Friedman's Exp. v. Mirror Transp. Co.

• Decision Date: 19 August 1948
• Docket Number: No. 9443.,9443.
• Citation: 169 F.2d 504
• Parties: FRIEDMAN'S EXP., Inc. et al. v. MIRROR TRANSP. CO., Inc.
• Court: U.S. Court of Appeals — Third Circuit

169 F.2d 504 (1948)

FRIEDMAN'S EXP., Inc. et al. v. MIRROR TRANSP. CO., Inc.

No. 9443.

Circuit Court of Appeals Third Circuit.

Argued May 18, 1948.

Decided August 19, 1948.

Edgar Watkins, of Atlanta, Ga. (Edmond J. Dwyer, of Newark, N. J., on the brief), for appellant.

John B. Siefken, of New York City (McCauley & Henry and Thomas A. Brennan, all of New York City, on the brief), for Hears Corporation, amicus curiæ.

Parker McCollester, of New York City (Frederick M. Porter and Lord, Day & Lord, all of New York City, on the brief), for American Newspaper Publishers Ass'n, amicus curiæ.

August W. Heckman, of Jersey City, N. J., for appellee.

Before BIGGS, McLAUGHLIN, and KALODNER, Circuit Judges.

BIGGS, Circuit Judge.

The question presented by the appeal at bar is a narrow one: Is the transportation of comic sections of The New York Sunday Mirror from Wilkes-Barre, Pennsylvania, to points in New York and in New Jersey, within the exemption conferred by Section 203(b) (7) of Part II of the Interstate Commerce Act, 49 U.S.C.A. § 303(b) (7), which provides, "Nothing in this chapter * * *¹ shall be construed to include * * * motor vehicles used exclusively² in the distribution of newspapers * * *". The transportation involved is from the printer in Wilkes-Barre to the office of the Mirror in New York City and to the Mirror's wholesale outlets in New York and New Jersey in delivering the comic sections to retailers who assemble the comic sections with other portions of the Sunday newspapers for sale to the public.³ The appellants, one of which, Friedman's Express, Inc., performed the transportation service in question prior to the engagement of the appellee, Mirror Transportation Co., Inc., complained in the court below that the appellee had not obtained a certificate for the transportation from the Interstate Commerce Commission and sought an injunction. The trial court, proceeding to final hearing on affidavits, refused the injunction and dismissed the suit on the ground that the appellee's vehicles were used exclusively in the distribution of newspapers. See D.C., 71 F.Supp. 991. The appeal at bar followed.

It is argued that while a comic section is a part of a newspaper it is not in fact a newspaper which today consists of many parts or sections; that a comic section is no more a newspaper than a sweatband is a hat or unassembled automobile parts are in fact an automobile. The appellants insist that the word "distribution" used in clause (7) of the subsection must be deemed to have a very different meaning than the terms "transportation" or "transporting" generally employed in the same subsection in respect to exemptions.⁴ "Distribute", say the appellants, means to give out or divide a commodity among a number and its synonym is "allot" but "transportation" means to carry or convey a commodity from one place to another:⁵,⁶ consequently, since comic sections are not newspapers and must be combined with other sections to form newspapers, the service performed by the appellee was transportation to places of processing and was not distribution which requires the allotment or division of the newspapers to or among the public. At least we so apprehend the appellants' argument.

Little light is thrown on the use of the word "distribution" in Section 203(b) (7) by the legislative history. It appears that the Wheeler bill, which later, as amended, became the Motor Carrier Act, Part II of the Interstate Commerce Act, contained no provision for exemption of motor vehicles engaged in carrying newspapers. S. 1629, 74th Cong., 1st Sess. (1935). Representatives of the American Newspaper Publishers' Association had come before the Committee on Interstate and Foreign Commerce and requested exemption of vehicles carrying newspapers from any regulation which might tend to interfere with the speed and fluidity of deliveries. See Hearings before the Committee on Interstate and Foreign Commerce, House of Representatives, 73rd Cong., 2nd Sess., on H. R. 6836, A Bill to Regulate the Transportation of Passengers and Property in Interstate and Foreign Commerce by Motor Carriers Operating on the Public Highway and for Other Purposes, pp. 379-387 (1934). The House Committee print of S. 1629, June 26, 1935, carried an exemption reading, "9. Motor Vehicles while used exclusively in the distribution of newspapers or periodicals." In a later print of the same bill, July 20, 1935, the phrase "or periodicals" was omitted. The ninth exemption became the seventh exemption and apparently has since remained as now written. The sub-committee report on S. 1629, 74th Cong., 1st Sess. (1935), signed by Representative Samuel B. Pettingill as chairman, carried the following statement, "Your sub-committee has seen fit to add to the exemption under this bill, a provision exempting trucks engaged `exclusively in the handling of livestock and unprocessed agricultural products; also newspapers'. There was some question as to whether or not they would be included in the casual hauler exemption." This amendment was agreed to in the House on July 31, 1935. See Cong.Rec., Vol. 79, Part 11, at p. 12220. This is the sum of pertinent information that the parties have been able to offer or we have been able to obtain respecting the origin of clause (7) of the subsection. In respect to this legislative history, the appellants assert that it is evident from it that Congress intended to exempt the "final distribution" of newspapers.

We do not agree and conclude that the judgment of the court below must be affirmed. It would be of small value to attempt a definition of the word "newspaper" in this opinion. Several definitions have been cited to us.⁷ We shall not attempt a definition other than to say that a typical modern Sunday newspaper embraces not only comic sections but financial sections, news sections, sports sections, magazine sections, and various special supplements. These may relate to book reviews or to world events⁸ or be in the form of the "Sunday Mirror Magazine"⁹ which begins with an article "Final Regal Rites for Exotic `Radiant Jade'" and ends with an essay on crime called "13 Steps in Central Park". The field of a modern newspaper is as broad and catholic as the field of its readers. Some members of the public seem to regard the comic strip as the newspaper rather than as part of a newspaper.¹⁰

We think that Congress did not intend to make a fine-spun distinction between the distribution of newspapers and parts or sections of newspapers. The word "newspapers" used in the statute in our opinion was intended to embrace all or any of the component parts of a modern newspaper, each equally important to various public groups and to embrace the whole or any section thereof which is ready in form to be brought into the hands of the public.

Next, we conclude that it is unnecessary, in this case at least, to define the distinction between "transportation" and "distribution" even if we accept the limited meaning which ...