Dixie Ohio Express, Inc. v. United States

• Decision Date: 29 December 1966
• Docket Number: No. C-65-102.,C-65-102.
• Citation: 263 F. Supp. 993
• Parties: DIXIE OHIO EXPRESS, INC., Plaintiff, v. UNITED STATES et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

263 F. Supp. 993

DIXIE OHIO EXPRESS, INC., Plaintiff, v. UNITED STATES et al., Defendants.

No. C-65-102.

United States District Court N. D. Ohio, E. D.

December 29, 1966.

COPYRIGHT MATERIAL OMITTED

Clarence A. Kelley, Akron, Ohio, and Harry McChesney, Jr., McChesney & Kinker, Frankfort, Ky., for plaintiff.

Merle M. McCurdy, U. S. Dist. Atty., Cleveland, Ohio, and John H. D. Wigger, Dept. of Justice, Washington, D. C., for defendant.

Raymond M. Zimmet, Office of Gen. Counsel, Washington, D. C., for Interstate Commerce Commission.

James W. Wrape, Robert E. Joyner, Memphis, Tenn., for intervenors, Baggett Transp. Co. and Gordons Transports, Inc.

OPINION

Before O'SULLIVAN, Circuit Judge, and BATTISTI and GREEN, District Judges.

BATTISTI, District Judge:

This is an action to enjoin, set aside, and annul certain orders of the Interstate Commerce Commission (hereinafter I.C.C.) entered in a consolidated proceeding embracing docket numbers MC-C-3945, MC-43654, and MC-43654 (Sub-No. 54). The action is brought pursuant to 28 U.S.C.A., Sections 1336, 1398, 2284, and 2321-2325; 49 U.S.C.A., Sections 17 (9), 305(g), and 305(h); and 5 U.S.C.A., Section 1009.

In 1941 the I.C.C. granted plaintiff Dixie Ohio Express, Inc.'s predecessor¹ a certificate of public convenience and necessity under the so-called "grandfather clause" contained in Section 206 (a) of the Motor Carrier Act of 1935 (49 U.S.C.A., Section 306(a) (1)). The first portion of this certificate authorized the transportation of general commodities between Akron, Ohio and Atlanta, Georgia, and Birmingham, Alabama over certain regular routes, and, further, specifically provided that the holder could serve all intermediate points on said regular routes. Following this grant of authority, the same certificate contained an additional grant, as follows:

REGULAR AND IRREGULAR ROUTES

Tires, tubes, rubber articles, cotton factory products, cotton cord tire fabric, cotton fabrics, wooden winding cores, burlap discs, in truckloads,

Between Akron, Ohio, and points in Alabama and Georgia:

From Akron over above-specified regular routes to Alabama and Georgia State lines, thence over irregular routes to points in Alabama and Georgia, and

Return over irregular routes to the Alabama and Georgia State lines, thence over the above-specified routes to Akron.

The above-quoted portion of plaintiff's grandfather certificate is the focal point of this litigation and will be referred to hereinafter as its "regular and irregular route" authority.

On July 5, 1962, Dixie Ohio Express, Inc., (hereinafter DOX) instituted two proceedings before the I.C.C. In the first proceeding,² hereinafter referred to as modification proceeding, DOX sought to reopen its grandfather proceeding for the purpose of obtaining certain modifications and clarifications of its "regular and irregular route" authority. Specifically, DOX sought the following three modifications and clarifications:

1. The substitution of the phrase "textile factory products" for the phrase "cotton factory products."

2. The deletion or clarification of the phrase "in truckloads."

3. The rewording of the route description to make it clear that an irregular territorial operation south of the southern border of Tennessee could be joined at such border to each of the regular routes crossing it and then service be rendered at any of the authorized intermediate points on the regular routes.

To effectuate these modifications and clarifications, DOX proposed that its "regular and irregular route" authority be amended to read as follows:

IRREGULAR ROUTES

Tires, tubes, rubber articles, textile factory products, wooden winding cores and burlap discs,

Between points and places in Alabama and Georgia on the one hand, and, on the other, Ardmore, Alabama (Old U. S. Highway 31), Ringgold, Georgia (Old U. S. Highway 41), Dalton, Georgia (Georgia Highway 71), Wildwood, Georgia (Old U. S. Highway 11), and Cartersville, Georgia (U. S. Highway 411).

In the second proceeding,³ hereinafter referred to as the application proceeding, DOX sought to obtain a certificate of public convenience and necessity encompassing the "modifications" and "clarifications" proposed in the modification proceeding. This relief was sought only in the event that the relief requested in the modification proceeding was denied.

