CE Hall & Sons v. United States

• Decision Date: 27 January 1950
• Docket Number: Civ. A. No. 8494.
• Citation: 88 F. Supp. 596
• Court: U.S. District Court — District of Massachusetts
• Parties: C. E. HALL & SONS, Inc., et al. v. UNITED STATES et al.

88 F. Supp. 596

C. E. HALL & SONS, Inc., et al. v. UNITED STATES et al.

Civ. A. No. 8494.

United States District Court D. Massachusetts.

January 27, 1950.

LaRue Brown, Boston, Mass., Brown, Field, McCarthy & Field, Boston, Mass., Raymond E. Bernard, Boston, Mass., Francis E. Barrett, Milton, Mass., for plaintiffs.

William J. Hickey, Special Assistant to Attorney General, James E. Kilday, Special Assistant to Attorney General, Herbert A. Bergson, Assistant Attorney General, George F. Garrity, United States Attorney, Boston, Mass., for the United States of America.

Edward M. Reidy, Associate Chief Counsel, Washington, D. C., Daniel W. Knowlton, Chief Counsel, Washington, D. C., Alfred G. Malagodi, Assistant United States Attorney, Boston, Mass., for the Interstate Commerce Commission.

Before MAGRUDER, Circuit Judge, SWEENEY and WYZANSKI, District Judges.

MAGRUDER, Circuit Judge.

On October 7, 1948, the Interstate Commerce Commission, Division 5, upon a finding that the present and future public convenience and necessity so required, issued an order granting an application of Auclair Transportation, Inc., to the extent of authorizing operation by the applicant, in interstate or foreign commerce, as a common carrier by motor vehicle of commodities which because of their size or weight require the use of special equipment or specialized handling, over irregular routes, between Manchester, N. H., on the one hand, and, on the other, Elizabeth, N. J., and points in Maine, Vermont, Massachusetts, Rhode Island, Connecticut, and New York. The present complaint, filed pursuant to 28 U.S.C.A. §§ 1336, 2321-2325 by four certificated carriers more or less in competition with Auclair, asks this court to set aside said order as unlawful and void. All the plaintiffs appeared in the proceedings before the Commission as intervenors in opposition to Auclair's application.

Prior to making the application which led to the issuance of the Commission's order now under review, Auclair was already established in business as a common carrier by motor vehicle under certificates of public convenience and necessity authorizing, among other things, the transportation of "machinery" between Manchester, N. H., on the one hand, and, on the other, points in Maine, Massachusetts, Rhode Island, Vermont, Connecticut, and New York. In the conduct of its operations Auclair maintains terminals at Manchester, N. H., and Charlestown, Mass., and it operates 4 tractors, 17 trucks, 7 trailers, and 2 service cars. One of the trailers is of the low-bed type with a capacity of 25 tons, and 3 of the trucks are equipped with winches and removable stake bodies. In addition, Auclair has a large quantity of rigging equipment and engages in rigging work, both separately and in conjunction with its transportation activities.

Pursuant to § 207 of the Interstate Commerce Act, 49 U.S.C.A. § 307, Auclair on December 1, 1947, filed with the Commission its present application for authority to operate as a common carrier by motor vehicle, in the transportation of "contractors' equipment, building and construction equipment and material, steel, tanks, factory equipment, machinery and machine parts, which because of size or weight, require special equipment or specialized handling and such supplies and materials as are necessary to the installation of the above-named commodities," over irregular routes, "between points and places in New Hampshire, on the one hand, and, on the other, points and places in Maine, Vermont, New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, and New Jersey." As above appears, the order under review granted the application in part only, both as to commodities and territory.

Since plaintiffs make a great point that the order was void and beyond the statutory power of the Commission because of alleged procedural error in the administrative proceedings, we set forth the procedural steps in somewhat more detail than would ordinarily be necessary. Following is what occurred in chronological order:

Upon due notice, Auclair's application was set down for hearing before an Examiner on April 5, 1948, at Concord, N. H. At the hearing several witnesses testified in support of the application and several on behalf of the intervenors in opposition.

On April 23, 1948, the Examiner issued his Report, which contained no subsidiary findings or discussion of the evidence, but merely made the ultimate statutory finding "that public convenience and necessity do not require the operation for which authority is sought", and recommended the issuance by the Commission of an appended order denying the application. (The Commission of course was not bound by the Examiner's finding, and was not obliged to accept the Examiner's recommendation. Federal Radio Commission v. Nelson Brothers Bond & Mortgage Co., 1933, 289 U.S. 266, 285, 53 S.Ct. 627, 77 L.Ed. 1166, 89 A.L.R. 406.)

Notice of the report and recommended order was served on the parties, stating that exceptions might be filed within 20 days and further providing that at the expiration of such period "the attached order will become the order of the Commission and will become effective unless exceptions are filed seasonably or the order is stayed or postponed by the Commission."

On May 12, 1948, which was before the expiration of the 20-day period for filing exceptions, the Commission issued an order that "the date on which said recommended order shall become the order of the Commission and become effective, be, and it is hereby, postponed to May 24, 1948, unless prior to that date said order is stayed or further postponed by the Commission."

On May 14, 1948 Auclair, the applicant, filed what was originally titled "Exceptions to the Report and Recommended Order and Request for Reopening and Further Hearing."

On May 18, 1948 the Commission, Division 5, issued an order that "the taking effect of the said recommended order in the above-entitled matter be, and it is hereby, stayed pending the further order of the Commission." That order we take to mean, and the Commission evidently so understood it, that the taking effect of the Examiner's recommended order was stayed indefinitely until a further order of the Commission vacating the stay — not, as plaintiffs seem to think, that the stay will be automatically vacated upon the entry of any further order of the Commission in the course of the proceeding. In fact, as appears below, the Commission never issued any order vacating the stay, and the Examiner's recommended order never became effective as the order of the Commission.

By letter from the Director of the Bureau of Motor Carriers to counsel for the applicant, acknowledging receipt of the exceptions, it was stated that the exceptions were received by the Commission a day late; that under the circumstances "the effectiveness of the recommended order is stayed, and your exceptions have been received as a petition for reconsideration and further hearing."

Thereafter, extended answers to the petition for reconsideration were filed on behalf of the intervenors.

On June 25, 1948 the Commission, Division 5, issued an order as follows:

"Upon consideration of the record in the above-entitled proceeding, and of petition of applicant for reconsideration and further hearing, dated May 12, 1948, and of four replies by certain interveners; and good cause appearing therefor:

"It is ordered, That said petition be, and it is hereby denied."

Without further notice to the parties, the Commission, Division 5, on October 7, 1948, issued its report and order in the case. The report made certain detailed findings based upon the testimony taken at the hearing before the Examiner, found that the applicant was fit and able, financially and otherwise, to conduct the operations thereinafter authorized, and further found that the present and future public convenience and necessity required the granting of the application to the extent set forth in the opening paragraph of this opinion. The accompanying order stated that the application, except to the extent granted in said report, was thereby denied. This is the order which we are asked to review and set aside.

On November 12, 1948, the Commission granted to the intervenors an extension of time to November 26, 1948, within which to file petitions for reconsideration of said report and order of October 7, 1948. Such petitions were duly filed by the intervenors.

By order issued May 2, 1949, the Commission itself, at a general...