelated shipments.

    The result is completely unrelated to operating reality for any trucker.

    The Commission for example, would permit only frozen fruit to be carried to some points, frozen vegetables to others, frozen berries to still others.

    (Inaudible)

    A. Alvis Layne:

    Yes, they —

    (Inaudible)

    A. Alvis Layne:

    That’s right, the Commission —

    (Inaudible)

    A. Alvis Layne:

    Yes it is, Your Honor, because Shaw was transporting, for example, from the Lower Peninsula of Michigan.

    The Commission held that they could transport frozen fruits, vegetables and berries as I said on Thursday, to a point such as Kansas City, but from precisely the same origin point, only frozen berries to say Saint Joseph, Missouri.

    Now, this is entirely unrealistic to any trucker.

    They —

    Arthur J. Goldberg:

    (Inaudible)

    A. Alvis Layne:

    Oh, yes.

    It was based on that mere fact and this fact alone that Shaw had not in fact during the period of the Commission considered relevant, transported a shipment of frozen Vegetables from the Lower Peninsula of Michigan to Saint Joseph, Missouri.

    In the Carolina Freight Carriers case, this Court said that that kind of treatment as applied to a common carrier was a misapplication of the statutory standards.

    Earl Warren:

    Mr. Layne, what territorial limits, if any, would you suggest the Commission could restrict it to under (Inaudible)?

    A. Alvis Layne:

    I think they — they could restrict into the areas in which it was demonstrated that he had in fact served geographically.

    That is — we’ll take another example Mr. Chief Justice.

    A. Alvis Layne:

    Take it — take the point that he’s home based in lower — in Fort Smith, Arkansas.

    Now, the Interstate Commerce Commission said that this — this common carrier was entitled to transport frozen vegetable from Fort Smith, Arkansas to Miami and Jacksonville, Florida, to San Francisco, California frozen — frozen berries to Chicago, Illinois and frozen vegetables to Detroit, Michigan.

    Now, it would be impossible to have a more fragmented theory of any common carrier’s operation to have points so far separated within the United States and never consider the intermediate points in areas to which a carrier must necessarily transport these products in order to get to Jacksonville or Miami, Florida.

    For example, as we point out in the brief, the Commission wholly ignored the fact that on the very shipment that they went to Miami, they took a shipment to Atlanta.

    No authority was given to transport any shipment to Atlanta, why not?

    No trucker would ever transport failed to serve intermediate points such as that, intermediate areas such as that.

    The — the point — entire theory along which the Commission proceeded was as Mr. Justice Goldberg said.

    They took a list of what he did in 1957 and they fragmented its future operations directly to that list.

    That, as I suggested to the Court on Thursday, is a flatly a violation of the statutory interpretation of the — and of the application that this Court directed a similar language in 1935 in the Carolina case.

    Earl Warren:

    May I ask just one — one more hypothetical question.

    Suppose this entire experience had been transporting frozen fruits from Florida to Kansas City.

    It made no intermediate stops, would you say that the order must permit him to stop any place he wanted?

    A. Alvis Layne:

    No, I wouldn’t say that Mr. Chief Justice —

    Earl Warren:

    Well, I do —

    A. Alvis Layne:

    — because obviously, any — the — the Commission has the — has the right and the authority to — and the duty —

    Earl Warren:

    Yes.

    A. Alvis Layne:

    — to look at what the — what the carrier was in act — fact holding out to serve the public.

    Earl Warren:

    Holding out or actually doing it.

    A. Alvis Layne:

    Both.

    Earl Warren:

    (Voice Overlap)

    A. Alvis Layne:

    Because they’re both involved.

    Mr. Chief Justice, nobody’s business is solely determined on how many sales you made today.

    Its how many sales were you offering to make today.

    And this is also true of a common carrier by motor vehicle.

    A common carrier doesn’t only serve solely in the shipments that he transports today or in any period.

    He also serves by holding out his service.

    The availability of his service to the public is as important to him and to the public as any other aspect of his service.

    He may not be used today, he may not be used in any month in considering the seasonal nature and the variables of the frozen vegetables here involved that would be — that would be expected.

