Universal Interpretive Shuttle Corporation v. Washington Metropolitan Area Transit Commission

• Decision Date: 25 November 1968
• Docket Number: No. 19,19
• Citation: 21 L.Ed.2d 334,393 U.S. 186,89 S.Ct. 354
• Parties: UNIVERSAL INTERPRETIVE SHUTTLE CORPORATION, Petitioner, v. WASHINGTON METROPOLITAN AREA TRANSIT COMMISSION et al
• Court: U.S. Supreme Court

393 U.S. 186

89 S.Ct. 354

21 L.Ed.2d 334

UNIVERSAL INTERPRETIVE SHUTTLE CORPORATION, Petitioner,

v WASHINGTON METROPOLITAN AREA TRANSIT COMMISSION et al.

No. 19.

Argued Oct. 21, 22, 1968.

Decided Nov. 25, 1968.

Jeffrey L. Nagin, Beverly Hills, Cal., for petitioner.

Russell W. Cunningham, Arlington, Va., and Manuel J. Davis, Washington, D.C., for respondents.

Clyde O. Martz, Washington, D.C., for United States, as amicus curiae, by special leave of Court.

Mr. Justice WHITE delivered the opinion of the Court.

The Secretary of the Interior is responsible for maintaining our national parks, and for providing facilities and services for their public enjoyment through concessionaires or otherwise.¹ In meeting this responsibility, he has contracted for petitioner to conduct guided tours of the Mall, a grassy park located in the center of the City of Washington and studded with national monuments and museums. Visitors to the Mall may board petitioner's open 'minibuses' which travel among the various points of interest at speeds under 10 miles per hour. Guides on the bases and at certain stationary locations describe the sights. Visitors may debark to tour the museums, boarding a later bus to return to the point of departure.

Suit was brought by the Washington Metropolitan Area Transit Commission (hereafter WMATC) to enjoin petitioner from conducting tours of the Mall without a certificate of convenience and necessity from the WMATC. Carriers permitted by WMATC to provide mass transit and sightseeing services in the City of Washington intervened as plaintiffs, and the United States appeared as amicus curiae. The concessionaire and the United States contend that the Secretary's authority over national park lands, and in particular his grant of 'exclusive charge and control' over the Mall dating from 1898,² permit him to contract for this service without interference. The carriers and WMATC argue that the interstate compact which created the WMATC implicitly limited the Secretary's authority over the Mall, and gave rise to dual jurisdiction over these tours in the Secretary and the WMATC. One carrier, D.C. Transit System, Inc., also argues that its franchise limits the Secretary's power. In a detailed opinion the District Court dismissed the suit. The Court of Appeals reversed without opinion, 129 U.S.App.D.C. 59, 390 F.2d 474. We granted certiorari, 390 U.S. 943. 88 S.Ct. 1040, 19 L.Ed.2d 1131 and, having heard the case and examined the web of statutes on which it turns, we reverse, finding the Secretary's exclusive authority to contract for services on the Mall undiminished by the compact creating WMATC or by the charter granted a private bus company.

I.

That the Secretary has substantial power over the Mall is undisputed. The parties agree that he is free to enter into the contract in question. They also agree that he is free to exclude traffic from the Mall altogether, or selectively to exclude from the Mall any carrier licensed by the WMATC or following WMATC instructions. Moreover, the parties agree that the Secretary could operate the tour service himself without need to obtain permission from anyone.³ Yet the WMATC argues that before the Secretary's power may be exercised through a concessionaire, the consent of the WMATC must be obtained.

This interpretation of the statutes involved would result in a dual regulatory jurisdiction overlapping on the most fundamental matters. The Secretary is empowered by statute to 'contract for services * * * provided in the national parks * * * for the public * * * as may be required in the administration of the National Park Service * * *.' Act of May 26, 1930, c. 324, § 3, 46 Stat. 382, 16 U.S.C. § 17b. Moreover, he is 'to encourage and enable private persons and corporations * * * to provide and operate facilities and services which he deems desirable * * *.' Pub.L. 89 249, § 2, 79 Stat. 969, 16 U.S.C. § 20a (1964 ed., Supp. III). Congress was well aware that the services provided by these national park concessionaires include transportation. Hearings on H.R. 5796, 5872, 5873, 5886, and 5887 before the Subcommittee on National Parks of the House Committee on Interior and Insular Affairs, 88th Cong., 2d Sess., 151—159 (1964). In this case the Sec- retary concluded that there was a public need for a motorized, guided tour of the grounds under his control, and that petitioner was most fit to provide it.

