Full opinion text
GRAVEN, District Judge. The issue in this case is whether or not the interstate transportation by truck of New York dressed and eviscerated poultry is within the scope of the so-called “agricultural” exemption of the Interstate Commerce Act. Section 303(b) (6) of 49 U.S.C.A.; Section 303(b) (6) of Title 49 of the United States Code. In the United States Statutes at Large, Chapter 498, 49 Statutes 543, 544, that Section appears as Section 203(b) (6). In the legislative history that Section is referred to as Section 203 (b) (6). For that reason it will be referred to herein by that number. In this action the Interstate Commerce Commission claims that the defendant is engaged in transporting New York dressed and eviscerated poultry in interstate commerce without a certificate of public convenience and necessity. The Commission asks that the defendant be enjoined from so doing until he obtains such certificate. The defendant admits that it is so engaged and that it does not have a certificate of public convenience and necessity. It claims that under the provisions of Section 203(b) (6) it is not required to have such certificate. The defendant having admitted that it is engaged in interstate transportation of property by motor vehicle, the burden is upon it to establish that its activities come within the exemption. U. S. v. Krinvic Bros., D.C.E.D.Pa.1942, 47 F.Supp. 481; U. S. v. Chadwick, D.C.E.D.Pa.1940, 39 F.Supp. 204. The Secretary of Agriculture asked for, and was given, permission to appear as amicus curiae. Counsel for the Secretary of Agriculture also filed written briefs and participated in the oral arguments. The position of the Secretary of Agriculture is the same as that of the defendant and is opposed to that of the Interstate Commerce Commission. The written briefs filed and the oral arguments made in behalf of the plaintiff, the defendant, and the amicus curiae were all outstanding and a credit to the legal profession. Section 203(b) (6), above referred to, in its present form exempts from the certificate provisions of the Act: “ * * * (6) 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”. While Section 203(b) (6) includes fish as well as horticultural commodities, it is commonly and generally referred to as the agricultural exemption. This particular case is but one engagement of a much larger battle that has been raging for many years. The battle commenced when legislation was proposed granting regulatory powers to the Interstate Commerce Commission as to interstate transportation by motor vehicles and has continued ever since. By the Motor Carrier Act of 1935, now Part II of the Interstate Commerce Act, 49 U.S.C.A. § 301 et seq., Congress granted the Interstate Commerce Commission such regulatory powers. The battle has been, and is being, waged as to what regulatory powers the Interstate Commerce Commission should have as to the interstate transportation by motor vehicles of products generally referred to as agricultural commodities, and as to the exact scope of Section 203(b) (6). Those engaged in interstate transportation by motor vehicle who operate under certificates of public convenience and necessity issued by the Interstate Commerce Commission under the Act are generally referred to as regulated or certificated carriers. Those who are so engaged without being required to obtain such certificates are generally referred to as unregulated or uncertificated carriers. The battle referred to has been waged on the floors of the House and the Senate, before Congressional Committees, before the Interstate Commerce Commission, and in the Courts. In that battle the regulated motor vehicle carriers and the railroads have, in general, contended for very limited exemptions from the certificate provisions of the Act and for a strict construction of the provisions providing for exemptions. Farm groups, other groups interested in the scope of the coverage of Section 203(b) (6), the unregulated carriers, and the Department of Agriculture have in general advocated a broad statutory exemption from the certificate provisions of the Act and for a liberal construction of the exemption provision as enacted. The controversy has largely resolved around the matter of the exemption in favor of commercial truckers engaged in hauling farm and other commodities. There has been little controversy as to the exemptions in favor of farmers -who use their own trucks to haul their produce to market and in hauling supplies to their farms. Chapter 1 of the Motor Carrier Act of 1935 declared the National Transportation Policy. This same statement of policy was, by Act of September 18, 1940, c. 722, Title I, § 1, 54 Stat. 899, inserted before Part I of the entire Interstate Commerce Act, 49 U.S.C.A. note preceding section 1, to become the policy of the entire Act. That statement of policy is as follows: “It is hereby declared to be the national transportation policy of the Congress to provide for fair and impartial regulation of all modes of transportation subject to the provisions of this Act, so administered as to recognize and preserve the inherent advantages of each; to promote safe, adequate, economical, and efficient service and-foster sound economic conditions in transportation and among the several carriers; to encourage the establishment and maintenance of reasonable charges for transportation services, without unjust discriminations, undue preferences or advantages, or unfair or destructive competitive practices; to cooperate with the several States and the duly authorized officials thereof ; and to encourage fair wages and equitable working conditions;- — -all to the end of developing, coordinating, and preserving a national transportation system by water, highway, and rail, as well as other means, adequate to meet the needs of the commerce of the United States, of the Postal Service, and of the national defense. All of the provisions of this Act shall be administered and enforced with a view to carrying out the above declaration of policy.” It has been and is the view of the Interstate Commerce Commission that since the Motor Carrier Act was remedial legislation the Act as a whole should be liberally construed to carry out its over-all purpose and policy. It has been, and is, the position of the Interstate Commerce Commission that a liberal construction of the exemptions from the Act would tend to defeat and negative the over-all purpose and policy of the Act and that the carrying out of such purpose and policy requires a strict construction of its exemptions. It is also the view of the Interstate Commerce Commission that the existence of a large number of carriers engaged in interstate transportation who are not subject to the certificate provisions of the Act tends to break down and seriously impair the general regulatory authority and powers assigned to it by Congress. In 1952 the Senate Committee on Interstate and Foreign Commerce held committee hearings on a number of bills, including S. 2357. That bill as originally introduced provided for a narrowing of the scope of the agricultural exemption. The hearings were reported at pages 371 to 522 of a document entitled “Domestic Land and Water Transportation Hearings Before The Committee on Interstate and Foreign Commerce, United States Senate, Eighty-Second Congress, Second Session.” That document will hereafter be referred to as Senate Hearings S. 2357 or as S.H. -2357. At those hearings statements were made which indicate some of the problems presented by the existence of unregulated carriers. In S.H.