Motion to Dismiss or Affirm — Chicago, St. Paul, Minneapolis & Omaha Railway Co. v. United States

CHARLES ELMO:

sree Senn RL RY anki a sen aaa rcamrasyaaps: — -

FILE COPY aes it

F CROPLEY

‘ ULERK

SUPREME COURT OF ‘THE. UNITEDL STATES

OCTOBER TERM, 1965.

"No. 482

WAY CORFAR?, ET AL.,

CHICAGO, ST. PAUL, MINNEAPOLIS & OMAHA RAIL- .

Appellants, .

vs.

THE UNITED. STATES OF AMERICA, INTERSTATE

COMMERCE COMMISSION, ET AL.

_ APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR ©

7 THE DISTRICT OF MINNESOTA. .

Perry R. Moore, _ |

Freperick H. StTincHFIELD,

‘ Counsel for Appellec, 4

er ee ered Cornelius W. Styer.

STINCHFIELD, MacKALL, |

Crotnse & Moorz,

Of Counsel.

INDEX.

\ es ; Supszct Inpex.

: Motion to didmniss or affirm: 7 ee a RE a ay

PES SEAGATE Am a EE A

The Commission’s erat of authority under

'. the ‘‘Grandfather’’ application to serve

intermediate Minnesota points on Routes —

_ land 2 was plainly correct ............. 5

As to intermediate points on Route 3......

- Eastbound operation RS PGR eee VB

-Appellee’s nists, Ca and amendments 22

Cm tO \ Beetles casey oh kes

‘Tanz oF Chee Crrep. ;

Alton R. Co. v. U; 8. etal: 315 P\8.15.:../.00 1B:

. . Brown Motor Freight Lines, Inc., 2M. C. C. 667... .. 16°

Dougherty Storage and Van Co., 3M. Cia. ..... 16

Federal Radio Commision v. Nelson Bros. Bond &

Mig. Co., 289 U. S. 266, 77 L. Ed. 169,58 Sup. Ct.

: 627, 89 A. RE SUES 4-2 Sr atlas ee 26

Kansas City S. R. Co. v. U. S., 931 U.S. 423, 58 L. ;

tf ee an ots Nee o ie ee |

Loving v. U. S., 32 Fed. Supp. 464, 310 U. S. 609, 84

: LL, Ed. 1387, 60 Sup. MM Fog ce N

McArthur, et al. v..U.8., 315 U.S. 787, 86 L. Ed. 1192, ie cd,

REE UA Aen ere ene. 12.

‘Nathan I, Snyder, 7 M. C. C. 500. 15

. Rochester Telephone Corp. v. U. 8., 307 U. ‘s. 125, 50 4

|” IG Cae ea a 25

— Transfer & Storage. Co., BMCS, 6 M. C. C.::\

a eed er he oni. do's ag 25 ante CORT xs BG)

U.S. v. Carolina Freight Carriers oe 315 74"

, MS arises ( Pee RL EERE ECESEEP EEE 12, 26

U.S. v. Maher, 307 U. S: 148 1 eg GE ee pees 21

Washburn ates Company, 29 M. C.C.116...** ;

<> eee ee See

eee te | INDEX

StTaTurTEs Crren.

Act of September 18, 1940, Chapter 722, Title 1, ia:

tion 1, 54 Statutes. 899, amending Chapters 1 1, ry is

and 13 of Title 39 U. S. Code. -

Interstate Commerce Act:

Section 206 (Added huwust @ 9, 1935, as. eaten

é June 29, 1938 and September 18, 1940 (49 U.S.

‘IN THE UNITED STATES: DISTRICT COURT i:

-’ DISTRICT OF MINNESOTA

_ «> FOURTH DIVISION

Civil Action No. 811. -

_ CHICAGO, SAINT PAUL, MINNEAPOLIS AND

, OMAHA RAILWAY COMET ET AL.,

kgs 7 Plaintiffs,

, . vs. . at

‘UNITED STATES OF AMERICA; perenshyae COM:

' MERCE COMMISSION ; axv CORNELIUS

_ Dorxe Business As NonTHERN Transrontation Company, -

rf ens

y

" GLENDENNING MOTORWAYS, ‘ING...

Intervening Defendant.

>. a7

| -. MOTION TO AFFIRM AND DISMiss.

Appellee, Cornelius W. tise, pursuant to Rule’ 12, Paya:

aph 3, and Rule 7, Paragraph 4, moves that the jetgwent :

d decree of the District Court be affirmed.

The ground of the above motion is that the questions upon’.

which the decision of the cause depends are so unsubstantial

ag hot to need further argument. °

-. This'is a direct appeal from the final judgment and de-

. eree\entered herein on June 12, 1943, of a specially consti-

« {,

re,

lu

—"* oh f Ps ome 4 _— “2 5 totanat a .

ONT DIGS LLG SERIE LE EAM HN RAT ROME IS CMON RY AE ABI 0 BG ZINE ZY

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STYER, —

( vives

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- tuted court of three judges. The judgment and decree were

entered in conformity with the.findings of fact, conclusions

of law and decision of the court entered upon that date.

_ Appellants’ ‘complaint prayed that a portion of an order

of the Interstate Commerce Commission be set aside, and

annulled. Thé lower court adjudged a dismissal of the com-

plaint. :

Service of the documents set forth i in Rule 12, sid asaalt

2, was made upon Appellee Styer on August-19, 1943.

‘ARGUMENT.

