Proctor and Gamble Co. v. Byers Transportation Co., Inc., 18829-4.

CourtUnited States District Courts. 8th Circuit. Western District of Missouri
Citation355 F. Supp. 547
Docket NumberNo. 18829-4.,18829-4.
PartiesThe PROCTOR AND GAMBLE COMPANY et al., Plaintiffs, v. BYERS TRANSPORTATION COMPANY, INC., et al., Defendants.
Decision Date22 February 1973



Don M. Jackson, Jackson & Sherman, Kansas City, Mo., Smith Tyler, Jr., Cincinnati, Ohio, for plaintiffs.

Donald J. Quinn, Kansas City, Mo., Arthur R. Hauver, Denver, Colo., for defendants.


ELMO B. HUNTER, District Judge.

On November 12, 1970, a complaint was filed in the above-entitled action. Basically, plaintiffs are seeking enforcement, through a monetary judgment, of certain orders of the Interstate Commerce Commission. Subsequent to the filing of the complaint three carrier defendants were dismissed by the Court upon application of the plaintiffs. Trial on the merits against the three remaining defendants, Ideal Truck Lines, Inc., Darling Transfer, Inc., and Solid Service System, was held before the Court.

Sometime after the filing of the complaint, the defendants moved to stay all proceedings in the action, including the filing of an answer, pending a final determination of Admiral-Merchants Motor Freight, Inc., et al. v. United States of America and the Interstate Commerce Commission.1 This action was before a three-judge court in Colorado and involved the validity of the refund portion of the order of the Interstate Commerce Commission here in question. Pursuant to the interlocutory injunction issued by that court restraining the enforcement of the Commission's order in issue pending a determination on the merits, and based upon representations that the outcome of the Admiral-Merchants case would be or should be determinative of the issues involved in this action, this Court issued an order staying further proceedings. However, after the three-judge court issued its decision, affirmed by the United States Supreme Court,2 dissolving the injunction and upholding the order, this Court held a conference at which the defendants contended the Admiral-Merchants' decision was not controlling.

In this vein the action proceeded until it has now been fully presented.


Jurisdiction in this action is based primarily on Title 28, § 1336 United States Code. Section 1336(a) reads:

Except as otherwise provided by Act of Congress, the district courts shall have jurisdiction of any civil action to enforce, enjoin, set aside, annul or suspend, in whole or in part, any order of the Interstate Commerce Commission.

As will be discussed more fully, infra, it can not be persuasively argued that the plaintiffs' cause of action is not essentially one seeking the enforcement of an order of the Interstate Commerce Commission. Accordingly, this Court has jurisdiction to rule on the merits of the action.3

There has been no attack on the propriety of venue in this judicial district, thereby obviating the necessity of the Court to affirmatively rule on this aspect of the action, other than by noting that any arguable defect in venue has been waived by the failure to object or otherwise timely and properly raise this issue. Hoiness v. United States, 335 U.S. 297, 69 S.Ct. 70, 93 L.Ed. 16 (1948), Anno.: 93 L.Ed. 21; Erie-Lackawanna R. Co. v. United States, 279 F. Supp. 316 (S.D.N.Y.1967), remanded on other grounds, 389 U.S. 486, 88 S.Ct. 602, 19 L.Ed.2d 723 (1968); Rhodes v. United States, 218 F.Supp. 382 (W.D. Pa.1963).4


The statutory scheme applicable in all proposed increases in rates by motor carriers is set forth in the Federal Motor Carrier Act, Part II of the Interstate Commerce Act, 49 U.S.C. § 301 et seq. Specifically, § 217 of the Act (49 U.S.C. § 317) states that every common carrier by motor carrier must file with the Commission tariffs showing all of the respective rates and charges for transportation. The Commission is authorized to reject any tariff not in consonance with the Act and the applicable regulations, in which case the tariff shall be void and its use unlawful. Middlewest Motor Freight Bureau v. United States, 433 F.2d 212 (8th Cir. 1970), cert. denied, 402 U.S. 999, 91 S.Ct. 2169, 29 L.Ed.2d 165 (1971). Additionally, no change may be made in any rate except following notice filed with the Commission reflecting the proposed change, in which event the change would not take effect for 30 days unless otherwise ordered by the Commission. However, § 216(g) of the Act, 49 U.S.C. § 316(g) provides:

