Wycoff Company v. United States, No. C 108-62.

CourtU.S. District Court — District of Utah
Writing for the CourtLEWIS, Circuit , RITTER, , and CHRISTENSEN
Citation240 F. Supp. 304
PartiesWYCOFF COMPANY, Incorporated, Plaintiff, v. UNITED STATES of America, and Interstate Commerce Commission, Defendants.
Decision Date31 March 1965
Docket NumberNo. C 108-62.

240 F. Supp. 304

WYCOFF COMPANY, Incorporated, Plaintiff,
v.
UNITED STATES of America, and Interstate Commerce Commission, Defendants.

No. C 108-62.

United States District Court D. Utah, Central Division.

March 31, 1965.


240 F. Supp. 305
COPYRIGHT MATERIAL OMITTED
240 F. Supp. 306
Harry D. Pugsley, Salt Lake City, Utah, for plaintiff

John H. D. Wigger, Atty., Dept. of Justice, and William T. Thurman, U. S. Atty. for Dist. of Utah (William H. Orrick, Jr., Asst. Atty. Gen., with them on the briefs), for the United States.

Thomas H. Ploss, Asst. Gen. Counsel, I.C.C. (Robert W. Ginnane, Gen. Counsel, and Leonard S. Goodman, Asst. Gen. Counsel, I.C.C., with him on the briefs), for Interstate Commerce Commission.

Before LEWIS, Circuit Judge, RITTER, Chief District Judge, and CHRISTENSEN, District Judge.

CHRISTENSEN, District Judge.

By this action in which a statutory1 three-judge court has been convened the plaintiff, Wycoff Company, Inc., challenges

240 F. Supp. 307
the report and order of the Interstate Commerce Commission2 determining the extent to which plaintiff's motor carrier service to and from the Salt Lake City Airport is exempt from regulation under Section 203(b) (7a) of the Interstate Commerce Act, 49 U.S.C. § 303 (b) (7a)3 and finding that the public convenience and necessity did not justify related operations by plaintiff beyond such exemption

Plaintiff began airfreight service to and from the Salt Lake City Airport outside the scope of its existing certification by the Commission as a motor carrier of property in the belief that such operations were exempt from regulation notwithstanding that they involved in instances motor transportation up to several hundred miles. Apparently to set developing questions at rest, in 1958 plaintiff filed with the Commission an application for a certificate of public convenience and necessity authorizing it to transport commodities having a prior or subsequent movement by aircraft between the Salt Lake City Airport and places in Utah and surrounding states already served by plaintiff under its existing authority to transport newspapers, motion picture film and other express-type commodities.4 In the alternative, or to the extent these operations were not to be authorized by certificate, plaintiff requested the Commission to determine that its motor carrier service was exempt as "incidental to transportation by aircraft" within the meaning of Section 203(b) (7a), supra.

Plaintiff's application was protested by common carriers of property holding certificates for competing operations; a hearing was had, and the Commission examiner, without attempting to delineate the extent of the (7a) exemption, recommended that the Commission grant a certificate for most of the services proposed by plaintiff. On November 22, 1961, the Commission (Division 1), entered its report and order defining the exempt operations in harmony with the limiting5 guidelines which it theretofore had established in the Kenny case,6 accepting the examiner's findings of fact, but determining contrary to the conclusions of the examiner that the plaintiff had not established a public need for any of its proposed operations beyond the exempt zone. Plaintiff's petition for reconsideration of this decision was denied, and suit in this court was instituted on June 25, 1962.

