RAILWAY EXPRESS AGENCY, Incorporated, Plaintiff, v. UNITED STATES of America and Interstate Commerce Commission, Defendants.
United States District Court S. D. New York.
June 6, 1957.
153 F. Supp. 738
It may be immediately noted that the cited Madison case is one in which the presumption as to the legitimacy of children was on the side of the first, rather than the second marriage. Again, the validity of the first marriage was unchallenged, and the existence of the first wife was undeniable. Furthermore, it was shown that the husband, at the time he remarried, was on notice that his later union was invalid if not bigamous.
The present case is infinitely different from the Madison case. Here, the suit is to recover Social Security benefits—by contrast with an action of ejectment. In the instant case the first marriage has by no means been proved. Even if it were proved, there is here the long lapse of time which aids the presumption in favor of the later marriage.
Again, the presumption of legitimacy here aids rather than opposes the claimants. That particular presumption is by no means a mere recognition of probability, but is rather one of the weightiest expressions of legal policy in the law. In re McAnany‘s Estate, 1927, 91 Pa.Super. 317, 321. See Bishop, Marriage and Divorce § 457 (6th ed.), quoted in Nixon v. Wichita Land & Cattle Co., 1892, 84 Tex. 408, 13 S.W. 560, 561 and in McCormick on Evidence, § 312, p. 653 (1954). See 9 Wigmore on Evidence, § 2506, p. 371 (3d ed. 1940); Pennsylvania cases collected and compared in annotation. 14 A.L.R.2d 9, 39.
The careful and conscientious opinion of the Referee is thus seen to have been based on evidence which falls far below ordinary standards. It was, moreover, lamentably short of the strict proof required to overcome the policy presumptions of the law as recognized in the Pennsylvania cases, e. g., Fritsche v. O‘Neill, 1942, 147 Pa.Super. 153, 161, 24 A.2d 131; Farrell Estate, 1947 35 Del. Co.R. 433. See McCormick on Evidence, 654 (1954).
For the foregoing reasons the defendant‘s motion for summary judgment is hereby denied, and the decision of the Secretary is reversed. Claimant may submit an appropriate order granting the relief prayed in her complaint.
Fulmer Long, Chicago, Ill., James V. Lione and William H. Marx, New York City, for plaintiff.
Robert W. Ginnane, Gen. Counsel, and H. Neil Garson, Asst. Gen. Counsel, Washington, D. C., for Interstate Commerce Commission.
Victor R. Hansen, Asst. Atty. Gen., James E. Kilday and Maurice A. Fitzgerald, Attys., Dept. of Justice, Washington, D. C., Paul Williams, U. S. Atty., and Harold J. Raby, Asst. U. S. Atty., New York City, for the United States.
Proskauer Rose Goetz & Mendelsohn, New York City, and Schnader, Harrison, Segal & Lewis, of Philadelphia, Pa., for United Parcel Service, Inc., Intervenor, Bernard G. Segal and Irving R. Segal, Philadelphia, Pa., S. Harrison Kahn, Washington, D. C., and Jacob Imberman, New York City, of counsel.
Before SWAN, Circuit Judge, and MURPHY and EDELSTEIN, District Judges.
SWAN, Circuit Judge.
This case is before a three judge court convened pursuant to applicable statutory provisions.1 It has been heard upon the complaint, the answers thereto, the record made in an administrative proceeding before the Interstate Commerce Commission, and the briefs and arguments of counsel.
The action seeks annulment or suspension of two orders of the Commission, dated respectively September 24,
The present action was commenced by the issuance of summons March 28, 1957. The complaint alleges that the orders are illegal because a “necessary ingredient” of United Parcel‘s proposed operation is a charge of $2 per week for a pick-up call each business day regardless of the shipper‘s need or demand for such service.3 This is asserted to constitute an unlawful discrimination against shippers who require transportation less than five days per week, contrary to
“* * * It is objected that the railroad as a motor carrier has been permitted through other proceedings to file illegal tariffs, violative of Section 217 of part II of the Interstate Commerce Act, and has been improperly exempted by the Commission from certain accounting requirements of Section 220 of the same part to which the other motor carriers are subject. These are obviously not grounds upon which appellants can base an argument against the grant of a certificate of convenience and necessity.” [Italics added.]
