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GREYHOUND CORPORATION v. UNITED STATES

September 11, 1963

GREYHOUND CORPORATION, PLAINTIFF,
v.
UNITED STATES OF AMERICA AND INTERSTATE COMMERCE COMMISSION, DEFENDANTS, CAROLINA SCENIC STAGES, INTERVENOR-DEFENDANT.



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 minutes.

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, 1960.

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 follows:

  "* * * (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 provides:

  "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 ...

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