Before Kiley, Circuit Judge, LA Buy, Senior District Judge, and
Will, District Judge.
The opinion of the court was delivered by: Will, District Judge.
In this action under Title 28 U.S.C. § 1336, 2284 and
2321-2325, Greyhound challenges the validity of two orders of the
Commission, dated August 31, 1961, and January 12, 1962, under
which Carolina is authorized to operate regular direct service
over an alternate route between Columbia and Orangeburg, South
Carolina. The orders in question were issued by the Commission
under section (c)(8)(i) of what are known as its Deviation
Rules, 49 C.F.R. § 211.1 et seq.
Prior to October, 1960, Carolina operated no direct or through
service between Columbia and Orangeburg. It operated a through
route from Columbia to Charleston, South Carolina, and a
connecting shuttle service in combination with its wholly owned
subsidiary, Coastal Stages Corporation, from Creston, a point on
the Columbia-Charleston route, to Orangeburg. Its running time
between Columbia and Orangeburg over this route varied between
one hour and twenty-three minutes and one hour and thirty-five
In October, 1960, Greyhound operated a direct service between
Columbia and Orangeburg with running times between fifty-nine
minutes and one hour and fifteen minutes.
All of the foregoing services were operated pursuant to
certification by the Commission.
On October 10, 1960, Carolina filed with the Commission notice
of a proposed route deviation, advising that it intended to use
Interstate Highway 26 (a new superhighway) between Columbia and
Orangeburg as an alternate to its certificated route which
alternate route would save 17 miles, and 27 minutes, on the run.
Greyhound filed a protest with the Commission on November 22,
On January 11, 1961, Carolina started operating on the
alternate route. On March 17, 1961, Division 1 of the Commission
entered an order denying the proposed deviation on the ground
that it failed to meet the requirements of the Deviation Rules.
Carolina then filed a petition for reconsideration to which
Greyhound also objected.
The Commission, by order of August 31, 1961, approved the use
by Carolina of the alternate route. Greyhound petitioned for
reconsideration which petition was denied on January 12, 1962, as
"* * * (1) the order of August 31, 1961, was entered
in accordance with law after it appeared (a) that the
order of March 17, 1961, by the Commission, Division
1, rejecting applicant's Deviation Notice No. 3,
should be vacated and set aside, and (b) that the
operations proposed by applicant in Deviation Notice
No. 3 meet the provisions of the Commission's
Deviation Rules, revised 1957, and that such proposed
operations lawfully may be conducted; and (2) no
sufficient cause appears for reconsidering or
vacating the order of August 31, 1961, or for
granting any of the other relief sought; * * *."
Thereafter, Greyhound brought this suit to set aside and enjoin
the orders in question.
The Commission's Deviation Rules and Regulations,
49 C.F.R. § 211.1 et seq., were promulgated under its general rule making
power, section 204(a)(6) of the Interstate Commerce Act,
49 U.S.C. § 304(a)(6), to implement the provisions of section
208(b) of the Motor Carrier Act, 49 U.S.C. § 308(b), which
"A common carrier by motor vehicle operating under
any such certificate may occasionally deviate from
the route over which, and/or the fixed termini
between which, it is authorized to operate under the
certificate, under such general or special rules and
regulations as the Commission may prescribe."
We are here concerned only with that portion of the Deviation
Rules relating to alternate routes which provides:
"(c) Authority for deviations by motor carriers
from operating authorities in ...