Whenever there shall be filed with the Commission any schedule stating a new * * * rate . . . the Commission is authorized and empowered upon complaint of any interested party or upon its own initiative at once . . . upon reasonable notice, to enter upon a hearing concerning the lawfulness of such rate . . . and pending such hearing and the decision thereon the Commission, by filing with such schedule and delivering to the carrier or carriers affected thereby a statement in writing of its reasons for such suspension, may from time to time suspend the operation of such schedule and defer the use of such rate . . . but not for a longer period than seven months beyond the time when it would otherwise go into effect; and after hearing, whether completed before or after the rate . . . goes into effect, the Commission may make such order with reference thereto as would be proper in a proceeding instituted after it had become effective. If the proceeding has not been concluded and an order made within the period of suspension, the proposed change of rate . . . shall go into effect at the end of such period . . . . At any hearing involving a change in a rate . . . the burden of proof shall be upon the carrier to show that the proposed changed rate . . . is just and reasonable.

More succinctly stated, the statutory provisions authorize a carrier, upon the proper filing, to fix its own rates at any level it sees fit in which event the proposed rates normally become effective 30 days after filing. However, an interested party may file a complaint concerning the increase, or the Commission may decide on its own motion to hold a hearing on the lawfulness of such rate. If the Commission determines to make inquiry into the lawfulness of the rate, it may either: (a) suspend the exaction of the increase, up to seven months, pending the outcome of the hearing, or (b) refrain from suspending the increased rate, in which case the increase would become effective as if no complaint or inquiry was made, pending the outcome of the Commission's decision after the hearing.5 See, Middlewest Motor Freight Bureau v. United States, supra; Overnite Transportation Company v. United States, 266 F.Supp. 88 (E.D.Va. 1967).


The facts of this case are relatively undisputed, and from all the evidence appear as follows:

The Middlewest Motor Freight Bureau (Bureau) acts as a rate publishing agent for the defendants and other regular route general commodity carriers of property in interstate commerce in a limited geographical area. The Bureau assists in preparing consolidated evidence for rate changes pursuant to the Interstate Commerce Commission's rules and regulations. The defendants are common carriers by motor vehicle subject to the provisions of the Interstate Commerce Act, 49 U.S.C. § 1 et seq. The defendants are all participating carriers in tariffs published by the Bureau and were parties to the Interstate Commerce Commission's order hereinafter described.

As a result of schedules filed 30 days earlier with the Commission and which became effective on April 1, 1968, the defendants participated in tariffs published by the Bureau establishing increased class and commodity truckload and less than truckload rates for services in the Middlewest Territory, in an amount of approximately five per cent for shipments of less than 5000 pounds and three per cent for those over 5000 pounds. The pronounced purpose of the increase was to offset a contracted increase in the wage of the respective labor force. Upon protests by various parties, both private and public,7 the Interstate Commerce Commission, by order of March 29, 1968, instituted an investigation, without suspension, into the lawfulness of the proposed schedules.

By order of April 3, 1968, the proceeding was set for hearing on May 20, 1968. The order bypassed the procedure before an examiner and provided that the proceeding would not be the subject of an examiner's recommended report and order because the circumstances required an expedited decision. This order also elaborated the specific information and supporting data the Commission desired from the carriers by May 20, 1968, for use by the Commission in making its determination into the reasonableness of the increases. The order detailed:

That all of the required data specified in this order shall be based upon and reflect at least the 1967 annual reporting period.

Additionally, the order set forth the type of evidence desired from the protestants, Department of Transportation and the General Services Administration, supporting their protest.

It is in this posture that the order complained of, and here sought to be enforced, was subsequently issued. More particularly, on April 12, 1968, the General Services Administration joined with the Department of Transportation in a request for a 90 day extension of time in which to submit the desired evidence, together with a commensurate postponement of the hearing date. In support of the requested extensions of time it was stated:

Much of the evidence requested will require the collection and intensive analysis of 1967 motor carrier annual reports to the Commission, due March 31, 1968.

By letter dated April 22, 1968, directed to the Interstate Commerce Commission concerning the hearing date, counsel for the Bureau sought a like 90-day postponement for "the reason . . . that it is a physical impossibility for respondents to compile...

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