Great Western Packers Express, Inc. v. United States, Civ. A. No. 9207.

• Decision Date: 15 September 1965
• Docket Number: Civ. A. No. 9207.
• Citation: 246 F. Supp. 151
• Parties: GREAT WESTERN PACKERS EXPRESS, INC., Plaintiff, v. UNITED STATES of America and Interstate Commerce Commission, Defendants, Ringsby Truck Lines, Inc., Rocky Mountain Motor Tariff Bureau, Inc., Watson-Wilson Transportation System, Inc., Midwest Emery Freight System, Inc., Little Audrey's Transportation Co., Inc., and Midwest Coast Transport, Inc., Intervenors.
• Court: U.S. District Court — District of Colorado

246 F. Supp. 151

GREAT WESTERN PACKERS EXPRESS, INC., Plaintiff, v. UNITED STATES of America and Interstate Commerce Commission, Defendants Ringsby Truck Lines, Inc., Rocky Mountain Motor Tariff Bureau, Inc., Watson-Wilson Transportation System, Inc., Midwest Emery Freight System, Inc., Little Audrey's Transportation Co., Inc., and Midwest Coast Transport, Inc., Intervenors.

Civ. A. No. 9207.

United States District Court D. Colorado.

September 15, 1965.

COPYRIGHT MATERIAL OMITTED

Singer & Hardman, Chicago, Ill., and Holme, Roberts, More & Owen and Richard L. Schrepferman, Denver, Colo., for plaintiff.

Donald F. Turner, Asst. Atty. Gen., and John H. D. Wigger, Atty., Dept. of Justice, Washington, D. C., and Lawrence M. Henry, U. S. Atty., Denver, Colo., for defendant United States of America.

Robert W. Ginnane, Gen. Counsel, and Clarence William Vandergrift, Asst. Gen. Counsel, Interstate Commerce Commission, Washington, D. C., for defendant Interstate Commerce Commission.

Jones, Meiklejohn, Kehl & Lyons and Alvin J. Meiklejohn, Jr., Denver, Colo., for intervenor Ringsby Truck Lines, Inc.

LeGrand A. Carlston and Z. L. Pearson, Jr., Denver, Colo., for intervenor Rocky Mountain Motor Tariff Bureau, Inc.

David Axelrod and Edward G. Bazelon, Chicago, Ill., and Z. L. Pearson, Jr., and LeGrand A. Carlston, Denver, Colo., for intervenors Watson-Wilson Transportation System, Inc., Midwest Emery Freight System, Inc., and Little Audrey's Transportation Co., Inc.

Donald L. Stern, Omaha, Neb., and Alvin J. Meiklejohn, Jr., Denver, Colo., for intervenor Midwest Coast Transport, Inc.

Before BREITENSTEIN, Circuit Judge, and ARRAJ and CHILSON, District Judges.

BREITENSTEIN, Circuit Judge.

This action was brought to enjoin and set aside the order of the Interstate Commerce Commission entered in Investigation and Suspension Docket No. M-19660, Fresh Meats and PHP via Thunderbird Freight Lines, Inc. We have jurisdiction under 28 U.S.C. § 1336 and hearing by a three-judge district court is required by 28 U.S.C. § 2325. The defendants and the intervenors have moved to dissolve the temporary restraining order heretofore issued and to dismiss the complaint.

The substance of the complaint is that between February 8 and June 14, 1965, the plaintiff in conjunction with J. B. Montgomery, Inc., and Milne Truck Lines, Inc., participated in the tariff of A. R. Fowler, Agent, naming through routes and joint rates for the transportation of meats and packing house products from Midwest origins to points in California. Each carrier handled a portion of the haul with Milne taking care of that between Arizona points and California. Pursuant to action by Milne, Fowler cancelled Milne from the tariff and at the same time added Thunderbird Freight Lines, Inc., as a participating carrier. The publication of the tariff adding Thunderbird was protested by Rocky Mountain Motor Tariff Bureau and the Commission's Board of Suspension suspended the operation of the tariff schedules for seven months and ordered an investigation of the lawfulness of the schedules. A petition to vacate the suspension order was denied by Division 2 of the Commission acting as an Appellate Division. These actions left plaintiff and Montgomery without means of completing the Arizona-California leg of the through route on a joint rate basis. Plaintiff applied for temporary authority covering the Prescott, Arizona-Los Angeles, California portion of the route and that authority was denied by the Temporary Authorities Board of the Commission. Plaintiff then filed this suit and obtained a temporary restraining order enjoining the suspension.

Section 216(g) of the Interstate Commerce Act, 49 U.S.C. § 316(g),¹ authorizes the Commission to suspend for seven months "a new individual or joint rate, fare, charge, or classification * * * or any rule, regulation, or practice affecting such rate, fare, or charge, or the value of the service thereunder." The order of suspension reads in part:

"It appearing, That there have been filed with the Interstate Commerce Commission tariff schedules setting forth new reduced rates and charges, and new rules, regulations and practices affecting such rates and charges, applicable on interstate or foreign commerce, to become effective June 10, 1965, and later, designated as follows: Here is set out the addition of Thunderbird Freight Lines, Inc., as a participating carrier in the pertinent Fowler tariff * * *."

The grant or denial of suspension of a proposed rate is discretionary with the Commission and not judicially reviewable,² unless the action taken is in excess of the powers delegated to the Commission by statute.³ The controlling issue is whether § 216(g) empowers the Commission to suspend under the facts here presented.

The sharply defined question is whether the participation by Thunderbird in the joint rate for the through route is a new rate, charge, rule, regulation or practice which § 216(g) empowers the Commission to suspend. Our attention is directed to no pertinent judicial decision.

Plaintiff relies on the fact that the rate was established prior to the participation by Thunderbird and argues that such participation did not make it a new rate. It is true that the rate remained the same but the withdrawal of Milne from the tariff changed the status. Motor common carriers of property may establish through routes and joint rates,⁴ but no statute requires them, or authorizes the Commission to require them, to do so. Hence, Milne was free to discontinue its participation in the three-line joint rate. After it did so the joint rate of the three carriers was no longer effective. Milne's action eliminated the through operation.

This controversy began when Thunderbird filed its participation in the Fowler tariff. The action of the Commission was the suspension of the tariff schedule covering the participation of Thunderbird in the through route and joint rate. This rate was new to Thunderbird. Additionally the action by Thunderbird created a new joint rate in that it created a rate which applied to a tri-partite movement participated in by plaintiff, Montgomery and Thunderbird. Before then the only way traffic could have moved over the routing of these carriers was by a combination rate.

Section 216(g) not only authorizes the suspension of a new rate or charge but also the suspension of a regulation or practice affecting the rate or charge. If it be considered that the rate is not new because it is the same as that under which plaintiff and Montgomery were formerly operating with the participation of Milne, the addition of Thunderbird...