The WMATC, however, also asserts the power to decide whether this tour serves 'public convenience and necessity,' and the power to require the concessionaire to 'conform to the * * * requirements of the Commission' and the 'terms and conditions' which it may impose. Pub.L. 86—794, Tit. II, Art. XII, § 4(b), 74 Stat. 1037. The Secretary's contract leaves the tour's route under his control, but the WMATC would in its certificate specify the 'service to be rendered and the routes over which' the concessionaire might run within the Mall. Pub.L. 86—794, Tit. II, Art. XII, § 4(d)(1), 74 Stat. 1037. Moreover, the WMATC might require the provision of additional service on or off the Mall and forbid the discontinuance of any existing service. Pub.L. 86—794, Tit. II, Art. XII, §§ 4(e) and (i), 74 Stat. 1038, 1039. The contract with the Secretary provides fare schedules, pursuant to statutory authority in the Secretary to regulate the concessionaire's charges. Pub.L. 89—249, § 3, 79 Stat. 969, 16 U.S.C. § 20b (1964 ed., Supp. III). The WMATC would have the power to 'suspend any fare, regulation, or practice' depending on the WMATC's views of the financial condition, efficiency, and effectiveness of the concessionaire and the reasonableness of the rate. Pub.L. 86—794, Tit. II, Art. XII, § 6, 74 Stat. 1040. And under the same section the WMATC could set whatever fare it found reasonable, although a profit of 6 1/2% or less could not be prohibited. The Secretary is given statutory authority to require the keeping of records by the concessionaire and to inspect those records, and the Comptroller General is required to examine the concessionaire's books every five years. Pub.L. 89—249, § 9, 79 Stat. 971, 16 U.S.C. § 20g (1964 ed., Supp. III). The WMATC would also have the power to require reports and to prescribe and have access to the records to be kept. Pub.L. 86—794, Tit. II, Art. XII, § 10, 74 Stat. 1042. Finally, the Secretary is given by statute the general power to specify by contract the duties of a concessionaire, 16 U.S.C. §§ 17b, 20—20g (1964 ed. and Supp. III); the WMATC would claim this power by regulation and rule. Pub.L. 86—794, Tit. II, Art. XII, § 15, 74 Stat. 1045.

We cannot ascribe to Congress a purpose of subjecting the concessionaire to these two separate masters, who show at the outset their inability to agree by presence on the opposite sides of this lawsuit. There is no indication from statutory language or legislative history that Congress intended to divest the Secretary partly or wholly of his authority in establishing the WMATC. When the WMATC was formed there was in the statute books, as there is now, a provision that the 'park system of the District of Columbia is placed under the exclusive charge and control of the Director of the National Park Service.' Act of July 1, 1898, c. 543, § 2, 30 Stat. 570, as amended, D.C. Code § 8—108 (1967). He was, and is, explicitly 'authorized and empowered to make and enforce all regulations for the control of vehicles and traffic.' Act of June 5, 1920, c. 235, § 1, 41 Stat. 898, D.C. Code § 8—109 (1967). And this extends to sidewalks and streets which 'lie between and separate the said public grounds.' Act of March 4, 1909, c. 299, § 1, 35 Stat. 994, D.C. Code § 8—144 (1967).⁴ The creation of the Public Utilities Commission—the predecessor of the WMATC was not intended 'to interfere with the exclusive charge and control * * * committed to' the predecessor of the National Park Service. Act of March 3, 1925, c. 443, § 16(b), 43 Stat. 1126, as amended, D.C. Code § 40—613 (1967).

In this context the WMATC was established. After World War II, metropolitan Washington had expanded rapidly into Maryland and Virginia. The logistics of moving vast numbers of people on their daily round became increasingly complicated, and increasingly in need of coordinated supervision. Congress therefore gave its consent and approval through a joint resolution to an interstate compact which 'centralizes to a great degree in a single agency * * * the regulatory powers of private transit now shared by four regulatory agencies.' S.Rep. No. 1906, 86th Cong., 2d Sess., 2 (1960). These four agencies were 'the public utility regulatory agencies of the States of Virginia, Maryland, and the District of Columbia and the Interstate Commerce Commission.' Pub.L. 86—794, 74 Stat. 1031. The Secretary was not included in this listing. Moreover, Congress specifically provided that nothing in the Act or compact 'shall affect the normal and ordinary police powers * * * of the Director of the National Park Service with respect to the regulation of vehicles, control of traffic and use of streets, highways, and other vehicular facilities * * *.'⁵ Finally, the House Report on the compact lists the federal legislation which was suspended to give effect to the compact, and the laws giving exclusive control of the Mall to the Secretary are not on the list. H.R.Rep., No. 1621, 86th Cong., 2d Sess., 29—30 (1960).

There is thus no reason to ignore the principle that repeals by implication are not favored⁶ or to suspect that the Congress, in creating the WMATC, disturbed the exclusivity of the Secretary's control over the Mall either by extinguishing entirely his power to contract for transportation services or by burdening the concessionaire with two separate agencies engaged in regulating precisely the same aspects of its conduct. Congress was endeavoring to simplify the regulation of transportation by creating the WMATC, not to thrust it further into a...