333 F. Supp. 879 | S.D. Ind. | 1971
JUDGMENT ENTRY
The action was brought in this three-judge District Court to annul, vacate, and set aside a report and order of the Interstate Commerce Commission. The order converted a certain contract-carrier by motor carrier permit to that of a common-carrier by motor vehicle certificate for the applicant and intervening defendant, Ferree Moving and Storage, Inc. The Commission proceeding entitled Docket No. MC-118696 (Sub-No. 4), Ferree Moving and Storage, Inc., Conversion Application, is reported at 110 M.C. C. 375.
This action is authorized by and the Court’s jurisdiction is based upon Sections 17(9), 205(g) and (h) of the Interstate Commerce Act (Title 49 U.S.C. Sections 17(9) and 305(g) and (h)) and Title 28 U.S.C. Sections 2284, 2321 and 2325.
Ferree Moving and Storage, Inc., an Indiana corporation, with its principal office and place of business in the City of Munster, State of Indiana, prior to and on September 30, 1968 held a contract-carrier permit issued by the Interstate Commerce Commission to tranport (over irregular routes) mattresses, box springs, dormitory and institutional fur
The application of Ferree and the resulting Commission Order of September 5, 1969 in Commission proceeding entitled Docket No. MC-118696 (Sub-No. 4), Ferree Moving and Storage, Inc., Conversion Application (110 M.C.C. 375) in issue in this action emanated from a pri- or proceeding. The earlier proceeding involved an application of Ferree Moving and Storage, Inc. to which the plaintiff was a protestor. The prior Commission proceeding was entitled Ferree Moving and Storage, Inc., Extension-Sixteen States, Docket No. MC-118696 (Sub-No. 2). Ferree, while possessing such authorities, in 1966 applied in such Sub-No. 2 proceedings for separate common-carrier authority to transport mattresses, new furniture and kitchen cabinets from .points in Indiana (except Munster and four other points) to points in sixteen (16) states — including all the states referred to immediately above in which he was authorized to operate. The Commission decided in such Sub-No. 2 proceeding that the proposed operation was required by the public convenience and necessity but stated that the issuance of a certificate would depend on Ferree divesting itself of the contract-carrier certificate it possessed or converting it to a common-carrier certificate. The intent of this directive was to prevent Ferree from conducting “dual operations” which are unlawful under Section 210 of the Interstate Commerce Act (Title 49 U.S. C. Section 310). Otherwise, Ferree would be able to serve certain common points under its contract-carrier authority and under its Sub-No. 2 authority. Ferree could have sold the permit, or it could have surrendered it for cancellation but elected the third alternative instruction of the Commission’s order in the Sub-No. 2 proceeding by applying for the conversion of the contract-carrier permit to a common-carrier certificate.
The plaintiff has not by separate action and does not here challenge the Commission’s action in the Sub-No. 2 proceeding other than to observe that Feree’s Sub-No. 4 proceeding was “artificially inspired” by the Commission’s Sub-No. 2 order and plaintiff believes
The parties agree that Ferree had the burden of sustaining its application in the Sub-No. 4 proceeding for a common-carrier certificate. It was required to prove that it was fit, willing and able properly to perform the service proposed and to conform to the provisions of Chapter 8 of the Interstate Commerce Act (Title 49 U.S.C. Section 301 et seq.) and the requirements, rules and regulations of the Commission thereunder, and that the proposed service, is or will be required by the present or future public convenience and necessity under Section 207 of the Interstate Commerce Act (Title 49 U.S.C. Section 307) and that as a common-carrier Ferree would hold itself out to the general public to engage in the transportation of a certain class of property by motor vehicle in interstate commerce.
The plaintiff’s complaint alleges that the Commission’s action was arbitrary, unlawful and void in that its order was not supported by the evidence and was contrary to law. This Court review will be limited to ascertaining whether the Commission was warranted by the facts and the law in its findings and order in the Sub-No. 4 proceedings. See United States v. Pierce Auto Freight Lines, 327 U.S. 515, 66 S.Ct. 687, 90 L.Ed. 821 (1946). The Court is not concerned with the soundness of the Commission’s reasoning or with the wisdom of its decision in the Sub-No. 4 proceeding. See Virginia Ry. v. United States, 272 U.S. 658, 47 S.Ct. 222, 71 L.Ed. 463 (1926); and Sims Motor Transport Lines, Inc. v. United States, 183 F.Supp. 113 (N.D.Ill.
The Commission’s report and order is substantially supported, we believe, by the evidence and accords with the applicable law. The applicant has maintained its burden of proof before the Commission for the issuance of a certificate in lieu of its outstanding permit. The Commission considered all of the relevant factors of public convenience and necessity required by Section 207 of the Interstate Commerce Act (Title 49 U.S. C. Section 307) including such matters in evidence as the volume of traffic to be shipped and the adequacy of existing transportation services. The Act does not define public convenience and necessity and such is a matter subject to discretion of the Commission who have the expertise in matters of transportation. The Commission was entrusted by Congress with the execution of the United States of America’s national transportation policy established by Congress. The Commission was warranted by the facts before it in finding that Ferree qualified and was entitled to a certificate under Section 207 of the Interstate Commerce Act (Title 49 U.S.C. Section 307) to be a common-carrier by motor vehicle as defined in Section 203(a) (14) of the Interstate Commerce Act (Title 49 U.S.C. Section 303(a) (14)).
