Carl Subler Trucking, Inc. v. United States

• Decision Date: 20 May 1970
• Docket Number: Civ. A. No. 3616.
• Citation: 313 F. Supp. 971
• Parties: CARL SUBLER TRUCKING, INC., Plaintiff, v. UNITED STATES of America and Interstate Commerce Commission, Defendants, and Commercial Carrier Corporation, Wilson Brothers Truck Line, Inc., Gateway Transportation Co., Inc., Ryder Truck Lines, Inc., and Everett Lowrance, Intervener-Defendants.
• Court: U.S. District Court — Southern District of Ohio

313 F. Supp. 971

CARL SUBLER TRUCKING, INC., Plaintiff, v. UNITED STATES of America and Interstate Commerce Commission, Defendants and Commercial Carrier Corporation, Wilson Brothers Truck Line, Inc., Gateway Transportation Co., Inc., Ryder Truck Lines, Inc., and Everett Lowrance, Intervener-Defendants.

Civ. A. No. 3616.

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

May 20, 1970.

Carroll V. Lewis, Sidney, Ohio, W. T. Croft, J. G. Dail, Jr., Washington, D. C., for plaintiff.

Richard W. McLaren, Asst. Atty. Gen., John H. D. Wigger, Atty., Dept. of Justice, Washington, D. C., William W. Milligan, U. S. Atty., Columbus, Ohio, for the United States.

Robert W. Ginnane, Gen. Counsel, Phillip W. Getts, Atty., Interstate Commerce Commission, Washington, D. C., for I.C.C.

M. Craig Massey, Lakeland, Fla., for intervening defendants.

Before PECK, Circuit Judge, and WEINMAN and PORTER, District Judges.

OPINION AND ORDER

WEINMAN, District Judge.

This action is brought by plaintiff Carl Subler Trucking, Inc. (Subler) to set aside and have enjoined the following Orders of the Interstate Commerce Commission (Commission):

1) An order of the Commission, Division I, issued February 1, 1963 in a proceeding before the Commission identified as No. MC-116763 (Sub-No. 19) directing plaintiff to show cause why its Sub-No. 19 certificate should not be modified by eliminating therefrom a grant of authority to serve points in Indiana within the Owensboro Commercial Zone.

2) An Order of the Commission issued December 16, 1966 in the same Sub-No. 19 proceeding modifying plaintiff's certificate by eliminating authority to serve points in Indiana within the Owensboro Commercial Zone.

3) An Order of the Commission in the Sub-No. 19 proceeding issued June 26, 1968 determining that the public convenience and necessity did not require plaintiff's proposed operation to serve points in Indiana within the Owensboro Commercial Zone.

4) An Order of the Commission in the Sub-No. 19 proceeding issued October 1, 1968 denying plaintiff's petition to vacate the Commission's June 26, 1968 Order.

5) An Order of the Commission, by Division I, issued December 12, 1968 in a proceeding before the Commission identified as No. MC-116763 (Sub-No. 112) affirming and adopting the Hearing Examiner's report denying plaintiff's Sub-No. 112 application for a certificate of public convenience and necessity to operate from points in Florida, to points in Iowa, Minnesota and Missouri and to Owensboro, Kentucky.

Jurisdiction of this three judge court is invoked and arises under 28 U.S.C. §§ 1336, 1398, 2284, 2321-2325, 49 U.S.C. § 305(g) and 5 U.S.C. § 702.

Plaintiff and the intervening defendants, Commercial Carrier Corporation, Wilson Brothers Truck Line, Inc., Gateway Transportation Co., Inc., Ryder Truck Lines, Inc. and Everett Lowrance, are all common carriers by motor vehicle engaged in the transportation of commodities in interstate commerce pursuant to certificates of public convenience and necessity granted to them by the Commission.

PROCEEDINGS BEFORE THE COMMISSION

By an application filed October 12, 1961 plaintiff Subler sought a certificate of public convenience and necessity which so far as is relevant sought operating authority in interstate and foreign commerce, as a common carrier by motor vehicle, over irregular routes, of (1) canned goods, from points in Daviess and Hancock Counties, Kentucky, to points in Illinois, Indiana, Iowa, Michigan, Minnesota, Missouri, New York, Ohio, Pennsylvania, Tennessee, West Virginia and Wisconsin.

Notice of the application disclosing plaintiff's request for proposed operation from Daviess and Hancock Counties to points in the twelve states described in the application was published in the Federal Register of November 8, 1961 and at this time the application was assigned for hearing before a Hearing Examiner.

At the hearing before the Hearing Examiner plaintiff proposed an amendment to the original application changing the origin point on the application from Daviess and Hancock Counties, Kentucky to Owensboro, Kentucky. In proposing this amendment plaintiff intended to restrict the origin territory and did not intend to broaden the scope of the original application. The Hearing Examiner approved the territorial amendment without requiring republication of notice in the Federal Register to indicate that the origin point had been changed from Daviess and Hancock Counties, Kentucky, to Owensboro, Kentucky.

