its own trucks without certificate and attempted to enjoy the status of a carrier without regulation. This is not only contrary to statute and judicial interpretation but is also in direct contravention to the stated Association By-laws and purposes mentioned above.
Part II of the Interstate Commerce Act is comprehensive enough to bring within its purview all those who are in substance engaged in a business of transportation of property on the public highways for hire. Georgia Truck System, Inc., v. I.C.C., 123 F.2d 210 (5th Cir. 1941).
The statute is remedial in nature and should properly be liberally construed to effect its evident purpose. McDonald v. Thompson, 305 U.S. 263, 83 L. Ed. 164, 59 S. Ct. 176 (1938).
The Association cannot claim exemption from the application of Part II of the Act by virtue of the Part IV exemption previously referred to. As stated above, the legislative history of the enactment (Part IV) clearly points out the line of distinction between freight forwarders and non-profit associations of shippers, such as the defendant herein. There is no aim on the part of Congress to exclude shipping associations who assume responsibility for the through movement of goods from the application of the Motor Carrier Act. The freight forwarder who is excluded from the Act does not engage in the transportation by motor vehicle. The exemption from Part IV afforded to the shipper would be lost if it crossed the line of distinction so as to be considered a freight forwarder and consequently this exemption can afford the Association no protection in an area regulated similarly for all parties.
In analyzing the entire picture this Court concludes that the Association and its Director was aware of the restrictions placed upon it by the statutes in question and operated in violation of same. The various acts described constitute violations of the above mentioned statutes and as such will be enjoined by this Court under 49 U.S.C.A. § 322(b).
The defendant Granite was a party to a prior proceeding in which a similar association was enjoined from further activity in this area. In that matter Trans-Continental Shippers Association was enjoined from performing unauthorized for-hire transportation. Both Barth and Granite were named as defendants in that action. However, the complaint against Barth was dismissed. The injunction was granted as against the Association and Granite.
The Commission contends that in view of the past history there is a danger that both Granite and Barth will continue to operate in the manner described above. The counsel for Barth has presented additional material to show that Barth has not only withdrawn from the Association but has taken steps to handle its shipping in a manner in accordance with proper existing Interstate Commerce Commission procedure. Consequently this Court is not convinced there is any danger of Barth continuing to operate in such a manner or that it would join an association operating in an illegal manner in the future. Furthermore, there is sufficient evidence to show that the entry into the Association by Barth was predicated upon the belief the Association would function according to its proscribed by-laws and method of operation.
In light of the foregoing it is the opinion of this Court that the defendants, Association, DeWitt and Granite will be enjoined from violating 49 U.S.C.A. §§ 303(c), 306(a)(1) and 309(a)(1). The complaint will be dismissed against the defendant Barth.
Let counsel for the Commission submit an appropriate form of injunction and order.
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