The applicant has been in the trucking business, primarily in the household goods and new furniture field, since 1929 and has operated primarily as a family organization. The evidence of fitness and ability of Ferree is not questioned by the plaintiff. Ferree’s terminal facilities are less than ten (10) minutes away from the plant of the Simmons Company in Munster, State of Indiana, and it usually had at least five (5) trailers spotted at the Simmons’ plant available for its use. In 1968, Ferree handled a total of one thousand four hundred seventy-three (1,473) shipments for a total dollar income to Ferree of Fifty-seven Thousand Seven Hundred Twenty and Eighty-four Hundredths Dollars ($57,-720.84). Ferree’s present service to the supporting shipper and the benefit to its customers is basically the same as that being provided by other competing carriers in that the equipment is essentially the same and the only difference being the ability of Ferree, due to the proximity of its facilities to that of the shipper, to provide service within a matter of minutes and could, if called upon, handle as high as twelve (12) truckloads for the shipper within twenty-four (24) hours. The shipper has made daily use of Ferree continuously since Ferree was granted the contract-carrier authority by the Commission in 1965. The shipper predicted it will continue to use the service of Ferree if it should be given a certificate to operate as a common-carrier and there would be no diversion of traffic because of a change in the contract-carrier status of Ferree. Hereafter, Ferree will hold itself out to the general public as available for the transportation of a class of property by motor vehicle in interstate commerce. The proposed service is required by the public now and in the future. The shipper and Ferree are aware that there will be changes in Ferree’s relationship to the shipper if a common-carrier certificate be issued Ferree. Such changes will include the requirement of Ferree to publish and charge a tariff for shipper lettering on Ferree equiment; there will be no continuing contract between them; and there will be no furnishing of special transportation services of a contract-carrier. The need for Ferree’s service in the past and future is particularly appealing to the shipper as it alleviated the shipper’s problems relating to the handling of mixed shipments of crated and uncrated shipments of furniture as well as its service in providing multiple stops prior to making a final delivery. The plaintiff has been particpating to a limited extent in the shipper’s traffic. Plaintiff will continue to do so should a common-carrier certificate be issued to Ferree under the Sub-No. 4 proceeding in lieu of its contract-carrier permit. Ferree
The plaintiff erroneously contends that the evidence of Ferree’s proposed service as a common-carrier in the Sub-No. 4 proceeding is that of a contract-carrier defined in Section 203(a) (15) of the Interstate Commerce Act (Title 49 U.S.C. Section 303(a) (15)) and a permit for such is authorized by Section 209(b) of the Interstate Commerce Act (Title 49 U.S.C. Section 309 (b)) and not that of a common-carrier defined in Section 203(a) (14) of the Interstate Commerce Act (Title 49 U.S. C. Section 303(a) (14)) and a certificate for such is not authorized by Section 207 of the Interstate Commerce Act (Title 49 U.S.C. Section 307). Plaintiff relies upon the case of Connell Transport Co., Inc., Conversion Application, 95 M. C.C. 312 (1964). The Commission in entering its Sub-No. 4 order endorsed the holding in that case. The Connell case held that the applicant failed to prove shipper need for common rather than contract service. Plaintiff asserts the Ferree application should have failed because Ferree could not elicit from its supporting carrier any indication that the shipper needed common-carrier rather than the Ferree contract-carrier service. Indeed, plaintiff emphasizes such contention with the conclusive summarizing statement that the supporting shipper of Ferree could care less whether it had common or contract service as long as its needs were satisfied. The plaintiff’s interpretation of the requirements for conversion so based on the Connell case is misleading. In the Connell case, there was no shipper testimony for the Commission to weigh as distinguished from the fact that shipper testimony was present in this case. The total absence of shipper testimony was also conclusive in the ease of Eastern States Transp. Inc., Common Carrier Application, 99 M.C.C. 524 (1965), which followed the holding in the Connell ease. It also held that the evidence of past operations alone while sufficient in a proceeding under Section 212(c) of the Interstate Commerce Act (Title 49 U.S.C. Section 312 (e)) did not provide the necessary showing for a common-carrier certificate under Section 207 of the Interstate Commerce Act (Title 49 U.S.C. Section 307) of the present or future public convenience and necessity required the proposed service. The proceedings were reopened in the Eastern States case by the Commission who then heard shipper testimony and granted the application. See Eastern States Transp. Inc., Common Carrier Application, 105 M.C.C. 443 (1967). The Commission in the Eastern States case said:
“ * * ■ * It was found therein (in the earlier proceeding) that an applicant in a case of this type should submit a detailed statement of past operations under the authority sought to be converted; it should offer to surrender*885 authority which has not been the subject of past operations; and it should offer shipper testimony which will demonstrate a need for its services as a common, rather than a contract carrier, citing Connell Transp. Co., Inc., Conversion Application, 95 M.C.C. 312. The prior denial of the application was based upon the failure of applicant to produce any shipper testimony. Applicant has now remedied this defect. The supporting shippers have established that they have used applicant’s contract-carrier service, and that they have a definite need for the continuance of this service in common carriage. Consequently, the record shows that there is a public need for the requested conversion.”
It is thus demonstrated by these two (2) cases that there was a total failure to offer shipper testimony and such holdings were not based upon the content of shipper’s testimony. This is borne out by the Commission’s decision in Hugh Major Conversion Application, 100 M.C. CT410 (1966). The granting of the certificate in the second Eastern States case was not based upon the shipper’s qualitative preference opinion for common over contract service, only that there was a continuing shipper need for service. The plaintiff’s position that the Ferree shipper’s testimony disclosed such shipper cared less whether it had contract or common-carrier service so long as its needs were satisfied disposed of the issue of public need for common-carriage is unsupportable in the law. The Commission is charged with such duty to determine such issue from all of the evidence. The Commission in the instant case recognized that the private feelings of a shipper are unreliable when it stated that no shipper can be counted upon or required to make such a distinction (110 M.C.C. at page 378). The Commission did as required in this case by considering the total effect of shipper testimony and granted the application of Ferree.