Norfolk Southern Bus Corp. v. United States

stipulated as hearing, parties also NORFOLK SOUTHERN BUS CORP. actually earned else- amount he had et UNITED STATES al. plain- period. The during where the same Civ. A. No. 1084. to tiff or refutation testified without denial amount which he in the form earned District Court States specific as- tips trip on Virginia, each round on E. D. Norfolk Division. his time signment which he held Argued March discharge. Plaintiff estimates May 12, 1950. Decided able which he would have been total amount opinion May 22, Dissenting permitted he to remain to earn railroad, including employment of the tips, amount exceeds the total salary earn in other he has to been able discharge his and down

employment since $9,224.67. hearing

to time discharge the rail- sent letter September plaintiff

road

(Plaintiff’s 11) that his Exhibit declares is “a

dismissal from the service result investigation

your held failure to attend Standard my office 1:38 P.M. Central

Time, Tuesday, September 1947.” It Bryan, District dissented. admitted the defendant that thus plaintiff’s dismissal

circumstance of defendant arises the service attempt-

out on which he occasion statutory right while assert his right. statutory his defendant denied carrier proceed- raised in

There is September respect to events of

ing with train, which led aboard the presentation charges

later

plaintiff. presented here arises The issue dispute there was

from the as to whether rights plaintiff’s denial of hearing with the

connection

charges. thorough consideration

After cited submitted and the authorities

briefs

therein, my that under conclusion plaintiff Railway has a Labor Act the stat- representative designate

utory right to- choosing own acted

of his sought it when the statute

violation of rep- choice of his plaintiff in the

restrict employees who to those

resentation plain- carrier. Insofar as defendant discharge a result of the rail-

tiff’s plaintiff’s stat-

road’s failure representation, plain- rights

utory judgment against de- is entitled

tiff $9,224.67. the amount of

fendant in Martin, Bragg G. S. Burnell James Va., Winder, Norfolk, Arthur all of J.

plaintiff. Humrickhouse, George Atty., U. S. Richmond, Va., Reidy, M. Associ- Edward Counsel, ate Chief Interstate Commerce C., Washington, D. for de- fendants. Ashburn, Norfolk, Va.,

Willard R. M. I. Bailey, Raleigh, N. Dare Transp. Inc. DOBIE, Before Circuit . BRYAN, HUTCHESON and District Judges.

DOBIE, Judge. Circuit Plaintiff, Corpora- Bus tion, instituted action civil defendants, America, United States of In- terstate Commerce Commission and Vir- ginia Transportation Company, Dare In- corporated, 22, 1949, seeking on December to set aside annul an order of the Com- mission dated November and to en- join the issuance the Commission to Vir- ginia Dare of a certificate con- necessity pursuant venience and to this Southern, Virginia cor- poration principal with its office Nor- folk, Virginia, is a common carrier of sengers motor vehicle between Norfolk City, and Elizabeth North Carolina. Vir- ginia corporation, Dare is North Carolina Manteo, principal with its office in North Carolina, formerly operated as a com- passengers by carrier of mon motor vehicle Nanteo, Sligo between City, all in North Carolina.