    Look what this — look what the counsel, trying this case, attempted to do in which the Commission would not permit.

    The appellant before the Commission showed not only that he had his equipment.

    A. Alvis Layne:

    He showed not only what he was operating during the particular period of time in terms of equipment.

    In terms of his advertising to the public of where he said, I will handle it for you if you will give it to me.

    He not only put in the evidence what he actually had transported.

    He put into evidence this exhibit or attempted to put in evidence this exhibit but the Commission wouldn’t receive it.

    Only two pages of this exhibit are repeated or are — are printed in the transcript of record because it wasn’t received in evidence.

    Now, what was the exhibit?

    The exhibit was an attempt on his part to show that he had empty trucks available in these areas for which he solicited the business of transporting frozen fruits, frozen berries and frozen vegetables.

    How else would he able to show that he had been holding out this service?

    How else would he show as this Court suggested he should show in (Inaudible) that he was in fact able to perform and that any hiatus in his service was not an occasion where he had limited his service or in which his service had been withheld from the public because he decided to transport only from here to there.

    But because of factors over which no common carrier can control, that is whether the public decide to use his service today, tomorrow or next month.

    And — and you will not find, if you read the order of the Commission, one finding, so far as I can determine, nothing in this order suggest that the Commission gave any such consideration to this carrier’s operation.

    It was a mechanistic production by which they attempted to give him on arithmetical majority for the future of the precise shipments, fragmented as they were that he had transported during 1957.

    Now, the — this order, Mr. Chief Justice denies to Shaw, operating rights for the future to which he is entitled.

    But he does more than deny rights to Willis Shaw.

    He also denies to the public the competing operations which Shaw held out.

    And as I have told you, at — had in fact available in the form of empty vehicles, moved from that point because at that time, there was no such traffic to another point where there was traffic, considering the variations involved, and it denies to them the kinds of common carrier service which Shaw had in fact available.

    And it was able to prove in the form of this refrigerated truck to shippers and receivers of these agricultural products.

    In some, it denies not only to Shaw the rights to which the statute entitles him but it also denies to the shipping public in a form of competing operations which Shaw had available in fact to the public for the transportation of this agricultural commodity.

    I’d like to reserve the balance of my time.

    Earl Warren:

    You may, Mr. Layne.

    Mr. Pollak.

    Stephen J. Pollak:

    Mr. Chief Justice, may it please the Court.

    A carrier of commodities made non-exempt by the Transportation Act of 1958, frozen fruits, frozen berries, frozen vegetables, ham, coffee beans or others of the 11, may obtain authority to carry those commodities in two ways.

    He may apply under Section 207 of the Interstate Commerce Act, showing a need for the service and the fitness to carry the commodities.

    He may also apply for grandfather rights, provided he may show that as a carrier, he was in bona fide operation carrying the particular commodities on the grandfather date and thereafter.

    This case arose on applicant Shaw’s application for grandfather rights to carry frozen fruits, frozen berries and frozen vegetables and fish and mixed loads with those commodities to and from 35 states.

    This Court, in the cases interpreting the grandfather clause in the 1935 Motor Carrier Act, which first imposed economic regulation of motor carriers, this Court stated that it did not sit to weigh the evidence to determine the scope of the bona fide operations of the carrier.

    That is a function which had been assigned by Congress, this Court recognized to this Commerce Commission.

    The questions, the Court said there for the Commission, are whether the service within a territory is sufficiently representative to warrant the calling of it bona fide operations and whether the coverage of particular commodities is sufficiently represented to constitute such operations.

    The answer this Court made clear as to these questions is for the Commission, and the Court sets to determine whether the Commission in reviewing the mass of evidence is applying the correct legal standards and that, there are two legal standards which are taken by this Court in this case for review.

    Stephen J. Pollak:

    First, the question whether in determining the extent of Shaw’s bona fide operations on and after the grandfather date, the Commission and the Court properly treated frozen fruits, frozen berries and frozen vegetables as separate commodity classifications.

