Watkins Motor Lines, Inc. v. United States, Civ. No. 620L.

CourtUnited States District Courts. 8th Circuit. United States District Court of Nebraska
Writing for the CourtJOHNSON, Circuit , and ROBINSON and VAN PELT
Citation243 F. Supp. 436
PartiesWATKINS MOTOR LINES, INC., Plaintiff, v. UNITED STATES of America and Interstate Commerce Commission, Defendants, and Milne Truck Lines, Inc., Denver-Albuquerque Motor Transport, Inc., and Ringsby Truck Lines, Inc., Intervening Defendants.
Docket NumberCiv. No. 620L.
Decision Date09 June 1965

243 F. Supp. 436

UNITED STATES of America and Interstate Commerce Commission, Defendants,
Milne Truck Lines, Inc., Denver-Albuquerque Motor Transport, Inc., and Ringsby Truck Lines, Inc., Intervening Defendants.

Civ. No. 620L.

United States District Court D. Nebraska.

June 9, 1965.

243 F. Supp. 437

Duane W. Acklie, of Nelson, Harding & Acklie, Lincoln, Neb., for plaintiff.

Arthur J. Cerra, Washington, D. C., for defendants United States and Interstate Commerce Commission.

James C. Hardman, Chicago, Ill., for intervening defendants Denver-Albuquerque Motor Transport, Inc. and Milne Truck Lines, Inc.

Douglas McHendrie, Denver, Colo., for intervening defendant railroads.

Before JOHNSON, Circuit Judge, and ROBINSON and VAN PELT, District Judges.

VAN PELT, District Judge.

Watkins Motor Lines, Inc. (plaintiff or Watkins) instituted this action to set aside and enjoin the enforcement of certain orders of the Interstate Commerce Commission (Commission) entered in a proceeding before that agency entitled

243 F. Supp. 438
Watkins Motor Lines, Inc., Extension — Four States, Docket No. MC-95540

By an application pursuant to § 207 (a) of the Interstate Commerce Act 49 U.S.C. § 307(a), filed December 26, 1961, as amended, Watkins sought a certificate of public convenience and necessity authorizing operations in interstate commerce as a common carrier by motor vehicle, over irregular routes, of meats, meat products, meat by-products, dairy products,1 articles distributed by meat packinghouses, and frozen foods, from Denver, Colorado, to points in New Mexico, Arizona, Nevada and California. A public hearing on the application of Watkins was held on a consolidated record with Colorado-Arizona-California Express, Inc., Common Carrier Application; No. MC-124065 and Little Audrey's Transportation Company, Inc., Extension—Seven States; No. MC-108953 (Sub. No. 34). A number of motor carriers, as well as rail carriers appeared in protest to the application.2

In a recommended report and order, filed June 13, 1962, the examiner entered findings of fact and concluded and recommended that the application of Watkins be denied. The basis for the recommended denial was the finding that "public convenience and necessity do not require the operations for which the authority is sought.3"

Plaintiff filed exceptions to the report and recommended order. On December 4, 1962, the Commission, Division 1, found that plaintiff had failed to establish that the present and future public convenience and necessity required the proposed operation and entered an order denying the application. On December 19, 1962, plaintiff filed a "Petition for Finding of General Transportation Importance," which was denied by the Commission in an order served February 21, 1963. Watkins also filed a "Petition for Re-hearing" on January 2, 1963, which was denied by an order entered April 11, 1963, by the Commission, Division 1, acting as an Appellate Division.

Thereupon this action was commenced to set aside the orders of the Commission and remand the matter for rehearing. Watkins asks, in the alternative, that this court instruct the Commission to grant the requested application.4 The action was filed on May 16, 1963 and on June 10, 1963, the court issued a temporary restraining order enjoining the Commission from cancelling the temporary authority held by Watkins. Jurisdiction being noted under 28 U.S.C. §§ 1336 and 2325, this matter now stands ready for decision.


