Lang Transp. Corporation v. United States, Civil Action No. 6403.
| Citation | 75 F. Supp. 915 |
| Decision Date | 05 January 1948 |
| Docket Number | Civil Action No. 6403. |
| Court | U.S. District Court — Southern District of California |
| Parties | LANG TRANSP. CORPORATION et al. v. UNITED STATES et al. (CANTLAY & TANZOLA, Inc., Intervener). |
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Berol & Handler, by Edward M. Berol and Marvin Handler, all of San Francisco, Cal., for Lang Transp. Corporation, plaintiff.
W. Wallace Wilhite, of San Francisco, Cal., for Pacific Southwest R. Ass'n, plaintiff, and for Union Pac. R. Co., amicus curiae.
Harold G. Hernley, of Washington, D. C., for other plaintiffs.
Wendell Berge, Asst. Atty. Gen., Edward Dumbauld, Sp. Asst. to Atty. Gen., and James M. Carter, U. S. Atty., by Ronald Walker and Robert Komins, Asst. U. S. Attys., all of Los Angeles, Cal., for the United States, defendant.
Daniel H. Kunkel, of Washington, D. C., for Interstate Commerce Commission, Defendant.
Phil Jacobson, of Los Angeles, Cal., for Cantlay & Tanzola, Inc., Intervener.
Before ALBERT LEE STEPHENS, Circuit Judge, and HARRISON, and J. F. T. O'CONNOR, District Judges.
The intervener, Cantlay & Tanzola, Inc., a California corporation, filed on January 30, 1941, an amended application with the Interstate Commerce Commission, requesting a Certificate of Public Convenience and Necessity. The petition requested the Commission to grant the intervener the right to operate as a common carrier by motor vehicle over irregular routes in the transportation of petroleum and petroleum products in bulk, with certain exceptions. The route requested was from points in Ventura, Los Angeles and Orange Counties, California, to points in Nye, Esmeralda and Clark Counties, Nevada, and Washington, Kane, Iron and Garfield Counties, Utah, and return with rejected or contaminated shipments of such commodities, traversing Arizona for operating convenience when necessary.
The plaintiff, Lang Transportation Corporation, a California corporation, common carrier by motor vehicle, was issued a Certificate of Public Convenience and Necessity dated August 10, 1943, to transport petroleum and petroleum products to the same general territory which the Commission had authorized the intervener to serve by Order of April 8, 1946.
By reason of acquiring several other carriers prior to or about the time that intervener entered the field, the plaintiff (Lang) enjoyed a virtual monopoly of the transportation of petroleum products by motor vehicle in interstate commerce within the territory involved.
The plaintiff Lang, and others, hereinafter sometimes designated as protestants, intervened before the Interstate Commerce Commission in opposition to said application. The Interstate Commerce Commission will be referred to as the Commission.
Subsequent to the filing of the application of Cantlay & Tanzola, Inc., as amended, on or about January 30, 1941, hearings were held in Los Angeles, California, on August 7 and 8, 1941, before an Examiner of the Commission, and thereafter the proceeding was referred by the Commission to an Examiner for completion of the hearing and recommendation of an appropriate order. Pursuant to such reference, a further hearing was held and completed on April 23, 1942, at Las Vegas, Nevada. By a report and order recommended by F. Roy Linn, Examiner, served on or about July 23, 1942, the said Examiner found that public convenience and necessity did not require the service for which authority was requested by Cantlay & Tanzola, Inc., and recommended that the application be denied.
Thereupon, Cantlay & Tanzola, Inc., filed exceptions to said report and order to which plaintiffs and others replied, and by a report of the Commission, Division 5 thereof, decided on March 4, 1943 (42 N. C.C. 835), the Commission denied the application, Commissioner Lee dissenting.
Intervener filed petition for reconsideration, to which plaintiffs herein and others replied, and the Commission issued an order on reconsideration, Division 5, dated November 30, 1943 (43 M.C.C. 844), reversing itself and granted the application, Commissioner Patterson dissenting.
Thereafter, upon petition by plaintiff herein, and others, the proceeding was reopened by order of the Commission dated May 22, 1944, and the application assigned for further hearing and the recommendation of an appropriate order. Further hearings were held in Los Angeles, California on November 15, 16, 17 and 18, 1944, before Examiner F. Roy Linn. The Examiner, on or about May 4, 1945, served his report on further hearing, in which he again recommended denial of the application. Exceptions were filed by Cantlay & Tanzola, Inc., to the order recommended by the Examiner on further hearing, and certain of the protestants including the plaintiffs, replied. (Cantlay and Tanzola, Inc., had been furnishing such service under temporary authority issued by the Commission under Sec. 210a of the Motor Carrier Act of 1935, 49 U.S.C.A. § 310a.)
