(dissenting).
Since Regulation 571 purported to cover the renting of taxicabs, the question is whether such coverage was authorized by the Emergency Price Control Act.
We have previously refused to decide this question, on the ground that it was within the exclusive jurisdiction of the Emergency Court of Appeals under § 204(d) of the Emergency Price Control Act, 50 U.S. C., Supp. V, § 924(d). Reeves v. Bowles, 80 U.S.App.D.C. 207, 151 F.2d 16. It seems to me clear that the Reeves case was right and that the court now overrules it.
In the Reeves case the appellants urged in their brief, without persuading the court, the precise point by which the court is now persuaded. They said: “Particular reference is at this time made to Section 111 of Title 43 of the D.C.Code of 1940, under which Title the Public Utilities Act is set forth. This particular section in defining the term ‘common carrier’ says: ‘The term common carrier * * * includes * * * every corporation * * * partnership and person * * * owning, operating, controlling or managing any agency or agencies for public use for the conveyance of persons * * * within the District of Columbia for hire * * *.’ And again in Section 103 of Title 43 D.C.Code of 1940, we find: ‘The term public utility * * * shall mean and embrace every * * * common carrier * * ” With this argument before us, we decided in the Reeves case that the alleged invalidity of OPA regulation of taxicab rentals remained a substantial *621question which lay within the exclusive jurisdiction of the Emergency Court of Appeals.
I do not understand the court’s suggestion that it is not overruling the Reeves case. (1) The court points out that in that case we disclaimed deciding, as “not now before the court,” the question whether renters of taxicabs were common carriers and public utilities within the meaning of the District Code and therefore within the jurisdiction of the Public Utilities Commission. But in saying that that question is before us now the court overrules the Reeves case, for it is no more before us now than it was then. Its answer has a bearing upon the question whether renters of taxicabs are public utilities within the meaning of the Price Control Act and therefore exempt from OPA regulation; but we held in the Reeves case that we have no power to decide this latter question. (2) The court says that its present “action is, strictly speaking, not an invalidation of the regulation, but a determination that, because of the statutory exemption, the Act does not cover the particular situation under consideration.” But this might as well have been said of the action that we decided we could not take in the Reeves case as of the action the court is now taking. Moreover the court’s, distinction is, I think, without a difference. To hold that the Act does not cover the renting of taxicabs, and therefore the Regulation, which purports to cover that business, cannot be enforced against it, is to hold that the Regulation is invalid with regard to that business. This is what the court now decides and what we held in the Reeves case that we had no power to decide.