    So that a prescriptive right to carry or to continue operations in a particular commodity class, frozen vegetables for example, would be obtained by showing prior carriage of frozen vegetables.

    The second issue, second legal issue is whether in determining the extent of bona fide operations on May 1, 1958, the Commission properly refused to consider evidence of operations prior to January 1, 1957.

    Considering such evidence is too remote to bear on the scope of bona fide operations 16 months later.

    The —

    Arthur J. Goldberg:

    (Inaudible)

    Stephen J. Pollak:

    I — I don’t believe that there is Your Honor.

    I believe that if the Court — the Court rev — the Court wishes to review the treatment of the evidence by the Commission.

    And if we have made such a review in our appendices, I think it will find that within the rules of law they were applying, the carrier here received a — indeed a liberal treatment of its prior operations.

    After all, the —

    Byron R. White:

    (Inaudible) that the rule of law, the Commission was bound to allow the trucker or these applicants to carry berries only to the point that it has previously carried them.

    Stephen J. Pollak:

    Well, no, I think that that would be a too limited —

    Byron R. White:

    That isn’t a matter of evidence, is it?

    And that’s a — re — really a question of law.

    Stephen J. Pollak:

    That’s right.

    But I think that —

    Byron R. White:

    Well, is there an issue here about that or not?

    Stephen J. Pollak:

    I think that their — had the Commission failed to give proper effect to the evidence and where there were a representative, as the Court said in Carolina Carriers, where there was a representative carrying commodities to a number of points where it pointed out that the — those points should authorize the carrier in the future to give statewide authority and the Commission had not reflected that in its order, I think the Court might have an issue but I — I believe —

    Byron R. White:

    Well, they carried berries to Chicago and Saint Louis and Saint Joseph, those are the only points to which this carrier was entitled the authority to carry barriers —

    Stephen J. Pollak:

    No I —

    Byron R. White:

    — carry berries?

    Stephen J. Pollak:

    I would say no.

    If the carrying as sufficiently frequent and representative, then it would be entitled to a statewide authority for example, to area authority and that is what the Commission has done.

    In its — the scope of the grant made by the Commission is written out at page 7 of our brief.

    And it indicates there that the grant was to carry all three commodities from several states to several other states.

    Now, the evidence did not show that the carrier transported those three commodities to every town in those states but the Commission said and it — if the record in page 339, it indicated the rule that it applied.

    It said, “For example, there is recorded a total of about 15 shipments from several California origins to several Nebraska origins, including Omaha, which sufficiently establishes a pattern of statewide operations in transporting these commodities.”

    And you would see that the Commission there granted statewide —

    Byron R. White:

    If you’re going to carry the berries to San Francisco, do you think it’s — that it’s quite enough that the Commission to say from Michigan to California, but not to any point in between Michigan and San Francisco.

    Stephen J. Pollak:

    Well, I think that that is inherent in the concept of the grandfather operations.

    Stephen J. Pollak:

    What Congress provided was that the scope of future authority would be tailored to substantial parity with prior operations.

    Now, the point was made in the course of argument that the — of this transportation from Arkansas to Florida of vegetables and there’s no reflection.

    I — I might say in interrupting that, I think this is not an issue here for the Court but if you look at the evidence, the point was made that the transportation was from Flor — Arkansas to Florida of vegetables and that — and the intermediate point in Georgia was not granted to — the evidence shows that there was no carriage to an intermediate point from Arkansas to Georgia, the intermediate point, after the grandfather date.

    Now, the Congress has said that the carriage must be on the grandfather date and thereafter.

    And the Congress, I think in the cases of the Court, indicate that the Commission is charged with looking at the evidence in determining what that carriage was.

    And here, I think within the rules of law that we’ve recognized are before the Court, the Commission properly weighed the evidence.

    Byron R. White:

    What rule do you suppose — do you think the Commission followed in deciding routes or areas?

    Stephen J. Pollak:

    What rule?

    Byron R. White:

    Yes.

    Stephen J. Pollak:

    I think the rule that it applied was to review where the trips were and with which products.

