Maher v. United States

• Decision Date: 16 June 1938
• Parties: MAHER v. UNITED STATES et al.
• Court: U.S. District Court — District of Oregon

23 F. Supp. 810

MAHER v. UNITED STATES et al.

District Court, D. Oregon.

June 16, 1938.

William L. Harrison and Edward O. Doxey, both of Portland, Or., for plaintiff.

Elmer B. Collins, Sp. Asst. to Atty. Gen., and Nelson Thomas, Atty. for Interstate Commerce Commission, of Washington, D. C., and Carl C. Donaugh, U. S. Atty., of Portland, Or., for defendants.

Before HANEY, Circuit Judge, and FEE and McCOLLOCH, District Judges.

JAMES ALGER FEE, District Judge.

This is a suit brought under Title 28, U.S.C.A. Section 41(28) and Sections 43-48 to set aside an order of the Interstate Commerce Commission made October 27, 1937, in a proceeding designated "MC 59620, Dan E. Maher Common Carrier Application." Maher as a common carrier of passengers and their baggage in interstate commerce over the route of U. S. Highway 99 and within territory contiguous thereto upon June 1, 1935, filed his application on or about January 1, 1936, for a certificate confirming his right under the proviso of Section 206(a) of the Motor Carriers Act of 1935, 49 U.S.C.A. § 306(a)¹. The form of the application is not before the Court but it is set up in the complaint and admitted that "petitioner, by application filed on or about the 1st day of January, 1936, with said defendant Commerce Commission, sought a certificate of public convenience and necessity, authorizing petitioner to operate as a common carrier by motor vehicle of passengers and their baggage over U. S. Highway No. 99, between Portland, Oregon and Seattle, Washington, and intermediate points thereof". It is also alleged and admitted that plaintiff "is a common carrier by motor vehicle, engaged in interstate operations over U. S. Highway No. 99, between Portland, Oregon and Seattle, Washington, and through various intermediate points, transporting passengers for the general public for compensation from each of the aforesaid cities to the other, and from various points within each of the states of Washington and Oregon, to points within other of said states, and in this respect petitioner alleges that he was in bona fide operation as a common carrier by motor vehicle between said cities on June 1, 1935, and that by reason of such operation this petitioner is, and was at all times herein mentioned entitled as a matter of right and law, under the provision of Section 206(a) of the Motor Carrier Act of 1935, known as the `Grandfather' clause thereof, to have issued to him by the defendant Commerce Commission, a certificate of public convenience and necessity, authorizing such operation". The facts contained in this allegation are admitted by answer.

Upon the filing of said application the matter was referred for hearing to Joint Board No. 45 by the Commission. The Public Utilities Commissioner of Oregon, certain railroads and bus companies were permitted to intervene and oppose the granting of the application. The Commission found that Maher had been, since 1931, conducting a quite irregular transportation of passengers in interstate commerce between Oregon and Washington, continuously to the date of the filing of his application and thereafter until May 29, 1936. The Commission noted that the transportation was authorized under an "anywhere-for-hire" license issued by the Public Service Commission of Oregon and apparently recognized by the authorities of Washington. The bona fides of the operation is established by the facts found. But the Commission held that long after Maher had filed his application for a certificate before it he had begun operation on a regular schedule of a passenger service over the same route and within the same territory and thereafter no longer proceeded with transportation on an irregular schedule as he had done before. It was further found that all Maher's operations in interstate commerce were "probably" over a "route" U. S. Highway 99, whether on the one hand the transportation was "anywhere-for-hire" from Portland, Oregon, to Deep River, Cathlamet, Raymond, Aberdeen, Fall City, La Salle River, Chehalis, Olympia, Seattle, Centralia, Neah Bay, Greenwood, Port Ludlow, and Spokane, all of which points are in the State of Washington and can best be reached from Portland over U. S. Highway 99, or, on the other hand, on regular schedule between Portland, Oregon, and Seattle, Washington, as fixed termini, since both these points are on U. S. Highway 99. The Commission findings also show that all Maher's operations in interstate commerce were "within a territory", viz., the territory between Portland, Oregon, and Seattle, Washington, and contiguous to U. S. Highway 99.