The plaintiff also proposed a restriction, not relevant to the present case, to satisfy the objections of Midwest Emery Freight System, Inc. the only carrier to appear in opposition. Upon acceptance of the territorial amendment by the examiner and the further acceptance of the restriction, Midwest Emery withdrew its protest.

The examiner's report served January 3, 1962 recommended, so far as is pertinent, that Subler receive a grant of authority for transportation over irregular routes of:

"Canned goods,

"From Owensboro, Ky. to Kenosha, Milwaukee, and Racine, Wis., and points in Illinois, Iowa, the lower peninsula of Michigan, Minnesota (except Duluth, Minneapolis and St. Paul), that part of Missouri west of U. S. Highway 67 and points in the St. Louis, Mo.-East St. Louis, Ill., Commercial Zone as defined by the Commission, New York (except points in Kings, Queens, Nassau, and Suffolk Counties), Pennsylvania, Ohio and West Virginia, with no transportation for compensation on return except as otherwise authorized."

No exceptions were filed to the recommended grant. The Commissioner did not stay the recommended grant and by notice on January 23, 1962, it became the order of the Commission. On March 6, 1962, a certificate of public convenience and necessity was issued to plaintiff.

The original application sought authority to transport canned goods from points in Daviess and Hancock Counties, Kentucky. The amendment substituting Owensboro, Kentucky as the origin point conferred broader authority because under Interstate Commerce Commission practice the designation of Owensboro as the origin point permitted the utilization of all points within the Owensboro Commercial Zone which included points in Indiana. The plaintiff already held a Sub 10 certificate authorizing it to transport canned fruit and canned fruit juices, not frozen, from Winter Haven, Lakeland and Lake Wales, Florida to points in Indiana. On or about the time the Sub 19 certificate was issued, plaintiff Subler's tariff compiler suggested that the Sub 10 authority might be tacked to the Sub 19 authority at a point in Indiana within the Owensboro Commercial Zone and that under such combination of authorities plaintiff could perform a through service from Florida origins to points in the Sub 19 destination territory including Minnesota, Missouri and Iowa. A tariff naming rates for such through service was published on March 26, 1962. Sometime in June, 1962 plaintiff received an informal opinion from the Bureau of Motor Carriers that tacking was proper.

Tacking of plaintiff's Sub 19 and Sub 10 certificates would not have been possible had the origin point of the Sub 19 certificate been Daviess and Hancock Counties, as originally requested and noticed in the Federal Register because authority to originate shipments from points in the two county territory would not have authorized utilization of points in Indiana within the Owensboro Commercial Zone.

The intervening defendants Commercial Carrier Corporation, Wilson Brothers Truck Lines, Inc., Gateway Transportation Co., Inc., Ryder Truck Lines, Inc. and Everett Lowrance hold certificates authorizing them to conduct service for the transportation of canned goods from points in Florida to points in Minnesota, Iowa and Missouri.

They received no notice of Subler's authority to conduct through service from points in Florida to destination points in Minnesota, Iowa and Missouri until Subler actually began to conduct a through service in competition with them by combining the authorities under its Sub 19 and Sub 10 certificates. On September 12, 1962 two of the intervening defendants, Commercial Carrier Corp. and Wilson Brothers Truck Lines, Inc., filed a petition seeking to intervene in the Sub 19 proceeding and seeking a restriction of the Sub 19 certificate so as to prohibit the tacking of that authority with plaintiff's Sub 10 authority.

On February 1, 1963, the Commission Division I, recognizing that the amendment at the hearing substituting Owensboro as the origin point broadened the scope of the application and that the intervening defendants had received no notice of the broadening, ordered Subler to show cause why its Sub 19 certificate should not be modified by eliminating therefrom the grant of authority to serve points in Indiana. This order further provided that the matter of whether any portion of Subler's Sub 19 certificate was issued to Subler improperly and without adequate notice to the intervening defendants be assigned for oral hearing.

A further hearing was held before a Hearing Examiner on January 23, 1964. The Hearing Examiner served a Recommended Report and Order on November 12, 1964 in which he concluded that the certificate having been issued to plaintiff without adequate notice to intervening defendants contrary to the Administrative Procedure Act and the Commission's General Rules of Practice, was inadvertently issued and recommended that the certificate be cancelled and that a corrected certificate eliminating authority to serve points in Indiana should be issued. Upon review, the Commission, Division I issued a Report on July 8, 1965 reversing the Hearing Examiner's Recommendation and refusing to revoke plaintiff's certificate. Division I of the Commission concluded that issuance of plaintiff's certificate without notice to the intervening defendants did not constitute inadvertent issuance authorizing revocation of the certificate.

The intervening defendant...