*1 preliminary examination. time of the apparent the Commissioner upon the acted Oklahoma for Western copy warrant. attached
certified defect But does that fact fatally deficiency infirm renders Lemmon, Judge, dissented. Circuit subject at- to collateral and therefore imposed judgment and sentence tack the upon petitioner in this case. denying petition is af-
The order
firmed. al., Appellants, et BURTON
Edward S. LINES, Inc., a VALLEY
MATANUSKA corporation in the Appellee.
No. 15030. Appeals Court of States
United Circuit. Ninth
April 1957. July 5,
Rehearing Denied
in South Central a fran- Alaska. It held City Anchorage, chise cer- from public neces- tificate of sity convenience and Territory, licenses military from the authorities on bases. Company Anchorage Bus Appellant, through Anchorage Bus), its (here called shortly appellants, officers, individual procured from arose, action
before this
permis-
Military
contract
Commands
hire
for
a bus business
sion to
bases,
com-
in
those
and within
between
petition
Valley Lines
Matanuska
Anchorage
Matanuska).
(here called
pre-
it was
Bus
announced that
then
bus
pared,
commence
and was about to
competition with
operation in direct
Matanuska
all
areas
including
lines,
latter had established
City
City,
those between
those
outside
bases,
areas
and the
Asserting that
City and
the bases.
Anchorage
for these latter
franchise, certificate
Bus
no lawful
had
pro-
permit
operate, and that the
or
posed competitive
ir-
Matanuska,
and cause
ruinous to
reparable
damage,
latter
Anchorage
against
brought
this action
seeking among
Bus,
officers,
and its
pro-
things,
military
posed operations
outside
Butcher, Anchorage, Alaska,
Harold J.
hearing upon
After
bases.
notice and
appellants.
evidence,
documentary
affidavits
Alaska,
Boyko, Anchorage,
Edgar Paul
granted
motion for
Matanuska’s
appellee.
injunction.
preliminary
DENMAN,
Judge, and
Chief
Before
interlocutory injunction.
from that
Judges.
LEMMON, Circuit
POPE
complaint
rec-
first
shown
(an
complaint)
filed
amended
ord
Judge.
POPE, Circuit
long prior
25, 1955. How
there-
October
Valley Lines, Inc.,
commenced
action was
does
Appellee Matanuska
shortly
bus,
apparent
passengers by
appear. But
carrier
a common
integrat-
begun,
years an
after the action was
operated for some
designed
City
began
steps
to as-
system
lines within
Bus
take
ed
Anchorage,
nearby
fulfillment
of its intention
sure
operate
competition
military
Elmendorf Air
with Matanuska.
known as
bases
Mili-
ob-
Fort Richardson
October
On
Base
Force
tary
Reservation,
bases,
Transporta-
between those
tained from the Alaska Bus
City
a certificate
bases and the
tion Commission
and between
throughout
Anchorage,
to furnish bus
surrounding
highways
and the
between the
large
extending
military
days
Four
aréa
bases.
bases,
over
later that
during
that such
suspended “until a
continued
pendency
re-
order
hearing
held.”
suit.
could
granted upon
suspension was
cited that
stage
proceedings,
At this
*3
certificate
protest
the
that
Matanuska’s
commanding
Air
officerof
Elmendorf
the
notice, and that
issued without
had been
Force Base moved into
on the
the arena
put
Anchorage
operations would
Bus
the
Anchorage
According
side of
Bus.
to an
or-
was
It
out
business.
Matanuska
man,
affidavit of a local business
De-
hearing
on
be
would
dered that
deputy
commander,
base
who issued
An-
1955,
6,
whether
as to
cember
chorage
telegram shortly
mentioned,
stated
rein-
Bus
should
certificate
that
commitments had
made
been
modi-
stated and Matanuska’s
Anchorage Bus for an exclusive contract
operations
fied “to allow concurrent
bases,
make
and that to
companies.”
other authorized bus
operation
Anchorage
that
successful,
Bus
City
made needed
On
Matanuska
October
revenue from base to
injunction.
preliminary
operations,
its motion for
Hearing
officer felt bound
support
affidavits
company
the motion and
the new
limit.
to the
opposition On
support
21, 1955,
filed in
its
December
the Commission
10, 1955.
thereto was
received
had on November
from the
Air
Commander
telegram
an-
stating
On November
court
Force
Base a
Mata-
that
grant
prelimi-
liability
nuska’s
policy
nounced its decision
nary injunction
was insufficient
coverage
operation
until Decem-
military
effective
for
on the
hearing by
adhering
date
for
reservation
ber
set
and that it was not
plaintiff
Commission,
schedules;
seeking
and directed
hence he was
au-
thority
findings
prepare
form of
and a
arder.
Secretary
Air
Force
license;
to cancel Matanuska’s
met, as con-
When the Commission
that if
hardship
this occurred
would re-
templated,
decision as
it made no
sult
unless
between the
Anchor-
question,
either
that is whether
operator
bases
another
age
Bus should have a certificate
authorized;
insurance,
and that
necessity, or
public convenience and
equipment
and on-base
should
whether Matanuska’s certificate
Anchorage
entirely adequate
Bus was
for
reason
non-exclusive.
be ruled
satisfactory. Upon
receipt
the Commission
this non-action was
telegram,
Commission,
immediate-
developed)
(erroneously, it
believed
ly,
notice,
and without
issued a tem-
Anchorage
between
Bus could travel
porary
certificate to
Bus.1
traversing
City and
without
the bases
showing
Making
Contrary
hope
roads.
implied
act,
of the Commission
telegram,
of this failure
Commander’s
Matanuska’s
about to com-
service on
and that
the bases and between them
had been en-
which
suspended.
mence the
joined,
was never
applica-
Matanuska renewed
was the first time in the more than three
asking
injunction
years
temporary
for a
it had
held a
base,
license on the
entirely
just
urgent
when this
1. It
is not
clear
is an immediate
need to a
go
point
points
temporary
having
into
no carrier
serv-
Chap. 93,
capable
9(d),
meeting
Session
ice
need,
effect.
