International Transport, Inc. v. United States, 2136

• Court: United States District Courts. 8th Circuit. Western District of Missouri
• Citation: 337 F. Supp. 985
• Decision Date: 21 January 1972
• Docket Number: 2141 and 2144.,No. 2136,2136
• Parties: INTERNATIONAL TRANSPORT, INC., Plaintiff, C & H Transportation Co., Inc., and J. H. Rose Truck Line, Inc., Intervening Plaintiffs, v. UNITED STATES of America and Interstate Commerce Commission, Defendants (two cases). LEONARD BROS. TRUCKING CO., Inc., Plaintiff, C & H Transportation Co., Inc., and J. H. Rose Truck Line, Inc., Intervening Plaintiffs, v. UNITED STATES of America and Interstate Commerce Commission, Defendants.

337 F. Supp. 985

INTERNATIONAL TRANSPORT, INC., Plaintiff,
C & H Transportation Co., Inc., and J. H. Rose Truck Line, Inc., Intervening Plaintiffs,
v.
UNITED STATES of America and Interstate Commerce Commission, Defendants (two cases).
LEONARD BROS. TRUCKING CO., Inc., Plaintiff,
C & H Transportation Co., Inc., and J. H. Rose Truck Line, Inc., Intervening Plaintiffs,
v.
UNITED STATES of America and Interstate Commerce Commission, Defendants.

Nos. 2136, 2141 and 2144.

United States District Court, W. D. Missouri, Southwestern Division.

January 21, 1972.

337 F. Supp. 986

Karl Schmidt, Morrison, Hecker, Cozad, Morrison & Curtis, Kansas City, Mo., Van Osdel, Foss, Johnson & Miller, Fargo, N. D., Lord, Bissell & Brook, Chicago, Ill., for International Transport Inc.

Helliwell, Melrose & DeWolf, Miami, Fla., Turney & Turney, Washington, D. C., for Leonard Bros. Trucking Co., Inc.

Stephen P. Murphy, Kansas City, Mo., for Munitions Carriers Conference, Inc.

337 F. Supp. 987

Lawrence R. Brown, Stinson, Mag, Thomson, McEvers & Fizzell, Kansas City, Mo., for Tri-State Motor Transit Co., Hughes Transportation, Inc., Riss & Co., Inc. and C. I. Whitten Transfer Co.

Shelby Highsmith, Miami, Fla., Rice, Carpenter, & Carraway, Washington, D. C., for Regular Common Carriers Conference.

J. Thomas Cardwell, Orlando, Fla., for Gateway Transportation Co., Inc.

Calvin K. Hamilton and Paul A. White, Asst. U. S. Attys., Kansas City, Mo., John D. Wigger, Gen. Counsel, Dept. of Justice, Manny H. Smith, Washington, D. C., I.C.C., for the United States and I.C.C.

HUNTER, District Judge.

This proceeding concerns the right of the respondent heavy-hauler, International Transport, Inc., to transport 500 and 750 pound bombs on pallets each of which, when loaded, weigh in excess of 3,000 and 1,700 pounds respectively, pursuant to its motor common carrier authority to haul commodities which because of size or weight require the use of special equipment. Two prior reports of the Interstate Commerce Commission found that International did not have that right. See, 108 M.C.C. 275 and MC-C-5766 dated October 29, 1971. The matter is now before us for review and appropriate action.

History of the Litigation

Plaintiff, International Transport, Inc., a North Dakota Corporation, is a motor common carrier holding, in addition to other certificates, No. MC-113855 (Sub. No. 84) which authorizes the transportation of commodities which by reason of size or weight require the use of special equipment (a) from Beresford, Sioux Falls, Dell Rapids and Hawarden, South Dakota, to points in California and Washington, and (b) between points in South Dakota, on the one hand, and on the other, points in Nebraska and Indiana.

Assertatively in reliance upon the decision of the Interstate Commerce Commission in Moss Trucking Co., Inc., Investigation of Operations, 103 M.C.C. 91 (1966) International commenced the transportation of a wide line of palletized explosives, including 500 and 750 pound bombs, from military ammunition depots in the midwestern United States to ports of embarkation on the Pacific Coast. In June, 1967, four motor common carriers¹ of explosives instituted a legal action² in the United States District Court for the Western District of Missouri, Southwestern Division, seeking an injunction against the transportation of any and all commodities described by federal regulation as Class A and B explosives.³ The District Court (Judge Hunter) after an evidentiary hearing found that the questioned activities, insofar as they involved the movement of boxed and packaged consignments not exceeding 150 pounds in weight, were outside the scope of International's authority and issued a preliminary injunction against the continuance of such transportation. (Civil Action No. 2054, Tri-State Motor Transit Co. v. International Transport, Inc.) In that action Judge Hunter also determined that the status under "size and weight" authority of the 500 and 750 pound bombs, as well as the more basic and broader question of the right of heavy haulers to transport explosives generally, were matters appropriately within the primary jurisdiction of the Interstate Commerce Commission in the exercise of its expertise. Accordingly, Judge Hunter withheld decision on these issues, and, as a result, the Interstate

