Akers Motor Lines, Inc. v. United States

• Decision Date: 02 January 1973
• Docket Number: C-C-72-21.,Civ. No. 2927
• Citation: 352 F. Supp. 606
• Court: U.S. District Court — Western District of North Carolina
• Parties: AKERS MOTOR LINES, INC., et al., Plaintiffs, and McLean Trucking Company, Intervening Plaintiff, v. UNITED STATES of America and Interstate Commerce Commission, Defendants, and Malone Freight Lines, Inc., Intervening Defendant. AKERS MOTOR LINES, INC., et al., Plaintiffs, v. UNITED STATES of America and Interstate Commerce Commission, Defendants, and Malone Freight Lines, Inc., Intervening Defendant.

352 F. Supp. 606

AKERS MOTOR LINES, INC., et al., Plaintiffs, and McLean Trucking Company, Intervening Plaintiff, v. UNITED STATES of America and Interstate Commerce Commission, Defendants, and Malone Freight Lines, Inc., Intervening Defendant.

AKERS MOTOR LINES, INC., et al., Plaintiffs, v. UNITED STATES of America and Interstate Commerce Commission, Defendants, and Malone Freight Lines, Inc., Intervening Defendant.

Civ. Nos. 2927, C-C-72-21.

United States District Court, W. D. North Carolina, Charlotte Division.

Submitted October 13, 1972.

Decided January 2, 1973.

Charles Ephraim and J. Raymond Clark, Ephraim & Clark, Washington, D. C., Donald E. Cross and Thomas M. Knebel, Rea, Cross & Knebel, Washington, D. C., Charles T. Myers and George C. Collie, Myers & Collie, Charlotte, N. C., and Francis W. McInerny, MacDonald & McInerny, Washington, D. C., for plaintiffs.

Thomas E. Kauper, Asst. Atty. Gen., John H. D. Wigger, Atty., U. S. Department of Justice, Washington, D. C., and Keith S. Snyder, U. S. Atty., Charlotte, N. C., for United States of America, defendant.

Fritz R. Kahn, General Counsel, and Hanford O'Hara, Atty., Interstate Commerce Commission, Washington, D. C., for Interstate Commerce Commission.

Francis O. Clarkson, Jr., Craighill, Rendleman & Clarkson, Charlotte, N. C., Maurice F. Bishop, Bishop & Carlton, Birmingham, Ala., and Harold P. Boss, Rhodes, Simms & Boss, Washington, D. C., for Malone Freight Lines, Inc., intervening defendant.

Before HAYNSWORTH, Circuit Judge, JONES, Chief District Judge, and McMILLAN, District Judge.

McMILLAN, District Judge:

Plaintiffs in these suits, competing truckers, request the court to annul and set aside orders of the Interstate Commerce Commission (113 MCC 442, June 10, 1971) granting a certificate of public convenience and necessity for irregular-route authority to Malone Freight Lines, Inc., of Birmingham, Alabama, to haul general commodities (with customary exceptions) on a through-route or "cross-haul" basis, through a "gateway" at Elkin and Statesville, North Carolina, between points in North Carolina and points in an "eleven-state area." The eleven-state area includes East Tennessee, the southern two-thirds of New York state, the District of Columbia, and the states of Ohio, Pennsylvania, New Jersey, Delaware, Maryland, Virginia, West Virginia, South Carolina and Georgia. Malone is already serving most of these areas, under claims of right based on existing certificates, and has been doing so since 1950.

The cases were heard together before a three-judge court in Charlotte.

THE HISTORY OF THE DISPUTED ROUTES

In 1942, G & M Motor Transfer Company, Inc., of Statesville, North Carolina, was awarded authority under Certificate No. MC 73673 to transport general commodities by motor vehicle over irregular routes as follows:

General commodities, except those of unusual value, and except dangerous explosives, commodities in bulk, and those requiring special equipment, over irregular routes.

From Elkin and Statesville, N. C., to points and places in the "11 State Area".

From the above-described destination points i. e., the "11 State Area" to points and places in North Carolina.

As originally phrased, G & M's certificate was held by the Interstate Commerce Commission to be a single grant of radial authority rather than two separate grants; therefore, "cross-hauling" or "tacking" between points covered by this single grant of authority, even through a point common to both routes, was not allowed. G & M could not provide "through service" or "through routes," even via Elkin or Statesville, between the various points in its territory. In 1945 this court so held (Interstate Commerce Commission v. G & M, Inc., 64 F.Supp. 302 (W.D.N.C.1945)).

Malone Freight Lines, Inc., bought G & M in 1947 with knowledge of these restrictions on the franchise.

On January 31, 1950, a revised certificate, No. MC 75840, was issued to Malone authorizing irregular-route service as follows:

Irregular Routes:

* * * * * *

General commodities, except those of unusual value, and except dangerous explosives, commodities in bulk, and those requiring special equipment.

