Washington, Marlboro & AM Lines v. PUBLIC UTIL. COM'N

• Decision Date: 17 July 1952
• Docket Number: Civ. A. No. 2831-49.
• Citation: 114 F. Supp. 328
• Parties: WASHINGTON, MARLBORO & ANNAPOLIS MOTOR LINES, Inc. v. PUBLIC UTILITIES COMMISSION OF DISTRICT OF COLUMBIA et al.
• Court: U.S. District Court — District of Columbia

114 F. Supp. 328

WASHINGTON, MARLBORO & ANNAPOLIS MOTOR LINES, Inc. v. PUBLIC UTILITIES COMMISSION OF DISTRICT OF COLUMBIA et al.

Civ. A. No. 2831-49.

United States District Court District of Columbia.

July 17, 1952.

James P. Donovan, Washington, D. C., for Washington, Marlboro & Annapolis Motor Lines, Inc.

Vernon E. West, Lloyd B. Harrison, Washington, D. C., for Public Utilities Commission of District of Columbia.

Edmund L. Jones, F. G. Awalt, Daryal A. Myse, Raymond Sparks, Washington, D. C., for Capital Transit Co.

McLAUGHLIN, District Judge.

Nature of the Case

In this appeal the Court is asked to suspend and vacate two orders, namely No. 3530 and No. 3715 of the Public Utilities Commission of the District of Columbia, hereinafter referred to as the Commission, which were issued as a result of proceedings before the Commission denominated "In the Matter of Bus Service of the Capital Transit Company in Southeast Washington and designated as P.U.C. Formal Case No. 383." Order No. 3530 as hereinafter explained, has been supplanted by Order No. 3715.

This is the second time this cause has been before this Court on appeal.

Original Appeal

In the original petition of appeal the Washington, Marlboro and Annapolis Motor Lines, Inc., hereinafter referred to as W., M. & A., contended that Order No. 3530 should be vacated because it had not received actual or statutory notice of the proceeding from which the order emanated; that it had not been a party to said proceedings; that the order illegally set up competitive service to service rendered by W., M. & A., and that, as a result, the said order was illegal and confiscatory because it deprived the W., M. & A., of its rights and property without compensation or due process of law.

Petitioner, W., M. & A., alleged as a basis for the foregoing contentions that it is affected by order No. 3530 extending the C-2 and W-4 bus lines of the Capital Transit Company, hereinafter referred to as C.T.C., and that it is thus a "public utility interested" within the meaning of the term as used in the statute. D.C.Code, Title 43, Section 416 (1940 Ed.). Upon application, C.T.C. was granted leave to intervene in the action as a party appellant.

After argument and submission of the case, the Court issued an order requiring the Commission to reopen the proceedings. A memorandum setting forth the facts of the case, the applicable statutory provisions of the Code, and the Court's conclusions was made a part of the order and is, by reference, adopted as a part of this memorandum. 114 F.Supp. 321. In the circumstances, it will be unnecsary to re-recite in this memorandum the factual background which is set forth in detail in the Court's memorandum on the first appeal.

Notice to W., M. & A.

One of the principal issues raised by the original petition was whether the W., M. & A. was a party entitled to statutory notice of the proceedings in Formal Case No. 383.

In remanding the case to the Commission the Court stated in its memorandum,

"In order to determine whether the rights of W., M. & A. in the premises have been invaded, it is necessary to consider what interests of W., M. & A., if any, were involved in the hearing of which it was not given notice and the effect upon the rights of W., M. & A., of failure to receive notice." Pp. 8, 9.

The Court in expressing its conclusions said,

"It would seem to be impossible to determine whether the contentions of W., M. & A., in the above regard are sound or otherwise in the absence of evidence bearing upon the questions therein involved. The record is, of course, silent on the points involved in the said contentions of W., M. & A., for the obvious reason that W., M. & A. was not a party to the hearing and presented no testimony."

and later

"Under the circumstances the Court concludes that the hearing involved a situation which might reasonably be held to have affected the vital interests of W., M. & A. Whether such interests were actually affected cannot be determined on the record in its present state." Pp. 10, 12.

Accordingly the Commission issued its notice of formal public hearing to be held "upon matters involved in Formal Case No. 383, and upon such matters as directed by the Court." Copy of "Notice of Hearing" is set forth as Exhibit II in the Amended Petition of W., M. & A.

