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