Riss & Co. v. United States

• Decision Date: 18 July 1952
• Docket Number: Civ. A. No. 7694.
• Citation: 117 F. Supp. 296
• Parties: RISS & CO., Inc. v. UNITED STATES et al.
• Court: U.S. District Court — Western District of Missouri

117 F. Supp. 296

RISS & CO., Inc. v. UNITED STATES et al.

Civ. A. No. 7694.

United States District Court W. D. Missouri, W. D.

July 18, 1952.

COPYRIGHT MATERIAL OMITTED

A. A. Layne, Jr., Washington, D. C., John B. Gage, John H. Kreamer, Kansas City, Mo., for plaintiff (H. Charles Ephraim, Washington, D. C., on the brief).

William J. Hickey, Sp. Asst. to the Atty. Gen., for the United States. (James E. Kilday, Sp. Asst. to the Atty. Gen., Newell A. Clapp, Acting Asst. Atty. Gen., and Sam M. Wear, U. S. Atty., Kansas City, Mo., on the brief).

Allen Crenshaw, Associate Chief Counsel, Washington, D. C., for Interstate Commerce Commission (Edward M. Reidy, Chief Counsel, Washington, D. C., on the brief).

Lewin W. Wickes, Jr., Philadelphia, Pa., Francis J. Steinbrecher, Chicago, Ill., Walter A. Renz, New York City, and Henry W. Fox, Kansas City, Mo., for interveners (James W. Nisbet, Chicago, Ill., and Lathrop, Woodson & Parker, Kansas City, Mo., on the brief).

Before STONE, Circuit Judge, and DUNCAN and RIDGE, District Judges.

PER CURIAM.

Riss and Company, Inc. is an extensive motor carrier operating under various certificates bearing the general Commission docket number designation of MC-200. Among such certificates is MC-200 (Sub-No. 60TA), which is a temporary certificate to transport "Dangerous Explosives, * * *". A number of railroads filed (February 27, 1952), with the Commission, a "Petition for Issuance of a Cease and Desist Order" against Riss to cease and desist from operating "beyond the scope of the territory authorized in Sub 60TA * * *" and "* * to confine its operations under Sub 60TA to the routes and points authorized in the certificate issued Riss and Company under MC 200 Sub 46 dated February 21, 1950." To this petition, Riss filed an answer which included a motion to dismiss the petition. Without further hearing on the petition and the answer, the Commission filed its report and entered its order (on June 2, 1952), that Riss cease and desist "on or before July 10, 1952" from transportation of dangerous explosives under MC-200 (Sub-No. 60TA) "beyond the scope of the operations specifically described in the appendix to the said report * * *" (64 M.C.C. 531). Riss filed a petition to "reconsider and vacate" this order. Railway petitioners filed reply to this petition to reconsider. On July 14, 1952, the petition to reconsider was denied without further hearing. This proceeding is to review these Commission orders of June 2, 1952 and July 14, 1952.

Here plaintiff, in contending that these two orders of the Commission are erroneous, states its position (of course, as to the order of June 2, 1952) as follows:

"* * * erroneous and void as a matter of law and is arbitrary and capricious and without foundation either in fact or in law because: (1) the findings of fact and conclusions and orders were entered without notice and hearing in violation of the provisions of Part II of the Interstate Commerce Act, 49 U.S.C. § 301 et seq., and the Administrative Procedure Act, 5 U.S.C. § 1001 et seq., although notice and hearing was requested by plaintiff; (2) the operating authority in Docket Number MC-200 (Sub-No. 60TA), initially granted in 1942, continues in full force and effect by virtue of other orders of the Commission and Section 9(b) of the Administrative Procedure Act, 5 U.S.C. § 1008(b); and (3) the Commission has, without good cause appearing, restricted the operating rights granted, solely on grounds of interpretation, contrary to the terms and provisions of the operating authority granted."

The Commission contends that this proceeding was solely one to interpret the scope of temporary certificate Sub-No. 60TA; that the proceeding before it was "upon a petition, not a complaint," therefore the report and order are based on Secs. 204(a) (6), 210a(c) "and numerous judicial decisions construing Commission authority to interpret authority issued by it" and not under Secs. 204(c) or 212(a); that the report findings and the order are based solely upon Commission official records and no other evidence was "required or necessary" to its interpretation; that a "formal hearing" is required only where facts, provable by other than its official records, are reasonably necessary for interpretation of operating authority.

The United States contends that plaintiff received adequate notice; and that, though not required to grant a hearing, the Commission did so giving plaintiff every opportunity to present every contention, of fact or law, it desired in opposition to the petition of the railroads.