Section
“Except
provides:
may,
Laws
in its discretion
provided
Act,
hearings
all or
as otherwise
or other proceedings,
grant
temporary
or
authority
than
ders of the
for such serv-
payment
money,
shall
for
ice
a common
ders
carrier
bus or a con-
time,
by bus,
reasonable
effect within such
tract carrier
take
as the case
be.
thirty days,
temporary
authority
than
the Commis
not less
Such
shall be valid
* *
may prescribe
for such
sion
time as the Commission shall
provision
specify,
The statute’s
and shall
presumption
create no
provides:
certificate,
7(a),
corresponding
permanent
“To
enable
authority
granted
provision
of service
which there
will be
thereafter.”
note,
questions,
any suggestion
adequate
which we
lack of
easily answered,
made,
first observe
once
we should
and at
insurance had been
coverage
scope
procured
the limited
of review
additional
Matanuska
permitted
tem
complaint.2
from a
us
an
to meet the Commander’s
_ porary injunction.
arises
plain
parties
This limitation
is also
rulingtr
interlocutory in-
from the
of an
nature
considered
the court’s
pre-‘\ junction,
purposes to
preceding,
and from
November 14
that a
,
pre-
liminary
issue,
thereby.
served
Such
,
plain-
quo
protects
effect,
An-
still in
chorage
serves
status
for on December 23
during
irreparable
tiff from
pendency
moved
court to dissolve
*4
mainly
as the
injunction,
the
until
the
ground
a suit
such time
on
may
adjudge
finally
military au-
court
determine
and
of the action of the
Necessarily
rights
parties.
the
of the
and
thorities
rary
the issuance
tempo-[
presuppose
heard,
the court
affi-'
must
that
on
certificate. This was
plaintiff
may
support
opposition,! case
bar it
at
turn out that
davits
in
in
filed
and
may
During
ultimately
a will
lose.
the court
27.
Thus
denied
December
finally
against
plaintiff
portion
period
find the facts
the
November
since
procured
considering
temporary injunction.
who
proposed
court had been
findings
compel
possibility
by Matanuska,
But this
a
ex-
does not
offered
ceptions Anchorage
temporary injunction
prop-
denial of a
On
if
Bus thereto.
showing
January
therefor;
er
16, 1956,
be made
otherwise
court made
court,
a
findings
necessarily requires
time
which
filed its
conclusions
injunction
determination,
to
preliminary
reach a
final
would
issued the
way
injunc-
appeal
protect
party
no
to
a
who
which this
is taken. The
giv-
irreparable
plaintiff
quo
suffer
loss if
status
tion was conditioned
preserved.
$40,000
be not
a
in
sum of
to cover
bond
Without
interlocutory
damages.
enjoined opera-
injunctions,
to issue
courts
costs and
judg-
bases,
be
unable to make
final
tions
and the
between the
their
Territory,
effective,
very
ments
ex-
City,
to
and in
but
be
protected,
subject
opera-
pressly
excepted
permitted
of the action
might
itself,
destroyed irreparably
military
tions
be
within the
bases.
J during
period required
arrive
to
argument
On this
much of the
an ultimate determination of
action.
by appellant
question
relates
as
upon
to the
prevail
whether Matanuska should
just
a
must
And
as
of this action. Plaintiff
the final trial
in which
determine
time
obtain
party
said,
win,
is
for two reasons:
cannot
right upon
facts,
so in a
(1)
Bus had a certificate
number
cases time
nec-
substantial
necessity,—the
is-
one
essarily required
grave, diffi-
to resolve
above;
21,1955, described
December
sued
questions
complicated
of law.
cult and
(2),
and- Matanuska’s certificate from
ultimately
case,
a
it is
If,
decided
in such
franchise from
and its
tempo-
party who obtained the
“exclusive,”
of them
are neither
rary injunction
win,
cannot
itself
notwithstanding they purport to be such.
wrong
it was
not demonstrate that
does
injunction.
For
issue
a consider-
go
ques
into the
Before we
judicial
discretion is
latitude
al-
able
order
answered in
which must
tions
be
trial court
determination
points,— lowed
two
either
these
evaluate
might
Matanuska
make
22, 1955,
“further
ed
2. On December
the Commander
your
suspending
us
demonstration
financial
its author-
Matanuska
operate
wrote
you
responsibility
carry
base,
directing
and evidence that
ity
on the
liability
adequate
insurance”
and then
December
cease
granting
procured
would consider
the officer
a
23 Matanuska
new
December
On
operate.)
coverage
meet
offi-
license
additional
suggest-
(The
complaint.
letter had
cer’s
moving
irrep-
party
preser-
requires
will
be certain and
whether the situation
through
arable,
application
existing
if
be denied
conditions
vation of
injunction
favor,
the final
lite,
our more
decree be in his
while
pendente
granted
if the
ultimate
deliberate conclusion
opposing party,
permanent
final
even
if
decision must be
favor,
decree be
will
in his
inconsid-
warrant
itself
does
erable, may
adequately
interlocutory
indemnified
order.
reversal of the
by bond,
injunction usually
bewill
no
We know of
statement
better
granted.”
principle
Love
found in
than that
Cir.,
Co.,
Ry.
Atchison T. & S. F.
