272 F. Supp. 274 | D. Kan. | 1967
This action was brought under 28 U.S.C. §§ 1336, 1398, 2284, 2321-2325, 49 U.S.C. § 17, and 5 U.S.C. § 1009, to enjoin, annul, and set aside a decision and order of the Interstate Commerce Commission. The Commission, pursuant to 49 U.S.C. § 304(c), instituted an investigation of certain practices of plaintiff Associated Wholesale Grocers, Inc., and hearings were held before an examiner who issued a report wherein he found that numerous respondent motor carriers had granted concessions and extended privileges and facilities in delivering merchandise at plaintiff’s warehouse in Springfield, Missouri, by performing a sorting service, without providing for such service in their tariffs, in violation of sections 217(b) and 222(c) of the Interstate Commerce Act, 49 U.S. C. §§ 317(b) and 322(c), and that plaintiff Associated, had solicited, accepted and received such service by requiring the carriers to perform it, in violation of section 222(c) of the Interstate Commerce Act, 49 U.S.C. § 322(c).
On July 21, 1965, Division 2 of the Interstate Commerce Commission issued its decision and order in which it adopted as its own the examiner’s statement of facts, conclusions and findings, and ordered Associated to cease and desist “all operations, in interstate or foreign commerce, of the character found in said recommended report to be unlawful.”
The facts are not in dispute. Associated operates a wholesale grocery warehouse in Springfield, Missouri, from which it supplies grocery commodities to retail grocery dealers in the area. Associated’s suppliers tender goods to motor carriers who deliver them to the Springfield warehouse. When the goods are tendered to the carriers they are separated according to brand, size and flavor and they are so loaded on the trucks. In the usual case, when the motor carriers deliver the goods to Associated they are unloaded by the carriers so that the separation is maintained, the only difference being that the goods are unloaded opposite to the order in which they were loaded.
The examiner described the method of receiving the goods at Associated’s warehouse as follows: “First, the driver arrives at the warehouse and presents his bill to the receiver. The receiver goes to his desk and finds his salmon colored copy of the purchase order which matches with the carrier’s bill. The receiver then supplies the driver with pallets and a handlift jack. The receiver instructs the driver as to the number of cases of each commodity to be placed on a pallet, and the number of pallets to be used. The driver unloads as instructed and moves the loaded pallets with the hand-lift jack to a reserved area * * * behind the trailer or dock’s edge. The receiver then checks off the shipment to determine if all items have been received.”
The applicable tariffs provide for pickup and delivery of freight. Some of the tariffs do not mention “sorting” at all while others specifically exclude from pickup and delivery service the “sorting” of shipments but do not define “sorting.” None of the applicable tariffs contain provisions that the rate includes sorting.
We must first of all determine if the method of receiving goods outlined above is provided for within the pick
At the hearing a tariff analyst offered his opinion as to whether or not the tariffs included the method of unloading employed. In commenting on his testimony the examiner said: “This witness, after examining all of the applicable tariffs and listening to a description of the delivery practices required by Associated, defined sorting to mean ‘the separation of items according to brand, flavor, size, or any other means of identification’ and testified that the delivery practices of the carrier respondents constituted sorting. His definition is borne out by Funk and Wagnalls Standard Dictionary which defines sorting ‘ * * * to separate from others that differ in any respect.’ ” This is the “dictionary definition” to which plaintiffs refer and it is obvious that the examiner considered more than it alone. In the examiner’s opinion, it merely supported the analyst’s definition. Rate and tariff items are promulgated for laymen to use in their ordinary affairs and where the language is plain they should be given their plain meaning.
Plaintiffs next contend that an “informal,” unreported I.C.C. case which is not in the file controls the question of whether or not a sorting service is included in the tariffs. The informal opinion relied upon
We think the examiner has set forth adequate supporting conclusions for his determination that the method of receiving goods required by Associated amounted to “sorting,” that this method of receipt was a service not provided for in the applicable tariffs, and that those conclusions are supported by substantial evidence in the record.
Plaintiffs contend that the Commission’s decision does not support the finding of a violation of section 222(c) because it is not adequately shown that Associated “knowingly” solicited, accepted, or received a “concession” within the .meaning of the statute. In asserting this position, plaintiffs contend that: (1) Not until the decision under review has “sorting” been defined so that not until after the decision could Associated “know” what was prohibited and (2) the government did not prove that Associated was receiving services other receivers in like circumstances were not receiving, hence there is no “concession.”