    And if there were a representative, number of trips to an area, an area-wide authority was granted.

    If there were representative trips with commodities, then commodity authority was granted.

    And indeed, I read its opinion to say that where it granted — one where it found evidence of shipment of one commodity class, frozen vegetables, that it would look rather closely to see if it could not find shipments of the other classes.

    Byron R. White:

    (Inaudible)

    Stephen J. Pollak:

    And if it did not —

    Byron R. White:

    (Inaudible)

    Stephen J. Pollak:

    Yes, sir.

    It primary — it did it by states and indeed —

    Byron R. White:

    (Inaudible)

    Stephen J. Pollak:

    No, although it did state that it would grant originating authority form California, Oregon and Washington because commodities appeared to flow from those three producing states, fruits, berries, vegetables, frozen.

    Two, and it named for other sates, so it may have looked at those as a group of states.

    Byron R. White:

    Is it (Inaudible)

    Stephen J. Pollak:

    Yes it — oh, yes.

    I don’t mean to be unders —

    Byron R. White:

    (Inaudible)

    Stephen J. Pollak:

    The —

    Byron R. White:

    (Inaudible)

    Stephen J. Pollak:

    Well, the justification for that is I think a review of the evidence if before the grandfather date or on the grandfather date, there is a transportation from Little Rock to Saint Joseph, Missouri.

    And there are no other transportations before and maybe one after between the same points, I think the Commission, consistent with the decisions of this Court, may grant authority between those two points.

    After all, the carriers may apply under 207 for authority showing need.

    Stephen J. Pollak:

    And this is only to let them continue prior operations, prior bona fide operations.

    Indeed, in the Carolina Carriers case — I — I’m sorry, I think it’s the Howard Hall case, in the Volume 315.

    I think it’s significant to note that there; there was a claim in that case.

    The Commission granted authority from Birmingham, Alabama to certain points.

    And it limited the authority from Birmingham to a radius of 10 miles around Birmingham.

    The contention was made that it should’ve granted an originating authority from a radius of a hundred miles around Birmingham.

    And this Court, in its opinion, that 498 reviewed that evidence and said that there were only 55 shipments from the area beyond 10 miles and within the hundred-mile radius whereas there were a larger number, 875 within the area.

    Then it said, “After the grandfather date, there were 270 shipments from the area between 10 miles and a hundred-mile radius.”

    The Commission — the Court said that it was for the Commission to weigh that evidence and although it was granting no authority to reflect 55 shipments from the area between 10 miles and a hundred miles, granting no authority to reflect 270 shipments after the grandfather date.

    That was a decision for the Commission and this Court was approving there a point-to-point authority.

    I think that — that is a — responsive to your question.

    In —

    Arthur J. Goldberg:

    (Inaudible)

    Stephen J. Pollak:

    Yes, sir.

    Arthur J. Goldberg:

    (Inaudible)

    Stephen J. Pollak:

    Yes, sir.

    Arthur J. Goldberg:

    (Inaudible)

    Stephen J. Pollak:

    I don’t think I would Your Honor.

    I think —

    Arthur J. Goldberg:

    (Inaudible)

    Stephen J. Pollak:

    We do, Your Honor.

    And in fact, we find right in the words chosen by commerce later on, wool tops and noils.

    They didn’t say “wool tops, wool noils.”

    What they said, “wool tops and noils.”

    And we would assume that if you transported a load of wool tops, you’d get authority for wool noils.

    But here, where the Commission took the seriatim listing, frozen fruits, frozen berries and frozen vegetables, we read that to mean that each of those is a separate commodity class.

    And indeed, let’s not — it should be recognized that frozen vegetables is a commodity class.

    If the carrier transports black-eyed peas, Georgia to Wyoming, the carrier will obtain authority for frozen vegetables.

    There’s no question here that the Commission denied him authority to carry frozen cauliflower, collards or Brussels sprouts or something like that.

    He got full commodity class authority.

    Stephen J. Pollak:

    We don’t see that in his argument that this is a — a single class, why or how he can make a distinction that if you carry frozen fruits, you shouldn’t also get authority to carry him for wool tops.

