L. Ed. 971 and the Commission decision following it in Carolina Freight Carriers Corporation -- Common Carrier Operation, 43 N.C.C. 221. It might be well therefore to briefly outline the scope of the parent Supreme Court Carolina opinion.
First of all (315 U.S. at page 480, 62 S. Ct. at page 725) it clearly states the necessity for a certificate applicant under 206(a)(1) of the Act to have been "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". It holds, 315 U.S. at page 480, 62 S. Ct. at page 726 that 'The precise delineation of the area or the specification of localities which may be serviced has been entrusted by the Congress to the Commission.' It emphasizes that the test called for by the Act is one of substantial bona fide actual operation as distinguished from incidental, sporadic or infrequent service or a mere holding out to serve a specified area. It repeats, 315 U.S. at page 481, 62 S. Ct. at page 726, what was said in Alton R. Co. v. United States, 315 U.S. 15, 22, 62 S. Ct. 432, 86 L. Ed. 586, that 'the purpose of the 'grandfather clause' was to assure those to whom Congress had extended its benefits a 'substantial parity between future operations and prior bona fide operations". Passing on from the allowance of the certificate the court then took up the restrictions which the Commission had placed on the articles the carrier possessing a 'grandfather' certificate was allowed to transport. As to those the court held, 315 U.S. at page 483, 62 S. Ct. at page 727, that where a common carrier 'has carried a wide variety of general commodities, he cannot necessarily be restricted to those which he carried with more frequency and in greater quantities than the others.' Continuing, the court pointed out that there might be substantial evidence of a bona fide operation as a common carrier of a large group of commodities or of a whole class of commodities though the evidence as to any one article was not substantial and held the Court, 315 U.S. at page 487, 62 S. Ct. at page 728 'Once the common carrier status * * * had been established as respects those commodities, shipments to any parts of the authorized territory, or to any of the authorized points therein, should have been permitted, in the absence of evidence that the (carrier) as respects carriage between specified points had restricted its undertaking to particular commodities'.
The Commission's decision in the issue before us in no way conflicts with the Carolina opinion. The foundation of the latter is that the 'grandfather' applicant must have been in bona fide operation as a motor vehicle common carrier on the routes or within the territory applied for on and after June 1, 1935. Here the Commission, with substantial support in the record, has found that plaintiff has failed to establish this fundamental requisite. The other problems in the Carolina litigation did not arise and could not have arisen until after the common carrier status in the requested territory had been established. They had to do with the type or classes of goods the carrier is authorized to transport over the territory previously granted him and with his servicing of any part of that territory. We never reach those questions. And there is no contradiction between the instant order and the decision of the Commission following the further hearing of the Carolina application after the opinion of the Supreme Court in the Carolina case. The Commission quite properly followed the directive of the Supreme Court in working out the factual situation involved.
The defendants urge affirmatively that plaintiff is guilty of laches. We think that this is glaringly apparent. For some twelve years it has operated under its original certificate. It was not until after the final denial of April 20, 1953 by the full Commission of its 'follow the traffic' application that it questioned the validity of the initial procedure. Conceivably there might be some cogent reason which would justify that sort of conduct, but plaintiff advances no such reason. Its entire defense to the charge of laches consists of the statement that 'having brought its 'grandfather' application to conclusion without advice of counsel, having failed until 1953 to enlist the aid of counsel for the purpose of inquiring into its rights under the 'grandfather' clause of Section 206(a), and being until then ignorant of the extent of its rights under that section, (it) can hardly be charged in an equitable action with laches. Patterson v. Hewitt, 195 U.S. 309, 25 S. Ct. 35, 49 L. Ed. 214. There is the further fact, as found in the case just cited, that in determining the question of laches in suits in equity, not only lapse of time but detrimental change or lack of detrimental change in the position of adverse parties is material to be considered upon the question whether the suit was brought without unreasonable delay. There has been no damaging change here in the position of the principals or in the position of the protesting truck lines or railroads.'
The statement fails completely to offer any reasonable excuse for plaintiff's utter lack of diligence. It blandly ignores the possibly damaging changes of position to the defendants directly and to a large percentage of the motor vehicle common carrier industry operating under 'grandfather' certificates. All of those grants would be, at the very least, subject to attack. A chaotic condition could hardly be avoided. Nor does the Patterson decision, cited as favorable to plaintiff's position, do other than clearly show its untenability. The Court there holds that fundamentally, equitable laches depends upon the circumstances of the case. In that litigation a delay of eight years was called inexcusable. In this action the circumstances indicate unmistakably that the doctrine of laches must be applied to plaintiff's twelve year delay in filing its petition.
In view of our disposition of the complaint in this cause on the grounds above discussed there is no occasion at this time for our passing upon the defense contention that this suit is barred by the statute of limitations for civil actions against the United States. 28 U.S.C. § 2401(a).
The complaints in both actions will be dismissed.
Separate Findings of Fact and Conclusions of Law in each case will be filed with this opinion.