Arkansas-Best Freight System, Inc. v. United States, No. FS-72-C-65.

• Court: United States District Courts. 8th Circuit. Western District of Arkansas
• Writing for the Court: Donald E. Cross, of Rea, Cross, Knebel, Washington, D. C., for Johnson
• Citation: 350 F. Supp. 539
• Decision Date: 07 November 1972
• Docket Number: No. FS-72-C-65.
• Parties: ARKANSAS-BEST FREIGHT SYSTEM, INC., an Arkansas corporation, et al., Plaintiffs, v. UNITED STATES of America and Interstate Commerce Commission, Defendants, Red Ball Motor Freight, Inc., et al., Intervenors.

350 F. Supp. 539

ARKANSAS-BEST FREIGHT SYSTEM, INC., an Arkansas corporation, et al., Plaintiffs,
v.
UNITED STATES of America and Interstate Commerce Commission, Defendants,
Red Ball Motor Freight, Inc., et al., Intervenors.

No. FS-72-C-65.

United States District Court, W. D. Arkansas, Fort Smith Division.

November 7, 1972.

350 F. Supp. 540

Harper, Young & Smith, Fort Smith, Ark., Butler, Snow, O'Mara, Stevens & Cannada, Jackson, Miss., Robert E. Joyner, Joyner, Goff & Sims, Memphis, Tenn., Robinson, Felts, Starnes & Nations, Austin, Tex., Reeder, Dysart, Sanders & Taylor, Kansas City, Mo., Christopher, Bailey & Taylor, Fort Worth, Tex., Turney & Turney, Rice, Carpenter & Carraway, Washington, D. C., for plaintiffs.

Donald E. Cross, of Rea, Cross, Knebel, Washington, D. C., for Johnson.

Maurice F. Bishop, of Bishop & Carlton, Birmingham, Ala., for Bowman.

Jerry C. Prestridge, of Clark, Thomas, Harris, Denius & Winters, Austin, Tex., for Red Ball.

Courts Oulahan, of Rhyne & Rhyne, Washington, D. C., for Lorch-Westway.

Robert L. Jones, Jr., of Jones, Gilbreath & Jones, Ft. Smith, Ark., local counsel for Johnson, Bowman & Lorch-Westway.

Fritz R. Kahn, Gen. Counsel, Seymour Glanzer, Washington, D. C., for ICC.

Bethel B. Larey, U. S. Atty., Ft. Smith, Ark., for United States.

OPINION

JOHN E. MILLER, Senior District Judge.

The above named plaintiffs filed their complaint herein October 4, 1972, against the above named defendants, praying this court to temporarily restrain and preliminarily enjoin the Interstate Commerce Commission from issuing Certificates of Public Convenience and Necessity in the implementation of its Orders dated December 30, 1971 (Exhibit 1 to the complaint) served January 24, 1972, and dated September 1, 1972 (Exhibit 5 to the complaint), served September 6, 1972, in its Docket Nos. MC-2229 (Sub-No. 132), Red Ball Motor Freight, Inc. Red Ball; MC-94201 (Sub-No. 56), Bowman Transportation, Inc. Bowman; and MC-106401 (Sub-No. 18), Johnson Motor Lines, Inc. Johnson, all embraced in the consolidated proceeding under Docket No. MC-1124 (Sub-No. 206), Herrin Transportation Company, as set forth in detail in the complaint herein.

The plaintiffs also prayed that the court issue a temporary restraining order to remain in force and effect until the hearing and determination by the full court to prevent the I.C.C. from enforcing its report and orders and to suspend

350 F. Supp. 541

the effectiveness of the said report and orders pending final hearing and determination of this action

Subsequent to the commencement of the action the above named intervenors were permitted to intervene.

On October 10, 1972, Hon. M. C. Matthes, Chief Judge of the U. S. Courts of Appeals for the Eighth Circuit, designated a three-judge court to determine and hear the action.

On October 19, 1972, the court by order set the cause for a hearing on November 1, 1972, at Fort Smith, Ark., on plaintiffs' application for a temporary restraining order.

Prior to the hearing, eminent and experienced counsel for the parties served and submitted briefs in support of their respective contentions.

The questions involved were extensively and thoroughly argued orally, and at the conclusion of the hearing the application was submitted and taken under consideration for determination by the court.