Nor has the Commission‘s action deprived Railway Express Agency of opportunity to challenge the legality of United Parcel‘s rate schedules, pursuant to
The report and order of Division I made the following findings:
“We find that the present and future public convenience and necessity require operation by applicant, in interstate or foreign commerce, as a common carrier by motor vehicle, over irregular routes, of the commodities, from and to the points, and subject to the restrictions described in the appendix hereto.
“We further find that the holding by applicant at the same time of the certificate authorized to be issued herein and of the permit hertofore issued to it will be consistent with the public interest and the national transportation policy.
“We further find that applicant is fit, willing, and able properly to perform such service and to conform to the requirements of the Interstate Commerce Act and to our rules and regulations thereunder; * * *”
These findings, if supported by the administrative record, are sufficient to require the order to be upheld. See Newtex S. S. Corp. v. United States, D.C. S.D.N.Y., 107 F.Supp. 388, affirmed 344 U.S. 901, 73 S.Ct. 285, 97 L.Ed. 696.
Plaintiff contends that the testimony of public witnesses solicited on the basis of low rates is not sufficient to establish the convenience and necessity required by the statute. But the Commission did not base its finding of convenience and necessity on the specific rate structure proposed by the applicant. On the contrary it found that neither plaintiff nor other carriers were meeting, or were fit, able and willing to meet, the shippers’ needs for the particular service proposed by the applicant, and it expressly rejected the protestants’ argument that the public witnesses favored the application out of a desire for lower rates.5 The opinion in Atlanta-New Orleans Motor Freight case, D.C.N.D.Ga., 155 F.Supp. 68 quoted in the defendants’ brief seems closely in point. We think it apparent from the reports of the examiner and Division I that the certificate was granted to United Parcel on the basis of evidence showing a more efficient service, at a lower cost and of a type not presently offered to shippers.
Accordingly the complaint is dismissed.
The issuance of a certificate is dependent upon a finding that the “applicant is fit, willing, and able properly to perform the service proposed and to conform to the provisions of this chapter and the requirements, rules, and regulations of the Commission thereunder.”
The Examiner found, and Division I agreed, that the service proposed to be rendered by United Parcel is “required by the present or future public convenience and necessity.” According to the Examiner the service offered by the applicant “has been designed and developed to accomplish the expeditious delivery of small packages of the type for which Parcel Post is now generally utilized, at rates comparable with Parcel Post * * *” and he found that “the record establishes an urgent need on the part of the shipping public for a small package service such as that proposed and which is now effectively available only through the medium of the Parcel Post System.” These findings are not here disputed. Both from these excerpts, and a reading of the reports as a whole, it is abundantly clear that the requisite finding of convenience and necessity depended chiefly upon United Parcel‘s proposal to operate on the basis of Parcel Post rates. Thus, while rates are not usually relevant or pertinent in application proceedings, in the instant case rates were the predominant factor which led to the issuance of a certificate.
Turning now to the question of fitness and ability, it becomes clear that the necessary finding must go further than a simple determination that United Parcel is fit, willing and able to pick up, transport and deliver packages. The finding now must be to the effect that United Parcel is fit, willing and able to perform the above-mentioned physical operations at Parcel Post rates and in conformity with the Commission‘s rules and regulations.