By an order entered October 2, 1962, the I.C.C. on its own motion instituted an investigation under Sections 204(c) and 212(a) of the Interstate Commerce Act to determine whether DOX, in violation of Sections 206(a) and 209(a) of the Act, 49 U.S.C.A., Sections 306(a) (1), 309(a) (1), had been transporting in interstate commerce certain shipments of tire fabric from Rockmart, Georgia to Cincinnati, Ohio without a permit or certificate authorizing the same. This third proceeding⁴ will hereinafter be referred to as the investigation proceeding.

The three proceedings were consolidated before an I.C.C. hearing examiner because one issue was common to each, that is to say, whether DOX was, or should be authorized to serve intermediate points while traversing its regular routes pursuant to its "regular and irregular route" authority. Eight motor carriers filed protests.

On April 8, 1963, the I.C.C. hearing examiner served a lengthy recommended report and order. In his recommended report and order the hearing examiner first observed that for many years DOX transported from two to fifteen truckloads of tire fabric a month from Rockmart, Georgia to Cincinnati, Ohio; and that until the I.C.C.'s order of October 17, 1962, DOX had been given no formal notice that its right to render such service was in any manner questionable. The hearing examiner then noted that the propriety of rendering such service depended on whether the grandfather certificate authorized DOX to serve intermediate points while traversing its "regular routes" north of the Alabama and Georgia state lines pursuant to the "regular and irregular route" authority.

The I.C.C.'s Bureau of Inquiry and Compliance contended that the reference to DOX's "regular routes" in the "regular and irregular route" portion of its certificate did not authorize service to all intermediate points on the regular routes, but, rather, merely indicated the routes which DOX was authorized to use pursuant to a radial irregular route grant with Akron as its "base point" and points in Alabama and Georgia as its "service territory."⁵ DOX contended that the reference to its "regular routes" in the regular and irregular route" portion of its certificate indicated that it could, while traversing its regular routes north of the Alabama and Georgia borders, serve all intermediate points in the same manner that it could do so under the preceding "regular route" portion of its certificate.

The hearing examiner concluded that the evidence in support of DOX's grandfather application could have justified a grant of authority to points in addition to Akron; and, further, that this was the apparent reason for the grant of "regular and irregular" authority. The examiner further concluded that the use of the phrase "regular and irregular routes" indicated that a portion of the authority granted under such heading was intended to be "regular route" authority carrying with it the appurtenant right to serve intermediate points. Noting that the "regular and irregular route" portion of the certificate makes reference to the "regular routes" described in the preceding "regular route" portion of the certificate, the hearing examiner concluded that the extent of DOX's "regular route" authority under the "regular and irregular" grant must be ascertained by making reference to said "regular route" authority. As stated by the examiner:

"It is the examiner's opinion that the portion of DOX's grandfather certificate involved herein had the effect of authorizing DOX to transport the commodities specified therein between points in Georgia and Alabama, on the one hand, and, on the other, points where DOX's regular routes cross the southern boundary of Tennessee, over irregular routes, and thence over DOX's regular routes to all points where DOX is authorized to serve, north of these crossings. Since DOX's regular route authority includes service at all intermediate points, DOX is authorized to transport tires, etc., including tire fabric between points in Alabama and Georgia, including Rockmart, Georgia, on the one hand, and, on the other, intermediate points on DOX's regular routes north of the Tennessee State line to Akron, Ohio, including Cincinnati, Ohio and other intermediate points."

In light of his finding that DOX had authority to serve Cincinnati, the hearing examiner recommended that the investigation proceeding be dismissed.

In his discussion of the modification proceeding, the hearing examiner first noted that the same evidence was offered in the application proceeding. In his report and order, however, the hearing examiner did not analyze the evidence in terms of the proofs required for the granting of the relief requested in the application proceeding. This may be accounted for by the fact that he ultimately found that DOX was entitled to the relief it sought under the modification proceeding, and, therefore, that the application proceeding should be dismissed.

With regard to the route description problem, the hearing examiner recommended that the "regular and irregular" portion of DOX's certificate be modified to provide irregular route authority "between Louisville and Lexington, Kentucky, on the one hand, and on the other, points in Alabama and Georgia." This recommendation was not entirely consistent with his earlier conclusion that the "regular and irregular route" portion of DOX's certificate already authorized it to serve all intermediate points while traversing its regular routes north of the Alabama and Georgia borders.⁶ Under the modification recommended by the hearing examiner, DOX would be authorized to serve...