The opinion of the court was delivered by: FORMAN
The information is laid under Part II of the Interstate Commerce Act, 49 U.S.C.A. § 301 et seq. The first of its six counts charges the defendants with violating Sec. 306(a) in the following language:
'That on, to wit, December 24, 1944, Lloyd Mertine and Sam Berg, defendants, copartners, conducting business under the assumed firm name of Kings Highway Mountain Line, and being engaged in the transportation of passengers for the general public in interstate and foreign commerce by motor vehicle on public highways including those between the points hereinafter set forth, for compensation, unlawfully did knowingly and wilfully engage in an interstate operation on a public highway, in that said defendants did transport 4 passengers by motor vehicle on public highways from New York, New York, to Lakewood, State and District of New Jersey, and within the jurisdiction of this Court, for compensation, to wit, $ 28, then and there without being in force with respect to said defendants a certificate of public convenience and necessity issued by the Interstate Commerce Commission authorizing such interstate operations; contrary to the form of the statute in such case made and provided and against the peace and dignity of the United States. (Title 49, Section 306(a), U.S. Code Annotated)'
The second and third counts are identical with the first except that they refer to transactions on different days.
The fourth, fifth and sixth counts each contain a general allegation that the defendants were common carriers engaged in the 'transportation of passengers for the general public in interstate' commerce by motor vehicle on public highways for compensation.
The fourth count specifically charges the defendants with having violated Sec. 315, in that they failed to file with the Commission, insurance or security as required by it, that they would pay any final judgment recovered against them for injuries, death or property damage resulting from their negligent operation of a vehicle as a common carrier.
The fifth count charges substantially that defendants violated Sec. 322(a) in that they failed to require their driver to keep certain records, and the sixth count charges a violation of Sec. 317(d) in that they failed to file with the Interstate Commerce Commission and publish fares or charges applicable to the transportation of passengers.
Section 306(a), the violation of which is the basis of the first three counts of the information in so far as it is relevant here, provides as follows:
'Except as otherwise provided in this section and in section 310a, no common carrier by motor vehicle subject to the provisions of this chapter shall engage in any interstate or foreign operation on any public highway, or within any reservation under the exclusive jurisdiction of the United States, unless there is in force with respect to such carrier a certificate of public convenience and necessity issued by the Commission authorizing such operations: * * * .'
It is also important to note that certain vehicles were excluded from the operation of the provisions of the law (except in so far as requirements for hours of service, safety of operation and standards of equipment are concerned). The portion of the statute that has particular relevance to this case is found in Sec. 303(b)(2) as follows:
'Nothing in this chapter, except the provisions of section 304 relative to the qualifications and maximum hours of service of employees and safety of operation or standards of equipment shall be construed to include * * * (2) taxicab or other motor vehicles performing a bona fide taxicab service, having a capacity of not more than six passengers and not operated on a regular route between fixed termini, * * * .'
It is unnecessary to go into further detail with regard to the sections of the statute underlying the fourth, fifth and sixth counts because they are subjected to the same attacks by the defendants which amount in the aggregate to a motion to quash the entire information for the following reasons:
1. 'That each count alleges facts which show that the defendants carried on a private livery business and that as private livery operators they are not common carriers.