Murphy Motor Freight Lines, Inc. v. Witte Transp. Co., 38239

• Citation: 110 N.W.2d 296,260 Minn. 440
• Decision Date: 14 July 1961
• Docket Number: No. 38239,38239
• Parties: MURPHY MOTOR FREIGHT LINES, INC., Respondent, v. WITTE TRANSPORTATION COMPANY, Appellant.
• Court: Supreme Court of Minnesota (US)

Page 296

110 N.W.2d 296

260 Minn. 440

MURPHY MOTOR FREIGHT LINES, INC., Respondent, v. WITTE TRANSPORTATION COMPANY, Appellant.

No. 38239.

Supreme Court of Minnesota.

July 14, 1961.

Syllabus by the Court.

1. Where the Railroad and Warehouse Commission had originally granted operating rights to motor common carrier between the metropolitan area of Minneapolis and St. Paul and Rochester and later on application of the carrier granted a 'cross-state' route between Owatonna and Winona and both routes had Rochester as a common point, the two certificates did not constitute a consolidated route giving the carrier authority to conduct a through single-line carrier operation between the distant termini of both routes.

2. Where a regular route common carrier by motor vehicle acquired by transfer a connecting route of a competing carrier, the purchasing carrier acquired operating rights the other carrier had to sell. The transfer did not enlarge rights either might have or create new rights which were not previously authorized. If the purchasing carrier proposes to operate the combined system as a single through route, he must apply to the Railroad and Warehouse Commission for authority to do so and support the application by evidence that public convenience and necessity requires the new service.

3. Assuming instances may be found in which the Railroad and Warehouse Commission has, in approving application for transfer of motor carrier authorizations, recognized that the transferee might use the acquired authorization as part of a combined route with common termini, such fact would not create estoppel and would not alter the basic principle that a new right can only come into existence upon an order of the commission made pursuant to an application for a new right on the basis of considerations provided for by statute.

4. The operational rights of a carrier by motor vehicle are fixed by the authorization contained in its certificate of convenience and public necessity and are not controlled by published rates and tariffs. A mistake or oversight in the performance of a ministerial act by an employee of the Railroad and Warehouse Commission with relation to a tariff filed by a common carrier cannot have the effect of enlarging that carrier's rights.

Jerome B. Simon, Mandt Torrison and Bundlie, Kelley & Torrison, St. Paul, for appellant.

Mackall, Crounse, Moore, Helmey & Holmes, Perry R. Moore and Clay R. Moore, Minneapolis, for respondent.

MURPHY, Justice.

This is an appeal from an order of the district court denying a new trial after affirmance of an order of the Railroad and Warehouse Commission ordering appellant, Witte Transportation Company, to cease and desist from accepting freight for transportation between the Twin Cities metropolitan area and Winona and between the Twin Cities metropolitan area and Owatonna.

The proceedings were instituted upon the complaint of Murphy Motor Freight Lines, Inc., which operates as a regular route common carrier ¹ of freight under a number of certificates issued by the Minnesota Railroad and Warehouse Commission, one of which authorizes it to operate as such between the Twin Cities and Winona via U.S. Highway No. 61; between the Twin Cities and Owatonna via U.S. Highway No. 65; and from the Twin Cities south on U.S. Highway 169 to Mankato. Murphy has possessed authority and maintained motor carrier service between said points for over 30 years. Witte Transportation Company is a regular route common motor carrier, and among other operations is authorized to conduct the business of transportation of freight between the Twin Cities and Rochester over U.S. Highway No. 52. It also has a 'cross-state' authorization from Rochester to Owatonna and from Rochester to Winona. The complaint alleged that in January or February of 1959, without authority from the commission and in violation of Minn.St. 221.021, ² Witte wrongfully commenced transportation of shipments of property originating in the Twin Cities to Winona and Owatonna and also originating in Winona and Owatonna to the Twin Cities. The complaint further alleged that the asserted unlawful operation had caused damage to the complainant in loss of business.

