Opinion
No. 2132.
April 10, 1941.
Colin A. Smith and Hugh E. Lillie, both of Chicago, Ill., for plaintiff.
Mayer, Meyer, Austrian Platt, of Chicago, Ill., for defendants.
Suit by the Interstate Commerce Commission against the Chicago Food Manufacturers Pool Car Group, an unincorporated association, and others, to enjoin the defendants from offering or selling transportation in interstate commerce until a broker's license was in effect authorizing such operations.
Injunction denied.
The complaint was filed in this case on September 23, 1940, and contains two counts.
Paragraph I of the first count charges that the suit is brought and the jurisdiction of the court is invoked under the provisions of the Motor Carrier Act of 1935, as amended, 49 U.S.C.A. Chap. 8, section 301 et seq., and particularly Sec. 322 thereof; and under the provisions of Section 2 of the Elkins Act, Title 49, Chap. 2, Sec. 41(2) U.S.C.A.
The answer, filed February 24, 1941, admits the allegations of this paragraph, but denies that the Elkins Act is applicable in this case.
Paragraph II charges that defendant Chicago Food Manufacturers Pool Car Group (called the Big Ten) is an unincorporated association in Illinois, and is composed of the following members, who are also made defendants: Allison-Bedford Company, Budlong Pickle Company, Chicago Macaroni Company, Loyal Packing Company, Oelerich Berry Company, Stein-Hall Manufacturing Company, W.F. Straub Company, M. Wolff Sons, The Warfield Company, all corporations of Illinois, with their principal offices in the City of Chicago, except Stein-Hall Manufacturing Company, which is a corporation of Delaware, doing business in the State of Illinois, and Carl M. Plochman and Margaret Plochman, doing business as Plochman Harrison, of Chicago, Illinois. That the Big Ten employed one Dave Baxter, of Chicago, Illinois, who is also joined as a defendant, at $150 per month and expenses, with authority to carry out, on its behalf and on behalf of all of its members, the operations hereinafter set forth.
Defendants admit the allegations of this paragraph, but deny that Baxter had authority to carry out all operations set out, and state that he was not authorized to accept from non-members of the Big Ten the compensation alleged to have been received by him.
Paragraph III charges that Squire Dingee Company, Blue Seal Food Products, Inc., Culinart Products, Inc., Sprague Warner Company and King Fuller Company, all corporations of Illinois, with their principal offices in Illinois, and not members of the Big Ten, are all engaged in the manufacture and sale at wholesale of various food products, and shipping the same by motor carrier.
Defendants admit the allegations of this paragraph.
Paragraph IV charges that beginning January 4, 1939, up to the time of the filing of this complaint the Big Ten, and all of its members, through Dave Baxter, were engaged for compensation in selling transportation of property by motor vehicle in interstate commerce on public highways, and in the making of contracts to provide, furnish and arrange for such transportation, and that they thus became brokers, and subject to the Act.
Defendants deny all of these allegations.
Paragraph V charges that as specific instances, on the dates specified in Exhibit A attached to the complaint, the Big Ten and all of its members, through the agent Baxter, sold and caused to be provided, transportation of property by motor vehicle in interstate commerce on public highways for compensation for the non-member defendants set out in the complaint, as appears in Exhibit A, and whereby the Big Ten and its members charged and received the compensation at rates not therein appearing, and that the non-member defendants aided, abetted, encouraged and participated in said operations.
Defendants deny these allegations insofar as they relate to the member defendants, but admit that they did, through Dave Baxter, cause transportation to be provided for the defendant non-members on the dates and for the commodities, and for the shippers listed in Exhibit A, but state that while Baxter received compensation for his services, none of the other defendants received any compensation. They also deny that Baxter's compensation was brokerage fees.
Paragraph VI charges that with respect to the dates specified in Exhibit A there was not and is not now in force with respect to the Big Ten, or any of its members, any license issued by the Interstate Commerce Commission authorizing the selling of such transportation as is set forth in Exhibit A, or authorizing the making of contracts for such transportation in interstate commerce by motor vehicle, or authorizing the Big Ten to hold itself or its members out as a person or persons who sell or provide such transportation or to arrange for such transportation.