When the
thus
tests
stated
“But the
185 F.
follows:
applied
case,
facts
granting
withholding
an interlocu
we are forced
inter
to conclude
judi
tory injunction
sound
rests
locutory injunction here under review
original
cial discretion of the court
must be sustained. The
court below
jurisdiction,
where,
case
presented
questions
with a number of
departed
in hand,
has not
that court
which were both serious and difficult.
equitable principles
from the
established One of these
*5
whether the certificate
may
guidance,
not
its
its orders
authorizing
of convenience and
by
court,
appellate
reversed
without
transporta
Matanuska’s maintenance of
proof
clear
its discre
has abused
military
tion facilities between the
bases
* * *
tion.
An
from an order
City
and the
was an exclusive one.3
interlocutory
granting
refusing
in
or
an
junction
judicial
certificate,
Septem
dis
does not invoke the
Matanuska’s
dated
ques
appellate
by
of the
cretion
court.
and issued
Trans
ber
in portation
expressly
whether
is not
or not
court
its
would make
the exercise of
discretion
Ter
stated to be an exclusive one. The
or
23,
would have made
order.
It was to
Chap. 93,
ritorial Act of March
Sess.
court,
*
2(e)
Alaska, 1949,provided
the discretion of
the trial
Laws
in §
appellate court,
law
that of
that the Commission should have
refusing
granting
intrusted the
or
to issue
certificates
injunctions,
only question
necessity,
authority
these
and the
which
include
“shall
proof clearly
is:
establish
here
Does the
the discretion to issue
certif
exclusive
upon
an abuse of that discretion?”
icates on
routes and
such
such
conditions
nec
as the Commission deems
Conway, 279
Oil
v.Co.
in Ohio
And
* *
essary or advisable
It is con
972,
256,
815,
L.Ed.
49
73
813,
S.Ct.
U.S.
legislative provision
citing
tended that this
is
expressly
Court,
Supreme
pro
case,
null and void because it violates the
said:
approval
the Love
Congress
by
presented
visions of the Act of
questions
an
enacted
“Where
application
interlocutory injunc-
1471,
now found in 48 U.S.C.A.
for an
providing
part
grave,
“The
and the
follows:
tion are
Chap.
By
question
Alaska, 1919,
less
of somewhat
SossXaws of
3. A related
city
Matanuska
councils of such
significance
is whether
the
chorage
cities as An-
here
operate
grant
were authorized to
its
fran-
exclusive
an
franchise
City.
“including
system
priv-
transportation
exclusive
chises
franchise
bus
ileges”
granted by
systems
franchise,
ordinance to
bus
The
Matanuska,
chapter provided
grantee
provided
and the same
that ex-
approved
fran-
theretofore
or
clusive franchises
the exclusive
“shall
given
service,
bus
ratified and
full
a motor
were
force and ef-
chise
trolley
car-
under
Act.
It
is
a common
fect
noted
service as
that a
or
City
portion
of An-
streets of
over
rier
enjoined by
were
chorage,
and other
which
City
upon
City
within the
below were
points without
Anchorage.
City’s
also
streets.
See
footnote 6 in-
points
”***
granting such
fra.
The ordinance
January 24, 1956.
enacted
franchise
legislatures
315;
the Territories of the
N.W.
32 L.R.A.
Henderson
Ogden City
United
organized
or
Railway Co.,
States now
hereafter
to be
7 Utah
pass
special
dealing
shall not
local
P.
cases
are
same
with the
any
following
laws in
cases,
Congress,
reject
of the
enumerated Act of
both
* * *
say:
Granting
interpretation
appel
which
Act
urge
corporation, association,
Certainly
indi-
lants
us here.
any special
vidual
privilege,
assertion that
immunity, or
authorizing
franchise
In all Alaska
whatever.
statutes
Commis
general
grant
cases
sion
where a
can be
law
exclu
Council to
made applicable,
special
franchises,
no
law
sive
null
certificates and
are
enacted
void,
grave
presented
problem
Territories
legisla-
judge
United
say
States
which,
trial
and one
to
study
tures
least, required
thereof."4
much time for
position
consideration.
taken
lan
no means clear that this
appellant
point
on this
doubtful
is so
guage of
1886 enactment was intend
that we
think the
could
trial court
prohibit
ed to
this or other territorial
properly
argument
accept
legislatures
recognizing
investigation
careful
con
and extended
pro
monopolies
utilities
natural
sideration.
viding
regulation
utilities
for.
commonlypro
important question
comparable
means
also an
There was
legislatures,
vided
often
enti
state
Matanuska was not
to whether
find that such
best
even if its
utilities
certifi
tled to
making
regulated by
monopolies.
That
an exclusive one.
them
cate was not
*6
Light
Blomquist,
particularly
In Idaho Power &
v.
if
Co.
would be
true
222, 141 1083, 1088,
itsof
26 Idaho
the court
a
certificate
P.
Bus was without valid
nothing
Corporation
said: “There is
in the
v.
Commis
Constitu
See Frost
own.
Legislature
prohibits
515,
235,
L.
from sion,
tion that
49
73
278 U.S.
S.Ct.
enacting
prohibiting competition
483;
Transportation
v.
be
Co.
laws
Ed.
Wichita
public utility
40,
corporations,
People’s
Co.,
P.
tween
140 Kan.
34
Taxicab
Legislature
771; Puget
550,
doubt 2d
Sound
state no
94 A.L.R.
Light
Traction,
concluded that
like that
& Power
v. Grass
a business
Co.
transmitting
through
504,
electricity
meyer,
482,
L.R.
P.