    Indeed, reading the legislative history, there’s no suggestion that the three are part of a single class.

    The Congress in its — in the conference report and each of the reports of the Senate and House Committees, carries a paragraph describing the grandfather rights, and I’m quoting, “Any person engaged on May 1, 1958, in trucking the aforementioned commodities which are returned to regulation by this amendment, would be permitted upon application to a certificate or permit allowing him under regulation to continue transportation of the same commodities within the same areas for the same points.

    Now, the only reasonable reading that we can see of that is that this is a class-to-class relationship.

    There are 11 classes listed.

    If you transported one commodities in one class within an area or from point-to-to point and you show it, then you’ll get authority for that commodity.

    We don’t believe that the Carolina Carriers case at all is contrary to the decision reached by the Commission and the Court below.

    In that case, the Court, this Court set aside a Commission decision, saying it had itemized prior transportation.

    But the facts and the wording of the 1935 statute are very different and importantly so.

    There, the common carrier was a carrier of general commodities.

    General commodities is a class, was recognized by a class.

    What the Commission did in weighing the evidence there, it found that there had been representative transportation of particular commodities within the general commodity class and it granted authority limited to those commodities within the class.

    It’s again as if there had been transportation of the black-eyed peas and the grant here had been limited to black-eyed peas.

    And the Commission said, “There shall not be itemization.”

    It meant that if you — that the — pardon me.

    When the Court said, “There shall not be itemization”, it meant that where you find representative shipments of commodities within a class, the grant shall be — for the entire class.

    Byron R. White:

    Has this —

    Stephen J. Pollak:

    Both —

    Byron R. White:

    — been a — has this been characteristic in — in giving grandfather further rights in this area or is this the first case in which it has arisen.

    Stephen J. Pollak:

    No, no.

    If I understand you there, the question of — of whether that these are separate classes, these three frozen fruits, frozen berries and frozen vegetables.

    They have been consistently interpreted as separate classes by the Commission.

    But it has been tested in the Courts and the Commission has been affirmed except in the Winter Garden case and in that case, as we pointed out in our brief, the shipments were from the — Court found on the facts that the shipments originated fruits, berries and vegetables all from the same location, same warehouse.

    And therefore, the question that the separate commodity has really been derived, although the Court had statements in its opinion saying it — which would be read as indicating these are separate classes.

    Byron R. White:

    You know Mr. Pollak, if — if a carrier isn’t applying for authority in the 207, ever asked for just authority to transport frozen vegetables for example, compared with the frozen fruits?

    Stephen J. Pollak:

    I — I can’t answer.

    I would assume they probably asked for more authority than that.

    Although, Mr. Justice White, there are many areas of the country where only frozen vegetables maybe grown and I would assume that from that particular area, or a processing area, they probably would ask for a limited authority.

    After — after all, the — a review of the evidence here shows that in those — in the example of the Arkansas authority which was here granted.

    In the — a complaint is made that it wasn’t for three commodities.

    Stephen J. Pollak:

    But a review of the evidence showed that there were — in the period before and after the grandfather right which the statute required, they didn’t transport the three commodities.

    Byron R. White:

    Well, there’s a — that will result of a — of the restrictions here or in the limited nature of the authority, necessarily resulted empty back hauls for this carrier, do you know?

    Stephen J. Pollak:

    Well, I don’t — I really don’t know.

    I don’t know.

    He has been operating and the — the counsel has suggested a substantial operation since 1938.

    And I think the Commission has taken into consideration in this vast exhibit which starts at 205 and runs to 323 listing 5000 shipments.

    The Commission has taken all those into consideration and we reviewed the evidence.

    There’s a question here whether prior to 1957 should’ve been taken into consideration.

    We’ve reviewed that evidence and it doesn’t show that it would’ve enlarged the authority.

    The Commission has taken all those shipments into consideration where the carrier who has been successful, its financial status seems to be improving, its number of trucks and trailers is growing, the record shows.

    And I would say that since it’s taken all shipments into consideration, it’s not going to suffer empty back hauls.