Defendants admit these allegations except that portion reading: "and said operations and each of them, of defendant Big Ten, and of each member thereof, were and are without warrant or authority of law." They further state that no license of the kind specified was needed by any of these defendants, and deny that their participation in and arranging for the transportation was without warrant or authority of law.
Paragraph VII charges that plaintiff believes that unless restrained by this court the Big Ten and its members will continue to do the things set out above.
Defendant members, the Big Ten and Dave Baxter deny these allegations insofar as they relate to them.
Paragraph VIII charges that all of said acts and operations of defendants are in violation of Sections 211 and 222 of the Act, and as such are subject to be enjoined by this court on the application of this plaintiff under the provisions of the Act, particularly Sec. 222(b) and of the Elkins Act, particularly Sec. 2 thereof.
Defendants deny these allegations.
Paragraph I of the second count charges that the allegations in Paragraph I and III of the first count are adopted and incorporated in the second count.
Defendants make the same answer as they did to Paragraphs I and III of Count One.
Paragraph II charges that at all times mentioned herein defendants Allison Bedford Company, Budlong Pickle Company, Chicago Macaroni Company, Loyal Packing Company, Oelerich Berry Company, W.F. Straub Company, The Warfield Company, and M. Wolff Sons, were all Illinois Corporations, with their principal offices in Chicago, Illinois. That defendant Stein-Hall Manufacturing Company is a Delaware Corporation doing business in Illinois; that Carl M. Plochman and Margaret Plochman were and are citizens of Illinois doing business as Plochman and Harrison. That each of the defendants named in this paragraph is a member of the Big Ten, and is engaged in manufacturing and selling at wholesale various food products, which were and are shipped by motor carriers from Chicago, Illinois, to various places in the United States.
Defendants admit these allegations.
Paragraph III charges that from January 4, 1939, up to the time of the filing of this complaint Dave Baxter was engaged for compensation in selling transportation of property by motor vehicle in interstate commerce on public highways, and making contracts for such transportation, and in holding himself out to the public as one who sold such transportation, and that he was a broker subject to the Act.
Defendants admit that Baxter sold transportation to the five defendant non-members of the Big Ten, but deny that he was engaged in the business of so doing; and deny that he was engaged in the business of selling or offering for sale such transportation, or making contracts therefor; or that he held himself out to the public as one who rendered such services, and deny that he was or is a broker subject to the Act.
Paragraph IV sets out specific instances of the transactions complained of, as shown by Exhibits A and B, where Baxter sold, provided and arranged for transportation of property by motor vehicle, on public highways, in interstate commerce, to and for the defendants, the Big Ten, as well as for each individual member thereof, and for defendant non-members, at the rates and charges set out in the exhibits; and that he charged therefor and received from each member of the Big Ten, who are made defendants herein, the sum of $15 per month, together with an allowance from each of said members of $5 per month for expenses, as set out in Exhibit B.
Defendants admit that Baxter arranged for these defendants the transportation specified in Exhibits A and B, and that he received the compensation named, but deny that the same were brokerage fees, but on the contrary was a full time salary as agent for such principals. Defendants also admit that Baxter arranged transportation, as specified in Exhibit A, and was compensated by the non-member defendants, but they deny that he was a broker in fact, or as defined in the Motor Carrier's Act, and deny that he received such compensation as a broker.
Paragraph V charges that at all times set out with respect to the dates specified in Exhibits A and B there was not, and there is not now in force, any license issued by the Interstate Commerce Commission authorizing Baxter to sell or provide such transportation as is set out in Exhibits A and B, or to make such contracts therefor, or to hold himself out as one who furnishes such transportation.
Defendants admit the allegations of this paragraph, but deny that any license from the Interstate Commerce Commission was required to be secured by Baxter for any of the activities engaged in by him.