The Commission concluded that by instituting a regular route with fixed termini the applicant had abandoned his irregular operations. Based upon this conclusion an order was issued in the following terms:

"Investigation of the matters and things involved in this proceeding having been made, and said division on the date hereof, having made and filed a report containing its findings of fact and conclusions thereon, which report is made a part hereof:

"It is ordered, That said application, be, and it is hereby, denied, effective December 10, 1937.

"And it is further ordered, That applicant be, and he is hereby, notified and required to cease and desist, on or before December 10, 1937, from all operation in interstate or foreign commerce as a common carrier of passengers and their baggage by motor vehicle."

This order the plaintiff prays this court to set aside in the present suit. The cause was tried before a statutory court. No evidence was introduced except a copy of the findings of the Commission which are accepted as the facts.

This court has jurisdiction to enjoin, set aside, annul or suspend in all or in part any order of the Interstate Commerce Commission, Title 28, U.S.C.A., Section 41, Subdivision 28, but the findings of the Commission are conclusive and cannot be assailed "in the absence of the evidence upon which they were made". Mississippi Valley Barge Line Co. v. United States, 292 U.S. 282, 54 S.Ct. 692, 693, 78 L.Ed. 1260. No court, of course, should review a determination which was exclusively within the scope of the power and the discretion of the Commission, or substitute the judgment of the court as to wisdom of the order. Such matters are beyond the province of this tribunal. In this case, the evidence taken before the Commission was not produced, and cannot be considered, and this court, therefore, makes no attempt to review the record or establish independent conclusions as to its weight or sufficiency.

But the facts are here set up in the Commission's order and may be considered in the determination of the questions of law. The orders of the Commission are final unless (1) beyond the power which it can constitutionally exercise; (2) beyond its statutory right; or (3) based upon mistake of law. Interstate Commerce Commission v. Union Pacific Railroad Co., 222 U.S. 541-547, 32 S.Ct. 108, 111, 56 L.Ed. 308. Thus it may be set aside where the facts are established if "in violation of the constitutional prohibition against taking property without due process of law", or if the Commission acted "so arbitrarily and unjustly as to fix rates contrary to evidence, or without evidence to support it", or "if the authority therein involved has been exercised in such an unreasonable manner as to cause it to be within the elementary rule that the substance, and not the shadow, determines the validity of the exercise of the power". See Interstate Commerce Commission v. Union Pacific Railroad Co., supra. "A conclusion which plainly involves, under the undisputed facts, an error of law" may be set aside. McLean Lumber Co. v. United States, D.C., 237 F. 460, 469.

Upon the facts found by the Commission, it is to be determined whether (1) a certificate should have been issued to Maher, (2) whether a cease and desist order should have been promulgated.

As to the issuance of the certificate, the Commission fell into three errors of law; first, because it refused issuance under the terms of the proviso of the section concluding that he had no "regular" route on June 1, 1935; second, in concluding that a change from an "anywhere-for-hire" to a fixed termini operation destroyed Maher's right to a certificate notwithstanding all of his transportation was over the same route and within a definite territory; and third, by failing to consider the application under the terms of section 307.

As to the first point, the Commission confused its functions. It confused the diverse terms upon which the two different types of certificates are to be issued. There was an attempt in its conclusions to import the requirement of "regular routes" and "fixed termini" applicable only to certificates under Section 307 into the language of proviso 306(a) and to make the failure of the applicant to have a "regular route" and "fixed termini" prior to June 1, 1935, a foundation for the absolute denial of the certificate and of the right to operate in interstate commerce at all.

The statute permits two different forms of applications for certificates relating to the transportation of persons or property for hire in interstate commerce. The first is by one who has been in bona fide operation in interstate commerce for a certificate to continue "over the route or routes or within the territory for which application is made", under the proviso of Section 306(a). The other is an application by any qualified person for a certificate of public necessity and convenience to perform a proposed service as common carrier by motor vehicle, under Section 307. Section 308 refers to this differentiation but establishes uniform provisions for both types of certificates. Under Section 306(a) if the applicant cannot prove operation under the terms of the proviso, the application is to be treated as if it were tendered under Section 307. Confusion between these two diverse forms of application and also between the...