102
173
Wash.
light
furnishing
A.1918F, 469;
city
Trust
streets
York
Adam v. New
Furthermore,
Cir.,
Co.,
power
people
trans
F.2d 826.
must
5
37
be
authority
by regulated
appears
monopoly,
there
substantial
acted
a
to be
many
competition
proposition
holder
free
com
between as
panies
utility
might
many persons
a
franchise
or as
de
non-exclusive
enjoin
put
up
sire to
is im who is first in the field
wires in the streets
practicable
second and later holder of a franchise
interests
and not for
best
people.”
competition
who
serious
threatens
which
ly
unnecessarily
interferes with
nothing
in the
either
know
We
property
operations.
See
first holder’s
congressional
history of
legislative
An
collected in the Note and
cases
dealing
decided cases
provision
in the
notation,
653 mately had ne As resolved. this court of convenience certificate tiff's say an occasion was be, v. Moreno Trautwein cessity September dated Co., Cir., the Mut. a Irr. F.2d purported one, as it one, quite case similar to the certificate issuance inj “[Bjut questions plaintiff’s those are all no bar would constitute sideration when the case heard on unction.5 present hearing, merits. On the ques- difficult is a further there But only courts are with the sin- concerned easy one, here, presented an gle question: plaintiffs Did make out temporary certifi- namely, whether the prima facie case?” was valid. cate supra) (see pursuing inquiry footnote The statute Further suggested contemplates of such Supreme the issuance state Court’s provide ment, only supra, be Conway, for service in Ohio Oil v. “having points no carrier should be noted here tween capable meeting plaintiff As has irreparable need.” would certain enough indicated, application reason if there was for an been would issued the the Commission be denied to believe that temporary final decree be in misappre under a favor. Matanuska was owner of emergency long thoroughly hension and a belief that established in business tegrated on its serving so shows The certificate existed. area an immense com portion face.6 The communications of the in that an area with manding population 100,000. officer had led the Commission in excess of We op know knew, Matanuska could judicially, to believe that the district actually However, ceased erate. never final determination justified presented operating, the court issues come the case would emergency assuming kind only long delay no after because the con arisen; contemplated the statute dition Alaska. of the court calendars in —hence, conditions Without an Matanuska might certifi adequate remedy issue the An have no *7 non-existent.7 chorage were cate Bus which was a with newcomer very investment a smaller limited suggesting have done here as we In nothing expectancy an but in the judge with was confronted that the trial way injunction of a business. was thorny questions for decision serious undertaking upon condition that the case, issued defendant to we are not in this by questions ulti- a bond and the those indemnified decide how amount listed in note certificates on such authorities the issue exclusive 5. Under the routes plain- above, upon even if such conditions the cited and annotation and sion deems Commis- yet non-oxcinsive, necessary or in were advisable the tiff’s certificate might pro- one, continuous, public it to secure the first interest since was ef- against dependable defend- bus in the services an ficient and cure tempo- areas, though provided malting latter in even affected ant respect rary determinations with certificate. to partly partly within routes incorporated that Matanuska recites 6. The towns, an order issuance to mili- access the said denied “has been a until of concurred cils final tary installations.” by city in council or coun- validity by question town towns as to A further affected 7. presented majority temporary by vote certificate is members to which supra. 2(e), language There, are entitled.” such bodies emphasized portion sig- we have to Commission’s issue certifi- City nificant, incorporated, Anchorage “(e) for the forth follows: is set Is- cates approved any op- never of convenience and certificates neces- sue Bus, sity, eration and the conformable cer- purported to authorize Act as hereinafter set tificate this authority forth. shall include the discretion to terminal. 654 Judge LEMMON, (dissent- an amount Circuit required in bond ing). substantially defendant’s equal to the total investment. The frequently We have adverted if the injunction, even latter from the weight find- courts should accord ob- favor, final decree went its ings administra- decisions made viously inconsequential. tive Mr. boards in of what the exercise calling Justice “expertise.”1 Frankfurter is fond issuing the opinion is our fol- temporary injunction court lowing cases applicable in such the rules again Once at- we are faced with supra; Conway, Deckert as Ohio Oil v. tempt by interfere, a trial court Corp., U.S. Independence
v. 311 Shares time injunction, the activities 189, and L.Ed. S.Ct. of a utility operating cer- under a U.S. Prendergast Co., 262 Y. Tel. N. regu- lawfully granted tificate to it High 83. Cf. 43 S.Ct. 67 L.Ed. latory commission. Injunctions, 1510. 4th Ed. § brief, ®In its ascribes contention a “monstrous undertaken Bus has existing that an urge number here a its brief system, ac- franchised and licensed no points have think which we large serving cordance with law and bearing issues substantial conditions, and vital area under difficult complains that Thus it the case. equity is defenseless in a court of conten its failed consider trial court depredations group of a of adventur- improperly sus tion that the Commission quick by pirating ers out to make a dollar pended certificate of October routes,” suspension was a few lucrative etc. our view that It is but power of the Commission within the deplore I the use of such immoderate present this contention language, for which shred there is not a hearing court was waived support in the record. below.8 prelimi- The District issued a Court argued inwas It is also nary injunction restraining appel- temporary granting restrain- error interfering appel- lants from with the hearing pending order franchises, lee’s certificates of injunction. held As we temporary necessity, etc., venience issued Alaska, etc.; and from *8 granted, hearing properly it after transportation system operating a temporary necessarily follows that Anchorage, streets in Territorial over appropriate restraining an order highways also over and connect- injunction. preliminary to step Air Force Base Fort Elmendorf and Military Reservation and ap- Richardson order The Anchorage. City of is affirmed. pealed from [appellee] suspension which of action legality cause has 8. When following colloquy time. at discussion under exactly place the court and counsel That between Butcher. is “Mr. our took position, appellants: “The Court. In Honor.” Your Butcher, I do not respect, feel Mr. Corp. injunctive proceeding, Camera controlling Universal in an See National 1. is Board, 1951, therefore, Relations 340 would be a collateral Labor and, U.S. 456, 488, 474, 456; 95 71 S.Ct. L.Ed. before the tried matter States, Conference v. United time, East do not feel Far I