    Either — either it did — it had empty back hauls in the years passed and they weren’t reflected in the shipments or it didn’t have them.

    But to the extent that the back hauls were not empty, they’ve been taken into consideration to the extent they were empty.

    This was a problem that they had in the past and has been very economically successful carrier.

    I — I would say that on the basis of the record, I don’t know.

    Now, the — the point — when the argument was made that a holding out should be sufficient, I think that the statements of the Court in the Carolina Carriers case are quite specific that a holding out is not sufficient.

    The Court there said that it makes clear that a holding out to serve a specified area is not alone sufficient.

    It’s actual rather potential or simulated service which is required.

    The point later it said, “It is plain that a carrier’s holding out an actual performance maybe limited to a few articles only.”

    I might mention, I said that the 1935 statute differed — it — from the 1958 grandfather statute in this material way.

    The 1935 statute which is quoted at page 20 of our brief required only that the carrier be in bona fide operation as a common carrier over roots and within the territory.

    The statute which this Court is asked to interpret in this case, the 1958 statute makes — which is quoted at page 38 of the brief says, “In bona fide operation, and I’m skipping some of the words, in the transportation of property over roots and within territories.”

    So this grandfather clause makes specific reference to the transportation of property.

    Indeed it might be suggested that under the 35 law, the — a common carrier could have gotten authority to transport any commodity because the statute, at least the grandfather provision didn’t refer to the property being carried.

    It only required being in operation as a common carrier.

    The Court found the necessity for limitations on the property carried in the definition of what a common carrier was, which was in the statute.

    We think it is equally plain Your Honors, that the Commission properly drew a line on January 1, 1957 to exclude evidence prior to that time.

    This is precisely the type of reasonable, administrative ruling that the Congress left to the Commission.

    The Congress said that the carrier must be in bona fide operation on May 1, 1958.

    And since that time, it left to the Commission the period of operations prior to May 1 to consider is relevant.

    Stephen J. Pollak:

    Consider the problem — the administrative problem, there were some 900 applications for grandfather authority.

    Shaw was one of those applicants.

    Shaw submitted to the Commission in its table, Exhibit 22, 5000 shipments running from May 1954 to October 1957, asked the Commission to consider all of these shipments and to tailor its grandfather authority accordingly.

    If every one of the other 900 carriers submitted a similar number of shipments over a similar length of time, we’re talking about 5 million shipments from various points to various subjects.

    The Commission in its rule of law in this case said only that we will look at your evidence back to January 1, 1957, and we will consider that evidence relevant of the scope of your operations on May 1, 1958.

    If you wish us to consider evidence prior to May 1, 1957, you must show by substantial evidence that it is relevant.

    In a review of the record indicates that although there was a — there is statements by Shaw that locations of food processing or frozen fruit processing stations vary and moved around.

    There was no indication that we found in looking at the prior evidence that the Commission in considering evidence from January 1, 1957 to May 1, 1958, didn’t get a fully representative picture of what this carriers operations were.

    We reviewed in Appendix C of our brief this prior evidence which the Commission did not take into consideration, and it shows that review that a representative picture was presented.

    Indeed, the statute says that in operations after the grandfather date, there must be uninterrupted operations.

    And the Commission has, I think, reasonably looked to a certain period of time prior to the grandfather date and said, “If your operations do not come through loud and clear in that 16 month period, well then your — your operations have a gap and you will either got to explain to us why they’re not shown in the 16 month period prior to the date or we won’t consider them.”

    And indeed the Commission has considered in the cases operations more remote in 16 months, one case, Albert Getty, which was cited.

    The president of the carrier had been in an — in an accident and had — and had to terminate some of its operations on — on recovery and also on getting financially rearranged.

    And where that was shown, the Commission looked at a — at more ancient history.

    But where such a substantial showing isn’t made and we don’t believe that it’s made here, why 16 months is enough.

    Indeed, in the Alton case before this Court, that was a 17 month period.

    The Alton case was involving the 1935 statute.