337 F. Supp. 988

Commerce Commission on September 14, 1967, instituted an investigation in Docket No. MC-C-5766 to determine whether International was and had been transporting commodities not authorized under its certificate, namely, 500 and 750 pound bombs. The initiating order directed the Bureau of Enforcement to participate as a party. Certain motor and rail carrier associations, a number of individual motor carriers, and the Department of Defense intervened in the proceedings in accordance with what they believed to be their particular interests.⁴ After an evidentiary hearing before the full commission it found, and held International to be without authority to transport the 500 and 750 pound bombs in interstate commerce.⁵

International then filed a Bill of Complaint in the Southwestern Division of the Western District of Missouri to set aside the Commission's order (Civil Action No. 2136). International also filed an identical appeal from the same order of the Commission in the United States District Court for the District of North Dakota. That case, by stipulation of the parties, has been transferred to the Southwestern Division of the Western District of Missouri where it became Case No. 2141.

Leonard Brothers, an intervenor before the Commission in its mentioned investigation, appealed from the Commission's order therein in the United States District Court for the Southern District of Florida, Miami Division. The three-judge court in that proceeding transferred it to this court where it became Case No. 2144.⁶ The two appeals of International (Cases Nos. 2136 and 2141) and the appeal of Leonard Bros. (Case No. 2144) have been consolidated by order of court.⁷

Jurisdiction

The jurisdiction and venue for review of the Interstate Commerce Commission report and orders here in question is in the Western District of Missouri.

The Interstate Commerce Commission order before us arose out of Judge Hunter's action in Civil Action No. 2054 including his stay of the self-help proceedings in accordance with Section 322(b) (3) and his referral of the matter to the Interstate Commerce Commission for primary determination within the meaning and provisions of 28 U.S.C. §§ 1336(b) and 1398(b).⁸ From

337 F. Supp. 989

their briefs it appears that some of the parties are doubtful as to whether § 1336 (b) gives review jurisdiction to a single-judge court or to a three-judge court where a one-judge district court refers a question to the Interstate Commerce Commission

Three-judge court jurisdiction as contrasted with single judge court jurisdiction in matters such as this has disturbed the efficient administration of justice for many years. To ameliorate the problem, on August 30, 1964, Congress enacted Public Law 88-513, which in pertinent portion reads: "(b) When a district court or the Court of Claims refers a question or issue to the Interstate Commerce Commission for determination, the court which referred the question or issue shall have exclusive jurisdiction of a civil action to enforce, enjoin, set aside, annul, or suspend, in whole or in part, any order of the Interstate Commerce Commission arising out of such referral."

Prior to the enactment of Public Law 88-513 whenever the Court of Claims or District Court referred the issue to the Interstate Commerce Commission for a resolution, the Commission order emanating therefrom was subject to judicial review by a three-judge district court, pursuant to 28 U.S.C. §§ 1336, 1398, 2284, 2321-2325, rather than by the referring court. Consequently, the referring court had to await the decision of the three-judge court, the Supreme Court, if an appeal was taken, and any other proceedings which might result from such judicial decisions, before it could proceed to final judgment. See Pennsylvania R. R. v. United States, 363 U.S. 202, 80 S.Ct. 1131, 4 L.Ed.2d 1165 (1960).

The 1964 amendment to 28 U.S.C. §§ 1336 and 1398, Public Law 88-513, authorizing the referring court to have exclusive jurisdiction to review the Commission's order resulting from the referral, was designed to overcome this "cumbersome and inefficient" procedure. S. Rep.No.1394, 88th Cong., 2d Sess. 2 (1964), U.S.Code Cong. & Admin.News, 1964, p. 3235; H.R.Rep.No.1015, 88th Cong., 1st Sess. 2 (1964).^* Thus, since the 1964 amendment, the referring court, rather than a three-judge district court, has reviewed the Commission's order because of its exclusive jurisdiction. See, McLean Trucking Co. v. United States, 181 Ct.Cl. 170, 387 F.2d 657, 659-660 (1967); Seaboard Air Line R. R. v. United States, 181 Ct.Cl. 719, 387 F.2d 651, 654-655 (1967)^**; Leonard Brothers Trucking Co. v. United States, 301 F.Supp. at 896.⁹

337 F. Supp. 990

All three judges have concurred in the instant decision, including Judge Hunter, both in his capacity as the one-judge court which referred the matter to the Interstate Commerce Commission, and as a member of the three-judge court. Therefore, no possible problem is presented, and it is not necessary to further discuss venue and jurisdiction.

Background of the Dispute

The First Hearing By The Interstate Commerce Commission

As earlier indicated, the Commission had two hearings, both resulting in its finding and order that International as a heavy hauler had exceeded its certificate authority in transporting 500 and 750 pound bombs (palletized) and should cease and desist all such carriages. In its initial hearing the Commission related in some detail the background and history of the federal regulation of the transportation of explosives for hire. Shortly after motor carriers came under its jurisdiction the Interstate...