Gulf Coast Motor Freight Lines v. United States

• Decision Date: 17 April 1940
• Docket Number: Civ. No. 317.
• Parties: GULF COAST MOTOR FREIGHT LINES, Inc., v. UNITED STATES et al.
• Court: U.S. District Court — Southern District of Texas

35 F. Supp. 136

GULF COAST MOTOR FREIGHT LINES, Inc., v. UNITED STATES et al.

Civ. No. 317.

District Court, S. D. Texas, Houston Division.

April 17, 1940.

J. J. Shaw, of Houston, Tex., and Amos M. Felts, of Austin, Tex., for plaintiff.

Scott & Wilson, of Waco, Tex., and Baker, Botts, Andrews & Wharton, of Houston, Tex., for defendant.

Before HUTCHESON, Circuit Judge, and KENNERLY and BRYANT, District Judges.

HUTCHESON, Circuit Judge.

Plaintiff applied to the commission under the two provisos of Section 306(a), 49 U. S.C.A., the first, or "grandfather" proviso; the second or certificate clause.¹ At the hearing it made no serious effort to make proof under the first proviso, but rested its rights upon the second proviso and a permit or certificate, it had obtained from the Texas State Commission, not of public convenience and necessity, but that its operation in interstate commerce between named points in the state of Texas would not injuriously interfere with or affect the highways or the safety of public travel thereon. The commission, finding that plaintiff was not in bona fide operation under the "grandfather" clause and that the certificate it held was not the kind of certificate the second proviso dealt with, refused plaintiff's application under both provisos. In this suit, plaintiff, not at all basing its claim upon the "grandfather" proviso, directs its whole attack, upon the order, to the action of the commission in refusing to recognize its state certificate as a compliance with the second proviso.

The issue in this case is very simple and should be as simply decided. It is whether the State Board Certificate the second proviso deals with must be one of public convenience and necessity, as the Interstate Commerce Commission has held in this case, or may be merely a certificate or permit from the commission under its police powers certifying that interstate traffic by the carrier between named points in the state will not injure the highway or affect public safety thereon.

The argument of Gulf Coast, in insisting that it may be the latter, runs directly counter to McDonald's argument in his case, that the state commission has no jurisdiction to issue permits or certificates of any kind to do interstate business between Texas points and that operation without such a certificate does not affect an operator's bona fides.

We think it quite plain that McDonald is wrong in his claim; that the state commission is without authority of any kind over those doing a purely interstate business; and that his controversy with the state commission did not affect his bona fides, and we have said so in his case this day decided. We think it equally plain that Gulf Coast is wrong in its claim that a state commission certificate or permit to carry interstate is a certificate within the second proviso of 306 (a). The truth of the matter is to be found here. The state commission undoubtedly has the right to prevent or permit operation interstate between named points on particular highways on considerations of the safety of the highway and of the public traveling thereon. McDonald v. Commission, 35 F.Supp. 132, this day decided. But, permits granted on these considerations are not certificates of public convenience and necessity, which based upon considerations of traffic needs, the state commission is primarily charged with issuing or with holding for intrastate operation in accordance with those needs. It is this kind of certificate with which the second proviso deals.

It will not do, as Gulf Coast contends, to say that this proviso overcondensed at the expense of clarity, by the use eight times in a...