Bell Lines, Inc. v. United States, Civ. A. No. 3759.

• Decision Date: 19 September 1969
• Docket Number: Civ. A. No. 3759.
• Court: U.S. District Court — Southern District of West Virginia
• Parties: BELL LINES, INC., a corporation, Roadway Express, Inc., a corporation, McLean Trucking Company, a corporation, Smith's Transfer Corporation of Staunton, Virginia, a corporation, and Huber & Huber Motor Express, Inc., Plaintiffs, v. UNITED STATES of America and Interstate Commerce Commission, Defendants, and Transamerican Freight Lines, Inc., Intervening Defendant.

306 F. Supp. 209

BELL LINES, INC., a corporation, Roadway Express, Inc., a corporation, McLean Trucking Company, a corporation, Smith's Transfer Corporation of Staunton, Virginia, a corporation, and Huber & Huber Motor Express, Inc., Plaintiffs, v. UNITED STATES of America and Interstate Commerce Commission, Defendants, and Transamerican Freight Lines, Inc., Intervening Defendant.

Civ. A. No. 3759.

United States District Court S. D. West Virginia, Charleston Division.

September 19, 1969.

Edward G. Villalon, McInnis, Wilson, Munson & Woods, Washington, D. C., Frank J. Kerwin, Jr., Eames, Petrillo, Wilcox & Nelson, Detroit, Mich., Francis W. McInerny, Macdonald & McInerny, Washington, D. C., William T. Brotherton, Jr., Amos & Brotherton, Charleston, W. Va., William O. Turney and Robert S. Burk, Turney & Turney, Washington, D. C., Frank Hall, Alan E. Serby, Atlanta, Ga., for plaintiffs.

W. Warren Upton, Asst. U. S. Atty., Charleston, W. Va., and Nahum Litt, Atty., I. C. C., Washington, D. C., for defendants.

William F. Wunschel, Steptoe & Johnson, Charleston, W. Va., and Alvis A. Layne, Washington, D. C., for intervening defendant.

Before BOREMAN, Circuit Judge, and FIELD and MAXWELL, District Judges.

MEMORANDUM

PER CURIAM.

In this action the original complainants, five interstate public service motor carriers, seek to enjoin, set aside and annul an order of the Interstate Commerce Commission granting to Transamerican Freight Lines, Inc., also an interstate public service motor carrier, temporary authority to substantially expand its motor carrier services in eastern United States. The United States of America and the Interstate Commerce Commission are party defendants and Transamerican Freight Lines, Inc., is an intervening defendant. Fifteen other interstate public service motor carriers subsequently intervened as plaintiffs. All of these carriers have authority from the Commission to render interstate motor carrier services.

In June, 1967, Transamerican applied to the Commission for temporary authority, pursuant to provisions of 49 U. S.C.A. Section 310a, to transport general commodities over various routes between points established in its existing Commission authority and points in North Carolina, South Carolina and Georgia. Notice of the application was published in the Federal Register and more than forty motor carriers registered their written protests with the Commission. By order of the Commission's Temporary Authorities Board, dated July 19, 1967, Transamerican's temporary authority was denied on the finding that the application did not establish an immediate and urgent need for the expanded services. Transamerican petitioned for reconsideration on August 10, 1967, but was again denied by the September 27, 1967, order of the Commission's Division 1, acting as an Appellate Division.

Transamerican, on October 30, 1967, filed with the Commission a "Petition for Receipt of Additional Evidence and for Reconsideration of the Order of Division 1." By order of December 5, 1967, the Commission's Division 1, acting as an Appellate Division, vacated and set aside its September 27, 1967, order, found immediate and urgent need for the motor carrier services sought to be rendered by Transamerican and that there was no carrier service available capable of meeting such need, and granted Transamerican the requested temporary authority, detailed as to areas to be served, conditioned upon compliance with Commission requirements generally applicable to motor carriers. This order was served December 11, 1967. On December 14 plaintiffs filed a petition requesting a stay of the effective date of the order. On December 15 plaintiffs filed their complaint in this Court and on that date the Court, after hearing, issued a temporary restraining order for maintenance of the status quo until a hearing by a court of three judges on December 19 on plaintiffs' request for an injunction. Also on December 15 the Commission ordered a stay of the temporary authority grant until December 31, 1967. On December 19 the proceedings were continued until the further order of the Court. Many of the protesting motor carriers filed petitions with the Commission for reconsideration of the December 5 order and Transamerican filed a reply and a supplemental reply thereto. The Commission, on December 29, denied the relief sought in plaintiffs' petitions for reconsideration and extended the stay of the temporary authority grant until January 5, 1968. By letter of January 3 the Commission rejected a petition by plaintiffs seeking announcement that these proceedings involved a matter of general transportation importance. On January 5 the Court issued a temporary restraining order for maintenance of the status quo until the convening of the three-judge court on January 19. Also, on January 5 plaintiffs filed a supplemental complaint. The Joint Answer of the United States of America and of the Interstate Commerce Commission to plaintiffs' Complaint and Supplemental Complaint was filed January 15. On January 19, 1968, after a plenary hearing, this Court of three judges ordered that the temporary restraining order entered on January 5 remain in effect until the further order of the Court. This chronology of proceedings and developments will contribute to an understanding of the pertinent facts and principles of law that must be considered in resolving the controversy before the Court.