Paragraph VI charges that plaintiff believes that unless restrained by this court Baxter will continue to sell, provide, procure, furnish and arrange for transportation of property in interstate commerce by motor vehicle on public highways, between the points set out in Exhibits A and B, and between other points within the United States, and will continue to make contracts, agreements and arrangements to provide the same; and that the other defendants will continue to aid and abet, encourage and participate in said operations, with full knowledge of the premises herein set forth.
Defendants deny these allegations insofar as they relate to them.
Paragraph VII charges that said acts and operations are in violation of Sections 211 and 222 of the Act, and are subject to be enjoined by this court on the application of plaintiff, under the provisions of the Act, particularly Sec. 222(b) and of the provisions of the Elkins Act, particularly Section 2 thereof, and therefore demands judgment as follows:
A. That the Big Ten, and its members, and their agents, be perpetually enjoined and restrained from offering or selling such transportation in interstate commerce, or from making contracts therefor, or holding themselves out as persons who sell or provide such transportation, until such time as there is in force and effect a broker's license authorizing such operations. And that the non-member defendants be perpetually enjoined and restrained from aiding and abetting the Big Ten and its members in carrying on these activities, and committing the offenses aforesaid.
B. That Dave Baxter and his agents, and all others participating with him, be perpetually enjoined and restrained from in any manner selling or providing transportation in interstate commerce by motor vehicle, or holding himself or themselves out as ones who sell or furnish such transportation, unless and until there is in force and effect with respect to Baxter a broker's license issued by the Interstate Commerce Commission authorizing such operations; and that all the defendants be enjoined and restrained from aiding and abetting Baxter in committing these offenses.
C. That a preliminary injunction be issued enjoining and restraining all of the defendants from doing any of the acts set out in paragraphs A and B above during the pendency of this suit, and that plaintiff have such other and further relief as equity may require.
Defendants deny that the acts complained of in this paragraph violate any provisions of law therein referred to, and deny that plaintiff is entitled to the relief asked in sub-paragraphs A, B, and C in this paragraph.
On November 25, 1940, the parties to this cause entered into the following stipulation of facts:
I. That this court has jurisdiction over the parties and the subject matter of this suit.
II. That at the times involved in this suit the defendant, Chicago Food Manufacturers Pool Car Group (hereinafter called "Big Ten") was an unincorporated association composed of the following members, who are made defendants: Allison-Bedford Company, Budlong Pickle Company, Chicago Macaroni Company, Loyal Packing Company, Oelrich Berry Company, Stein-Hall Manufacturing Company, W.F. Straub Company, M. Wolff Sons, and the Warfield Company, all Illinois Corporations; and Carl M. Plochman and Margaret Plochman, doing business as Plochman and Harrison; that said Big Ten was and is a voluntary association of manufacturers of non-competing items or classifications of food, federated for the purpose of enabling them through the joint marketing of their products, to compete more effectively with larger non-member food manufacturers, each of whom alone produces on a large scale, many of the articles manufactured by individual members of the Big Ten; that said Big Ten have numerous common activities not related to transportation, such as advertising of wares, and promotion and solicitation of sales; that defendant, Dave Baxter, since January, 1938, has been employed by said Big Ten as its general manager and traffic manager on a full time basis at a salary of $150 a month and an allowance for actual expenses. Each of the ten members of said Big Ten contribute the sum of $20 per month to its treasurer towards the payment by the latter of such salary and expenses.
III. That at all times involved in this suit defendants, Squire Dingee Company, Blue Seal Food Products, Inc., Culinart Products, Inc., Sprague Warner Company, and King Fuller Company, were Illinois corporations engaged in the business of manufacturing and selling at wholesale, various food products and other commodities, and utilizes the services of motor carriers for the transportation of such products and commodities to their respective customers; that none of the defendants named in this paragraph were or are members of the Big Ten.
