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ANDREW G. NELSON, INC. v. UNITED STATES

June 13, 1956

ANDREW G. NELSON, INC., PLAINTIFF,
v.
UNITED STATES OF AMERICA AND INTERSTATE COMMERCE COMMISSION, DEFENDANTS, AND ADVANCE TRANSPORTATION CO., INC., ET AL., INTERVENING DEFENDANTS.



Before Finnegan, Circuit Judge, and LA Buy and Perry, District Judges.

The opinion of the court was delivered by: Finnegan, Circuit Judge.

Andrew G. Nelson, Inc., plaintiff, invoked a statutory three-judge district court, 28 U.S.C. § 1336, 2284, 2325, to enjoin and annul a cease and desist order of the Interstate Commerce Commission, dated March 3, 1955, in Docket No. MC-C-1610, reported in 63 M.C.C. 407 (1955). The challenged order is a culmination of hearings initiated by the Commission under § 204(c) and § 212(a) of the Interstate Commerce Act,*fn1 to investigate plaintiff's operations under its permit, issued June 18, 1951, authorizing the transportation, over irregular routes of: "(N)ew and used store fixtures, new and used household goods and stock in trade of drugstores." By its own initial order the Commission made this corporate plaintiff a respondent in those proceedings instituted for the purpose of determining whether Andrew G. Nelson, Inc., is and was engaged in the transportation of commodities outside the scope of its operating authority, in violation of § 209(a) of the Act,*fn2 or "of any requirement, restriction, term, or condition of * * * (its) permit * * *" From the record made before the Commission it is established that the plaintiff corporation was represented by several counsel during an adversary proceeding before an examiner, at which other attorneys appeared on behalf of several intervenors.

Earlier, in March, 1942 under No. MC1194, plaintiff's predecessor, Andrew G. Nelson an individual, had been authorized by the Commission to conduct business as a contract carrier by motor vehicle of the commodities mentioned and already quoted above in connection with the June, 1951 permit. Nelson's 1942 permit (No. MC1194) was issued under the "grandfather" clause in the first proviso of § 209(a)(1), Part II, of the Act. Later, sometime in 1951, Nelson incorporated and, with Commission approval, his permit was transferred to the corporate plaintiff before us.

Plaintiff participated in the challenged administrative proceedings held by the Commission during which the Bureau of Inquiry and Compliance, Interstate Commerce Commission, introduced evidence establishing that during a period in 1953 this carrier transported in interstate commerce, commodities from consignors, none of whom were drugstores, to consignees "whose business is as indicated. Numerous and varied canned or packaged grocery items to grocery stores or warehouses; dry and liquid cream and fruit juices to food manufacturers; beer and wines to liquor distributors; 100-pound bags of dry glue to a company whose business is not stated of record; candy to a candy wholesale candy distributor; dry milk to a distributor of that product; malted milk powder and milk food to a manufacturer of drugs and dietetic foods; and automobile batteries to a general merchandising company * * *." 63 M.C.C. 407, 412.

Proceeding before us by way of a complaint for a declaratory judgment, plaintiff asks, in substance, that we review the Commission's order by measuring it with constitutional yardsticks. No problem of exhausting administrative remedies is involved. Plaintiff insists that by its order, now in issue, the Commission whittled down the operating permit originally issued under the "grandfather clause." But the Commission was investigating plaintiff's compliance or noncompliance with permit No. MC1194, as is disclosed inter alia by this statement reported by the Examiner:

    "The sole issue herein is thus explicit and
  requires a determination of the extent of the
  authority granted by the commodity description `stock
  in trade of drugstores.' None of the parties claim
  that such description is patently ambiguous, and
  ambiguity may not be assumed merely from the fact
  that the Bureau and interveners are in disagreement
  with respondent as to the meaning of the description.
  In considering the issue thus presented neither the
  operations of respondent prior to the `grandfather'
  date, nor the Commission's intentions with respect
  thereto in issuing the permit, are of any
  importance."

When the matter moved up to the level of Division 5 it was pointed out (63 M.C.C. 407, 409): "(W)e agree with the contention of the parties and the examiner's conclusions that there is no such patent ambiguity in the permit as to warrant our going back of it and giving consideration to events prior to its issue." We think the Commission acted within its statutory power and for that reason refuse to disturb the challenged order.

Having examined the pleadings, exhibits, record made before the Commission, after hearing oral arguments of counsel for both sides, receiving evidence on the matter of damages, and being fully advised in the premises, we find and conclude as follows:

Findings of Fact

2. The aforesaid permits authorized plaintiff and its predecessor to transport new and used store fixtures, new and used household goods, and stock in trade of drug stores.

3. Pursuant to said application, the Interstate Commerce Commission in its Docket MC-1194, under date of February 14, 1938, issued its so-called compliance order reciting in part as follows:

"After due investigation:

    "It appearing, That applicant in accordance with
  the requirements of Section 209, Motor Carrier Act,
  1935, including due service, made application for a
  permit to operate as a contract carrier by motor
  vehicle according to the specification set forth as
  appended on the reverse side hereof or attached
  hereto, and made a part of this order, and that the
  said applicant or predecessor in interest was in bona
  fide operation in such manner on July 1, 1935, and
  has so operated since that time; and the Commission
  so finding;"

The specification set forth on the reverse side of said compliance order and referred to in the foregoing quotation of said order reads as follows:

    "The business of applicant, as authorized by the
  order of which this is a part, in interstate or
  foreign commerce as a contract carrier by motor
  vehicle of the commodities indicated, over irregular
  routes, is as specified below:
    "New and used store fixtures, new and used
  household goods, and stock in trade of drug stores,
    "Between points and places in Illinois, Indiana,
  Iowa, Kentucky, Michigan, Minnesota, Missouri,
  Nebraska, Ohio, and Wisconsin."

The foregoing finding of the Commission made in said compliance order of February 14, 1938, has never been changed and remains in effect.

4. The Interstate Commerce Commission issued to Andrew G. Nelson under date of March 13, 1942, a permit to engage in interstate or foreign commerce as a contract carrier by motor vehicle, a portion of which permit reads as follows:

    "It Is Further Ordered, That the transportation
  service to be performed by the said carrier in
  interstate or foreign commerce shall be as specified
  below:
    "New and used store fixtures, new and used
  household goods, and stock in trade of drug ...

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