Campbell Sixty-Six Express, Inc. v. United States

• Decision Date: 29 August 1966
• Docket Number: No. 2190.,2190.
• Parties: CAMPBELL SIXTY-SIX EXPRESS, INC., et al., Plaintiffs, v. UNITED STATES of America and the Interstate Commerce Commission, Defendants, and Roadway Express, Inc., Intervenor-Defendant.
• Court: U.S. District Court — Western District of Missouri

258 F. Supp. 529

CAMPBELL SIXTY-SIX EXPRESS, INC., et al., Plaintiffs, v. UNITED STATES of America and the Interstate Commerce Commission, Defendants, and Roadway Express, Inc., Intervenor-Defendant.

No. 2190.

United States District Court W. D. Missouri, S. D.

August 29, 1966.

COPYRIGHT MATERIAL OMITTED

W. C. Dannevik, Jr., Kansas City, Mo., for Campbell Sixty-Six Express, Inc.

R. J. Reynolds, Jr., R. J. Reynolds, III, of Reynolds & Reynolds, Atlanta, Ga., for Dixie Highway Express, Inc.

James W. Wrape, Robert E. Joyner, of Wrape & Hernly, Memphis, Tenn., and Washington, D. C., for Gordon's Transports, Inc.

Frank M. Garrison, Lubbock, Tex., W. D. Benson, Jr., Lubbock, Tex., for T.I.M.E. Freight, Inc.

F. Russell Millin, U. S. Atty., Western Dist. of Mo., Kansas City, Mo., for the United States of America.

Robert W. Ginnane, General Counsel, Interstate Commerce Commission, Washington, D. C., for Interstate Commerce Commission.

Frank W. Taylor, Jr., of Reeder, Griffin & Dysart, Kansas City, Mo., Russell R. Sage, of Turney, Major, Markham & Sherfy, Washington, D. C., for intervening defendant Roadway Express, Inc.

Before GIBSON, Circuit Judge, and HUNTER and COLLINSON, District Judges.

MEMORANDUM AND ORDER

COLLINSON, District Judge.

The plaintiffs, four duly certificated common carriers of freight by motor, bring this action to set aside and enjoin an order of the defendant Interstate Commerce Commission. The order grants an "alternate route" to the intervening defendant, Roadway Express, Inc., between St. Louis, Missouri and Nashville, Tennessee.

Roadway Express, Inc., is also a holder of a certificate of convenience and necessity as a common carrier of freight by motor vehicles. It operates over a vast complex of regular routes, but this case involves the movement of traffic between St. Louis, Kansas City and Springfield, Missouri, and Decatur, Illinois, the so-called Midwest area, and Atlanta, Georgia, and various other points in Georgia, Alabama and Tennessee in the so-called Southeast area. Roadway's present operation is to funnel all its freight originating in the Midwest area into St. Louis (referred to as a break-bulk point), consolidate and forward it on through-trucks to Atlanta (the other break-bulk point). There the freight is divided up among other units for its ultimate destination in the Southeast area. This operation is conducted in an identical manner in reverse direction. At the present time the through-trucks, so-called because they serve no intermediate points, travel a route from St. Louis to Louisville, Kentucky, then to Nashville, Tennessee, and on down through Chattanooga to Atlanta. The alternate route applied for is from St. Louis directly to Nashville, eliminating the round-about route through Louisville. The proposed route is 122 miles shorter and would save four hours running time between St. Louis and Atlanta. Obviously, it would result in considerable financial savings to the intervenor.

Without going into detail, the four plaintiff-carriers also collect freight in the Midwest area and transport it to points in Georgia and Alabama, and likewise from towns in that area back to the Midwest. Some of this freight moves over the exact route which the intervenor now seeks, but other freight moves through Springfield, Memphis and Birmingham to Atlanta.

The evidence was heard by an examiner of the Interstate Commerce Commission, who wrote a lengthy report and recommended an order denying the issuance of a certificate of convenience and necessity to the intervenor for the proposed alternate route. The intervenor filed exceptions to this recommended order and, upon review, Division One of the Commission arrived at a different conclusion and filed a report granting issuance of a certificate to the intervenor for the alternate route. It is this order which plaintiffs seek to set aside.

There are no material factual issues in this case. The report of the Commission states "The statement of facts in the report of the Examiner is accurate in all material respects and, except as herein modified, is adopted as our own." The parties themselves raise no question as to the accuracy of these findings of the Examiner which the Commission adopted.

All of the parties agree that the Examiner and the Commission applied the proper rule of three concurrent tests which must be met for the granting of an alternate route. These tests are: (1) Applicant must presently operate between the termini involved under appropriate authority over a practicable and feasible route; (2) applicant must be in actual competition with the present carriers between the affected points, transporting a substantial amount of traffic over such route; and (3) the competitive situation must remain relatively unchanged if the authority sought is granted. Applying this three-fold test to the undisputed facts, the Examiner found that the applicant failed on all three grounds; but the Commission found, on the other hand, from the same facts, that the applicant had passed all three tests with flying colors. Plaintiffs argue that this ultimate conclusion by the Commission is arbitrary and capricious, not based on any supporting findings of fact, and that the basis and grounds for this ultimate conclusion can only be supported by conjecture and inference.

The scope of this Court's review of the disputed order has been well defined in many cases. In United States v. Pierce Auto Freight Lines, Inc., 327 U.S. 515, 66 S.Ct. 687, 90 L.Ed. 821 (1946) the Court said:

The function of the reviewing court is * * * limited to ascertaining whether there is warrant in the law and the facts for what the Commission has done. Unless in some specific respect there has been prejudicial departure from requirements of the law or abuse of the Commission's discretion, the reviewing court is without authority to intervene. It cannot substitute its own view concerning what should be done, * * * for the Commission's judgment upon matters committed to its determination, if that has support in the record and the applicable law.

It is also well established that in determining whether certificates of convenience and necessity shall issue the—

Commission has been entrusted with a wide range of discretionary authority. (Citing cases) Its function is not only to appraise the facts and to draw inferences from them but also to bring to bear upon the problem an expert judgment and to determine from its analysis of the total situation on which side of the controversy the public interest lies. United States v. Detroit & Cleveland Navigation Company, 326 U.S. 236, 66 S.Ct. 75, 90 L.Ed. 38 (1945)

It is also equally well established in the cases, however, that—

Judicial deference to expertise is not boundless; and expertise is not sufficient in itself to sustain a decision. The order must be supported by substantial evidence and must be made within the statutory limits placed on the Commission's powers by Congress.

* * * * * *

As to the sufficiency of evidence to support the order, it is not the proper function of the court to substitute its judgment or to weigh evidence in place of the Commission. On the other hand, the court must review the record without a rubber stamp approach. Eastern Central Motor Carriers Association v. United States, 239 F.Supp. 591 (1965) (D.C.D.C.).

Taking up now the actual issues raised by the parties, the plaintiffs contend, and the Examiner found, that the intervenor is not presently operating between the termini involved under appropriate authority over a practicable and...