Johnson v. United States

HANEY, Circuit Judge.

Plaintiff has filed this action to set aside an order of the Interstate Commerce Commission. The issues hereinafter discussed arise from the denial by defendants of allegations in the complaint.

A. Fornaciari commenced operating as a common carrier by motor vehicle between Seattle and Los Angeles in January, 1935. On February 7, 1936, he applied for a certificate of public convenience and necessity under § 206(a) of the Motor Carrier Act, 1935, 49 U.S.C.A. § 306(a), commonly called the “grandfather clause”, authorizing continuance of operation as a common carrier by motor vehicle, or, in the alternative, a permit as a contract carrier by motor vehicle, of general commodities between points in California, Oregon and Washington, over irregular routes. On June 7, 1937, the Commission approved the substitution of Williams Brothers, Inc., as the applicant in lieu of Fornaciari who had sold his rights to the former. Williams Brothers, Inc., went into bankruptcy and on April 18, 1940, plaintiff purchased from, the bankrupt estate whatever rights the bankrupt had in the operation for which a certificate was sought.

The Commission found that from February, 1937, to June, 1937, Fornaciari handled only traffic solicited by and turned over to him by Hendricks, another operator, and that thereby he had abandoned his own operations as a common carrier.

Section 206(a) of the Motor Carrier Act, 1935, 49 U.S.C.A. § 306(a), prohibits any common carrier by motor vehicle from engaging in interstate operation on any public highway unless such carrier has a certificate of convenience and necessity issued by the Commission. A proviso requires the Commission to issue the certificate without further proof of public convenience and necessity “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”.

The Commission held that Fornaciari had not “so operated since” June 1, 1935, because his operations from February, 1937 to June, 1937, did not show that he was “in bona fide operation as a common carrier by motor vehicle” during that time, as those terms are defined by § 203(a) (14) of the act, 49 U.S.C.A. § 303(a) (14), which provides in part: “The term ‘common carrier by motor vehicle’ means any person who or which undertakes, whether directly or by a lease or any other arrangement, to transport passengers or property, or any class or classes of property, for the general public in interstate or foreign commerce by motor vehicle for compensation, whether over regular or irregular routes * * The Commission held that such service “was not the fulfillment of engagements in consequence of a holding out to the general public but was primarily the hauling of traffic for motor common carriers” and concluded that the applicant had abandoned his operations as a common carrier and assumed the position of an “owner-operator”.

Plaintiff first contends that even if Fornaciari did restrict his business to that supplied by Hendricks, still he was within the definition of “common carrier by motor vehicle” because although he got the traffic from Hendricks, he was transporting it “for the general public”, meaning for those who supplied such traffic to Hendricks.

The Commission has taken the position that the person entitled to a license is the one who holds himself out to the general public. For example, it is said where such a person solicits and obtains traffic and employs another under “lease or any other arrangement” to physically transport such traffic, that Congress did not intend that two licenses should be issued for the one operation. The Commission has, therefore, taken the view that only one license should be issued, and has decided that the one who is entitled to the license, is the one dealing with the general public. We are required to give the administrative construction great weight (United States v. American Trucking Ass’ns, 310 U.S. 534, 549, 60 S.Ct. 1059, 84 L.Ed. 1345), and doing so, we cannot say the Commission’s interpretation is erroneous. Compare: N. E. Rosenblum Truck Lines v. United States, D.C.Mo., 36 F.Supp. 467.

Plaintiff also contends that the Commission’s finding that the traffic carried by Fornaciari originated with Hendricks is not sustained by substantial evidence. There was evidence from which the Commission might have made a finding favorable to plaintiff. There was other evidence explaining that favorable to plaintiff and which, if believed, led to an opposite result. The Commission reached the latter conclusion, and its determination of such conflict in the evidence is conclusive here. Shields v. Utah Idaho Cent. R. Co., 305 U. S. 177, 185, 59 S.Ct. 160, 83 L.Ed. 111.

Finally, it is contended that § 206(a) of the act requiring the same operation after June 1, 1935, as was being carried on at that time, is limited to the period from June 1, 1935 to the effective date of the act or to the period from June 1, 1935, to the date the application for a license was filed. We believe the period extends from June 1, 1935, to the date “when the Commission passed upon the application” for the license. United States v. Maher, 307 U.S. 148, 155, 59 S.Ct. 768, 772, 83 L.Ed. 1162.

Complaint dismissed.