IV. That during the period beginning January 4, 1939, to and including the filing of the complaint in this cause, the defendant Big Ten, through its manager, defendant Dave Baxter, arranged for the consolidation of the less-than-truckload interstate shipments of its individual members, defendants herein, as well as the less-than-truckload shipments of the defendant non-members, into truckloads, for the purpose of obtaining truckload rates on such less-than-truckload shipments, when so consolidated. Individual bills of lading or delivery tickets for each less-than-truckload shipment were furnished the motor carriers transporting such shipments. After the consolidation of such less-than-truckload shipments was made by such motor carriers a bill of lading was made by such motor carriers covering the entire truckload, showing the Big Ten as both consignor and consignee, and also showing the name of each individual shipper and each individual consignee of each such less-than-truckload shipment. After such individual less-than-truckload shipments were consolidated into a truckload by such motor carrier under the instructions of said defendant, Dave Baxter, they were transported in interstate commerce by such motor carrier to destination and delivered by such motor carrier to the consignee designated on such individual bills of lading or delivery receipts. Such motor carrier prepared one freight bill showing the transportation charges on each such truckload and presented such bill to defendant Dave Baxter, who paid same by his personal check. Such freight bill listed the weight of each less-than-truckload shipment, and also the total weight of the truckload and the total charge assessed. After receipt of such freight bill from such motor carrier, defendant Dave Baxter billed each member of the Big Ten that had a less-than-truckload shipment in such truckload for a pro-rated amount based on the weight such member's less-than-truckload shipment bore to the weight of the entire truckload. As to the non-members of the Big Ten, also defendants herein, defendant Dave Baxter billed such non-members who had less than truckload shipments included in such truckloads, a pro-rated amount based on the weight such non-member's less-than-truckload shipment bore to the weight of the entire truckload, and in addition thereto, billed and collected from such non-member an additional charge for services rendered by him in arranging for such transportation for such non-member, which additional charge was retained by him as compensation, in addition to the salary he received from the members of the Big Ten.
V. At no time did the Big Ten as a group have title to such truckload shipments included therein, and such individual less-than-truckload shipments were owned by the individual members of the Big Ten and retained their identity as aforesaid until delivered to the consignees shown in the respective individual bills of lading or delivery receipts.
Specific representative instances of the operations of defendant, Big Ten, and defendant Dave Baxter, with respect to the inclusion of less-than-truckload lots of defendant non-members of said Big Ten in such truckload shipments are set forth in Exhibit A attached to the complaint in this suit, which said Exhibit (except the words "For Himself and Said Pool Car Group" in the caption) may be considered by this court as a part of this stipulation; that on the dates specified in said Exhibit A, defendant Big Ten, and each member thereof, defendants herein, through defendant Dave Baxter, the agent and employee of defendant Big Ten, did in the manner set forth in paragraph IV hereof arrange or cause to be so procured and arranged transportation of property by motor vehicle in interstate commerce on public highways for compensation, to and for defendant non-members of said Big Ten from the points of origin to the points of destination, from those named as consignors to those named as consignees, at the rates and charges, as set forth in said Exhibit A, and as compensation for the arranging for the transportation of such shipments Dave Baxter charged and received and retained the compensation therefor set forth in said Exhibit A: that defendant non-members of said Big Ten, in addition to the freight charges set forth in said Exhibit A, did each pay to defendant Dave Baxter the amounts set forth in column 8 of said Exhibit A opposite the respective names of said non-members of said Big Ten.
VI. Specific representative instances of the operations of defendant Big Ten and defendant Dave Baxter with respect to the inclusion of less-than-truckload shipments of defendant members of said Big Ten in such truckload shipments are set forth in Exhibit B attached to the complaint in this suit, which said Exhibit (except the words "of brokerage fees" in the caption and all statements set forth under Col. 8) may be considered by this court as a part of this stipulation; that on the dates specified in said Exhibit B, defendant Big Ten and each member thereof, defendants herein, did in the manner set forth in paragraph IV hereof, cause defendant Dave Baxter to provide, procure, contract, and arrange transportation of property by motor vehicle in interstate commerce on public highways for each member of said Big Ten for compensation, from the points of origin to the points of destination, from those named as consignors to those named as consignees at the rates and charges as set forth in said Exhibit B, and for the providing, procuring, contracting and arranging for the transportation of such shipments, and for other services for said members of said Big Ten, defendant Dave Baxter received as compensation therefor, in addition to the freight charges set forth in said Exhibit B and salary of $150 per month and an allowance for actual expenses, all as set forth in paragraph II hereof.
