Before Kiley, Circuit Judge, and Platt and Juergens, District
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:
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
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