Thomson v. United States/Dissent Douglas
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.

One who arranges for another to do some hauling for him may or may not enter the hauling business. The question whether the one or the other is the entrepreneur has occupied the courts from an early day. Holmes, Agency (1891), 5 Harv.L.Rev. 1, 15-16. The Commission has drawn upon that body of law concerning independent contractors for the purpose of determining whether in case of line-haul transportation the carrier dealing directly with the shipper or the one performing the actual motor transportation was the common carrier entitled to grandfather rights under the Act. That is to say it has held, and consistently so, that the carrier which exercised direction and control of the actual motor-vehicle operations and assumed responsibility therefor to shippers and to the general public was the one who was in 'operation' during the specified period as a 'common carrier by motor vehicle' within the meaning of the grandfather clause. § 206(a). That test has been applied whether the carrier dealing directly with the shippers was a common carrier by motor vehicle (Dixie Ohio Express Co., 17 M.C.C. 735, 738-741; J. T. O'Malley, 23 M.C.C. 276, 279) or a common carrier by rail. Willett Company of Indiana, Inc., 21 M.C.C. 405, 408; Missouri Pac. R. Co., 22 M.C.C. 321, 326-327. It has been applied after as well as before the 1940 amendments.  Boston & Maine Transportation Co., 30 M.C.C. 697, 704-705. And in applying the test to railroad applicants it has placed them on a parity with motor vehicle applicants. Boston & Maine Transportation Co., supra. And see Crooks Terminal Warehouse, Inc., 34 M.C.C. 679. There have been disagreements within the Commission whether particular applicants satisfy the test. Missouri Pac. R. Co., supra; Boston & Maine Ransportation Co., supra. But there has been no disagreement over the propriety of the control and responsibility test itself.

The control and responsibility test provides a fair measure of the grandfather rights. He who shows that he has been and is an independent contractor has established his claim to the transportation business as clearly as any connecting carrier. The fact that the transportation service offered is closely integrated and held out to the public as such does not mean that segments of the line-haul operation may not comprise separate enterprises. To attach grandfather rights to the separate segments is not to grant multiple rights. It is to allow those rights to follow ownership of the enterprise. I see no other way to effectuate the Congressional policy of preserving through the grandfather clause the position which motor vehicle operators 'struggled to obtain in our national transportation system.' United States v. Carolina Freight Carriers Corp., 315 U.S. 475, 488, 62 S.Ct. 722, 729, 86 L.Ed. 971. To conclude that the present arrangement is a mere agency is to disagree with the Commission in its application of the control and responsibility test. To rest grandfather rights on the integrated rail-motor service which appellant offers the public is to grant it rights based on another man's business. To grant appellant these grandfather rights on the basis of a holding out is to give to the 1940 amendment an effect which Congress concededly did not intend.  I do not believe that Congress intended to put applicants such as appellant in a preferred position.

Since there is concededly sufficient evidence to support the findings of the Commission on the control and responsibility test, I would affirm the judgment below. 

Notes

Thus after as well as before the 1940 amendment the basic question in this type of case was whether the connecting carrier was in 'bona fide operation' as such a carrier. If it was an independent contractor it was engaged in such 'operation'; if it was performing a transportation service as a mere agent for the carrier with whom the shipper dealt, it was not. Boston & Maine Transp. Co., supra.