Positions of Motor Carriers

Transamerican Freight Lines, Inc., with operating headquarters in Detroit, by application dated June 2, 1967, sought temporary authority from the Interstate Commerce Commission to transport general commodities, with some exceptions, between Transamerican's existing East-West motor carrier routes, stretching from Massachusetts, Connecticut and New York through Illinois, Indiana, Michigan, Ohio and Pennsylvania to Iowa, Nebraska and Oklahoma, and areas to the south over new routes extending into North Carolina, South Carolina and Georgia. The application was accompanied by detailed listing of points to be served together with maps showing proposed new carrier service routes. Later, on August 5, 1967, Transamerican filed its application with the Commission for permanent motor carrier authority, a matter to be noted but not here involved.

The temporary authority areas proposed to be served by Transamerican are in the territory presently served by one or more of the original plaintiffs in this action or by one or more of the later intervening plaintiffs. Bell Lines, Inc., with operating headquarters at Charleston, West Virginia; Roadway Express, Inc., with headquarters in Akron, Ohio; McLean Trucking Company, with headquarters in Winston Salem, North Carolina; Smith's Transfer Corporation of Staunton, Virginia; and Huber & Huber Motor Express, Inc., with headquarters in Louisville, Kentucky, the five original motor carrier plaintiffs in this action along with other motor carriers in the areas proposed to be served by Transamerican's temporary authority, protested the Commission's grant of authority. Smith's Transfer Corporation is not noted as an original protestant in the proceedings. The Commission, acting by its sub-agencies, initially denied the grant but on reconsideration granted the temporary authority in its order of December 5, 1967, affirmed by its later order on December 29.

Transamerican, the applicant, supported its application to the Commission with numerous statements indicating the need for the carrier services sought and asserting otherwise in various expressions that existing carrier services were inadequate, were unavailable or were declining to serve. These statements in the form of letters accompanied and supplemented the application in accordance with Rules of the Commission relating to information required of the applying motor carrier. 49 C.F.R., Section 240.2 (now 49 C.F.R., Section 1131.2).

Plaintiffs ask the Court to declare the orders of the Commission granting the temporary authority to Transamerican to be null and void. In their brief, pages 47-48, they ask in the alternative that the Court remand the proceedings to the Commission with instructions to the Commission to reveal the authority and bases for its action and to make statements justifying and explaining its action in granting the temporary authority.

The intervening defendant, Transamerican, at page 2 of its memorandum, expresses its conviction that plaintiffs are attempting to have the "Court overrule a judgment that the statute explicitly authorizes the Commission to make." Further, Transamerican, at page 10 of its memorandum, affirms that the statements or letters supporting its application "recite instances of lack of suitable equipment, refusal to pick up shipments, excessive delays in transit, failures of multiple-line service, and tariff and traffic restrictions prohibiting use of any service."

Jurisdiction of the Court

Plaintiffs filed their complaint in this Court and asked that a court of three judges be convened pursuant to provisions of 28 U.S.C.A. Section 2284. Jurisdiction is not seriously in issue. The several aspects thereof arise under provisions of 5 U.S.C.A. Sections 701-706, 28 U.S.C.A. Sections 1336, 1398, 2284, 2321-2325, and 49 U.S.C.A. Sections 305(g) and (h).

Section 2325 provides:

"An interlocutory or permanent injunction restraining the enforcement, operation or execution, in whole or in part, of any order of the Interstate Commerce Commission shall not be granted unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title."

The language of 28 U.S.C.A. Section 2325, above quoted, does not purport to define the extent and scope of judicial review, but statutes in pari materia are to be construed together. The statute under which the temporary authority to carriers is granted, 49 U.S.C.A. Section 310a, provides that "the Commission may, in its...