VII. That at all times herein set forth there was not in force, and there is not now in force with respect to defendant Big Ten, or with respect to any defendant member thereof, or with respect to defendant Dave Baxter, any license issued by the Interstate Commerce Commission authorizing any procuring and arranging of transportation as set forth in Exhibits A or B, or authorizing the making of any contract, agreement or arrangement to provide, procure, furnish, or arrange for transportation of property in interstate commerce by motor vehicle, on public highways for compensation, or authorizing defendant Big Ten, or any member thereof, or defendant Dave Baxter, to hold itself, themselves, or any of them, out collectively or individually by advertisements, solicitation or otherwise, as a person or persons who sell, provide, procure, contract or arrange for such transportation.
VIII. It is further stipulated that this cause be submitted to this court for final disposition upon the basis of this stipulation of facts and upon oral or written argument to be made.
The facts set out in this stipulation the court adopts as its finding of facts in this case.
The question before me is whether, under the present facts, Baxter or any member of the Big Ten is a "broker" as that term is defined in 49 U.S.C.A. § 303(a) (18) of Part II of the Interstate Commerce Act, dealing with motor transport, and which provides: "The term `broker' means any person not included in the term `motor carrier' and not a bona fide employee or agent of any such carrier, who or which, as principal or agent, sells or offers for sale any transportation subject to this part [chapter], or negotiates for, or holds himself or itself out by solicitation, advertisement, or otherwise as one who sells, provides, furnishes, contracts, or arranges for such transportation.", and therefore obliged to secure a license under Sec. 311. Plaintiff contends that under this definition Baxter was a broker and further contends that Baxter's acts may be imputed to the members of the Big Ten, thus constituting them brokers. That the operations of Baxter, the members of the Big Ten, and the non-members should be considered in their entirety, and such operations being unlawful, an injunction should issue against all persons contributing to the unlawful plan, even though certain of the acts of the various defendants would in themselves be lawful, except as they constituted a part of the unlawful plan.
Baxter was employed by the Big Ten on a full time salary of $150 per month and actual expenses, each of the ten members contributing an equal portion of such salary and expenses. On behalf of the members of the Big Ten he provided, procured, contracted for and arranged transportation by motor vehicle for their various food products. His duties included the consolidation of less-than-truckload shipments into truckload shipments for the purpose of obtaining the benefit of lower rates, which were in force and published according to the requirements of the Interstate Commerce Commission. It was customary for him to include in the shipments of the Big Ten the shipments also of the five-non-members at the rate of .03 to .10 per hundred weight, paid to him as compensation for his services in arranging such transportation. All of these shippers were manufacturers and sellers of food products. Individual bills of lading or delivery tickets for each shipment were furnished the motor carrier by each shipper. After the consolidation of a shipment was accomplished bills of lading covering the entire truckload were made out by the motor carrier, showing the Big Ten as consignor and consignee, and also showing the names of each individual shipper and each individual consignee or each less-than-truckload shipment. Such shipments were receipted for by such motor carrier on the individual bills of lading or delivery receipts. When Baxter arranged for the transportation of individual shipments of members of the Big Ten at truckload rates, he received no additional compensation other than the $150 salary per month.
The stipulation contains no reference to Baxter and the Big Ten holding themselves out to the public, by advertisement or otherwise, as "one who sells, provides, furnishes, contracts, or arranges for" motor transportation.
