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FROZEN FOOD EXPRESS v. UNITED STATES ET AL.

decided: April 23, 1956.

FROZEN FOOD EXPRESS
v.
UNITED STATES ET AL.



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS.*fn*

Warren, Black, Reed, Frankfurter, Douglas, Burton, Clark, Minton, Harlan

Author: Douglas

[ 351 U.S. Page 41]

 MR. JUSTICE DOUGLAS delivered the opinion of the Court.

Part II of the Interstate Commerce Act, 49 Stat. 543, as amended, 49 U. S. C. § 301 et seq., grants the Commission pervasive control over motor carriers. Common carriers and contract carriers by motor vehicle, subject to that part of the Act, must have a certificate of public convenience and necessity or a permit issued by the Commission. §§ 206 (a), 209 (a). The Commission has powers of investigation to determine if a motor carrier has complied with the Act; and it has authority to issue an order compelling compliance. § 204 (c). These requirements for a certificate or permit*fn* are not, however, applicable to "motor vehicles used in carrying property consisting of ordinary livestock, fish (including shell fish), or agricultural (including horticultural) commodities (not including manufactured products thereof), if such motor vehicles are not used in carrying any other property, or passengers, for compensation." § 203 (b)(6).

The controversy in these cases centers around this "agricultural" exemption. After an investigation instituted on its own motion, the Commission issued an order that specified commodities are not "agricultural" within the meaning of § 203 (b)(6).

The hearing to determine the meaning and application of the term "agricultural . . . commodities (not including manufactured products thereof)" as used in § 203 (b)(6) was held before an examiner. It was a public hearing at which various governmental officials and agencies and

[ 351 U.S. Page 42]

     various producers, shippers, and carriers appeared and presented evidence. The Commission's decision was in the form of a report and order. 52 M. C. C. 511. The report, which concerns various groups of commodities, covers 71 pages of the printed record. The findings list those commodities that the Commission finds are exempted under § 203 (b)(6) and those that are not. The order of the Commission incorporates the "findings" and states that the proceeding "be, and it is hereby discontinued."

Frozen Food Express, the plaintiff, is a motor carrier transporting numerous commodities which the Commission ruled were nonexempt under § 203 (b)(6) but which the carrier claims are "agricultural commodities." Plaintiff, who was not a party to the administrative proceeding, instituted suit before a three-judge District Court (28 U. S. C. § 2325) to enjoin the order of the Commission and have it set aside, naming the United States and the Commission as defendants. 28 U. S. C. § 1336; 49 Stat. 550, as amended, 49 U. S. C. § 305 (g); 60 Stat. 243, 5 U. S. C. § 1009. The complaint alleged that plaintiff is a common carrier by motor vehicle, holding a certificate of public convenience and necessity which authorizes it to transport certain commodities between designated points and places; that plaintiff is transporting, in addition to those commodities, commodities which are exempt under § 203 (b)(6) and for which plaintiff has sought no authority from the Commission; that the Commission in its order has held the latter commodities nonexempt and accordingly has deprived it of the right granted by the statute; that the order of the Commission classifying certain commodities as nonexempt is unlawful; and that the Commission threatens to enjoin transportation of the commodities which plaintiff claims are exempt. The Secretary of Agriculture intervened, supporting plaintiff's position on some of the commodities. Other interveners

[ 351 U.S. Page 43]

     are trucking associations and railroads which support the Commission. The United States as a defendant supports the Commission on some of its findings and opposes it on others.

The District Court, being of the view that the case was controlled by United States v. Los Angeles R. Co., 273 U.S. 299, dismissed the action, saying that the "order" of the Commission was not subject to judicial review. 128 F.Supp. 374. The cases are here by appeal. 28 U. S. C. §§ 1253, 2101 (b).

We disagree with the District Court. We do not think United States v. Los Angeles R. Co., supra, is controlling here. In that case the "order" held non-reviewable was a valuation of a carrier's property made by the Commission. The Court held that the "order" was no more than a report of an investigation which might never be the basis of a ...


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