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 commissionman, 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 shellfish), 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, p. 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 hearings S. 50, p. 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 transshipment. 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 transshipment. 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 Com. merce 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 18, 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 Corp., contract carrier applica tion; No. M. C. 89207 division 5. Reported in 2 Federal 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 United States v. Chadwich (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 Commerce 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 seafoods on the east coast. The certificate was granted. The majority decided that the frozen agricultural commodities were not within the exempt provisions of section 203 (b) (6) and therefore 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 process 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 seafoods came within the term "fish (including shellfish)" 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 seafood is included within the term 'fish (including shellfish).'

Commissioner Lee differed with the majority on the question of the effect of hauling nonexempt 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 United States v. Krinvik Bros. (E. D. Pa. 1942) (47 F. Supp. 481), 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 28 (legislative day, May 24) 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 shellfish), 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.

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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 Corp., 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 (5th Cir. 1948) (166 F. 2d 116) 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 nonexempt 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 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 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 (E. D. La. 1948) (77 F. Supp. 63), affirmed memorandum opinion (5th 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 at p. 67 (F. Supp.) 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 commencing at page 67 (F. Supp.) of the opinion : "The court concludes that the Commission's construction of the statute is clearly erroneous and that a different construction is plainly required by the words of the act. Consequently the rule that the contemporaneous construction of a statute by those charged with its execution is entitled to great weight and should not be lightly overturned, does not apply."

Following the decision in the Love case, supra, the Monark Egg case was reopened for oral argument on the question of what fish and associated products would be within the exemption of section 203 (b) (6) in light of the Love decision. This proceeding was application number MC-89207. The opinion therein was rendered on September 23, 1949, and was reported in 49 M. C. C. 693. This is known as the third Monark Egg case. In substance, in that opinion the Inter

state Commerce Commission reversed its first and second opinions. That case will be discussed in detail later.

On March 30, 1950, bill number H. R. 7547 was introduced in the 81st Congress, 2d session, by Mr. Kilday. It proposed that section 203 (b) (6) of the Motor Carrier Act be amended to read as follows:

"(6) Motor vehicles used in carrying property consisting of ordinary livestock, live poultry, and other agricultural commodities (not including the products of slaughter, nor preserved, frozen, or unmanufactured products), and fish (including shellfish but not including preserved, frozen, processed, or manufactured products), if such motor vehicles are not used in carrying any other property, or passengers, for compensation; or."

This bill was referred to the House Committee on Interstate and Foreign Commerce but was never reported out of committee. It would have severely limited the exemption by excluding all commodities that were slaughtered, frozen, preserved, or processed.

The case of Interstate Commerce Commission v. Weldon (D. C. Tenn. 1950) (90 F. Supp. 873) was decided in 1950. The issue was whether raw shelled peanuts were an agricultural commodity within the scope of section 203 (b) (6) of the Motor Carrier Act. The court held that they were not within the exemption. The holding was based on the first and second Monark Egg cases, supra, and special emphasis was placed on the channel of commerce theory as advanced in the first and second Monark Egg cases, i. e., as soon as a product gets into the regular channels of commerce it is outside the exemption. The court took the view that the exemption was to be strictly construed to effect a liberal construction of the main act. On the question of the weight to be given the administrative interpretation of the act, the court stated at p. 877:

"The contemporaneous constructions placed upon the provisions of the Interstate Commerce Act by the Commission which possesses special competence in this field, are entitled to great weight and respect and will not be overturned unless they are arbitrary or plainly erroneous."

The case was affirmed upon the grounds and for the reasons set forth in the memorandum opinion of the District Court. Weldon v. Interstate Commerce Commission (6th Cir. 1951) (188 F. 2d 367).

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The case of Interstate Commerce Commission v. Service Trucking Co. (D. C. Pa. 1950) (91 F. Supp. 533) was decided in 1950. The question was very similar to that raised in the case of Interstate Commerce Commission v. Dunn, supra. The court held that an interstate trucker was exempt while hauling eggs one way, eggs clearly being an exempt commodity, even though he hauled nonexempt commodities on the return load. The court stated, p. 534, “* * I am satisfied that the exemption applies unless the carrier who transports exempt commodities also transports nonexempt products at the same time in the same vehicle." The commodity that was being hauled on the return load was dressed poultry but the court did not decide whether it was an exempt commodity. The court discussed several rules of statutory construction. At p. 535 of 91 F. Supp. it stated:

* * Whatever the exact import of the Commission's rulings, implied adoption of judicial construction upon the reenactment of a statute is but one factor in the total effort to give fair meaning to stautory language. Federal Communications Commission v. Columbia Broadcasting System (311 U. S. 132, 61 S. Ct. 152, 82 L. Ed. 87), and, of course, the same is true of reenactment after administrative construction."

