Martin v. United States

• Decision Date: 09 January 1939
• Docket Number: No. 1705-1709,1717-1719.,1705-1709
• Citation: 100 F.2d 490
• Parties: MARTIN et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Tenth Circuit

100 F.2d 490 (1938)

MARTIN et al. v. UNITED STATES.^*

Nos. 1705-1709, 1717-1719.

Circuit Court of Appeals, Tenth Circuit.

December 7, 1938.

Rehearing Denied January 9, 1939.

Jean S. Breitenstein, of Denver, Colo. (Louis R. Stein, of El Paso, Tex., on the brief), for appellants Porter Allbee, Andrew Berns, Carl Ernest Brown, Jack Herring, and Harry W. Martin.

J. H. Boutcher, of Denver, Colo., for appellants Oral V. McMenus, Walter Nisun, and Austin Patton Muzingo.

David H. Morris, Asst. U. S. Atty., of Denver, Colo. (Thomas J. Morrissey, U. S. Dist. Atty., of Denver, Colo., and Arthur G. Higgs, Sp. Asst. U. S. Atty., of Washington, D. C., on the brief), for the United States.

Before LEWIS, BRATTON, and WILLIAMS, Circuit Judges.

BRATTON, Circuit Judge.

These eight appeals are from convictions for a conspiracy to violate the Motor Carrier Act of 1935, 49 Stat. 543, 49 U. S.C.A. § 301 et seq. The indictment charged that on or about October 15, 1935, and continuously thereafter to the return of the presentment, Frank Murphy, doing business as Frank Murphy Travel Bureau, in New York City; Mack Schultz, doing business as Main Travel Bureau, in New York City; Andrew Berns, doing business as Andy's Bus Depot, in Chicago; Walter Nisun, doing business as Midway Travel Bureau and NiSun Bus Lines and NiSun Lines, Ltd., in Chicago; Howard Steed, doing business as Steed Travel Bureau, in Omaha, Nebraska, also as Steed Travel Bureau and Reliable Travel Bureau, in Denver, Colorado; Oral V. McMenus, doing business as Mack's Travel Bureau, in Denver, Wm. Gottesman, doing business as Bill's Reliable Travel Service, in Denver; Edwin Oswald Weimer, doing business as Kane Travel Bureau, in Denver; Monty Cox, doing business as Interstate Employment Tourist Travel Bureau, in Salt Lake City, Utah; James Manasee, doing business as Nu-Way Cut-Rate Travel, in San Francisco, California; Carl Ernest Brown, doing business as Auto Travel Bureau, in Los Angeles, California; Austin Patton Muzingo, doing business as Pat's Travel Bureau, in Los Angeles; Rosemond Young and Oscar Turlington Marshall, each doing business as Coast to Coast Travel Bureau, in Los Angeles; Stanley Cruson, Colonel Perry, and Phillip Fisher Finch, doing business as DeLuxe Travel Bureau, in Phoenix, Arizona; James R. S. Lefebvre, doing business as U. S. Travel Service, in Phoenix; Harry W. Martin, doing business as Martin Travel Bureau, in El Paso, Texas; Guy Stedham and Doyle Coles, each doing business as Majestic Travel Bureau, in Fort Worth, Texas; Edd Roberts, doing business as A A Travel Bureau, in Fort Worth; V. C. Hale, doing business as All American Travel Bureau, in Fort Worth; John Elliott Frank, doing business as Frank The Travel Man, in Dallas, Texas; Pap Garland and Lee Garland, each doing business as Garland Bros. Travel Bureau, in Dallas; Jack Herring, doing business as Interstate Travel Bureau, in Oklahoma City, Oklahoma; Porter Allbee, doing business as Interstate Travel Bureau, in Tulsa, Oklahoma; and James W. Reddick, doing business as AAA Travel Exchange and Grand Travel Exchange, in Kansas City, Missouri, conspired, combined, confederated, and agreed, each with the other and with divers other persons whose names were unknown, to violate the Motor Carrier Act; that they: "so conspired * * * each with the other, and that they did, and each of them did, unlawfully * * * for compensation negotiate for, and did hold himself out by solicitation, advertisement, and otherwise, as one who sells, provides, furnishes procures, contracts, and arranges for transportation of passengers for the general public in interstate commerce by motor vehicle for compensation over and upon the public highways of the United States * * * and did, for compensation, negotiate for, provide, furnish, procure, contact, and arrange for such transportation of passengers for the general public in interstate commerce by motor vehicle for compensation * * * and was and is a broker and as such broker was and is subject to the Motor Carrier Act of 1935 * * *. And that they so conspired * * * each with the other, and that they did, and each of them did, unlawfully * * * enter into the execution of contracts, agreements or arrangements to sell, provide, procure, furnish, and arrange for such transportation; unlawfully * * * to employ for such transportation common carriers of passengers in interstate commerce by motor vehicle for compensation * * *, who or which said common carriers * * * were not the holder or holders * * * of an effective certificate of public convenience and necessity issued by the Interstate Commerce Commission of the United States, authorizing such common carriers to transport passengers for the general public in interstate commerce by motor vehicle for compensation, as aforesaid; such employment of said common carriers, as aforesaid, being unlawful and in violation of Section 211 of the Motor Carrier Act of 1935 49 U.S.C.A. § 311 * * *." Murphy, Schultz, Weimer, Cruson, Finch, and Lefebvre pleaded guilty; the case was dismissed as to Manasee at the close of the evidence submitted by the Government; directed verdicts of not guilty were returned as to Roberts, Frank Garland and Lee Garland; and Berns, Nisun, McMenus, Brown, Muzingo, Martin, Stedham, Herring, and Allbee were convicted. Stedham did not appeal. The others perfected separate appeals.

