AE McDonald Motor Freight Lines v. United States

• Decision Date: 17 April 1940
• Docket Number: No. 182.,182.
• Parties: A. E. McDONALD MOTOR FREIGHT LINES, Inc., v. UNITED STATES et al.
• Court: U.S. District Court — Northern District of Texas

35 F. Supp. 132

A. E. McDONALD MOTOR FREIGHT LINES, Inc., v. UNITED STATES et al.

No. 182.

District Court, N. D. Texas, Fort Worth Division.

April 17, 1940.

J. J. Shaw, of Houston, Tex., and Amos M. Felts, of Austin, Tex., for plaintiff.

Scott & Wilson, of Waco, Tex., and Baker, Botts, Andrews & Wharton, of Houston, Tex., for defendant.

Before HUTCHESON, Circuit Judge, and KENNERLY and BRYANT, District Judges.

HUTCHESON, Circuit Judge.

Plaintiff, a motor carrier operator, brought this suit to set aside an order of the Interstate Commerce Commission, finally denying him a "grandfather" certificate¹ on the ground that operating without permit or certificate from the Railroad Commission of Texas, and in a continual state of conflict with it, he was not, within the Federal Motor Carrier Act, 49 U.S.C.A. § 301 et seq., in bona fide operation.

Complainant, pointing out that his operations have always been in interstate, never in intrastate, commerce, insists (1) that the Railroad Commission of Texas has and had no authority either to permit or to interfere with such operations, and (2) that if it has, complainant on June 1, 1935, and throughout the years of his operation, was of the bona fide belief that it did not have such authority, and was maintaining this belief in the courts as he was by law allowed to do. He insists that this being so, it may not be claimed that merely because he finally lost in the courts, his suit against the State Commission, his operations in the interim were not completely bona fide.

In addition to his attack upon the order dismissing his application, as erroneously denying him a "grandfather" certificate, McDonald complains of it as oppressive and unwarranted, in view of his additional application before the commission under Section 307 (a),² and his request that his two applications be consolidated and determined together. His contention here being that the commission should have withheld action on his "grandfather" application and determined both applications together, thus continuing his right to operate under the "grandfather" application until all the rights asserted by him had been finally and fully decided.

On his first position, McDonald urges upon us that the words, bona fide, as used in the "grandfather" or first proviso clause of 306 (a), are used there in their ordinary sense of "in good faith and with honest intention". He insists that since it may not be denied that he was pursuing in the courts with the bona fide belief that he was entitled to it, the remedy of an injunction against commission interference, his operations were necessarily bona fide, and in good faith, though he did not prevail in the actions he brought.

But the full force of his argument is directed, with a vigor and earnestness and a sincerity which does not permit of question, to the point that the state commission in asserting the right to interfere with interstate carriage over the highways, though solely within the state, is not only without express power, but is an embezzler of power, and that the courts in construing the Texas Motor Carrier Act, Vernon's Ann.Civ.St. art. 911b et seq., as authorizing the Texas Commission to exercise authority over interstate carriers, have misconstrued the statute and have written into it provisions which are not there. Minutely analyzing the acts and pointing out that it speaks throughout of a certificate of convenience and necessity; that it makes no distinction between state and interstate carriage; and that it nowhere provides for an interstate permit or certificate on considerations of the protection of the highways or of public safety; he insists that he is entitled to an original and independent construction here of the Texas and Federal Motor Carrier Statutes in their relation to each other and of his right to a "grandfather" certificate; and that the Interstate Commerce Commission by pitching its decision entirely upon that of the Supreme Court in McDonald v. Thompson, 305 U.S. 263, 59 S.Ct. 176, 83 L.Ed. 164, has in effect denied him a hearing and determination of his rights as a bona fide operator under the Federal Motor Carrier Act.

We are entirely convinced of complainant's sincerity and bona fide belief in the rectitude of his positions and actions and if we could agree with him, in his construction of the Texas act and the power of the Texas Commission under it, or that the test of bona fide operations under the Federal Act may be thus subjectively satisfied, we should agree that he was entitled to a "grandfather" certificate. But, we are quite clear that the statute does give the state commission supervision over interstate use of state highways to the extent of protecting the highways themselves and the safety of the public thereon,³ and we are equally convinced that no amount of bona fide belief, that one has the right to operate over state highways, will satisfy the Federal Act's requirement of bona fide operation, when in fact the operation is not in accordance with, but in violation of, state law.

And, we think it may not be doubted that the issuance of temporary injunctions against the commission or even a permanent injunction, if appealed from and reversed, did not render legal what was illegal, make valid a use which was invalid. They merely restrained the commission from acting against complainant until the rights in controversy could be settled and the final judgment in the case settled those rights, not as of the date of its entry, but as of the date of the issuance of the commission order which was under attack.

Complainant's rights therefore were neither bettered nor worsened by the injunctions that he got. Merely stop orders, they disappeared when the adjudication went against him and left complainant as of the date of the commission's order, where the commission's order had left him, an operator without right, under state laws, on the highways and therefore, one who, within the meaning and purpose of the Federal Motor Carrier Act, could not be or have been a bona fide operator thereon. That this is so, a consideration of the whole act makes plain. Taking up at the point where the presence of state and the absence of federal laws for granting certificates had left the matter, Congress, by the Federal Motor Carrier Act, manifested two paramount purposes, (1) to avoid disruption of settled lawful motor carrier service by permitting such operators to continue to operate without making proof under Section 307 (a) that public convenience and necessity will be served by operation, and (2) to require all other carriers to apply for and obtain from the commission under Section 307 (a), certificates of public convenience and necessity. In the first class of cases come those (a) within the first proviso of Section 306...