As a defense Witte asserts that it is the holder of certificates 'authorizing transportation service * * * between the Twin Cities and Rochester, Minnesota; and certificates authorizing service between Owatonna and Winona through Rochester, Minnesota; or between Rochester and Owatonna; or between Rochester and Winona; that some of said certificates were acquired in proceedings described in Section 8 of Chapter 185, Minnesota Laws, 1925; and some were acquired by transfer by authorization of the Commission in proceedings permitted by Section 9, Chapter 185, Minnesota Laws, 1925; and subsequent re-enactments thereof.' It further asserts in its answer that all of its operations between the Twin Cities and Winona are pursuant to 'combinations of certificates' issued or transferred to it.

It appears that Witte is the holder of at least ten authorizations from the Minnesota Railroad and Warehouse Commission which reach into southeastern Minnesota, including four which it has acquired by assignment. For the purpose of this decision it is not necessary to refer to all of them. It appears that its basic authorization was acquired under A.T.C. ³ Order No. 139, issued on June 3, 1927, granting a certificate of public convenience and necessity to render service between the Twin Cities and Rochester over what is now U.S. Highway No. 52. Next in importance is A.T.C. Order No. 284 issued January 10, 1929, granting a certificate of convenience and necessity to operate between Rochester and Owatonna and certain intermediate points and between Winona and Rochester and intermediate points. This authorization gave Witte a 'cross-state' route which extended east and west from Rochester, the southern terminal of its route provided for in A.T.C. Order No. 139. The third authorization of significance is identified as A.T.C. Order No. 1241--5, which Witte acquired by assignment from the Minnesota-Wisconsin Truck Lines, Inc., in May 1955. This route likewise is a 'cross-state' authorization which parallels the route granted to Witte under A.T.C. Order No. 284. Witte is also the owner of five other intrastate routes which branch off from the Owatonna-Rochester-Winona route.

It is the contention of Witte that A.T.C. Order No. 284 gives it the right to operate a single-line service between the Twin Cities and Owatonna and the Twin Cities and Winona. It is its further claim that it has, by purchase of the Minnesota-Wisconsin route, acquired the right to operate a single-line service between the Twin Cities and Owatonna, between the Twin Cities and Winona, and the reverse. The Railroad and Warehouse Commission and the district court refused to accept Witte's claims. The commission held in fact that Witte has never received authority to operate a single-line route between the metropolitan area of the Twin Cities and Winona or between the metropolitan area of the Twin Cities and Owatonna. They further held that a single-line authorization could not be created by the legal device of 'tacking' or the combination of two separate routes to result in a single, consolidated route extending between the terminals of each. They held in effect that by allowing such a unification, a new right would be created, and they observed:

'* * * we do have in mind also that in no case was the issue of public convenience and necessity for the transportation of freight between the Twin Cities and Winona and Owatonna presented to the Commission by the respondent or any of its predecessor owners for determinative findings and order.'

They accordingly held that the Witte Transportation Company did not hold certificates authorizing the transportation of freight between the points in question as required by law, and the district court agreed.

1. We will first consider Witte's contention that it acquired the right to conduct a single-line service between the Twin Cities and Winona and the Twin Cities and Owatonna under A.T.C. Order No. 284. We have carefully examined this particular order. As already indicated, it gives to Witte a certificate to operate on Highways No. 7 and No. 57 between Rochester and Owatonna and on Highways No. 3 and No. 7 from Winona to Rochester. Nothing is said in this order which would indicate that the commission intended to give to Witte a through route from the Twin Cities to either Owatonna or Winona. The contrary is very apparent. The findings recite:

'Applicant (Witte), however, does not propose to accept St. Paul and Minneapolis freight to Winona or to Owatonna. Winona and Owatonna are more directly served by the scheduled trucks of the Murphy Transfer and Storage Company.'

Moreover, it appears from an amended application dated September 28, 1928, that Witte did not request authority to transport goods originating in Minneapolis and St. Paul destined to Winona and the reverse. The application was made with the understanding that the certificate would be issued with that restriction. The appellant, however, seems to argue that because the restriction is not expressly stated in the order itself it somehow acquired the rights it claims. It argues in its brief:

'Here the plain language of the order authorizing operation between Rochester and Owatonna and Rochester and Winona contains no reference whatever to a restriction as to Twin Cities freight.'

This argument may be briefly disposed of. Neither in the words of grant contained in the order or in the findings upon which the order is based can the asserted authorization be found. The findings specifically recite that under the proposal contained in Witte's application for certificate through service from the Twin Cities to Winona or Owatonna was not requested. It is apparent that the application for the authorization was for a...