Inc., v. United States, 17 Fed. Supp. 655 | State commission of jurisdiction until (657)*. the Interstate Commerce Commission assumed active jurisdiction could not be considered.-Id. Suit to restrain interference with operation because applicant had no State certificate is in the district judge's Motor-vehicle service of railroads in collecting or delivering freight in terminal areas is subject to Part I, but not line-haul motor vehicle service which railroads may furnish.-Acme Fast Freight, Inc., 2 M. C. C. 415 (425) *; | jurisdiction, not a case for three Pacific Transfer Co., 8 M. C. C. 21; Arm- judges.-Id. strong Transfer & Storage Co., Inc., 9 M. C. C. 550 (552). Pick-up and delivery service performed under contract with the railroad is not subject to the Motor Carrier Act.-Luther, 10 M. C. C. 326 (327). While pick-up and delivery for a railroad is not subject to part II, if Fargo, West Fargo, and Moorhead are contiguous municipalities (not yet decided) and the operation is not under common management, arrangement, for carriage outside thereof, exemption in sec. 203 (b) would apply. Authority granted to continue such operation.Adams Transfer & Storage Co., 14 M. C. C. 613 (625). The "grandfather" clause does not apply to an electric line, whose rail operations were discontinued in 1935.Kansas City & L. Transp. Co., 3 M. C. C. 307 (308). 25. Injunctions; operation without certificate.-See also Injunctions, §222 (b), n. 25. Revocation of authority by State, sec. 202 (c), n. 7. When intention to prevent operation because of operator's lack of State interstate certificate persisted after the Interstate Commerce Commission begun to function under the Federal statute, the State holding the view that the Federal act deprived it of jurisdiction, matter involved in injunction to restrain interference was not moot.-Douglass v. Pan-American Bus Lines, 81 Fed. (2d) 222. Grant of interlocutory injunction in the circumstances was not an abuse of discretion.-Id. On appeal from interlocutory order restraining interference, question whether the Federal act deprived the Bills by motor vehicle operators seeking injunctions to restrain State officers from enforcing State statute providing for regulation of motor carriers on the ground that State laws are superseded by the Federal Motor Carrier Act do not present a question of constitutionality of the State statute; three-judge court is without jurisdiction.-D. A. Beard Truck Line Co. v. Smith, 12 Fed. Supp. 964. Controversy between applicant and the State, by itself, does not negative the bona fides of applicant's interstate operations. Commission will not withhold certificate until determination of the injunction suit.-Geer, 3 M. C. C. 483 (484). 26. Intrastate certificate.-See also Bona fide operation defined, n. 50, this paragraph. Intrastate operation; State requirements, n. 53, this paragraph. What the proviso does is to exempt from necessity of obtaining interstate certificate of public convenience and necessity as to interstate carriage between points in the State, every carrier holding a State certificate of public convenience and necessity to carry between those points.-Gulf Coast Motor Freight Lines, Inc., v. United States, Fed. Supp. -*. A State commission certificate or permit to carry interstate is not a certificate within the meaning of the second proviso of sec. 206 (a). While the State commission has the right to prevent or permit operation interstate on consideration of safety, authority granted on such consideration is not a certificate of public convenience and necessity. It is such certificate with which the second proviso deals.—Id. The second proviso leaves in no doubt | conduct operations in interstate comthat the certificate from the commission | merce under the second proviso of sec. which it exempts a carrier from obtain- 206 (a). That proviso applies only ing is a certificate of public convenience when the carrier is lawfully engaged in and necessity. State certificate or per- operation solely within the State issuing mit certifying that interstate traffic by the certificate.-Virginia Stage Lines, the carrier will not injure the State's Inc., 2 M. C. C. 214 (217). highways or affect safety thereon is not such a certificate.-Id. It is beyond the constitutional power of the State commission to permit or prohibit carriage interstate on grounds of public convenience and necessity.-Id. It would be a complete negation both of the purpose and purport of the statute to hold that plaintiff was entitled to certificate under the "grandfather" clause when it has been settled that the State commission has police jurisdiction over the highways, and both State and Federal courts have held plaintiff is and has been operating in violation of lawful State regulations.