At the hearing and in support of the application for a temporary restraining order, the plaintiffs Arkansas-Best Freight System, Inc. ABF, Yellow Freight System, Inc., Roadway Express, Inc., and Roadway Express, Inc., of Mississippi, Campbell Sixty-Six Express, Inc., Gordons Transports, Inc., ET&WNC Transportation Co., Mercury Motors, Inc. Mercury, Red Line Transfer & Storage Co., Inc., and Mercury Freight Lines, Inc., introduced affidavits duly executed by qualified officers. The intervenors, Red Ball, Bowman and Johnson, introduced affidavits duly executed in opposition to the application.

The court has jurisdiction over the subject matter and parties to entertain the instant action and to grant the relief sought, 28 U.S.C.A. §§ 1336, 1398, 2284, 2321-25. Two of the plaintiffs, namely, ABF and Mercury, maintain their principal offices and places of business within the Western District of Arkansas, Fort Smith Division, and venue is granted by 28 U.S.C.A. § 1398.

Title 28, U.S.C.A. § 2284(3), provides that any case in which an application for injunction is made the district judge to whom the application is made may at any time grant a temporary restraining order to prevent irreparable damage. The full text of the subsection is as follows:

"(3) In any such case in which an application for an interlocutory injunction is made, the district judge to whom the application is made may, at any time, grant a temporary restraining order to prevent irreparable damage. The order, unless previously revoked by the district judge, shall remain in force only until the hearing and determination by the full court. It shall contain a specific finding, based upon evidence submitted to such judge and identified by reference thereto, that specified irreparable damage will result if the order is not granted."

Subsection (5) specifically provides "any one of the three judges of the court may perform all functions, conduct all proceedings except the trial, and enter all orders required or permitted by the rules of civil procedure." Thus, a single district judge has power to issue a temporary restraining order suspending the effectiveness and operation of an order of the I.C.C.

The sole question now before the court is whether or not the evidence and the law entitle the plaintiffs to a temporary restraining order suspending the operation of the I.C.C.'s orders pending a final hearing and determination of this action pursuant to 28 U.S.C.A. § 2284(3). The orders of the I.C.C. are entitled to initial respect and the Commission is presumed to have properly performed its official duties. This presumption supports its action in the absence of clear evidence to the contrary. "* * * however, the order must be supported by substantial evidence and must be made within the statutory limits

350 F. Supp. 542

placed upon the Commission's powers by Congress." Braswell Motor Freight, Inc. v. United States (S.D.Miss.1969) 297 F.Supp. 215, 218

In Baggett Transportation Co. v. Hughes Transportation, Inc. (8 Cir. 1968) 393 F.2d 710, the court at page 714 said:

"First, we make the general observation that the granting of a temporary injunction is addressed to the discretion of the trial court and not that of the appellate court. The merits of the case will not be considered excepting only as their consideration may be necessary to determine whether the trial court `* * * improvidently exercised its judicial discretion.' 7 Moore Federal Practice, § 65.04 2 at 1630-31; Benson Hotel Corp. v. Woods, 8 Cir., 1948, 168 F.2d 694."

In Eastern Air Lines, Inc. v. Civil Aeronautics Board (2 Cir. 1958) 261 F. 2d 830, the court at page 830 said:

"The Court of Appeals for the District of Columbia has recently held in Virginia Petroleum Jobbers Association v. Federal Power Commission, 104 U.S.App.D.C. 106, 259 F.2d 921, that stay of an order of an administrative agency may be granted when the following conditions are met:

"(a) Where the petitioner is likely to prevail on the merits of its appeal;

"(b) Where the petitioner has shown that without a stay it will suffer irreparable injury;

"(c) Where there is no substantial harm to other interested persons; and

"(d) Where the public interest will not be harmed."

In Middlewest Motor Freight Bureau v. United States (8 Cir. 1970) 433 F.2d 212, the court by Judge Gibson at page 241 said:

"The case most clearly setting out these standards for a temporary stay of a Commission order is Virginia Petroleum Jobbers Assn. v. Federal Power Commission, 104 U.S.App.D.C. 106, 259 F.2d 921 (1958):

"`(1) Has the petitioner made a strong showing that it is likely to prevail on the merits of its appeal? * * * (2)

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