would be 570, 576, 1952, 492, U.S. 72 342 the case itself S.Ct. proper. I think 576. L.Ed. the merits of fall or stand irreparable damage appellee’s preliminary to the From that business, great “all and taken. to the end that been has damage irreparable public inter- to the Complaint 1. Amended The adequate transportation est in continued appellee filed 1955, 25, On October may result,” etc. complaint and alleged The Commission is is- to have summary, fol- containing, others, sued certificate lowing allegations: appellant and to the Anchor- operating engaged appellee The age Company, Inc., Bus An- hereinafter as trolley motor bus a common carrier a chorage Bus, covering connecting city limits bus service Anchorage routes between and Elmen- An- Anchorage, name of under Anchorage dorf and between and Rich- grantee chorage City System, as Transit ardson, in violation of the twenty-year contract under an exclusive “aforesaid exclusive franchise cer- and Anchorage, from franchise tificate, opportunity notice January 24, dated given to be [appellee] heard first operates a motor bus appellee also * * * The contrary to the terminal between service applicable law; issuance Force Air Anchorage Elmendorf the said appellant certificate to the An- Elmendorf, pursuant Base, hereinafter chorage Bus and thereunder issued license” “transportation to a competition Bus in with the on Oc- Air Force Department irreparable threatens cause years, for five effective tober damage appellee by to the depriving pur- also October until only providing portion revenue itsof “exclusive an suant integral public transportation system, necessity” issued venience contrary public interests,” to the etc. Transportation Alaska alleges pub- of action cause A second Septem- Commission, on hereinafter Anchorage daily in two news- lication connecting 1949, applicable ber alleged papers of certain statements appellee’s terminal between routes defamatory. present ap- The have been Elmendorf. City of peal concerned with is not this second operates motor bus appellee also of action. cause in Anchor- its terminal between complaint prayer closes with a Military Res- age Richardson Fort enjoined “during appellants be Richardson, “pur- ervation, hereinafter action, per- pendency of this appro- by the authorization to oral suant interfering” manently, from with the ap- for which priate authorities contracts, franchises, etc.; transportation license plication for judgment against appellee have that the pursuant further pending,” now $250,000; appellants for of convenience an “exclusive Commission members defendant be en- necessity” seeking abrogate joined applicable September pellee’s certificate of *9 connecting the between routes necessity “except and after Anchorage Fort Richard- and terminal proper hearing,” ; notice and due etc. in effect still was certificate That son. be the Commission ordered to sus- filed. was suit when during pendency pend, ac- defendants other final appellants and until determination tion and on the The “any appealed made, are inter- can be merits who certificate of below appellee’s rights, necessity” fran- fering public convenience and with the issued Anchorage seeking Bus, by by “to induce the etc., to chises, violation of abrogation franchise; breach, and and termination contracts, by spreading the Commission and be and ordered to said validity they concerning why grant cause show rumors malicious causing hearing thereof,” etc., public appellee thus and existence An- and * * * chorage pub- Military on said chorage.” An- whether and Bus to determine Bases necessity require lic convenienceand issued cancellation of the said certificate 21, 1955, On October the Commission Anchorage to Bus. Anchorage issued to Bus a public necessity 2. fur- Statement of Facts convenience and nish transportation motor between bus pub- appellee The held certificate of Richardson, Elmendorf and one on the Fort lic on convenience and hand, and Terminal Bus September 17, 1949, by the City Anchorage, on the other. “exclusively in which it was authorized” provide day transportation on bus service 25, same 1955—the On October filed, highways and over complaint within the herein was which the City suspended from re- supra the two and bases to —the Anchorage turn. “on Bus certificate issued to given 17, reason October 1955.” possessed an exclusive Appellee also appellee suspension for the was granted by franchise, twenty-year grant- protested been had not had that it City approved body governing hear- opportunity appear at ed an operate City, to by the electorate ing. recit- order also discharg- The Commission’s up picking service a bus by rendered ed that “certain bus service” passengers on the streets appellee interfered areas, would “be Anchorage adjacent possibly because discontinued Anchorage name under alleged by the financial difficulties caused System. franchise Transit granting to [An- said Certificate January granted by dated an ordinance chorage Bus], if substantiated 24, 1946. be to the detriment of will 21, appellee Finally, on October interest.” by Department granted 1952, was order, the Commission license.to a mo- In the same Force a Air hearing Elmendorf, held transportation on decreed that a service tor 12, (1) 1952, 1955, inquire on Why October December from October 17,” was revocable will certificate of “October This license Secretary Force, Bus should not of the Air issued to privilege reinstated; why (2) the certificates stipulated that therein September pre- granted not to be “construed to issued to [sic] furnishing (a) should not be modified vent the persons other com- routes and cer- limit the number of bus service therefor; (b) to panies authorized the Sec- tificates issued operations” retary Air Force.” allow “concurrent companies, authorized bus etc. On June 31, 1955, the court On October below contract combined awarded Army restraining order issued a Exchange oper- Air Force prohibiting the from interfer- transportation service on El- a bus ate etc., ing, with “the exclusive Territorial Richardson, replacing mendorf municipal appel- franchises” of the and lee, years appellee, several which for operating furnishing same service under been public highways The Court below found that a license. Anchorage or between streets of Anchor- ready, prepared, appellants “were age Elmendorf or Richardson, etc. commence in di- and about required give appellee was $10,- [appellee’s] competition with said rect *10 bond. system public over the * * * 14, 1955, highways December On Commis- * * * Anchorage, points that it and between announced was sion convinced copy gives the date of the of the certificate itself con- certificate as 2. The Oc- transcript herein, supra. as stated tober tained tirely adequate meet equipment chorage Bus within ceipt notified that its license is * ® * less carrier Force authorization give permission to cancel license of that rale.” sons,” seriously letion of Force of impeded Public Convenience traversing any eration ly telegram commander operate at liability policy transport passengers * * on December * appellant * that it was “This will create “For At a insufficient trip schedules,” Elmendorf, terminated. another carrier. Present ** securing ** past