Visceglia v. United States

• Decision Date: 10 June 1938
• Citation: 24 F. Supp. 355
• Parties: VISCEGLIA et al. v. UNITED STATES et al. (INTERSTATE HOUSEHOLD MOVERS TARIFF BUREAU, Inc., et al., Interveners).
• Court: U.S. District Court — Southern District of New York

24 F. Supp. 355

VISCEGLIA et al. v. UNITED STATES et al. (INTERSTATE HOUSEHOLD MOVERS TARIFF BUREAU, Inc., et al., Interveners).

District Court, S. D. New York.

June 10, 1938.

Abraham Rotwein, of New York City (Allan Hyman, of New York City, of counsel), for plaintiffs.

Lamar Hardy, U. S. Atty., of New York City (Elmer B. Collins, of Washington, D. C., of counsel), for the United States.

Daniel W. Knowlton, of Washington, D. C. (Thomas M. Ross and Nelson Thomas, both of Washington, D. C., of counsel), for Interstate Commerce Commission.

J. Almyk Lieberman, of New York City, for intervener Interstate Household Movers Tariff Bureau, Inc.

Before AUGUSTUS N. HAND, Circuit Judge, and BONDY and WOOLSEY, District Judges.

AUGUSTUS N. HAND, Circuit Judge.

The proceedings before the Commission were instituted on or about February 7, 1936, by Frank Visceglia and Connie Putignano for certificates to operate as carriers in interstate commerce, and by Frank Visceglia for a license to operate as a broker of transportation, by motor vehicle. Under date of December 2, 1937, the Commission made a report reciting facts and preliminary findings in which it determined that the applicants in MC 49177 and MC 49178 were not operating as common carriers on June 1, 1935, or as contract carriers on July 1, 1935, and continuously thereafter; and that the applicant for a broker's license in MC 45400 had not shown that he was fit, willing and able properly to perform the brokerage operations applied for or that the continuance of such operations was consistent with the public interest. On December 2, 1937, the Commission also made an order denying the applications and directing that the applicants "cease and desist on or before January 13, 1938, from all operations as common carriers by motor vehicle, contract carriers by motor vehicle, or brokers for which certificates of public convenience and necessity, permits or licenses are required by the provisions of the Motor Carrier Act, 1935". Thereupon the applicants brought this suit pursuant to U.S.Code, Title 28, Section 41, Subdivision 28, 28 U.S.C.A. § 41(28), to have the order of the Commission annulled. The bill of complaint alleged that the Commission in its determination and order acted arbitrarily and in excess of its powers. Answers were filed by the Commission and the United States.

The plaintiffs moved to have the operation of the order of the Interstate Commerce Commission suspended pendente lite. We reserved decision and proceeded to a final hearing on the merits. At the hearing we granted a motion by Interstate Household Movers Tariff Bureau Inc., New Jersey Furniture Warehousemen Association and United Van Lines of Ohio for leave to intervene and also granted a motion by the Commission to quash a subpoena duces tecum issued to the Secretary of the Commission which ordered him to produce the original transcript and all the exhibits that were offered in evidence in the proceeding before the Commission. After the quashing of the subpoena the plaintiffs elected to proceed with the suit solely upon the findings and report of the Commission without producing a certified copy of the evidence on which the report was made.

After hearing argument and considering briefs submitted on behalf of the plaintiffs and defendants we have reached the conclusion that the motion for a preliminary injunction should be denied and the bill of complaint dismissed.

The applicants before the Commission sought certificates under Section 206 and permits under Section 209 of the Motor Carrier Act (Interstate Commerce Act, Part 2), 49 U.S.C.A. §§ 306, 309, authorizing them to operate as motor carriers of specified classes of goods over regular and irregular routes, and Frank Visceglia sought a license under Section 211, 49 U. S.C.A. § 311, to operate a brokerage service covering such transportation. After a hearing, including presentation of evidence before an Examiner of the Commission, service of a proposed report, filing of exceptions thereto and oral argument before Division 5 of the Commission, the order previously referred to was issued.