Kas Acaiinien -will be addressed to the content of the as-

signed errors, and.to that portion of the appellants’ juris-

dictional statement wherein it contends that the questions

involved are substantial. Each of the latter documents

raise the same points. | :

The decision of the Lower Court, and-the Commission's

. order,.well state the nature of the proceedings before thé

-Commission. “It need ‘not be repeated here. Upon this

motion it suffices to say that Appellee Styer projected the

business of a. motor carrier but two months before thé

Grandfather date of June 1, 1935, and filed two applications

with the. Interstate Commerce Commission for certificates of

_ public convenience and necessity. |

_ One of the applications was filed pursuant to the Grand. |

. fatherClause of the Act. Its determination depended upon

‘thé proof of ‘bong fide operation as a common carrier by

‘motor vehicle on June 1, 1935, over the route ‘or routes or

within the territory Sale Teta |

‘1 See. 206 (Added Augtst 9, 1935, as amended June 29, 1938, and:

* September 18, 1940.) (U. S. Code, title 49, see. 306.) (a) Exeept as

otherwise provided in this seetion 210a, no common carrier by motor

vehicle subject to.the provisions of this part shall engage in any interstate’

. or foreign operation on any public highway, or. within any reservation -

under the exclusive jurisdiction of the United States, whless there is in

‘

ae

Ree eae a

We have emphasized’ “route or routes’? because the Act ’ ‘

contemplates operations over routes—not to and from

-points, as appellants contend.- See Sec. 208, Part II, Inter-.

. State Commerce Act (U. S: Code, Title 49, Sec. 308).

In this application, Appellee Styer sought the right to |

operate between Minneapolis and St. Paul, Minnesota, here-

after.called the Twin Cities, and Mi

over three routes designated by the Commission, the Court

- and the parties as Routes Nos. 1, 2 and 3, A large number

of the intermediate poirits upon each of these foutes lies in

South Dakota. The remainder are Minnesota points. The

right to.operate over routes 1 and 2, with service to all

infermediate points upon the routes, was authorized by the ‘

_ Commission under this application (Grandfather). In ad-

. dition, and pursuant to the same application, the Commis- :

sion authorized Appellee to operate over Route 3, but be-

. tween terminal points only, viz., the Twin Cities and Mitch-

ell,.South.Dakotu. Service to the intermediate points on

Route No. 3 was denied by the Commission under this ap-

plication. | | a

foree with respect to such carrier a certificate of public convenience and

necessity issued by the Commission authorizing such operations: Provided,

. however, That, subject to section 210, if any such carrier or predecessor

in interest was in bona fide operation as a common carrier by motor vehicle

on June 1, 1935, over the route or routes or within the territory for which

. application is made and has so operated since that time, or if engaged in

furnishing seasonal service only, was in bona fide operation on Juné@1, ©

1935, during the season ordinarily covered by its operation and has so

operated since that time, except in either instance as. to interruptions of

service ver which the applicant or its. predecessor .in interest had no

control, the Commission shall issue such certificate without requiring proof

that public convenience and necessity will be served by such operation, and:

. without further proceedings, if application for such: certificate is made t:

the Commission as provided in’paragraph (b). of: this section and within -

_ one hundred and twenty days after-this section, shall’ take effect, and if

such carrier was registered-on June 1, 1935, under any code of fair com-

petition requiring. registration,. the fact of registration shall be evidence

of bona fide operation to be considered ‘in connection with the issuance of .

a

i

such certificate. ee db

hell, South Dakota, -

4.

“The other application, embracing the three routes, was

filed pursuant to Section 207 (a), and its determination de- —

pended upon the finding by the Commission that the public ~

convenience and necessity required the operation. The |

Commission, having gratited the right to serve between the

terminal points on Route 3 under the Grandfather.Clause -

. application, authorized Appellee, under ‘he- ‘public con- -

venience and necessity’’ application, to serve the intermedi- .

ate points on Route.3.?_ .

The question before the Court, therefore, deat only with

intermediate points on established routes. The Commis-

sion’s finding that there were bona fide operations on the

grandfather date between the termini, the Twin Cities on

the one hand, and Mitchell, South Dakota on the other hand,

is nat questioned. The finding that there were bona fide

operations on the grandfather date from the. Twin Cities

over the ‘routes to the intermediate route points in South

Dakota, and from those South Dakota intermediate route

points to the Twin Cities, is not questioned. —

The issue is reduced to the correctness of the Commis-

sion’s grantof authority to serve small parts of these three

routes, viz.: those intermediate points lying along the routes

within the State of Minnesota. The issue as to the inter-

mediate Minnesota point§ on routes 1 and 2 arises under

the grandfather applicatioh_ The issue ‘concerning the in-” :

termediate points on route 3 arises under the ‘‘public con-

venience and necessity’’ application.

In. short, the Commission, with foundation here undis-

puted. properly authorized the appellee Styer: to serve be- »

‘tween the terminal points and to and from‘a large number

of the intermediate points upon the routes. . Appellants.

object to the Commission’s inclusion of certain intermediate ,

“points upon ‘the routes—being those in Minnesota. The ©

3 Other routes not here’ pertinent were granted, and some were denied.

Commission in accordance with the statute, Section 206(a)

granted the routes. The appellants by this action seck to .

“break up’’ the routes granted. and compel the motor car-

tier to refuse proffered shipments of the public destined

‘to these Minnesota points, even though the trucks pass

through each of them daily. Suth a situation does not pro-

mote ‘‘economical and efficient service * *: * in trans-. ©

portation * * *.’’ ds required by the national transporta-

tion policy. (Act of September 18, 1940, Chapter 722, Title _

1, Section 1, 54 Statutes 899, amending Chapters 1, 8, 12 and ¥

13 of Title 39 U. 8. Code.) :

The Commission’ . | Grant of Authority under the “@rand-

_ father’ Application to Serve- Intermediate Minnesota

Points on Routes 1 and 2 Was Plainly Correct. :

) Appellants attack the Commission’s order in the respects

above mentioned upon two grounds. The first ground is

that there was no ¢évidence offered as to “grandfather serv-

-ice’’ to these intermediate route points in Minnesota, a

service on or before June 1, 1935.

The Commission, in the assailed order, found as ‘follows:

‘¢‘Prior.to June 1, 1935 applicant served the intermedi-

ate points on routes 1, 2, 4 and 5 of Brookings, Iroquois,

Forestburg, and Madison, (South Dakota points).