-S.2357, on page 403, the following appears: “Senator Bricker. * * * On the other hand, you have got a competitive situation here between those who have to pay the charges of regulation, who have to be confined to certain routes, who have to enter into contracts, * * * with those who have absolutely no regulation, no responsibility to any public authority at all, and it largely comes under the exemption here of agricultural products * ‡ *» It has been, and is, the view of the Department of Agriculture that by enacting the agricultural exemption Congress intended it to be of aid to those engaged in agriculture and such Congressional intent should not be frustrated by administrative and judicial construction and interpretation. In 1950 under S.Res. 50, 81st Congress, 2d Session, extensive hearings were held by the Senate Committee on Interstate Commerce relating to transportation matters, including the agricultural exemption. The report of those hearings will hereafter be referred to as S.Res; 50. Ever since the passage of the Act there has been present the “brooding omnipresence” of “trip leasing.” “Trip leasing’r and matters connected with it are an important part of the background of the general battle that has been waged in connection with the agricultural exemption. That background is also explanatory of some of the attitudes and positions taken by the Interstate Commerce Commission, the Department of Agriculture, and other interested parties. The movement of agricultural and other exempt commodities is in general a one-way movement. That movement is from the areas of production to the principal market points. In general, there is no substantial movement of exempt commodities from such market points back to the areas of production. Thus, those uncertificated carriers who haul exempt commodities to the market points are confronted with the matter of return loads. Without return loads the original hauling of exempt commodities to the market points tends to be economically unprofitable. In general only non-exempt commodities are available for return loads, the hauling of which requires a certificate from the Interstate Commerce Commission, which the uncertificated carriers lack. In order to haul return loads of non-exempt commodities, it is necessary for the uncertificated carriers to haul them under the certificate of a certificated carrier. In order to haul such loads under the certificate of a certificated carrier, the practice of trip leasing developed. It should be noted, however, that the practice of “trip leasing” is not confined to uncertificated carriers hauling exempt agricultural commodities. Under the practice of “trip leasing” an uncertificated carrier who had hauled a load of exempt agricultural commodities from the area of production to a market point would at such point, by means of brokers or otherwise, contact certificated carriers whose ■certificates permitted them to haul certain non-exempt commodities from such market point to points in the vicinity of the area ■of production. If a certificated carrier had a load available and was lacking in equipment, or could bargain with the uncertificated carrier and secure a rate by which it could profit, an arrangement would be entered into whereby the uncertificated carrier would “trip lease” his truck for the return trip only. Either the uncertificated carrier or one of his employees would act as driver. The vehicle then being under lease to a certificated carrier was eligible to haul non-exempt commodities under the certificate of such carrier. The method of compensating the lessee for the use of his equipment varied. Under the more usual arrangements the owner and lessor of the leased vehicle received a percentage of the freight charged by the certificated carrier. Ever since the practice of “trip leasing” was initiated, it has been the position of the Interstate Commerce Commission that “trip leasing” gave rise to many of the very evils which originally brought about the passage of the Motor Carrier Act. In Senate Hearing S. 2357, supra, on page 395, the statement is made that most of the unregulated or uncertificated carriers engaged in hauling exempt agricultural commodities are “small owners who perhaps own one or two or three or four trucks at the most.” It is indicated that the number of such ■carriers runs into the thousands. However, in the report on S.Res. 50 it was stated that sometimes a regulated carrier will set up an affiliated corporation to conduct operations which are exempt from regulation under the agricultural exemption. In other places in that report it was indicated that some of the commercial truckers operate a considerable number of trucks in the exempt field. In the course of argument it was stated that the defendant in the present case operated from 10 to 12 trucks in the hauling of dressed poultry. On page 378 of the report of Senate Hearing S. 2357 a witness stated that the agricultural exemption promoted “trip leasing” and the evils connected therewith; that the transient, temporary, and in many cases the loose nature of the arrangements, whereby trucks are "trip leased” to be operated under the certificate of a certificated carrier, make for loose control of such vehicles by the certificated carriers; make for difficulty on the part of the Interstate Commerce Commission in the matter of inspection and regulation, especially in regard to matters of safety; and that the practice resulted in economically destructive rates. In the report under S.Res. 50, on page 1218 thereof, a witness stated that in “trip leasing” some certificated carriers were able to and in fact did exploit the uncertificated or “gypsy” carriers because of the economic necessities of the latter. In the case of American Trucking Ass’ns, Inc., v. United States, 1953, 344 U.S. 298, 73 S.Ct. 307, the United States Supreme Court discusses some of the problems and evils connected with “trip leasing.” Fairly soon after the passage of the Act the Interstate Commerce Commission stated in Monroe Common Carrier Application (July 9, 1938) 8 M.C.C. 183 that the agricultural exemption was inapplicable to any vehicle which was being used to haul both exempt and nonexempt commodities even though not hauled on the same load. In other words, the Interstate Commerce Commission made the test for the exemption the use to which the truck was put and not the commodity hauled at a particular time. Such a construction, if upheld, would have for all practical purposes ended “trip leasing” of trucks of uncertificated carriers engaged in hauling exempt agricultural commodities. However, that construction was stricken down by the courts in the cases of Interstate Commerce Commission v. Service Trucking Company, 3 Cir., 1951, 186 F.2d 400; Interstate Commerce Commission v. Service Trucking Company, D.C. E.D.Pa.1950, 91 F.Supp. 533; and Interstate Commerce Commission v. Dunn, 5 Cir., 1948, 166 F.2d 116. These cases will be referred to later in more detail. The Interstate Commerce Commission in the recent case of In re William Blaue, decided on March 25, 1953, followed the rule of the Dunn and Service Trucking Company cases in the construction of the so-called “newspaper” exemption .of the Act, Section 203(b)(7). The decisions in the Dunn and Service Trucking Company cases pretty well ended any hope that “trip leasing” could be regulated or stopped by construction of the pertinent statutory provisions of the agricultural exemption. On January 10, 1952, S. 2357 was introduced in the 82d Congress, 2d Session. That bill, as originally introduced, contained inter alia a provision denying the agricultural exemption to motor vehicles hauling any of the commodities referred to therein if such vehicles were used on the return trip or customarily for any other kind of transportation for compensation. That provision, if enacted, would have ended “trip leasing” so far as motor vehicles engaged in hauling exempt agricultural commodities were concerned. The Senate Committee conducting the hearings under S.Res. 50 held extensive hearings on S. 2357 but Congress did not enact it. On May 8, 1951, the Interstate Commerce Commission, acting under rule making authority claimed to have been granted it under the Act, proposed a number of rules relating to the use and exchange of equipment between motor carriers. Ex parte M.C.