NEW ENGLAND GREYHOUND LINES v. Powers, Civil Action No. 1291.
| Decision Date | 04 December 1952 |
| Docket Number | Civil Action No. 1291. |
| Citation | 108 F. Supp. 953 |
| Parties | NEW ENGLAND GREYHOUND LINES, Inc., et al. v. POWERS, Atty. Gen. of Rhode Island, et al. |
| Court | U.S. District Court — District of Rhode Island |
Edward Winsor, of Edwards & Angell, Providence, R. I., and Barrett Elkins, of Boston, Mass., for plaintiff.
Christopher Del Sesto, and Edward V. Healey, Jr., both of Providence, R. I., for intervenor.
Robert A. Coogan, Asst. Atty. Gen., of State of Rhode Island, for defendants.
This action is for a declaratory judgment pursuant to 28 U.S.C.A. § 2201, wherein the plaintiff and the intervenor seek a determination that the plaintiff, New England Greyhound Lines, Incorporated, a motor carrier, may hold and own Certificate of Public Convenience and Necessity No. 45, granted to it on May 8, 1951, by the Division of Public Utilities of the State of Rhode Island, notwithstanding the provisions of Article IX of the Amendments of the Constitution of Rhode Island, § 1,1 and Chapter 125, § 32 of the General Laws of Rhode Island, 1938, relative to the registration and regulation of jitneys. The action arises under § 5(11) of the Interstate Commerce Act, 49 U.S.C.A. § 5(11), by authority of which the Interstate Commerce Commission issued a Report and Order on February 13, 1951, which the plaintiff claims supersedes the Rhode Island Constitutional and Statutory provisions to which reference has been made.
The parties have by stipulation agreed on the facts in this case which are substantially as follows:
The plaintiff, New England Greyhound Lines, Incorporated, is a corporation organized under the laws of the State of Connecticut, and has its principal office in the City of Boston, Massachusetts. The intervenor, William J. Foster, is a resident of Westerly, Rhode Island. The defendant, the Honorable William E. Powers, is the July elected and qualified Attorney General of the State of Rhode Island, and the defendant, the Honorable Thomas A. Kennelly, is the duly appointed and qualified Public Utilities Administrator of the State of Rhode Island.
The plaintiff, New England Greyhound Lines, Incorporated, under and by virtue of the Certificates of Public Convenience and Necessity granted to it by the Interstate Commerce Commission is a common carrier by motor vehicles of passengers, express, mail, and newspapers. One of the routes operated by the plaintiff is between Boston and New York City, via Providence and Westerly, in the State of Rhode Island.
The intervenor, William J. Foster, prior to May 8, 1951, was a common carrier by motor vehicle of passengers in interstate commerce between Providence and Westerly, pursuant to Certificate No. MC 59594 issued on April 25, 1942, by the Interstate Commerce Commission. He also held corresponding intrastate authority between Providence and Westerly, pursuant to Certificate No. 45 granted by the Division of Public Utilities of Rhode Island.
On October 17, 1950 the plaintiff purchased from the intervenor, for the sum of $40,000, all of the intervenor's right, title and interest in Certificate No. MC 59594 granted by the Interstate Commerce Commission and in Certificate No. 45 granted by the Division of Public Utilities of Rhode Island. Pursuant to § 5 of the Interstate Commerce Act, 49 U.S.C.A. § 5, a joint application was filed on November 16, 1950 with the Interstate Commerce Commission wherein the plaintiff and its parent company, The Greyhound Corporation, and the intervenor requested authority for the acquisition by the plaintiff of the operating rights, both interstate and intrastate, held by the intervenor. On February 13, 1951, the Interstate Commerce Commission, acting under the provisions of § 5 of the Interstate Commerce Act, issued its Report and Order approving the purchase by the plaintiff of the interstate and intrastate operating rights of the intervenor. On May 16, 1951, the plaintiff qualified as a foreign corporation doing business in Rhode Island.
Following approval of the transaction by the Interstate Commerce Commission on February 13, 1951, the plaintiff applied to the Division of Public Utilities of Rhode Island for approval of the transfer of Certificate No. 45 from the intervenor to the plaintiff. This application was disapproved on the ground that Article IX of the Amendments of the Constitution of Rhode Island, § 1, supra, and Chapter 125, § 3 of the General Laws of Rhode Island, 1938, supra, prohibit the holding of an intrastate certificate by a corporation which is not specially chartered by an Act of the Rhode Island General Assembly. The plaintiff thereupon caused to be filed in the 1951 session of the General Assembly an Act to create a specially chartered corporation to receive and hold said Certificate No. 45, but the Act failed of passage. Thereupon the plaintiff again requested the Division of Public Utilities to transfer to it said Certificate No. 45, urging that the provisions of the Constitution and Laws of Rhode Island, above referred to, were inapplicable, being in conflict with the Report and Order of the Interstate Commerce Commission issued pursuant to § 5 of the Interstate Commerce Act.
The defendant Thomas A. Kennelly, Public Utility Administrator, thereupon requested an opinion from the defendant, William E. Powers, Attorney General of Rhode Island, as to whether or not the Public Utility Administrator was authorized under these circumstances to approve the transfer of Certificate No. 45 to the plaintiff. On May 2, 1951, the Attorney General submitted an opinion in accordance with which the Public Utility Administrator issued an Order dated May 8, 1951, approving the transfer of said Certificate No. 45 from the intervenor to the plaintiff.
The opinion of the Attorney General on this point was advisory only and not conclusively binding upon the parties, and as the transfer of Certificate No. 45 to the plaintiff was approved by the Division of Public Utilities in view of an emergency which might otherwise arise, without indicating that the plaintiff would have the right to hold and own said Certificate without benefit of an emergency, the plaintiff and the intervenor agreed that final payment on account of the purchase price involved in the transaction should be postponed pending the removal of the alleged cloud on the plaintiff's title to said Certificate No. 45. The plaintiff then commenced this action for a declaratory judgment to remove said cloud, and thereafter William J. Foster was granted permission by the Court to intervene.
The issues in this action appear to require a determination as to whether or not, by virtue of § 5(11) of the Interstate Commerce Act and the commerce clause, Article 1, § 8 of the United States Constitution, the Interstate Commerce Commission had the power and authority to issue to this plaintiff the Report and Order of February 13, 1951, and whether such Order of the Interstate Commerce Commission is inconsistent with those provisions of the Rhode Island Constitution and statutes, above quoted, and whether if inconsistent, the Order, under the supremacy clause, Article VI of the United States Constitution, supersedes those provisions and renders the State laws inapplicable to the transaction here approved by the Interstate Commerce Commission.
Section 5(11) provides as follows:
"The authority conferred by this section shall be exclusive and plenary, and any carrier or corporation participating in or resulting from any transaction approved by the Commission thereunder, shall have full power * * * to carry such transaction into effect and to own and operate any properties and exercise any control or franchises acquired through said transaction without invoking any approval under State authority; and any carriers * * * participating in a transaction approved or authorized under the provisions of this section shall be * * * relieved from the operation of * * * restraints, limitations, and prohibitions of law, Federal, State, or municipal, insofar as may be necessary to enable them to carry into effect the transaction so approved or provided for in accordance with the terms and conditions, if any, imposed by the Commission, and to hold, maintain, and operate any properties and exercise any control or franchises acquired through such transaction. * * *"
In its Report and Order of February 13, 1951, the Interstate Commerce Commission found that the purchase by plaintiff of the operating rights of the intervenor constituted a...
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