Earl Warren: Number 19, Universal Interpretive Shuttle Corporation, petitioner versus Washington Metropolitan Area Transit Commission et al. Mr. Nagin.
Jeffrey L. Nagin: Mr. Chief Justice, this case is here on a writ of certiorari to review a decision of the Court of Appeals for the District of Columbia which reversed a District Court dismissal of the complaints of respondents. The decision of the Court of Appeals required that the District Court restrain the operation by petitioner under a concession granted by the Secretary of Interior of a mobile interpretive service on the Mall in the District of Columbia, until petitioner secured a certificate of convenience and necessity from WMATC, the Washington Metropolitan Area Transit Commission, the local agency created by interstate compact between the States of Maryland, Virginia and the District of Columbia. A mobile interpretive service which is a term we're going to be using throughout this proceeding, the purpose of this kind of a service is to provide essentially the same type of narrative guided tour as the park service which of course is a department within the Interior Department, the park service provides two visitors of national parks across the country, except that instead of providing the service on a tour which goes on foot, the Secretary is determined that it would be appropriate to provide it in this instance by using motorized trams which would move at speeds not to exceed 10 miles an hour through the points of interest and around the points of interest permitting the tour to go on. The principal issue in the case is whether the operation of such a mobile interpretive service by the Secretary through a concessionaire is subject to the certification and regulatory requirements of WMATC. If the operation proposed by the Secretary of Interior is subject to WMATC jurisdiction, then even though the Secretary is determined that there is a need for the service on the Mall, WMATC would not be allowed to permit the service to be conducted unless it, WMATC, the local agency determined that there was a need. Furthermore, WMATC would have the obligation to determine that petitioner was qualified to render this service even though the Secretary had made the same determination and if the certificate of convenience and necessity were granted, the local agency would also have the responsibility to supervise under its general regulatory powers the operations of this concession on the Mall. The setting of the case, the actual physical setting of the case takes place on the Mall of the District of Columbia and when I use the term Mall, not -- I'm using a little bit generally because it could -- it embraces park areas that are adjacent to the Mall such as the Jefferson Memorial, the Ellipse but these are areas all within the exclusive charge that control of the Secretary of the Interior. I think the -- perhaps the best description of the Secretary's responsibilities in this area are set forth in Sections 1 and 3 of Title 16, United States Code says, the Secretary is charged with the obligation to preserve the -- by such means and measures as conformed to the fundamental purposes of said parks and which purpose is to conserve the scenery and natural and historic objects and the wildlife therein which I guess on the Mall is probably limited to squirrels and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations. In line with this responsibility, the Secretary determined that the facilities on the Mall, the interpretive facilities on the Mall were already crowded to the point where both because of population, pressures and vehicular pressures, he could no longer provide adequately for the visitor interpretive services which he wish to provide under his charge of responsibility. Using the authority conferred upon him by Title 16 including Sections 1 and 3 and Section 20, the Secretary issued a proposed -- requested proposals from private concessionaires to operate an interpretive service on the Mall and a number of private persons responded including petitioner and including the respondent D.C. Transit with proposals. The proposal of petitioner was selected. The Director of the park service Mr. Hartzog stated that he felt that the proposal by the petitioner provided the “Best means” of interpretation and operation. He also stated what impressed him most about the petitioner was its “interpretive qualifications.” The Secretary and the petitioner entered into a contract in March of 1967 which called for the rendition of this interpretive service. The contract specified that the services to be provided on motorized trams, each tram would be manned by a driver and by a guide. The guide or interpreter would use a script prepared and or rather approved by the Secretary in interpreting the Mall, this because he felt that the and expressly provided for it in the contract that interpretation, the narration part of the service was a prime consideration. The Secretary wants to have --
Potter Stewart: You don't have First Amendment issue in this case, do you?
Jeffrey L. Nagin: No sir, there is no -- no First Amendment. At least -- at least if there is one, I think my client would be the person who would be in the position to raise it and we're not raising it Mr. Justice Stewart. The Secretary would have complete control over all facilities, over the employees, over the qualifications, over the training, over the time and method of operation. The franchise -- a franchise fee of 3% of the gross would be paid by the concessionaire to the United States. At the time Universal entered into this concession arrangement, they were advised or actually prior to that they were advised by the Secretary that no other agency had economic regulatory jurisdiction over this particular activity, including, since we had asked the question, WMATC.
Speaker: Are you -- are you going to tell us what use your client would have to make of the streets outside of the park service areas?
Jeffrey L. Nagin: Actually, I wasn't aware of the fact that they would make use of any streets outsides of the park area because the streets, the Section 8144 of the District of Columbia Code provides that the streets between park areas are under the regulatory or under the regulation of the Secretary. The trams would cross streets such as 14th Street and so --
Speaker: So there -- there would be no pick-up point outside the park area that is so defined.
Jeffrey L. Nagin: There would not be any pick-up points outside the park area. There's one problem at the end of the park you know where they're doing this construction at 2nd avenue or 2nd street where the trams might have had to go over one small area outside the jurisdiction and control of the park service. As a matter of fact, the temporary service which is being operated now to which I'll address myself later that is not going that far and staying wholly on park territory. There is authority if the service is to be extended just in say for one block or for a short turnaround area of a park territory for the Secretary to arrange -- to have this permitted by an exchange of letters with the D.C. Government. Arrangements to do this were initiated but pending the outcome of this litigation, the Interior Department did not pursue them.
Speaker: Because the Washington Metropolitan Transit Commission or whatever it's called does have jurisdiction, does it not on the District of Columbia streets?
Jeffrey L. Nagin: It does, it --
Speaker: At least outside of the park areas.
Jeffrey L. Nagin: It does Your Honor, although, one of our theories which I will discuss later would I think even if the trams operated for some distance off the park property would mean the service still exempt from regulation by WMATC for reasons that have nothing to do with Section 8144 and 8108 specifically.
Speaker: So that it's your understanding that this Court may consider the case as if the -- these trams operated solely on park service area?
Jeffrey L. Nagin: Yes, except to the extent that may at some future date because of the turnaround problems go on to District of Columbia streets for a -- you know, for almost what I would cal it de minimis distance and provided of course that the Secretary were able to arrange with the district government for the necessary exchange of regulatory authority which this would require. The DC -- WMATC initiated this action in the District Court when petitioner after being advised by the Secretary refused to apply for a certificate of convenience and necessity. The United States immediately intervened by filing a representation of interest and has participated throughout these proceedings as a party in effect either under the representation of interest or as an amicus at all times supporting the position of petitioner. Pending the outcome of the loss -- of this action, the petitioner has not operated the service. Starting around September 1, the Secretary utilizing park service personnel and leasing equipment from petitioner has in fact been conducting the service for, well, I guess that's about almost two months now. The WMATC complaint at page 5 of the appendix, I think in a sense really sums up or at least gives a feeling as to what WMATC is seeking. They say that unless the petitioner applies for a certificate of convenience and necessity, WMATC will be deprived of the opportunity to determine whether the petitioner is qualified to render this service to the Secretary and for the public. Now, significantly, an underplayed throughout this proceeding is the fact that the WMATC has not particularly emphasize the fact that if the compact applies not only with the Sec -- not only with WMATC have the right to determine whether we are qualified but they would also have the right to determine by virtue of the very same sentence that gives them the former power, the right to determine if the service is even needed.
Potter Stewart: What's the test, the public convenience and necessity or somewhat?
