DB Ford, Inc. v. United States
| Decision Date | 24 May 1974 |
| Docket Number | No. 4-73-Civ. 554.,4-73-Civ. 554. |
| Citation | 380 F. Supp. 1202 |
| Parties | D. B. FORD, INC., Plaintiff, v. UNITED STATES of America and Interstate Commerce Commission, Defendants, and Anderson Trucking Service, Inc., et al., Intervening Defendants. |
| Court | U.S. District Court — District of Minnesota |
James H. Colwell, Minneapolis, Minn., and J. G. Dail, Jr., Washington, D. C., for plaintiffs.
Robert G. Renner, U. S. Atty., and John M. Lee, Asst. U. S. Atty., Minneapolis, Minn; and John H. D. Wigger, Atty., Dept. of Justice, Washington, D. C., for defendant United States.
Fritz R. Kahn, Gen. Counsel, and Charles H. White, Jr., Atty., I. C. C., Washington, D. C., for defendant I. C. C.
Andrew R. Clark, Minneapolis, Minn., for intervening defendants.
Before HEANEY, Circuit Judge, and DEVITT and LARSON, District Judges.
Plaintiff D. B. Ford, Inc. (hereinafter Ford) brings this action to set aside the Order of the Interstate Commerce Commission (hereinafter the Commission) denying Ford's application to reopen the proceedings in which Ford's predecessor-in-interest acquired its "grandfather" authorization as an interstate motor carrier under § 209(a)(1) of the Motor Carrier Act of 1935. The Commission also refused to modify Ford's current certificate of authorization on the basis of public need and required Ford to cease operating in violation of its authorization.
The interstate motor carrier industry first came under Federal regulation with enactment of the Motor Carrier Act in 1935, now known as part II of the Interstate Commerce Act, 49 U.S.C. § 301 et seq. Under the grandfather provisions of the Act, a carrier could obtain authorization by showing that it "was in bona fide operation" on the relevant grandfather date "and has so operated since that time." 49 U.S.C. § 306(a)(1) (); 49 U.S.C. § 309(a)(1) ().
Ford's predecessor qualified under § 309(a)(1) and was granted authorization as a contract carrier on June 1, 1938, to transport "tanks, towers, incinerators, heavy machinery, and building contractors' tools and supplies" between points and places in Illinois, Iowa, Kansas, Minnesota, Missouri, Nebraska, South Dakota, and Wisconsin. A contract carrier permit authorizing the transporting of the same commodities over the same territory was issued to the predecessor on July 25, 1941.1
Ford acquired the operating rights in 1957 following the death of its predecessor. D. B. Ford, Inc., Transferee, and Dail B. Ford, dba D. B. Ford (Deceased) (Irene Ford Bates, Executrix), Transferor, Docket No. MC-FC-60244. Ford then initiated a proceeding under § 212(c) of the Act, 49 U.S.C. § 312(c), to convert its predecessor's outstanding contract carrier permit to a common carrier certificate.
Although noting that Ford had been misinterpreting its permit and transporting some commodities that it was not authorized to carry, the Commission felt that Ford had been acting in good faith and accordingly approved the conversion. D. B. Ford, Inc., Conversion Proceeding, 82 M.C.C. 553, 555 (1960). Ford was thus granted a common carrier certificate with the identical authorization as to commodities and territories held by its predecessor.
Ford is an Illinois corporation with its principal place of business in Minnesota. It purports to be a heavy hauler, i. e., a carrier that holds itself out to transport heavy and bulky articles that cannot be handled in the normal operations of general freight carriers.
The instant controversy centers around the scope of "heavy machinery," as that phrase is used in Ford's certificate. Over the years that term has been restrictively interpreted and to a large degree supplanted by the so-called size-or-weight description now used by the Commission to classify heavy hauler operations.2
Ford maintains that at least two-thirds of its revenues depend upon its transporting commodities that are not within the current meaning of "heavy machinery," but rather fall within the contemporary size-or-weight description. Therefore it has petitioned the Commission for reopening of the "grandfather" proceedings or modification of its certificate based on public need in order to secure the size-or-weight description.
To fully comprehend the dilemma of Ford and many other "heavy machinery" motor carriers, reference must be made to the history of Federal regulation of the industry. In the early years, commodity descriptions set forth in authorizations granted by the Commission were not uniform. See Southwestern Transfer Co., Inc., Common Carrier Application, 100 M.C.C. 711, 714 (1966); see also Jetco, Inc. — Investigation and Revocation of Certificate, 108 M.C.C. 498, 502 (1969). Heavy haulers were not then, nor have they ever been, recognized as such.