Section 206 of the Motor Carrier Act forbids any common carrier by motor vehicle from engaging in interstate operations "unless there is in force with respect to such carrier a certificate of public convenience and necessity issued by the Commission authorizing such operations", but provides that if a carrier or predecessor in interest was in bona fide operation on June 1, 1935, over the route or routes or within the territory for which application is made, and has so operated since that time, and if application for such certificate shall be made within one hundred and twenty days after the effective date of the act, the Commission shall issue such certificate without further proof that public convenience and necessity will be served by such operation. It is further provided that pending the determination of any such application continuance of operation shall be lawful.

Section 209 provides in similar terms for the granting of a "permit" to a contract carrier by motor vehicle in interstate commerce who was in bona fide operation as such on July 1, 1935, and has so operated since that time.

Section 211 provides that no person shall, for compensation, sell or offer for sale transportation by motor vehicle, or contract or arrange for such transportation, or hold himself out as one who sells or arranges for such transportation unless such person holds a broker's license issued by the Commission to engage in such transportation. It provides that such a license shall be issued to any qualified applicant therefor "if it is found that the applicant is fit, willing, and able properly to perform the service proposed and to conform to the provisions of this part chapter and the requirements, rules, and regulations of the Commission thereunder, and that the proposed service, * * * is, or will be consistent with the public interest and the policy declared in section 302 (a) of this part chapter; otherwise such application shall be denied".

The evidence taken before the Commission was not made a part of the record so that the power of this court to enjoin, set aside, annul or suspend, in whole or in part, the order of the Commission can only exist if the findings of fact in the report of the Commission fail to give rational support to its conclusions of law. Mississippi Valley Barge Line Co. v. United States, 292 U.S. 282, 286, 54 S.Ct. 692, 693, 78 L.Ed. 1260. In other words, our review is limited to determining whether the report supports the "cease and desist" order.

The report of the Commission met the requirements of Section 14(1) of the Interstate Commerce Act, 49 U.S.C.A. § 14(1), made applicable by Section 204(f) of the Motor Carrier Act, 49 U.S.C.A. § 304(f). In other words, it stated "the conclusions of the Commission, together with its decision, order, or requirement in the premises; * * *". It was not necessary to make "formal and precise findings" in a case of this type and to set out all the primary evidence that was considered, but only findings "basic or essential". United States v. Baltimore & O. R. Co., 293 U.S. 454, 464, 465, 55 S.Ct. 268, 272, 273, 79 L. Ed. 587; United States v. Louisiana, 290 U.S. 70, 80, 54 S.Ct. 28, 33, 78 L.Ed. 181; Manufacturers' Ry. Co. v. United States, 246 U.S. 457, 487, 38 S.Ct. 383, 62 L.Ed. 831.

The plaintiffs' applications sought certificates and permits under the so-called "grandfather" clause of the Motor Carrier Act of 1935 which went into effect on August 9th of that year. To obtain them without proof of public convenience and necessity they had to establish that they were continuously engaged as common or contract carriers during the times designated in the statute. Their counsel argues that from an analysis of the different recitals of facts in the report of the Commission the plaintiffs, who were at times operating individually before the critical statutory dates of June 1 and July 1, 1935, and were likewise operating after October 14, 1935, when receivers of United Van Service were appointed, should be regarded as operating individually during the interval. While some of the facts recited, if taken alone, are not inconsistent with such an inference, other facts recited and the basic findings lead to an opposite conclusion. Under such circumstances, it would be quite improper for us to reverse the findings of fact of the Commission, especially when the evidence before it is not available to us.

The report states that about January 25, 1933, K & E DeLuxe Padded Van Company Incorporated, and in September, 1934, United Van Service were organized under the laws of New Jersey and that they were operating the business prior to and during the interval between June 1, 1935, and October 14, 1935, when they were placed in the hands of a receiver by the New Jersey Court of Chancery. The corporations were found to have been owned by the plaintiffs and their near relatives who were officers and stockholders. After the receivership the business appears to have been operated by Frank Visceglia.

The findings in respect...