Auclair v. United States

• Decision Date: 10 June 1947
• Docket Number: Civ. No. 2247.
• Citation: 72 F. Supp. 160
• Parties: AUCLAIR et al. v. UNITED STATES et al.
• Court: U.S. District Court — District of Massachusetts

72 F. Supp. 160

AUCLAIR et al. v. UNITED STATES et al.

Civ. No. 2247.

District Court, D. Massachusetts.

June 10, 1947.

Powers & Hall and Leon F. Sargent, all of Boston, Mass., and John H. Sanders and Robert W. Upton, both of Concord, N. H.. for plaintiff.

Richard W. Hall, Robert J. Fletcher and Parker Brownell, all of Boston, Mass., for defendant Boston & Maine Transp. Co.

William T. McCarthy, U. S. Atty. of Boston, Mass., and Edward Dumbauld, Sp. Asst. to Atty. Gen., for defendant United States.

E. M. Reidy, Asst. Chief Counsel, and Daniel W. Knowlton, Chief Counsel, both of Washington, D. C., for Interstate Commerce Commission, intervenor.

Before MAHONEY, Circuit Judge, and SWEENEY and HEALEY, District Judges.

HEALEY, District Judge.

This is an action brought under 28 U.S. C.A. § 41 (28) to vacate, set aside and annul an order of the Interstate Commerce Commission granting certificates of public convenience and necessity to the Boston & Maine Transportation Company (hereinafter referred to as the Transportation Company) to operate as a common carrier by motor vehicle of general commodities over certain public highways in Maine, New Hampshire, Vermont and Massachusetts.

Answers were filed by the Transportation Company, the United States, and the Interstate Commerce Commission as an intervening defendant.

The plaintiffs, with the exception of the New Hampshire Truck Owners' Association, are common carriers by motor vehicle over public highways in Maine, New Hampshire, Vermont and Massachusetts, holding certificates of public convenience and necessity granted by the Interstate Commerce Commission. The plaintiff New Hampshire Truck Owners' Association, is a voluntary corporation organized under the laws of the State of New Hampshire and has as members the other plaintiffs and other common and contract carriers by motor vehicle.

The Transportation Company, on or about February 11, 1936, filed with the Interstate Commerce Commission two applications (MC-75871-2) under the "grandfather clause" of the Motor Carrier Act of 1935, 49 U.S.C.A. § 306(a), for certificates of public convenience and necessity to continue alleged operations as a common carrier by motor vehicle over certain routes and highways in Maine, New Hampshire, Vermont and Massachusetts. This application was duly referred to Paul R. Naefe, Examiner. He filed a report as of May 19, 1938 recommending that the applications be denied. On July 8, 1938, the Transportation Company and the Boston & Maine Railroad filed exceptions to the said report of the Examiner.

The applications in due course, came on for hearing before Division 5 of the Interstate Commerce Commission on October 26, 1938. On October 10, 1941, Division 5 filed its report, Eastman, Chairman, dissenting, denying the applications. Upon petition by the Transportation Company, the proceedings were reopened for reargument and reconsideration, and the order entered by Division 5 was vacated and set aside.

The applications came on for rehearing before the entire Commission on February 11, 1942. On August 10, 1942, the Commission, Commissioners Lee and Rogers dissenting, filed its report granting the Transportation Company certificates of public convenience and necessity to operate over certain routes and highways, as set forth in appendix A of said report and order, effective September 30, 1942. (34 MCC 599).

The plaintiffs contend that the Commission erred in its order and that said order is based upon erroneous findings, rulings and conclusions. They pray "that said findings, rulings, conclusions and orders of the Interstate Commerce Commission be vacated, set aside and annulled; that it be adjudged and decreed that said Boston & Maine Transportation Company was not a common carrier by motor vehicle by virtue of the operations * * *" which were the subject of the Commission's orders and "that the said Boston & Maine Transportation Company is not entitled to a certificate of public convenience and necessity by virtue of said operations, and for such other and further relief as may be just."