In the meantime, a broad rule making proceeding7 had been instituted by the

240 F. Supp. 308
Commission for the purpose of generally interpreting by regulation the statutory exemption of "transportation incidental to movements by aircraft". On September 21, 1962, the Commission entered an order reopening the proceeding on review here, for future consideration in light of possible developments in the rule making proceeding. After extended hearings in the latter proceeding, rules on the subject were adopted by the Commission on May 4, 1964.8 These rules generally followed the rationale of the Kenny case, supra, so far as material here. On May 22, 1964, the Commission entered an order modifying its previous order to formally harmonize the two proceedings, but the modification constituted a substantial affirmation. Thus, the modified order dismissed plaintiff's application for a certificate of public convenience and necessity insofar as the proposed operation was exempt in terms of the new regulation rather than merely with reference to the Kenny case, and denied the application for certification of proposed operations beyond the exemption defined in the regulation

The plaintiff attacks the action of the Commission by three contentions:

1. That the Commission does not have jurisdiction over ground transportation of commodities incidental to movement by aircraft and, hence, does not have authority to determine the limits of this exemption by decision or regulation; or at least that there is irreconcilable conflict between the authority of the Commission and the Civil Aeronautics Board in this area.

2. In the event the Commission had jurisdiction to make the determination in question, it erred in its application of the law by engrafting upon the statutory exemption in effect a mileage limitation, or a zone limitation keyed to the tariff schedules filed by the airlines with the approval of the Civil Aeronautics Board.

3. The Commission's reversal of the examiner's conclusions and its denial of a certificate of public convenience and necessity for the proposed operations beyond the statutory exemption as interpreted, were arbitrary and capricious.

Before discussing these claims it must be decided procedurally whether we should consider certain evidence tendered by plaintiff dehors the record made before the Commission. The rule is well settled that proceedings such as this are not de novo, and ordinarily it is improper to allow the Commission's findings to be attacked or supported in court by evidence which the Commission had no opportunity of considering.9 We do not believe that departure from established principles is warranted by the fact of the rule making proceeding or the subsequent entry of the modified order after the filing of plaintiff's original complaint; nor does the limited purpose for which the new evidence was offered10 justify it. In any event, the proferred evidence was not of a character to throw into question the conclusions reached here.

It is our opinion that the Commission clearly possessed jurisdiction to determine the extent of the statutory exemption provided by Section 203(b) (7a), supra.

The line of demarcation between exempt and unexempt service is equally important for the purposes of the application of permissible regulations to motor carriers and the withholding of impermissible ones by the Commission. The Commission has the broad power

240 F. Supp. 309
"to administer, execute and enforce all provisions * * *" of Part II of the Act dealing with motor carriers, "to make all necessary orders in connection therewith, and to prescribe rules, regulations, and procedures for such administration."11 The determination of the area of exemption through case by case adjudication or by general rule subject to case by case application, is within the Commission's competence. And there appears no real dissonance, in theory or in practice, between the voices of the Commission and the Federal Aeronautics Board in this area, taking into consideration their respective objectives and functions in view of the national transportation policy. The convincing foundations for these conclusions have been so recently and well stated by another three-judge court, with the views of which we agree, as to make extended discussion here on the point unnecessary.12 The reliance placed by plaintiff upon the so-called Flying Tiger decision to establish conflicting jurisdiction in the Civil Aeronautics Board is misplaced.13

Having concluded that the Interstate Commerce Commission had jurisdiction to define the scope of the exemption granted by Section 203(b) (7a), and to regulate plaintiff's operations beyond the exempted operations as so defined, it is necessary to determine whether the regulation and decision constitute an arbitrary, unreasonable or unlawful exercise of the Commission's discretion. We are satisfied that they do not.

In MC-C-3437, the rule making proceeding which furnishes the basis of the Commission's order under attack, it is held (insofar as material here) that "(t)ransportation of property by motor vehicle is transportation incidental to transportation by aircraft within the meaning of section 203(b)(7a) * * * provided (1) that it is confined to the transportation of shipments in bona fide collection, delivery, or transfer service performed within the terminal area of the direct aircarrier * * * providing the line-haul transportation, which * * if the line-haul air transportation is provided by a carrier subject to economic regulation under the Federal Aviation Act, has been described in a tariff filed with and accepted by the Civil Aeronautics Board, and (2) that it is confined to the transportation of shipments which have been received from or will be delivered * * * as part of a continuous movement which, if provided by an air carrier subject to...