From Elkin and Statesville, N. C., to points and places in the "11 State Area".

From the above-described destination points i. e., the "11 State Area" to points and places in North Carolina.

* * * * * *

Carrier may combine two or more of the above-described irregular-route authorities provided the authorities have a point common to both to which the carrier may transport a given commodity under one authority and from which it may transport the same commodity under the other, and establish through service under such combination provided in each instance the commodity is transported through the common gateway point, and provided further that this certificate does not contain any restriction or other indication that through service shall not be conducted. (Emphasis added.)

On the face of it, this revised certificate is obviously susceptible of the interpretation that tacking or cross-hauling is authorized.

However, in March of 1950 the Interstate Commerce Commission issued a "corrected certificate" which in terms purported to eliminate the tacking or cross-hauling authority.

In various pieces of litigation before the Interstate Commerce Commission and the courts, the March, 1950 restriction was contested. These contests resulted in:

1) Reissuance on March 10, 1959, of the rights, with a continuation of the March, 1950 restriction;

2) A June, 1959, order vacating the March 10, 1959 certificate;

3) A September 7, 1960 order of the Commission voiding the March, 1950 restriction as having been issued in violation of Malone's rights under the Administrative Procedure Act as interpreted in Watson Bros. Transp. Co. v. United States, 132 F.Supp. 905 (D.Neb.), aff'd. per curiam 350 U.S. 927 76 S.Ct. 302, 100 L.Ed. 810 (1955) and holding that the March 1950 restriction was "void ab initio."

4) An examiner's decision that tacking was not permitted but that Malone was not wilfully violating the law and was operating under a reasonable claim of right.

5) A decision by the Commission reversing the examiner, on grounds that the certificate clearly permitted tacking, Malone Freight Lines, Inc. Investigation, 102 M.C.C. 163 (1966).

6) A ruling by a three-judge court of this district Akers Motor Lines, Inc. v. United States, 286 F.Supp. 213 (W.D.N.C.1968) that the January 30, 1950 certificate was ambiguous under the circumstances and should be reconsidered by the Commission in light of the entire history of the application rather than just being decided on its own face, and that the Commission should consider whether the certificate had been an illegal enlargement of Malone's authority.

7) The Commission's current order, 113 M.C.C. 442 (June 10, 1971), now before this court, which (twenty-one years after the fact!) concludes that the January, 1950 certificate was a single grant of authority; that therefore it did not authorize tacking, but that Malone's twenty-one years of operation under it since 1950 had been "in good faith under a color of right"; that no cease and desist order should issue; and that public convenience and necessity require that through-route authority be extended in the eleven-state area to Malone.

8) The institution of the present actions challenging the Commission's order.

During all of these proceedings before the Interstate Commerce Commission and the courts, Malone has steadfastly maintained that it had rights to provide through-route service under the January 31, 1950 certificate; and it has in fact provided such through service, apparently throughout the entire period since 1950.

THE LAW THAT APPLIES

Chapter 49, Section 307(a), of the United States Code provides:

Subject to section 310, a certificate shall be issued to any qualified applicant therefor, authorizing the whole or any part of the operations covered by the application, if it is found that the applicant is fit, willing, and able properly to perform the service proposed and to conform to the provisions of this chapter and the requirements, rules, and regulations of the Commission thereunder, and that the proposed service, to the extent to be authorized by the certificate, is or will be required by the present or future public convenience and necessity; otherwise such application shall be denied: * * * (Emphasis added.)

The question before the court is whether there is substantial evidence to support the finding of the Commission that the extension of Malone's authority "is or will be required by the present or future public convenience and necessity * * *."

As matters of general principle, the decision of public convenience and necessity is one for the Commission, Interstate Commerce Commission v. Parker, 326 U.S. 60, 65, 65 S.Ct. 1490, 89 L.Ed. 2051 (1945); despite the heat of contest among interested carriers the question is not private to the competing carriers but is public in nature, Carolina Freight Carriers Corp. v. United States, 297 F.Supp. 848, 852 (W.D.N.C.1969); existing service need not be found inadequate, United States v. Dixie Highway Express, Inc., 389 U.S. 409, 88 S.Ct. 539, 19 L.Ed.2d 639 (1967), and the Commission's decision in one case need not be perfectly consistent with decisions in other cases, Virginian Railway v. United States, 272 U.S. 658, 47 S.Ct. 222, 71 L. Ed. 463 (1926).

If the evidence will support the Commission's finding, it is for the Commission rather than this court to make the finding.

The court has reviewed the evidence. It shows that under a good faith claim and belief that it was authorized to provide through service, Malone did provide through service using the Elkin-Statesville gateway throughout most of the eleven-state area beginning in 1950. For the year beginning in August 1967 this traffic under one view of the evidence totaled 65,180,520 pounds. Some forty-nine shippers, including...