-43, Lease and Interchange of Vehicles by Motor Carriers, 52 M.C.C. 675. Those rules, among other provisions, provide that where authorized motor carriers enter into leases of motor vehicles which are to be driven by the owners of the leased vehicles or their employees, the lease period must be for a period of not less than thirty days. Suits challenging the legality of the rules were promptly instituted. In those suits the plaintiffs challenged the asserted authority of the Interstate Commerce Commission to promulgate the rules. They further challenged the validity of the rules on a number of grounds. The issues raised by the suits were passed upon by the United States Supreme Court in American Trucking Ass’ns, Inc., v. United States, 1953, 344 U.S. 298, 73 S.Ct. 307. The Court, with two Justices dissenting, upheld the authority of the Interstate Commerce Commission to promulgate the rules and held the rules to be valid. On page 314 of 73 S.Ct. the Court states: “ * * * All agree that the rules thus abolish trip leasing. * * * ” It was contended in behalf of the plaintiffs that the rules were invalid because of their effect upon the agricultural exemption. That contention was overruled. The dissenting Justices were of the view that the rules were destructive of the agricultural exemption. Counsel for the Interstate Commerce Commission stated, in the course of oral argument in this case, that the rules, 52 M.C.C. 675, had not as yet been put into effect. It is the view of counsel for the Secretary of Agriculture, as expressed during the course of argument, that the rules referred to constituted a successful “flank attack on the agricultural exemption” and that .the present action and similar actions constitutes an attack from another flank which, if successful, will for all practical purposes nullify the agricultural exemption so far as poultry is concerned. Following the decision of the United States Supreme Court in American Trucking Ass’ns, Inc., v. United States, supra, there was introduced into Congress H.R. 3203. It is a bill providing for the vacation of that portion of the rules referred to relating to the thirty days’ leasing period. The House Committee on Interstate Commerce by H.Rept. 519 has recommended favorable action thereon. On May 18, 1953, the Interstate Commerce Commission in Ex parte M.C.-43 modified the rules referred to in regard to the thirty days’ leasing period. Under the modified rules, motor vehicles owned by a producer or grower of agricultural commodities or livestock who has used his motor vehicles to haul such commodities or livestock to market and motor vehicles used to haul to market the items specified in Section 203 (b) (6) may under certain conditions be leased for return trips for a lesser period than thirty days. In the report under S. .50, it was stated that only an infinitesimal amount of poultry was dressed by the farmers themselves. Counsel for the Interstate Commerce Commission in the course of argument stated the overwhelming number of truckers who are engaged in hauling New York dressed and eviscerated poultry have secured certificates. He further stated that the fact that the defendant and a minority of truckers are operating as uncertificated carriers in the samé field is breaking down and impairing the administration of the Act and is subjecting the certificated carriers to a particularly injurious form of competition. While the uncertificated carriers are generally referred to as unregulated carriers, it should be noted that such carriers are not entirely free of regulation. In the Act as originally enacted, it was provided by Section 204 (3) thereof, 49 U.S.C.A. § 304 (3), that, “if need therefor is found” by the Interstate Commerce Commission, private carriers could be made subject to the safety regulations, the equipment regulations, and the regulations relating to the qualifications and maximum hours of service of employees prescribed by the Commission under the Act. The Commission fairly soon after the Act became effective found that such need existed. Uncertificated carriers are now subject to those regulations. In the present case the defendant is a corporation that owns and operates a number of trucks which are used to haul New York dressed and eviscerated poultry from points in Iowa to Chicago, Illinois, and other points in other states. New York dressed poultry is defined by those engaged in the poultry trade as being poultry with the head and feathers removed and in some instances with the feet also removed. Eviscerated poultry is defined by those engaged in the poultry trade as poultry with the head, feet, feathers, and entrails removed and with the liver, heart, and gizzard cleaned, wrapped, and replaced in the carcass. The parties stipulated as to the matters set forth in this paragraph. Poultry raising is an important segment of agriculture in Iowa and dressed poultry is a major farm product of the state. The shipping of poultry is seasonal in nature and with very few exceptions all dressed poultry is hauled between September 1st and December 31st. The shippers of poultry hauled by the defendant operate plants at various points in Iowa. Such shippers, purchase chickens, turkeys, and other poultry from the farmers and dress the poultry at their plants prior to shipping. Each plant is equipped with a production chain upon which the fowls are placed and killed. They are then moved on the chain through various stages of processing which consists of removing the feathers, singeing, and rubbing. They are then stored in a refrigerator room for precooling to a specific temperature prior to shipment. The exemption provision referred to exempts from the certificate provisions of the Act motor vehicles used in carrying “ * * * ordinary livestock, * * *, or agricultural * * * commodities (not including manufactured products thereof), * * *.” The provision as originally enacted did not contain the word “ordinary” in front of the word “livestock.” The first change made by Congress in Section 203 (b) (b) following its original enactment was .made in the Transportation Act of 1940, 54 Stat. 921. Congress in that Act inserted the word “ordinary” before the word “livestock.” In the report under S. Res. 50, page 823, it was stated that “The effect of this change, among other things, was to lead the Commission to change its interpretation of