The intervening railroads contend that Section 210a(a), giving power to the Commission to grant temporary certificates "without hearings or other proceedings", inherently includes power to interpret the scope of such grant without "hearings or other proceedings"; that the duty of the Commission, under Section 204(a) (6), "To administer, execute, and enforce all provisions of this part, to make all necessary orders in connection therewith" necessarily includes power to interpret the meaning of its temporary grants and to enforce such interpretation; that the only fact issue raised by interveners' petition was that of transgression by Riss of its granted authority under Sub. 60TA and, which issue was removed from dispute by admissions of Riss in its answer to interveners' petition; that there is no showing that the interpretation of Sub 60TA by the Commission is erroneous, arbitrary, capricious and without foundation.

I. ISSUE AS TO NOTICE AND HEARING.

The proceeding before the Commission was one, by the Railroads, to secure relief from injury they allege resulted from operation by Riss beyond the scope of the temporary certificate Sub 60TA. The relief sought was that the Commission "require Riss to confine its operations under Sub 60TA to the routes and points authorized in the certificate issued Riss & Company under MC-200 Sub 46 dated February 21, 1950".¹ This proceeding required the determination of two matters: the scope of lawful operations by Riss under Sub 60TA and whether Riss was exceeding such lawful scope. The scope of such lawful operations was a matter of interpretation of the extent and terms of Sub 60TA — in the situation here, this would seem to be a question of law. Whether Riss was exceeding its authority was a purely factual matter of what it was doing measured by what it had authority to do. Although this "petition" before the Commission was made up of these two elements, the petition is a unit when we come to the question of the power of the Commission to consider and act upon it.

The Commission has the power to interpret the meaning of a motor carrier certificate issued by it. Such is a necessary power to enable it to perform its duties under Section 204(a) (6) of the Act. The Commission can exercise this power even though it does so in a proceeding which seeks only a declaratory order construing a certificate.² But where such interpretation is an integral part of a pleading before the Commission which prays positive action therein by the Commission based upon such interpretation, we should treat the pleading as a unit.

Treating the so-called "petition" as a unit, it is nothing more nor less than a "complaint" within the meaning of Section 204(c) of the Act. That section sets forth the only method by which the Commission can, by its own action, "compel" compliance with the provisions of the Act or the requirements of the Commission thereunder, without resort to the Courts under Sections 222(a) or 222 (b).³ This "petition" is the kind of thing meant by "complaint" as used in 204(c).

Treating the "petition" of the Railroads as a complaint within the meaning of Section 204(c), we are met by the contentions of Riss (raised in its answer and motion to dismiss before the Commission) that the "petition" does not comply with the Rules of the Commission setting out the requirements for "complaints" and that, if the matters urged in the "petition" are proper for complaint proceedings, Rule 102 is not applicable.

The Commission regarded this proceeding as being under its Rule 102, which is one of its adopted General Rules of Practice, regulating procedures before it. Rule 102 is a catch-all providing a remedy where no other Rule does so. Since there are other Rules governing "complaints" and since this "petition" is, in essence, a "complaint", those Rules and not Rule 102 applies here. Thus this issue as to the Rules resolves into whether this "petition" meets the Rules requirements governing "complaints". Plaintiff sets forth (Appendix B of its main brief) what it states are all of the Rules governing "complaints" pertinent here. Accepting this unchallenged statement, this "petition" sufficiently complies therewith to overcome this objection by plaintiff. We conclude that this "petition" is a sufficient complaint within Section 204(c) and the Commission's General Rules of Practice governing complaints.

Another contention of plaintiff is that a "cease and desist" order cannot be made by the Commission where the effect thereof would be to deny Riss the right (in an action against Riss under Section 222(a) or 222(b)) to place in issue the scope of the certificate; and that such effect results where the Commission, prior to an action under 222(a) or 222(b), has ruled on the legality of the particular operations. The force of this position is, that unless Riss is given the notice and granted the hearing accorded by Section 204(c),⁴ plaintiff will be denied opportunity to challenge the interpretation of Sub 60TA as made by the Commission in a judicial proceeding against it. This position is sound. Southwest Freight Lines v. I. C. C., 8 Cir., 184 F.2d 149, 151; I. C. C. v. G. & M. Motor Transfer Co., D.C., 64 F.Supp. 302, 303; I. C. C. v. Consolidated Freightways, Inc., D.C., 41 F.Supp. 651, 655. This is the legal doctrine that orders of the Commission are not subject to "collateral" attack...