At page 535 of 91 Federal Supplement the court also stated:

"The court in the Dunn case was undoubtedly aware of the rule for strict construction of exemptions and reached its conclusions nevertheless. The rule will not be applied to the extent of requiring an interpretation contrary to what appears to be the intent of the law."

The court discussed the weight to be accorded administrative rulings at page 535 of 91 Federal Supplement :

"The Commission relies primarily upon a course of administrative rulings in which the Commission required carriers, in the same situation as this defendant, to get operating authority. I recognize the rule of statutory interpretation which accords great weight to the rulings of regulatory bodies, but it seems to me that where the question is one not wholly dependent upon matters within the expert, technical or statistical field in which the regulatory body is preeminently qualified to judge, but which primarily involves jurisdiction, the force of the administrative rulings is less than it would otherwise be. The same argument was considered by the court in the Dunn case, which was decided February 5,

1948. The court doubted that there was such a settled construction by the Commission as would be entitled to great weight but went on to say 'Even if there be such, we may not follow it if clearly wrong.''

The decision was affirmed on appeal. Interstate Commerce Commission v. Service Trucking Co. ((3d Cir. 1951) 186 F. 2d 400). The opinion on appeal was very similar to that in the trial court. At page 402 of 186 F. 2d the Court stated: "We think the Commission decisions interpreting 203 (b) (6) of the act are clearly wrong." It cited with approval the statement from Interstate Commerce Commission v. Dunn, supra, which was critical of the Interstate Commerce Commission's interpretation of the exemption contained in section 203 (b) (6) of the act. At page 402 the court stated in regard to the interpretation claimed by the appellant Interstate Commerce Commission:

* * *

is

“We agree, however, that the interpretation sought by appellant “* so unreasonable and so crippling to the free interstate carriage of the privileged commodities, and even contrary to the general policy of the legislation, that it cannot be the true legislative intent.'

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As a proper construction of the exemption contained in section 203 (b) (6) of the act, the court stated (p. 402) it agreed with that placed on it by Commissioner Lee in his dissenting opinion in the second Monark Egg case, supra. On April 13th, 1951, the Interstate Commerce Commission handed down its findings in No. MC-C-968, Determination of Exempted Agricultural Commodities and as a part of the same report, No. MC-107669, Norman E. Harwood Contract Carrier Application. The entire report is cited as 52 M. C. C. 511. The scope and purpose of this report can be gathered from a statement made on pages 2 and 3 of the report:

"The title proceeding is an investigation instituted on our own motion into and concerning the meaning of the term 'agricultural commodities (not including manufactured products thereof)' as used in section 203 (b) (6) of the Interstate Commerce Act. Upon consideration of petitions filed by the Secretary of Agriculture, and jointly by the Atlantic Commission Co., Inc., and others by a concurrent order, we reopened No. MC-107669, Harwood Contract Carrier Application, 47 M. C. C. 597, hereinafter called the Harwood case, for further hearing on a consolidated record with the investigation proceeding.

"Representatives of the United States Department of Agriculture and a large number of States, agricultural marketing associations, farmer organizations, shippers, growers, and other interested parties appeared and submitted evidence. A number of rail and motor carriers also appeared but only one presented any affirmative evidence. Neither the applicant in the Harwood case nor anyone in his behalf appeared at the further hearing in that proceeding."

In this proceeding it was decided that the Harwood application be denied for a failure to establish that he was willing and able to conduct the proposed operation. With reference to the Harwood case the Interstate Commerce Commission stated at page 69 of its report:

"There remains for consideration, the application in No. MC-107669 (the Harwood case). As stated in the prior report in that proceeding, the need there found to be existing for Harwood's proposed service was for the transportation of fresh fruits and vegetables and processed fresh vegetables (including those chopped up), from and to described points and areas. In view of our conclusions herein that chopped-up vegetables do not come within the partial exemption, a permit is required at least with respect to that portion of the operation proposed. As previously stated, however, neither applicant nor anyone in his behalf appeared at the further hearing in the Harwood proceeding. In the circumstances, it appears that applicant, Norman E. Harwood, is no longer interested in his application. Accordingly, we shall deny the application."

The findings of the Interstate Commerce Commission pertinent to the question here involved were as follows:

"In No. MC-C-968, we find that the term 'agricultural commodities (not including manufactured products thereof)' as used in section 203 (b) (6) of the Interstate Commerce Act means: Products raised or produced on farms by tillage and cultivation of the soil (such as vegetables, fruits, and nuts); forest products; live poultry and bees; and commodities produced by ordinary livestock, live poultry, and bees (such as milk, wool, eggs, and honey), but not including any such products or commodities which, as a result of some treatment, have been so changed as to possess new forms, qualities, or properties, or result in combinations.

"We find that the term 'agricultural commodities (not including manufactured products thereof)' as used in section 203 (b) (6) includes: (1) Fruits,