Lizza, C. E., Inc.-Pur.-Dove Explosive Service, Inc., MC-F-6213, 87.13* Pyle, A. Duie, Inc.-Pur.-New Way Transport Co., MC-F-6139, 87.13* United Truck Lines, Inc.-Pur.-Blaine Auto Freight, Inc., MC-F6074, Authorized 9-7-56 87.13* West, H. E. et al-Control; West Brothers, Inc.-Pur.-E. A. 87.13* Atkinson, Harry F. & Sons-Pur.-Michael Kellman, MC-F-5965, 87.17* Buch, A. L., et al-Control; Buch Express, Inc.-Control and 87.17* 87.17* 87.23 Motor Truck Lines-Approved Buffaloe, W. D.-Pur. (portion)-Greig Freight Line, Inc., (Kent Service Trucking Co., Inc.-Pur. (portion)—James F. Black, 87.23* 87.23* 87.23* 87.23* BY WARREN H. WAGNER, Editor Raw shelled nuts exempt-intervention of Secretary of Agriculture is authorized. Consolidated Truck Service, Inc., et al. v. United States, et al. (No. 2-55) On September 28, 1956, a three judge court for the District of New Jersey enjoined the decision of the Commission in No. MC-C-968, Determination of Exempted Agricultural Commodities, 52 M. C. C. 511, in so far as it relates to certain raw shelled nuts. Quoting from the opinion of the Court: ... The dispute is whether raw cashew nuts, raw filbert nuts and raw walnuts, all shelled, hauled by Consolidated are agricultural commodities within the purview of Section 203 (b) (6) of the Interstate Commerce Act. . . . The Commission found that the raw shelled nuts referred to are manufactured products of agricultural commodities and that Consolidated may not transport them without first obtaining a certificate of public convenience and necessity from the Commission. . . . The substantial identity test of the East Texas Lines decision [351 U. S. 49] is in keeping with the Commission's own determination that ginned cotton and pasteurized milk are not manufactured products albeit the legislative history of Section 203 (b) (6), 49 USC § 303(b) (6), could permit of no other decision. See 52 MCC 511, 523-524, 551. In the case at bar the Commission takes the position, as it must, that it is in agreement with the substantial identity test laid down by the Supreme Court but maintains nonetheless that the raw shelled nuts do not retain a continuing substantial identity with the raw unshelled nuts. . . . We cannot agree with the Commission's contentions that the raw shelled nuts are manufactured products of agricultural commodities. The Supreme Court in its East Texas Lines decision. emphasized the fact that the farmer won a victory in Congress by the enactment of Section 206(b)(6), 49 USC § 306(b)(6), and that the enactment was recognition of the fact that the price obtained by the farmer for his product is greatly affected by the cost of transporting it to the market whether in its raw state or after it has become marketable by incidental processing. True, the raw shelled nut can be shipped at a lower cost but that has nothing to do with its continuing substantial identity to a raw unshelled nut. Moreover, the raw shelled nut frequently remains viable, a living seed. Seemingly it suffers no substantial change by the divestiture of its natural outer covering, essential for its growth but, insofar as mankind is concerned, serving no other purpose. Indeed the husk or shell, when removed, has little value for it can be used only as fertilizer or as feed for livestock. If an eviscerated chicken retains a substantial identity to a chicken in the pen, we think that it must be said that a raw shelled nut is substantially identical to a raw unshelled nut. Cf. Home Transfer & Storage Co. v. United States, 141 F. Supp. 599 (W. D. Wash. 1956). We conclude that the raw shelled nuts are not manufactured products within the terms of the statute. Objection has been made to the intervention of the Secretary of Agriculture, as a party plaintiff, and also to the fact that the United States, a statutory defendant, strongly supports Consolidated's position. The intervention of the Secretary of Agriculture as a party plaintiff is authorized by 7 USC § 1291 and 28 USC § 2323. See also Secretary of Agriculture v. United States, 347 U. S. 645, 647 (1954). Support for the position of the United States is found in Frozen Food Express v. United States and East Texas Motor Freight Lines, Inc. v. Frozen Food Express, supra. We can perceive no reason why a Department or a Cabinet Officer, charged with duties of decision by Congress may not express views in accordance with judgment and conscience. The writ of Mark, iii, 25 does not run in this case. The order of the Commission will be enjoined and set aside insofar as it relates to the raw shelled nuts, the subject of this controversy. All petitions for intervention as party to the suit will be allowed. 