Merchants Fast Motor Lines, Inc. v. I. C. C.
| Decision Date | 18 March 1976 |
| Docket Number | No. 75--2191,75--2191 |
| Citation | 528 F.2d 1042 |
| Parties | MERCHANTS FAST MOTOR LINES, INC., Petitioner, v. INTERSTATE COMMERCE COMMISSION, Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Jerry C. Prestridge, Austin, Tex., for petitioner.
John D. Hughes, Asst. Atty. Gen., Austin, Tex., for Railroad Commission of Texas.
Fritz R. Kahn, Gen. Counsel, I.C.C., Betty Jo Christian, James T. Proctor, Raymond M. Ripple, John H. D. Wigger, Dept. of Justice, Peter M. Shannon, Jr., I.C.C., Washington, D.C., for respondent.
James E. Snead, Santa Fe, N.M., for Whitfield Transportation, Inc.
Petition for Review of an Order of the Interstate Commerce Commission (Texas Case).
Before GOLDBERG, DYER and RONEY, Circuit Judges:
Merchants petitions us to set aside the grant of a permanent alternate route by the Interstate Commerce Commission to a competing carrier, Whitfield. Merchants argues that the ICC's approval of the route is invalid because of lack of jurisdiction and insufficiency of the evidence. The central issue posed by Merchants is whether the ICC has jurisdiction to permit an interstate carrier to move traffic interstate in character, for operating convenience only, over an alternate route that lies wholly within a single state. We think it is clear that the ICC has such jurisdiction. Conversely it is equally clear that a carrier cannot use the alternate route for transporting intrastate traffic because the ICC has no jurisdiction to grant such authority.
Merchants transports commodities solely within Texas. It has authorization for carrying goods moving wholly intrastate from the Texas Railroad Commission, and, for goods moving in interstate commerce, from the ICC. Whitfield is a multistate carrier which holds various operating certificates from the ICC, one of which is for carrying traffic between Dallas and El Paso, by way of New Mexico. Whitfield has no authority to carry intrastate traffic. Thus, Merchants and Whitfield compete only for interstate traffic.
In 1974, Whitfield applied for a temporary alternate route between Dallas and El Paso, Texas, without traversing the New Mexico loop which was part of Whitfield's original certificated route. 1 Subsequently, Whitfield amended its original filing for authority to utilize the alternate route permanently. The ICC granted Whitfield the requested alternate route, having determined that it satisfied the statutory restrictions that it (1) was for operating convenience only, (2) was between two termini of the regular route, (3) did not change the nature of the service rendered by the regular route, and (4) did not materially change the competitive situation between applicant carrier and any other carrier. 2
Merchants unsuccessfully raised a jurisdictional objection to the grant of the permanent alternate route in protest proceedings before the ICC. Merchants, joined by the Railroad Commission of Texas, now petitions this Court to set aside Whitfield's alternate Dallas-El Paso route as beyond the statutory power of the ICC because the route does not cross state lines. They argue that the ICC's approval of the alternate route effected a conversion of an interstate operation into an intrastate one; the ICC has no jurisdiction to effectuate such a conversion, and, the ICC action therefore entrenches upon the regulatory jurisdiction of the Texas Railroad Commission.
Merchants' contention can be succinctly stated as follows: Whitfield transported traffic over a route that was geographically interstate (Dallas, Snyder, Carlsbad, El Paso). The ICC assumed that the traffic was interstate in character because it moved over this route. This fact established for the Commission the character of the commerce and was not subject to attack. Thus what had been interstate traffic simply because it passed over state lines could now be carried between Dallas and El Paso, even though it in fact constituted intrastate traffic. Ergo the ICC was without jurisdiction to grant such a permanent alternate route.
This syllogistic argument omits consideration of the evidence adduced by Whitfield that showed that some of the traffic moving over the Dallas, Snyder, Carlsbad, El Paso route was interstate in character without reference to the fact that it crossed state lines, and the further admission made by Whitfield that it could not and would not move intrastate traffic over the permanent alternate route.
It is elemental that a carrier is engaged in interstate commerce when transporting goods either originating in transit from beyond Texas or ultimately bound for destinations beyond Texas, even though the route of the particular carrier is wholly within one state. Traffic need not physically cross state lines to be in interstate commerce, if the goods carried are in the course of through transit. 'Through'...
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