telegram you requirements therefore terminal opinion Anchorage by Anchorage personnel transport Secretary * military meeting these [appellee] permission, [appellee] “arrival and * indicated routes on base without from Colonel Anchorage Anchorage and between Elmendorf affecting authorize Anchorage “physically * * telegram continued, * * * insurance also referred stating Richardson was considered ** the Commission on-base of the Commission reservation. within reservation will has been military reservation.” operation by 5039th Air which it private without covering and satisfactory. operation and mo- great hardship operation Bus civilian Bus * lack *** departure there was possible” a Certificate Louis coverage service Necessity.” considered en- military.” military pertinent “to cancelled, non-stop possible for requested * * adequate property roads,” and the Base employees, Elmendorf insurance, travel “absolute- adherence Upon E. appellee’s “past between * * * was charged without will be for the read a Wing, notice Coir Brief * bases “Air ato held rea- An- Air un- and “of op- re- de- a, manager, bility for reasons of Anchorage and the said Air Force Base lined thorized to morale, to the said age Anchorage Bus. The certificate recited the detriment and inconvenience of those * * * Richardson and Elmendorf. members of cifically requested that the ** that the stallations”; or are stationed at the said Anchorage venience and temporary certificate * * * terminal in to, hearing [*] straining date as that of the chorage er the chorage “the nounced its formal decision to the its ease if evidence ed the * * * that at [sic],3 On the A —December Accordingly, effect”; Colonel Coira to Russell [*] action and Bus substantially insurance, be the routing * Commanding hearing *» testimony highways it presented Company on the aforesaid date * * * following Bus stating would release Anchorage Bus order it vice decision, supra. that “At least military they Bus did so with hearing result”; necessity, and that “the Elmendorf indicated the decision 21, 1955—was issued to * * * refrained from military operations certificate of would not have president [supra] “covering “after had “been denied access the Commission ” did not traversed between the the same as that out- * * * meeting just day, at the installations, on and that between preferred who * * * allowing bearing reconsidering Anchorage a letter was sent Officer has December hearing from the feel * * the certificate 5th said made at work, thought military majority Swank, * * therefore, terminat- Street to the same complete referred Anchor- * * * and au- general hearing to cov- * * * grants in An- reside all effect * then per- 15th spe- Bus An- lia- an- in- re- * already herein, previous 3. As hearing indicated the tran- of tbe to have been script before this court shows the date December *11 Territory li- operation of of a license in the sons [sic]' which arise authorities; military
your is inade- censes the issued transportation service bus integrated system approved that this with quate. policy not necting operated by the by your li- required headquarters carriers likewise as thereby appellee affiliates; and its that operate installation.” cense on this serves Central the entire area of South author- The that the letter also stated freight, transportation Alaska in the mail, of granted ity appellee October on the passengers; appel- the that (the 15, 1952, operate Elmendorf operate hire, lants under con- buses for signed that was record before us shows Exchanges tract with Base the and Post supra) 'was sus- on October Richardson, be- at Elmendorf and pended the of conclusion effective on the competition Bases, tween these two appellee’s “presently of runs scheduled appellee; appellants with the that also December 1955”. Coira Colonel operation preparing commence extending li- a new stated that the appellee’s competition trans- direct with transportation motor cense for highways, portation system over “Upon Elmendorf would be considered alleys streets and your finan- future demonstration us of City, Bases and between said you responsibility cial and evidence City; a appellants not hold that the do carry adequate liability insurance.” City have do not franchise from the December record shows that permanent public con- certificate of agency general in- insurance necessity venience and issued that, appellee De- effective formed the Territory, only temporary cer- but liability in- the latter’s cember tificate; temporary certificate limits written “with surance been improvidently and without was issued required Territory of Alaska merits; that the determination namely: Bodily injury, $50,000/200,000 appellee Dis- has filed an Damage $2,500 $5,000 Property plus of the tem- trict Court from the issuance Damage Property cause for from appeal is porary and that the passengers’ property”. appellants pending; do still pointed connection, In this it should be per- franchise, license other appeal.the out that on this appellee transportation mit for of a bus boundaries City system the Bases and the between either Elmendorf or Richardson is except Base with the the said contract prelimi- pertinent issue, since the to the Exchange tempo- said Post and the and rary provides nary injunction specifically certificate; appellee derives “nothing shall be con- herein contained gross of its revenue excess of 70% prohibit the normal strued the routes between [appellant] bound- within [such] Bases, and that loss these routes * * *” aries would result financial to the January 16, 1956, the District On for the rest bus failure transportation preliminary Court issued system and force cessa- general embodying from, appealed contrary operations, of its restraining or- terms interest, best fixing der, supra, bond but damage irreparable necessity, and to $40,000. appellee; a re- that as Findings and District Court’s operations, appellants’ sult Injunction company pellee has lost services bus employees a number of its found The court probably furnishing integrated employees motor will leave appellants’ activities, un- system name of a result of under the protect System, pursu- restrained, Anchorage City seek to will Transit less unemploy- possible themselves issued to a franchise ant by accepting employment with the Anchorage, con- ment a certificate seriously disrupting appellants, thus venience
