Watson Bros. Transportation Co. v. United States, Civ. No. 52-54.

• Decision Date: 23 June 1955
• Docket Number: Civ. No. 52-54.
• Citation: 132 F. Supp. 905
• Parties: WATSON BROS. TRANSPORTATION CO., Inc., Omaha, Nebraska, Plaintiff, v. The UNITED STATES of America, and The Interstate Commerce Commission, Defendants.
• Court: U.S. District Court — District of Nebraska

132 F. Supp. 905

WATSON BROS. TRANSPORTATION CO., Inc., Omaha, Nebraska, Plaintiff, v. The UNITED STATES of America, and The Interstate Commerce Commission, Defendants.

Civ. No. 52-54.

United States District Court D. Nebraska, Omaha Division.

June 23, 1955.

Joseph T. Votava, Loyal G. Kaplan, Omaha, Neb., Beverley S. Simms, Washington, D. C., for plaintiff.

Leo H. Pou, Interstate Commerce Commission, Washington, D. C., and James H. Durkin, Dept. of Justice, Washington, D. C., for defendants.

Before WOODROUGH and JOHNSEN, Circuit Judges, and DONOHOE, Chief Judge.

DONOHOE, Chief Judge.

This is an action to set aside and annul an order of the Interstate Commerce Commission and to enjoin issuance pursuant thereto of a "corrected" Certificate of Public Convenience and Necessity to Plaintiff. This court has jurisdiction, 28 U.S.C. (1952 Ed.) §§ 1336, 1398; and, as required, a three-judge court has been appropriately convened to determine the matter, 28 U.S.C. (1952 Ed.) §§ 2321, 2325, 2284.

The salient facts are neither complex, nor disputed. Plaintiff, Watson Bros. Transportation Co., is engaged in the interstate transportation of freight by motor carrier; and prior to the year 1947 had been granted various operating rights by the Interstate Commerce Commission. On December 22, 1947, these rights were consolidated in a single Certificate of Public Convenience and Necessity issued by the Commission. This certificate authorized plaintiff to engage in the transportation of general commodities on approximately eighty-four separate routes. On sixty-nine of these routes, the grant of authority to transport general commodities included the right to transport explosives. On fifteen of these routes, however, plaintiff was not authorized to transport dangerous explosives.

On September 30, 1947, plaintiff filed an application with the Commission for a Certificate of Public Convenience and Necessity authorizing the transportation of explosives on "all the routes" over which plaintiff was authorized to haul general commodities. An amendment expressly designating the routes over which plaintiff sought authority to transport explosives was subsequently filed. A hearing was held upon the application, as amended, in Omaha, Nebraska, on February 3, 1949; and during the course of the hearing it developed from the testimony of a witness for the Department of the Army that there was no motor carrier service at the following installations: Rocky Mountain Arsenal, near Denver, Colorado; Iowa Ordnance Plant, near Burlington, Iowa; Sunflower Ordnance Plant, near DeSoto, Kansas; and Savanna Ordnance Plant, near Savanna, Illinois. Consequently plaintiff requested orally at the hearing permission to amend its application so that it would include a request for authority to serve these four points.

The record shows:

"Mr. Kaplan (for Watson Bros.): If the Examiner please — Mr. Buster, if you will excuse me — prior to presenting intervener's case the applicant at this time requests permission to amend its application in conformity with the proof that has been offered, and it is suggested by this counsel that such amendment will not substantially broaden the scope of this application.

"This applicant is not authorized to serve the Iowa Ordnance Plant, the Sunflower Ordnance Plant, the Savanna Ordnance Depot and the Rocky Mountain Arsenal. The Iowa Ordnance Plant is located approximately six miles west of Burlington, Iowa. This applicant is authorized to operate over U. S. Highway 34, which is less than six miles from the Iowa Ordnance Plant.

"The Sunflower Ordnance Plant at DeSoto, Kansas, is less than 10 miles south of U. S. Highway 40 over which route the applicant is authorized to serve.

"The Savanna Ordnance Depot is some several miles, and this counsel does not know how many miles, from Freeport, Illinois, which is authorized to this applicant.

"In addition, the Rocky Mountain Arsenal is only two miles from Denver, Colorado. With that explanation, applicant respectfully moves permission to amend its application so as to be able to serve to and from the Iowa Ordnance Plant near Burlington, Iowa; the Sunflower Ordnance Plant near DeSoto, Kansas; the Savanna Ordnance Depot near Savanna, Illinois, and the Rocky Mountain Arsenal near Denver, Colorado.

"Exam. Garofalo: That is the Rocky Mountain Arsenal?

"Mr. Kaplan: Yes, sir.

"Exam. Garofalo: Are there any objections?

