Andrew G. Nelson, Inc. v. Jessup, IP-55-C-26.
| Decision Date | 22 June 1955 |
| Docket Number | No. IP-55-C-26.,IP-55-C-26. |
| Citation | 134 F. Supp. 221 |
| Parties | ANDREW G. NELSON, Inc., a Corporation, Plaintiff, v. Frank JESSUP, as Superintendent of State Police of the State of Indiana, John Webster, as a Sergeant of the State Police of the State of Indiana and as Chief Enforcement Officer of the Inspection and Enforcement Department for the enforcement of the Motor Vehicle Act of the State of Indiana, The Public Service Commission of Indiana and Warren Buchanan, Wendell Tennis and M. Elliott Belshaw, as members of the Public Service Commission of Indiana, Defendants. |
| Court | U.S. District Court — Southern District of Indiana |
Gilliom & Gilliom, by Elbert R. Gilliom, Indianapolis, Ind., for plaintiff.
Edward K. Steers, Atty. Gen. of Ind., for defendant.
Pursuant to the three-judge Memorandum Entry heretofore made in this cause 134 F.Supp. 218, this matter came on for adjudication by the District Judge to whom the case was originally assigned, and the Court having considered the evidence together with the briefs and oral arguments of counsel for the parties, now finds the facts specifically to be as follows:
1. The plaintiff is a corporation which was organized in 1951, and exists, under the laws of the State of Illinois, and has and maintains its principal office in the City of Chicago of said state. The defendants are citizens of the State of Indiana, residing officially in Marion County, Indiana. Defendant Frank Jessup is the duly appointed and acting superintendent of the State Police of Indiana. Defendant John Webster is a member of said State Police, with the rank of sergeant, and is also the duly appointed and acting chief enforcement officer of the inspection and enforcement department of the Public Service Commission of Indiana, which department is charged by law with the duty and responsibility of enforcing compliance with the provisions of the Motor Vehicle Act of Indiana, Burns' Ann.St. § 47-1211 et seq. The defendant Public Service Commission of Indiana is the administrative body empowered to administer said Act. The defendants Warren Buchanan, Wendell Tennis, and M. Elliott Belshaw are the duly appointed and acting members of said Public Service Commission of Indiana.
2. The value of the matter in controversy is more than three thousand dollars ($3,000.00), exclusive of interest and costs.
3. The plaintiff is the owner and holder of a federal motor contract carrier permit numbered MC 1194, which was issued to it by the Interstate Commerce Commission on June 18, 1951, under the provisions of Part II of the Interstate Commerce Act of the United States, 49 U.S.C.A. § 301 et seq. The following is a true and complete copy of said permit:
* "This permit embraces the operating rights in Permit No. MC 1194, issued March 13, 1942, acquired by carrier herein pursuant to MC-FC 53070."
4. Said permit has never been in any manner changed, suspended, or revoked by the Interstate Commerce Commission, and the plaintiff is operating thereunder in the ten states therein specified.
5. The legend in said permit reading "This permit embraces the operating rights in Permit No. MC 1194, issued March 13, 1942, acquired by carrier pursuant to MC-FC 53070" refers to a permit issued by the Interstate Commerce Commission on March 13, 1942, to plaintiff's predecessor in interest, Andrew G. Nelson, doing business under the name and style of "Nelson Warehouse & Express Co." Said earlier permit was issued pursuant to an order therefor of February 14, 1938, by the Interstate Commerce Commission under the provisions of Part II of the Interstate Commerce Act known as the "Grandfather" provision. Said order and said earlier permit contained the same description of the classes of property to be transported as is contained in plaintiff's permit as set out in paragraph 3 of these findings.
6. When the plaintiff received its said federal permit of June 18, 1951, it filed a copy thereof with the Public Service Commission of Indiana and received from said state Commission a permit, dated August 16, 1951, and titled "Contract Carrier Permit." Said state permit by its terms authorizes the operation by plaintiff "of motor vehicles as a contract carrier of property Interstate" as authorized in an attached copy of an order of said state Commission of July 19, 1951. In said order it was ordered that a permit be issued to the plaintiff herein "to operate motor vehicles as a contract carrier of property, interstate, as follows, to-wit:
Said state permit has never been changed, suspended, or revoked by the Public Service Commission of Indiana.
7. On and before July 1, 1935, also when said order of February 14, 1938, was issued by the Interstate Commerce Commission, plaintiff's said predecessor in interest was engaged in the interstate transportation by motor vehicle as a contract carrier of property of all classes which are described in said order and in said federal permits. He did on said dates and before the Federal Motor Carrier Act of 1935 was enacted transport shipments of numerous commodities of the kinds handled or used by drug stores as stock in trade, not only when the same were destined to or for drug stores, but also when such shipments were destined to or for others than drug store operators. He continued to do so as such individual contract carrier after he received said federal permit of March 13, 1942, up until the time when the plaintiff corporation acquired his said federal permit and his transportation business. During said long period of time plaintiff's said predecessor in interest built up, as a substantial part of the whole transportation business which the plaintiff corporation acquired from him, a valuable business in transporting shipments of commodities of said class to or for others than drug stores to the point where he was receiving a gross revenue of more than $100,000 a year therefrom at the time when the plaintiff corporation succeeded him.
8. Upon acquiring said transportation business and said federal permit in 1951, the plaintiff corporation continued and increased said phase of said transportation business. Plaintiff now derives annually more than $400,000 of operating revenue from said phase of its transportation business. On the average work day the plaintiff transports not less than twenty (20) pay loads of property over Indiana highways in interstate commerce from which it receives operating revenues of not less than $100 per load. Plaintiff's annual operating revenue from such interstate transportation over Indiana highways with said questioned phase of its transportation business is approximately $300,000. Copies of all contracts which plaintiff has had, or now has, with shippers are filed by it with the Interstate Commerce Commission. Shipping records and papers kept by plaintiff at its office disclose the items shipped and the consignors and the consignees. Inspectors for the Interstate Commerce Commission have since plaintiff acquired said business in 1951 periodically inspected plaintiff's contracts, records, papers and business. The plaintiff has at all times kept on file with the Interstate Commerce Commission schedules of rates providing rates for all commodities which it transports.
9. On January 21, 1954, Division 5 of the Interstate Commerce Commission on its own motion instituted a proceeding before it, with this plaintiff as the respondent therein, to determine whether the description of "stock in trade of drug stores" contained in plaintiff's said federal permit authorized the plaintiff to transport shipments of commodities of that class to or for others than drug stores. Said proceeding is entitled "MC-C-1610, Andrew G. Nelson, Inc. — Investigation of operation." The Bureau of Inquiry and Compliance of the Interstate Commerce Commission appeared in said proceeding at a hearing conducted by a hearing examiner of the Commission. Said hearing examiner filed a report and recommended order with the Commission in September, 1954, wherein he adopted an interpretation of said permit as contended for by said Bureau to the effect...
To continue reading
Request your trial
-
Great Northern Railway Company v. Thompson
...causes the formal arrest and prosecution of plaintiff's drivers engaged in the trucking operation. In Andrew G. Nelson, Inc. v. Jessup et al., D.C. 1955, 134 F.Supp. 221, at page 229, the court "While the plaintiff, upon hearing, failed to establish that it has sustained extensive damages n......
-
Kingsley Intern, Pictures Corp. v. Blanc
...statement is equally applicable to the situation of the present plaintiff in respect of his invaded property rights. In Nelson, Inc. v. Jessup, D.C., 134 F.Supp. 221, 229, an interstate motor carrier sought to enjoin State officers from arresting the carrier's drivers on charges that the go......