Applicant does not claim the right to, transport inter-

‘state shipments from the Twin Cities to’ points on his

routes in Minnésota, but claims that such points were

served eastbound from South Dakota. Although the

proof of service at intermediate points on the above

‘routes 18 not impressive, when considered in connection

with the fact that operations by applicant were insti-

tuted only 2 montlis prior to the statutory date and the

testimony of applicant that he.did not limit his service

_.« to terminal points but held out service to all inter-

/~ . mediate points and actually solicited such business,

we are convinced that he should be authorized to serve’

2u ,

i

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io. 6

all intermediate points on routes 1, 2, 4, and 5, and

that a restriction to serve certain intermediate points

‘in oné direction only would make the authority granted

unnecessarily comptionted and it will not be —" 7

(on insert) :

“The lower court, after citing emnnneii Commission deci- .

sions, stated the long established is followed by the

| Commission:

“The Cemileslin he | in effect, ruled.i in tnlion pro-

ceedings that proof of actual operations as a common.

. carrier to and from termini and.some intermediate

points on a regular route, coupled with evidence of a..

holding out of service and of a willingness and ability

to sérve all points on the route whenever shipments are

offered, will justify a finding of bona fide operation to -

and between all points on the route. See Nevitt Com-

mon Carrier Application, 4M. C. C. 298, 299-300; Con-

solidated Freight Linés, Ine., Common Carrier Appli-

cation, 11 M. C. C. 131,136; Knaus Common Carrier.

Application, 20 M..C. C. 669, 671; Los Angeles-Seattle

Motor Express, Inc., Corimon Carrier Application, 24

- M.C. C. 141, 145; Tarbet Common Carrier —

31 M.C.C. 63, 66-67. ” (Our emphasis)

‘The lower court further found: 2

“There was evidence before the ¢ Comntission sufficient

“to justify the inference that prior to June 1, 1935, |

' Styer was able to serve intermediate points in Minhe- ay.

sota on routes 1, and 2, and had held out service to such.

_ Points. ”*. (Our emphasis)

Upor the precise issue, here prveatited, the lower court

correctly said:

: “In the ins tant ; e, it is ie that the osinmin

‘sion regarded the proof of actual service between

- termini and to intermediate points in South Dakota,-

- together with the evidence which terided to prove that

_ Styer was offering and was able to serve intermediate

‘points, whether in Minnesota or South Dakota, on the

‘grandfather’ routes, as sufficient to justify the grant

' -. which it made to Styer. Proper deference ‘must be

paid to the Commission’s interpretation of the law

which it enforces, Gregg Cartage & Storage Co. v.

United States, 316 U. 8. 74, 88, and, if there is any war-——-

rant in the record for the judgment of the Commission,

it must stand. Rochester Telephone Corp. v. United

States, 307, U. S. 125, 145-146. We think that the Com-

-mission’s determination that Styer was entitled to the

ghts granted because of his bona fide operations. as .

_ ‘a common carrier on and prior-to June 1, 1935 did not

~ amount to an abuse of power.”” Py Sh

And again :

- “Tt must be. true, however, that the Commission, in

determining the nature and extent of the ‘ grand-

~ father’’ rights of a carrier in a particular case, is not

' “ required todo so with mathematical precision, and that,

within reasonable bounds, its estimate of the character

_. and scope of the carrier’s bona fide operation on and .

prior to June 1, 1935, must be, accepted by the courts,

which cannot substitute their judgment for that of the’

Commission.”’ 4

*

’ Inasmuch as bona fide operation onthe ‘‘grandfather’’

date without dispute .existed betweén terminal points and

to and from intermediate points in South Dakota, the only

issue is whether or not there was evidence which tended tq

prove that Appellee Styer was able and was offering to

serve the remaining intermediate points in Minnesota.

His ability to serve these points cannot be questioned. His

trucks daily operated over the routes and through the in-

‘termediate Minnescta points. There was no ‘‘operating”’

or other reason why, on June’ 1, 1939, he could not have

eo.

ee

8

served thine points had the business heen offered. bai |

testified upon this point as follows :

“<The regular operation as sdlastea birt the routes there —

on the map are the routes over.which our trucks go —

daily and that service is given. These trucks go

through ‘these towns over those routes whether or not

"they have shipments for every town on every partion: |

' lar day.” © yi

-

Quotation is from Lower Court’s decision. “Map etenved,

to is applicant’ s Exhibit 1, which shows only the Minnesota :.

segments of the routes. involved.

‘ The evidence which tends to prove that Appellee Styer.

‘was ‘‘offering’’ to serve all points on: these routes, whether

in Minnesota or South Dakota, lies, in part, in his spice

, also quoted by the Lower Court in its decision:

_ “On and prior to June 1, 1935, I solicited business for

‘intermediate points on the regular routes I operated

over. I contacted personally quite a few’ shippers

Bae. ‘It was my purpose from. beginning to

| solicit and render service to. the ‘ee eaaamaaas na

And again: ae put

“The drivers were instructed to solicit business from

all towns on the routes which they passed, to solicit.

. freight in either direction.’’ (Appellant’s Statement

of nee 16, seus Me ee ee A

And again: . | ieee Boi Gee

‘We naka: any freight we were able to get f rom 1 the iz

time we started. We solicited freight from all points

along the route. mee

and Huron prior to June 1, 1935. (Appellant’s State-

ment al csumenee p- 16, Tr. 54 and 55. )

_ “Never at any time did I intend or offer to the public }

simply a non-stop ‘operation between the Twin Cities

, REE EDS EEA ALIS “UA A peat PEPE NERS FO oe

The above testimony ‘nine undenied = anconfradicted

| by any witness, - :

~ To the Lower Court it seemed «probable that Appellee .

_ Styer was referring in his testimony to South Dakota inter-

_ other intermediate points on his routes.’” We submit, how-

_ ever, that the court properly atlopted the .Commission’s

. interpretation of the testimony. The Adriff referred to is ©

_ Exhibit 5, a list of towns printed upon a card and circulated —

’, among shippers in the Twin. Cities by ‘Crabb, Appellee —

Styer’s predecessor, and by the Appellee Styer. The towns

listed were South Dakota points. It was not a ‘*tariff’’ in

present-day form. There was then no regulation of the

rates, and tariffs, as we now know them, wete not employed.

