The opinion of the court was delivered by: FORMAN
The government filed a criminal information against defendant consisting of 20 counts, each representing a different delivery made by defendant between January 20, 1943 and June 12, 1943, and each charging that with respect to each delivery defendant engaged in the transportation of property for the general public in interstate commerce by motor vehicle on public highways from Hanover, Pennsylvania, to Beverly, New Jersey, without a certificate of public convenience and necessity authorizing such operations, as required by Part II of the Interstate Commerce Act of 1935, as amended, § 206(a), relating to Motor Carriers, 49 U.S.C.A. § 306(a).
Defendant entered a plea of not guilty to the information and the issue came to trial without a jury.
Defendant is a common carrier by motor vehicle engaged in the transportation of property for compensation in interstate commerce. It received, transported and delivered the merchandise described in this information as stated therein. Its operations in interstate commerce are authorized by a certificate of public convenience and necessity issued to it by the Interstate Commerce Commission, which permits it to serve numerous localities, among them Hanover and Philadelphia in Pennsylvania. The incorporated community of Beverly, New Jersey, having a population of 2,691 in 1940, is located two and three-quarter miles from the nearest part of the city of Philadelphia as reckoned from the edge of the channel of the Delaware River at Poquessing and the channel of the river at that place is approximately one-quarter of a mile from the shore line in the City of Philadelphia.
The facts set forth above are not in dispute and are substantially as they appear in a stipulation signed by the representatives of the government and the defendant.
After introducing the formal stipulation into evidence the government rested.
The defendant offered testimony to show that the Baltimore Transfer Company was incorporated in the State of Maryland in 1892 and its stock is now held by the Pennsylvania Railroad Company and another corporation. In 1929 its officers organized the defendant company in the State of Pennsylvania. The Baltimore Transfer Company owns all of the stock of the defendant. It was incorporated in Pennsylvania because of a requirement of that state that a corporation could not hold an intrastate franchise unless it was chartered therein. The managerial control of both the Baltimore Transfer Company and the defendant was in the hands of their mutual president. Both companies have almost identical officers and directorates. Each of the corporations applied for and received separate 'grandfather' rights.
The Baltimore Transfer Company has a certificate of public convenience and necessity to make shipments, among other places, from Baltimore to Philadelphia, and places within 5 miles of Philadelphia. The certificate of public convenience and necessity held by the defendant authorized it to make shipments, among other places, from Hanover, Pennsylvania, to Philadelphia.
The freight moved on the lines of the defendant or the Baltimore Transfer Company, according to the territorial rights of the respective companies notwithstanding the issuance of a bill of lading in the name of one or the other of the companies. A charge of 12 1/2 cents per 100 pounds of freight regardless of quantity was set up by defendant in its books against the Baltimore Transfer Company when a shipment in less than truckload lot was transported by the Baltimore Transfer Company to Philadelphia or picked up by the defendant and delivered to the consignee by it. The Baltimore Transfer Company reversed this procedure and set up a charge against the defendant at the same rate for deliveries in the Baltimore terminal area. Detailed entries were made in the books of both companies to cover charges against them respectively for maintenance of equipment.
It was conceded by the defendant that in the instances of the particular deliveries from Hanover, Pennsylvania, to Beverly, New Jersey, named in the information filed herein, it did not set up charges against the Baltimore Transfer Company for the deliveries from Philadelphia to Beverly, New Jersey. Local union regulations required a change of drivers at the Philadelphia terminal before deliveries were made on inborn freight moving in solid truck-load shipments. Application was filed by the defendant to the Interstate Commerce Commission to extend its authorized service to places within 5 miles of Philadelphia on August 14, 1943. This was prior to the filing of the information herein (November 15, 1943), but subsequent to the alleged violations herein (January 20, 1943 to June 12, 1943).
The defendant took the position --
(1) That the collection and delivery of property by it at Beverly, New Jersey, and other places contiguous to the corporate limits of Philadelphia is only a 'terminal service' and not the kind of operation requiring description in a certificate of public convenience and necessity;
(2) That although the Interstate Commerce Commission, by general or special order directed to the subject, might define and limit the territory of a motor carrier's 'terminal area' embracing outlying suburban communities around a large metropolitan center, it had not chosen to do so in the case of this defendant and the court may not interpose its judgment as to how far beyond the corporate limits of a large municipality a motor carrier may perform 'collection and delivery terminal service' before it becomes a road haul intercity operation requiring description in a certificate of public convenience and necessity;
(3) That the Bureau of Motor Carriers of the Interstate Commerce Commission has recognized that a 'grandfather' certificate reading 'Philadelphia' carries with it the statutory right to make terminal collections and delivery to some territory beyond the municipal limits, although without authority that Bureau has additionally sought in its interpretative bulletin to interpose this idea as to limitations notwithstanding the absence of official administrative determination by the Interstate Commerce Commission;
(4) That the filing of the information herein was premature because the Interstate Commerce Commission was in process of considering and determining the extent to which the ...