the status of poultry which it had first classed as livestock (and therefore exempt only when alive) * * *.” One portion of the exemption provision referred to exempts vehicles which are carrying “agricultural * * * commodities (not including manufactured products thereof), * * *” The parties are in agreement that live poultry is an agricultural commodity. They are in disagreement as to whether New York dressed and. eviscerated poultry is an “agricultural commodity” or a “manufactured product.” While eviscerated poultry is somewhat more extensively processed than is New York dressed poultry, yet counsel in argument stated that no distinction is claimed as between the two so far as the agricultural exemption is concerned. Since the parties are in agreement that live fowls as they leave the farm are an “agricultural commodity,” the real disagreement between the parties is as to when they become a “manufactured product.” It is the claim of the Interstate Commerce Commission that they probably become such upon being killed and in all events after they have been New York dressed or eviscerated. It is the claim of the defendant and the Secretary of Agriculture that by such dressing or eviscerating the fowls have not as yet reached the point where they can be properly and legally classified as a “manufactured product” and that something further or other is required before they have that status. In a number of the fields of law the question has arisen as to what steps, or processing, are necessary before a particular item can be classified as a “manufactured product.” Much difficulty has been experienced in interpreting the word “manufactured” used in Section 203(b) (6). In the report under S.Res. 50, a witness stated (p. 802) that much of this difficulty was occasioned by the fact that the word “manufactured” has not been commonly used in statutes dealing with agriculture and that the word most commonly used is “processed.” The same witness stated (p. 803) there were a number of jurisdictions in which it was held that slaughtering was not a manufacturing business. The parties have cited and discussed decisions in cases arising under Tariff Acts and the Patent Act as what constituted a “manufactured” .article within the purview of those Acts. Some of the decisions contain definitions of “manufacture,” “manufactured,” and “manufactured products.” Some of the decisions •set forth tests which the parties claim are .applicable and determinative in the present case. The parties also presented a number of non-judicial definitions and tests which are claimed to be applicable and determinative. In that connection the defendant and the Secretary of Agriculture cite .and rely upon the cases hereafter referred •.to. In the case of Frazee v. Moffitt, C.C.N.D.N.Y.1882, 20 Blatchf. 267, 18 F. 584, it was held that hay was not a manufactured product. That case arose under a federal statute which imposed an import duty at a certain rate upon unmanufactured articles and at another rate upon manufactured articles. In the case of Hartranft v. Wiegmann, 1887, 121 U.S. 609, 7 S.Ct. 1240, 30 L.Ed. 1012, it was held that sea shells which had been subjected to processing whereby two or three layers of each shell were removed and the inner shell polished on an emery wheel and mottoes etched on the polished inner shell were not manufactured articles under the Tariff Act. In the case of Anheuser-Busch Brewing Ass’n v. United States, 1908, 207 U.S. 556, 28 S.Ct. 204, 52 L.Ed. 336, it was held that corks which had been extensively processed were not manufactured articles under the Tariff Act. The defendant and the Secretary of Agriculture call attention to the following statement of the Court in the latter case, 207 U.S. at page 562, 28 S.Ct. at page 206: “ * * * Manufacture implies a change, but every change 'is not manufacture, and yet every change in an article is the result of treatment, labor, and manipulation. But something more is necessary, as set forth and illustrated in Hartranft v. Wiegmann, 121 U.S. 609, 7 S.Ct. 1240, 30 L.Ed. 1012. There must be transformation; a new and different article must emerge, ‘having a distinctive name, character, or use.’ * * * ” The defendant and the Secretary of Agriculture particularly rely upon the definition of the word “manufacture” approved in the case of American Fruit Growers, Inc., v. Brogdex Co., 1931, 283 U.S. 1, 51 S.Ct. 328, 75 L.Ed. 801. In that case the Court held that, an orange which had become impregnated with a borax solution through immersion in a solution and thereby rendered resistant to blue mold was not a manufactured article within the meaning of the Patent Law. Interestingly, the Interstate Commerce Commission, in the report in a proceeding entitled “Determination of Exempted Agricultural Commodities,” 52 M.C.C. 511, stated that the definition which was approved in the Fruit Growers case was the appropriate and applicable definition to be used in connection with the determination of whether a commodity is or is not a “manufactured product” under the agricultural exemption. The definition referred to is as follows, at page 11 of 283 U.S., at page 330 of 51 S.Ct.: “ ‘Manufacture,’ as well defined by the Century Dictionary, is ‘the production of articles for use from raw or prepared materials by giving to these materials new forms, qualities, properties, or combinations, whether by hand-labor or by machinery’; also ‘anything made for use from raw or prepared materials.’ ” It is the claim of the defendant and the Secretary of Agriculture that under the latter definition dressed poultry is not a manufactured product. The Interstate Commerce Commission making use of the same definition concluded that dressed poultry is a manufactured product. The Interstate Commerce Commission presented a booklet issued by the Executive Office of the President, Bureau of the Budget, dated November, 1945, Part I, entitled Standard Industrial Classification Manual. On page 7 thereof there is included as “manufacturing” establishments “Establishments primarily engaged in killing, dressing, packing, and canning poultry, rabbits, and other small game for the trade * * At the trial the defendant presented evidence to the effect that the Department of Agriculture in its statistical reports and in general had classified dressed poultry as a non-manufactured product. When the Secretary of Agriculture later appeared as amicus curiae he contended similarly. The definitions relied upon by the parties are-broad, general definitions. The relating of them to a particular article, product or commodity requires still further defining of the words used in the definition, i. e., a defining of the definition. In the present case it has been a case of “thrust and parry” (see 30 Vanderbilt L.Rev., pp. 401-406) between the parties in the matter of relating definitive words to the particular commodity involved. This Court is of the view that the tracing out of the meaning of “manufactured products” in the agricultural exemption by means of general definitions and the attempted definition of those definitions would only lead into a semantic wilderness. All of the parties are agreed that the words “agricultural commodities” and “manufactured products thereof” used in the agricultural exemption are ambiguous words. They are not defined in the Act. Therefore, it is necessary that resort be made to decisions construing the provisions of the agricultural