What Baxter did he did on behalf of his employers. He did not solicit transportation for or on behalf of any motor carrier. He was in fact the traffic manager or agent for defendants, and under their directions he arranged for the transportation of their products. He also arranged for consolidation of their less-than-truckload shipments into truckload shipments, which any of the shippers themselves might have done on their own behalf in order to secure the benefits of a lower rate for transportation. I do not find anywhere in the Act any provisions which render such consolidations unlawful. If, as contended by plaintiff, there is a restriction against this practice, the law itself should contain the restriction, and this is a matter for the attention of the legislature, not for the court.
Sec. 211(a) of the Act provides for the licensing of "motor transportation brokers" and I believe it contemplates the licensing and regulating of independent persons or corporations who engage in the business of selling transportation, and is not designed to include persons regularly employed, such as traffic managers or agents, shipping clerks, or other salaried officers of shippers, whose business it is to arrange for transportation on behalf of their employers, and whose activities may be regulated and controlled by the Interstate Commerce Commission by reason of its jurisdiction over the activities of the shippers themselves. Both sides agree that Baxter was an agent for The Big Ten. The complaint alleges, at Page 2 thereof, "that the Big Ten had in its employ defendant Dave Baxter at a salary of $150 per month and expenses, with full power and authority to carry out on behalf of itself and each of its members the operations hereinafter set forth."
Defendants are not in the business of selling or providing transportation. They are admittedly all of them in the business of manufacturing and selling at wholesale non-competing items or classifications of food and food products, and that they utilize the services of motor carriers for the transportation of such food products and commodities to their various customers. Baxter, as agent and employee of the other defendants, does not "sell or offer for sale any transportation subject to this part." On the contrary, on behalf of his employers he "buys" transportation for their use and benefit.
The case of Mesler Broker Application, decided November 16, 1939, and digested in 1 Fed.Carrier Cases, 435 (par. 7415), illustrates that the Commission itself does not interpret the term "broker" as covering a salaried agent such as Baxter. In that case the original report and order of the Examiner was adopted by the Commission, and is in part as follows:
"Applicant's proprietor is a customhouse broker, licensed by the Federal government on February 3, 1930, for the port of New York. An office, but no warehouse, is maintained. No motor vehicles are owned or operated. The traffic, chiefly glass jars and incidental articles, originates at Muncie, Ind., and other points in Indiana and adjacent states, and is consolidated at Muncie and shipped by railroad to New York for local distribution, for transfer to piers for export, or for reshipment to New Jersey points. Practically all of the latter service is by motor carrier. This procedure results in carload rates on the numerous less-than-carload shipments thus consolidated for transportation from Muncie to New York City. Applicant has no connection whatever with any motor carriers. Its compensation is derived wholly from the midwestern shippers, who ship carload quantities, with freight charges prepaid to it as local agent, and it then attends to the distribution of the individual less-than-carload shipments to retailers, wholesalers or exporters, as the case may be. The domestic shipment is done in applicant's name, but that from the piers to foreign countries is done in the name of the midwestern shipper. Usually the expense of the local or nearby motor carriage is borne by the consignee; if by the shipper, then applicant pays it and bills the shipper therefor.
"* * * The volume distributed by applicant ranges from 6 to 8 carloads per week.
"The facts of record fail to disclose any interest on applicant's part in the method of distributing transportation from cars to New York to ultimate destination other than that of obtaining safe and expeditious service in behalf of the seller and the purchaser. It does not represent any motor carrier or sell, offer for sale, or receive any compensation for the sale of motor carriage. When it engages such transportation it does so essentially as an agent of the shipper and in the same manner as any other shipper does. It is free to change from carrier to carrier as demands of the business or deficiencies of the carriage may require. Consequently, it is not a broker as defined in the act and is not entitled to a license under the provisions of section 211 thereof."
When Baxter engages transportation for his employers he does so as their agent, and in the same manner as any other shipper would do. He does not represent any motor carrier, or sell, offer for sale, or receive any compensation for the sale of motor carriage. As said before, Baxter buys transportation for and on behalf of his employers.