Rehearing of Formal Case No. 383 before the Commission and Determination by the Commission

Following the Court's order reopening the hearing in Formal Case No. 383 pursuant to the provisions of Title 43, Section 705, D.C.Code (1940 Ed.), to afford W., M. & A. an opportunity to present evidence in line with its contentions, and directing the Commission to receive additional evidence in respect thereof, hearings were held before the Commission on eight different days during May and June, 1950. Testimony was received from W., M. & A., C.T.C., numerous individuals, representatives of various citizens' associations, and the Commission's staff.

The Commission made the following findings of fact which the Court deems applicable to the controversy over the extension of the W-4 line:

"(1) The area adjacent to Alabama Avenue, between the intersections of Pennsylvania and Alabama Avenues and 36th Street and Alabama Avenue, Southeast, is without public transportation service and there is a need for such service in the said area."

"(4) There is no direct public transportation between the residential and shopping areas of the northern portion of Southeast Washington and other residential and shopping areas and governmental installations of Southeast Washington. There is need for such transportation service."

"(8) The operation of the W-4 line as proposed by CTC from Bolling Field to the proposed terminal at 36th Street and Alabama Avenue to the Intersection of Pennsylvania and Alabama Avenues, Southeast, would constitute a peripheral cross-town line connecting the shopping and business center near Fairfax Village with certain residential areas of southeast Washington and Bolling Field, and it is necessary to meet the transportation requirements of such areas. Such a line would serve as a feeder line to the radial lines terminating at Commodore Barney Circle and other radial lines of Southeast Washington terminating in downtown Washington."

"(11) * * * From the evidence of record, the Commission is unable to find that the extension of the W-4 line would have any adverse effect upon the revenues of W., M. & A. Such operation would not constitute duplication of the existing service over W., M. & A., or of existing or proposed service of CTC. Operation of the W-4 line would increase traffic over the intersecting radial lines of CTC and would increase to some extent traffic over the lines of W., M. & A., which would increase the revenues of both Companies. The extension of W-4 line to Pennsylvania and Alabama Avenues would supply public transportation to areas that have need for public transportation but where no such transportation is now provided."

As a result of these findings the Commission concluded that the W-4 line should be extended from its present terminal at 36th Street and Alabama Avenue, S. E., to Pennsylvania and Alabama Avenues, S. E. The Commission further found and concluded "that such operations will be reasonably compensatory", and "that the extension of W-4 to Pennsylvania and Alabama Avenues will not adversely affect Washington, Marlboro & Annapolis Motor Line, Inc."

At the conclusion of the hearing, the Commission issued a new order, No. 3715, which made substantial amendments to Order No. 3530.

Thereafter, the Court entered its order causing Order No. 3715 to supplant Order No. 3530, and granted the petitioner leave to amend its petition so as to place before the Court any objections it might have to Order No. 3715. D.C.Code, Title 43, Section 709 (1940 Ed.).

Issue Involved in Present Appeal

The petitioner contended in the original petition that it would be adversely affected by the extension of the C-2 line and by the establishment of the northern terminus of the newly created W-4 line at Pennsylvania and Alabama Avenues, S. E., and that as a result of such acts C.T.C. would be in direct competition with W., M. & A.'s line serving Fairfax Village.

Upon the basis of the evidence presented in the original proceeding and in the hearing on remand the Commission found that the extension of the C-2 line from its present terminal would adversely affect the rights and revenue of W., M. & A., and that the operation of the then existing C-2 line of C.T.C. was not justified in the public interest, and as a result authorized C.T.C. to discontinue the entire operation of the C-2 line.

Counsel for W. M. & A., stated in open court that it has no quarrel with C.T.C. or the Commission over the establishment of the W-4 line to its present terminal at 36th and Alabama Avenues, S. E. (Official transcript, official hearing on appeal, April 21, 1952, p. 28.) Since this terminal was proposed by C.T.C., it now appears that W., M. & A. is the only moving party to this appeal.

Thus there remains in this appeal the single issue as to whether in the circumstances the order of the Commission extending the W-4 line of C.T.C. from its present terminal at 36th and Alabama Avenues, S. E., to Pennsylvania and Alabama Avenues, S. E., should be affirmed or vacated.

Grounds Relied on by W., M. & A. for Vacation of Order No. 3715

In its amended petition of appeal W., M. & A. has set forth the following grounds for asking the Court to suspend and vacate the proceedings in Formal Case No. 383 and the Orders No. 3530 and No. 3715 emanating therefrom:

"(1) That said proceeding and the orders issued in connection therewith are void ab initio for failure to make petitioner a party to the proceeding and to give it prescribed statutory notice of the same.

"(2) That said orders No. 3530 and No. 3715 are illegal for that they establish service which is competitive to that of

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