Brooks Transp. Co. v. United States

• Decision Date: 09 October 1950
• Docket Number: Civ. A. No. 1149.
• Court: U.S. District Court — Eastern District of Virginia
• Parties: BROOKS TRANSP. CO., Inc., et al. v. UNITED STATES et al.

93 F. Supp. 517

BROOKS TRANSP. CO., Inc., et al. v. UNITED STATES et al.

Civ. A. No. 1149.

United States District Court E. D. Virginia.

Argued September 22, 1950.

Decided October 9, 1950.

Jack Garrett Scott, Washington, D. C., John T. Grigsby, Richmond, Va., Francis E. Barrett, Boston, Mass., Walter L. Baumgartner, Washington, D. C., for plaintiff.

Jack Garrett Scott, Washington, D. C., John T. Grigsby, Richmond, Va., Robert J. McBride, Washington, D. C., Albert B. Rosenbaum, Washington, D. C., for intervener.

Herbert A. Bergson, Asst. Atty. Gen., James E. Kilday, Lambert S. O'Malley, Sp. Assts. to Atty. Gen., George R. Humrickhouse, U. S. Atty., and Richard E. Lewis, Asst. U. S. Atty., Richmond, Va., John Ford Beacher, Washington, D. C., for United States.

Tucker, Mays, Cabell & Moore, Richmond, Va., Fate J. Beal, Lenoir, N. C., for Lenoir Chair Co.

Tucker, Mays, Cabell & Moore, Richmond, Va., Walter, Burchmore & Belnap, Chicago, Ill., for National Industrial Traffic League, Intervener.

Tucker, Mays, Cabell & Moore, Richmond, Va., Chadbourne, Wallace, Parke & Whiteside, New York City, for Schenley Industries, Inc.

Tucker, Mays, Cabell & Moore, Richmond, Va., Dow, Lohnes & Albertson, Washington, D. C., for Private Carrier Conference of American Trucking Ass'n, Inc.

Tucker, Mays, Cabell & Moore, Richmond, Va., William A. Quinlan, Washington, D. C., for National Council of Private Motor Truck Owners, Inc.

Daniel W. Knowlton, Chief Counsel, Edward M. Reidy, Associate Chief Counsel, and Samuel R. Howell, all of Washington, D. C., for Interstate Commerce Commission.

Before DOBIE, Circuit Judge, HUTCHESON, Chief Judge, and BRYAN, District Judge.

DOBIE, Circuit Judge.

This is a suit to enjoin, vacate, and set aside orders of the Interstate Commerce Commission, dated May 27, 1948, and June 21, 1948. The order of May 27, 1948, was entered in the Commission proceeding entitled Lenoir Chair Company Contract Carrier Application, Docket No. MC 96541, and the order of June 21, 1948, was entered in Schenley Distillers Corporation Contract Carrier Application, Docket No. MC-107079.

By application filed with the Commission on March 25, 1946, Lenoir Chair Company of Lenoir, North Carolina (hereinafter referred to an Lenoir), sought a permit authorizing continuance of operation as a contract carrier by motor vehicle, over irregular routes, in interstate or foreign commerce for the transportation of furniture of its own manufacture and of materials, supplies, and machinery used, or to be used, in the manufacture of furniture, throughout a territory embracing all points in fifteen States and the District of Columbia. The application alleged that the motor vehicle operations involved were not those of a common or contract carrier but constituted private carriage only, and in order to secure a determination of this question by the Commission, it requested that the application be dismissed for want of jurisdiction, otherwise that it be granted a permit to engage in the operations described in the application. This is a correct method of securing a determination of its status. Schenley Distillers Corp. v. United States, 326 U.S. 432, 66 S. Ct. 247, 90 L.Ed. 181.

The application was assigned for hearing before an examiner of the Commission and hearing was held September 19, 1946. The evidence submitted by applicant related solely to the question of applicant's status. On December 23, 1946, the report recommended by the examiner was served on the parties to the proceedings. This report contained a finding that the applicant's operations were those of a private carrier and recommended that an order be entered dismissing the application. Thereafter, on February 11, 1947, exceptions were filed to the examiner's proposed report and recommended order by certain protestants and interveners and following replies to the exceptions by applicant and certain other interveners the Commission by Division 5, on May 27, 1948, issued its report in which the conclusion was reached that applicant was not a common carrier or a contract carrier but was a private carrier.

