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SMITH & SOLOMON TRUCKING CO. v. UNITED STATES

June 20, 1966

SMITH & SOLOMON TRUCKING COMPANY, Plaintiff,
v.
UNITED STATES of America and Interstate Commerce Commission, Defendants, and C. I. WHITTEN TRANSFER COMPANY, Intervening Defendant



The opinion of the court was delivered by: AUGELLI

In this action, plaintiff Smith & Solomon Trucking Company (S. & S.), seeks to set aside and enjoin enforcement of certain orders of defendant Interstate Commerce Commission (Commission) that resulted in the grant of a certificate of public convenience and necessity to intervening defendant C. I. Whitten Transfer Company (Whitten), in a proceeding entitled C. I. Whitten Transfer Company Extension - Simsbury, Conn., Docket No. MC-47142 (Sub-No. 86), and to have said certificate declared null and void. The United States of America is joined as a statutory party defendant under 28 U.S.C.A. § 2322. Jurisdiction is invoked under 28 U.S.C.A. §§ 1336, 2321-2325, and 5 U.S.C.A. § 1009(e). This three-judge court has been convened pursuant to 28 U.S.C.A. § 2284 for the purpose of hearing and determining the case.

 Both S. & S. and Whitten are common carriers by motor vehicle, operating under certificates of public convenience and necessity issued by the Commission, and both carriers have authority to transport, in interstate commerce, explosives and other dangerous articles. The record, as it comes to us, reveals the following:

 On March 3, 1965, Whitten filed with the Commission an application to extend an existing operation so as to enable it, as a common carrier by motor vehicle, to transport over irregular routes, Class A, B, and C explosives and blasting supplies, materials and agents, between Simsbury, Connecticut, and points in Massachusetts, New Jersey, New York, Pennsylvania and Vermont. The application had attached thereto a number of appendices setting forth the number of motor vehicles intended for use in the proposed operation; a statement of applicant's current financial condition; a map showing applicant's then existing authority and proposed extension thereof; and copies of all certificates, with their subnumbers, that had been issued to applicant by the Commission.

 Notice of the Whitten application *fn1" was published in the Federal Register on March 25, 1965 (30 FR 3897), with an announcement at page 3894 (30 FR 3894) that the [Whitten and other] applications there published would be governed by the Commission's Special Rule 1.247 *fn2" (49 CFR 1.247), and that a protest to the granting of an application "must be filed with the Commission within 30 days after date of notice of filing of the application is published in the FEDERAL REGISTER." The announcement further stated that the failure "seasonably to file a protest will be construed as a waiver of opposition and participation in the proceeding."

 No protests were filed to the Whitten application within the prescribed 30 day period, whereupon the Commission, by order dated May 6, 1965, directed that the application be handled under the Commission's modified procedure, and that the applicant comply with the provisions of Rules 1.45 to 1.54, inclusive, of the Commission's General Rules of Practice. *fn3" The order then fixed June 16, 1965, as the date on or before which Whitten was required to file verified statements in support of its application. Pursuant to the Commission's order of May 6, 1965, Whitten filed with the Commission, on May 13, 1965, the sworn statement of its vice president and general manager in support of its application, accompanied by the sworn statement of a supporting shipper, The Ensign-Bickford Company (Ensign-Bickford), located in Simsbury, Connecticut.

 The Whitten statement recited that its application was filed at the request of Ensign-Bickford; that the latter had experienced difficulty in interlining shipments, particularly small shipments; that other carriers having authority to transport explosives had little or no interest in this type of operation; that Ensign-Bickford required a complete service to handle its full line of products; that Ensign-Bickford indicated that its shipments would range from small, less than truckload, to full, truckload shipments, of both straight and mixed classes of explosives, and also mixed shipments of blasting supplies and materials; that if additional equipment was needed to handle the Ensign-Bickford shipments, such additional equipment would be obtained; and, likewise, that if additional terminal locations were required in the territory sought in the Whitten application, that such terminals would be established and maintained as required. The statement then concluded by saying that the Whitten "application was made for a non-radial, irregular route authority, which, by itself and when tacked with the existing authority of C. I. Whitten Transfer Company, would offer the complete service requested by the shipper." Annexed to the statement were exhibits showing Whitten's then existing permanent authority and the proposed extension thereof, a balance sheet of its current financial condition, a list of the equipment operated by it, and the comprehensive safety program under which Whitten operations were conducted.