An integral part of the applicant‘s proposal is the practice of charging shippers $2 a week for pick-up service five days a week whether or not the shipper requires a pick-up on any particular day. Shippers who do not wish or need daily pick-ups must either pay the flat rate or deliver their packages to applicant‘s terminal themselves. Only 1% of applicant‘s business is done by the latter method. Plaintiff urges that this is illegal and in violation of
While it is true plaintiff‘s objection raises a question of rates, it goes far deeper than that. This is not the usual case since the main justification for issuing the certificate was based on the rates United Parcel proposed to charge. “Although the rates and charges for a proposed motor carrier operation are not in issue in an application proceed-ing, the economics of such an operation are definitely in issue. Sufficient facts should be shown to establish that adequate revenues will be earned by the applicant, that its operating costs will not exceed the prospective revenues and that the proposed operation can be conducted in a feasible, economical and efficient manner under the Commission‘s rules and regulations.” L.P.M. Corporation Extension, Docket No. M.C.-111015.
Both findings of fitness and ability are predicated upon applicant‘s past use of the complained of pick-up charge, and on the presumed use of the same allegedly illegal charge in the future. There is not a shred of evidence in the record pertaining to United Parcel‘s financial ability to perform at low rates without this charge.
There is, however, considerable financial data in the record. The figures are most complete with respect to Illinois. It makes daily pickups from 1294 consignors. Multiply this by $2 a week for 52 weeks and it appears that $134,576 of its total 1955 revenue of $189,433,2 or better than 70% of it is obtained by use of the allegedly illegal practice. Consider, then, that Illinois would net, without the pick-up charge, only $54,857 after gross revenues of $6,991,964 and assets of $2,292,438, and it becomes obvious that a determination of the legality or illegality of the pick-up charge vitally affects the ability to perform. The figures with respect to the applicant are even more striking—assets of $480,603, gross revenue $1,800,192, net income without the pick-up charge, $6,053. The slightest rise in wages or other operating expenses could wipe its profit out completely. Applicant would then be forced either to discontinue operations or to raise its rates above the Parcel Post level, although the main justification for convenience or necessity rests on its proposal to operate at Parcel Post rates. Examined in the light of these considerations it is obvious that the Commission was arbitrary and capricious in declining to determine the legality of the pick-up charge. It is logically impossible for the Commission to make a finding of ability to perform in conformity with the regulations when it refuses to interpret these regulations with respect to a practice whereby the applicant derives 70% of its revenues.
Unless and until the Commission determines the legality of the complained of practice it is impossible for us to tell if the record supports a finding of financial ability to perform in accordance with the rules and regulations. While it is true Railway Express can challenge the legality of United Parcel‘s rate schedule pursuant to
Accordingly, I would remand the case to the Commission for a determination of the legality of the pick-up charge. In the event said charge is found to be illegal the Commission should be directed to reconsider the applicant‘s ability to perform at Parcel Post rates on the present record or to reopen the hearings for further testimony.
NATIONAL CANCER HOSPITAL OF AMERICA, Plaintiff, v. Bethuel M. WEBSTER, as Receiver, Defendant.
United States District Court S. D. New York. June 24, 1957.
Notes
| Applicant | Illinois | Consolidated | |
| Assets | $480,603 | $2,292,438 | $2,773,041 |
| Gross Revenue | $1,350,144–$1,800,192* | $5,243,973–$6,991,964* | $6,594,117–$8,792,156* |
| Net Income | $15,125–$20,165* | $142,075–$189,433* | $157,200–$209,598* |
| Net Income Less Pick-up Charge | $6,053b | $54,857a | $60,910b |
| Milwaukee | Cleveland | Consolidated | |
| Assets | $284,492 | $767,230 | $3,824,763 |
| Gross Revenue | $864,647–$1,152,862* | $934,613–$1,246,150* | $8,393,337–$11,191,168* |
| Net Income | $17,171–$22,894* | $16,337–$21,782* | $190,708–$254,274* |
| Net Income Less Pick-up Charge | $6,871b | $6,536b | $74,317b |
*—Projected yearly figures based on the nine month figures contained in the record.
a—Computed as follows: Projected yearly income of $189,433 less income from pick-up charge—1294 consignors at $2 a week for 52 weeks or $134,576.
b—Computed by deducting 70% of projected net income. This figure was used, in the absence of any others, because it approximated the percentage of net income derived from the pick-up charge determined in the case of Illinois.