Jeffrey L. Nagin: Public convenience and necessity as of course that particular regulatory body sees it and we -- the very at least we could have a clash of determinations between the Secretary and the --
Potter Stewart: Well, certainly --
Jeffrey L. Nagin: And --
Potter Stewart: There are two diverse points of --
Jeffrey L. Nagin: That --
Potter Stewart: View one --
Jeffrey L. Nagin: And --
Potter Stewart: The agency would see it in terms of the other competing and complementary transportation services in the metropolitan area I suppose and the Secretary would see it in terms of a national park.
Jeffrey L. Nagin: I think that's the first statement Your Honor.
Potter Stewart: And that's your point I suppose?
Jeffrey L. Nagin: Yes sir. The Secretary --
William J. Brennan, Jr.: Mr. Nagin, is the resolution of this dispute between these agencies are going to have any impact beyond the resolution of the dispute between these agencies? In other words, anything in the way of any basic law in conflicts of this nature between the Secretary and agencies elsewhere --
Jeffrey L. Nagin: Well, --
William J. Brennan, Jr.: Going to be helped however we come out with this case?
Jeffrey L. Nagin: I think to the extent that it would further substantiate the control which the Secretary enjoys over park lands. In this context, the control vis-a-vis a local agency when based upon Section 8108 and 8144. However, certainly, there are other areas and not being the representative of the Government, I don't think I can speak with extreme authority on it but there are other areas from time to time where the Secretary Interior's jurisdiction in other park areas could be challenged by a local jurisdictions and I assume that a strong precedent here would be a very convincing that the Secretary's control in other park areas would be vindicated, but we are dealing here only with the interpretation of the Washington Metropolitan Area compact and to that extent, the literal application of this decision I think would be much more limited than that. The Secretary under the contract has control over the hours of service, the points of interest to be served, the rates to be charged the public and of course that's a prime factor. The records to be kept by the petitioner, the insurance to be maintained, in other words, throughout the entire contract are this complete scheme of regulation. If WMATC is correct, then they would have the power to determine the service -- the hours of service, the rates to be charged. They could suspend the rates. They could postpone the effectiveness of rates. They would have -- they would have the usual plenary jurisdictional powers which they do over other regulated agencies. The petitioner has consistently throughout these proceedings resisted these assertion of power by WMATC on a number of grounds which I would like to just summarize at this point then we can explore the ones which are most susceptible to oral argument at this time. The first is that the propose service is exempt from regulation under the compact by virtue of the exception contained within the compact for transportation by the Federal Government, that's in a sense in answer to Mr. Justice Stewart's question, namely, that even if the service were off of the Mall for some distance if -- if this is transportation “by the Federal Government when provided by a concessionaire, it would be exempt from the compact coverage.” Secondly, Congress has committed the Mall itself --
Abe Fortas: Do you say it wouldn't be?
Jeffrey L. Nagin: It would be.
Abe Fortas: I thought that perhaps I incorrectly recall this but as I read the papers here, I thought that that exemption applied only to transportation, the Federal Government's only personnel? Am I wrong about that?
Jeffrey L. Nagin: Mr. Justice Fortas, that is the issue. The -- Mr. Cunningham to my right, Mr. Russell Cunningham on behalf of WMATC has urged that transportation by the Federal Government is limited to --
Abe Fortas: Well, I'm talking about the express exemption, how does that lead?
Jeffrey L. Nagin: The express exemption is just “transportation by the Federal Government and that goes on and other political subdivisions of the signatories.”
Abe Fortas: I see, and it does -- does not limit -- expressly limited to employees in there?
Jeffrey L. Nagin: No, not at all, that -- that's the very first issue that -- to which we would address ourselves. The second of course is that the Mall itself, that is there's a territorial exclusiveness of the jurisdiction here at which the Secretary possesses and since this takes place in -- within that area it's within his exclusive charge of control. The third is that this kind of transportation does not fall within the basic handle by which WMATC claims jurisdiction because it is not “transportation for hire.” This is a question of course of what is meant by the term transportation for hire. Lastly, D.C. Transit has claimed that under its franchise which is granted in 1956, it has quite a part from the compact an independent basis for claiming that before the petitioner can operate its service, it must obtain a certificate of convenience and necessity. I'd like to focus on the point that Mr. Justice Fortas has just mentioned and that is whether this is transportation by the Federal Government. In our view, transportation by the Federal Government is present in this case because the first place, the Secretary is discharge -- is discharging through this concessionaire a fundamental function which he has traditionally and historically furnished either directly or through concessionaires. Secondly, the Federal Government through the Secretary has control over every phase of this operation to the same extent as it would if it were conducted by its own employees. Perhaps even more because you don't have certain things like civil service regulations which would permit people -- prevent people from being discharged in that sense. Thirdly, the petitioner's day to day activity will be physically intertwined with those of the park service. The trams will bear a park service emblems, the personnel will wear uniforms approved by the park service. The script, the narrative script, the First Amendment problem which is the very heart of the service will be subject to the park service's approval. The schedule of service, the operation will be tailored to the day to day changing needs on the Mall so that if something has taken place at this Masonian Institute, the service can be rerouted either to take that into account or move around it. Whether viewed from the standpoint of the public who are the beneficiaries of this service or from the standpoint of WMATC's own regulatory jurisdiction, it makes no difference that the Secretary has decided to do this service through a private concessionaire as opposed to simply using his own vehicles and his own personnel, the control element, the discharge of his responsibility elements are all there. Finally, quite apart from this of course is the exclusive charge and control which the Secretary enjoys over the Mall. Since 1898, in a statute not codified in Section 8108, the exclusive charge to control has been delegated now to the Secretary of Interior over these areas and this was made clear in 1909, when Congress extended this charge to control to the roads between park areas and to the sidewalks adjacent to park areas. The Public Utilities Commission and the ICC never were given any statutory authority to regulate activities within this Mall area. Now, petitioner's -- we've been met by the point by respondents that the PUC in fact did regulate bus lines because they certified an example, one example was given of a bus line that went through a various points to the District of Columbia and went on Washington Drive which is of course is part of the Mall over by the National Galleria and National Art Gallery. Well, of course, this regulation was not hostile to the Secretary. There would be no incentive for him as long as he wanted to permit the -- as long as he was willing to permit the service to be conducted on the Mall there and did not exclude the vehicles, there really wasn't worth anything for him to do, was he to go to WMATC and say take that one line out so that your certificate will read up to the Mall then we'll be silent about what happens in the Mall and then extends beyond the Mall? No, there is no point to that. There is no advantage to him. The point is that when there is not conflicting -- when there are not conflicting regulatory schemes and if the Secretary is willing to let the activity continue, there is no reason for him to interfere. However, here we have an activity on the part of a Secretary himself through a concessionaire which he does not want interference and that I think is the essential point, the difference between the fact that the PUC might have in the course of regulating carriers whose activities were -- could be and were substantially outside the Mall area, also, probably without even thinking about it inserted the reference to the traveling one block in the Mall area. The same thing of course would apply to taxi cabs. We've seen the maps in the back of a taxi cabs and there is not a big block out there for the rates to be charged in the Mall area but what good would that would have done? I'm sure the Secretary activity if he's going to permit cabs on the Mall, I'm sure he's not going to try and prevent them from a rate structure to be imposed by the applicable authority who gets jurisdiction because the activity is outside of the Mall. Finally, I'd like to address myself to D.C. Transit's point that its franchise gives it the right to insist on certification. The franchise which is set forth on page 36 (a) at sect of our brief towards the rear provides first a grant of authority to D.C. Transit to operate a mass transit system. Then in Section 6, there is also a grant to the D.C. Transit the right to operate special charter and sightseeing services. Section 3 contains a provision that no competitive street railway or bus line, that is a bus line for the transportation of passengers or the character which runs over a given route on a fixed schedule should be permitted without a -- without certification by WMATC as to its necessity. Now, we interpret that to apply number one only to the regular route service of D.C. Transit because this in effect not monopoly but this protection to be afforded to WMATC was meant to protect the service which he was being required to render and that is its regular route service, not a permissive -- not a permissive service of sightseeing. The language competitive Street Railway Line which runs over a given route on a fix schedule, if they didn't insert the competitive, maybe you could argue it also protected the -- the sightseeing service. And certainly, as the District Court found, this not -- this does not compete at least any significant way with the regular route service. I think it's rather hard to envision a tram moving at less than 10 miles an hour from various points around the Mall as competing with the regular route service of D.C. Transit. But even if Section 3 extends its protection to D.C. Transit's sightseeing activities, we still believe that it is not applicable because it requires that the service which is being limited or prohibited itself must travel over a given route on a fix schedule and this service being provided by petitioner will be subject to change from day to day by the Secretary to meet the changing needs on the Mall. Also, it is not within the usual concept of what is regular route service in the meaning usually given to that term in public utility proceedings. It says a given route on a fix schedule, that is language which is meant to mean regular route service as far as we can see it and regular route service, the best discussion of that I've seen is in the case cited by respondent -- by respondent D.C. Transit in Bingler, where the District Court pointed out that sightseeing service or tourist service even if it went basically on a relatively fix schedule does not come within the concept of regular route service unless it -- if there is something significant added in addition to the expeditious transportation between points. In our case, we don't even have expeditious transportation between points, its going to too slow and we have the something substantial added in the sense that the interpretive service which is certainly within that concept of something substantial added, that's the reason why people would be taking the service is -- is present in this case. Therefore, we can see that D.C. Transit's independent argument has no merit. For the reasons which we have advanced, we believe the Court and respectfully request the Court reverse the decision of the Court of Appeals or remand the case for the direction that the complaints be dismissed. Thank you.
