United States District Court, Eastern District of Illinois
November 6, 1958
MCBRIDE'S EXPRESS, INC., PLAINTIFF,
UNITED STATES OF AMERICA AND INTERSTATE COMMERCE COMMISSION, DEFENDANTS, AND YELLOW TRANSIT FREIGHT LINES, INC., INTERVENING DEFENDANT.
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
presume with the exceptions on it.
"Q. With exceptions? A. Yes.
"Q. For how long did these operations continue? A.
They continued up until, I believe it was —
"Mr. Marshall [appearing for N.C. Slater, Inc.]
(interrupting): Wait just a moment. If the Examiner
please, I want to object to any operations performed
by the applicant that weren't legal. Certainly an
unlawful operation couldn't prove the need for any
"Mr. Brody: [Hearing officer, joint board]
Objection will be sustained.
"Mr. Hewitt: [appearing for applicant] I believe
that these operations over this period of years is
very germain [sic] to the issues and it should be
left to the Commission to decide what weight they
will give them.
"Mr. Brody: You can argue that a little later in
"Mr. Brody: While we are at it, we might just as
well prove up what authority he has on the intrastate
because in the state of Illinois we don't have any
general commodities with exceptions. Have you got the
"Q. (By Mr. Hewitt) Do you know the certificate
number? A. Possibly there is no exceptions on it
because it reads general commodities. I didn't bring
it with me.
"Q. Do you know the extent of it as far as Decatur?
A. Based at Decatur, Illinois, and it is 50 miles
radius from there anywhere in the state of Illinois,
to anywhere in the state of Illinois, and return
within that 50 miles radius with general commodities.
"Mr. Brody: I think the certificate would be best.
What he is describing there is two authorities. He is
trying to describe the local and the specialized.
"The Witness: I don't think I have got specialized.
"Mr. Brody: He says he doesn't think he has
specialized. What I am trying to get to now if
Decatur is more than 50 miles to St. Louis he would
be outside that area.
"Mr. Marshall: If the Examiner please, the best
evidence of his operating authority in Illinois,
would be the certificate itself.
"Mr. Brody: That is what I am trying to lead to. If
we haven't got that we ought to establish the number.
"Mr. Stephenson: I don't know what relevancy it has
"Mr. Brody: The witness has testified that he
thought he was doing it legally on account of his
"Mr. Stephenson: You ruled out the intrastate.
"Mr. Tomlinson: I don't believe that was his
"Mr. Brody: What I ruled out was the illegal
"Mr. Stephenson: There is a question whether it is
illegal or not.
"Mr. Brody: That is what I asked him.
"Mr. Marshall: He admitted it was illegal.
"Mr. Tomlinson: He didn't say it was based upon his
"Q. (By Mr. Hewitt) Can you produce the intrastate
certificate? A. I can't produce it right now.
"Q. No, but probably before the hearing is up? A.
Before the hearing is up. I can possibly call home or
get somebody to bring it, or could we get a copy of
it from the Springfield office.
"Mr. Brody: Too late to get a copy, it would take
"The Witness: I can call home. It is in the safe.
"Mr. Hewitt: All right, we can do that before the
hearing is over."
From this colloquy it is obvious that the hearing officer was
attempting to determine whether the past operations of McBride's
Express, Inc., were performed under sufficient color of authority
to permit the offered exhibits to
be received in evidence. In order for such evidence to be
entitled to admission and consideration in determining whether
there was a present or future need for resumption of such past
operations, it is a prerequisite that such operations must be
shown to have not been unlawful or at least conducted under some
color of right. Bowman Transportation, Inc., Extension-Aluminum
Products, February 11, 1953, MC-94201, 9 F.C.C. (Federal Carrier
Cases) 596, par. 32720; Miller and McGee-Control-Ferguson Freight
Lines, Inc., October 6, 1953, MC-F-4374, Interstate Commerce
Commission Reports, 59 Motor Carrier Cases 506, 509-510. Cf.
Inland Motor Freight v. United States, D.C.E.D.Wash. 1945,
60 F. Supp. 520. Such color of right could not be supplied by
plaintiff's existing interstate certificate which allowed service
in Illinois only from St. Louis, Missouri. Hence the conclusion
that the 1952 through 1956 operations of plaintiff would have
been illegal under its interstate certificate was clearly
warranted. Southwest Freight Lines v. Interstate Commerce
Commission, 8 Cir., 1950, 184 F.2d 149.
"The Commission is an administrative body and * * *
is not limited by the strict rules, as to the
admissibility of evidence, which prevail in suits
between private parties. Interstate Commerce
Commission v. Baird, 194 U.S. 25, 24 S.Ct. 563, 48
L.Ed. 860. But the more liberal the practice in
admitting testimony, the more imperative the
obligation to preserve the essential rules of
evidence by which rights are asserted or defended. *
* * All parties must be fully apprised of the
evidence submitted or to be considered, and must be
given opportunity to cross-examine witnesses, to
inspect documents, and to offer evidence in
explanation or rebuttal." Interstate Commerce
Commission v. Louisville & N.R. Co., 1913,
227 U.S. 88, 93, 33 S.Ct. 185, 187, 57 L.Ed. 431, 434.
Also see Automobile Sales Co. v. Bowles, D.C.N.D.Ohio E.D.
1944, 58 F. Supp. 469, 472.
The oral evidence offered in lieu of the intrastate certificate
was most unreliable, uncertain and of no probative value. Since
the protestants objected to the oral testimony of the contents of
the intrastate certificate as not being the best evidence, the
hearing officer was justified in rejecting the abstracts of the
prior operations without that certificate being in evidence.
Chambless v. Woods, 5 Cir., 1950, 182 F.2d 342. Plaintiff had the
opportunity to produce the intrastate certificate and it cannot
now complain that it was denied a full and fair hearing under the
The second issue presented is whether the action of the
Commission was based upon adequate findings supported by
substantial evidence. The joint board found that public
convenience and necessity did not require the operation for which
plaintiff sought authority and recommended a denial of a
certificate of convenience. Division 1 found that plaintiff
failed to establish present or future public convenience and
necessity and denied the application. The Commission also denied
the certificate. The burden of proof was upon the plaintiff to
prove affirmatively that present or future public convenience and
necessity required this service. Sinett v. United States,
D.C.N.J. 1955, 136 F. Supp. 37. The record discloses that the
plaintiff produced certain witnesses who testified that they
preferred the services of McBride's Express, Inc., but this was
evidence of mere preference and not of need. However, the
protestants produced evidence from which it could be reasonably
inferred that the existing transportation service furnished by
Hayes Freight Lines, Inc., and Yellow Transit Freight Lines, Inc.
was adequate for the territory; that they had unused capacity to
handle more business which the protestants needed and for which
they were actively soliciting in the area. Since the Commission's
findings were adequate and were supported by substantial evidence
in the record this court must not disturb them. Virginian
Ry. Co. v. United States, 1926, 272 U.S. 658, 47 S.Ct. 222, 71
L.Ed. 463; Riss & Co. v. United States, D.C.W.D.Mo. 1951,
100 F. Supp. 468, affirmed 342 U.S. 937, 72 S.Ct. 559, 96 L.Ed. 697,
rehearing denied 343 U.S. 937, 72 S.Ct. 769, 96 L.Ed. 1344.
For the reasons stated the complaint must be dismissed.
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