' To those familiar with the transportation fact situation

. here involved the’ reason why South Dakota points only

were listed upon these cards was this:. Shipments originat-.

ing with shippers in Minneapolis and St. Paul, destined to —

_ . intermediate Minnesota points on these routes constituted .

‘intrastate traffic which neither Crabb nor Styer was author- —

_ ized to carry. Neither could pick up a-shipment from

shipper A in Minneapolis and lawfully deliver it-to con-

signee X in Lamberton, Minnesota. The necessary result .

is that a card to be circulated to Twin City shippers need —

carry only the names of the points between which the move-

ment would be interstate. The only shipments moving in- ¢

_terstate westbound over Styer’s routes to Minnesota points

were those which he received by interchange from connect--

ing carriers at thé Twin Cities. These connecting carriers -

_ brought those’shipments into the Twin Cities from Chicago .

and other points outside of ‘the State of Minnesota: These

shipments Styer could lawfully handle. So far as Crabb or

Stver was-concerned, an offer to Twin City shippers would

’ attract shipments from the Twin Cities to points in South

” Dakota-only. (Appellant’s Statement of Evidence, pp. 15

“mediate points. because ‘‘his tariffs apparently cover a

RIM DIMER

as : — ee ee ne eed

; aeice eee Tet MSL A RDO

and 35,-Tr. 46. 47 and-48). Appellants would have the Com-

mission and the Court believe that these South Dakota |

_- - péints named on the cards were the only intermediate points

which Appellee Styer offered to serve. They were the only

points to which Styer could seine an interstate | service to —

Twin City shippers.

We submit that the Lower Court was entirely correct i in

permitting the Commission’s interpretation. of the language :

to stand. Exhibit 1 to which Styer was referring was a map

of Minnesota routes only and his testimony of nécessity sue

referred to Minnesota points. The Commission is daily in-

volved in these somewhat complicated transportation situ- —

ations, and could the'more readily value and weigh the effect

of the fact that Exhibit. 5, being circulated to Twin City

shippers : only, listed South Dakota intermediate areas .

_. points only. ,

-- Additional support for the finding that sii Styer

offered and held himself out to serve these Minnesota inter-

_ mediate route points i is shown on the Appellant’ s Abstract

of Styer Exhibit:7, p. 37 of Appellant’s Statement of Evi- ©

dence. The abstract shows the following points Gomeny

_ served after the grandfather date :

Routel . 4 Route2 ‘Route 3

; Gibbon _ Marshall . {Jackson .

. Norwood _, Gaylord '. Worthington ~

Sleepy. Eye — e > Slayton (2, 4) Lake Crystal

... Tracy. _ “Twanhoe” - - Fairmont

Balaton : Redwood Falls: - Mankato. :

"Lamberton VAs ae Adrian | ° -

Springfield

-New Ulm —

ve

May we add that Appallaxt’ s. abstract of Exhibit 7 is’

‘not complete. The exhibit itself reflects many more ship-—

. ments’ each year of operation from April 1, 1935, to No-

REE OI eine DELETE LAG EET SSL ALO ELD SIE BOIL ES Be SIE EG

*. : . , . a

oF SERRE eee rene ttre z a oe

. Ue

In addition, the Cominission, 3 in its decision, found: that

_ the applicant’s business grew to more than a million —:

per month. .. ;

The point is that ek: 3 on April 1, 1935, projested a

motor carrier business which ‘embraced all intermediate -

points on routes land 2 on the grandfather’ date. He had >

been i in business but. two months. No business is bern full |

grown. It takes time to develop it. It was as Styer testified

‘because of various contacts ts at some of these towns, we

got much more freight there. I was born at Huron and was

well acquainted there, and consequently, Huron developed

faster than at some other points. ’’ = s Statement —

of Evidence, pp. , 5 :

‘The fact that he ‘obtained traffic to these Minnesota points

. after June 1, 1935, simply meant that such traffic was the

-fruit of his efforts at solicitation from the beginning of his

business on April 1, 1935, and extending to and on the

grandfather date of June 1, It corroborated, .we submit, .

his own testimony of solivitation at ‘those points prior to

' and on the grandfather date.

The record contains several like evidences of Styer’s °

- Offer to’serve these intermediate route points i in, Minnesota.

“he above is sufficient to demonstrate that the Commission’s _

finding was based upon ‘substantial evidence.

_. Itis apparent that the principal: question in this case is

'. one of fact. In reaching a conclusion the Commission was

- called upon to weigh the evidence.: It did so. It believed

Styer’s testiniony that he did solicit traffic to and from ~

these Minnesota points and that service thereto was em-*

_ braced within the general plan which he projected: ‘on April

_-A, 1935. ‘It is the law, as we understand it, that the Court

will not. declare invalid the Commission’ s decision where

the case turns upon the weight which, the Commission gives

to the evidence before it: ~

¥ A

7s

12

‘We submit that a substantial question is not presented

to this Court where the principal question: involved :i is the.

weight ‘of the evidence before the Commission.

In McArthur et al. v. United States,'315 U. S. ‘787, eae

L. Ea. 1192, 62 Sup. Ct. Rep. 915, the.court“granted the |

motion to affirm upon the ground that the questions therein

‘invglved were not substantial. A reference to the lower

woth’ ’s decision (44 Fed. 697) indicates to us that the oply

"question there involved was whether or not:there was sub-: °

stantial evidence in support of the Commission’ 8 disposition

of the problem.

: In Alton R. Co. et al. v. United States, et re 315 v. S.

, at 23, the court said:

‘The weighing of such evidence fivolves 4 in part a judg-_

- ment based on the characteristics of the highly special-

ized transportation service involved. Thus, as we have—

said, that function is. peculiarly one. for the Conmis-

sion, not for the’ ‘courts. is ;

And again:

“The question whether his Ginnie ina : pactioglir

_' state was ‘bona fide’ is a question of ‘fact for the Com-

- mission to determine. * * *

‘‘Our task is ended if there is evidence to support the

_ Commission’s finding of bona fides. ”’

In United ‘States ‘et al. v. Carqlina Freight Carriers Cor- :

poration, 315 U. 8. 475, at 481,. the court said: *

‘That involved a weighing of specific. ey idence. in

light of the complexities of this transportation service.

