May Trucking Co. v. United States

• Decision Date: 12 September 1968
• Docket Number: Civ. No. 1-68-40.
• Citation: 290 F. Supp. 38
• Parties: MAY TRUCKING CO., a corporation, Plaintiff, v. UNITED STATES of America and The Interstate Commerce Commission, Defendants, and Consolidated Freightways Corporation of Delaware, a corporation, IML Freight, Inc., a corporation, Pacific Intermountain Express Co., a corporation, and Garrett Freightlines, Inc., a corporation, Intervening Defendants.
• Court: U.S. District Court — District of Idaho

290 F. Supp. 38

MAY TRUCKING CO., a corporation, Plaintiff, v. UNITED STATES of America and The Interstate Commerce Commission, Defendants and Consolidated Freightways Corporation of Delaware, a corporation, IML Freight, Inc., a corporation, Pacific Intermountain Express Co., a corporation, and Garrett Freightlines, Inc., a corporation, Intervening Defendants.

Civ. No. 1-68-40.

United States District Court D. Idaho, S. D.

September 12, 1968.

Moffatt, Thomas, Barrett & Blanton, Boise, Idaho, for plaintiff.

Edwin M. Zimmerman, Asst. Atty. Gen., John H. D. Wigger, Atty., Dept. of Justice, Washington, D. C., for the United States.

Robert W. Ginnane, Gen. Counsel, Steve Kazan, Atty., I.C.C., Washington, D. C., for the I.C.C.

Maurice H. Greene, Boise, Idaho, for intervening defendants.

Before KOELSCH, Circuit Judge, TAYLOR, Chief District Judge and McNICHOLS, District Judge.

MEMORANDUM DECISION

PER CURIAM:

Plaintiff, a corporation engaged in the transportation of commodities by motor vehicle as a common carrier, seeks to have this Court annul, enjoin and set aside an Order of the defendant, Interstate Commerce Commission (hereinafter the Commission). The intervening defendants are common carriers likewise engaged in the transportation of commodities by motor carrier and were intervenors in the proceedings before the Commission.

Jurisdiction of this three-judge Court rests on 49 U.S.C. § 17(9); on 28 U.S.C. §§ 1336, 1398, 2284 and 2321-2325; and on 5 U.S.C. § 702-706.

The interested reader is referred to the Commission's Order appealed from, printed at 106 M.C.C. 118, for a cogent statement of the background facts and an enlightening discussion of the relevant precedential authorities.

It is undisputed that the Commission erroneously issued a certificate to plaintiff granting interstate authority to plaintiff greater and different in scope than that applied for by plaintiff, and likewise greater than that indicated in the notice of application printed in the Federal Register.

By and through the Order appealed from, the Commission seeks to correct its admitted error and grant to the plaintiff the authority which plaintiff sought in its application. Plaintiff contends the Commission does not have the authority to correct such an error. We do not agree. We are of the opinion that the Commission has the power to correct its manifest error by canceling the outstanding certificate issued to plaintiff and reissuing a modified certificate granting the...