Before Lindley, Circuit Judge, Wham, Chief Judge, and Platt,
District Judge.
The opinion of the court was delivered by: Platt, District Judge.
Plaintiff Bowen Transports, Inc. filed a complaint in this
court on May 27, 1953 praying for an injunction to restrain
the Interstate Commerce Commission from enforcing its orders
denying to the plaintiff temporary authority for service.
The record discloses the following facts which are
undisputed. The plaintiff filed on January 15, 1953 with the
District Supervisor of the Bureau of Motor Carriers, at
Springfield, Illinois, an application for temporary authority
for service, in accordance with Section 210a(a), Interstate
Commerce Act, 49 U.S.C.A. § 310a(a). Attached to the
application was a letter of Ball Brothers Company,
Incorporated, the shipper, setting forth its need for service
and its claim that existing authorized carriers would not
supply that service. The plaintiff had been engaged in the
transportation of glass bottles for Ball Brothers from its
Hillsboro, Illinois plant to Peoria, Illinois. Early in January
Ball Brothers informed the plaintiff that it was closing the
Hillsboro plant and the bottles would be delivered from the
Muncie, Indiana plant. Plaintiff, desiring to continue the
transportation of these bottles, filed the application for
temporary authority. The District Supervisor notified some of
the competing carriers who had permanent certificates of
convenience, and letters protesting the granting of the
application were received from Ringle Truck Lines, Inc., Warsaw
Trucking Co., Inc., Interstate Motor Freight System, Decatur
Cartage Company, Hayes Freight Lines, Inc., and Kain's Motor
Service.*fn1 Each of these carriers set forth that it had a
certificate of convenience to give service between Muncie and
Peoria and had equipment available to carry the traffic. On
February 5, 1953 the District Supervisor filed his report,
together with the application, attached exhibits, and letters
of protest, with the Commission. On February 20, 1953 a single
Commissioner to whom the matter had been duly assigned for
action issued an order stating that "there is immediate and
urgent need for service * * * and that there is not available
any carrier service capable of meeting such need", and granted
the temporary authority for service upon compliance with the
requirements, rules, and regulations of the Commission. On
March 5, 1953 Warsaw Trucking Co., Inc. filed with the
Commission a petition for reconsideration and revocation of the
Commission's order of February 20, 1953. This petition alleged
that the petitioner had sufficient equipment available to
handle the shipper's traffic and had offered further service to
Ball Brothers at Muncie, Indiana, but the service had not been
utilized. It further alleged that there were at least three
other competing truck lines who had the necessary authority and
equipment to perform this transportation service for Ball
Brothers, and that therefore, there was carrier service capable
of meeting such need. On March 13, 1953 plaintiff filed in the
alternative a motion to dismiss, or, a reply to the Warsaw
petition, alleging that there was not available service to meet
the emergency. Plaintiff received from the Commission on March
13, 1953 a telegram authorizing institution of service until
September 8, 1953 unless earlier terminated, under order of
February 20. The record was duly referred to Division 5, and
after due consideration, an order was entered on May 12, 1953
granting the prayer of the petition filed by Warsaw and
revoking the order entered February 20 "for the reason it has
been established that there is adequate
carrier service available to perform the transportation for
which authority was granted." This order was made effective
May 29, 1953. In the meantime plaintiff, having obtained the
necessary licenses for its trucks and having moved part of its
equipment to Muncie, Indiana, started its operation in April
under the temporary authority. The complaint herein having
been filed on May 27, 1953, plaintiff requested an extension
of the effective date of the order of May 12 and the
Commission extended the effective date to June 10, 1953. On
June 3 plaintiff filed with the Commission a petition for
reconsideration of the order of May 12. This petition
reiterated the emergency and lack of adequate service
available to Ball Brothers. A reply to this petition was filed
by the intervenor herein, Hayes Freight Lines, Inc. Plaintiff
again requested an extension of the effective date of the
order of May 12, and it was postponed to July 10. On July 10
the petition for reconsideration by the plaintiff was again
duly considered by Division 5 upon the whole record, and the
order of May 12 was made effective "for the reason that
applicant has presented no facts not heretofore considered and
has failed to establish that existing carrier service is
incapable of performing the transportation." Plaintiff had
filed a petition with the Commission for a permanent
certificate of convenience on February 9.*fn2
Plaintiff takes the position that the. Commission in finally
denying the temporary certificate of service acted arbitrarily
and capriciously for the reasons, first, the authority once
issued by the single Commissioner could not be revoked by the
Commission acting through Division 5 except for good cause
shown, as provided in Section 210a(a);*fn3 and second, the
order denying the certificate was not in compliance with
Section 9(b) of the Administrative Procedure Act, 5 U.S.C.A.
§ 1008(b).*fn4 On the other hand, the defendants and the
intervenor Hayes Freight Lines, Inc. maintain that the
temporary authority was not finally effective when issued by
the single Commissioner and was subject to reconsideration and
reversal by the Commission by virtue of the procedure provided
by 49 U.S.C.A. § 17(6) and (7);*fn5 that the
Commission acted accordingly and exercised its sound
discretion.