The judgment réquired is highly expert. Only where —

the error is — may we say that the Commission.

wage e /

= again at 483:

©«'We would not disturb ‘those ‘siindialidian if only a 7

question as to the weight of the evidence was involved. -

=

. .

‘‘That entails not sally a . weighing of evidence but the

exercise of an expert judgment on the intricacies of the

. transportation problems which are involved.; That

function is reserved —— for the Commission. ;

‘(Citing cases. ge :

: Loving v. United States, et al.; 310 U. ‘Ss. 609, 84 L. Ed..

1387, 60 Sup.:Ct. Rep. 898, this court affirmed the. ae

court’s decision in Loving v. United States, 32 Fed.

464. In the latter case the three judge court said:

‘Tt is further held that’ the determination of. contro-

in bona fide operation within the immunizing period of:

the Statute, was entrusted to the Interstate Commerce

Commission. See United States v. Maher, supra. This

to review. the proof submitted ‘to the Commission 4 in the |

ve —— case.”’

_ And again: ee ean eee

“The hearing of. evidence is an exclusive function of |

or as little weight to-evidence as it seems proper. —

ing cases. y"

-. The granting of authority undery the “Public Conve nience

and Necessity ”’ application to serve intermediate points on ~

route 3 is plainly correct.

‘ As to the Intermediate. Points on Route3.

-As aforesaid, the Commission, pursuant to proof under

the ‘‘Grandfather’”’ application, granted this Appellee the

right to operate ovér route 3, serving termini of Minneapolis

and St. Paul on the one hand, and Mitchell, South Dakota,

on the other hand, but without service to the intermediate

verted matters of fact arising in-whether a carrier was. .

court is therefore powerless to hear the evidence or _-

.the Commission and it may disbelieve or disregard any ..

evidence as it seems unconvincing; it may give as much: -

0 Saas. dak italia as ok Gta aed ang sks AGONY

aan . 4

points on that route. The. route aatniile — a from.

_ the Twin. Cities through Mankato, Worthington, Jackson.

_ and Luverne, Minnesota, and Sioux Falls, South Dakota,

to Mitchell, South Dakota. :

The correctness of the Commission’ 's finding heii dopenie :

upon proof of public convenience and-necessity, not upon’ —

operation prior to and on June 1, 1935. - In this case, Con-

gress has co nded the Commission to make paramount

the interests of > public. —

- Sioux Falls, South Dakota is the bareest point in popu- _ .

- lation upon the route, and at the hearing much of the testi-8

- mony. centered about need for service at that point. . In its:

report the Commission also devoted much of its discussion

to the showing respecting Sioux Falls. The Commission ;

said, respecting the entire route > : z

“There is other service between the Twin Cities and :

points on applicant ’ s routes in South Dakota by rail

and motor carriers, and no witness testified directly,

that, applicant’s service was absolutely neeessary in

the conduct of ‘his business. However, the te sti ony

of ‘these witnesses, when considered i in connection with -

the evidence of past operations by applicant. coniitel’

continuously since prior to October 15,1935; the volume ~

of freight handled by him and the fact: that the business ©”

’- of other carriers operating in the same territory. has

* also grown during the years immediately preceding the. .

hearing, is convincing evidence that his service is ful-

filling a public need and that we should not require thie,

discontinuance of his existing service between the Twin _

Cities and Sioux Falls, Yankton, and intérmediate

, points on routes 3, 6, 9, 10, and 11 in connection with °

_ operations over the routes applicant is found entitled

to operate by reason of his ‘grandfather’ rights.””

(PP. 40, 41; Commission’s Decision) (Our emphasis:)

The evidence concerning past operations to all points,

including intermediate points, was voluminous. Appellee”

Styer had commenced business. but two months before the

REAR ARY teY URTIE Deaw stay +

15

grandfather date. Thereafter, and in the normal, natural --

course of his business, traffic to and from all intermediate

points was developed: The Commission said: _

: * “Applicant has shown that his business has grown con-

tinuously until in 1938 he was handling more than

‘ 1,000,000 pounds of freight per month.” *» (P. 40, Com-

; mission’ *s Decision. is

We submit that the actual use of saves over a long period

“of time is the highest and best praof“of public. convenience

“wind necessity. The public will not patronize an unneces-

_ sary service—at least for an extended period. *

The Commission has long held that proof of past: opera-

tions is evidence of public: convenience and necessity. -We

cite but a few of the Commission’s decisions thereon: In’

Washburn Storage Company, Extension of Opgrations, 29 )

M. C. C. 116; the Commission said: 7

**We have consistently held that long-continued succesii<

_ ful operation is evidence of public conv enience and.

necessity. ’’ .

In System Transfer é Storage Co., BMC, 6 Mee. , P

“the Commission said: .

. “The fact that applicant has operated as a carrier of

~ household goods in interstate commerce ‘by motor ve:

| hicle sincé ‘many years .prior to June 1, 1935, raises. a

<S presumption that the public-eonvenience and necessity

require a reasonable extension of the territory serv ed

in proportion to the grovtth of eee s business, r «

In’ Nathan I. Snyder, Common. Carrier Applicttion, 7 7 M.

C. C. 500, where Snyder had been in business for six or.

seven years, the Commission held that: _

‘“The performance of such operations fora lenis period ;

. of time * * *. and céntinuihg requests. from cus- . -

‘tomers to perform such service are evidence that appli-

cant is able to continue to render the same service as_..

oe

Jae

—_

7 he has ii in the past, and that the public convenience and

necessity Fequire continuance of such operations.”” °

In Brown Motor Freight Lines, Inc., Common Carrier Ap

\ plication, 2 M. C. C. 667, the Commission said:

“Applicant has served the- public for a substantial pe- -

riod and its business has been steadily growing: In -

* the absence of facts showing the contrary, this would

be one method of determining a * convenience and

necessi

Tn Dougherty Storage and Van Co.,3 M. c, C. 427, the Com-

mission said:

‘*Successful operation’ in the past creates. a ‘presuinp-

tion of public convenieuce and necessity requiring the

continuance of such operation. nied

. Appellants’ “abstract of Styer’ ~ Exhibit No. 7” and

“abstract of Styer’s Exhibits 19 and 20”’, attached to their

Statement of Evidence, shows the. following shipments to

the named intermediate points on route 3: Jackson, Man-

kato, Lake Crystal, Worthington, Fairmont and Adrian.