Earl Warren: Mr. Martz.
Clyde O. Martz: Mr. Chief Justice and may it please the Court. The United States approves and incorporates the argument that has been made by the petitioner but appears here as amicus and in the Court below in representation of interest, because of an independent and broad concern that the authority that has been vested in the Department of Interior by Congress and in other areas of national interest not be subject to review, modification and possibly frustration by a parochial District of Columbia Regional Regulatory Commission. The issues in the case we think are simple. Congress as the petitioner has shown has vested the Interior Department with exclusive charge and control over the Mall area, one of the most heavily frequented national parks in the whole United States. By express Act of Congress, the director within a park service has been given authority to make and enforce all regulations pertaining to movement of vehicles in the park and to extend those regulations to carriage ways that may intersect parts of the public grounds.
William J. Brennan, Jr.: May I ask Mr. Martz a question I asked Mr. Nagin of whether we may decide here, would it have any significance beyond this conflict, this local conflict?
Clyde O. Martz: Yes Mr. Justice, well, not beyond the local conflict perhaps but this case has been to the Court before Mr. Justice Brennan, basically, in United States against Wittek the question of the proper area for legislation within the District of Columbia under Article 1 Section 8 of the Constitution pertaining to municipal affairs one hand and the broad national legislation particularly with respect to Article 4 Section 3 on public lands on the other and the compatibility of legislative actions between those two areas in particular. I think the question here is the extent to which the broad national policies promulgated in the park legislation and vested by Congress and the Department of Interior should be de-modified or qualified by the enactment of local and parochial legislation for the administration of the municipal government of Washington D.C. in the region.
William J. Brennan, Jr.: The latter being under what is it, paragraph 18 whatever it is of Article 1 Section 8?
Clyde O. Martz: Paragraph 17, --
William J. Brennan, Jr.: 17.
Clyde O. Martz: Clause 17 of Article 1 Section 8.
William J. Brennan, Jr.: Yes.
Clyde O. Martz: We think there is no question about what Congress has given exclusive charge and control to the Secretary over the national parks. It has as petitioner has pointed out, placed a responsibility upon the Secretary to promote the use of these parks for the purposes for which they were created in 16 U.S.C. 1. It has further authorized the Secretary in Section 3 of 16 U.S.C. and encouraged the Secretary in 1965 by Section 20 (a) of 16 U.S.C. to use concessionaires by contract in the performance of the functions of the Secretary within the National Park on Cleave. The Secretary after a study has entered into a compact described in this case by petitioner in March of 1967. For 18 months and two tourist seasons that compact has been dormant because of the injunction of the Court of Appeals against the conduct of this interpretive service by concessionaires within the National Park on Cleave without certification and all it means by the Washington Metropolitan Area Transit Commissions.
Abe Fortas: You said -- you said compact, you mean contract?
Clyde O. Martz: I Yes, it's a -- excuse me, yes --
Abe Fortas: Compact. There is a compact in this --
Clyde O. Martz: Mr. Justice Fortas, I -- forgive me, I was referring to the contract between the Secretary and petitioner. We are the opinion and respectfully submit that this decision of the Court of Appeals which was not supported by opinion but only an order that said in substance at reading the relevant statutes one with the other does not permit the concessionaire service to be performed without certification.
Potter Stewart: No opinions were subsequently filed by any member of the Court?
Clyde O. Martz: No, Mr. Justice Stewart.
Potter Stewart: I notice there was reservation of the privilege to do so but --
Clyde O. Martz: They were not filed.
Potter Stewart: (Inaudible)
Clyde O. Martz: We submit that broad order is erroneous under at least three persuasive if not controlling decisions of this Court. The first, Wittek against or United States against Wittek on the question whether a National Agency Authority within the District of Columbia is going to be impliedly negated or qualified by the enactment of general District of Columbia legislation. A second question arises under Yearsley against W. A. Ross Construction Company as to the question whether a concessionaire operating under the close supervision and control of federal officers in the performance of governmental functions is an agent of the United States and acts in place of the United States and in context would be subject to the exclusion for transportation by the Federal Government set forth in Article 12 Section 1 (a) of the compact. And third, by analogy to Leslie Miller Incorporated against Arkansas where this Court said the mere existence of duplicate regulatory authority over a federal activity by the Federal Government under one hand and by a Local Government on the other creates conflict and is a frustration of the federal purpose. We submit contrary to the broad opinion of the Court of Appeals that if this be so, it is inconceivable that Congress would place administrative control over any part of the National Park program in a tri-state local administrative body. We submit that as in Wittek. So here, confusion has arisen between the operation in effect of congressional action in the national sector and the operation in effect of congressional action on the local sector. The problem on Wittek was this. Did the Emergency Rent Control Act of the District of Columbia of 1940 apply to federal low rent housing and defense housing within the District of Columbia which was then under the control of the National Housing Administrator and operated by the National Capital Housing Authority? In that respect, this Court said on page 351, it is practically inconceivable that Congress would have subjected the government-owned low rent housing program in the District of Columbia to the additional control prescribed by the District of Columbia Emergency Rent Act. And on 355, the issue is whether the United States through whatever agency it operates is to control -- be controlled in its rental policies by the District Administrator Rent Control. Here, we were not concerned with an interstate or a state agency but a very creature of Congress in the District of Columbia legislation that was denied that authority. But more -- even more important on 358, I think the Court uses language that could almost be paraphrased and applied to the problem before this Court. It said the Act, referring to the District of Columbia Emergency Rent Act, contains no express reference to the United States as a landlord or to the application of the Act of government-owned housing of any kind. The text surrounding circumstances and legislative history of the District Act neither expressed nor imply a change in the authority already vested in permanent federal agencies in their management of the government-owned housing in the District.
