Pittsburgh & New England Trucking Co. v. United States, Civ. A. No. 71-979.

• Court: United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
• Writing for the Court: ALDISERT, Circuit , and DUMBAULD and TEITELBAUM
• Citation: 345 F. Supp. 743
• Parties: PITTSBURGH & NEW ENGLAND TRUCKING COMPANY and Ace Doran Hauling & Rigging Company, et al., Plaintiffs, v. The UNITED STATES of America and The Interstate Commerce Commission, Defendants.
• Decision Date: 16 October 1972
• Docket Number: Civ. A. No. 71-979.

345 F. Supp. 743

PITTSBURGH & NEW ENGLAND TRUCKING COMPANY and Ace Doran Hauling & Rigging Company, et al., Plaintiffs,
v.
The UNITED STATES of America and The Interstate Commerce Commission, Defendants.

Civ. A. No. 71-979.

United States District Court, W. D. Pennsylvania.

June 21, 1972.

Judgment Affirmed October 16, 1972.

345 F. Supp. 744

COPYRIGHT MATERIAL OMITTED

345 F. Supp. 745

Harry W. Miller, Royston, Robb, Leonard, Edgecombe, Miller & Shorall, Pittsburgh, Pa., John P. McMahon, George, Greek, King, McMahon & McConnaughey, Columbus, Ohio, Phillip Robinson, Robinson, Felts, Starnes & Nations, Austin, Tex., Robert E. Joyner, Wrape & Hernly, Memphis, Tenn., Paul F. Sullivan, Washington, D. C., Alan Foss, Van Osdel, Foss, Johnson & Miller, Fargo, N. D., James W. Hightower, Hightower & Alexander, Dallas, Tex., J. C. Waldman, U. S. Atty., Pittsburgh, Pa., Harry First, U. S. Dept. of Justice, Anti-Trust Div., Washington, D. C., for plaintiffs

John A. Vuono, Wick, Vuono & Lavelle, Pittsburgh, Pa., Arthur J. Cerra, ICC, Office of the Gen. Counsel, Roland Rice, Rice, Carpenter & Carraway, Joseph G. Dail, Jr., Croft, Dail & Vance, Washington, D. C., John L. Bruemmer, Bieberstein, Cooper, Bruemmer, Gartzke & Hanson, Madison, Wis., for defendants.

Before ALDISERT, Circuit Judge, and DUMBAULD and TEITELBAUM, District Judges.

Judgment Affirmed October 16, 1972. See 93 S.Ct. 235.

345 F. Supp. 746

OPINION

DUMBAULD, District Judge.

This is a suit (under 28 U.S.C. §§ 1336 and 2325)¹ before a three-judge court to set aside an order of the Interstate Commerce Commission.² The basic question at issue is whether the Commission acted validly when it interpreted a "heavy hauler's" certificate (which limits the holder's operating authority to transportation of "commodities which by reason of size or weight require the use of special equipment") as not permitting the transportation of articles which do not require special equipment by reason of their inherent or intrinsic characteristics or properties, but which (chiefly for reasons of convenience and economy) are tendered to the carrier by some shippers in aggregated packages or bundles which are too large or heavy for manual loading and are loaded by means of special equipment.

This is a very difficult, delicate, and doubtful question. At the one extreme it is clear, and admitted by plaintiff, that the mere fact that a large or heavy package of items which in their natural state obviously can be and customarily have been handled without the use of any special equipment (pencils and paper have been cited as examples) is tendered to a carrier should not have the effect of enlarging its operating authority. For such an extension of the carrier's certificated authority would have no limits; there is practically no commodity which (if enough effort were made) could not be packed in bulky and heavy packages requiring mechanical handling. As the Commission states, such an approach would amount to "an obliteration of any meaningful distinction" between heavy haulers and general commodities haulers. (108 M.C.C. at 733).

At the other extreme, "the purely theoretical possibility that a commodity can be handled through physical labor" by employing "robust individuals in sufficient number" does not suffice to withdraw from the scope of a heavy hauler's authority such a commodity when such primitive handling procedures are so irrational, inefficient and uneconomic as to "place them outside the realm of practical reality." (108 M.C.C. at 734).³

345 F. Supp. 747

How is the line to be drawn, and by whom? We conclude that an individual shipper (or heavy hauler) should not have the authority to enlarge a carrier's operating authority by the mere tender and acceptance of an aggregated shipment. Nor should the courts attempt to resolve an issue so imbedded in the area of transportation practices and considerations. The Commission is the appropriate agency to determine issues of this type, in the exercise of its "expertise" in the transportation field and of the regulatory powers conferred upon it by Congress. For reasons to be elaborated later, we also conclude that in the case at bar the Commission has made a conscientious and rational attempt to articulate the criteria for drawing the line where it did.⁴