Luverne and LeSueur are omitted from appellant’ . abstract,

but shown in Styer’s Exhibit No.7.

‘The above are the principal points upon the. route.

| Appellants’ abstracts, however, are not completé. They are

taken’from the exhibits of record for proof of: past opera-

tions. Appellee did not offer exhibits showing each and

of the multitude of shipments made between June 2,

1935, and the date of'the hearing in 1938. _ He selected only

certain months of operations; hence, appellants’ abstracts

cannot he complete as to the number of eayeaete or points

served. .

There was abundant evideheo of past epetalians. The

Commission rightly considered the fact of past public use

as evidence of public convenience and necessity. ‘That con)

"clusion cannot be successfully assailed. 3

= . /

ae ee te

3 The Lower Court disposed. of this’ question in a some-

what different, hough entirely adequate, manner: ‘

“The plaintiffs argue. that Styer’s amendment io his

application was equivalent to an assertion that he was

unwilling to serve intermediate: points. in Minnesota

| _ on route 3, and that it deprived the Commission of

* authority to grant him the right to serve such points.

ee oe

' We think that,this argument is-too narrow and legalis- .

tic. The primary concern of the Commission with

Fespect to operations over route 3 was the public inter-

est and the furtherance of the transportation. policy

‘declared in the Act.. We have no doubt. that under

§ 207 (a) and § 208 (a), the Commission could condi-

_ tion its grant of operating rights ever route 3 to meet

its conception of what publit convenience and neces- |

_ sity required of Styer. That Styer was not unwilling

. to accept the full grant of authority made by the Com-

mission has since been demonstrated. by his actual

acceptance and use of it. In urging that Styer received

greater operating rights than he asked for or was

' -willing to accept, it seems to'us that the plaintiffs are

_~ Urging a grievance which is not theirs. she

In short, the Court has. said that under Section 207 (a)

requiring proof of present or future public convenience

and necessity, the Commission has the ‘power to: require

these. intermediate points.to be served. The Court also ~

states that thé same power exists under Section 208 (a).

Section 208 (a) provides, in substance, that at the time of:

the issuance of a certificate under either Section 206 or Sec-'

tion 207, the Commission may attach such reasonable terms

and conditions as the public convenience and ‘necessity may

‘require, and all of such terms and conditions as are neces-

sary to carry out the national transportation policy.

_ As aforesaid, we submit that the proof of past.operations

and the volume of freight handled by Appellee during the

three. years preceding. the hearing are ample we of

public corivenience and necessity. The Commission, if \gct- -

ing under Section 208, had ‘substantial reason for requir-

ing service to these intermediate points. The proof of need

for service to. Sioux Falls, South Dakota, was compelling —

and is not-here questioned. by the- Appellants. ‘As a con- ©

sequence, the Commission correctly found that Sioux Falls,

‘South Dakota, the largest intermediate point upon. the

route, required the continuance of the service. In order to

_ serve Sioux Falls andiMitchell, South Dakota, applicant’s

trucks must daily pass through the intermediate Minnesota

~—~points. All trucks are not loaded to capacity. . In this

northwestern area, the. principal-movement_of goods is is -

westerly., The ‘‘backhall’’’is the carrier’s problem. It is

our view that the Commission desired to avoid the wasted

_ transportation resulting from movement of empty trucks,

or trucks not loaded to capatity, through | these intermediate

Minnesota points. It is so enjoined by the national trans-

portation policy. Therein, the Commission has commanded. .

the ‘‘prompt, safe, adequate, vaigereer hse: efficient serv- .

ice’’, and to attempt ‘to attain the end of developing.a neces-

sary transportation system by water, highway and rail ade-

quate to meet the needs of commerce of the United States.

Under this declaration of policy, there can be no question —

concerning either the ‘power or the wisdom of requitement

. ofthe conditions — }

vas

" astound Operation.

- hpppellants admit that an eastbound operation was cor-

ducted by appellee during ‘the ‘‘grandfather”’ period. They

_ dispute the characterization given it by the Commission.

The Commission held that the eastbound operation was in

_ fact a regular route operation and not an -irregular route

service. The appellants urge that the eastbound operation

was an irregular route service and, i in | addition, claim that -.

19

. such ‘service was the only type of operation then being

ae by appellee. Neither of the appellants’ claims is

- Appellee’s testimony is quoted at length in~the

CEI EIS BET! PS PEE,

Somer dnbaca: Wes femmes aaa by appellee is mis-~

construed by appellants. It.is clear from the reading

the regular “route operations between the Twin Cities and

tion, an irregular route operation—meaning between South

Minnesota. ~ Because the ‘‘back-haul’’ or eastbound ton-

_able tq pick up shipments in South Dakota and transport

them to any point in Minnesota.*. This irregular operation

_ was in addition, and, to a degree, super-imposed upon. his

- . regular operations, The testimony quoted in the Court’s

decision makes his claims sufficiently clear.

The Commission discussed these eastbound - operatioris

inits, decisions at pages 38 and 39:

been engaged in the transportation of general com-

modities over irregular routes between points in that

‘father’ application, on the one hand, and on the other,

points in Minnesota. He explained that he did not

‘keep éomplete records during the first few months of

moving from South Dakota points to points in Min-

nesota which were not handled through his terminal at

the contrary such shipments were covered only by

memoranda of the drivers on shippers’ bills of lading,

copies of which were not retained. : He testified that in

this service he hauled varietal cominodities, including

*This territory was later reductd by amendment.