"Mr. Buster (for intervener): If counsel is agreeable to restricting the authority sought to service for the United States Government there is no objection. I reason I raise that question is for tack-on purposes.

"Mr. Kaplan: That stipulation will be quite agreeable. We certainly join in it.

"Mr. Buster: No objection.

"Exam. Garofalo: If there are no further objections, the amendment is allowed."

On April 13, 1949, the trial examiner filed his recommended report and order which contains the following finding:

"The examiner finds that the present and future public convenience and necessity require operation by applicant as a common carrier by motor vehicle, in interstate or foreign commerce, of dangerous explosives to, from, or between points over the regular routes and irregular routes as shown in the appendix hereto, and to and from the sites of the Rocky Mountain Arsenal, near Denver, Colo., Iowa Ordnance Plant, near Burlington, Iowa, Sunflower Ordnance Plant, near DeSoto, Kans., and Savanna Ordnance Plant, near Savanna, Ill., as off route points in connection with applicant's otherwise authorized operations.

"The examiner further finds that applicant is fit, willing, and able properly to perform such service and to conform to the requirements of the Interstate Commerce Act and the Commission's Rules and Regulations thereunder; and that an appropriate certificate should be issued."

Plaintiff was served a copy of the examiner's recommended report and order on April 15, 1949. No exceptions to this recommended report and order were taken and on May 18, 1949, the time for taking exceptions expired, and the order of the examiner became effective as the order of the Commission.

On July 19, 1949, the Commission issued to plaintiff a Certificate of Public Convenience and Necessity containing the following material provisions:

"After due investigation, It appearing that the above-named carrier has complied with all applicable provisions of the Interstate Commerce Act, and the requirements, rules and regulations prescribed thereunder, and, therefore, is entitled to receive authority from this Commission to engage in transportation in interstate or foreign commerce as a motor carrier; and the Commission so finding;

"It is ordered, That the said carrier be, and it is hereby, granted this Certificate of Public Convenience and Necessity as evidence of the authority of the holder to engage in transportation in interstate or foreign commerce as a common carrier by motor vehicle; subject, however, to such terms, conditions, and limitations as are now, or may hereafter be, attached to the exercise of the privileges herein granted to the said carrier.

"It is further ordered, That the transportation service to be performed by the said carrier in interstate or foreign commerce shall be as specified below:

* * *

"General commodities, except household goods as defined in Practices of Motor Common Carriers of Household Goods, 17 M.C.C. 467, and commodities requiring special equipment

* * *

"Service is authorized to and from the site of the Rocky Mountain Arsenal, near Denver, Colo., Iowa Ordnance Plant, near Burlington, Iowa, Sunflower Ordnance Plant, near DeSoto, Kans., and Savanna Ordnance Plant, near Savanna, Ill., as off-route points in connection with said carrier's authorized regular and irregular route operations.

"It is further ordered, and is made a condition of this certificate that the holder thereof shall render reasonably continuous and adequate service to the public in pursuance of the authority herein granted, and that failure so to do shall constitute sufficient grounds for suspension, change, or revocation of this certificate."

After the issuance of this Certificate of Public Convenience and Necessity plaintiff expended substantial sums of money for equipment to be used in rendering the service required by the before-quoted paragraphs of the Certificate; and plaintiff has continuously from the time of the issuance of the certificate to the present time engaged in the transportation of general commodities to the four ordnance plants covered by the certificate issued July 19, 1949.

On August 25, 1953, the Commission sua sponte issued the following order relating to plaintiff's certificate:

"Order

IM-141-H

"At a Session of the Interstate Commerce Commission, Division 5, held at its office in Washington, D. C., on the 25th day of August, A. D. 1953

No. MC 70451 Watson Bros. Transportation Co., Inc., Omaha, Nebraska

"Upon further consideration of the record in the above-entitled proceeding;

"It appearing, That the corrected report and recommended order of April 13, 1949, which became effective May 18, 1949, in No. MC 70451 Sub 72, authorized the issuance of a certificate for the transportation of dangerous explosives (Now designated Class A and B explosives) `to and from the sites of the Rocky Mountain Arsenal, near Denver Colo., Iowa Ordnance Plant, near Burlington, Iowa, Sunflower Ordnance Plant, near DeSoto, Kans., and Savanna Ordnance Plant, near Savanna, Ill., in connection with applicant's otherwise authorized operations'.

"It further appearing, That pursuant to said report and order of May 18, 1949, the above-described authority was consolidated with other authority specified in Certificate No. MC 70451 issued December 22, 1947, and that thru inadvertence such authority was shown as a service clause in connection with the operation set forth below:

"General commodities, except household goods as defined in Practices of Motor Common Carriers of Household Goods, 17

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