United States v. Chartered Bus Service, Inc.
| Decision Date | 09 July 1971 |
| Docket Number | Civ. A. No. 151-71-N. |
| Citation | 329 F. Supp. 1073 |
| Parties | UNITED STATES of America, Plaintiff, v. CHARTERED BUS SERVICE, INC., Defendant. |
| Court | U.S. District Court — Eastern District of Virginia |
Brian P. Gettings, U. S. Atty., Norfolk, Va., Arthur F. Bronczyk, Regional Counsel, Interstate Commerce Commission, Philadelphia, Pa., for plaintiff.
Ronald H. Marks, White, Katherman, Daniels & Marks, Norfolk, Va., John M. Cleary, Donelan, Cleary & Caldwell, Washington, D. C., for defendant.
This civil forfeiture proceeding brought by the United States under provisions of 28 U.S.C. § 1345 and § 222(h) of the Interstate Commerce Act (the Act), 49 U.S.C. § 322(h), in five counts, charges the defendant, Chartered Bus Service, Inc. (Chartered) of Norfolk, Virginia, with failing and refusing to comply with Section 203(c)1 of the Act. There being no factual dispute between the parties, the matter is submitted on the pleadings. Each party moved for summary judgment. In its answer, Chartered admits that the Interstate Commerce Commission (the Commission) has not issued a certificate or a permit to it as provided for in § 203(c) of the Act. Chartered further admits that it transported college students attending Norfolk State College from Norfolk, Virginia to (1) Springfield, Massachusetts on or about December 1, 1969, (2) Durham, North Carolina on or about December 5, 1969, (3) Dover, Delaware on or about January 9, 1970, (4) Baltimore, Maryland on or about January 12, 1970, and (5) Princess Anne, Maryland on or about January 19, 1970, on public highways, and then returned to Norfolk, Virginia, for compensation in the aggregate amount of $1708.10. As to each of the five counts of the complaint, however, Chartered contends "this transportation was performed without there having to be any authorization issued by the Interstate Commerce Commission since the operation was performed pursuant to the exemption set forth in § 203(b) (1) of the Interstate Commerce Act (49 U.S.C. § 303(b) (1))."
Section 203(b) (1) of the Act provides:
The real issue for this Court's consideration is the statutory construction of the term "school children," and whether or not this term was intended by Congress to include persons attending colleges or universities. Research into the legislative history of the Act and its subsequent amendments provides no satisfactory clue to Congress' intent. Moreover, research into the judicial interpretations of § 203(b), while replete with judicial constructions of the agricultural exemption, 49 U.S.C. § 303(b) (6), reveals no prior statutory construction of the "school children" term at the district or appellate court level.
One unreported criminal case, United States of America v. Twin City Coach Company, Inc., Cr. 13,329 (E.D.Va.1967) would seem to indicate that college and university students do not fall within the "school children" exemption of § 203(b) (1). There, Twin City pleaded guilty to counts, 1, 2, 3 and 4 of a ten-count indictment, counts 2 through 10 inclusive of which involved the transporting of the students of Frederick College in Portsmouth, Virginia, in interstate commerce for compensation where the Commission had not issued any certificate or permit as required by § 203 (c). On defendant's plea of guilty and the evidence heard, Chief Judge Hoffman fined defendant a total of $400.00.
Twin City, being a criminal case and with no contention raised by the defendant as to the applicability of the "school children" exemption, differs decidedly from the present civil action where the contention is raised before this Court.
A case decided by the Commission on October 1, 1969, Fox River Bus Lines, Inc., Investigation of Operations, 110 M.C. 423, did deal with the construction of this term. There the Commission unequivocally ruled that "in our view, college students are not school children within the meaning of the statute." Id. at 428. Continuing, the Commission wrote:
In many instances, perhaps in most, college students have not yet reached their majority, the age of 21 when by law they become adults. By the same token, however, many college students are often considerably older. We do not believe that Congress had in mind such persons when it elected to use the phrase "school children." If it intended college students to be embraced by the exemption, it could easily have chosen to use the term "students." The fact that Congress chose to employ the more limited phrase indicates that it did not intend the exemption to apply to college students. Our Bureau of Operations (and before it, the Bureau of Motor Carriers) has in fact for years informally interpreted the phrase "school children" as meaning students up to and including high school students. We consider this the sound view, and the one most in keeping with the evident intent of Congress. Id. at 428. (footnotes omitted)
The Commission's order in Fox River has since become final, as the three-judge court convened to hear Fox River Bus Lines, Inc. v. United States, Interstate Commerce Commission, No. 68-C-390, in the Eastern District of Wisconsin, issued an order on September 8, 1970, dismissing the action for lack of prosecution.
Fox River, moreover, is consistent with the Commission's earlier opinion in Ernest Keller, Common Carrier Application, 94 M.C. 238 (1963), where an interstate carrier of some 813 pre-college age school children in Waldorf and Hughesville, Maryland, was said to come within the § 203(b) (1) exemption. There, Keller had transported certain of these children to Washington, D. C. for educational excursions at the expense of the County School Board. In commenting on the language of the statute, the Commission wrote:
When the word "school" is used in the sense of a school building, it is almost invariably accompanied by an article or a descriptive proper name: "a school," "the school," "Central School," or "Public School Number 1." The word "school" in the abstract is much more likely to mean something quite different. Were one to say "School is in session," for example, he would be referring not to a building but to a body of students and teachers; were he to say "School begins in September," he would mean a period or session of teaching; and should he say "That person never finished school," he would be referring to the process of formal education itself. Id. at 240.
At no point in this discussion did the Commission imply that it regarded the "school children" exemption to include any level above high school. Its two examples, its use of the word "teacher" in lieu of "professor," its allusion to a single building rather than a grouping of buildings, and finally its allusion to school as formal education (and certainly college education has not reached this plateau yet) all point to the fact, spelled out explicitly six years later, that the Commission thinks of "school children" as not including college students.
Fox River is also consistent with the subsequent rule-making proceeding — which it was instrumental in bringing about — entitled Ex Parte No. MC-78, Vehicles Employed Solely in Transporting School Children and Teachers, 113 M.C. 258, served May 12, 1971 (seven weeks before the complaint was filed in this case). Apparently feeling that Fox River was dispositive of the issue of exclusion of college students from the § 203(b) (1) exemption, the Commission said only: "(footnote 6) Chartered's assertion that the schoolbus exemption should extend to vehicles used in furthering adult education is inconsistent with the Fox River decision and will not be further considered." Id. at 274; and "(footnote 15) Although the term `children' has been interpreted as meaning only students up to and including high school students, a strict construction of the term might well have required that it include only elementary school children." Id. at 280.
We are not unmindful of the opinion of Joint Board No. 52 in Dorsey Bus Company, Inc., Investigation and Operations and Practices, served March 23, 1970.3 Nor are we unmindful of the manner in which counsel for Chartered has tried to demonstrate that inclusion of college students within this exemption would be beneficial in some regard toward a broad national transportation policy.
It is not for this Court to determine broad national transportation policies. The "construction...
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