‘thereof that Styer had two types of operations: (1) one, -

Mitchell, South Dakota in both directions, (2) and in addi-

Dakota ints and all points within a described territory in

__ nage out of South Dakota was light, Styer desired to. be

“In addition to the operations conducted over regular |

routes described above, applicant also claims to have .-

part of South Dakota described in his amended ‘grand- -

operation and that no billing was made.on shipments.

the Twin Cities, where all of his billing was done. On-

ea eae Tae te t = ES LESSER ¥ = aR RIAN

“pothtons farm, = lies conned - goods, construction ~

machinery and supplies, building supplies and ma-

- terials, machinery, printing presses, and: household ©

goods. Applicant’: s testimony relating to irregular |

“ route operations is supported by reference to only nine ©

specific shipments handled on and prior to June 1, 1935,

consisting of one shipment of potatoes from Atkinson,

| Haves to Huron, one shipment of malted milk from —

_Huron to White Bear,.Minn., and-one shipment of mer-

chandise from St. Paul to Miller, S. Dak. Although .

applicant contends that records covering all such move-

ments during that period are.not available, an éxamina-

tion of the exhibits showing all movements during»

_ after 1935 ‘for which complete abstracts of shipments ©

| were furnished, and during which period no: lack ‘of

- documentary evidence is claimed, shows that: out of ,

, approximately 3,300 shipments handled only 13 ‘ship-

- merits are shown to-have moved to-er-from only seven

' points which are not on his regular-routes. While the

testimony of applicant as to operations over irregular -

routes is substantiated by-reference to particular. ship-

ments handled before June 1, 1935, might warrant‘

granting of authority to operate. over ‘irregular routes, .

the complete documentary evidence ‘covering a _sub-

sequent period during 1938-strongly indicates that ap- .

plicant’s business has evolvec into that of a ‘regular-

route operation with only occasional or sporadic’ trips

‘ _ to off-route points or points in irregular-route terri-

tory. We conclude that upon the evidence we are not —

warranted in granting ‘applicant authority to. trans-

port either general or specific commodities over ir-

regular routes wader the ‘grandfather’ —_ of the

act.”’

It will- bé noted that \ willen; for a period after the

grandfather date, earried\ some 3,300 shipments from

. South Dakota to points in Minnesota. All were destined to

Minnesota points on his regular routes except 13 shipments _

which went to points not on.snch routes. This experience,

ripen: os we LPI ESO INS NEAT ERIE LTE ILE IEE TE 0

after the grandfather date, was correctly construed by the

Commission to reflect the true nature of his operations and

solicitation on or before June 1, 1935. The destinations ” area

ing on the grandfather date. The shipments, in fact, were

the result of his solicitation efforts in — * the aaa

ness,

‘The Commission. denied the sieeaat? 8 slide how ‘trregu-

‘lar route service between South Dakota to Minnesota _

points, but granted the right to continue his regular route =

- operation. appellee an

~ authority which conformed to the facts as shown by . the

_ record. -

_ “There was no Pisin” by the Commission of appel-

Jee’s business: from.an irregular eastbound operation to a: ‘\

regular route operation. As aforesaid, the- Commission

“granted appellee the type of. rights the facts warranted. °

- In its opinion, the facts manifested an eastbound regular. . |

route operation and did not show an irregular route opera-

tion to a large Minnesota territory as his application re-

quested. Hence, it is clear that the rule of U.S. ¥. Maher,

307 U. S. 148, cited by appellant, has no application to the

instant case. “Maher conducted an irregular roufe_busi-

- ness, and-nothing else, on the grandfather date.. There-

after, he commented ‘a regular ropte operation and

abandoned the’ irregular type of operation. He changed

from one type to another. It was held that his regular route

‘operation could not continue without proof of public con-

venience and necessity. Here appellee, onthe grandfather

‘date, conducted the regular route operation and in addition .

thereto claimed that he operated an irregular service to a

large Minnesota territory. The Commission. granted the.

_ first, but denied ‘the second.

~.» The Commission’s disposition of the problem was one

resting solely i in the conclusions it reached.from the evi-

ee Se x = ee

_. . denee in the reeord. Again the question, i in essence, is one

of fact and. inyolved the weighing of testimony. Ra)

The Court-will not disturb such findings of the Ciaaias

sion.. The question ie: not — and no farther argu-

ment i is A \ os

re . : ae woe

: appstiante seek to ‘inialee inhi of. the incident: that at the

~~ hearing the applicant Styer did not claim the Tight to serve

ce intermediate points in Minnesota. Such was not the effect .

-of the stipulation or amendment. By the stipulation under

the ‘‘grandfather”’ application and the amendnient -under

. . the ‘public convenience and’ necessity”’ application, Styer

sought to exclude service in interstate commerce between

Minnesota intermediate points only and in between those ©

intermediate Minnesota points and points outside the State

* of Minnesota. (Statement of evidence page 18.) (Para-

graph 3 of appellee’s motion attached to appellants’ state-

ment of evidence.) _ Appellants have sought ‘to make it

appear that the. stipulation and amendment excluded all

service to or from these intermediate points in Minnesota.

‘Such was neither the language nor ‘the intent. Styer at-

- tempted to: exclude service between intermediate points in.

' Minnesota only upon these routes. This would have elimi-

-- nated only the transportation of shipments taken by Styer

through interchange with other outstate carriers at the -

Twin-Cities. Styer continued service to, from and between

these intermediate points in Minnesota from’ the beginning,

of his business through the date of the hearing in Novem-

-,ber 1938, and notwithstanding his offer of restriction at

the hearing continued the same service thereafter-until the

Commission, by its decision, directed that there be no cessa-"

tion of it.: : |

The dppellants urge that in some saniacbiahied way the ©

— is bound by the claims of parties to these pre:

\ °

. ceedings. This is at an ‘abies ‘uciaiien in the.