exemption an<J to the extrinsic aids of legislative history and administrative interpretation. See Jones, Extrinsic Aids in the Federal Courts, 25 Iowa Law Review 737 (1940). It would seem desirable to first refer to decisions and matters connected with administrative, interpretative, and legislative history in a general chronological order. While Section 203(b) (6), the particular provision being here considered, is generally referred to as the agricultural exemption, yet it should be noted that in the exemption sections of the Motor Carrier Act there are three provisions which are related to or have some connection with the transportation of agricultural products. Subparagraph (9) of Section 203(b) provides for the exemption of “ * * * the casual, occasional, or reciprocal transportation of passengers or property by motor vehicle in interstate or foreign commerce for compensation by any person not engaged in transportation by motor vehicle as a regular occupation or business, * * .” That provision was in the draft of the Act that was first presented to Congress by Coordinator Eastman. So far as farmers-were concerned, it would permit one farmer to haul an -occasional load of farm produce for another farmer. The casual or occasional exemption, in practically the same form as it now exists, was included in the bill H.R. 5262, 74th Congress, 1st Session (1935). In the reported hearings on that bill, entitled “Hearing Before a Subcommittee of the Committee on -Interstate and Foreign Commerce, House of Representatives, Seventy-Fourth Congress,. First Session, on H.R. 5262 and H.R. 6016,”' Coordinator Eastman stated, at page 46> thereof: “ * * * It was really intended to cover the situation of the farmer more than anything else. The farmers operate their own trucks in many instances, and may occasionally do some trucking for their neighbors.” Subparagraph 4(a) of Section 203(b) of the Act exempts “motor vehicles controlled and operated by any farmer when used in the transportation of his agricultural commodities and products thereof, or in the transportation of supplies to his farm”. Subparagraph (6) of Section 203(b), the exemption here involved, originated in the House Committee on Interstate and Foreign Commerce after the bill had passed the Senate and been sent to the House. Subparagraph (4a), exempting trucks operated by farmers themselves, came in as an amendment from the floor of the House. In later Congressional hearings relating to the Act some witnesses made reference tO' this paragraph, (4a), as being the “farm exemption” when what was being considered by the Committee at the time were the provisions of subparagraph (6), here involved. The salient feature of subparagraph (6) was that in contrast to subparagraph (4a), which provided exemption only for trucks operated by the farmers themselves, it, sub-paragraph (6), provided exemption for motor vehicles operated by others than the farmers themselves and thus exempted trucks operated by commercial truckers, and as heretofore noted it is the matter of the exemption to such truckers around which the battle has raged and still rages. Subparagraph (6), when first reported out by the House Committee as an amendment, contained the words “unprocessed agricultural products.” Those words were later deleted and the following words now appearing in subparagraph (6) were inserted: “Agricultural commodities (not including manufactured products thereof).” It should be noted that some of the statements and discussion set forth in the legislative history as to the meaning and coverage of the paragraph were made before the change in language was made. It should also be noted that subparagraph (4a), which came in as an amendment from the floor of the House, came in after there had been considerable discussion of the Committee Amendment which in final form is subparagraph (6) here involved. Bills similar to the bill which ultimately became the Motor Carrier Act of 1935 had been introduced in the 69th Congress and each succeeding Congress up to 1935. The Act was approved Aug-ust 9, 1935, c. 498, 49 Stat. 543. The bill which became the Motor Carrier Act was drafted by the late Charles F. Eastman, one of the country’s notable public servants and an outstanding expert in the field of transportation. Fie served as a member of the Interstate Commerce Commission for 25 years and also served as Federal Coordinator of Transportation under the Coordinator of Transportation Act, Emergency Railroad Transportation Act of 1933, c. 91, 48 Stat. 211. He was also the head of the Office of Defense Transportation in which position he was serving at the time of his death. Mr. Eastman drafted the bill while serving as Federal Coordinator of Transportation as one of the duties of his office as Coordinator. Section 13 of the Emergency Railroad Transportation Act of 1933 made it the duty of the Coordinator, among other things, “to investigate and consider means, not provided for in this title, of improving transportation conditions throughout the country”. It also made it his duty, from time to time, to “submit to the Commission [that is the Interstate Commerce Commission] such recommendations calling for * * * legislation to these ends as he may deem necessary or desirable in the public interest”, and those recommendations were to be transmitted to the President, and to the Congress, with the comments of the Commission. He transmitted it to Congress where it was introduced by Senator Wheeler as S. 1629. It was. referred to the Senate Committee on Interstate Commerce. At 79 C.R. 5485 it was reported out of that Committee accompanied by Senate Report 482. The report was general in character and did not refer to the matter of exemptions. The discussion on the floor of the Senate appears commencing with page 5,649 of 79 C.R. At this time the bill contained the exemption for “casual or occasional or reciprocal transportation” which it was stated was to exempt farmers and others who occasionally hauled for hire. 79 C.R. 5,650, 5,651 and 5,652. The bill was passed by the Senate with this exemption but without a specific exemption covering farmers or farm commodities. 79 C.R. 5,737. It was sent to the House and referred to the Committee on Interstate and Foreign Commerce, 79 C.R. 5,912. It was reported out by that Committee accompanied by House Report 1645. 79 C.R. 11,813. That House Committee inserted an amendment which exempted “Motor vehicles when used exclusively in carrying livestock or unprocessed agricultural products.” There was a discussion on the floor of the House between Mr. Whittington and Mr. Sadowski as to the insertion of this ’ amendment by the House Committee. 79 C.R. 12,225. House Report 1645 did not discuss this new exemption which the Committee had added. But the bill was discussed by various members of the House while considering House Resolution 314 which was to make S. 1629 a special order of business. 79 C.R. 12,196 through 12,200. The bill was debated on the floor of the House on July 31, 1935. 