-A. E. McDonald Motor Freight Lines, Inc., v. United States, Fed. Supp. -*; Keele v. United States, Fed. Supp. -*. The terms "certificates" and "permits" have been distinguished by Congress. Section 203 (a) provides that the State board has jurisdiction to grant or approve certificates or permits to motor carriers in intrastate commerce over the highways of such State.-United States v. Union Pac. R. Co., 20 Fed. Supp. 665 (667). There must be concurrence of the three conditions before the exception in sec. 206(a) as to wholly intrastate operation is effective: the common carrier by motor vehicle must be lawfully engaged in operation solely within a State; there must be a board in such State having authority to grant or approve "such certificate"; and the carrier must have obtained "such certificate" through such board.-Id., p. 667. The words "such certificate" refer to Icertificates or other State operating authority authorizing intrastate operations. The proviso of this section was intended to relieve an intrastate operator, lawfully operating in intrastate commerce under certificate issued by a State, from necessity of obtaining a similar certificate from the commission covering interstate operation between points covered by his intrastate certificate.-Union Pac. Stages of Calif., 7 M. C. C. 437 (440)*. Having no intrastate rights to pick up or discharge passengers at points on the route, applicant can have no greater interstate rights under the second proviso of this section. Its interstate operations over the route, being in excess of its intrastate rights and commenced without proper authority, are unlawful.-Id., p. 441. The record does not show that applicant obtained certificates from any of the States served prior to 1937, nor that such authorizations were ever demanded. In the circumstances applicant's operations were bona fide.Fleming, 8 M. C. C. 469. To construe "such certificates" in the second proviso as meaning certificates of public convenience and necessity for interstate operations would be to recognize the right of a State to invade a field reserved by the commerce clause for Federal regulation. A State may not apply the test of public convenience and necessity to a wholly interstate motor-carrier operation.-Gulf Coast The State board has no authority to Motor Freight Lines, Inc., 3 M. C. C. grant certificates of public convenience 497 (501)*; Illinois Greyhound Lines, and necessity to those engaged in inter- Inc.,-Purchase-White Star, 15 M. C. O. state commerce operations.-Id., p. 667. 86 (90). That applicant held certificates issued The word "such" construed, with refby the State authorizing intrastate op-erence to secs. 203(a) (5) and sec. 206erations does not provide authority to (a); as applied to certificates of con tion to a request for authority to engage in interstate operations.-McCracken Extension, 8 M. C. C. 92. venience and necessity; definition of mission should give careful considera"such" by lexicographers, p. 501. The second proviso of sec. 206 (a) does not purport to be a grant of power but is merely a statement of conditions under which the certificate requirement of the statute is waived.-Id. In application of the constitutional principle that a State may not invade a field reserved for Federal regulation, no distinction may be drawn between a link in interstate commerce which operates wholly within a State, and one which crosses a State line.-Id. The purpose of the second proviso is to relieve motor carriers who engage in interstate commerce wholly between points within a single State under authority of certificate from that State, from the burden of obtaining a further certificate from the commission.Motor Carrier Insurance for Protection of the Public, 1 M. C. C. 45 (46)*. Review of legislative history of Motor Carrier Act, with reference to second proviso of this section (p. 501-2). Since applicant has not obtained a certificate from the State commission authorizing transportation in intrastate commerce within Texas, it has no right to continue operations under the second proviso of sec. 206(a).-Gulf Coast Motor Freight Lines, Inc., 3 M. C. C. 497 (502)*. Transfer of operating rights granted by State authority requires the commission's authority under sec. 213 when operation will be interstate.-Illinois Greyhound Lines, Inc.,-Purchase-White Star, 15 M. C. C. 86 (87). Permit issued by the Board of Direc tors of the Street and Sewer Dept. of the City of Wilmington is not a State board authorization, does not dispense with requirement of proof that public convenience and necessity require proposed interstate operations.