In the case of Faulk Broker Application, 10 M.C.C. 145, decided October 27, 1938, in holding that the applicant, who was a traffic manager on a salary and commission basis, the Commission said:
"Applicant testified that he had operated as a transportation broker since prior to June 1, 1935, but offered no proof of his operations except those conducted subsequent to October 15, 1935. He maintains a small office at Jasper, in the general offices of Morgan Lindsey, a general merchandise firm which has approximately 50 branch stores in the states above named. He has been employed as traffic manager by Morgan Lindsey since October 15, 1935, on a salary and commission basis. He devotes 90 per cent of his time to certain traffic and other matters of that firm and the remainder to his so-called broker operations. These operations, as conducted prior to the hearing, consist of arranging for the consolidation of less-than-carload shipments at strategic points, the movement thence in carloads by rail or water carriers to New Orleans and Shreveport, La., or other break bulk points, and the distribution therefrom in less-than-carload lots. Some of the shipments to concentration points and from distributing points were transported by motor carriers. For the most part the consolidated shipments consisted of merchandise owned by Morgan Lindsey, but in some instances applicant arranged for the inclusion of goods owned by others in order to make up a carload. The shipments were consigned to Morgan Lindsey in either event, and the arrangements were made in the name of that firm. For these services the applicant received from the party bearing the freight charges a commission based on a percentage of the savings effected. He did not advertise or hold himself out to the public as a broker, and apparently he did not solicit any shipments which could not profitably be combined with those of his employer.
"Applicant advised us by letter shortly after the hearing that he had discontinued the arranging for any shipments except those of Morgan Lindsey in his employee capacity, and that, in his opinion, he required no license to perform such services. We concur in that view. Under the circumstances the question whether the practice of arranging for the shipments of others, as above described, constitutes a broker operation need not be determined herein.
"We find that the service which applicant proposes to perform as employee of Morgan Lindsey would not be that of a broker within the meaning of the Motor Carrier Act, 1935, and that the application should be denied."
In National Federation of Textiles, Inc., Broker Application, 10 M.C.C. 407, decided September 12, 1938, the Commission had under consideration the position of the Traffic Department of a trade association having numerous members. In that case the Commission said:
"The Federation has a multiplicity of functions. Of these functions only those of its traffic bureau are of interest in this proceeding. This bureau supplies the members of the Federation with an advisory service as to rates, routes, and shipping problems, and attempts to obtain equitable and stable rates and uniform classification in connection with the various transportation facilities used by the industry which the Federation represents. Its activities in arranging for motor transportation are confined to import traffic destined to the plants of the members of the association. This service is performed in the following manner: The owner of the goods to be transported forwards the import bills of lading, consular invoices, and other necessary papers to the bureau, which then arranges for customs clearance. At the same time the owner of the goods furnishes instructions as to the method of shipment to be used, that is, whether by rail or by motor and by what railroad or motor carrier. After customs clearance the shipments are forwarded in accordance with such instructions on bills of lading issued in the name of the owner of the goods shipped. The Federation does not solicit traffic for any motor carriers, although certain approved motor carriers are among its members. In the transportation of silk, because of its value and susceptibility to loss or theft, it is necessary to use thoroughly reliable carriers. For this reason, the Federation is sometimes called upon to recommend such motor carriers to its members, but the final choice of carriers rests with the user of the service at all times and not with the applicant. No negotiations with motor carriers are entered into by the Federation respecting the furnishing of transportation, except the actual shipping upon members' instructions and in the members' behalf. The Federation has entered into no contracts with motor carriers. * * *
"The examiner finds that the services provided by applicant in connection with motor transportation are not those of a broker; that no brokerage license is necessary for the continuance of such services; and that the application should be denied."
I am of the opinion that Baxter, in his dealings with the other defendants, was not acting as a broker within the definition contained in Sec. 203(a) of the Act. He was an agent employed by the various other defendants, and as such agent arranged for the transportation of their products, for which service they collectively paid him a fixed salary.
The prayer for permanent and perpetual injunction is denied.