79 C.R. 12,204-12,237. The scope of the coverage of the agricultural exemption as it then existed was discussed. Mr. Sadowski stated that “unprocessed farm commodities” meant “anything that has not been canned or manufactured or processed” and said it included cream and milk. 79 C. R. 12,205. At 79 C.R. 12,218 Mr. Jones stated that he expected to offer an amendment which would exempt “Motor vehicles controlled and operated by any farmer and used in the transportation of his agricultural commodities and products thereof, or in the transportation of supplies to his farms; * * This would permit the farmer hauling his crop to market to haul his supplies, back home. This was objected to on the ground that it was already covered by the then present exemption exempting casual or occasional transportation. At 79 C.R. 12,220, Mr. Pettengill offered the following amendment to the committee amendment: “ * * * strike out the words ‘unprocessed agricultural products’ and insert in lieu thereof ‘agricultural commodities not including manufactured products thereof.’ ” Also at 79 C.R. 12,220 Mr. Pettengill stated, “Mr. Chairman, we have heard a good deal of'discussion this afternoon as to what is a processed agricultural product, whether that would include pasteurized milk or ginned cotton. It was not the intent of the committee that it should include those products. Therefore,, to meet the views of many Members we thought we would strike out the word ‘unprocessed’ and make it apply only to manufactured products.” Mr. Whittington, at 79 C.R. 12,-220, stated, “In other words, under the amendment to the committee amendment, cotton in bales and cottonseed transported from the ginneries to the market or to a public warehouse would be exempt, whereas they might not be exempt if the language remained, because ginning is sometimes synonymous with processing.” Mr. Pettengill, at 79 C.R. 12,200, stated, “That is correct.” This amendment was agreed to. 79 C.R. 12,220. Mr. Bland offered an amendment as follows : “ * * * After the word ‘livestock,’ insert a comma and the following: ‘fish, including shellfish.’ ” The amendment was adopted. 79 C.R. 12,220. The amendment proposed by Mr. Jones, which specifically covered farmers, was formally offered. 79 C.R. 12,220. The contention was again’ madé that the matter was already covered by the casual exemption. The Jones amendment was adopted at 79 C.R. 12,222 and is now Section 203(b) (4a) of the Act. At 79 C.R. 12,225 Mr. Whittington proposed an amendment which would strike out that language that would give the Interstate Commerce Commission discretionary power to nullify certain exemptions of the Act. This was objected to on the grounds that the Interstate Commerce Commission needed the discretion relative to those exemptions in order to administer the Act. Thereupon, at 79 C.R. 12,225, Mr. Ford asked: “Does not the gentleman think it would be better for the Congress to decide what should be exempted rather than to leave it in the hands of the Commission that might nullify the entire intentions of Congress ?” A substitute amendment for the one offered by M-r. Whittington was offered Mr. Pettengill at 79 C.R. 12,226, which substitute amendment was agreed to. It made the exemptions relative to agricultural commodities mandatory. As the Act now exists, all the exemptions provided for in subparagraphs (1) through (7a) of Section 203(b) are mandatory while exemptions provided for in subparagraphs (8) and (9) of Section 203(b) are discretionary with the Interstate Commerce Commission. Thus, the exemption relating to trucks operated by the farmers themselves is mandatory, the exemption covering livestock and agricultural commodities herein involved is also mandatory, while the exemption dealing with casual transportation is discretionary with the Interstate Commerce Commission. At 79 C.R. 12,226, Mr. Gilchrist offered an amendment which would have substituted the word “primarily” in place of the word “exclusively” in the exemption dealing with agricultural commodities. This was rejected. 79 C.R. 12,227. At 79 C.R. 12,-279, Mr. Michener made a statement about S. 1629 prior to the final vote on it: “ * * The bill has been amended in numerous particulars. The farmer is especially cared for. And the bill on which we will vote today, in my judgment, fully protects farm tracking.” The amended bill passed the House. 79 C.R. 12,279. The amended bill was sent to the Senate, 79 C.R. 12,459, where the amendments were read and discussed. At 79 C.R. 12,460 Senator Wheeler was asked to explain the amendment, whereupon he stated: “Mr. President, the House amended the bill in minor details, generally liberalizing the provisions of the measure with reference to trucks which are owned by farmers, and which carry farm products. The bill was also liberalized with reference to associations of cooperative farm organizations. It was liberalized in those respects. I personally have no objection to the amendments, and think the hill is improved.” The amended bill was examined and signed in the Senate. 79 C. R. 12,617. Signed by the Speaker of the House at 79 C.R. 12,709. Presented to the President at 79 C.R. 12,712 and approved and signed by the President on August 9, 1935. 79 C.R. 12,863. Soon after the passage of the Act a contemporary writer made the following comment relating to the matter of the exemptions : “ * * * The exemptions applying to vehicles of farmers and farm organizations have little effect since these vehicles would be classed as private carriers of property in most cases, subject only, and then conditionally, to safety of operations and hours of service regulations. However, the exemptions applying to vehicles used exclusively in transporting livestock, fish, agricultural products, and newspapers are another matter. Their effect will be to exclude from the authority of the Commission, so far as business regulation is concerned, an extensive field of for-hire trucking within which there has been an intensive and rapid development. Doubtless the decision to exclude these operations can be attributed in part to strong opposition from farm and newspaper organizations as well as to a belief that to leave unregulated these widespread but often irregular and seasonal operations would simplify the problem of administration of the Act. Similarly, the conditional exemption accorded casual, occasional, or reciprocal for-hire operations was doubtless made for practical reasons, for such operations neither present serious problems nor are susceptible of effective regulation * * *.” Nelson, the Motor Carrier Act of 1935, 44 Journal of Political Economy 464, 479 (1936). In 1938 subsection (b) (6) was amended by the Act of June 29, 1938, § 3, which omitted “exclusively” following “used” and added “if such motor vehicles are not used in carrying any other property, or passengers, for compensation”. C. 811, § 3, 52 Stat. 1237. The bill number was H.R.9739. Also, in 1938, the three following bills were introduced at-the 75th Congress, 3d Session: S. 3768, S. 3941, and H. R. 10508. None of these bills became law. S. 3768 was introduced on April 20, 1938, and was designed to amend subsection (a) of section 203 of the Motor Carrier Act by defining the term “agricultural commodities” by adding the following new paragraph at the end thereof: “(22) The term ‘agricultural commodities’ includes, among other things, ■ (A) all unmanufactured products obtained by cultivation and tillage of the soil, dairying, forestry, horticulture, or market-gardening; (B) all unmanufactured products obtained as a result of raising or keeping livestock, bees, or poultry; (C) fruits, vegetables, nuts, nursery products, ferns, flowers, bulbs; and (D) naval stores as defined in the Naval Stores Act.” This bill was referred to the committee and died. S. 3941 was introduced on April 20, 1938, to amend section 203(b) (6) by offering a substitute for (6) as follows: “(6) motor vehicles used in carrying property consisting of livestock, fish (including shellfish), or agricultural commodities (not including manufactured products thereof), if such motor vehicles are not used in carrying any other property, or passengers, for compensation.” This was an attempt to eliminate the exemption for any vehicle which hauled nonexempt commodities at any time. The bill was not enacted. H. R. 10508 was introduced May 3, 1938. It was identical to the bill S. 3941 referred to above and never became law. On May 6, 1939, the Frank Battaglia Common Carrier Application, No. ÍM.C.