Schenley Distillers Corporation (hereinafter referred to as Schenley) filed its application with the Commission May 7, 1946, seeking a permit to operate in interstate or foreign commerce as a contract carrier by motor vehicle over irregular routes in the transportation of alcoholic liquors of its own manufacture or that of its subsidiaries, and of materials and supplies used in their manufacture and sale throughout a territory including all points in fourteen States and the District of Columbia. The application alleged that the operations involved were those of private carriage and not common or contract carriage and requested the Commission to dismiss the application. The purpose of the application, just as that filed by Lenoir, was to secure a determination of the applicant's status with respect to whether it was a private carrier or a common or contract carrier.

The application was heard by an examiner of the Commission on September 5, 1946, at which evidence was introduced by applicant which related only to its status. On March 11, 1947, the report recommended by two Commission examiners was served containing a finding that the proposed operation by the applicant was that of a contract carrier by motor vehicle and not that of a private carrier. They further found that applicant had failed to establish that the operations involved would be consistent with the public interest and the National Transportation Policy and recommended that an order be entered denying the application. Thereafter, on March 14, 1947, exceptions were filed to the examiner's proposed report and recommended order by applicant and an intervener to which replies were duly filed by certain intervening protestants. On June 21, 1948, the Commission, by Division 5, issued its report which contained conclusions differing from those recommended by the examiners. In its report Division 5 (one of its three members dissenting) found that applicant's operations were not those of a common or contract carrier by motor vehicle as defined by the Act and dismissed the application. This finding, it will be observed, had the effect of holding that applicant was a private carrier.

Being dissatisfied with the decision of Division 5, certain intervening protestants, including some of the intervening plaintiffs herein, filed petitions in both the Lenoir and Schenley proceedings requesting reconsideration by the entire Commission and oral argument. By order dated January 3, 1949, the Commission reopened both proceedings for oral argument and denied the petitions in all other respects. Since the proceedings in each case presented similar issues, the applications of both Lenoir and Schenley were heard together on oral argument before the entire Commission on April 21, 1949, and were disposed of in one report. Following the oral argument and after careful and thorough consideration of the issues involved, the Commission (one Commissioner dissenting and two others necessarily absent and not participating in the proceeding) found that both Lenoir and Schenley were not common or contract carriers by motor vehicle as defined by the Act, and that the applications should be dismissed. In view of the fact that the prior orders of Division 5 dismissing the applications were not vacated or set aside and remained in full force and effect, no further order was entered in either proceeding.

After these findings by the entire Commission, this suit was brought to enjoin and set aside the orders of Division 5 which held Lenoir and Schenley to be private carriers.

The facts in the case are not in dispute. The only question involved is one of law, namely, did the Commission err in finding that Lenoir and Schenley were not common carriers as defined in Part II of the Interstate Commerce Act, hereinafter called the Act, Section 203(a)(14), or contract carriers as defined in Section 203(a)(15), but private carriers as that term is defined in Section 203(a)(17) of the Act, 49 U.S.C.A. § 303(a)(14), (15) and (17).

The pertinent provisions of the statute involved in this case are found in Section 203(a) which provide that as used in Part II of the Interstate Commerce Act:

"(14) The term `common carrier by motor vehicle' means any person which holds itself out to the general public to engage in the transportation by motor vehicle in interstate or foreign commerce of passengers or property or any class or classes thereof for compensation, whether over regular or irregular routes, * * *

"(15) The term `contract carrier by motor vehicle' means any person which, under individual contracts or agreements, engages in the transportation (other than transportation referred to in paragraph (14) and the exception therein) by motor vehicle of passengers or property in interstate or foreign commerce for compensation.

* * * * * *

"(17) The term `private carrier of property by motor vehicle' means any person not included in the terms `common carrier by motor vehicle' or `contract carrier by motor vehicle', who or which transports in interstate or foreign commerce by motor vehicle property of which such person is the owner, lessee, or bailee, when such transportation is for the purpose of sale, lease, rent, or bailment, or in furtherance of any commercial enterprise."

The facts as to Lenoir and Schenley, as found by Division 5, may be briefly summarized: Lenoir operates five trucks in long-distance hauling and six or seven trucks in interplant service. It transports furniture from its plants to customers in the States named in the application, and whenever possible these vehicles are loaded on return with commodities used by applicant in its plants. Apparently at one time it did haul commodities for others, that is, persons other than itself or its customers, but this practice was discontinued some years ago, and applicant now transports and...