The opinion of the court was delivered by: WORTENDYKE
In this action under 28 U.S.C. §§ 1336 and 1398, the court is asked to enjoin and set aside orders of the Interstate Commerce Commission, dated respectively March 16, 1959 and February 3, 1960, which denied plaintiff's petition for reconsideration of the Commission's decision of September 24, 1958 in Carlee Corporation vs. Northern Valley Transfer, Inc., Docket No. 32353. The procedure prescribed by Chapter 157 of Title 28 of the U.S.C. has been followed, and this opinion embodies the decision of the three-judge court which heard the application and which was constituted in accordance with 28 U.S.C.A. § 2284. Plaintiff asserts that the Commission's denial of the petition for reconsideration deprived plaintiff of due process of law guaranteed by the Fourteenth amendment to the United States Constitution.
Plaintiff (Northern Valley), is a New Jersey corporation, a common motor carrier of freight in interstate commerce, operating under Certificate No. MC-106209 issued by the Commission as required by 49 U.S.C.A. § 306. On January 9, 1958, Carlee Corporation (Carlee), a manufacturer of wadding and a shipper in this case, filed with the Commission a complaint charging that the rates charged by Northern Valley on and between June 19, 1956 and January 14, 1957 for shipments of wadding, were inapplicable, unjust and unreasonable and in violation of Sections 216 and 217 of the Interstate Commerce Act (Act), 49 U.S.C.A. §§ 316 and 317. Hearing upon Carlee's complaint was held before the Commission's examiner, and plaintiff appeared and participated therein.
The Examiner found and reported as follows:
(1) The shipper's operations were those of a converter.
(2) The commodities shipped consisted of cotton, carded and combed by machine, and its fibers expanded and oriented in relationship to each other to produce a fluffy web of material. This web constituted a non-woven product well within the dictionary definition of wadding. The product's strands were sprayed with acetone as a bonding agent. It was described in the shipping papers as wadding and was intended to be used as padding by the textile industry. A sample submitted to the United States Testing Company, Inc., a commercial laboratory, was found to be 100% Cellulose acetate.
(3) The commodity was cellulose wadding.
(4) The shipper had no knowledge of what the classification of the commodity should be, and no application was made to the National Classification Board for a rating.
(5) The freight bills contained the names of shipper and consignee, number of pieces or rolls, width and length of the wadding, and its total yardage. The rates charged were 0.5 cent, 0.75 cent or 6.75 mills per lineal yard. No weights were shown but each roll was stamped with a code number which would reveal the weight per yard. The total weight of the shipment could be computed from the yardage.
(6) Shipper priced the wadding to its customer upon a per ounce delivered basis. This price was projected successively to a per pound and then to a per yard basis for purposes of arriving at the carrier's charges. Because of the thin margin of profit, shipper advised carrier that the shipper could not pay over a certain amount per lineal yard for transportation. Accordingly the shipping rates upon a lineal yard basis were orally agreed upon by shipper and carrier.
(7) The agreed upon shipping charges were outside the scope of the published tariff.
(9) The density of the wadding averaged 1.34 pounds per cubic foot. The material was not plastic and therefore classification Item 77682 was not applicable to the material.
(10) The oral shipping rate agreement, based upon a charge per yard, was illegal because such charge was not on file with the ...