-89358, 18 M.C.C. 167, was denied by the Interstate Commerce Commission. The application was originally heard by a Joint Board, composed of representatives of California, Oregon, and Washington, which recommended the action taken by the Commission. The applicant sought a certificate of public convenience and necessity to haul butter, cheese, eggs, and dressed poultry. He had previously been hauling fresh fruits and vegetables. In the course of the opinion the following statement was made: “ * * * Butter, cheese, and dressed poultry are manufactured commodities for the transportation of which authority under the act is necessary * * On May 27, 1939, the Legislative Committee of the Interstate Commerce Commission addressed a letter to Senator Wheeler, Chairman of the Senate Committee on Interstate Commerce, in which it was proposed that section 203(b)(6) be rewritten so as to restrict the scope of the provision. The letter explained that the provision now “applies to transportation of agricultural commodities for the commission-man, broker, and other distributors of farm products both processed and unprocessed” and that such a broad exemption in its judgment constituted an unwarranted discrimination. This proposal for section 203(b)(6) was as follows: “ * * * Motor vehicles used in carrying property consisting of ordinary livestock, fish (including shell fish) or agricultural commodities (not including manufactured products thereof) from the point of production to the point of primary market, processing, manufacture, or transshipment, if such motor vehicles are not used in interstate or foreign commerce in carrying any other property or passengers for compensation.” This proposal was not adopted. Senate Hearing S. 50, page 822. On January 29, 1940, the Legislative Committee of the Interstate Commerce Commission proposed a change in the provisions of Section 203(b)(6). The proposal was contained in a letter addressed to the Chairmen of the House and Senate Committees on Interstate and Foreign Commerce Senate Hearing S. 50, page 823. Those Committees had under consideration S. 2009 which proposed to end the exemption for the transportation of the commodities referred to in Section 203(b)(6) at the point where those commodities first entered the channels of commerce. The proposal of the Interstate Commerce Commission was rejected. The portion of that letter bearing on this phase was as follows:. “(b) As the exemption in paragraph (h) is now worded, in many cases it does not affect transportation for the farmer but applies to transportation of agricultural commodities for the commission man, broker, and other distributors of farm products both processed and unprocessed, a discrimination in favor of one type of commodity which seems unwarranted. In some 21 State statutes this difficulty has been met by limiting the exemption to the transportation of agricultural commodities and livestock from the point of production to the primary market or like point. We suggest, therefore, that the paragraph be amended to read as follows: (h) The transportation of property consisting of ordinary livestock (including poultry), whole fresh fish (including shellfish), or agricultural commodities (not including manufactured products thereof), in the first movement from the point of production to the point of sale by the producer, or to the point of manufacture or transhipment. The point of production for fish shall mean the wharf or other landing place at which the fisherman debarks his catch, and the point of production for livestock or agricultural products shall include the point at which they are gathered for initial shipment to the point of first sale, manufacture, or transhipment. The point of first sale shall not be deemed to include the point of production.” The House Committee made a report, House Report No. 2832, to accompany S. 2009. In that'Report (p. 75), dealing with Section 18(b) (3) of S. 2009, relating to motor vehicles operated by farmers under Section 203(b)(4a), it reported: “The conference substitute in section 18(b)(3) amends this provision by providing that the exemption shall, apply only when such motor vehicles are used in such transportation.” Also on p. 75 of the report, dealing, with Section 18(b)(5), ordinary livestock, it reported : “The conference substitute amends section .203(b)(6) of the Interstate Commerce Act which provides among other things a qualified exemption from the provisions of Part II applicable to motor vehicles used in carrying property consisting of livestock by limiting the exemption to the carriage of ordinary livestock.” Senate Report No. 2016 of April 26, 1940, to accompany S. 2009 is almost identical in this respect to the House Report No. 2832 set out above. Congress rejected the first amendment referred to. It enacted the second amendment referred to on September 18th, 1940. That amendment, which inserted the word “ordinary” in front of the word “livestock” in Section 203(b)(6), has been previously discussed. On November 7, 1940, the Interstate Commerce Commission handed down its first opinion in the case involving the Monark Egg Corporation, Contract Carrier Application; No. M.C. 89207. Division 5. Repoi'ted in 2 Fedex'al Carrier Cases 109 and 26 M.C.C. 615. The case had to do with the question as to whether certain types of fish, and also oysters, were within the exemption. That case will be discussed in detail later. Also in 1940 the case of U. S. v. Chadwick, D.C.E.D.Pa.1940, 39 F.Supp. 204 was decided. While there was a question of whether poultry feed, sauerkraut, and peas were exempt' commodities, the case was decided on the" basis of the sufficiency of the indictment. The Court did" not go into the question here involved. On September 16, 1941, the Interstate Coxnmerce Commission decided the" case of Lester C. Newton Extension of Operations —Frozen Food, No. M.C.-743 (Sub.-No. 2) 43 M.C.C. 787. The applicant sought a certificate of public convenience and necessity as a common carrier to transport frozen agricultural commodities and: frozen sea foods, on the. East Coast. The certificate was granted. The majoi'ity decided that the frozen agricultural commodities were not within the exempt provisions of Section 203(b)(6) and thei'efore a permit was necessary to haul them. At page 789 it'was stated: * * It is clear that agricultural commodities, frozen in the manner hereinabove described, are subjected to a px'ocess of manufacture, and that the finished products are as distinct from agricultural commodities as are canned fruits and vegetables, from which both are manufactured. * * * We conclude that fresh frozen fruits and vegetables are ‘manufactured products’ as that term is used in section 203(b) (6) of the act, and that the transportation of such commodities is subject to the certificate or permit requirements of part II of the act.” The Commission did not pass on the question of whether, frozen sea foods came within the term “fish .