Demelle v. Interstate Commerce Commission

• Decision Date: 23 February 1955
• Docket Number: No. 4907.,4907.
• Citation: 219 F.2d 619
• Parties: Albert J. DEMELLE, d.b.a. Curley's Transportation Company, Defendant, Appellant, v. INTERSTATE COMMERCE COMMISSION, Plaintiff, Appellee.
• Court: U.S. Court of Appeals — First Circuit

219 F.2d 619 (1955)

Albert J. DEMELLE, d.b.a. Curley's Transportation Company, Defendant, Appellant, v. INTERSTATE COMMERCE COMMISSION, Plaintiff, Appellee.

No. 4907.

United States Court of Appeals, First Circuit.

February 23, 1955.

Harry C. Ames, Jr., Washington, D. C., with whom Wilfred A. Hay, Portland, Me., was on brief, for appellant.

Herman F. Mueller, Boston, Mass., Attorney, with whom Peter Mills, U. S. Atty., Portland, Me., and A. J. Merrill, Bangor, Attorney, were on brief, for appellee.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

HARTIGAN, Circuit Judge.

This is an appeal by the defendant, Albert J. Demelle, from a judgment of the United States District Court for the District of Maine entered September 22, 1954, under 49 U.S.C.A. § 322 (b), enjoining the defendant from carrying on interstate motor carrier operations to points in Maine other than those covered by a certificate of public convenience and necessity issued to the defendant by the Interstate Commerce Commission on June 13, 1949.

The certificate in question, insofar as the irregular route authority with which we are solely concerned, reads:

"Irregular Routes:

"General commodities, with exceptions as specified on sheet No. 1,

"Between points and places within 20 miles of Boston, Mass., Providence, R. I., and Sanford, Maine, except points and places in New Hampshire, and Lebanon, Berwick, and South Berwick, Maine, and points and places in Maine on and east of U.S. Highway 1."

The defendant also had been granted in this certificate of June 13, 1949 regular routes between Sanford, Maine, and Providence, R. I., between Smithtown, N. H., and South Barre, Mass., between Boston, Mass., and Waterville, Maine; and between Providence, R. I., and Boston, Mass., but we are not concerned with these regular routes in this case. The defendant admitted in his answer that he had transported goods to certain points in Maine on and east of U. S. Highway 1 which the Interstate Commerce Commission in its complaint alleged were not within the authority of any certificate of public convenience and necessity issued by it. The sole issue before the district court was "* * * the interpretation of the clause, `* * * and points in Maine on and east of United States Highway No. 1', as contained in the provision with respect to the irregular route authority." 124 F.Supp. 516.

The Commission, following the filing of the defendant's answer, moved for summary judgment. Fed.R.Civ.P. 56, 28 U.S.C.A. The defendant moved to strike certain exhibits attached to the Commission's motion for summary judgment and this motion was granted. It was stipulated by the parties that there was no genuine issue as to any material fact and that the sole issue before the court was the interpretation of the defendant's irregular route authority. The Commission contended in substance that under this irregular route authority the defendant could only carry goods between points and places within 20 miles of: (1) Boston, Mass., (2) Providence, R. I., and (3) Sanford, Maine, except points and places in New Hampshire, and Lebanon, Berwick, and South Berwick, Maine, and points and places in Maine on and east of U. S. Highway 1. The defendant contended that the certificate allows it to carry goods between: (1) points and places within 20 miles of Boston, (2) points and places within 20 miles of Providence, (3) points and places within 20 miles of Sanford, except points and places in New Hampshire, and Lebanon, Berwick, and South Berwick, Maine, and (4) points and places in Maine on and east of U. S. Highway 1.

The district court in its opinion stated that:

"After a careful consideration of the entire provision relating to the irregular route authority, this Court is of the opinion that the aforementioned clause of the irregular route authority is not a grant of additional authority, as contended by the defendant, but an exception to the grant contained in that provision, as contended by the plaintiff. This Court interprets the irregular route provision as authorizing service to points in Maine located in the territory within a radius of 20 miles of Sanford, except Lebanon, Berwick, and South Berwick, and also except points in Maine located on and east of U. S. Highway 1, within a radius of 20 miles of Sanford, Maine."

The defendant now contends that the finding by the district court was erroneous and that a true construction of the certificate in question would permit the defendant to operate as a common carrier to all points and places in Maine on and east of U. S. Highway 1.

Rule 56(c) of the Federal Rules of Civil Procedure states in part that summary judgment "* * * shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

The defendant did not base his defense on the ground that the certificate was a mistake and incorrectly represented the intention of the Commission, but rather on the ground that the provision in the certificate relating to irregular routes was not ambiguous. The defendant...