Wilson v. United States, 924.

• Decision Date: 24 August 1953
• Docket Number: No. 924.,924.
• Citation: 114 F. Supp. 814
• Court: U.S. District Court — Western District of Missouri
• Parties: WILSON et al. v. UNITED STATES et al.

114 F. Supp. 814

WILSON et al. v. UNITED STATES et al.

No. 924.

United States District Court W. D. Missouri, S. W. Division.

August 24, 1953.

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Stanley P. Clay, Joplin, Mo., for plaintiffs.

James E. Kilday, Francis J. Heazel, Jr., Stanley N. Barnes, Sp. Assts. to Atty. Gen., Washington, D. C., Edward L. Scheufler, U. S. Atty., Kansas City, Mo., on the brief, for defendants.

Allen Crenshaw, Washington, D. C., for Interstate Commerce Commission.

Before STONE, DUNCAN and RIDGE, District Judges.

RIDGE, District Judge.

On reconsideration of a Division No. 5 order favorable to petitioners' application for a certificate of convenience and necessity as a contract motor carrier, the Interstate Commerce Commission (two members dissenting and one member not participating) found "that applicants (petitioners) * * * have failed to show that the proposed operation will be consistent with the public interest and the national transportation policy, and that the application should be denied." Petitioners brought the instant review action to annul, set aside and enjoin said order. We have jurisdiction in the premises by virtue of Sections 1336, 1398, 2284, and 2321-2325, Title 28, U.S.C.A.

In their complaint, petitioners allege that the report and order of the I.C.C. so entered is unjust, arbitrary, unreasonable and without any basis in fact or law, in that the I.C.C. erroneously (a) considered a certificate of convenience and necessity of Frozen Food Express, a protesting motor carrier in the proceeding, which was issued subsequent to the date of filing of petitioners' application with the Commission; (b) considered the operating authority of Frozen Food Express and Refrigerated Transport, Inc., when said carriers did not petition for reconsideration of the Division No. 5 order; (c) considered the operating authority of Refrigerated Transport a protesting motor carrier which was not placed in the record; (d) and the operations of Refrigerated Transport thereunder when that motor carrier submitted no evidence as to its fitness, operations and equipment, to reasonably provide the supporting shipper with adequate motor carrier service; (e) considered a trip-lease arrangement of Frozen Food and Refrigerated Transport when the agreement relating thereto was not in the record before the Commission; (f) and was in fact shown to be an illegal operation by said motor carriers; (g) in incorrectly interpreting and construing the scope of operating authority of Frozen Food as a common carrier; (h) and failed to consider petitioners' challenge of the Examiner's qualifications that heard and granted the application of Frozen Food for such authority; (i and j) considered rail service as being direct and adequate to meet the particular needs of the supporting shipper when no evidence was offered by rail protestants and connecting rail carriers in respect to their willingness and ability to meet the particular needs of such shipper; and (k) in not finding as matter of law that the supporting shipper was entitled to motor carrier service as well as rail service.

In light of the findings and order entered by the I.C.C., and notwithstanding the several objections raised by petitioners, we believe the only issue that can legally be adjudicated in this review proceeding is: Are the findings and order of the Commission supported by substantial evidence? By briefs and argument before the Court, it is revealed that the substance of petitioners' attack is that the order of the Commission is not supported by substantial evidence. Objections which petitioners proffer that go to the soundness of the reasoning by which the Commission reached its conclusion: that the order of the Commission is inconsistent with conclusions reached by it in similar cases; that some evidence was improperly considered, and that inferences drawn from the evidence were unwarranted, are matters which we are not authorized to consider in this review proceeding. Western Paper Makers' Chemical Co. v. United States, 271 U.S. 268, 46 S.Ct. 500, 70 L.Ed. 941. The determination by the Commission "that applicants (petitioners) have failed to show that the proposed operation will be consistent with the public interest and the national transportation policy" is a question as to which the findings of the Commission are conclusive if supported by substantial evidence, unless there is some irregularity in the proceeding or some error in the application of proper rules of law. Western Paper Makers' Chemical Co. v. United States, supra; Virginia Stage Lines v. United States, D.C., 48 F.Supp. 79; O'Malley v. United States, D.C.Minn., 38 F.Supp. 1.