-Eastern Shore Stages, Inc., 14 M. C. C. 457. The proviso was intended to except the operator who is operating within the limits of one State and not within any other State. "Solely within any State" precludes an interpretation that a carrier performing interstate operations in several States, even though independently each of the other, would not be required to obtain a certificate from the commission.-Missouri Pac. R. Co. Extension, 20 M. C. C. 563. Registration of intrastate routes, in order that the carrier may also operate thereover in interstate or foreign commerce, is permissible in lieu of proof of convenience and necessity, only when When vendors dispose of their "grand-applicant's entire operations are confined father" rights they cannot be revived in to a single State.-Georgia Motor Exp., whole or in part under the second pro- Inc., 10 M. C. C. 159 (165). viso of this section, and by reason of an The holder of a State certificate can intrastate right which they now have.- not claim the benefit of the exemption in L. & L. Freight Lines, Inc.,-Purchase- the second proviso of sec. 206 (a). The Plennie, 5 M. C. C. 329, Clayman-Pur-certificate referred to therein only means chase-Van Sciver, 5 M. C. C. 417. a "certificate" or an authorization by Disposition of rights by sale, consoli- any name obtained from a State for dation, see sec. 213 (a) (1). The second proviso of sec. 206 (a) may not be availed of for operation from Kansas City to Omaha, employing the same equipment and employees.-Missouri Pac. R. Co., 22 M. C. C. 321 (328). Laws of Oregon do not require a showing of public convenience and necessity as a basis for granting authority to operate. In such situation the com intrastate common-carrier operations which is based on a finding of public convenience and necessity.-Crumpacker, 4 M. C. C. 264 (266). As applicant is not engaged in operations solely within one State, exemption in the second proviso of this section is not applicable, and applicant must obtain certificate from the commission.— Chicago & N. W. Ry. Co. Extension, 10 M. C. C. 111 (113); Wasie, 4 M. C. C. transportation for hire.-McDonald v. 726 (728); Dakota Transp., Inc., 8 Thompson, 305 U. S. 263*; Eastern CarM. C. C. 621 (630)*. [Others too numerous to list.] As "transportation in interstate or foreign commerce" between points wholly within a State, is not limited to that performed under joint rates or a common control, management, or arrangement for a through shipment, it obviously may include also transportation within a State performed under a separate contract from that relating to transportation to or from points without the State.-Rush, 17 M. C. C. 661 (674). 50. "Grandfather" clause; bona fide operation. See also effect of violation of State laws, n. 53, this paragraph. Effect of holding State certificate, n. 26, this paragraph. Transportation of mail, newspapers, express, under "grandfather" rights, sec. 208 (d), n. 1, 10. rier Corp. v. United States, 31 Fed. Supp. 232*; Loving v. United States, 32 Fed. Supp. 464*; Houston Inland Forwarding Co., 21 M. C. C. 669 (673)*. Since the new regular route was not in existence on June 1, 1935, and the irregular "anywhere-for-hire" service was not "so operated", as required by sec. 206, when the commission passed upon the application for "grandfather" certificate, it rightly rejected the application.-United States v. Maher, 307 U. S. 148*. State act under which carriers operating on a given date were authorized, conferred a monopoly; but the right conferred by the statute was subject to the right of the State to change it. Motor carrier which acquired certificates at cost of $84,388 not entitled to deduct cost thereof as a loss because of destruction by statute of monopoly enFreight Lines, "Grandfather" rights, contract car-joyed.-Consolidated rier, sec. 209 (a), n. 10. Inc., v. Commissioner of Internal ReveSpecial or charter party operations, nue, 101 Fed. (2d) 813*. [Not arising sec. 208 (c), n. 1. hereunder]. As the act is remedial and to be construed liberally, the proviso defining exemptions is to be read in harmony with the purpose of the measure and held to extend only to carriers plainly within its terms. To limit the meaning to mere physical operation would be to eliminate "bona fide," contrary to the rule that all words of a statute are to be taken into account and given effect if that can be done consistently with the plainly disclosed legislative intent.