Parkhill Truck Company v. United States

• Decision Date: 18 October 1961
• Docket Number: Civ. A. No. 5197.
• Citation: 198 F. Supp. 362
• Parties: PARKHILL TRUCK COMPANY, Plaintiff, v. UNITED STATES of America and Interstate Commerce Commission, Defendants, C & H Transportation Co., Inc., and Johns-Manville Products Corporation, Intervening Defendants.
• Court: U.S. District Court — Northern District of Oklahoma

198 F. Supp. 362

PARKHILL TRUCK COMPANY, Plaintiff, v. UNITED STATES of America and Interstate Commerce Commission, Defendants, C & H Transportation Co., Inc., and Johns-Manville Products Corporation, Intervening Defendants.

Civ. A. No. 5197.

United States District Court N. D. Oklahoma.

October 18, 1961.

Kretsinger & Kretsinger, Kansas City, Mo., and Doerner, Stuart, Moreland, Campbell & Saunders, Tulsa, Okl., for plaintiff.

Lee Loevinger, Asst. Atty. Gen., and John H. D. Wigger, Atty., Dept. of Justice, Washington, D. C., and Russell H. Smith, U. S. Atty., Tulsa, Okl., for defendant U. S.

Robert W. Ginnane, Gen. Counsel, and Francis A. Silver, Associate Gen. Counsel, Interstate Commerce Commission, Washington, D. C., for defendant Interstate Commerce Commission.

W. T. Brunson, Oklahoma City, Okl., for intervening defendants.

Before BREITENSTEIN, Circuit Judge, and RICE and SAVAGE, District Judges.

BREITENSTEIN, Circuit Judge.

Parkhill Truck Company sues to set aside and enjoin the enforcement of an order of the Interstate Commerce Commission granting a certificate of public convenience and necessity to C & H Transportation Co., Inc., for the transportation of asbestos-cement pipe and conduit by motor carrier over irregular routes from the plant of Johns-Manville Products Corporation, Denison, Texas, to points in 22 states. The report of the Commission which was entered in No. MC-83539, Sub 45-C & H Transportation Co., Inc., Extension—Denison, Texas—has not as yet been officially reported. C & H and Johns-Manville have intervened on the side of the defendants. We have jurisdiction under 28 U.S.C. § 1336 and a hearing by a three-judge district court is required by 28 U.S.C. § 2325.

Here is another incident in a long drawn out controversy over the scope of commodity descriptions in Commission certificates involving motor carrier transportation for the oil and gas industry. In the 1946 Mercer case¹ the Commission established a uniform commodity description covering oil field carriers. Certificates involving that commodity description were before this court in Arrow Trucking Co. v. United States, 181 F.Supp. 775. Therein, C & H, which held a certificate containing the Mercer description, was one of the plaintiffs and Parkhill, which has a certificate with a commodity description obtained prior to Mercer and differing in some respects therefrom, intervened on the side of the defendants. We held that the second clause of the Mercer description was limited to transportation for the oil and gas industry and did not cover the movement of any commodity except as incidental to and used in that industry.

The Johns-Manville pipe or conduit is used for many purposes having nothing to do with the oil industry, e. g., irrigation, sewerage, culverts, water systems, and cables. Recognizing the insufficiency of its certificate to cover the Johns-Manville products, C & H applied for a certificate which would permit it to provide the service needed by Johns-Manville. Parkhill objected on the ground that public convenience and necessity did not require the issuance of the requested certificate because Parkhill had authority under its certificate to transport the Johns-Manville products and had equipment adequate for such service.

The Parkhill lead certificate issued in No. MC-106497² reads thus:

"Oil-field equipment and supplies, over irregular routes,

Between points and places in 4 states. Pipe, pipe-line material, machinery, and equipment incidental to and used in connection with the construction, repairing, or dismantling of pipe lines, over irregular routes,

Between points and places in 31 states."

The record discloses that Parkhill had transported pipe for other than oil industry use and had for a short period transported the products from the Johns-Manville plant at Denison. This activity by Parkhill was known to the Commission as Parkhill, as early as 1957, had requested an informal ruling of the Director of the Bureau of Motor Carriers as to its right to transport pipe and incidental equipment without limitation to oil field use. The Director expressed the opinion, which is not binding on the Commission, that these commodities could be transported by Parkhill for other than oil field use. This informal opinion was reiterated by the Director of the Bureau of Motor Carriers in 1960.

The Commission held that the language in the Parkhill lead certificate is "essentially the same as the Mercer description"; that it warrants the Commission in "looking behind the certificate to determine the scope of the authority"; that the Parkhill lead certificate was acquired in proceedings involving "a unified service then being provided by Parkhill to the oilfield industry"; and that Parkhill lacked authority to meet the requirements of the Johns-Manville plant at Denison. The objections of others protesting the C & H application were overruled and the requested certificate was granted.

In the proceeding now before this court the defendants and the intervenors seek the dismissal of the case on the ground that the Commission determination of the scope of the Parkhill authority is an advisory interpretation which does not constitute an order reviewable by the courts.³ The point is not well taken. While the prayer for relief is lacking in specificity, it was understood at the time of the trial to this court that Parkhill attacked and sought to enjoin the order granting the certificate of public convenience and necessity to C & H on the ground that such order was premised on the erroneous finding that Parkhill was not authorized to perform the service...