Watkins Motor Lines, Inc. v. United States

• Decision Date: 14 February 1966
• Docket Number: Civ. A. No. 679.
• Citation: 252 F. Supp. 1017
• Parties: WATKINS MOTOR LINES, INC., Plaintiff, v. UNITED STATES of America and Interstate Commerce Commission, Defendant.
• Court: U.S. District Court — Middle District of Georgia

252 F. Supp. 1017

WATKINS MOTOR LINES, INC., Plaintiff, v. UNITED STATES of America and Interstate Commerce Commission, Defendant.

Civ. A. No. 679.

United States District Court M. D. Georgia, Thomasville Division.

February 14, 1966.

Altman & Johnson, Thomasville, Ga., and Joseph H. Blackshear, Gainesville, Ga., for plaintiff.

Fritz R. Kahn, John H. D. Wigger, Washington, D. C., Wilkes C. Robinson, Richmond, Va., and T. Heyward Vann, Thomasville, Ga., for defendants.

Before BELL, Circuit Judge, and BOOTLE and ELLIOTT, District Judges.

ELLIOTT, District Judge:

This is an action under Sections 1336, 1398, 2284 and 2321 through 2325, of Title 28, of the United States Code, Section 17(9) of the Interstate Commerce Act, 49 U.S.C. § 17(9), and Section 10 of the Administrative Procedure Act, 5 U.S.C. § 1009, by which the Plaintiff, Watkins Motor Lines, Inc., seeks to enjoin, annul and set aside the report and order of the Defendant, Interstate Commerce Commission, entered August 31, 1961, by which the Defendant partially denied Watkins' application for motor carrier operating authority to which the Plaintiff claims it was entitled under the law and the evidence, reference being made to ICC Docket No. MC-95540 (Sub No. 298).

The Transportation Act of 1958, 72 Stat. 573, subjected to Commission regulation the interstate motor carrier transportation of certain categories of agricultural commodities which had previously been exempt from such regulation, among such commodities being frozen fruits, frozen berries and frozen vegetables. It was provided by § 7(c) of the Act¹ that those who on May 1, 1958 and thereafter were engaged "in bona fide operation" as a motor carrier of one or more of these commodities upon application to the Commission could secure "a certificate or permit, as the type of operation may warrant, authorizing such operations as a common or contract carrier by motor vehicle" as the applicant previously had performed.

Pursuant to this provision in the Act, Watkins filed for such "grandfather" rights, seeking a certificate to transport frozen fruits, frozen berries and frozen vegetables from all points in twenty-six states in various combinations to all points in thirty-three states and the District of Columbia. This application was protested by certain other carriers. The application was heard before an Examiner of the Commission in November, 1960 and in May, 1961 the Examiner served his report and recommended order partially denying Watkins' application. No exceptions were taken by Watkins to the Examiner's report. However, exceptions were filed by protesting carriers and Watkins replied to these exceptions.

On August 31, 1961 the Commission, Division 1, entered its report and order, this being the order which is assailed in this action. At page 6 of its report the Commission declared:

"To be entitled to `grandfather' operating rights under section 7(c) of the Transportation Act of 1958, an applicant must demonstrate that it has been engaged in the bona fide transportation of the commodities for which authority is sought, on and since May 1, 1958, except for interruptions in service which are beyond its control. Although the term `bona fide operations' is not susceptible of exact definition, we have construed it in previous cases to mean substantial, as distinguished from incidental, sporadic, or infrequent service. E. g., E. G. Long Common Carrier Application, 81 M.C.C. 689.

"Applying that criterion to the facts presented herein, we are of the opinion that applicant has been engaged in the bona fide transportation of frozen vegetables, frozen fruits, and frozen berries, on and since May 1, 1958, to the extent hereinafter set forth in our findings, and that authority to continue such operations should therefore be issued. No other operations performed by applicant meet the statutory criteria because they were either infrequent or sporadic or lack the requisite continuity of performance both on or before as well as since the critical date."

After the filing of this report and order Watkins did not petition the Commission for reconsideration, but again the protesting carriers petitioned for reconsideration, and Watkins again replied to this protest. On February 1, 1963 the Commission denied the petitions for reconsideration.

The instant action was filed in this court on May 10, 1963 and, upon consideration, the Commission on May 15, 1963 extended until further order of the Commission the time within which Watkins is obliged to comply with the Commission's orders. Accordingly, under the provisions of § 7(c) of the Transportation Act of 1958 Watkins has operated and continues to operate throughout the territory sought to be served under its "grandfather" application.

Following a pre-trial conference, briefs were filed by the interested parties and a hearing was had on January 5, 1966.

Two questions are presented for this Court's determination: (1) whether the Commission's determination that Watkins was entitled to no greater "grandfather" rights than it awarded to Watkins was warranted by the applicable law and the facts of record; and (2) whether, assuming the Commission erred, the matter was properly before this Court, Watkins having failed timely to bring the matter to the attention of the Commission.

In connection with the first question presented Watkins contends that "the Commission should have included frozen fruits and frozen berries from and to the same points and places it granted (it) authority to transport frozen vegetables, and authority to transport frozen vegetables where it was authorized to transport either frozen fruits or frozen berries". In substance Watkins asserts that the three commodities, frozen fruits, frozen berries and frozen vegetables as a matter of law comprise a single commodity class, the past bona fide motor carrier transportation of one or more of which entitled Watkins to "grandfather" rights to handle all of them. Admittedly, Watkins did not make this contention before the Commission, it appearing that this contention now made is suggested by decisions of the courts handed down since this matter was before the Commission.

This situation suggests the propriety of first giving consideration to the second question presented, that of jurisdiction.

It is clearly settled that in reviewing the validity of a report and order of the Commission a court is confined to considering only those errors that were specifically relied upon by the Plaintiff before the Commission. It has been frequently stated by the Supreme Court that matters which are not brought...