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WILLEY v. UNITED STATES

September 17, 1965

FLOYD WILLEY, PLAINTIFF,
v.
THE UNITED STATES OF AMERICA AND THE INTERSTATE COMMERCE COMMISSION, DEFENDANTS, AND JACK GRAY TRANSPORT, INC., INTERVENING DEFENDANT.



Before Kiley, Circuit Judge, and Platt and Juergens, District Judges.

The opinion of the court was delivered by: Juergens, District Judge.

  This action is to review an order of the Interstate Commerce Commission, dismissing a complaint filed by Floyd Willey requesting revocation of certain operating authority held by Machinery & Materials Corporation.

The facts as disclosed by the pleadings and accompanying documents are as follows:

In 1941 interstate authority was granted to one John B. Slaughter, which authorized the transportation over irregular routes of sand and gravel from Covington, Indiana and points within three miles of Covington, Indiana to points in Vermilion County, Illinois. This authority was transferred to Russell D. Enos in 1952 and transferred to plaintiff Floyd Willey in 1954. In 1956, pursuant to application by Floyd Willey, a new certificate was granted authorizing the transportation of commodities as follows:

Sand and Gravel,

  From points in Warren, Fountain and Vermillion
  Counties, Ind., to points in Vermilion County, Ill.,
  with no transportation for compensation on return
  except as otherwise authorized.

Haydite, limestone, crushed rock, and coal,

  From points in Vermilion County, Illinois, to points
  in Indiana, with no transportation for compensation
  on return except as otherwise authorized.

Prior to purchasing the sand and gravel authority, plaintiff inquired of the Interstate Commerce Commission District Supervisor concerning any outstanding motor carrier authority duplicating the authority which he proposed to purchase. He was advised that no other person or company held such authority. Again in 1956 when application for extension of the authority was made, a similar inquiry was made of the District Supervisor as to the existence of any competitors in the area so that notice could be given. He was again advised that there was no outstanding authority duplicating the existing authority or the extended authority requested in the application.

Plaintiff has been rendering continuous service to the public under the authority granted and owns and operates tractors, dump trailers and a tandem dump truck in rendering such service and has a terminal and principal place of business in Danville, Illinois. His equipment and facilities represent an investment of approximately $150,000.00.

In 1946 Peter Jansma, d/b/a Jansma Cartage Company, filed an application pursuant to which a certificate of public convenience and necessity was issued to Peter Jansma, d/b/a Jansma Cartage Company, authorizing transportation of commodities as follows:

    "Commodities, which because of size or weight
  require the use of special equipment, and
  contractors' materials, supplies, and equipment
  moving in connection therewith which do not
  necessarily require the use of special equipment, and
  such commodities as are usually transported in dump
  trucks, over irregular routes, between points in
  Indiana and Illinois."

It is alleged and not disputed that during the proceedings which resulted in the grant to Jansma notice of the filing of the application was given to various competitors in Hammond, Munster, Chesterton and Gray, Indiana — all of which are within a radius of 20 miles from Gary, Indiana; the nearest of which is in excess of 100 miles from Danville, Illinois.

The proceedings do not show that notice was ever given to plaintiff's predecessor in title, John B. Slaughter of Danville, Illinois, or to any competitor other than those listed. There were no protestants at the hearing which resulted in granting the authority to Jansma. There was no evidence presented with respect to a public need for dump truck authority other than within a 50 mile radius from point of pickup. There was no evidence submitted with respect to a public need for dump truck authority in the Danville, Illinois — Cayuga, Indiana territory.

During the course of the prosecution of the Jansma application the following occurred:

    "Exam. Cosby: About the territory in this dump
  truck movement; will that be confined in northern
  Indiana from the points you have referred to here,
  that is South Chicago and Thornton, Illinois?
    "The Witness: That is just about the needs for the
  dump truck, yes.
    "Exam. Cosby: If the authority were from Thornton,
  Illinois and South Chicago to a reasonable distance
  in ...

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