    Mentioning just briefly the question which is raised here on frozen fish and mixed clothes, the complaint, as we understand the brief, is that the Commissions tailoring of the authority would preclude this type of operation picking up the fish at a seaport, moving it inland and mixing — mixing the fish with the frozen foods or berries at an inland point.

    I’m authorized to say by the Commission that the authority granted, which was set out at page 7 of the brief, that the authority granted and the Commission’s judgment does not preclude that type of operation.

    And if the — of course if the carrier is in doubt as to whether the operation of mixing it an inland point under this authority is precluded, why it may still ask the Commission to reopen the grandfather proceeding.

    I’m advised that the grandfather proceedings back under the 1935 statute are still being reopened so that —

    Byron R. White:

    (Inaudible)

    Stephen J. Pollak:

    No, it is not.

    We — we think, I might say Mr. Justice that we believe that the tailoring of the authority that the Commission made here is inline with the prior operations of frozen fish and mixed loads that were shown.

    There is no evidence as we find it in the record and I’ve looked rather hard.

    There’s no evidence that this mixing occurred at the inland point.

    So the Commission gave authority from the seaport on the Kansas City and we think it properly waived the evidence.

    We respectfully ask the Court to affirm the judgment below.

    Earl Warren:

    Mr. Layne.

    A. Alvis Layne:

    There’s only one or two points that I’d like to make, Your Honor.

    A. Alvis Layne:

    First, I’m rather surprised by the argument that there’s something different about the 1958 statute than the 1935 statutes because it mentioned the word “property”.

    I want to point out to the Court that in 1935, Congress was dealing with — in placing regulation on all motor carrier transportations including the transportation of passengers as well as property, and therefore, there was no occasion to do — to say anything about property, passengers, or otherwise.

    In the statute in 1958, Congress was solely concerned, was returning to regulation as the — as the Committee put it, the transportation of certain property and therefore, it appropriately used as a — the word property, nothing.

    It’s — it’s the only way in which Congress could have written the statute in the same terms as the 1935 statute.

    Also, there seems to be some suggestion that because Congress used the words frozen fruits, frozen berries, frozen vegetables, and on that this — this enables the Commission to create what is called three classifications.

    There’s not one single word by anybody that testified before Congress suggesting that anyone in the industry either those who produce this, those who ship these products, those who receive them, or those who transported them considered them as three separate kinds of classifications.

    And the — and the argument about wool, noils and hemp goes a little too far.

    If the — if the Court would just look at the statute, you’ll see the all sale — said wool waste.

    I suppose that now we’ll have a classification of wool, noils, and tops, but wool waste is a separate classification.

    The fact of the matter is that the transportation of these frozen items had precisely the same transportation characteristic.

    They were — and that is the controlling matter in transportation, we’re transported in the same kinds of vehicle.

    They had to be equipped with the — for the same kinds of transportation.

    That’s what makes these commodities different than wool or coco beans, or bananas, and the other items.

    Now, finally, it is said that because somehow there is these limited commodities that that justifies the Commission in being more restricted in its treatment of an applicant than they were in 1935.

    They’ve forgotten that the Court in Carolina pointed out very properly of basic economic fact to the transportation industry particularly for a trucker.

    When you have a limited number of commodity, you must have a broad territory upon which to base an economically viable operation.

    And the Court said there is in Carolina no statutory sanction for limiting point-to-point where you have a limited group of commodity.

    Now, as to whether they can survive, as to whether or not this is an economically viable operation, it’s true, he became a substantial operator, but he didn’t become a substantial operator by rever — running his trucks in the reversed direction in going west bound in order to make east bound movements.

    No one could survive in the transportation industry doing that kind of thing.

    And I gather that at last before this Court, the Commission has prepared as they did an argument apparently.

    They suggested that it’s not what they really intended, but that is what they did, and that is what they did with respect to the fragmenting of the commodities too.

    There is no justification for saying that a man can go to Chicago with frozen berries and he can go to Detroit with frozen vegetables from precisely the same origin.

    No one would operate a truck line that way and no one would survive, they could.

    This judgment should be reversed.

    Thank you.