In reconsidering and reversing the order of the single
Commissioner, the Commission proceeded as provided by statute
and the Rules of the Commission.*fn6 Bowen Transports, Inc.,
complying with Section 210a(a) of the Transportation Act, 49
U.S.C.A. Section 310a(a), applied for temporary authority for
service between Muncie, Indiana and Peoria, Illinois. After
the order by the single Commissioner granting the temporary
authority Warsaw timely*fn7 filed a petition for
reconsideration and revocation, as provided by Section 17(6),
49 U.S.C.A. The commission, acting through Division 5, did
reconsider the order allowing the temporary authority and
reversed the initial order issued by the single Commissioner.
Division 5 had been designated as the reviewing body.*fn8
This reversal by Division 5 was authorized by Section 17(7),
49 U.S.C.A. Division 5 in fact functioned de novo with original
jurisdiction in the reconsideration upon the record. It is an
analogous procedure to an award by an arbitrator under the
Illinois Compensation Act, Ill.Rev.St. 1953, ch. 48, § 138.1 et
seq., being reviewed by the Industrial Commission.*fn9 If the
order of the single Commissioner had not been contested by a
petition for reconsideration it could have become the final
order of the Interstate Commerce Commission in a like manner as
an award of an arbitrator. When the petition for
reconsideration was filed by Warsaw, the reviewing body,
Division 5 in this case, could reconsider the record with
original jurisdiction, not being bound by the order of the
single Commissioner.
A careful examination of Section 17(6) and especially
Section 17(7) serves to emphasize that the reconsideration by
Division 5 was an original determination on the record with
authority to reverse the order of the single Commissioner.
Section 17(7) expressly states that if after reconsideration
of an order of an individual commissioner it shall appear that
the original order is in any respect unjust or unwarranted,
the Commissioner or appellate division may reverse the same.
"To reconsider" is defined in Webster's New International
Dictionary, 1924 Edition, as "to consider again; to consider
with a view to changing." Plaintiff must have recognized and
so interpreted the procedure, as it too filed a petition for
reconsideration
and requested no hearing but relied upon the record. In a
somewhat similar situation, in Hudson River Day Line v. United
States, D.C., 85 F. Supp. 225, the court had under review an
order issued by the Commissioner upon reconsideration of an
order issued upon an application by a water carrier for
temporary authority.*fn10 The first order of the Commission
denied the temporary authority in part, but under review the
denial was reversed and the temporary authority was granted.
Judge Hand, speaking for a three judge court, said, 85 F. Supp.
at page 227:
"There can be no doubt that the Commission had
the power to change its decision on
reconsideration irrespective of the additional
data submitted to it, provided that its final
conclusion was supported by substantial evidence
in the record taken as a whole. (Citing cases)"
Judge Hand there recognized the jurisdiction of the
Commission to reverse its prior order.
In the instant case we do not have the necessity that the
final conclusion of the Commission be supported by substantial
evidence as required to support a finding in an order of the
Commission granting or denying a permanent certificate of
convenience, or where a formal hearing is held.*fn11 Section
210a(a) of the Transportation Act, 49 U.S.C.A. § 310a(a),
provides that temporary authority of service may be granted in
the discretion of the Commission without hearings or other
proceedings.*fn12 While the record in this case was obtained
in an informal manner in order to reach a decision with the
speed contemplated by the statute, it is a record upon which
the Commission was legally entitled to act and was made in
accordance with proper procedure. The record before the single
Commissioner included the plaintiff's application supported by
Ball Brothers' letter, the exhibits, and the letters of
protest. Upon the first reconsideration by Division 5 there was
also the petition termed "for reconsideration and revocation"
and the reply thereto by the plaintiff. Upon the second
reconsideration there was in the record the plaintiff's
petition for reconsideration and the reply thereto by Hayes
Freight Lines, Inc. It is upon the entire record this court
must determine whether the Commission acted arbitrarily or
capriciously. Schenley Distillers Corporation v. United States,
D.C., 50 F. Supp. 491, 496.
Plaintiff attempts to avail itself of the terminology of
Warsaw's petition and the order of May 12 wherein the words
"revocation" and "revoked" were used. However, this court must
look through the terminology to ascertain what action was
taken. Shannahan v. United States, D.C., 20 F. Supp. 1002,
affirmed 303 U.S. 596, 58 S.Ct. 732, 82 L.Ed. 1039. The
temporary certificate was not finally issued by the single
Commissioner but was subject to being affirmed or reversed
upon reconsideration. The good cause for revocation, as
provided by Section 210a(a) is required to be proven only
where the temporary authority for service has been granted by
the final order of the Commission.
For the same reason we find that Section 9(b) of the
Administrative Procedure Act is inapplicable wherein it
provides: "Except in cases of willfulness or those in which
public health, interest, or safety requires otherwise,
no * * * revocation * * * of any license shall be lawful
unless, prior to the institution of agency proceedings
therefor, facts or conduct which may warrant such action shall
have been called to the attention of the licensee by the
agency in writing and the licensee shall have been accorded
opportunity to demonstrate or achieve compliance with all
lawful requirements." Considering the temporary authority as
a license under this provision, in view of the fact that it
was not finally granted, the procedure outlined by this
section would not apply.
From the foregoing analysis we conclude that the Commission
followed the prescribed procedure, exercised its discretion
neither arbitrarily nor capriciously, was supported in its
findings substantially in the record, and violated no
statutes. Therefore, the complaint must be dismissed. ...