Great Northern Railway Company v. Thompson
| Decision Date | 21 October 1963 |
| Docket Number | Civ. No. 545. |
| Parties | GREAT NORTHERN RAILWAY COMPANY, a Minnesota Corporation, Plaintiff, v. Richard J. THOMPSON, Bruce Hagen, and Ben J. Wolf, Commissioners of the North Dakota Public Service Commission, Harold T. Upgren, Director, Motor Carrier Division, North Dakota Public Service Commission, and Ralph Wood, Superintendent, North Dakota State Highway Patrol, Defendants. |
| Court | U.S. District Court — District of South Dakota |
Frank J. Magill, of Nilles, Oehlert & Nilles, Fargo, N. D., and Elmer B. Trousdale, St. Paul, Minn., for plaintiff.
Gerald G. Glaser, Sp. Asst. Atty. Gen., and John Stewart, Asst. Atty. Gen., Bismarck, N. D., for defendants.
Before VOGEL, Circuit Judge, and REGISTER and BECK, District Judges.
This action was brought to enjoin the enforcement by defendants against plaintiff of specific North Dakota statutes requiring certificates of public convenience and necessity of common carriers by motor vehicles engaged in North Dakota intrastate commerce, insofar as the transportation of specific items by plaintiff from its railheads in north central North Dakota to designated ballistic missile sites in that area is concerned. The complaint, filed on June 25, 1963, prayed for an order convoking a three-judge court pursuant to the provisions of 28 U.S. C.A. § 2284, a temporary injunction and a permanent injunction. Plaintiff's application for temporary injunction was presented to District Judge Register on said date and, upon due consideration was, on the same day, issued.
Subsequently, by order of the Chief Judge of this Circuit, this Court was designated to hear and determine the proceedings herein.
On July 5, 1963, defendants filed their motion to dismiss the complaint upon the ground "the court has no jurisdiction of the subject matter and that the complaint fails to state a claim upon which relief can be granted". On August 1, plaintiff filed its amended complaint (which document was filed pursuant to stipulation of the parties, and which stipulation provided that defendants' prior motion to dismiss could be considered interposed as the responsive pleading to the amended complaint).
On August 27 hearing was had at Fargo, North Dakota, at which time arguments were heard first on defendants' motion to dismiss. After taking said motion under advisement, this Court proceeded to hear all matters in issue. Counsel stipulated as to certain evidence on the merits; plaintiff presented evidence on the merits; testimony of witnesses was presented by direct and cross-examination; and, after counsel had rested their respective cases, they presented argument and the case was submitted and taken under advisement.
During argument on the motion to dismiss, counsel for defendants stipulated that, for the sole purpose of such motion, the transportation here involved was interstate commerce.
Also, at the time of such hearing, plaintiff moved to amend the temporary restraining order (which by its own terms expired on the date of said hearing) so that the same be effective until the final determination of this action; counsel for defendants stipulated to the preparation and filing of such amended temporary restraining order. By order, we granted such motion, and an amended temporary restraining order was duly filed on September 13, 1963.
Counsel for both sides have thoroughly and ably briefed the issues here involved.
The Court now being fully advised in all the premises, makes and enters the following findings of fact, memorandum, conclusions of law, and order for judgment.
1. Plaintiff, a Minnesota corporation, is a common carrier by railroad engaged in intrastate and interstate commerce. It operates a line of railroad from Sioux City, Iowa, and St. Paul, Minnesota (where it connects with other rail carriers operating south and east thereof), to the points of Minot, Kenaston, Palermo and Mohall, North Dakota, among others.
2. The defendants, Richard J. Thompson, Bruce Hagen and Ben J. Wolf are the duly elected or appointed commissioners of the North Dakota Public Service Commission with offices in the North Dakota State Capitol Building, Bismarck, North Dakota. The defendant Harold T. Upgren is presently the duly appointed director of the motor carrier division of the said North Dakota Public Service Commission, State Capitol Building, Bismarck, North Dakota. The defendant Ralph Wood is Superintendent of the North Dakota State Highway Patrol, State Capitol Building, Bismarck, North Dakota.
3. Chapter 49-18 of the North Dakota Century Code contains, generally, the law relating to the supervision and regulation of motor carriers in the state of North Dakota.
Section 49-18-07, N.D.C.C., provides that:
Section 49-18-08 provides in part that, "The commission shall supervise and regulate all common motor carriers of property or passengers as defined in section 49-18-01 * * *", and said commission is granted broad and general powers in connection therewith.
Section 49-18-44 provides that:
Section 49-18-44 provides that:
"Every office agent and employee of any corporation, person, or co-partnership, and every other person, who violates, fails to comply with, or who procures, aids, or abets in the violation of any provision of this chapter, or who fails to obey, observe, or comply with any of the rules or regulations, or of any part or provision thereof, is guilty of a misdemeanor and shall be punished by a fine of not more than one hundred dollars, or by imprisonment in the county jail for not more than thirty days, or by both such fine and imprisonment."
Section 49-18-45 provides in part that, "The highway patrol shall enforce the provisions of this chapter in any part of the state", and "The commission, together with its officers and employees and the highway patrol, shall assist in the enforcement of this chapter and shall institute, or cause to be instituted, prosecutions for the violation of any of the provisions hereof."
As heretofore stated, this suit was brought to enjoin the enforcement by defendants against the plaintiff of the above quoted statutes.
4. On January 16, 1962, plaintiff filed an application with the Interstate Commerce Commission under Section 210a (a) of the Interstate Commerce Act, 49 U.S.C.A. § 310a(a), for temporary authority to conduct operations as a common carrier by motor vehicle from its railheads in the area of Minot, North Dakota, to 150 missile sites and 15 launch control centers comprising the Minot, North Dakota, Minuteman Missile Complex. Said application covered all contractors' equipment, material and supplies to be used in the construction of that missile base but was limited to motor carrier service which was auxiliary to and supplementary of the rail service of the plaintiff, and to the handling of traffic having a prior or subsequent movement by rail to or from points outside of North Dakota. Effective February 6, 1962, this temporary authority was granted by the Interstate Commerce Commission in I.C.C. Docket MC 28573 sub 19TA. Plaintiff thereafter began operations under that authority, transporting shipments to the missile sites by motor vehicle from certain of its North Dakota railheads, which shipments it had transported to those North Dakota railheads from points outside the state via its railroad.
5. On December 5, 1962, the Interstate Commerce Commission denied plaintiff's application for permanent authority to conduct the motor carrier operations specified in paragraph 4 above and on April 26, 1963, denied plaintiff's petition for rehearing and reconsideration of that decision. Great Northern Ry. Co. Extension, Minot, North Dakota Ballistic Missile Sites, MC 28573 sub 17. Plaintiff's temporary authority granted February 6, 1962, expired by force of other Interstate Commerce Commission orders on or about May 16, 1963.
6. On May 20, 1963, plaintiff filed an application with the Interstate Commerce Commission for 30-day emergency temporary motor carrier authority for the same service specified above, on the ground, among others, that large quantities of missile site traffic had accumulated at its railheads of Palermo and Kenaston, North Dakota (particularly large...
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