(including shell fish)” as used in the exemption provision of Section 203(b)(6). Commissioner Lee concurred in part but thought the proposed operations fell within the exemption of Section 203(b)(6). He stated, in part, at pages 793 and 794: “ * * * It may be that, in their frozen state, some foods will be so changed in character and appearance as to remove them from the description ‘agricultural commodities (not including manufactured products thereof) .’ I am satisfied, however, that frozen fruits and vegetables which are not substantially changed in character or appearance and to which nothing has been added other than possibly a preservative, are not manufactured agricultural commodities and that they do fall within the exemption. I have no doubt whatsoever that frozen sea food is included within the term ‘fish (including shell fish).’ ” , Commissioner Lee differed w}th the majority on the question of the effect of hauling non-exempt commodities on the same vehicle on which exempt commodities are hauled, although at a different time. The majority took the view that the vehicle was the test, so that the hauling of nonexempt commodities at any time destroyed the exemption altogether for that vehicle. Commissioner Lee took the view that the test was what product was being hauled at any one time, and what was hauled' at another time was immaterial. In 1942 a bill, S. 975, was introduced into the 77th Congress, 2d Session, on April 27, 1942. 88 Congressional Record 3712. In substance it would have amended Section 203(b)(6) to include horticultural products. That bill ' was not enacted. Later, as hereafter noted, Congress did include horticultural products within the provisions of Section 203(b)(6)., In 1942 the case of U. S. v. Krinvic Bros., D.C.E.D.Pa.1942, 47 F.Supp. 481, 482, was decided. While there was a question in the case as to whether “fish scrap and King Crab Meal” were exempt agricultural commodities, the case was decided on the sufficiency of the information. The Court did not go into the question here involved. In 1943 a bill, S. 1148, was introduced in the 78th Congress, 1st Session, on May 28th (Legislative Day, May 24th) by Senator Lodge. The bill would have amended Section 203(b)(6) of the Motor Carrier Act to read as follows: “(6) Motor vehicles used in carrying property consisting of ordinary livestock, fish (including shell fish), or agricultural commodities, (not including manufactured products thereof), by the producers of such property or by private carriers of property by motor vehicle, if such vehicles are not used in carrying such property or any. other property, or passengers, for compensation.” The bill was referred to the Committee on Interstate and Foreign Commerce. It never became law. This proposed amendment would have changed the existing language of the Act by the insertion of the italicized words of the quotation and by the deletion of the word “motor” preceding the word “vehicles” and following the word “such” in that part of the quotation immediately following the first italicized words. The effect would have been to limit the exemption to the actual producer or to those hauling without compensation. It would have effectively eliminated the exemption in favor of commercial truckers contained in subparagraph (b) (6). On October 2, 1944, the Interstate Commerce Commission handed down its second opinion in the Monark Egg Corporation, Contract Carrier Application; No. M.C. 89207, Division 5,' reported in 4 Federal Carriers' Cases 310 and 44 M.C.C, 15. In substance the Commission followed its former opinion.' That-case-will be discussed in.detail later. In 1948 the decision in the case of Interstate Commerce Commission v. Dunn, 5 Cir., 1948, 166 F.2d 116, 117, was handed down. The issue in the case was the proper construction of the phrase in Section 203(b)(6) of the Motor Carrier Act “ * * * if such motor vehicles are not used in carrying any other property, or passengers, for compensation.” The defendant was engaged in the interstate hauling of baled cotton, an admittedly exempt commodity, part of the time and non-exempt commodities at other times. The Court held the exemption applied while hauling the exempt commodities regardless of what was hauled at other times. This, in effect, established that the commodity being hauled, and not the vehicle used, is the test of the exemption. In that case the Secretary of Agriculture appeared as amicus curiae and opposed the contentions of the Interstate Commerce Commission. In that case the Court discussed the matter of administrative interpretation of the portion of the Section involved. In connection with that matter, a decision of the Interstate Commerce Commission had been cited. The Court, 166 F.2d at page 117, stated: “We are referred to only one decision, * * *. ' This decision does not show a settled construction by the Commission entitled to great weight. Even if there be such, we may not follow it if clearly wrong.” Commenting on the Interstate Commerce Commission’s interpretation of the exemption contained in 203(b) (6), the Court stated, 166 F.2d at page 118: “ * * * This construction also makes war on the very interstate transportation which the exemption was plainly intended to foster and encourage. It is its purpose to free the transportation interstate of the favored commodities, particularly agricultural products, from the general regulation of interstate commerce by the Commission except as to fitness of drivers and trucks. A like favor has been shown to agricultural commodities in numerous other Acts of the period. To get a certificate or permit from the Commission involves much delay, inconvenience and expense, and often disappointment. Relief from this is offered in order to aid the prompt and free transportation of the named commodities, which transportation is usually seasonal and intermittent, but often urgent because it is of perishables, as fruits, vegetables and fish. * * * ” The case of Interstate Commerce Commission v. Love, D.C.E.D.La.1948, 77 F.Supp. 63, affirmed memorandum opinion, 5 Cir., 1949, 172 F.2d 224 was also decided in 1948. The issue was whether headless shrimp were within the scope of the exemption contained in Section 203(b) (6) of the Motor Carrier Act. The Interstate Commerce Commission claimed they were not. The Court held that they were. In discussing the Interstate Commerce Commission interpretation of the exemption in question, the Court stated, 77 F.Supp. at page 67 of the opinion: “ * * * If the Commission’s holdings were followed, they would nullify the exemption accorded motor vehicles transporting shrimp, by virtue of the shrimp being beheaded, because no shrimp are transported to the market which are not beheaded. In this way, and through such an interpretation, the Commission has given no effect whatever to the exemption provided in the statute for fish, insofar as it affects the transportation of shrimp.” On the question of the weight to be given to the Commission’s interpretation of the statute, the Court stated, 77 F.Supp. commencing at page 67: “The court concludes that the Commission’s construction of the statute is clearly erroneous and that a different construction is