On December granted Virginia (46 842) M.C.C. au- thority transport passengers and their mail, express baggage, newspapers, motor vehicle passengers, the same Sligo, Carolina, between North and Nor- folk, Virginia, over North Carolina-Vir- ginia Highway Moyock, 170 serving North Carolina, point, subject as an intermediate following restriction: “The service subject herein is authorized the restric- not be conclusion that the restriction should traffic shall other passengers, tion that Norfolk, Nel- the one lifted. Radio Commission v. transported Federal other, said hand, Mortgage son Bros. Bond & and, on the presently authorized route carrier’s 88 including Eliza- Sligo City, Hall & Sons Further, sig- City.” there report, which nificance in the fact that the giving Virginia of This effect Commission, by was was affirmed entire through a between Manteo and route by only made three Commissioners. Moyock and at Norfolk, at with service points Sligo, inclu- Manteo and issue authority Commission to The sive, prevented Virginia Dare necessity is ibut certificates of convenience and Norfolk, any on the giving service between 207(a) of the Interstate found other, points hand, and, on 307(a): one U.S.C.A. Commerce 49 City, Elizabeth 310, and route between “Subject a certificate shall to section appropriate certi- An including the latter. qualified applicant there- any be issued to 3, July for, part ficate issued was of authorizing the whole application, operations by parlance, this was the covered In motor fit, Upon will- operation. door” known as a “closed if ing, found Dare, properly perform and the serv- able subsequent petition of pro- proposed to the reopened hear- ice and for further proceeding was conform requirements, part visions on this respect solely ing rules, regulations just and with mentioned service, thereunder, proposed service, any, be if should question what by the certi- to the extent to be authorized Sligo and authorized present ficate, is or will be Norfolk. and neces- public convenience lifting protested the future sity; application shall be otherwise such Hearings were held this restriction. * * (Italics ours.) denied: 1948, 25, 1948, May February pro- times evidence at which extensive and extent of the Com The nature and Norfolk by Virginia Dare duced both authority provi under the mission’s above to an matter Southern. The was referred subject of numerous de sions has been the report and a recommend- a Examiner thereon The cisions. The law is settled. that the Examiner concluded ed convenience and Excep- removed. restriction should peculiarly requiring a matter exer by Virginia Dare to the filed tions were expert judgment cise of the Commission’s August report. On Examiner’s transportation. United in the field of States Commission, consisting Division Corp., Carriers v. Carolina Commissioners, issued of three 482, 490, U.S. S.Ct. Examiner, Com- with one reversing the func exercising 971. In administrative dissenting. By order of their missioner specifications of considera tion there are no peti- Norfolk Southern’s November the Commission is to be tions which was denied reconsideration tion for determining public, governed whether which in effect entire necessity require the in convenience restric- of Division 5 the decision As, motor-vehicle auguration of service. lifted. tion should 1(18) dealing with section the exten under questions presented for main Two railway lines, and abandonment of it- sion (1) Has the Commis- our determination: duty “the Commission to find the Findings upon of Fact sufficient made sion and, in the exercise of reasonable- facts Is base the order? question.” to determine that judgment, evidence to substantial there Chesapeake Ry. Co. v. United & Ohio order? States, 283 S.Ct. is, 824; Colorado v. United (1) The Commission accept course, the Examiner’s 271 U.S. not bound to Gulf, quasi jurisdictional findings, C. Ry. Pacific Texas & undispensable, “complete 46 to be & S. F. grounds L.Ed. 578. statement of the the Commis- sion’s was declared determination” which report, the Commis- In its Division 5 of Beaumont, L. & W. Co. United S. “Upon further stated, conclusion: sion present hearing, that the fu- find proper to be considera- desirable for necessity re- ture tion of The lack of the case in the courts. operation by applicant, in interstate quire complete statement, always such a while commerce, foreign as a common car- regrettable, unnecessarily because increas- passengers and rier motor vehicle of ing (com- reviewing labor of the court mail, express, and baggage, their pare Virginian United newspapers, in the with same vehicle 463), 47 S.Ct. 71 L.Ed. is C., Nor- sengers, Sligo, N. not fatal validity to the the order. It is of folk, Highway Va., North over Carolina precise true findings that formal and are 170 from Carolina-Vir- North required, not under section 14 of line, ginia Virginia State thence * * *, Interstate Commerce Act which Norfolk, serving all inter- Highway to declares state the “shall fit, is will- points; applicant mediate of together conclusions properly perform such ing, and able to with its Compare decision.” Manufactur- requirements service and to to conform ers’ Act the Interstate Commerce and to our of Meeker thereu/nder; regulations that an rules Co.) (& Lehigh Valley appropriate amended certificate should be Ann. receipt granted, upon of a from Cas.l916B, 691, P.U.R. 1915D That request writing the coincidental provision relieves the Commission from the certificate issued cancellation of herein making comprehensive findings of fact simi- ours.) July (Italics 1947.” required lar to ** 'by Equity Rule 701/ adequacy of the connection section 14(1) *. But does not re- findings report, in the we Commission’s move of making, where orders are quote Q. Ry. Chicago, B. & subject judicial review, quasi jurisdic- to 583: tional essential to their constitu- principal problems “The with which we tional statutory or validity.’ (293 U.S. confronted are whether order are of the 454, 55 273.) supported by adequate an Commission is light “In the this authority, appears it finding quasi- to basic or of that a finding the ultimate basic upon jurisdi-ctional fact which the of exercise fact indispensable all that to the Commis statutory power depends and, so, of the if sion’s exercise the statutory power in finding such essential whether or not rests of voked in this proceeding. prerequisite As a upon supported by a rational basis and is to validity orders, its the Commis of substantial evidence record. of compelled sion report special find “In States v. B. & O. R. ings as underlying or subordinate such as were formerly required by facts pointing single primary ques- out the after 701/2, Equity Rules 28 U.S.C.A. section 723 upon which tion fact no7ju appendix, required by Rule Commission was essential to the exercise Procedure, Federal Rules Civil 28 U.S. statutory power, Court of its commented following section only C.A. 723c. The bas upon distinction between findings fact, quasi-jurisdictional ic or a finding in indispensable fact which others respect to which is essential to the exercise after referring are not essential and power Commis Florida v. State of the established rate sion to reduce involved said: prescribed case lower legal one ‘In the Florida case the distinction future, pointed may subsisting out is the fact that the between what be term- was Next, Commission reviewed testi- unjust or unreasonable.’ rate ‘is will mony appearing eighteen public Act, 15(1).” 15(1) Sec. U.S.C.A. § protestan! on behalf Southern. (Italics ours.) southbound Schedules showing north 8(b) of the though section Even service Southern over rendered Administrative Procedure 5 U.S.C.A. Eliza- its two routes Norfolk and applicable may now be Operating are referred to. Com Interstate Commerce decisions of the by the statistical Nor- exhibits introduced re mission, think that the Commission’s reviewed, indicating folk Southern were port contains sufficient appreciable “that over- there has been * “* * provides: 8(b) the order. Declining crowding months.” in recent upon each ruling show the The record shall passenger the Norfolk Southern revenue of conclusion, pre exception finding, such de- the extent of referred initial, (including All decisions sented. years shown. cline in recent recommended, decisions) shall or tentative it had contention Dare’s include part the record and become presentation of unduly its limited in conclusions, (1) findings and statement scope its cross- testimony therefor, up the reasons basis well as overruled, and the Com- examination was law, fact, or material issues all the reaching our conclu- mission “In stated record; and presented on the discretion sions, all we the evidence have considered order, sanction, rule, (2) appropriate the of record.” then The Commission’s relief, thereof.” or denial important holdings following contains the the ultimate here made that a The Commission “In several we have stated instances by statute, required and findings as the operation ‘closed passenger door’ supported by findings are prevents public riding these ultimate from any part of the subsidiary findings. The Commission’s re- daily operated regu- buses which are authority port sought by the Generally describes justify. lar route difficult existing Virginia application, the routes of speaking, such as contained in restrictions authority, subject Dare, prior applicant’s public not in the certificate are Commission, restriction, granted by the only by justified un- interest be and can upon petition of the reopening of the case usual which are not circumstances here Southern, con- Examiner’s present. Norfolk True, Southern is now points out find- It then that deficit, clusion. operating at but there show- a. ings Virginia Dare is fit and able to that ing primarily that deficit results public at and that the services operations conduct Norfolk-Sligo-Eliza- over the necessity require services City convenience opinion, In our route. points by intermediate at no convincing evidence that removal of the unquestion- Sligo and Norfolk are deprive between would by the justified record. of a material amount of traffic. In event, public we have found often public by bodies were next Interventions deprived should be of a new im- evidence in to and the referred proved might merely because it service di- testi- application was summarized. The vert some traffic from other carriers. drivers, mony indicating that on of bus circumstances, conclude they flagged have occasions numerous public require necessity convenience points between Elizabeth intermediate by applicant rendition of an unrestricted in- persons seeking City Sligo, terstate service.” Sligo sage to Norfolk temporary authority Norfolk, and the necessity was no There continued service under which any specific Commission to make months Elizabeth about five concerning inadequacy existing Norfolk were referred to. Storage service. Transfer & See Davidson public sup- testimony of five States, 42 Co. v. United application port S.Ct. review. affirmed 317 63 87 U.S.