The only semblance of attack as to the regularity of proceedings before the I.C.C., tendered by the instant complaint, is that the Commission on reconsideration considered the operating authority of Frozen Food Express, granted after petitioners' application was filed, and that of another opposing motor carrier when both such carriers did not petition for reconsideration of the Division No. 5 order. As to that proposition, petitioners concede that they "find no legal authorities approving or disapproving" such procedure, but they assert, "This Court should give consideration to the same" in the particular setting of this case. We do, and find it to be without merit.

By paragraphs 6 and 7, Section 17 of the I.C.C. Act, 49 U.S.C.A. § 17, pars. 6 & 7, as well as Section 7(a) of the Administrative Procedure Act, Title 5 U.S. C.A. § 1007(a), the whole Commission is vested with authority to reverse, change or modify a decision or order of a division thereof and to review the same on the record made in the division, or at an Examiner's hearing. When it does so, we know of no rule or statute that would require or permit the whole Commission to consider only a part of such record, or which would prohibit the Commission, a division, or Examiner thereof, from considering the authority of other motor carriers issued and outstanding at the time a hearing is held, particularly when, as here, it was submitted by a protesting motor carrier appearing in opposition to an application. The Commission could even take official notice of such orders and certificates of convenience and necessity. Crichton v. United States, D.C., 56 F.Supp. 876, affirmed per curiam, 323 U.S. 684, 65 S.Ct. 559, 89 L.Ed. 554; Summer & Co. v. Erie R. Co., 262 I.C.C. 43, 51. Reconsideration of the divisional order was granted on petition of rail carriers appearing as protestants in the proceeding before the Commission. In granting reconsideration on that petition, the Commission "reopened" the proceedings "for reconsideration on the present record." (Order of Comm.) In light of such order, there can be no question but that the entire record made in the division, and before the Examiner, was properly before the whole Commission. It could not be otherwise, though reconsideration was granted at the behest of only one protestant appearing in the proceeding. The record so made, together with all evidence adduced by any protestant appearing in the proceeding could be properly considered, whether they individually petitioned for reconsideration or not. A partial consideration of a record by the Commission would, in our opinion, have subjected an order made by it to attacks far more serious than those petitioners level against the instant order.

In its order, the Commission defined the issue which it considered should be resolved "(i)n determining whether the proposed contract-carrier operation will be consistent with the public interest, * *." It stated the issue as follows: "We must ascertain whether the reasonable requirements of the supporting shipper may adequately be met by available carriers." In the setting of this contract-carrier proceeding, we believe the Commission properly conceived and defined the issue to be resolved, before petitioners were entitled to a certificate of convenience and necessity on their application. In the past, the Commission has stated in a number of cases before it that "in order to foster a sound transportation system, existing motor carriers should normally be accorded the right to transport all traffic which they can handle adequately, efficiently and economically in the territory served by them as against any person now seeking to enter the field of motor carrier transportation in circumstances such as are here disclosed." Louis Jagel & Louis A. Jagel, Extension, 5 F.C.C., 94; Forrest Worm & Fred Worm —Extension of Operations, 32 M.C.C. 641. In the expertise of the Commission, we believe it to be authorized and empowered under the I.C.C. Act to so define the issue to be resolved on an application such as here involved. We accept such as being the legal issue before the Commission, and in this review proceeding shall confine our consideration as to whether that issue as resolved by the Commission is supported by substantial evidence.

In resolving that issue, the Commission found and the record here reveals "that the supporting carrier presently is shipping cheese, fresh, frozen, and dried eggs, and dressed poultry from its plants in Kansas to various principal points in the involved destination territory." The destination territory sought in the application was "all points in the States of Louisiana, Mississippi, Alabama, Georgia, Florida, Tennessee, South Carolina and North Carolina" by irregular routes. The Division No. 5 order granted authority to specific locations in that territory as to which the supporting shipper was presently making shipments from its plant in Kansas. The evidence establishes and the Commission found that the supporting shipper was presently making shipments of the above-mentioned dairy products as follows: Approximately 50 per cent of the involved traffic has been transported by shipper, 5 per cent by consignees, 10 per cent by nonregulated carriers, 20 per cent by...