Perkins Furniture Transport, Inc. v. United States, IP 70-C-161.

• Decision Date: 23 March 1971
• Docket Number: No. IP 70-C-161.,IP 70-C-161.
• Parties: PERKINS FURNITURE TRANSPORT, INC., Plaintiff, v. UNITED STATES of America and Interstate Commerce Commission, Defendants, and Ferree Moving and Storage, Inc., Intervening Defendant.
• Court: U.S. District Court — Southern District of Indiana

333 F. Supp. 879

PERKINS FURNITURE TRANSPORT, INC., Plaintiff, v. UNITED STATES of America and Interstate Commerce Commission, Defendants, and Ferree Moving and Storage, Inc., Intervening Defendant.

No. IP 70-C-161.

United States District Court, S. D. Indiana, Indianapolis Division.

March 23, 1971.

John E. Lesow, James E. Lesh, and Lesow & Lesh, Indianapolis, Ind., for plaintiff.

Richard W. McLaren, Asst. Atty. Gen., Stanley B. Miller, U. S. Atty., Indianapolis, Ind., John H. D. Wigger, Atty., Department of Justice, Washington, D. C., for the United States of America.

Robert W. Ginnane, General Counsel, Hanford O'Hara, Atty., Interstate Commerce Commission, Washington, D. C., for Interstate Commerce Commission.

Walter F. Jones, Jr., Indianapolis, Ind., John H. O'Hara, Indianapolis, Ind., for intervening defendant.

Before SWYGERT, Chief Circuit Judge, STECKLER, Chief District Judge, and HOLDER, District Judge.

JUDGMENT ENTRY

PER CURIAM.

The action was brought in this three-judge District Court to annul, vacate, and set aside a report and order of the Interstate Commerce Commission. The order converted a certain contract-carrier by motor carrier permit to that of a common-carrier by motor vehicle certificate for the applicant and intervening defendant, Ferree Moving and Storage, Inc. The Commission proceeding entitled Docket No. MC-118696 (Sub-No. 4), Ferree Moving and Storage, Inc., Conversion Application, is reported at 110 M.C. C. 375.

This action is authorized by and the Court's jurisdiction is based upon Sections 17(9), 205(g) and (h) of the Interstate Commerce Act (Title 49 U.S.C. Sections 17(9) and 305(g) and (h)) and Title 28 U.S.C. Sections 2284, 2321 and 2325.

Ferree Moving and Storage, Inc., an Indiana corporation, with its principal office and place of business in the City of Munster, State of Indiana, prior to and on September 30, 1968 held a contract-carrier permit issued by the Interstate Commerce Commission to tranport (over irregular routes) mattresses, box springs, dormitory and institutional furniture, and convertible beds, from Munster, State of Indiana, to points in Wisconsin, Michigan and Iowa, pursuant to a continuing contract with the Simmons Bed Company. After a hearing on February 19, 1969, the Interstate Commerce Commission on May 1, 1969 recommended denial of the September 30, 1968 application of Ferree seeking such conversion. Exceptions were filed by Ferree and opposed by the plaintiff. Division 1 of the Interstate Commerce Commission on September 5, 1969 granted the Ferree application seeking a conversion of such contract-carrier permit to a certificate of public convenience and necessity authorizing operation, in interstate or foreign commerce, as a common-carrier by motor vehicle, over irregular routes, of mattresses, box springs, dormitory and institutional furniture, and convertible beds, from the City of Munster, State of Indiana, to points in the State of Illinois, that part of the State of Michigan on and south of State of Michigan Highway 72, that part of the State of Ohio on and west of State of Ohio Highway 13 and on and north of United States Highway 50, that part of the State of Wisconsin on and south of the State of Wisconsin Highway 29, and that part of the State of Iowa on and east of United States Highway 69, restricted, however, as to origin point, to the plant site of Simmons Bed Company, located at or near the City of Munster, State of Indiana, and restricted also against the tacking of that authority with other authority held by applicant. The Commission's Division 1, acting as an Appellate Division on February 12, 1970 denied the protesting plaintiff's October 27, 1969 petition seeking reconsideration of such September 5, 1969 order granting the conversion application subject to the applicant's compliance within ninety (90) days with the provisions of Sections 215, 217 and 221(c) of the Interstate Commerce Act (Title 49 U.S.C. Sections 315, 317 and 321(c)).