 The supporting Ensign-Bickford statement recited that the company had been in the business of manufacturing and distributing various items of explosives and blasting supplies for over 100 years; that it had become engaged in the production and distribution of new commodities for use by the aerospace industry and several departments of the United States Government; that after investigating all modes of transportation, it found a real need for a single line specialized motor carrier capable of giving a complete service in the transportation of straight and mixed loads of different classes of explosives, blasting supplies and materials between points in the eastern United States; that in order to compete on even terms with other manufacturers in this specialized field it was essential that economical and efficient transportation services be made available to it by a motor carrier experienced and knowledgeable in handling explosives; that Whitten possessed the necessary qualifications and was fully capable of servicing the requirements of Ensign-Bickford; that it supported the Whitten application and would use the service if said application was granted. The same statement then referred to the need for an irregular route, non-radial carrier and stated that if Whitten was granted the authority sought in its application, "it will be able to, through tacking and interchange, give Ensign-Bickford an excellent interline as well as single line coverage of territory, to, from and between points presently requiring service, and also points to which service will be required in the immediate future." The statement concluded with an estimate that the anticipated total annual volume of shipments by Ensign-Bickford, of all commodities, would be in excess of 10,000,000 pounds.

 In due course, the Whitten application was considered by the Commission, by its Operating Rights Board No. 1. In its order of May 20, 1965 (service date May 26, 1965), the Board noted that the application was unopposed, did not involve the taking of testimony at a public hearing, or the submission of evidence by opposing parties in the form of affidavits, and that the public interest would best be served by disposing of the matter without issuance of a report and recommended order. *fn4" The Board further noted that the evidence submitted in the form of verified statements in support of the application amply warranted the grant of authority requested by Whitten. Then followed the Board's finding:

 
"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 Classes A, B, and C explosives, and blasting agents, blasting materials, and blasting supplies, between Simsbury, Conn., and points in Massachusetts, New York, New Jersey, Pennsylvania, and Vermont; that applicant is fit, willing, and able properly to perform such service and to conform to the requirements of the Interstate Commerce Act and the Commission's rules and regulations thereunder; [and] that an appropriate certificate should be issued, * * *."

 The order, by its terms, became effective on the date thereof, May 20, 1965.

 S. & S. now enters the picture for the first time. By letter dated June 21, 1965, S. & S. informed the Commission of its intention to intervene in the Whitten proceeding. On July 1, 1965, it filed with the Commission a petition praying for a waiver of rules, for leave to intervene, and for permission to file an attached petition for reconsideration of the May 20 order and oral hearing. Since more than 30 days had elapsed since publication of notice of the Whitten application in the Federal Register on March 25, 1965, S. & S. sought to explain its failure to file a timely protest by alleging that the operations proposed by Whitten under the May 20 order went far beyond the activities S. & S. could reasonably anticipate from the wording of the Whitten application or from the statement submitted by the supporting shipper, Ensign-Bickford. S. & S. claimed that Whitten intended a non-radial operation, whereas the Whitten application was reasonably susceptible of the interpretation put upon it by S. & S. that only a radial operation was involved. *fn5" Another reason urged in support of intervention was the alleged lack of sufficient notice of Whitten's intention to tack or join its newly acquired authority with that already possessed by it. S. & S. also stated that it refrained from protesting the Whitten application "out of an honest desire to avoid burdening the Commission or appearing to be quarrelsome * * *." Specifically, the relief sought by S. & S. was limited to a request that the order of May 20 be modified to provide for radial operation only, and to prohibit joinder or tacking by Whitten of its newly acquired authority with pre-existing authority. *fn6"

 We now digress to point out that prior to the filing of the S. & S. petitions on July 1, 1965, Ensign-Bickford, by letter dated June 4, 1965, requested the Commission's permission to withdraw its supporting statement of the Whitten application, giving as a reason therefor that "new developments" necessitated a reappraisal of its motor carriage service. Following this, Ensign-Bickford, on June 18, 1965, filed with the Commission a petition to intervene in the Whitten application proceeding, and at the same time tendered for acceptance its petition for a reconsideration of the order of May 20. In addition to an alleged "change in circumstances", Ensign-Bickford also stated that it did not "now see a need for the type of service proposed and that the authority if issued will not be used by this Company to meet its motor carrier transportation needs." A similar application for leave to intervene and for reconsideration of the May 20 order, and in opposition thereto, was filed with the Commission on June 25, 1965, by a Whitten competitor, the Tri-State Motor Transit Co. (Tri-State) also a common carrier by motor vehicle, with authority to transport explosives and related commodities. However, on July 19, 1965, Ensign-Bickford, and on July 26, 1965, Tri-State, requested the Commission to be permitted to withdraw their respective pleadings filed in opposition to the Whitten application.

 By order dated October 18, 1965, effective date October 19, 1965, the Commission, Division 1, acting as an Appellate Division, permitted Ensign-Bickford and Tri-State to withdraw their respective pleadings. By this same order of October 19, the Commission denied the S. & S. petition for leave to intervene, and rejected the petition tendered by S. & S. for reconsideration of the May 20 order "for the reason that no sufficient or proper cause appears for permitting petitioner [S. & S.] to ...


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