Speaker: What is that case?
Clyde O. Martz: United States against Wittek, opinion by Justice Burton in 1949. Now our -- our fact situation here is very similar. There is nothing in the compact and for that matter in the District of -- District -- D.C. Transit franchise that purports to extend jurisdiction into the National Park on Cleave. Congress has operated the National Parks throughout the country under Article 4 Section 3 and the District of Columbia under Article 1 Section 8 Clause 17 and in the past has been meticulous to try to separate the areas of conflict within the District of Columbia. It has for instance we think in every instance where District of Columbia legislation was to apply within the National Park on Cleave to expressly so provide. It has considered transportation a local municipal problem handled by the District of Columbia Committees in Congress. Back in 1925 when the first Traffic Act pertaining to motor vehicles was enacted, Section -- present Section 4613 was included that provided that nothing contained in this chapter shall be construed to interfere with the exclusive charge and control here to for committed to the director of the National Park service over the park system of the district. This section has never been repealed. There is nothing in the language of the compact or its legislative history to show that Congress was thinking of Federal Park properties. There is much which is set out in our brief to show that it could not have been thinking of this type of regulatory extension.
Potter Stewart: Mr. Martz, as a matter of information for my ignorance. The parks in the District of Columbia are some District of Columbia and some National Parks, for example, Rock Creek Park or Montrose Park or Lafayette Park or someone can --
Clyde O. Martz: There are jurors --
Potter Stewart: Some the other?
Clyde O. Martz: Right. There are some local parks which by District of Columbia Code have been specified either because of their size or location as subject to the jurisdiction of the District of Columbia. These include the squares for instance but Rock Creek Park is a national park.
Potter Stewart: Is a national park.
Clyde O. Martz: And --
Potter Stewart: Montrose Park I supposed is a District of Columbia Park, don't they?
Clyde O. Martz: No, it's a national --
Potter Stewart: National?
Clyde O. Martz: And that these are all enumerated in detail in the District of Columbia Code under language essentially the same that is set out in 8108, the transfer is exclusive charge and control to the National Park service. Counsel advises me that the exception I should have said was -- was playgrounds. The -- I was calling on this -- the small areas but the playgrounds from the District are under the jurisdiction of the --
Potter Stewart: Of the District?
Clyde O. Martz: Of the District.
Potter Stewart: And all parks as so defined are National Park?
Clyde O. Martz: Yes.
Potter Stewart: No matter what their size? Well, I was not pursuing, I was just --
Clyde O. Martz: I can't pursue it because I've never checked out the inclusiveness of the question. It would be -- I want to spend just a moment on the other very significant aspect of our case which is the exclusion under Article 1 Section or Article 12 Section 1 (a) applicable to transportation by the Federal Government. In Yearsley against W. A. Ross Construction Company, a contractor was performing service for the Corps of Engineers in straightening the channel of the Missouri River and was under the supervision and control of the Corps on the question on whether he was subject to independent liability to third persons, it was determining that he was acting as the agent of the government. All the more so we submit in this peculiar National Park concession situation where the very services which the Secretary of the Interior is directed to perform under 16 U.S.C Section 1 or by a policy of Congress to be performed by concessionaires. The concessionaires are acting under the supervision of the director. The concessionaire is performing a service that the Government is obligated to perform. It is the act of the United States, the transportation of the United States for which the exclusion was intended. It would elevate form over substance to say that the interest of transportation in the District of Columbia is affected differently by the operation of these trams wholly within the National Park on Cleave by the Secretary of the Interior.
Abe Fortas: Mr. Martz, suppose the secretary would decide that would better be a good idea to have this sort of interpretive tram service, serving all of the capital park areas, all of the park areas under his jurisdiction in the District of Columbia. Would the principle there be any different with respect to problem that we have before us?
Clyde O. Martz: Not with respect to the construction of a compact. There would be a threshold question as to the authority of the secretary to conduct the service outside the park area.
Abe Fortas: He would then have to use the streets in the district?
Clyde O. Martz: But if the secretary had the authority and it was conveyed to him by Congress, then we would submit that under the 1 (a) exclusion, the services that were being performed for and on his behalf would be services --
Abe Fortas: Well he -- he would have the authority there just as much as he has at in the present case, wouldn't he?
Clyde O. Martz: Well, six --
Abe Fortas: Particularly, if you assume that in the present case, these trams will have to use some city street.
Clyde O. Martz: 16 U.S.C. Section 1 authorizes him to act only in National Parks. Section 1 (b) added in 1953 authorizes the Secretary to do certain things outside of the parks in emergency situations. When the Secretary has engaged in services outside of the park as transportation to Carlsbad Caverns, he has obtained special authorization by Congress to do it.
Abe Fortas: By Congress to do it?
Clyde O. Martz: Yes.
Abe Fortas: So that you think this would be a different and substantially more difficult case if the operation of these trams required the use of City Street in the district outside of the park area?
Clyde O. Martz: As far as the issues in this case are concerned, we would submit it's irrelevant. We are only construing --
Abe Fortas: Why, why?
Clyde O. Martz: What the language of the -- we're only construing what the language of the compact says.
Abe Fortas: Well, similarly then he could provide the service to all of the capital parks because that's transportation by the Federal Government? That is -- that is correct Your Honor. This is all by legis --
Abe Fortas: So that in your submission, the Secretary of the Interior could now set up an interpretive tram service to all of the parks in the District of Columbia on his jurisdiction even though that would require various substantial use of the city streets and to do that, he would not have to obtain the authority of all clear with the Washington Metropolitan Area Transit Commission?
Clyde O. Martz: That is correct Your Honor as long as it's contained within the exception. If that goes beyond what the compact administrators think --
Abe Fortas: And by exception you mean its Federal Government exception?
Clyde O. Martz: Yes.
Byron R. White: But you don't have to maintain this position for the purposes of this case?
Clyde O. Martz: No. This is --
Byron R. White: Because I take it --
Clyde O. Martz: The only --
Byron R. White: If the city streets are used at all. If the so-called city streets are used at all by this service, it's actually on city streets that are within the park area --
Clyde O. Martz: That is all that is --
Byron R. White: I mean that the only streets that are used are city streets that are actually part of the park?
Clyde O. Martz: That is right except those --
Byron R. White: And those city streets are used in the Mall area with consent of the Secretary.
Clyde O. Martz: Well, no, with consent of Congress --
Byron R. White: Well, which is right?
Clyde O. Martz: Mr. Justice White because in 8 -- D.C. Code 144, the Secretary was given authority to use the carriage ways intersecting portions of the public grounds.
Byron R. White: By the streets, are the actual streets that traverse the Mall, are they part of the parking lot?
Clyde O. Martz: Part of them are and part are not. Third, forth, ninth and fourteenth I believe are D.C's streets subject to the authority of the secretary --
Byron R. White: Specifically then where has the secretary get the authority to use the city streets in furnishing this tram way service, where does he get that authority?
Clyde O. Martz: 8 D.C. Code Section 144 provided that the director of the park service could apply his regulations to carriage ways intersecting the public grounds and the only --
Byron R. White: So I gather then that even if this tram way service did run per block, run on a public street which actually traversed the Mall, that it would be within that authority?
Clyde O. Martz: Yes, we think there is no question --
Byron R. White: But that wouldn't reach --
Clyde O. Martz: No.
Byron R. White: That wouldn't reach furnishing service between parks?
Clyde O. Martz: That is correct Mr. Justice White.
Speaker: There's a new proposed reception center in the old union station to be under the park service?