The United States of America and the Interstate Commerce Commission contend that the plaintiffs are not parties in interest having any standing to maintain this suit;

1. because they are merely asserting rights belonging to the Big Three, Inc., which is not a party to this action; and

2. because the plaintiffs were not parties to the proceedings before the Commission.

While the plaintiffs, other than the New Hampshire Truck Owners' Association, were not parties to the proceedings before the Commission, they are and were competitors of the Transportation Company over the routes in question and are, therefore, parties in interest qualified to bring this action. Alton R. et al. v. United States et al., 315 U.S. 15, 19, 62 S.Ct. 432, 86 L.Ed. 586.

And the fact that they did not appear in the proceedings before the Commission does not affect their rights to maintain this suit. Edward Hines Trustees v. United States, 263 U.S. 143, 147, 44 S.Ct. 72, 68 L.Ed. 216; Interstate Commerce Commission v. Diffenbaugh, 222 U.S. 42, 49, 32 S. Ct. 22, 56 L.Ed. 83; Schenley Distillers Corporation v. United States, D.C., 61 F. Supp. 981.

The order of the Interstate Commerce Commission can be vacated, set aside or annulled only if it is based upon findings of fact which are not supported by substantial evidence or if its rulings and conclusions are found to be arbitrary or capricious or the result of an erroneous interpretation of the law. Chicago, St. P. M. & O. R. Co. v. United States, D.C., 50 F.Supp. 249, 322 U.S. 1, 64 S.Ct. 842, 88 L.Ed. 1093; Gregg Cartage & Storage Co. v. United States, D.C., 42 F.Supp. 266, 316 U.S. 74, 62 S.Ct. 932, 86 L.Ed. 1283; Watson Bros. Trans. Co. v. United States, 50 F.Supp. 762, 768; Moore v. United States, D.C., 41 F.Supp. 786, 791, 316 U.S. 642, 62 S.Ct. 1036, 86 L.Ed. 1128.

In the instant case, we do not have before us all of the evidence which was presented to the Commission and upon which it based its findings of fact.¹ We, therefore, are not in a position to conclude that the Commission's findings of fact are not supported by substantial evidence. Mississippi Valley Barge Line Co. v. United States et al., 292 U.S. 282, 286, 54 S.Ct. 692, 78 L.Ed. 1260; Lubetich v. United States, D.C., 39 F.Supp. 780, 315 U.S. 57, 62 S.Ct. 449, 86 L.Ed. 677.

Thus we are only entitled to consider whether or not the rulings, conclusions and order of the Commission were supported by the findings as made by it. Lubetich v. United States, D.C., 39 F.Supp. 780.

And whether or not those rulings, conclusions and order were the result of an erroneous interpretation of the law.

The Commission's findings of facts pertinent to the applications here in question are as follows:

"Findings of Facts

"The transportation company, a wholly owned subsidiary of the railroad, was incorporated in 1924. It was registered under the code of fair competition for the trucking industry on June 12, 1934. Prior to June 1, 1935, it was authorized by State authorities to engage in intrastate commerce, as a common carrier by motor vehicle, over all the routes in Maine, Vermont, and Massachusetts, and in interstate commerce over all the routes in Maine, Vermont, and Massachusetts as described in appendix A to the prior report with a minor exception in Maine, which authority was received subsequent to June 1, 1935. Prior to June 1, 1935, it was also authorized to operate motor vehicles for the transportation of property as a contract carrier in Massachusetts, and in Maine between certain points and over certain routes. In 1935, as a contract carrier, it also had certain trucks registered in New Hampshire for service between certain points and over certain routes.

"Since 1925, the transporation company has solicited freight from the general public for its own account, holding itself out as a common carrier by motor vehicle of general commodities, with certain exceptions. Year-round service has been provided between the points and over the routes described in appendix A of the prior report. In November, 1934, it issued a freight circular offering direct motor-truck service to and from numerous points in Maine, New Hampshire, Vermont, and Massachusetts. Prior to the enactment of Part II of the Act, it...