Pursuant to a show cause order dated November 1, 1949, the Interstate Commerce Commission, on May 17, 1950, entered its order suspending Auto Transport’s right to operate as a contract motor carrier under its permit issued in MC-106553. After denial of a petition to vacate and reconsider the suspension order, which finally became effective December 15, 1950, Auto Transport brought this action against the United States and the Interstate Commerce Commission pursuant to Section 17(9), Title 49 U.S.C.A., to set aside and enjoin the enforcement of the order. The General Motors Corporation, Auto Transport’s only shipper, intervened in support of the complaint.
This three judge 'court, as constituted under Section 2284, Title 28 U.S.C., is vested with jurisdiction of the action under Section 1336, Title 28 U.S.C., 62 Stat. 931, and Sections 2321-2325, Title 28 U.S.C.
A temporary restraining order was issued on December 12, 1950, before the final effective date of the suspension order, and by agreement of the parties, has been continued in effect pending disposition of the cause on its merits.
On July 12, 1946, Auto Transport was granted temporary authority to transport new automobiles over irregular routes from points in Wyandotte County, Kansas to designated points in fifteen states. On August 27, 1947, the Commission issued Auto Transport a permit to perform the same service. Concurrently with the issuance of the temporary authority in 1946, Auto entered into a contract with the intervenar, General Motors, providing for the transportation of its new automobiles, automobile cabs and bodies from its plant in Wyandotte , County, Kansas, to the designated points in the temporary authority and subsequent permit. The 'contract, filed with the Commission in accordance with Section 320(a), Title 49 U.S.C.A. provided for the rates and charges for the transportation of the automobiles to the designated points. Auto has never had any other contract with any other shipper for the transportation of property under its temporary authority or permit.
Before the commencement of the operation, Auto also filed with the Commission a schedule of minimum rates and charges in accordance with Section 318(a), Title 49 U.S.C.A. This schedule of minimum rates and 'charges was the same as those provided in the contract. The schedule of rates has never been revised or amended, but the contract rate has been amended to revise the rates and charges upward from time to time to meet increased cost, so that at the time of the issuance of the show cause order, the contract rates were not the minimum rates actually maintained and charged for the services performed under the permit.
Section 318(a), Title 49 U.S.C.A., provides in presently material part that “It ■shall be the duty of every contract carrier * * * to file with the Commission * * * schedules containing the minimum rates or charges of such carrier actually maintained and charged for the transportation of passengers or property in interstate or foreign commerce”. And, “No such contract carrier, unless otherwise provided by this chapter, shall engage in the transportation of passengers or property in interstate or foreign commerce unless the minimum •charges for such transportation by said carrier have been published, filed, and posted in accordance with the provisions of this chapter.”
Before the issuance of the show cause order, and by letter dated December 14, 1948, the Commission called attention to the variance in the scheduled and contract rates and charges, and pointed out that Section 318(a) required a contract carrier by motor vehicle to file and publish a schedule of minimum rates and charges actually *134maintained and charged any one shipper under its permit; that since General Motors was its only shipper, it was required to file and publish a schedule of minimum rates actually charged General Motors under its contract. And, Auto was accordingly instructed to amend its schedule of minimum rates to conform to the contract rates actually maintained and charged for the transportation performed for its shipper. When Auto refused to comply, the show cause order was issued. Auto moved to vacate the order, contending that Section 318(a) did not authorize the Commission to require it to revise its published schedule of minimum rates to conform to its contract rates.
In its report, pursuant to which the order of suspension was entered, the Commission referred to a letter dated January 29, 1940, which its legislative committee has transmitted to the appropriate Congressional Committee, calling attention to the fact that “the words ‘actually maintained and charged’ are not in Section 218(2), and under that sub-section, schedules may be filed containing minimum charges which are fictitious, i. e., which never have been and never will be charged. The words thus inserted will make it necessary to include in the schedules the lowest rates, fares and charges which are actually assessed, and hence the schedules will give the competing common or contract carrier adequate notice of the competition by which they are confronted.” Our attention is directed to the Congressional conference report on the Transportation Act of 1940. See Rep. 2832, 76th Congress, p. 79, reflecting the views stated in the letter. Then the Commission points to the fact that Section 318(a), as thus amended, became effective on September 18, 1940. It went on to state that since its effective date, the Commission had consistently construed Section 318(a) as requiring contract carriers to file and publish schedules showing the lowest rates or charges actually maintained ifor the transportation in the carrier’s contract; and, imposing upon the Commission the duty of requiring schedules of contract carriers to contain minimum rates and charges actually maintained and charged. And see Ship-man Bros. Contract Charges Between California and Idaho, 30 M.C.C. 229; Contract Minimum Charges from and to Baltimore, Md., 32 M.C.C. 273; Petroleum Products from Wyoming Points to Missoula, Mont., 32 M.C.C. 453; In the Matter of Filing of Contracts by Contract Carriers by Motor Vehicle, 41 M.C.C. 572.
The complainant takes the position that this construction of 318(a) cuts across the established transportation policy to recognize and treat common carriers and contract carriers by motor vehicle as two- separate classes of transportation, as to each of which distinct and separate standards of rate regulation is applicable. See House Conference Rep. 2832, 76th Congress. Emphasis is laid upon the distinctly different duties imposed upon a common carrier and a contract carrier by the regulatory scheme. As for example, the inflexible duty of a common carrier to -establish and maintain reasonable rates and charges, provide adequate service, file and publish tariffs containing such rates and charges which cannot be changed except upon thirty days’ notice, all of which are subject to revision and regulation by the Commission, Secs. 316, 317, 49 U.S.C.A., whereas a contract carrier is required only to file a schedule of reasonable minimum rates, and is free to contract ifor any rates or charges above such minimum reasonable rates, subject to change without notice.
The effect of the Commission’s order under attack is said to destroy the distinctly different standards of rate regulations applicable to contract and common carriers by motor vehicle, contrary to and in derogation of established transportation policy. Particularly, the ultimate effect -of the order is said to require the contract carrier to maintain and charge the -exact rates filed and published in its schedule of minimum rates, resulting in a rigidly fixed rate which, under applicable regulations, must be filed and posted at least thirty days prior to th-e effective date. See Rules 49 C.F.R. 187.-8(b).
It is true that the Commission’s order has the effect of construing Section 318(a) to require a contract carrier to file and publish a schedule of rates and charges which *135it actually maintains and charges any one shipper, and since Auto has a contract under its permit with only one shipper, the order has the rather anomalous effect of requiring it to actually charge that shipper the rates filed and published in its schedule. In other words, the contract rate must be the reasonable minimum scheduled rate, or vice versa. But, this does not prohibit Auto and intervenor from contracting for any rate they choose, so long as they file the schedule showing such rate to be the posted minimum reasonable rate.
Section 318(a) was deliberately amended to remove what the Commission thought was an evil inherent in the disparity between the posted schedule rate and the unpublished contract rate. The order of the Commission is in obedience to the Congressional mandate. If the requirement for posting the schedule of minimum rates at least thirty days prior to the effective date works a hardship, the Commission is authorized to ameliorate it. In any event, the requirement does not destroy the validity of the Commission’s order.
Relief is denied and the action is dismissed.