g5<) sys- Questions operations 4. The transit Presented of the tem; temporary that the appel Nowhere the in their do brief damage appel- seriously would the out, “specifica lants nomine, set eo the charged ; lants required by Rule of errors” our hav- law of and with the administration have, 2(d), They how subd. 28 U.S.C.A. ing power carrier to control common ever, included in the record a “Statement hear- held in has bus Rely of Points on Will Which Defendants controversy ings to resolve the entire they Appeal”, have on and their brief action public and of what course determine exactly listed “fourteen one-half the the be most beneficial to separate points”. select seven Of those hearings interest, re- been have “points”, ed that three we are informed according and, cessed and not concluded have While been consolidated into one. re- order, Commission’s all this technical does not amount to a only An- upon request sumed the compliance Rule, that I our believe chorage Bus, latter event the the compliance, it amounts to substantial Ter- the still desires a from constituting accept I the and would as ritory; Commis- a decision the required “specification errors”. I subject Dis- the sion will to review not, slipshod however, approve do of such law; trict Court under observance of our Rules. parties rights equities of the and hand, appellee, The “con- the other protected public and must be interest only following tends that issues uninterrupted bus trans- continued presented appeal: on this uninterrupt- portation; continued, Judge his “1. Did the below abuse pro- transportation ed will be best bus granting discretion in straining re- quo, by preserving status tected injunc- preliminary order and integrity thereby protecting tion? stability ability financial pleadings “2. Do the affidavits presently licensed franchised and [ap- equity plaintiff’s show sufficient appellee. carrier, pellee’s] permit bill trial court enjoined, pending appellants are grant interlocutory preser- relief for the determination the District Court’s quo, pending vation of the de- status action, interfer- from the merits termination of the merits?” case on the violating breaching with, or my adopt I own the more directly indirectly, manner, or either equitable concise statement of is- existing franchises, certifi- presented appeal. sues neces- public convenience cates of sity, 5. The Failure of the Commission to agree- licenses Appellants Give the Notice of appellee, the Ter- ments of ritory, Suspension Ma- Was Not a Department City, terial Error. operating any Defense; or oth- taking up ve- motor Before vehicle these two main is- er motor highways, sues, hire over the there hicle carrier be considered a “col- alleys problem Terri- streets, lateral” that comes into the through City, suspension tory, or between case City; pellants’ but, as we Bases and convenience necessity. seen, exempting from the contend regardless suspension, spe- Bus within this provision of a certificate,4 giving Bases. cific boundaries proposed services above of Public Convenience 4. “This Certificate referred to, Necessity lim- conditions with its and to conform to the regulations continue full force Act rules and itations Transportation long Bus promulgated thereunder, as the properly so and to effect Anchor- determines service sity and neces- age Ine., Company, [Emphasis at all times supplied.] all times.’’ n jit, and, properly perform willing able *13 660 leeway provisions (d) of Sec- in of subsection considerable Commission and certificates, void “was matter of is to tion 9.” referred 9” “Section issued with- of no effect it was because Chapter part 1949 Session of 93 of the provided in appellants, out as notice to excerpts Laws of from (c) 9 and it subsection of section copied margin.5 contrary immediately, to made effective “(c) issue The Commission shall of Public Con- Certificates “Section ‘ qualified applicant any Necessity. to venience and ' any therefor, authorizing Except or “(a) the. whole under as Section allowed part operations by by covered en- no common carrier bus shall plication, applicant subject gage if finds that the the Commission in to Act this properly willing, public fit, able is and of con- unless it a certificate holds perform proposed necessity to and the service and the Com- venience mission; however, provided, conform to the of this Act if regulations rules, predecessor requirements, in interest carrier such or thereunder, operation of the Commission a bona common fide as proposed service, January 1, 1947, au- extent over to the carrier bus on ports certificate, or will be thorized is route or routes or between the required by public respect application made or future is to which with and has so necessity; (or, operated otherwise convenience and such since that time application engaged furnishing shall be denied. in seasonal serv- if only, operation dur- in bona ice ing fide “(d) specify the Such certificate shall prior period, in- or the seasonal which, points route or over or the routes date, operations cluding such for of which, to and from such au- carrier is question) except, in in either character operate, and, thorized to of is- at the time interruptions event, over as of service suance there shall be from time to time thereafter predecessor applicant which the or its attached, exercise control, in no interest had Commis- privileges granted by such certifi- without shall issue such certificate sion conditions, terms, cate such reasonable proof public requiring further con- con- limitations as be served venience will necessity may venience and time pro- operation, and without further such require, including conditions, terms, time and application ceedings, for certifi- such if to the limitations as extension of pro- is made to Commission cate carrier, (route) or routes of the routs (b) of this in Section vided subsection conditions, terms, and such days expiration ninety prior of to the and after the determination carry necessary to as are limitations and out, Pending takes effect. this Section respect application, such requirements earner, this operation shall such continuance the be by the Commis- Act or those established sion application such days If the lawful. thereto; provided, pursuant how- ninety not made within certificate is terms, conditions, ever, or no limita- effect, it shall be this Section takes after right of the car- tions shall restrict with the standards decided accordance equipment, facilities, rier to add to its provided procedure for in subsection scope such or within the cer- (c), shall be issued and such certificate development tificate, as the the busi- Any accordingly. person, not denied or shall ness and demands provisions of the fore- included within going right require, the carrier to ex- engaged proviso, in trans- who uncompleted por- tend its over services poration common carrier as a highway projects hereafter com- tions effect con- takes when Section operation pleted. period nine- such for a tinue “(e) under this No certificate issued certificate, days ty thereafter application any proprietary confer or ex- Act shall and, such if rights pub- the use clusive Commission within such made highways.” lic period, such the continuance of “No- Section of that Act is entitled pending determination of be lawful tices, Orders, and Service of Process”. application. such (c) reads fol- Subsection Section 9 Application “(b) for a certificate shall lows: writing made may suspend, “(c) The Commission oath, under and shall be such verified modify, set aside its under orders such information and form contain proof upon upon accompanied by Act such notice of service such manner be such parties proper.” deem as the as it shall interested Commis- regulations, require. shall, by sion the Commis- such conditions as Although that Subsection we believe gives necessary supra, sion deems or advisable (c) act of of 9 of the leeway secure interest
the
“suspend”
considerable
tinuous,
dependable bus
notice
efficient
“upon
its orders
areas,
*14
deem
services
affected
as it shall
and in such manner
* *
supplied.]