-McDonald V. Thompson, 305 U. S. 263*; Eastern Carrier Corp. v. United States, 31 Fed. Supp. 232*; Gable Transport Co., Inc., 11 M. C. C. 247 (250). "In bona fide operation" suggests absence of evasion, excludes the idea that mere ability to serve as a common carrier is enough, includes actual rather than potential or simulated service, and implies recognition of the power of the State to withhold or condition the use of its highways in the business of Applicant had no vested right to use public highways to carry on an interstate business without obtaining certificate or permit required. By the "grandfather" application it sought a privilege, which, if denied, involved no deprivation of its right to apply for authority under secs. 207 and 209, and obtain it, if it could satisfy the commission public convenience and necessity would thereby be served and that it is fit to operate in interstate commerce.-Visceglia v. United States, 24 Fed. Supp. 355*. It is doubtful that the administrative practice of the commission has been in effect sufficiently long to be conclusive of the question of what constitutes bona fide operation. However, interpretation of the congressional act by the commission is entitled to weight.Loving v. United States, 32 Fed. Supp. 464*. Bona fide operation includes actual operations conducted and carried on by hearing.—Benjamin Line, Inc., 1 M. C. C. 97 (99). a carrier prior to June 1, 1955, and sub- | public It was not the intent of Congress that a carrier must have been in physical operation to all points to which it claims to have rendered service, on the exact date specified in the statute.George Cassens & Sons, 1 M. C. C. 771 (774). Franklin In absence of proof of bona fide operation on statutory date by applicant or its predecessor, or that interruption of service was one over which applicant had no control, commission is without authority to issue certificate.-Id., p. 99. "Bona fide" operation does not include use by the partnership of more than one name.-Brown Motor Freight Lines, Inc., 2 M. C. C. 667 (671-2)*; Houston Inland Forwarding Co., 21 M. C. C. 669 (673)*. continue the business in which they were engaged on June 1 and July 1, 1935, respectively, and in which they have continued since.-Motor Convoy, Inc., 2 M. C. C. 197 (200) Operation pending determination of suit resisting regulation believed to be beyond the power of the State to imThe "grandfather" clauses were depose does not constitute bona fide opera-signed to protect the right of carriers to tion within the meaning of the act. Unlawful operation, i. e., without State authority, is not bona fide.-A. E. McDonald Motor Freight Lines, Inc., v. United States, Fed. Supp. -*; Keele v. United States, Fed. Supp. -*. One purpose of the use of the words "bona fide operation" was to deny rights under the "grandfather" clauses to those who, with knowledge of impending legislation, should make a show of commencing operations, not in pursuance of any well-conceived plan of furnishing transportation service, but of thereby securing rights to operate having in themselves a money value.Slagle, 2 M. C. C. 127 (142). A common carrier can lawfully restrict its undertaking to carriage of specific commodities between specific places and over specific routes.-Id., p. 136. The term "within a territory" does not necessarily mean an entire State if the bona fide operations continuously conducted on, prior to, and since June 1, 1935 were actually confined to a particular portion of certain States.--Robinson, 7 M. C. C. 151. Mere publication of a tariff naming rates between particular points does not constitute bona fide operation.—Adams Transfer & Storage Co., 14 M. C. C. 613 (623). Regardless of the merit of applicant's reason for failure to file an application within the statutory period, his right to authority under the "grandfather" clauses is lost. Stuart, 10 M. C. C. 470 (471). The commission does not feel constrained to deny an applicant a certificate sought as a successor in interest solely because of a delay in securing approval of the acquisition.-English, 11 M. C. C. 293 (298). Since applicant did not commence operation until January 1936, discontinued in July 1936, does not now rely on any operations by a predecessor, it was not in bona fide operation on June 1, 1935, and continuously since.-Gulf Coast Motor Freight Lines, Inc., 3 M. C. C. 497 (499)*. See also n. 2, this paragraph. Whether applicant was in bona fide operation on June 1, 1935, is a question As neither applicants nor their predeof fact to be determined by the commis-cessor prior to January 1, 1936, transsion. In such determination it is not restricted to ex parte statements or allegations in the application, and may in its discretion set any application for ported automobiles nor operated from any point other than Buffalo, applicants have no "grandfather" rights as to their present operations instituted after the |