The Motor Carrier Act is attacked on the ground that it is unconstitutional for the reason that it fails to define a standard of conduct from which it may be determined when and under what circumstances its provisions are violated. The statute provides that it is the declared policy of Congress to regulate transportation by motor carriers engaged in interstate or foreign commerce in such manner as to recognize and preserve its inherent advantages; to foster sound economic conditions in such transportation; to promote adequate, economical, and efficient service by motor carriers; to prevent unjust discriminations, undue preferences or advantages, and unfair or destructive practices; to improve the relations between such carriers and other carriers; and to develop a system of highway transportation properly adapted to the needs of the commerce of the United States and of the national defense. § 202, 49 U.S.C.A. § 302. The term "common carrier by motor vehicle" is defined as any person who undertakes to transport passengers or property for the general public in interstate or foreign commerce by motor vehicle for compensation; the term "motor carrier" is defined to include both a common carrier and a contract carrier by motor vehicle; and the term "broker" is defined to mean any person, not included in the term "motor carrier" and not a bona fide employee or agent of any such carrier, who sells or offers for sale any transportation subject to the act, or negotiates for or holds himself out by solicitation, advertisement, or otherwise as one who sells, provides, furnishes, contracts, or arranges for such transportation. § 203, 49 U.S.C.A. § 303. The Interstate Commerce Commission is vested with power to administer the statute, that is, to regulate transportation of that kind. §§ 204, 205, 49 U.S.C.A. §§ 304, 305. It is provided that no common carrier subject to the act shall engage in interstate or foreign operation on a public highway, or within a reservation under the exclusive jurisdiction of the United States unless there is in force and effect an authorizing certificate of public convenience and necessity issued by the Commission, § 206, 49 U.S.C.A. § 306; and that no person shall engage in the business of a contract carrier by motor vehicle in such commerce on such a highway or within such a reservation unless there is in force and effect an authorizing permit likewise issued by the Commission. § 209, 49 U.S.C.A. § 309. But it is further provided that nothing contained therein shall be construed to include the casual, occasional, or reciprocal transportation of passengers or property in interstate or foreign commerce for compensation by a person not engaged in such transportation as a regular occupation or business, § 203, 49 U.S.C.A. § 303. It is also provided that no person shall for compensation sell or offer for sale transportation subject to the act or make any contract, agreement, or arrangement to provide, procure, furnish, or arrange for such transportation, or hold himself out by advertisement, solicitation, or otherwise as one who does such things unless he holds a broker's license issued by the Commission, § 211, 49 U.S.C.A. § 311.

Appellants did not transport passengers. They were unlicensed brokers engaged in the business of making arrangements for compensation for transportation of passengers by motor vehicle in interstate commerce. They, therefore, came within the purview of section 211 of the act. But it is argued that the statute fails to provide any standard or guide by which it could be determined whether the persons who transported such passengers were engaged in transportation of that kind as a regular occupation or business and were required to obtain certificates of public convenience and necessity, or were not engaged in such transportation as a regular occupation or business but merely carried such passengers as casual, occasional, or reciprocal transportation, and for that reason no certificate was required. The act brings within its provisions those regularly engaged in the occupation or business of transporting persons or property by motor vehicle in interstate or foreign commerce and excludes casual, occasional, or reciprocal transportation of that kind as a regular occupation or business, without undertaking to define textually either class or to fix a standard by which to determine in advance whether certain conduct is in one class or the other. Reasonable definiteness and certainty is required in the enactment of statutes, but in the very nature of things rules of conduct oftentimes...