Braswell Motor Freight, Inc. v. United States, Civ. A. No. 2314.

• Court: United States District Courts. 5th Circuit. Southern District of Mississippi
• Writing for the Court: NIXON
• Citation: 297 F. Supp. 215
• Decision Date: 28 February 1969
• Docket Number: Civ. A. No. 2314.
• Parties: BRASWELL MOTOR FREIGHT, INC. and West Brothers, Inc., Plaintiffs, v. UNITED STATES of America and the Interstate Commerce Commission, Defendants, Bell Transfer Company, Inc. a corporation, Intervening Defendant.

297 F. Supp. 215

BRASWELL MOTOR FREIGHT, INC. and West Brothers, Inc., Plaintiffs,
v.
UNITED STATES of America and the Interstate Commerce Commission, Defendants,
Bell Transfer Company, Inc. a corporation, Intervening Defendant.

Civ. A. No. 2314.

United States District Court S. D. Mississippi, Hattiesburg Division.

February 28, 1969.

297 F. Supp. 216

J. Wesley Watkins, III, Douglas C. Wynn, Greenville, Miss., for plaintiffs.

Joseph E. Brown, Asst. U. S. Atty., Jackson, Miss., for defendant, United States of America.

Robert Ginnane, General Counsel, Stephen Kazan, Attorney, Interstate Commerce Commission, Washington,

297 F. Supp. 217

D. C., for defendant, Interstate Commerce Commission

Ben H. Stone, Eaton, Cottrell, Galloway & Lang, Gulfport, Miss., John P. Carlton, Bishop & Carlton, Birmingham, Ala., for intervening defendant, Bell Transfer Co., Inc.

NIXON, District Judge.

This action is brought by plaintiffs by Complaint filed against the defendants, United States of America and The Interstate Commerce Commission and is an action filed pursuant to and under the provisions of 28 U.S.C. §§ 1336, 1398, 2284, 2320-2325. Plaintiffs seek the suspension, annulment and setting aside of an order that defendant, Interstate Commerce Commission, entered on November 22, 1968 and served December 3, 1968 in Docket No. MC-97310 (Sub-No. 5). By the above order, the Commission, Division 1, acting as an Appellate Division, denied plaintiffs' petitions for reconsideration and further hearing, and thus affirmed the prior Decision and Order of the Commission, Review Board No. 4, entered July 12, 1968 and served July 19, 1968. In the above Decision and Order, the Commission affirmed and adopted the Report and Order recommended by the Commission's hearing examiner on February 13, 1968, and held that the Bell Transfer Company, Inc., the applicant therein, and intervenor herein, had shown and proved that the public convenience and necessity authorized and warranted the granting of his application for a Certificate of Public Convenience and Necessity.

In their Complaint, plaintiffs seek the designation of a Three Judge Court to hear and determine this action pursuant to 28 U.S.C. sec. 2284(1), which court has now been designated. By motion contained therein, plaintiffs request a temporary restraining order to prevent issuance of Bell's Certificate pending determination of this matter by the designated Three Judge Court in order to prevent irreparable injury and damage to plaintiffs, in accordance with 28 U.S.C. sec. 2324.

Although the Complaint and Motion for a Temporary Restraining Order was filed with this Court within thirty days of the service of said Final Order, due to the press of other matters, counsel for plaintiffs and for the defendant, Interstate Commerce Commission have agreed that the Commission will refrain from issuing the Certificate to Bell until this Court decides whether or not to grant the Motion for a Temporary Restraining Order.

The defendant, Interstate Commerce Commission, has found and decided that public convenience and necessity require operation by Bell Transfer Co., Inc., an Alabama Corporation, as a motor common carrier of general commodities in interstate or foreign commerce over a regular route between Demopolis, Alabama and Vicksburg, Mississippi, and that portion of the commercial zone of Vicksburg, Mississippi lying solely within the State of Mississippi,¹ with service to all intermediate points. In addition to the authority sought by Bell and granted by the Commission to operate between the Bell territory in Alabama and points in Mississippi on U. S. Highway 80, Bell sought the Certificate of Public. Convenience and Necessity under Section 207 of the Interstate Commerce Act, 49 U.S.C. sec. 307, extensive with a Certificate of Registration held by it under Section 206(a) (6) 49 U.S.C.A. Section 306a 6 of the Act. Prior to its extension of its authority into Mississippi the entire Bell operation has been conducted within the State of Alabama, and therefore it was entitled to a Certificate of Registration under Section 206(a) (6), but its entitlement

297 F. Supp. 218

to such a Certificate will lapse simultaneously with issuance to it of authority to conduct operations in the State of Mississippi. Thus, Bell established by proof of past operations a need for the continuance of its service under Section 206(a) (6) on a certificated basis

The application of Bell was protested before the Commission by the plaintiffs Braswell and West as well as by Deaton, Inc. and Red Ball Motor Freight, Inc.; however, while this matter was being heard before the Commission, the protest of Red Ball was withdrawn and apparently Deaton has abandoned its opposition to the granting of this Certificate in question. The plaintiff Braswell Motor Freight, Inc., offered no evidence whatsoever in the hearing before this Court, but the Court will consider that Braswell is still a plaintiff seeking the relief requested in the Complaint based upon the record made before the defendant Commission. The plaintiff West Brothers, Inc. did present oral and documentary evidence in this hearing and this will be discussed below. The Court notes, however, that although plaintiffs now ask the Court to restrain the Commission from issuing the Certificate in its entirety to Bell, plaintiffs, before the Commission admitted (1) that there is a public need for the new service of Bell as far west as U. S. Highway 80; and (2) that the portion of the application dealing with Bell's former Certificate of Registration under Section 206(a) (6) of the Act should be granted.²

There is now before the Court solely the question of whether or not the evidence and the law entitle the...