5 The Commission insists that the nut is the whole; outer shell, inner kernel covering, and the kernel itself; that, in effect, on the shelling and on the removal of the inner kernel covering, there is a manufactured product. The Commission insists that the kernel is not the nut. We agree that the kernel is not the exact object that came from the plant. But we are not concerned with exactitude but with the test of substantial identity. When you have an egg for breakfast, you do not eat the shell. Judge Hartshorne cogently put this issue in another way during the course of the oral argument as follows: "The law is made for man . . . It is the substantial identity of the article from the standpoint of man, here the consumer, which should be the criterion." See T. p. 80. Meetings of Regional Chapters District No. 1 Chapter Lawrence Petersen, President, G.T.M., Eastern Gas & Fuel Association, 250 Stuart St., Boston 16, Massachusetts. Akron Harry J. Carroll, Chairman, Director of Traffic, The Goodyear Tire & Rubber Company, 1144 East Market St., Akron 16, Ohio. Meets: Bi-monthly, third Wednesday of alternate months, except July and August. Atlanta Dr. John H. Goff, Chairman, School of Business Administration, Emory University, Emory University, Georgia. Baltimore Chapter Albert M. Bodane, Chairman, G.T.M., Rheem Manufacturing Company, Sparrows Point 19, Maryland. Meets third Thursday of each month, September through May, at 8:00 P. M., Association of Commerce Building, 22 Light St. Out-oftown members are cordially invited. New Carolina Chapter Formed A new Chapter has been formed recently, which will be known as the Carolina Chapter. Officers elected at an organization meeting held in Charlotte, N. C., on October 5, 1956 are: Emory B. Ussery, Columbia, S. C., Chairman. George J. Leeds, T. M., Hennis Freight Lines, Winston-Salem, N. C., Vice-Chairman. Garland V. Moore, A. T. M., Akers Motor Lines, Gastonia, N. C., Secretary-Treasurer. S. E. Fulk, A. T. M., Pilot Freight Carriers, Winston-Salem, N. C., Assistant Secretary-Treasurer. W. J. Seay, Jr., T. M., Atlantic & Pacific Tea Co., Charlotte, N. C., Member, Executive Committee. J. P. Ehret, High Point, N. C., Member, Executive Committee. Mr. Hewitt Biaett, General Solicitor of the Chesapeake & Ohio Railroad, Richmond, Virginia, who is Vice-President of District No. 5 of the N. B.: Members within each of the several districts may at their own expense with the approval of the vice-president of the district, organize and maintain district and local chapters which may send delegates to annual or other meetings of the Association. Such chapters must conform to the constitution and by-laws of the Association, provided, however, that membership in the Association of Interstate Commerce Commission Practitioners shall be deemed a condition precedent to membership in any chapter. (Constitution-section 5, Article IV). (Sample charter, i.e., that of the District of Columbia Chapter, will be found on pages 120-122 of December, 1939, Journal). (Dues have been raised to $2.00 per member) Association of I. C. C. Practitioners, installed the officers and gave a brief talk on "Duties and Opportunities of Chapter Membership. Two meetings of the Chapter will be held each year during April and October. Winston-Salem and Charlotte, N. C., have been designated as the cities in which the two meetings are to be held. Chicago Chapter A. E. Leitherer, Chairman, Ass't Gen'l T. M., Allied Mills, Inc., Rm. 3400, 141 West Jackson Boulevard, Chicago, Illinois. Meets: 12:15 P. M. Second Friday of each month at the Traffic Club Rooms of the Palmer House, Chicago. Out-of-town members are cordially invited to attend the luncheon and meeting. Cleveland Chapter Mr. Thomas O. Broker, Chairman, Assistant General Counsel, Nickel Plate Railroad, 3016 Terminal Tower, Cleveland, Ohio. Meets: Quarterly on Third Tuesday of the month. Rocky Mountain Chapter Dorsey O. Ruthrauff, Chairman, Asst. to T. M., American Crystal Sugar Company, Boston Building, Denver 1, Colorado. Meets: Third Tuesday of each month at 12:15 P. M., Albany Hotel. Out-of-town members are cordially invited to attend the luncheon and meeting. District of Columbia Chapter Eugene T. Liipfert, Chairman, 2001 Massachusetts Avenue, N. W., Washington 6, D. C. Meets bi-monthly, second Tuesday. Out-of-town members are invited to attend the luncheons of the D. C. Chapter when in Washington. However, notice of such intention must be transmitted to the Executive Secretary by 10:30 of the day of the luncheon so that reservation can be made. Florida T. C. Maurer, Chairman, G. T. M., National Container Corporation, P. O. Box 1620, Jacksonville 1, Florida. Kansas City, Missouri, Chapter R. H. Prevette, Vice-President, c/o Dewey Portland Cement Company, P. O. Box 767, Kansas City 12, Missouri. Meets: 6:00 P. M., on the first Wednesday of each month except July and August in the Transportation Department of the Kansas City Chamber of Commerce, 11th & Baltimore Streets, Kansas City, Missouri. Out-of-town members are cordially invited to attend these meetings. St. Louis, Missouri, Chapter Robert H. Stahlheber, Chairman, Commerce Attorney, Missouri Pacific Lines, 13th & Olive Streets, St. Louis 3, Missouri. Meets: Third Friday of each month at 12:15 P. M. except July and August at the Mark Twain Hotel. Out-of-town members are cordially invited to attend the luncheon meeting. |