The opinion of the court was delivered by: KNIGHT
This suit is brought under Section 222(b) of Part II of the Interstate Commerce Act, 49 U.S.C.A. § 322(b), to restrain the defendants, George C. Pickard and Bennie M. Anderson, from operating as motor carriers without authority of law. The plaintiff also seeks to restrain the Jamestown Sterling Corporation from employing said motor cariers in transportation involving such unlawful operations.
The complaint sets out three causes of action: (1) Charging the defendants Pickard and Anderson, individually and as copartners, in engaging in the transportation of property by motor vehicle in interstate commerce in violation of law; (2) with having failed and neglected to file a tariff of rates, etc., and operating without such filing; and (3) with transportation of property in interstate commerce without having filed security for the protection of the public as provided by law.
Part II of the Interstate Commerce Act became effective October 1, 1935, 49 U.S.C.A. § 301 et seq. Up to September 18, 1940, it was known as "The Motor Carrier Act." This act vests the regulation of transportation of property by motor carrier engaged in interstate commerce in the Interstate Commerce Commission. By its provision a common carrier is prohibited from engaging in interstate commerce unless he has a certificate of public convenience and necessity issued by the Interstate Commerce Commission. It is also the duty of the common carrier to enforce reasonable rates and charges for transportation and file with the Commission a tariff showing the rates charged. The law also authorized the Commission to prescribe rules requiring the common carrier to file a policy of insurance for the protection of the public and shipper. The Act of September 18, 1940, c. 722, Title I, Sec. 1, 54 Stat. 899, 49 U.S.C.A. chs. 1, 8, 12 notes, amended the Interstate Commerce Act in certain respects. The amendment recites the purpose of the statute to be "to the end of developing, coordinating, and preserving a national transportation system by water, highway, and rail, as well as other means, adequate to meet the needs of the commerce of the United States, of the Postal Service, and of the national defense."
Part II of the Interstate Commerce Act, 49 U.S.C.A., Chapter 8, as amended September 18, 1940, reads:
"Sec. [s] 303. Definitions and exceptions
"(14) The term 'common carrier by motor vehicle' means any person which holds itself out to the general public to engage in the transportation by motor vehicle in interstate or foreign commerce of passengers or property * * * for compensation, * * *" and
"(17) The term 'private carrier of property by motor vehicle' means any person not included in the terms 'common carrier by motor vehicle' or 'contract carrier by motor vehicle', who or which transports in interstate or foreign commerce by motor vehicle property of which such person is the owner, lessee, or bailee, when such transportation is for the purpose of sale, lease, rent, or bailment, or in furtherance of any commercial enterprise."
"(15) The term 'contract carrier by motor vehicle' means any person which, under individual contracts or agreements, engages in the transportation (other than transportation referred to in paragraph (14) and the exception therein) by motor vehicle of passengers or property in interstate * * * commerce * * *."
The Safety Rules of the Commission, Part V, 5(a), provide that each carrier shall carry a driver's log to be kept by every driver employed in operating motor vehicle in interstate commerce showing the details therein set forth.
The defendants George C. Pickard and Bennie M. Anderson are co-partners, in business in the city of Jamestown, New York. As such co-partners they own and operate one tractor and trailer, and the only business of the partnership has been the operation of this tractor and trailer for the defendant Jamestown Sterling Corporation, which is engaged in the manufacture and sale of furnitue in said city. On September 9, 1938, the defendants George C. Pickard and Bennie M. Anderson entered into a written agreement with the Jamestown Sterling Corporation pursuant to which they purposed to lease the aforesaid truck and trailer to said corporation at a monthly rental of $1,000 for the period of one year. Subsequent agreements to the same effect were executed on September 9, 1939, and September 9, 1940. These provided that the partners furnish motor fuel and oil, but in the event the cost thereof were more or less than $200 per month, proper allowance would be made for the excess or deficiency. It further provided that the partners were to provide two employees to operate the truck, and these were to remain their employees for "every purpose whatsoever." The partnership was to furnish compensation insurance, pay social security and other similar contributions or payroll deductions. They were to procure licenses and carry insurance protecting the Jamestown Sterling Company from damage from injuries to person or property or other cargo transported.
Defendant Jamestown Sterling Corporation prior to 1938 had delivered its furniture to common carriers for transportation into various states. Two separate common carrier lines, each of which was operated by each of the defendants Pickard and Anderson, prior to 1938, were included among such common carriers. There were certain territorial limits to their authority as common carriers and hence defendants Pickard and Anderson were not then able to make deliveries to consignees in places outside their operating authority. This led to the engagement in the partnership aforesaid, the sole purpose of the formation ...