761 major 481; A., Transp. plying transportation crisis of Co. v. B. & C. Motor applica- proportions S., D.C., F.Supp. unless the U. 69 would ensue the mean- 207(b) granted. tion If that were of the Interstate Commerce ing, “No certifi- word ‘convenience’ U.S.C.A. states: use superfluity.” chapter shall confer would be an obvious cate issued under any proprietary property rights In- The determinations of the public highways.” use of the terstate like those Commerce Competition public carriers among bodies, up- of other administrative will may public car be in the interest if within Commission’s immunity rier first in business has power supported by substantial evi- competition. See Chesa future dence that the convenience and ne- States, peake & v. United Ohio cessity the order or certificate. served 824; U.S. 75 L.Ed. Paul, Chicago, Minneapolis See & Oma- St. Transp. North Coast Co. v. United ha U.S. D.C., F.Supp. 448, 451, 1093; 88 L.Ed. though Even S.Ct. Co., States v. R. R. Wabash competition resulting causes decrease 408, 827; Interstate carriers, from one of the revenue Commerce Commission Hoboken Manu- may facturers’ R. of a the issuance certificate served 107; Com- Interstate competitor. Transp. Corp. Lang a new v. merce Commission v. Union Pacific R. R. Inland Motor D. L.Ed. 308. F.Supp. 885. The courts have also stated the rule Judge As Circuit Beard- Parker stated in judicial these words: “The function is States, Laney D.C., F.Supp. v. United exhausted when there is found a ra 27, 32, 803, affirmed 338 U.S. 64: 70 S.Ct. tional for approved basis the conclusions court, “It is for the not the body.” the administrative Rochester say public what convenience and neces Telephone Corp. States, v. 307 U.S. United sity requires and whether these will be 125, 146, 59 S.Ct. 83 L.Ed. 1147: by licensing better served an additional Mississippi Barge Valley Line Co. v. United by permitting already than States, 692, 292 U.S. 54 S.Ct. expand licensed to their facilities.” L.Ed. 1260. here, In lifting the the Com- Virginian Ry. States, In Co. v. United instituting mission was not a new service 272 U.S. 47 S.Ct. L. simply permitting improvement but was an Ed. Mr. Brandéis stated: “This Justice existing of an language service. Thus the court has no concern with the correctness D.C., of Hall & Sons v. United of the Commission’s reasoning, with the applicable: “Bearing conclusions, soundness of its or with the expertness in mind the Commission’s inconsistency alleged made in primary responsibility weighing the fac- proceedings See, also, other before it.” affecting tors convenience and neces- Paper Western Makers’ Chemical Co. sity, the well-understood limitations judicial type case, review in this say, on cannot the basis of the Commis- addition, presumption there is a that findings, sion’s that it was irrational performed has properly its present that conclude and future duties, presumption necessity supports official and this would be served enlargement applicant’s its official acts. Baltimore & the limited Ohio R. 349, 358-359, existing provided authority, as ‘necessity’ L.Ed. 1209. Cf. The word in the broad Federal Hope literally, Natural formula must not be taken too Power Commission Gas especially present, case like the im- Foundation, buses, applicant’s States v. Chemical even although “satisfactory” 71 L.Ed. 131. believe them crowd- 14 — * * * during ed “on some occasions credibility of witnesses The schedules, years”; the war as to the fre- testimony for the weight are also quency ample; service is shown to and are to determine Commission deficit, and as to Norfolk Southern’s Lang Trans See concern of courts. “through has no fault of own” and it portation expense average” “an factor below there and the authorities * * * good and management and “its cited. that Again, efficient”. observations applicable is not law it Under “there is results showing no that the deficit analy present us to a detailed necessary for operations” from its over the route in It suffice to state will sis the evidence. question, convincing evi- “there existing that that was evidence that dence removal of the restriction would confusion, many people system caused deprive a material Norfolk-Southern had transportation, that there were refused ob- amount are valueless. Too traffic” passengers, complaints proposition proof vious need crowded, Norfolk Southern buses of restriction would neith- withdrawal services filed for better petition that a deficit, lessen the decline er lessen nor lifting restriction would that the of traffic the Norfolk-Southern. So transportation feeling afford remove ill penultimate “finding” sustains ul- no neighboring Manteo and timate. stops and intermediate Consequently, find “rational I can without pre- basis” the order. The Commission is substan buses. This evidence changing sumably impose ground restric- supports the Commission’s order. tial and ground I to know its tion. would like injunction dis- denied and suit cancelling it.

missed. enjoin I would enforcement of Dismissed. present Commission order until makes law and enters its HUTCHESON, District concurs. order thereon. BRYAN, Judge (dissenting). District opinion my report Division August

dated is invalid because to sustain make basic

it fails to agree I cannot finding.

its ultimate opinion that an ultimate the Court’s law; U. S. v. CORP. STATES v. CONST. UNITED RING Lines, Pierce Auto A. No. 2287. Civ. 821; Hudson Court District United States S., Lines v. U. Transit Minnesota, Division. Fourth 23, 1951. Feb. 8(b), 5 Procedure sec. Administrative I and search the record U.S.C.A. § findings. subordinate vain for sure,

To summaries evi- If they observations. be taken

dence and deny they the Commission’s con- as that, Thus recites clusion. buses, flagging ap- confusion tendency say, “the drivers is for

plicant’s so; as Norfolk- to do persons” fewer

Case Details

Case Name: Norfolk Southern Bus Corp. v. United States

Court Name: District Court, E.D. Virginia

Date Published: May 22, 1950

Citation: 96 F. Supp. 756

Docket Number: Civ. A. 1084

Court Abbreviation: E.D. Va.