In the case at bar it is of particular importance to note and heed scrupulously the time-honored precepts (ordinarily regarded as platitudes) delineating the limited scope of a court's power when reviewing an order of the Commission. The classical formulation in I.C.C. v. Union Pacific R.R. Co., 222 U.S. 541, 547, 32 S.Ct. 108, 56 L.Ed. 308 (1912), has been followed in a long and unbroken line of cases, which may be summarized by saying that the Commission's determination must be upheld if it is based upon substantial evidence and is not arbitrary nor erroneous as a matter of law.⁵ "The judicial function is exhausted when there is found to be a rational basis for the conclusions approved by the administrative body." Rochester Telephone Corp. v. United States, 307 U.S. 125, 146, 59 S.Ct. 754, 765, 83 L.Ed. 1147 (1939); Pittsburgh & L. E. R.R. Co. v. United States, 294 F.Supp. 86, 91 (W.D.Pa.1968). "The judicial task is to determine whether the Commission has proceeded in accordance with law and whether its findings and conclusions accord with the statutory standards and are supported by substantial evidence." Penn-Central Merger and N. & W. Inclusion Cases, 389 U.S. 486, 499, 88 S.Ct. 602, 608, 19 L.Ed.2d 723 (1968).

It is clear that the Court is not free to substitute its own judgment for that of the Commission:

The function of the reviewing court is . . . limited to ascertaining whether there is warrant in the law and the facts for what the Commission has done. Unless in some specific respect there has been prejudicial departure from requirements of the law or abuse of the Commission's discretion, the

345 F. Supp. 748

reviewing court is without authority to intervene. It cannot substitute its own view concerning what should be done, whether with reference to competitive considerations or others, for the Commission's judgment upon matters committed to its determination, if that has support in the record and the applicable law. United States v. Pierce Auto Freight Lines, 327 U.S. 515, 536, 66 S.Ct. 687, 698, 90 L.Ed. 821 (1946), italics supplied

The reason why these established rules are not mere platitudes in the case at bar, but constitute revitalized guidelines requiring most conscientious application, is that all members of the Court, if our personal philosophies and views of wise policy were to be given play, would feel sympathy for the position of plaintiffs.

On a humbler scale, this Court, in deciding whether the Interstate Commerce Commission has exceeded its lawful powers in making the order under review, is confronted with the same soul-searching predicament as the Supreme Court in deciding whether the Congress has exceeded its constitutional powers in enacting a statute. We must be equally alert to avoid substituting our own personal predilections or policy judgments for the commands of the law.

Perhaps no one has perceived this predicament more clearly, or expressed it more poignantly, than Mr. Justice Frankfurter.⁶

Dissenting in W. Va. State Bd. of Education v. Barnette, 319 U.S. 624, 646-647, 63 S.Ct. 1178, 1189, 87 L.Ed. 1628 (1943), which held the compulsory flag-salute in schools unconstitutional for Jehovah Witness children, he exclaimed:

One who belongs to the most vilified and persecuted minority in history is not likely to be insensible to the freedoms guaranteed by our Constitution. Were my purely personal attitude relevant I should wholeheartedly associate myself with the general libertarian views in the Court's opinion, representing as they do the thought and action of a lifetime. But as judges we are neither Jew nor Gentile, neither Catholic nor agnostic. We owe equal attachment to the Constitution and are equally bound by our judicial obligations whether we derive our citizenship from the earliest or the latest immigrants to these shores. As a member of this Court I am not justified in writing my private notions of policy into the Constitution, no matter how deeply I may cherish them or how mischievous I may deem their disregard . . . It can never be emphasized too much that one's own opinion about the wisdom or evil of a law should be excluded altogether when one is doing one's duty on the bench.⁷

It can not be denied that the assertions of the Department of Justice, on behalf of the statutory defendant the United States, which has confessed error in the case at bar,⁸ are well-founded: the effect

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of the Commission's decision under review is plainly anti-competitive. It will eliminate competition for certain traffic between heavy haulers and general commodities haulers. To an antitrust alumnus, favoring preservation of competition to the greatest possible extent even in regulated industries,⁹ this argument has undoubted appeal

But the conclusive answer is equally undeniable: under the regulatory statutes in force it is for the Commission, not the courts, to determine how much competition is desirable in the public interest.

Chesapeake & O. Ry. Co. v. United States, 283 U.S. 35, 41-42, 51 S.Ct. 337, 75 L.Ed. 824 (1931), long ago held that the Commission might authorize new service for the very purpose of promoting competition to the extent found by the Commission to be convenient or necessary in the public interest. To the same effect, with regard to motor carriers, see authorities cited in Lang Transportation Corp. v. United States, 75 F.Supp. 915, 927-928, 931 (S.D.Cal. Central Div. 1948), particularly I.C.C. v. Parker, 326 U.S. 60, 65, 65 S.Ct. 1490, 89 L.Ed. 2051 (1945).¹⁰ In unification or merger cases the Commission is expressly empowered to grant exemption from the Antitrust Laws. McLean Trucking Co. v. United States, ...