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


decided: August 19, 1948.


Author: Biggs

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. ยง 303(b)(7), which provides, "Nothing in this chapter * * **fn1 shall be construed to include * * * motor vehicles used exclusively*fn2 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.*fn3 The appellants, ond 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 thw 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.*fn4 "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:*fn5,*fn6 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.*fn7 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 supplemants. These may relate to book reviews or to world events*fn8 or be in the form of the "Sunday Mirror Magazine"*fn9 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.*fn10

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 the appellants would impose upon the latter word. We think that appellee's service meets the test of distribution, for the transportation of the comic sections from Wilkes-Barre to New York City, to the Mirror office and to other wholesale points in New York and in New Jersey, is a clearly defined step in the distribution of the New York Sunday Mirror. In short, the appellee's service is transportation but it is also distribution in that finished sections of the newspaper are thereby started on the road which brings them ultimately, and at no very distant point either in space or in time, into the hands of the public.

We note that the Interstate Commerce Commission, Division 5, at No. MC-10843,*fn11 in an opinion dealing primarily with a collateral matter,*fn12 stated, "Although we conclude that applicant [the appellee herein] has failed to establish that its proposed operation would be consistent with the public interest and the national transportation policy, it may, under the provisions of section 203(b)(7) of the act continue its present service in the transportation of newspaper supplements from Wilkes-Barre to New York, N.Y., New Brunswick, Newark, Elizabeth, North Bergen and Jersey City, N.J., so long as its vehicles are used exclusively in that service." The opinion of the Commission on the very question before us, albeit expressed by was of dictum, confirms our own view.

The judgment of the court below will be affirmed.

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