Carriers initially were classified on the basis of the kinds of commodities that they transported. The Commission often used the terms "machinery" or, as here, "heavy machinery" as a generic classification of the authorized operations of heavy haulers. See Classification of Motor Carriers of Property, 2 M.C.C. 703 (1937); see also Jetco, Inc. — Investigation and Revocation of Certificate, supra, 502-503; W. J. Dillner Transfer Co. — Investigation of Operations, 79 M.C.C. 335, 348 (1959), aff'd sub nom. W. J. Dillner Transfer Co. v. Interstate Commerce Commission, 193 F.Supp. 823 (W.D.Pa.1961) (Three Judge Court), aff'd per curiam, 368 U.S. 6, 82 S.Ct. 16, 7 L.Ed.2d 16; Hove Truck Line v. Eldon Miller, Inc., 63 M.C.C. 753, 756 (1955). Carriers given such authorizations were allowed to transport all commodities falling within the Commission's definition of "heavy machinery." See Classification of Motor Carriers of Property, supra, 710.
In later years, the Commission altered its system of classification from one based on the types of commodities transported to one based on the types of services performed. See Ace Doran Hauling & Rigging Co., Investigation, 108 M.C.C. 717, 720 (1969), aff'd nom. Pittsburgh & New England Trucking Co. v. United States, 345 F.Supp. 743 (W.D.Pa.1972) (Three Judge Court), aff'd per curiam, 409 U.S. 904, 93 S.Ct. 235, 34 L.Ed.2d 169. Carriers performing what amounted to heavy hauling services were now authorized under the size-or-weight description. This new terminology first was used by the Commission in 1948. Gallagher Common Carrier Application, 48 M.C.C. 413, 415 (1948); Leroy Osborne Common Carrier Application, 47 M.C.C. 633, 643 (1948). It was formally prescribed by the Commission four years later. Descriptions in Motor Carrier Certificates, 61 M.C.C. 209, 248-251 (1952).
In changing the classification system as it did, the Commission did not intend to vary the scope of then outstanding authorizations such as the one held at the time by Ford's predecessor. Ibid., 213-214.
Along with the modification in the system of classification, the Commission over the years has restrictively interpreted "heavy machinery." Numerous articles that formerly were encompassed by that term under the Classification case no longer fall within its ambit under the service-type terminology ushered in by the Descriptions case. As a general rule, these commodities are now included within the size-or-weight description.
The result today is that the former "heavy machinery" classification is analogous with, but not as broad as, the contemporary size-or-weight description. See Mitchell Bros. Truck Lines v. United States, 225 F.Supp. 755, 759, n. 4 (D. Or.1963) (Three Judge Court), aff'd per curiam, 378 U.S. 125, 84 S.Ct. 1657, 12 L.Ed.2d 744 (1964), reh. denied, 379 U.S. 872, 85 S.Ct. 19, 13 L.Ed.2d 78; North Penn Transfer, Inc. — Petition for Modification, 155 M.C.C. 207, 214-215 (1972). The chief difference is that "heavy machinery" does not include articles that through assembly or manufacture have been transformed into new and different items, such as automobiles, airplanes, farm tractors, and refrigerators. Mitchell Bros. Truck Lines v. United States, supra, 225 F.Supp. 759. As pertinent here, Ford's main grievance is that pipe, one of the major commodities that it transports, is not classified as "heavy machinery." See Dayton Transport. Corp., Extension — Iron and Steel Articles, 79 M.C.C. 713, 715 (1959).
Seven years after acquiring its certificate in the Conversion proceedings, Ford first sought to secure the size-or-weight description for the same territory covered by its existing certificate. The Commission denied its application under § 207, 49 U.S.C. § 307, on the ground that such a broadening of its authorization was not shown to be necessary to meet the needs of its shippers. D. B. Ford, Inc., Extension — Eight States, Docket No. MC-119750 (Sub-No. 1) (1967).
Ford then attempted to acquire the size-or-weight description pursuant to the corrective procedures established by the Commission to resolve uncertainties regarding the scope of "heavy machinery" authorizations. Recognizing the confusion resulting from its shifting classification system and restrictive pattern of interpretations, the Commission has permitted "heavy machinery" carriers to reopen their "grandfather" proceedings in order to determine the authorizations initially intended to be granted. See Southwestern Transfer Co., Inc., Common Carrier Application, supra, 715; see also Nelson, Inc. v. United States, 355 U.S. 554, 561-562, 78 S.Ct. 496, 2 L.Ed.2d 484 (1958).
Upon an appropriate showing of the commodities transported during the "grandfather" period or for which need was demonstrated by supporting shippers in the "grandfather" proceedings, the Commission has modified "heavy machinery" authorizations to bring them into line with the contemporary size-or-weight description. See, e. g., Home Transportation Company, Inc., — Extension-Chattanooga, Tenn., 109 M.C.C. 137 (1969); W. B. Draper Extension — Heavy Machinery, 102...
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