Callanan Road Improvement Co v. United States

• Decision Date: 04 May 1953
• Docket Number: No. 488,488
• Citation: 97 L.Ed. 1206,73 S.Ct. 803,345 U.S. 507
• Parties: CALLANAN ROAD IMPROVEMENT CO. et al. v. UNITED STATES et al
• Court: U.S. Supreme Court

345 U.S. 507

73 S.Ct. 803

97 L.Ed. 1206

CALLANAN ROAD IMPROVEMENT CO. et al.

v UNITED STATES et al.

No. 488.

Argued April 8, 1953.

Decided May 4, 1953.

Rehearing Denied June 8, 1953.

See 345 U.S. 978, 73 S.Ct. 1119.

Mr. William A. Roberts, Washington, D.C., for appellant.

Mr. William J. Hickey, Washington, D.C., for appellees U.S. and I.C.C.

Mr. R. Granville Curry, Washington, D.C., for appellee Cornell steamboat co.

Mr. Justice MINTON delivered the opinion of the Court.

In 1941, one Joseph R. Hutton applied to the Interstate Commerce Commission for a permit to operate as a contract carrier by water between points on Long Island Sound, New York Harbor, the Hudson River, the New York State Barge Canal System, the Niagara River, and contiguous ports. In the alternative, he prayed a certificate of convenience and necessity if he be found to be a common carrier. The application was a 'grandfather' clause proceeding under § 309 of Part III, Water Carriers, of the Interstate Commerce Act, 54 Stat. 941, 49 U.S.C. (1946 ed.) § 909, 49 U.S.C.A. § 909.

The Commission, after hearing and investigation, made findings of fact and conclusions of law thereon to the effect that for 37 years Hutton had been in operation; that '(h)e owns and manages 1 steam power boat of about 240 horsepower, and 4 barges, all of which are operated as a unit. The power boat is used to tow the barges but also carries about 150 gross tons of freight. On occasion other barges are rented or chartered for operation in applicant's fleet.' It was further found that during and since 1939 and 1940, 'applicant's operation has been that of a common carrier of commodities generally between points on New York Harbor, the Hudson River below its junction with the New York State Barge Canal, the New York State Barge Canal between the Hudson River and the Niagara River including the Oswego branch, and the Niagara River.' The Commission further found that the applicant was in operation January 1, 1940, the crit- ical date provided in § 309 for 'grandfather' proceedings, and by reason of his long, continuous operation, public convenience and necessity would be served by continuance of such operation, and specifically found:

'We find that applicant is a common carrier by water; that public convenience and necessity require operation by applicant as a common carrier in interstate or foreign commerce, of commodities generally, between points on New York Harbor as determined in Ex Parte No. 140, points on the Hudson River below its junction with the New York State Barge Canal, the New York State Barge Canal between the Hudson River and the Niagara River including the Oswego branch, and the Niagara River; that applicant is fit, willing and able properly to perform said transportation; and that applicant is entitled to a certificate authorizing such operation, subject, however, to general conditions which are necessary to carry out, with respect to such operation, the requirement of Part III of the act and the orders, rules, and regulations of the Commission thereunder.'

The Commission entered an order on July 17, 1942, effective October 5, 1942, granting the certificate of convenience and necessity to Hutton. This order recited the fact of the above findings and incorporated them by reference. 250 I.C.C. 804.

Thus it will be seen that the Commission found the operations of Hutton to be those of a common carrier by water of commodities generally in self-propelled vessels which he owned and which he also used to tow barges he owned, rented, or chartered. There is no finding that his operations included the towing of barges which he did not own, rent, or charter. The certificate was accepted by Hutton, and, as far as appears on this record, he operated under it until March 7, 1944, in the same manner as he had before.

On March 7, 1944, the Commission of its own motion opened the record in Hutton's original application and after reconsidering its former findings, specified the type of vessels to be used in the exercise of its authority theretofore granted. 260 I.C.C. 804. The Commission's order of March 7, 1944, in pertinent part reads as follows:

'That public convenience and necessity require the continuance of operation by applicant as a common carrier by water, by self-propelled vessels and by non-self-propelled vessels with the use of separate towing vessels in interstate or foreign commerce, in the transportation of commodities generally between points in the area defined by the order of the Commission * * *.'

This amended certificate, which limited Hutton to the identical operations he had long carried on and upon which his § 309 rights were authorized, was accepted by him without question, and he continued to operate under it until his death several months later.

The Callanan Road Improvement Company, the appellant here, sought to purchase the amended certificate from Hutton's administratrix for operations limited to the Hudson River and New York Harbor. By § 312 of the Interstate Commerce Act, 54 Stat. 944, 49 U.S.C. (1946 ed.) § 912, 49 U.S.C.A. § 912, the Interstate Commerce Commission's authorization is required for such a transfer. An application for approval was filed before the Commission by the appellant and the administrix. After hearing, the Commission by order dated August 18, 1947 (265 I.C.C. 813), authorized the transfer of the amended certificate to the appellant in the following words:

'It is further ordered, That, following consummation of the sale to the transferee of the operating rights covered by said amended certificate, said transferee may perform to the extent above described, the water-carrier service heretofore authorized under said amended certificate dated March 7, 1944, in No. W—103.'

On February 5, 1948, the Commission issued an amended certificate to the appellant, pursuant to its order of August 18, 1947. Thus, the appellant sought and received a transfer of the amended certificate of March 7, 1944, limited by consent as to waters to be operated upon.

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