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8 practice notes
  • City of New York v. United States, Civ. No. 71-C-1639.
    • United States
    • U.S. District Court — Eastern District of New York
    • January 20, 1972
    ...to be attacked or supported by evidence which the Commission had no opportunity of considering." Wycoff Co. v. United States, 240 F.Supp. 304, 308 (D.Utah 1965) (three-judge court), citing Louisville & N. R. R. v. United States, 282 U.S. 740, 51 S.Ct. 297, 75 L.Ed. 672 (1931); Miss......
  • Nationwide Carriers, Inc. v. United States, No. 4-73-Civ. 447.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • July 5, 1974
    ...of the shipping public. See, e. g., Lester C. Newton Trucking Co. v. United States, supra, 264 F.Supp. 885; Wycoff v. United States, 240 F. Supp. 304, 312 (D.Utah 1965); Colorado-Arizona-California Express, Inc. v. United States, 224 F.Supp. 894, 896-897 (D.Colo.1963); W. T. Mayfield Sons T......
  • National Bus Traffic Association v. United States, No. 65 C 245.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • December 10, 1965
    ...affirmed 381 U.S. 412, 85 S.Ct. 1576, 14 L.Ed.2d 693, and Wycoff Company, Inc. v. United States and Interstate Commerce Commission, 240 F.Supp. 304 (D.Utah...
  • Alter Trucking and Terminal Corp. v. United States, Civ. No. 3-787-D.
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Southern District of Iowa
    • May 21, 1969
    ...and all equipment transferred to Alter Trucking. Such evidence, however, cannot be considered by this Court. Wycoff v. United States, 240 F.Supp. 304, 308 (D.Utah 1965); Convoy Co. v. United States, 200 F.Supp. 10, 15 (D.Or.1961), aff'd, 382 U.S. 371, 86 S.Ct. 553, 15 L.Ed.2d 426 8 The plai......
  • Request a trial to view additional results
8 cases
  • City of New York v. United States, Civ. No. 71-C-1639.
    • United States
    • U.S. District Court — Eastern District of New York
    • January 20, 1972
    ...to be attacked or supported by evidence which the Commission had no opportunity of considering." Wycoff Co. v. United States, 240 F.Supp. 304, 308 (D.Utah 1965) (three-judge court), citing Louisville & N. R. R. v. United States, 282 U.S. 740, 51 S.Ct. 297, 75 L.Ed. 672 (1931); Miss......
  • Nationwide Carriers, Inc. v. United States, No. 4-73-Civ. 447.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • July 5, 1974
    ...of the shipping public. See, e. g., Lester C. Newton Trucking Co. v. United States, supra, 264 F.Supp. 885; Wycoff v. United States, 240 F. Supp. 304, 312 (D.Utah 1965); Colorado-Arizona-California Express, Inc. v. United States, 224 F.Supp. 894, 896-897 (D.Colo.1963); W. T. Mayfield Sons T......
  • National Bus Traffic Association v. United States, No. 65 C 245.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • December 10, 1965
    ...affirmed 381 U.S. 412, 85 S.Ct. 1576, 14 L.Ed.2d 693, and Wycoff Company, Inc. v. United States and Interstate Commerce Commission, 240 F.Supp. 304 (D.Utah...
  • Alter Trucking and Terminal Corp. v. United States, Civ. No. 3-787-D.
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Southern District of Iowa
    • May 21, 1969
    ...and all equipment transferred to Alter Trucking. Such evidence, however, cannot be considered by this Court. Wycoff v. United States, 240 F.Supp. 304, 308 (D.Utah 1965); Convoy Co. v. United States, 200 F.Supp. 10, 15 (D.Or.1961), aff'd, 382 U.S. 371, 86 S.Ct. 553, 15 L.Ed.2d 426 8 The plai......
  • Request a trial to view additional results

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