Clyde O. Martz: You know the -- answer that it --
Speaker: We'll assume that it is for the moment, I rather thought it was from what I had read in the paper but assume that this for the moment, what if we held with you in this case, would that -- would that mean that the Secretary of the Interior could go to the -- could put this many service over there and go over the streets of the city from the parking area over that and back?
Clyde O. Martz: When the bill was before the House Public Works Committee in Congress last spring, the Secretary of the Interior proposed an amendment that would allow the extension of the minibus service off the park area and to the visitor center facilities and the capital. The House Public Works Committee didn't extend this legislation to the area but directed the secretary to investigate it and make a report but I would -- I would anticipate that if that were to be done, the statutory procedure would be followed.
Earl Warren: Yes. Very well. Mr. Hamilton.
Russell W. Cunningham: Mr. Chief Justice, may it please the Court. I'm Russell Cunningham, general counsel of the Transit Commission and if the Court will recall, there was a franchise issue involved here that the Commission has consistently disassociate itself from through out since the beginning of the trial court. Consequently, I have -- while the Court has graciously allocated me 50 minutes to argue, Mr. Davis of D.C. Transit will argue the franchise issue.
Russell W. Cunningham: And within my 50 minute --
Earl Warren: You divide your own time so --
Russell W. Cunningham: Within my time limits.
Earl Warren: So we will be advised to that.
Russell W. Cunningham: Fine Mr. Justice. If the Court pleases, the Washington Metropolitan Area Transit Commission was created in 1960 by an interstate compact between the States of Maryland and the State of Virginia and the District of Columbia by and with the consent and directive of the United States Congress. If the Court will recall, Congress has a dual role are a dual hat to wear in the District of Columbia, that is that if the Congress sits as a local legislature for the district and in this case its consent legislation directed the District of Columbia to enter into the compact. On the other hand, under its national purpose, the Congress consented to the terms of this interstate compact agreement. The creation of the Commission marked a -- marked a historical landmark in the field of transportation regulation in this country. It's the first attempt -- the first attempt to regulate and merge the National and State County and City interest into one unified regulatory agency. This was the purpose of the compact. This, the Commission advocates before you was what the compact and the legislatures accomplished when they enacted the compact.
Abe Fortas: You don't really -- you don't really mean to include the word national in that sense, do you?
Russell W. Cunningham: Yes sir I do. The preamble to the consent legislation of the compact stated that enactment of this compact would merge the national and state interest in so far as regulating transportation was concerned in the Washington Metropolitan Area in this single compact.
Abe Fortas: The ICC certainly still exists and has jurisdiction --
Russell W. Cunningham: Not --
Abe Fortas: In the affected area?
Russell W. Cunningham: Mr. Chief Justice -- Mr. Justice Fortas, within the Washington and Metropolitan area, the Congress took away the interstate regulation of transportation from the interstate com --
Abe Fortas: So far as this -- as the purely inter urban so to speak or the inter area --
Russell W. Cunningham: Oh yes, transportation from Washington --
Abe Fortas: In prior area of trans -- transportation is concern but not otherwise.
Russell W. Cunningham: Right sir. The Transit Commission is violently interested in this case from both a legal and a factual basis. Legally, we feel that the positions advocated to you by the petitioners in the United States will emasculate. Emasculate a very basis upon which the Commission can perform in the functions and duties conferred upon it by the Congress and the state legislatures. From a factual standpoint, the Commission is interested because we're very greatly disturbed as to what will happen when another large transit system is placed not only over on top of the existing transportation system but placed upon us within the very heart of the Washington Metropolitan area.
Abe Fortas: Do you have any control over the District of Columbia vehicles?
Russell W. Cunningham: Vehicles operated by --
Abe Fortas: Official.
Russell W. Cunningham: The District of Columbia itself, no sir.
Abe Fortas: Or Maryland or Virginia?
Russell W. Cunningham: No sir, those -- any passenger --
Abe Fortas: Or the fed -- or the federal government.
Russell W. Cunningham: That's right sir. We feel that any --
Abe Fortas: You don't have any control of any of those and that's by virtue of Article 12 paragraph 182.
Russell W. Cunningham: Yes, sir.
Abe Fortas: Now, how do you construe that provision of that was subject of colloquy here? Transportation by the Federal Government is exempted from your jurisdiction from that article.
Abe Fortas: Mr. Justice Fortas, we follow the traditional concepts of regulation that has been imposed nationally as well as within the state concepts. That is that where a transportation service is operated by the government in its own vehicles by its own personnel that that -- that transportation is by the Federal Government or by the State Government or by the County Government --
Abe Fortas: Right.
Russell W. Cunningham: And therefore is exempt.
Abe Fortas: Suppose --
Russell W. Cunningham: When --
Abe Fortas: There is no park service itself operated, owned and operated these trams and provided this interpretive service on the Mall, would you claim jurisdiction?
Russell W. Cunningham: No sir, and it has so operated this vehicles it is today operating vehicles and we have made no attempt to exercise jurisdiction. We feel that it is not -- it is exempted under that statutory exemption.
Abe Fortas: So that actually, maybe this case can be disposed off on that one question. If we should believe for example that the correct construction of the compact is that whatever the Federal Government may do directly is exempt, therefore, whatever the Federal Government may do through a concessionaire is also exempt that would dispose of the case.
Russell W. Cunningham: Yes sir and I submit to you Mr. Justice Fortas that you would effectively dispose off any type of regulation of transportation in metropolitan area for you would thereby completely emasculate the jurisdiction of a commission to control regulation in this area. Every city, every town, every county, even the state jurisdictions themselves would be free at the stroke of a pen by entering into a contract with a private carrier to set up and operate their own mass transit system.
Abe Fortas: Well, we didn't write the compact, we have to read it.
Russell W. Cunningham: Right sir and that's why the Commission advocates that the construction given to that clause should be strictly construed as I understand this Court has ruled previously. All tran -- all -- any exempt -- exemption to a broad remedial statute like the compact that the exemptions are strictly construed and that's the position we have advocate to this Court that that -- that proviso should be strictly construed, not only for the mischief that it would do in the future and do today but because it would destroy the whole historical scheme of regulation.
Earl Warren: Suppose this kind of service was rendered in Yellowstone National Park or Yusamite or Glacier National Park, would there be any -- any reason to say that the Government couldn't do it without going to the Interstate Commerce Commission?
Russell W. Cunningham: No sir. Mr. Chief Justice Warren, there would not because the Congress has not imposed the scheme of regulation, i.e. it has not pass an interstate compact in Yellowstone Park as it has here in Washington. I submit to you sir that the Congress when it looked at establishing the compact here in this area, said, where you look at the Washington Metropolitan area is a single unified city and this includes park areas, it has to, its sitting right here in the very heart, the very core of our city. On the other hand, there is no such scheme existing in Yellowstone National Park, that park sits out by itself, its not part of a transit regulatory system, its not the heart and core of a city and Congress has under the ICC law specifically exempted transportation performed pursuant to contract by the secretary in National Parks but that proviso was not enacted, was not carried and reenacted sir in the compact.
Earl Warren: But I understood you to say that if the Government itself performed this service in Washington that it would be alright.
Russell W. Cunningham: Assuming he has statutory authority to do so, that government agency has statutory to do so under the terms of the compact it would be permissible.
Earl Warren: Why in that respect couldn't it do what it does in your simile or Yellow Stone Park delegates that to a concessionaire and have that be act of the government?
Russell W. Cunningham: Because I think in this case it was to discourage -- number one was discourage active engagement by the governmental units by contract or otherwise in engaging in transportation.