The application of Ferree and the resulting Commission Order of September 5, 1969 in Commission proceeding entitled Docket No. MC-118696 (Sub-No. 4), Ferree Moving and Storage, Inc., Conversion Application (110 M.C.C. 375) in issue in this action emanated from a prior proceeding. The earlier proceeding involved an application of Ferree Moving and Storage, Inc. to which the plaintiff was a protestor. The prior Commission proceeding was entitled Ferree Moving and Storage, Inc., Extension-Sixteen States, Docket No. MC-118696 (Sub-No. 2). Ferree, while possessing such authorities, in 1966 applied in such Sub-No. 2 proceedings for separate common-carrier authority to transport mattresses, new furniture and kitchen cabinets from points in Indiana (except Munster and four other points) to points in sixteen (16) states — including all the states referred to immediately above in which he was authorized to operate. The Commission decided in such Sub-No. 2 proceeding that the proposed operation was required by the public convenience and necessity but stated that the issuance of a certificate would depend on Ferree divesting itself of the contract-carrier certificate it possessed or converting it to a common-carrier certificate. The intent of this directive was to prevent Ferree from conducting "dual operations" which are unlawful under Section 210 of the Interstate Commerce Act (Title 49 U.S. C. Section 310). Otherwise, Ferree would be able to serve certain common points under its contract-carrier authority and under its Sub-No. 2 authority. Ferree could have sold the permit, or it could have surrendered it for cancellation but elected the third alternative instruction of the Commission's order in the Sub-No. 2 proceeding by applying for the conversion of the contract-carrier permit to a common-carrier certificate.

The plaintiff has not by separate action and does not here challenge the Commission's action in the Sub-No. 2 proceeding other than to observe that Feree's Sub-No. 4 proceeding was "artificially inspired" by the Commission's Sub-No. 2 order and plaintiff believes that the Sub-No. 2 order does have an important bearing here. Plaintiff has a substantial interest in the Sub-No. 2 order, in that a large portion of its authority conflicts with that accorded Ferree in the Sub-No. 2 order. If Ferree is issued a certificate in the Sub-No. 2 case, a portion of the traffic now handled by plaintiff will be diverted to Ferree. The final outcome of Ferree's Sub-No. 4 application carries with it the final outcome of Ferree's Sub-No. 2 application. The defendants say the plaintiff's reason for participating in this litigation is open to question. Its opposition to the conversion proceeding in Sub-No. 4, defendants urge, is not based on its possible adverse effect since the plant-site and tacking limitations in Sub-No. 4 grant of common carrier authority are written in such a way that the competitive situation will not be changed at all. Thus, defendants conclude plaintiff's opposition in this action to the Sub-No. 4 order is clearly motivated by a desire to collaterally attack the Commission's order in the Sub-No. 2 proceeding. Neither plaintiff's reference to the Sub-No. 4 proceeding of Ferree and the Commission's order therein being "artficially inspired" by the Commission's order in the Sub-No. 2 proceeding, nor defendants reference to the plaintiff's present action as being a collateral attack on the Sub-No. 2 proceeding order, rise to the cogency of an absolute defense to plaintiff's action or as a basis for vacating the order of the Commission in the Sub-No. 4 proceeding. The plaintiff has sufficient interest to maintain the action against the Sub-No. 4 proceeding order without considering the Sub-No. 2 proceeding order for the reason that the grant of a common-carrier certificate to Ferree and its operation under such authority could presently and in the future affect the plaintiff's operation under its authority. The order in the Sub-No. 4 proceeding in issue in this action of the plaintiff cannot be vacated merely because of the order made in the Sub-No. 2 proceeding invited or suggested the Sub-No. 4 proceeding. However, we consider the effect of the Sub-No. 2 proceeding order relevant and material evidence in the Sub-No. 4 proceeding upon the element of public convenience and necessity and the Commission's duty under the National Transportation Policy including the duty to promote adequate, economical and efficient service, and of fostering sound economic conditions in transportation and the balancing of these requirements.

The parties agree that Ferree had the burden of sustaining its application in the Sub-No. 4 proceeding for a common-carrier certificate. It was required to prove that it was fit, willing and able properly to perform the service proposed and to conform to the provisions of Chapter 8 of the Interstate Commerce Act (Title 49 U.S.C. Section 301 et seq.) and the requirements, rules and regulations of the Commission thereunder, and that the proposed service, is or will be required by the present or future public convenience and necessity under Section 207 of the Interstate Commerce Act (Title 49 U.S.C. Section 307) and that as a common-carrier Ferree would hold itself out to the general public to engage in the transportation of a certain class of property by motor vehicle in interstate commerce.

The plaintiff's complaint alleges that the Commission's action was arbitrary, unlawful and void in that its order was not supported by the evidence and was contrary to law. This Court review will be limited to ascertaining whether the Commission was warranted by the facts and the law in its findings and order in the Sub-No. 4 proceedings. See United States v. Pierce Auto Freight Lines, 327 U.S. 515, 66 S.Ct. 687, 90 L.Ed. 821 (1946). The Court is not concerned with the soundness of the Commission's reasoning or with the wisdom of its decision in the Sub-No. 4 proceeding. See Virginia...