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November 6, 1958


Before Parkinson, Circuit Judge, Platt, Chief Judge, and Juergens, District Judge.

The opinion of the court was delivered by: Platt, Chief Judge.

McBride's Express, Inc., of Mattoon, Illinois, brought this action under Title 28 U.S.C. § 1336, 1398, 2284, and 2321 through 2325, inclusive, to set aside the orders of the Interstate Commerce Commission in a proceeding under §§ 206(b) and 207(a) of the Interstate Commerce Act, (49 U.S.C.A. §§ 306(b), 307(a)), wherein the Commission denied the plaintiff's application for extension of its certificate of public convenience and necessity and refused to reopen the case. Plaintiff sought authority to operate as a common carrier of general commodities over irregular routes "between points in Illinois bounded by a line beginning at Springfield, Illinois, and extending along U.S. Highway 36 to Chrisman, Illinois, thence along Illinois Highway 1 to Marshall, Illinois, thence along U.S. Highway 40 to East St. Louis, Illinois, thence along U.S. Highway 66 to point of beginning, including points on said highway, on the one hand, and, on the other, Decatur, Illinois, restricted to interchange traffic at Decatur moving to or from points beyond." At the time of the filing of this application plaintiff already possessed authority to operate as a common carrier of general commodities in interstate commerce over irregular routes between St. Louis, Missouri, and a certain area in Illinois. The application was duly heard before a joint board on December 17 and 18, 1956 in Springfield, Illinois, where plaintiff and other carriers appeared by counsel. January 16, 1957, the joint board recommended that an order be entered denying the application. Plaintiff filed exceptions and replies were made by protestants, Hayes Freight Lines, Inc., and Yellow Transit Freight Lines, Inc. Division 1 of the Commission considered the evidence of record, the joint board's recommendations, plaintiff's exceptions, the reply thereto by the protestants, and denied plaintiff's application.

July 23, 1957 plaintiff petitioned the Commission to reconsider the report of Division 1 and to grant the requested certificate, or in the alternative to reopen the case and to admit certain evidence of its past unauthorized operations which had been excluded at the hearing. Protestants replied. After considering the record the Commission denied the petition and refused to reconsider or to reopen the cause

  "for the reasons that (1) the findings of Division 1
  are in accordance with the evidence and the
  applicable law, and (2) the additional evidence which
  petitioner offers to present, if received, would not
  change the findings already made in this proceeding."

Plaintiff thereupon filed the instant complaint and Yellow Transit Freight Lines, Inc. was permitted to intervene as a defendant. The issues to be determined by this court are:

(1) Whether by the exclusion of certain of plaintiff's evidence it was deprived of a full and fair hearing; and

(2) Whether the action of the Interstate Commerce Commission is based upon adequate findings that are supported by substantial evidence in the record.

It appears from the transcript of the evidence that during the period 1952-1956, protestant, Yellow Transit Freight Lines, Inc., was operated under the supervision of a federal court, and that during this period when its service was curtailed in Illinois, McBride's Express, Inc., rendered the interstate service for which it now seeks a certificate. Yellow Transit has re-emerged, and together with Hayes Freight Lines was ready to serve the public need. Plaintiff nevertheless attempted to prove a present and future public necessity. To this end it offered in evidence abstracts of its past operations over the routes in question. Because its existing interstate certificate did not authorize service in these areas, and there was nothing to lend color of authority to the operations, the joint board excluded plaintiff's abstracts from the evidence. Plaintiff urges this exclusion to have been error inasmuch as the operations could have been by color of right under an intrastate certificate, and because evidence of past operations in good faith was admissible and entitled to consideration along with other evidence of record. Marvin J. Haigis and Kneeland G. Nichols, Extension — Vermont and New Hampshire No. MC 26056, 5 F.C.C. (Federal Carrier Cases) 362, par. 31081, March 7, 1946. It is argued that the relevance of such evidence is beyond question and that refusal by the agency to receive and consider proffered evidence which was competent and material amounts to denial of due process. Donnelly Garment Co. v. N.L.R.B., 8 Cir., 1942, 123 F.2d 215.

Plaintiff has neglected to include in the transcript certified to this court the abstracts of past operations which it claims to have been erroneously excluded from the evidence. It is not necessary for a proper disposal of this case, however, that such portions should have been certified, for on the basis of the following relevant portions of the transcript it is clear that this evidence was properly excluded.

    "Q. Mr. McBride when did you institute operations
  in interstate commerce through Decatur, Illinois? A.
  In the early part of 1952.
    "Q. Was it your idea at that time that these
  operations were legal? A. It was.
    "Q. Do you have intrastate authority in this same
  territory? A. I do.
    "Q. What commodities, for the record, does that
  include? A. That includes general commodites, [sic] I

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