Earl Warren: It would do what? I didn't --
Russell W. Cunningham: It would discourage the governmental units from getting into the contract -- into the transportation business. First of all, if a government unit decides, I -- we want to get into that, into a particular phase of transportation. If it has to go to the legislature and get the statutory authority to do so, if it has to go in to have the appropriations enacted forth, this is quite a different thing from saying, well, lets just go get Joe Jones and sign a contract with Mr. Jones and let him operate this service and pay us a profit. There's a much more involved in operating a concession or a contractual service than there is. And moreover, this is directly contrary to the -- to the whole concept of regulation that existed in this country since 1887 and that is if the Government itself is not subject to its own laws and if it wants to operate its own service, it may do so. On the other hand, if it wishes to -- to have a service performed by a private carrier, a private person, that person is subject to the regulatory scheme of that governmental agency, whether it be the National Government, vis-a-vis the Interstate Commerce Commission or tate government or in this case the interstate compact.
Earl Warren: Well, what power of regulation would your Commission have over these people if you win in this case?
Russell W. Cunningham: The same broad regulatory jurisdictions that we have over all carriers.
Earl Warren: Character of service?
Russell W. Cunningham: Character of service, rates, schedule --
Earl Warren: What Kind of service?
Russell W. Cunningham: Yes, sir.
Earl Warren: Everything.
Russell W. Cunningham: Yes sir.
Earl Warren: The Secretary of the Interior then would be divested?
Russell W. Cunningham: Oh! No sir.
Earl Warren: All his regulatory powers would enact, would he?
Russell W. Cunningham: Oh! No Mr. Chief Justice, no sir.
Earl Warren: I asked the question would he?
Russell W. Cunningham: No, we would -- they would not be divested. Today, carriers -- every single carrier we operate changes schedules.
Earl Warren: Changes what?
Russell W. Cunningham: Schedules, they change the routes, they change their fares, they change all aspects. Now, that is subject to the overall scheme of regulation but there is that freedom of movement within the regulatory aspect. The Transit Commission is a regulatory agency not a management, not a management agency and we try to fit what is going on within the broad regulatory concept to provide a good transit system throughout this whole metropolitan area.
Earl Warren: Would you declare it? Would you determine the fares?
Russell W. Cunningham: No sir. The fare that was -- would be determined by the Secretary of Interior in Universal pursuant to their contract and Universal being the -- if they were the recipient of the certificate of public convenience and necessity would then follow with the Commission stating that these are the fares to be charged and that would be subject to --
Earl Warren: Would you be obliged to follow that?
Russell W. Cunningham: And that would be subject to approval.
Earl Warren: Would you be obliged to follow that?
Russell W. Cunningham: Oh! Yes, I would think that under the law, yes sir.
Earl Warren: You would have to be?
Russell W. Cunningham: Yes, and this is done today within --for example, the last three weeks if I may --
William J. Brennan, Jr.: Mr. Cunningham Wait a minute, I don't get this. If the tariff is filed, is that subject to the Commission approval --
Russell W. Cunningham: It is. It is subject to Commission's approval.
William J. Brennan, Jr.: Well then -- well then, perhaps I misunderstood your answer to the Chief Justice. It has to be it. We could be reviewed by the Commission, could it not?
Russell W. Cunningham: It would be reviewed, yes.
William J. Brennan, Jr.: It could be rejected as a --
Russell W. Cunningham: Yes, sir.
William J. Brennan, Jr.: Even though it had been pursuant to an arrangement between the Secretary of the Interior and the private concessionaire?
Russell W. Cunningham: That's true Mr. Justice Brennan and I would think the Commission would give the greatest of weight -- I would think whenever a concessionaire of the Secretary of the Interior came before the Commission stating that this is the type of service we'd like to run or this is the type of fare that we propose to charge and that would be accorded almost in automatic presumption of being legitimate because the Commission would recognize the special interest that is involved in this area. If you recall, not all certificates of public convenience and necessity are all embrace here. Many -- they are issued involving only a very limited scope and this I presume would be the case in so far as the Secretary's concessionaire that he would -- cannot before and then lend certificate to serve all of the metropolitan area but on a limited basis.
Abe Fortas: I suppose a commission authorize somebody else, D.C. Transit or somebody to provide tourist service on the Mall, I guess you wouldn't do that, wouldn't you? Suppose -- suppose you authorize the D.C. Transit to do that and the Secretary of Interior says that because of my responsibility on the National Parks, I'd like to point out Section such as it take tourist through it so this Thomas Jefferson memorial. First, does your Commission have any control over the script that's used in by the tour guides?
Russell W. Cunningham: Script is a bad word to use recently with need Mr. Justice. We've been on this script system involved in the best robberies here in town. Yes sir, I would assume all aspect of this --
Abe Fortas: I would tell them.
Russell W. Cunningham: All aspect of such --
Abe Fortas: I wasn't talking about a substitute for money.
Russell W. Cunningham: I assume this was what they were talking about and --
Abe Fortas: I suppose that the Secretary of the Interior, you would agree that the Secretary of the Interior had a legitimate interest I suppose on having Thomas Jefferson memorial pointed out to tourist.
Russell W. Cunningham: Yes, sir.
Abe Fortas: Now, but it have no way of seeing that that was done unless the tourist service were under his jurisdiction, would he?
Russell W. Cunningham: I'm sorry Mr. Justice Fortas, I thought you said scrip, S-C-R-I-P and you're talking to the scrip. No sir, the Commission would have very little interest in what although they probably commend to standard to service.
Abe Fortas: You have no interest, no jurisdiction, they have jurisdiction.
Russell W. Cunningham: We would -- I don't know, I can't conceive with the Commission --
Abe Fortas: Alright.
Russell W. Cunningham: Having any jurisdiction over the script itself, no.
Abe Fortas: But the Secretary of the Interior might have, you'd agree with that?
Russell W. Cunningham: Oh, Yes sir, I think a very legitimate interest just as the carriers today, he perform the selected sightseeing tours; have scripts for their drivers to follow. Now, we have no concern with that in so far unless there would be some vulgarity or something like that of this nature involved but I'm sure in many instance we have no idea what the script itself even affords to be, and some of them are even on tapes in some of the carriers in multilingual language.
Abe Fortas: Now, what sector proposes to provide here is not exclusive of other services of the sort, is it? Suppose the Universal service here of -- were performing under this contract, D.C. Transit or sightseeing service or one sort or another could continue to operate in the Mall area, could they not?
Russell W. Cunningham: According to the District Court decision, does it not up to either the Transit Commission or the carriers but that any such service would be at the sufferance of the Secretary of Interior and presumably --
Abe Fortas: Has he --
Russell W. Cunningham: He can draw his curtain around the Mall and say nobody is coming in here.
Abe Fortas: Has he ever done that? Has he done that?
Russell W. Cunningham: No sir. As a matter of fact, the Secretary has --
Abe Fortas: Has there --
Russell W. Cunningham: Never been known as a regulator of transportation.
Abe Fortas: Has there any provision of the Secretary's contract with Universal by which that is a -- an exclusive service that they have exclusive rights to run tourist in the Mall?
Russell W. Cunningham: I don't call -- recall Mr. Justice Fortas from my reading of the contract whether there is an exclusive -- exclusivity connected with it. I presume there that there is because otherwise --
Byron R. White: As a matter of fact, that those from other companies do actually furnish some in other station?
Russell W. Cunningham: There's other service on the Mall now.
Byron R. White: So it isn't exclusive?
Russell W. Cunningham: As of this moment, no because Universal is not running the service but I would assume that once Universal begins running, it would be in the Secretary's interest to discourage other service because he's going to get a fee for it.