The basic test in such a determination as this is set out in the Watkins

243 F. Supp. 439
companion case of Colorado-Arizona-California Express, Inc. v. United States, 224 F.Supp. 894 (D.Colo.1963)5 wherein the court states
"The adequacy of the existing transportation service is one of the `basic ingredients' in the determination of public convenience and necessity and an applicant for a certificate of convenience and necessity has the burden of showing by evidence that the proposed service is or will be required by the present or future public convenience and necessity." 224 F.Supp. at 896-897.

It should be noted that applicant has not only the duty of producing an affirmative showing that the proposed operation will be of beneficial value to the community but also incurs the added burden of showing that the operation is a necessity. The latter is generally ascribed to a lack of adequate existing facilities. Hudson Transit Lines, Inc. v. United States, 82 F.Supp. 153 (S.D.N.Y.1948); Sinett v. United States, 136 F.Supp. 37 (D.N.J. 1955); Capital Transit Co. v. United States, 97 F.Supp. 614 (D.C.1951). See also Inland Motor Freight v. United States, 60 F.Supp. 520 (E.D.Wash.1945).

The initial issue to be determined, therefore, is whether applicant has sufficiently met his standard of proof. This is not a determination anew however, but rather inquiry is directed to whether the Commission has observed the requirements of the law in the conduct of their proceedings and additionally, whether the conclusions as to public convenience and necessity have a rational basis in the facts found, which must be supported by substantial evidence on the record considered as a whole. Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); Interstate Commerce Commission v. Union Pac. R. R. Co., 222 U.S. 541, 32 S.Ct. 108, 56 L.Ed. 308 (1912); Capital Transit Co. v. United States, supra.

The testimony of all supporting shippers concerning the need for transportation into the seven western states involved in the consolidated proceeding revealed the following customer points, identified by city and the related shipper.


(1) Flagstaff (Farmer Pete Packing Company)
(2) Winslow (Farmer Pete Packing Company)
(3) Phoenix (Farmer Pete Packing Company, Colorado Pizza Company, Cudahy Packing Company, United Fryer & Stillman, Inc.)


(1) San Diego (Cudahy Packing Company, Colorado Pizza Company, United Fryer & Stillman, Inc.)
(2) Los Angeles (Colorado Pizza Company, United Fryer & Stillman, Inc., Carter Meat Company)
(3) San Francisco (Carter Meat Company, United Fryer & Stillman, Inc.)
(4) Burbank (United Fryer & Stillman, Inc.)
(5) Oakland (United Fryer & Stillman, Inc.)
(6) Marysville (United Fryer & Stillman, Inc.)
(7) San Luis Obispo (United Fryer & Stillman, Inc.)


(1) One unidentified city.


(1) Las Vegas (United Fryer & Stillman, Inc.)
243 F. Supp. 440

New Mexico:

(1) Gallup (Farmer Pete Packing Company)
(2) Albuquerque (Colorado Pizza Company)


(1) Portland (United Fryer & Stillman, Inc.)


(1) Seattle (United Fryer & Stillman, Inc.)6

It should be noted at this time that the C-A-C case considered the question of existing carrier service to the same transportation points as set out above, having before it the same record as this court.7 A three-judge court in the District of Colorado found on the facts present in this case that there was substantial evidence in the record to support the conclusion of the Commission. While we are not bound by that determination, the opinion in C-A-C is given the fullest consideration by this court in reaching the conclusion set forth below.

Plaintiff takes exception with the Commission's finding of satisfactory service in relatively few instances. It is, however, asserted that the finding of satisfactory service was erroneous due to the lack of single-line service available to meet the requests of two of the supporting shippers for a carrier able to make a delivery stop at Phoenix, Arizona on traffic moving to San Diego, California. Although this general assertion is not defined with any exactitude, Watkins is apparently referring to testimony of representatives of Cudahy Packing Company (Cudahy) and United Fryer & Stillman, Inc. (United Fryer) to the effect that they could not get single-line service into San Diego with a stop-off at Phoenix. The Cudahy representative, however, did testify that the best service utilized by their company was an interline service formerly rendered by a shipper whose operations had since ceased.

A representative from United Fryer testified that it was difficult to get a carrier to...

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