[Emphasis
proper”,
counsel
me
it seems to
irreg-
any
appellants
himself waived
Chapter
91
The other statute is
irregularity,
ularity,
in the
if there
Alaska, which
1949 Session
of
Laws
suspension. The
of
Commission’s order
Com-
16-1-35
Alaska
amended
of
§
correctly
opinion
to this.
main
adverts
piled
Annotated,
Statutes
Volume
any
event,
read as follows:
In
on December
Commission,
seen,
we
have
as
exer-
have and
“[The council shall
appellant
a cer-
following powers:]
cise the
and neces-
tificate of
convenience
* * *
“Section 1.
Sixteenth:
sity.
appellants
state
As the
themselves
franchises,
grant
To
Franchises.
brief,
their
it was “armed” with
including
priv-
exclusive franchise
moved
construction, opera-
ileges, for the
preliminary injunc-
court to dissolve the
***
of
maintenance
tion.
* * *
transportation systems
question.
I turn now to that ultimate
permit
and to
the use of streets
Either
Appellee’s
places
period
Dilemma:
of
The
other
for a
Purported
twenty years,
Certificate
Its
not to exceed
under
Franchise,
regulations may
an Exclusive
Give
such rules and
be
as
* * *
Invalid—
Therefore
prescribed
and Was
ordinance.
“we
concedes
“Section 2.
Exclusive franchises
Ordinarily,
complex
approved by
situation”.
fact
heretofore
less than
this
fact,
of
fifty-five percentum
in a matter
questions of
votes
of
“expertise”
kind,
left to the
municipal
cast
election where-
body
people approved
skilled
of the administrative
experienced
an exclusive
municipality
area.
franchise within said
hereby
given
ratified and
full
us,
earnestly
pressed
how-
It is
pro-
and effect
force
under
Act
this
statutes, one
ever,
Territorial
“two
* * *
vided the terms of said franchise
applicable
intend that the same shall not be in
Municipal fran-
other to
[Emphasis sup-
force and effect.”
appellee's “valuable
chise”,
buttress
plied.]
right”.
property
by the Territorial
2(e)
Chapter
enactments
93
Such
first
§
specific
Legislature
Con-
contravene
1949, supra, which
Laws of
the Session
gressional
in U.S.
mandate contained
reads as follows:
sive certificates
and
provisions
set forth. This
clude the
“Issue
[*]
[“The
necessity,
[*]
Commission shall:]
certificates of
discretion to issue
of this
conformable to
on such routes
authority
Act
as
hereinafter
(cid:127)»
shall
exclu-
[*]
in-
C.A.§
poration,
ture
any special or exclusive
*
immunity,
affirmative
“* *
* *
77:
[of
Alaska]
association, or individual
*
or franchise
approval of
nor shan
all
laws
grant
passed,
without the
Congress;
privilege,
any cor-
legisla-
or at-
order,
(d)
in force until
its further
follows:
continue
of Section 9
Subsection
period
specified
time,
provided
Except
accord-
“(d)
for a
otherwise
order,
provisions
Commission,
unless
Act, all orders of the
this
suspended, modified,
payment
he
shall
the same
than orders
or be sus-
money,
aside
rea-
set
take effect within such
shall
compe-
pended
thirty days,
time,
or set aside
a court
than
not less
sonable
jurisdiction.”
may prescribe
tent
and shall
the Commission
Territory-
legis-
franchises of
tempted
exclusive
passed,
application, except
the af-
wide
inconsistent
lature
said
Congress.
approval of
firmative
section
with the
* * *
Legislature
Nor can the Territorial
and void.”
be null
shall
grant locally
restricted but
part
Again,
reads
48 U.S.C.A. 1471
lo-
franchises
the enactment
as follows:
special laws,
cal or
is confined
but
special
“Local or
laws
general
promulgation
laws
legislatures
Terri-
“The
purpose,” etc.,
for this
etc.
now
tories of the United States
ensuing page,
fur-
the brief
On the
organized
hereafter
pass
“Territory-wide”
develops
lim-
ther
special
laws in
local or
.
*15
itation idea:
cases,
following enumerated
logic
interpretation
“The
of this
say:
is to
historically
appealing
******
is
is
granting
Clearly
of an
sound.
“Granting
any corporation, as-
to
Territory-wide franchise
exclusive
by
special
sociation,
individual
or
Legislature
matter of
is a
immunity,
privilege,
or exclusive
Congress
import
such wide
franchise whatever.
States, in
of the United
view
gen-
cases where
“In all other
placed
Territorial
limitations
governments,
applicable, no
be made
eral law can
properly reserved
has
special law shall be enacted
right
ac-
take final
to itself the
United
Territories of the
At the same
tion
such matters.
legislatures
by
Territorial
States
Congress clearly did not desire
time
thereof.”
itself,
in-
retain
nor did it
unto
Inc.,
Lines,
In O'Harra Bus
See also
re
thereby
prohibit
tend
1948,