Abe Fortas: I know but that's not what I'm asking. I'm asking whether a contract so provide but I guess I've forgotten I'll left to check the contract if you don't know the answer.
Byron R. White: Well, with your interpretation of the -- of the Commission's authority being that -- you mean that you could provide for this service and the Secretary could not keep it up. Let's assume Universal --
Russell W. Cunningham: That's the substance --
Byron R. White: Let's assume that Universal applied to you --
Russell W. Cunningham: Yes sir.
Byron R. White: And you granted the permit, you would have to ask the secretary or anything else.
Russell W. Cunningham: Well, but assume that Universal --
Byron R. White: You wanted to authorize service on the Mall, you could just authorize service on the Mall and as far as the transportation part of this is concerned, the Secretary would have nothing to say about it, that's your position?
Russell W. Cunningham: No sir. Our position is that there are dual -- there exist dual jurisdiction in the park plans and that anyone wishing to operate a transportation service there --
Byron R. White: How do you -- how do you --
Russell W. Cunningham: Must have authorization from the Secretary of Interior to operate his vehicles on the park property and he must also have a certificate of public convenience and necessity from the Commission.
Byron R. White: So even if -- even if the -- even if there was no exemption, I mean even if whether there is an exemption or not, your authority is subject, the authority of the Commission is subject to the authority of the Secretary. If he wanted to keep your permittee off the park lands, he could do that?
Russell W. Cunningham: I would think so, yes sir.
Byron R. White: And work the other way around?
Russell W. Cunningham: The other way around, yes sir. I think this is strictly --
Earl Warren: But the fault --
Russell W. Cunningham: A situation where there has to be a great deal of committee between the two -- the two bodies.
Earl Warren: But suppose the Secretary of the Interior in order to take of children who visit question and said we want a five cent fare and the Commission said no, we don't think that that's equitable, we want a 10-cent fare and there was a clash there between Commission and the Secretary of the Interior, who would prevail?
Russell W. Cunningham: The Commission.
Earl Warren: Commission would prevail?
Russell W. Cunningham: Yes, sir. Solely because we feel that under this scheme of regulation for this metropolitan area Mr. Justice -- Mr. Chief Justice, the Commission has to fit every form of transportation into the overall program. Now, I say this not lightly because right now, I'm sure most of Your Honors are aware of the fact that we have literally hundreds of buses under rush hour on Constitution Avenue, hundreds of them and as a matter of fact, I wish some of those buses could make 10 miles an hour under rush hour but to set another large mass transit system and this is what's -- what we're talking about. We're not talking about running one or two or three articulated vehicles, we're talking about the movements of thousands of people a day on these vehicles. Now, suppose that the traffic conditions are such that we cannot -- that there has to be since inner scheduling of this service that there has to be some accommodation made. Now, if the Commission does not have jurisdiction overall, the Secretary says he's going to run this service and the bus carrier say we're going to run this service and we're in a irreconcilable position -- Who is going to make the distinction?
Earl Warren: Does the Secretary of the Interior propose to have this service run on the highways of the city?
Russell W. Cunningham: Sir, they can't run anywhere else.
Earl Warren: But --
Russell W. Cunningham: Every single street that they've talked about in the -- this initial service and I remind you sir that its initial service operates over a public street in the District of Columbia. I don't care who owns it, whether it's operated -- whether it's owned by the park service and maintained and policed by the park service or whether its own, maintained and policed by the District of Columbia, it's a public street and everybody is out using it.
Earl Warren: You mean whether it's in or out of the park?
Russell W. Cunningham: Yes sir and that the service that's operated today, down on the Mall today is on a public road. Every single --
Byron R. White: It is about the port to run these vessels unconstitutional after?
Russell W. Cunningham: It is my understanding that it is running on Constitution Avenue and it will run. How else can it run, it has to turn around down at the capital and run back up Mr. Justice White and they're also talking about running --
Byron R. White: Do you think the issue that Mr. Justice Fortas raised with the counsel a while ago is really here, whether or not -- whether or not the Secretary has the authority without consulting the Commission to operate the service over -- over District of Columbia streets?
Russell W. Cunningham: Yes sir, very much sir.
Byron R. White: I didn't understand that.
Russell W. Cunningham: This -- the service that's being operated today I think without question is in the Secretary's mind, the very minimum of service that would be provided. Unquestionably, he'll want to extend the service to the union station visitor center. Unquestionably, he'll want to render service up around the capital. Unquestionably, he'll want to run it up around to the White House. Unquestionably, he's going --
Byron R. White: I don't think he's going but that -- what's the issue that's here? The issue here is --
Russell W. Cunningham: Because any decision you make here Mr. Justice White is going to be just as applicable tomorrow when the service is extended another block or another two blocks or across the river to Arlington Cemetery or down to Mount Vernon.
Byron R. White: Well, it maybe -- that maybe true in so far as the construction of the exemption is concerned.
Russell W. Cunningham: Yes sir -- And that's --
Byron R. White: Well, what could be--
Russell W. Cunningham: The one the Commission is most worried about.
Byron R. White: Well, yes I know but that wouldn't be true in so far as his basic authority is concerned.
Russell W. Cunningham: Well, Mr. Justice White, if you decide this question on a basis that the Commission -- the Secretary's legislative enactment says he has exclusive jurisdiction and we will not consider any other legislative enactment, then if you stop there that would be one thing but I think you've got to take this one step further and say -- is this a -- is this service to be provided transportation? Now, I don't think there's any other conclusion that you can come -- can come to other than that it is transportation, this is what's going on down -- going to be going on throughout the Mall area is transporting people.
Earl Warren: Well, I understood counsel on the other side to say that the only place that they -- they went on -- the public highways was to go across third and fifth and -- lets say seventh and ninth and fourteenth, something like that --
Russell W. Cunningham: Alright.
Earl Warren: Across those street, they did not run -- run along those and on those -- on those streets and that those streets were only made public streets subject to the regulation of the Department of the Interior. Now, am I -- I wonder if I'm wrong about that?
Russell W. Cunningham: That's what the United States stated here sir.
Earl Warren: Alright. Now is --
Russell W. Cunningham: Now, that Act --
Earl Warren: Is that true or untrue?
Russell W. Cunningham: Well, I don't believe it's true. That Act states as follows. The reg -- the applicability of the rules and regulations prescribed and applicable to the -- to the Secretary is hereby extended to cover the sidewalks -- the sidewalks around the public grounds and the carriage ways of such streets as lie between and separate said public grounds so --
Earl Warren: Is lie, what -- read that please.
Russell W. Cunningham: Is hereby extended to cover the sidewalks around the public grounds --
Earl Warren: Yes.
Russell W. Cunningham: And the carriage ways of such streets as lie between and separate the said public grounds.
Earl Warren: Well, now isn't that third, fifth, seventh, ninth and fourteenth or whatever those -- those across the streets are across the Mall? Wouldn't it include those?
Russell W. Cunningham: That would exclude it -- that would include it to the extent for example that the streets are involved now perhaps Second Street and Third Street and Ninth Street --
Earl Warren: Well, --
Russell W. Cunningham: Perhaps --
Earl Warren: I'm --
Russell W. Cunningham: But now, the thing the Commission is worried about Mr. Chief Justice is that the rule you lay down here will also have to embrace transportation to Ford Theater to the Whitehouse --
Earl Warren: No, not necessarily.
Russell W. Cunningham: To the visitor's center and there is -- if you start talking about connecting streets between the Mall and the visitor's center and we've got it as space of four blocks, five blocks --
Earl Warren: No, but that -- that's a different thing.