As to the first contention, we have already pointed out that the examiner’s decision rests on more than a dictionary definition of “sorting.” While the examiner did find that the method of receiving goods was expressly prohibited in the tariffs excluding “sorting” he also found that the service — the substantive act performed by the carriers— was not provided for in any of the tariffs, neither those excluding sorting nor those not mentioning the word at all, and that the act referred to as “sorting” amounted to a concession. Whatever meaning Associated attached to the word “sorting” we think it knew that the act it was requiring of the carriers was not provided for in the tariffs and that it did knowingly “solicit, accept, or receive” that act. In fact, as the examiner pointed out, in 1962, in a letter written by a District Supervisor, Associated was warned by the Commission’s Bureau of Motor Carriers that sorting and segregating of less-than-truckload shipments was in violation of either the carrier’s applicable tariffs or the Commission’s rules or regulations, or both. Plaintiffs assert that the letter is neither a binding nor official declaration of the Commission. That makes no difference. Associated’s receipt of the letter may still, along with all the other evidence, be considered in determining whether it knew that the sorting of goods it was requiring of carriers was not provided for in the tariffs and was a concession.
Considering all the evidence, we think there is ample support for the Commission’s finding that: “ * * * The evidence shows that Associated has required the sorting of merchandise by brand, size, or flavor for the past 6% years with the only change being in the operation of the handlift occurring about
A final contention is that the order under review contravenes the National Transportation Policy,
The orders of an administrative agency should not be set aside, modified or disturbed if they are within the scope of the agency’s statutory authority and are based upon adequate findings which are in turn supported by substantial evidence.
Counsel for defendants will prepare and submit to the Court an appropriate Journal Entry of Judgment in conformity herewith.
. Associated Wholesale Grocers, Inc., et al. — Investigation of Practices, 325 I.C.C. 631, 632 (1965).
. Bernstein Bros. Pipe & Mach. Co. v. Denver & R. G. W. R. Co., 10 Cir., 193 F.2d 441; West Coast Products Corp. v. Southern Pacific Co., 9 Cir., 226 F.2d 830.
. The opinion is referred to in Sorting or Segregating Freight at Middle Atlantic and Southern Points, I & S Docket No. M-17287, decided August 21, 1964 (not printed).
. New York, New Haven & Hartford R.R. Co. v. Interstate Commerce Commission, 200 U.S. 361, 26 S.Ct. 272, 50 L.Ed. 515; Interstate Commerce Commission v. North Pier Terminal Co., 7th Cir., 164 F.2d 640, cert. denied, 334 U.S. 815, 68 S.Ct. 1071, 92 L.Ed. 1746.
. Associated Wholesale Grocers, Inc., et al. — Investigation of Practices, 325 I.C.C. 631, 649.
. “(c) Any person, whether carrier, shipper, consignee, or broker, or any officer, employee, agent, or representative thereof, who shall knowingly offer, grant, or give, or solicit, accept, or receive any rebate, concession, or discrimination in violation of any provision of this chapter, or who by means of any false statement or representation, or by the use of any false or fictitious bill, bill of lading, receipt, voucher, roll, account, claim, certificate, affidavit, deposition, lease, or bill of sale, or by any other means or device, shall knowingly and willfully assist, suffer or permit any person or persons, natural or artificial, to obtain transportation of passengers or property subject to this chapter for less than the applicable rate, fare, or charge, or who shall knowingly and willfully by any such means or otherwise fraudulently seek to evade or defeat regulation as in this chapter provided for motor carrier or brokers, shall be deemed guilty of a misdemeanor and upon conviction thereof be fined not less than $200 nor more than $500 for the first offense and not less than $250 nor more than $2,000 for any subsequent offense.”
. Associated Wholesale Grocers, Inc., et al. — Investigation of Practices, 325 I.C.C. 631, 648.
. It should be noted that this case involved a criminal prosecution under the Elkins Act, and while we think the criteria set forth in the case for establishing a “concession” under that act have been met in the case at bar, we are not holding that criminal statutes in the Elkins Act and the Interstate Commerce Act are subject to the same rules of interpretation.
. 54 Stat. 899 (1940).
. Gilbertville Trucking Co. v. United States, 371 U.S. 115, 83 S.Ct. 217, 9 L. Ed.2d 177; United States v. Pierce Auto Freight Lines, 327 U.S. 515, 66 S.Ct. 687, 90 L.Ed. 821; Rochester Telephone Corp. v. United States, 307 U.S. 125, 59 S.Ct. 754, 83 L.Ed. 1147; Mississippi Valley Barge Line Co. v. United States, 292 U.S. 282, 54 S.Ct. 692, 78 L.Ed. 1260; King Van Lines, Inc. v. United States, D.Kan., 220 F.Supp. 551; J. B. Montgomery, Inc. v. United States, D. Colo. 206 F.Supp. 455, affirmed, 376 U.S. 389, 84 S.Ct. 884, 11 L.Ed.2d 797, rehearing denied, 377 U.S. 925, 84 S.Ct. 1218, 12 L.Ed.2d 217.