The opinion of the court was delivered by: MEANEY
In an information filed by the United States Attorney for the District of New Jersey on July 8, 1943, against the Zentz Motor Lines, the government charged the defendant, in 20 counts, with engaging in the transportation of property in interstate commerce, for compensation, as a common carrier by motor vehicle, without the requisite operating authority from the Interstate Commerce Commission. The period covered in the information was from November 2, 1942 to February 3, 1943. The operations were asserted to be in violation of section 206(a) of the Interstate Commerce Act (hereinafter called the Act), 49 U.S.C.A. § 306(a). The case came on for trial before the Court, the defendant having specifically waived a trial by jury.
At the outset of the trial, the government filed a petition, and was granted leave to amend the information to show the name of the defendant as Schupper Motor Lines, Inc., the defendant having previously changed its name by proper corporate action. Additionally, count 20 was abandoned, a nolle pros. having been entered as to it during the course of a previous trial.
The information presently is in nineteen counts, each count charging violation of sec. 206(a) of the Act, 49 U.S.C.A. § 306(a). All the counts are similar with the exception of certain differences as to dates and points of origin and destination, consignors and consignees and the like. Originally each count was in four paragraphs. As a result of a prior trial, the last three paragraphs of each count are disregarded for the purposes of this trial. Accordingly, for the purposes of this opinion, paragraph one of count one may be taken as typical of the charges of the first paragraph of each of the remaining nineteen counts.
Paragraph one of Count 1 is in the following language:
'That on to wit, November 2, 1942, Zentz Motor Lines, Inc., a corporation, defendant, then and there being a common carrier by motor vehicle engaged in the transportation of property 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 public highways, in that it did transport by motor vehicle on public highways from New York, New York, through and within the State and District of New Jersey and within the jurisdiction of this Court, to Fort Bragg, North Carolina, for Nathan Schweitzer Company, consignor, certain property, to wit, 184 barrels frozen chickens, consigned to Sales Officer, Quartermaster Corps, Field Commissary, for Compensation to wit, $ 255.51, then and there without there being in force with respect to said defendant 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).'
The section of the Act under which and for the violation of which, this information is brought, prohibits a common carrier by motor vehicle from engaging in interstate commerce unless there is in force with respect to such carrier a certificate of convenience and necessity authorizing such operation.
The pertinent provisions of section 206(a), 49 U.S.C.A. § 306(a), provide as follows:
'(a) Necessity for; motor carriers in bona fide operation on June 1, 1935. 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.'
Thereafter follow certain provisos which are not here pertinent. Section 322(a) provides for penalties on violation of any of the provisions of the Act where none are otherwise provided for.
The terms and conditions of a certificate of public convenience and necessity issued to a common carrier by motor vehicle are set forth in section 208(a), 49 U.S.C.A. § 308(a) and insofar as they are pertinent provide:
'(a) Any certificate issued under section 306 or 307 shall specify the service to be rendered and the routes over which, the fixed termini, if any, between which, and the intermediate and off-route points, if any, at which, and in case of operations not over specified routes or between fixed termini, the territory within which, the motor carrier is authorized to operate; and there shall, at the time of issuance and from time to time thereafter, be attached to the exercise of the privileges granted by the certificate such reasonable terms, conditions, and limitations as the public convenience and necessity may from time to time require, including terms, conditions, and limitations as to the extension of the route or routes of the carrier, and such terms and conditions as are necessary to carry out, with respect to the operations of the carrier, the requirements established by the Commission under section 304(a)(1) and (6): Provided, however, that no terms, conditions, or limitations shall restrict the right of the carrier to add to his or its equipment and facilities over the routes, between the termini, or within the territory specified in the certificate, as the development of the business and the demands of the public shall require.
'(b) Deviation from route. A common carrier by motor vehicle operating under any such certificate may occasionally deviate from the route over which, and/or the fixed termini between which, it is authorized to operate under the certificate, under such general or special rules and regulations as the Commission may prescribe.'
Pursuant to the terms and conditions of section 206(a), 49 U.S.C.A. § 306(a), the Interstate Commerce Commission (hereinafter called the Commission), issued a certificate of public convenience and necessity to the Zentz Motor Lines, Inc., the predecessor in name to the present defendant, Schupper Motor Lines, Inc., under date of March 25, 1942 (docket No. M.C. 14369). By the terms of its certificate, defendant was authorized (insofar as it pertains to this proceeding) to transport, as a common carrier, general commodities, with certain exceptions, over specified routes, between New York, New York and Alexandria, Virginia, with the right to serve certain off-route points, not material here. Authority was also given to serve all intermediate points; and off-route points in Maryland and Virginia within a five mile area of Washington, D.C. Additionally, defendant had granted to it, in May of 1942, a temporary operating authority, authorizing the transportation of dangerous explosives, until December 1944, over the routes and within the territory covered by the certificate previously granted.