Russell W. Cunningham: Of all district streets.
Earl Warren: These streets as I understand bisect the Mall that some years ago did not or were not bisect it and that the Congress in order to take care of that situation said that -- that the Mall might be bisected provided the Secretary of the Interior had control and jurisdiction over those streets.
Russell W. Cunningham: Yes, sir.
Earl Warren: But now, it hasn't done that for the streets between -- between the Mall and fourth theater or between the Mall and the old union station or any of those -- any of those places and if they want that, I suppose they'd have to go and get the statutory permission to do it, wouldn't they?
Russell W. Cunningham: I really don't know Mr. Justice Warren -- Mr. Chief Justice because they talk about lie as such street as lie between and separate public grounds. Now, they're not referring to the Mall here.
Earl Warren: Well then, the street across the Mall separates the Mall?
Russell W. Cunningham: Yes, sir.
Earl Warren: Well then, that they might be included there?
Russell W. Cunningham: And there are -- and there are perhaps seven or eight streets which separates the Mall from the visitor center.
Earl Warren: Well, that -- you're not separating the Mall. When you separate it, when you have a street between it and the business center.
Russell W. Cunningham: Yes but of course, some of these operation is out on -- on the D.C. streets and not just going across.
Earl Warren: Now, what -- I didn't get that last statement. I didn't understand that last statement that you just made.
Russell W. Cunningham: I'm -- if you'll defer just a moment sir, I want --
Earl Warren: Yes, yes.
Russell W. Cunningham: To get to my map down here. Alright, in the -- in the appendix on page 16 and 17 appears a map and it shows the service that will be run by Universal.
Speaker: On what page?
Russell W. Cunningham: On page 16 and 17 of the appendix.
Speaker: Okay.
Russell W. Cunningham: If you will note that the lines running down -- the arrows going down Constitution Avenue and quite obviously these --
Earl Warren: Is that exhibit B?
Russell W. Cunningham: Yes sir, exhibit B. The service contemplated will run down Constitution Avenue from the intersection of Bacon Drive and Constitution Avenue to Fifteenth Street. Now, that street, Constitution Avenue does not appear to be a street, a sidewalk or a carriage way is lie between and separate the Mall.
Earl Warren: Now, that is what the Constitution Avenue you say?
Russell W. Cunningham: Yes sir.
Earl Warren: It does separate the government (Inaudible) holding, not just the Mall but the government grounds because on both sides are -- of that of Constitution Avenue on those streets are -- are government building.
Russell W. Cunningham: Yes sir and its -- if I also remind Your Honor that we have now under rush hour several hundred buses going down that street, Constitution Avenue.
Earl Warren: Does this prohibit you from doing that?
Russell W. Cunningham: I really don't know what it's going to do to us unless this transportation is subject to our jurisdiction because one of the problems we have and is a great one today is accommodation of vehicles on these streets. Mr. Chief Justice, you recall that in the -- one of the statutory requirements placed upon this Commission which is never been placed upon a transportation agency -- regulation agency before is the alleviation of traffic congestion on the streets of the district through the regulation of the mass transit system and this is going and it could cause us considerable problem but the biggest problem would come about is if this service is not melted in -- in an orderly fashion with the other service.
Abe Fortas: Is this route being use now by the national park service? Is this a correct representation of the route now being used by the National Park service?
Russell W. Cunningham: No sir. The service now being -- I say no sir, I -- you understand my answer is limited, my knowledge is limited. It's best to my understanding that a service is not operating up around the Whitehouse or around the ellipse today.
Abe Fortas: Is it operating on Constitution Avenue?
Russell W. Cunningham: Yes sir, to the best of my knowledge.
Abe Fortas: As shown on this map?
Russell W. Cunningham: To the best of my knowledge it is.
Earl Warren: And is that -- is Constitution Avenue where these buses run speaking now of the -- of a new components possible, is that street under the jurisdiction of the Secretary of the Interior?
Russell W. Cunningham: I believe its -- its classified as one of the streets in which there is dual jurisdiction at both the park service and the district attend to at least that they maintain them.
Earl Warren: Is that the way it appears in the statute, dual -- dual jurisdiction or does the statute say that the Secretary of the Interior shall have jurisdiction over and that these other people who use it use it in accordance with regulation of the -- of the Secretary of the Interior.
Russell W. Cunningham: Mr. Chief Justice, my recollection of the record is that this portion of Constitution Avenue, it's shown on exhibit B is owned and maintained by the District of Columbia and not the Secretary of Interior. I could be wrong, it could be another section but that was -- that was my understanding. We feel that -- that the language of Section 1 that this case really must turn on the language of Section 1 (a) and that language clearly defines the scope of the Commission's jurisdiction and that is that it is transportation and embraces the person who engages in that transportation. Now, transportation is not defined in the compact but it is not given a restricted meaning other than its general term and we believe that the service that will be engaged in by Universal will be or any concessionaire that its secretaries will be transportation. The Senate Report to this legislation stated that Title 2 provides the regulatory law which is to be administered. Section 1 defines the scope of the compact and the transportation covered. Now, Section 1 does not say mass transit or any other kind of specialized service but is -- uses the term transportation which we feel embraces all types of transportation services. That language is clear non-unambiguous, nevertheless, it is urged and decided below in the Court -- in the District Court that the term transportation does not really mean transportation, it means mass transit. Now, the Court of Appeals quite obviously reversed that decision and felt the transportation must be construed to mean simply all forms of movement by motor vehicle of people. To reach the determination that its mass transit rather than transportation per se, one must ignore, number one, the plain language of the law. He must ignore the legislative history. He must ignore the historical concept of regulation and he must ignore previous decisions of the United States Court of Appeals for the District of Columbia. In each case, that Court said that this Commission's jurisdiction is -- should be given the broadest construction possible and embrace all forms of transportation. It also conforms to the major principles of law that remedial statutes of the like the compact shall be broadly construed in all exemptions narrowly construed. The Commission feels it cannot be argued or denied that the function under Universal's contract is that Universal is to perform a movement of people in motor vehicles. This service is going to be operated on streets. It's going to be operated on public streets regardless of who is the owner and maintainer of that street. It will be in a vehicle that will be owned by a private carrier. It will be driven by employees of that private carrier and as the contract itself specifies, those employee shall be dressed so as to be distinctly known as Universal employees, not park service employees but Universal employees. Now, what happens when a man gets on at the end of the -- of the Mall to take a tour, he's not only getting in Universal's vehicles driven by Universal's drivers, he pays Universal a fee and that money then becomes Universal's. Clearly, the act of any carrier, any common carrier in this country, this is the role that it performs and that's the role that a -- that a utility carrier provides whether that act is done for the general public which is this case here. This is not a service for the United States. It's a service for the public. Now, contrast that if you will that the USAC transport case in which the transportation being provided there was to the Federal Government itself. Here, the service is not being provided to the government, it's being provided to the millions of people who will come down under the Mall. The federal government is giving up or allowing a carrier to come on its property and operate and perform certain services that it request and would like to see perform for the public and in turn receives a percentage fee of the fares collected through the fare box of that contract carrier. Now, today, we have numerous carriers operating under contract with various governmental agencies, department of state, department of defense, the army, the navy and each case, those carriers have authorization from the Commission. Now, that service is regulated in so far as the standard of service is concerned and in so far as fares are concerned. We have not had one single conflict with those governmental agencies in so far as what service they want and what service is directed and authorized by the Commission. Not one single bit of difference and we submit Your Honors that this would be the case under this situation. Thank you very much.
Earl Warren: We'll recess now.