Thereafter the Commission, under Sec. 207(a) of the Federal Motor Carrier Act of 1935, Title 49 U.S.C.A. § 307(a),1 granted the application as prayed for by report and order on further hearing of Division 5 of the said Commission, dated April 8, 1946.2
Under Sec. 207(a) of the Motor Carrier Act of 1935, Title 49 U.S.C.A. § 307(a), the nature and extent of the Commission's authority has been the subject of numerous decisions. The law thereon is settled that the issue of public convenience and necessity is a matter peculiarly requiring the exercise of the Commission's expert judgment in the field of transportation.3
In a proceeding under Section 207 (a) of the Act, Title 49 U.S.C.A. § 307(a), supra, to determine what transportation services are needed by the public (unlike a proceeding under the "grandfather clause" of Section 206 of the Act, Title 49 U.S.C.A. § 306), the Commission is not merely making a finding with respect to the existence of certain facts, but is exercising an expert judgment or discretion with respect to a transportation question.4
Thereafter plaintiff (Lang) under date of June 15, 1946, filed its petition for reconsideration, rehearing or oral argument; and plaintiff Pacific Southwest Railroad Association on June 13, 1946, filed its petition for reconsideration, rehearing, or oral argument, to both of which petitions Cantlay & Tanzola, Inc., replied, and, by order dated January 6, 1947, the Commission denied, without opinion, the said petitions for reconsideration, rehearing or oral argument.
In view of the foregoing proceedings before the Commission intermittently between January 30, 1941 and January 6, 1947, the taking of over thirteen hundred pages of testimony and the introduction of exhibits, which have been examined, it is patent that the Commission, in ultimately granting its certificate of public convenience and necessity to intervener by the aforesaid report and order of April 8, 1946, acted only after exercising the most considered and matured judgment over an extended period of time, and under the vicissitudes of changing conditions.
Aggrieved by the ruling (report and order) of the Commission, of April 8, 1946, supra, the Lang Transportation Corporation filed suit in the Federal District Court for the Southern District of California, Central Division, on February 6, 1947, against the United States of America and the Interstate Commerce Commission, invoking jurisdiction of this court under the provisions of Title 28 U.S.C.A. §§ 41(28) and 43-48 inc., Act October 22, 1913, 38 Stat. 219, Urgent Deficiencies Act5; and prayed that a court, constituted as required by the Act of October 22, 1913, U.S.C.A., Title 28, § 47, be convened; and, inter alia, that:
(1) The report, findings and order in the foregoing proceedings before the Interstate Commerce Commission, insofar as the same granted to intervener any operative rights whatever, be set side and annulled by this court; or
(2) In the alternative, that the Commission be directed and required to reopen said proceedings for the taking of further testimony under present day peacetime conditions; and
(3) That a temporary or interlocutory injunction be entered herein restraining the Interstate Commerce Commission from issuing to intervener a certificate of public convenience for the purpose heretofore stated.
An amended complaint was subsequently filed, by order of this court, on March 26, 1947, joining the Pacific Southwest Railroad Association, an unincorporated association, as a party plaintiff.6
This court is holding that the Lang Transportation Corporation has standing to sue under the authority of Alton Railroad Co. v. United States, 1942, 315 U.S. 15, 62 S.Ct. 432, 86 L.Ed. 586; and the jurisdiction of this court is derived from Title 28 U.S.C.A. § 41(28), 43-48; but it is not passing on the capacity of the Pacific Southwest Railroad Association to bring suit.
The plaintiffs have alleged in their aforementioned amended complaint that the operations of intervener under the report and order of April 8, 1946, supra, if allowed to stand, "will be directly competitive with the operations of Lang Transportation Corporation, and with the operations of the Union Pacific Railroad Company and its connecting rail carriers * * * to the irreparable loss, damage and injury to said Lang Transportation Corporation and the said Union Pacific Railroad Company"; and have set forth therein a number of grounds upon which they contend the report and order of the Commission of April 8, 1946 (supra), should be reversed by this court; and, while it is not deemed necessary to set forth all of the plaintiffs' points, in extenso, herein, some of the plaintiffs' major contentions will be paraphrased as follows:
(A) That the record in the proceedings before the Commission was closed before V-E day, and, therefore, was based upon wartime conditions;
(B) That, particularly by reason of the decline in traffic caused by termination of hostilities of...
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