*. sense of two private litigants before a Court with a dis-

pute concerning ‘private gights. “The paramount concern

\of Congress and the Commission ‘is the public interest and

= of the national transportation policy. Con- .

sq jiad vested thie. Commission with great powers. These

‘were’to be exercised according to its judgment as to ‘the,

‘ needs of the public. In a réal sense, there are three parties

ie to..the proceeding, viz: the applicant, the public and the

protestants.. When the .public’s interests are primary, the '

Commission i is free to disregard the claims and stipulations. -

_. of the parties. It would be strange, indeed, if a carrier, a

’ public utility, could at, will or by stipulation or amendment

or. otherwise dictate to the Commission the natnre and -

éxtent of the authority it is to receive or tlie nature and,

consequently, the extent of the service it is to perform. If

- the carrier could so dictate, he could and would serve only,

the larger and niore profitable’shipping points along these

routes and leaye the smaller communities without trans- /

portation serviee. Even a railroad cannot a abanden lines

- without authority. if a motor-carrier were legally free

“to do so, he could -rejeet unprofitable types of freight and

accept only thosé shipments which were profitable. The

national transportation policy is designed to promote ade- .

quate, economical and efficient service to the end of estab-

lishing a national transportation system, and envisions the

precise contrary of the contentions advanced by the appel-

lant railroads.’ :

'. The national transportation policy provides :

“It'is hereby declared to be the national transporta-

tion policy of the Congress ‘to provide for fair and im-

partial regulation of all’modes of transportation sub-,

ject to the provisions of this. Act, so administered as

' to recognize and preserve the inherent advantages of —

each; to promote safe, adequate, economical, and effi-

cient service and foster sound economic conditions in

a

; siviaiiiciniien nit: among 5 the ovietel'e carriers ; to en :

. eourage the establishment and maintenance of reason. _

. able charges for transportation services, without un-

- just discriminations, undue preferences or advantages,

or unfair or destructive competitive practices; to co-

_.." operate with the several States and the duly authorized

+ . officials thereof; arid to encourage fair wages and.

equitable working conditions ;—all to the end of de-

veloping, coordinating, and preserving a national

_ transportation system by water, highway, and rail, as

- well as other means, adequate to meet the needs. of the -

commerce of the United States, of the Postal Service,

. and of the national defense. All of the provisions of

_- this Act shall be administered and enforced with a view -

' to carrying out the above declaration of policy.”’

Teen the point raised, the Lower Court said: Eos

“The plaintiffs argue - that Styer’s amendment to

his application was equivalent 'to an assertion that he

.. was unwilling to serve intermediate points in Minne-

sota on route 3, and that it deprived the Cofnmission

of authority to grant him the right to serve such points.

“We think that this argument is too narrow and.legal-

istic. 'The primary concern of the Commission with |

respect.to operations over route 3 was the public inter- -

est. and the furtherance of the transportation . policy

- deciared in the Act. We have no doubt that under

§ 207(a) and § 208(a), the-Commission could condition _

-its grant of operating rights over route 3 to meet its

_eonception of. what public: convenience ‘and necessity —

‘required of Styer. That Styer was not unwilling to

accept the full grant of’ authority made by the Com-

mission has since been demonstrated by his actual ac-

-ceptance and use of it.’ In urging that Styer received

greater operating rights than-he asked for or was will-

ing to accept, , it seems to us. that the plaintiffs are

. urging a grievance which is not theirs. : ;

‘one. points out, as the Court found, that he ae

the full grant of authority made: by the Commission and

hes since, as previously, rendered the service required

by the certificate issue. He also urges, as did the Court, °

that the ‘appellants are here urging a grievance which is.

not theirs to urge. The protestants. are ‘‘parties’’ to the.

' proceeding, but they are not defendants i in the usual sense.

Where the: public is a more: ‘important, ‘ ‘party’? and its:

interests dictate a result contrary. ‘to these appellants’

_ Claims, the public must prevail.

"At all events, whether to regard Or, dicreward the ane:

’ lee’s- interpretation and ‘claims concerning his rights and

duties was an administrative question for the Commission’s

determination: Whether or not the. proferred restriction’ “

would complicate the authority granted was a problem for

administrative consideration and disposition. It is clear

to us that an alarming chaos could result if an applicant

"> earriér, a public‘ utility; could pick and choose the points _

’ he desired to serve. - If the Commission were to authorize.

a carrier to serve. Point A, ‘permit him to avoid service to_

point B, authorize point C and omit point D—all on: the

‘same route and but a few miles apart—it would result in-

‘confusion to shippers.. . There ‘are thousands upon thou-:

sands of small towns in this country. A large shipper -

should not be forced to ascertain whether carrier X serves

points B, C and D, or whether carrier ‘Yserves point “A ee

and carrier Z serves point KE, all on the same route. ‘This

result does not promote eficient service to the public. Such

Situations must have impressed the Commission because

- jt refused. fo permit the restriction Styer offered.” .

Adminjstrative. questions will’ not. be disturbed by the

‘Courts so long as the Commission: stays within - bounds

of its statutory powers. «

_.: Rochester Telephone Corporation v.° United States,

~ . 807 U.S. 125, 59 Sup. Ct. Rep. 754. -

_ Kansas City S. R. Co. v. United States, 231 U. 8. 423,

58 8 Law Ed., 296. _

|“ Upited: States: v. Caroling Freight Cette Corpine

iC tion, 316 U.S. 475. |

yA Federal Radio Commission y. Nelsom Br Bros. Bond

Be POPES. Mtg. Co. C198H), 999 UF 906, 316, 377, TE Ye

Reged 4166, 53 8. Ct. 627, 89 A. L. B.406. |

- Yaaguanel: as the wisdom of the diapesition: of such aes

tions is for the administrative body and not forthe Comm

, oa - issues concerning them are not substantial.

5-744

‘ CONCLUSION.

. We submit that the questions Gaieed are 80 unsubstan-

R* tial as not to‘require-further argument. ;

- * . The only questions raised are: (1) the weight to be

| given the evidence, and (2) administrative questions con-

cernjng which the Court cannot substitute its judgment for

that of the Commission. _ The law is, and ought to be, that

these questions are not for.the Courts, but for the expert

judgment of the Commission. No other questions are here

- presented: 5 : )

; ; | Srmcarmp Mackats Cacunes & Moosg :

AND PERRY R. Moorz,

: Fer ‘opelleg Styer.

4

<i.

(8958)