agent not only for the passenger but also for the carrier for the purchase and sale of transportation: otherwise one is no broker; that Tauck was constituted by condition '(1),' 54 M.C.C. at page 306, imposed by the Commission's order (i.e., '* * * the contract negotiated (by Tauck) with the carrier furnishing the motor transportation * * * (must be) one between it (the carrier) and the group members collectively * * *') as the exclusive agent for its patrons in contracting for transportation and that therefore it cannot be a 'broker' within the definition of the Act. It follows, say the plaintiffs, since Tauck has been held not to be a 'carrier', there is no way in which it can lawfully sell its certificates of membership.
Further, say the plaintiffs, even if Tauck can be deemed to be a 'broker' under the first proviso clause of Section 211(a), it cannot employ any carrier by motor vehicle who does not have 'an effective certificate or permit', and this means that if Tauck sells individual certificates of membership -- mere 'tickets' -- then Tauck in procuring transportation for its patrons can employ only carriers who are licensed to sell individual tickets. Otherwise, it is argued, any charter operator could break down the limitations so carefully placed on his operations by the Commission pursuant to the authority conferred by the Act for if such a carrier wished to reap the benefits from sales, expressly prohibited to him of individual tickets, he could do so by the easy subterfuge of engaging an obliging licensed broker to do the selling for him as his agent.
As to the first argument, that respecting the use of the terms 'agent' and 'broker' as employed in Sections 203(a)(18) and 211(a), we do not encounter great difficulty. It can be argued that the term 'agent' in the definition section, Section 203(a)(18), must have been employed by Congress in two different senses, a substantial legal anomaly and one discussed by the Commission at some length.
But we think it unnecessary to resolve this question of interpretation for one who procures transportation for an individual or for a group may remain a broker whether or not he is also an agent for an individual or for a group, and for the carrier. We conclude that a travel agency such as Tauck may procure or engage transportation for an individual or for a group and still remain a 'broker' within the meaning of the Act. Cf. Copes Broker Application, 1940, 27 M.C.C. 153.
Directing our attention now to the plaintiffs' argument based in particular on Section 211(a), the 'effective certificate or permit' provision, it should be noted that the effect of the Commission's condition '(1),' 54 M.C.C. at page 306, has been to cause Tauck to make use of a legend on its membership certificates by which the holder of the certificate, as a member of the collective tour group, has designated Tauck as agent for the purpose of arranging group motor transportation; that this, in the view of the Commission, had authorized Tauck to charter buses from carriers not certificated to sell individual transportation to passengers, thus rendering the cerificates of such carriers 'effective' within the meaning of Section 211(a).
The plaintiffs brand the legend as a 'sham recitation'
designed to elude the 'effective certificate or permit' language of Section 211(a). It must be conceded by the plaintiffs, however, that a preformed group of travelers -- for example the members of a golf team or of an orchestra -- may lawfully charter a bus for a tour. The Commission thought that Tauck's patrons, traveling and sightseeing together have a 'community of interest' about the equivalent of that of a performed group; that, therefore, if a collective contract for transportation be effected for its group by Tauck such a contract may be deemed to be a true 'charter'.
But the substantial question before us is: is the Commission's position a tenable one? Does it have support in the record and in the law? Is it sufficiently rational to withstand the attack on the ground that the Commission has made a mere play on words, and has altered the law and its prior rulings by a syllogism? It is clear that the Commission has approached its problems with dexterity, and not with delight. Perhaps the legal management of our very complex modern transportation systems is the art of the possible. In any event our powers of review are limited.
We may not set aside the Commission's order simply because we might have reached a different conclusion on the same record. We must give due credit to the expertness of the Commission in the field Congress has confided to it.
In the light of the entire record we conclude the order of the Commission should not be set aside. The arguments of the plaintiffs, while appealing, necessarily possess an abstract quality under the instant circumstances for Tauck is not participating in a fictitious or sham device to grant 'charter' operators, as defined by the Act, broader transportation authority than their present certificates allow them. Tauck has its own valid business reasons, which have nothing to do with extending the authority of charter operators, for having sought the extended certification granted it by the Commission. Tauck is an independent entrepreneur, supplying a useful service which it has developed for itself. Tauck could complain with justice if its traditional way of doing business is now disrupted because other transportation entrepreneurs who also are licensed as 'brokers' are able to make use of arrangements similar to Tauck's for illegitimate ends of their own. Should charter carriers or licensed brokers embark upon such nefarious courses of conduct the powers of the Commission are ample to investigate their actions, cancel their licenses or certifications, and, if necessary, make rules and regulations to correct possible abuses.
It must be borne in mind also that there is no express provision in the Motor Carrier Act, and nothing in its legislative history, to indicate that all-expense tour operators such as Tauck were to be prohibited from carrying on their established practices of chartering buses. And we also note that no question about tour operators' use of chartered buses was raised for thirteen years after the Motor Carrier Act became effective -- indeed, we believe, not until the inception of the instant proceeding.
These are cogent considerations.
As to the form of words, the legend required by the Commission's order, we find it none too magical but we perceive no harm in requiring such a legend to be employed. It is not the words which are important but the circumstances which surround Tauck's tours. Though the individual membership certificates do entitle each individual Tauck patron to transportation and in this sense are 'tickets,' a good deal more than bare individual transportation is involved. The tour is attractive because it is a group adventure. Few people travel to look alone upon Niagara Falls of the Grand Canyon of the Colorado. Whether the group be formed by Tauck before or after the charter of the motor bus seems unimportant; nor does it seem a weighty circumstance that Tauck itself forms the group and not some outside individual, such, for example, as a ski instructor at a ski resort. The important thing is that the Tauck group is a cohesive whole interested in a tour for pleasure, and not in mere transportation.
Our conclusion is that Tauck is entitled to the extension which the Commission has granted it and may charter buses to carry its patrons as the Commission has ruled. We find that the Commission's determination is in the interest of the national transportation policy and we will not set aside the order complained of.
Other points raised by the plaintiffs do not require discussion for we find them to be without merit.
All petitions for intervention will be allowed.
The complaint will be dismissed for want of equity.
Findings of fact and conclusions of law are filed concurrently with this opinion. Rule 52(a), F.R.C.P. Title 28 U.S.C.