has found that the shippers required single-line service in refrigerated cars and that Midwest had such equipment and was able to offer such service. Worster's was a joint service unsatisfactory to the shippers as quick single-line service was a necessity in order to keep spoilage of the product in transit to a minimum. It must be conceded, of course, that this Court has no way of determining how much weight the Commission gave to the lack of authority which it found in Worster. But it is not necessary for the Court to make such a finding or even speculate on it. It is believed that necessarily the scope of a protestant's authority is subject to interpretation when it protests an application which is pending before the Commission. The Commission must find that the public convenience and necessity require the requested operating rights. An important factor for the Commission to consider is whether the operating rights which are applied for are already covered by the certificates of the protestant. As it says in its report of January, 1962, 'We have consistently held that existing motor carriers should be afforded an opportunity to serve a shipper before a new carrier is authorized to enter a territory.' In the opinion of the Court this, of necessity, requires the Commission to review the scope of the authority of each competing carrier who protests an application.
In an opinion written by Judge Ganey in Robbins v. United States, 204 F.Supp. 78, 81 (E.D.Pa., 1962), it was held that:
'* * * one of the basic ingredients in the determination of public convenience and necessity is the adequacy of existing service. * * * And the burden of producing evidence to show that 'the proposed service, to the extent to be authorized by the certificate, is or will be required by the present or future public convenience and necessity' is on the applicant. * * * Since the evidence of the adverse effect on them is generally within their control, the protesting carriers should come forward with information of that nature to persuade the Commission to deny the certificate.' (citing cases)
See Hudson Transit Lines, Inc. v. United States, 82 F.Supp. 153, (S.D.N.Y., 1948), aff'd 338 U.S. 802, 70 S. Ct. 59, 94 L. Ed. 485.
And further, it is to be noticed that it is conceded by Mr. Knox that in its application for reconsideration Worster did not suggest that it wished to offer evidence on the merits of the Midwest application or on the scope of Worster's authority. The reconsideration was sought on the ground that the previous Order of the Commission was incorrect as a matter of law. That is the same position that Worster presents to this Court and we find it to be without merit.
And finally, plaintiff Worster not complaining of the issuance of the Midwest authority per se based on the merits of the application, nevertheless, is fearful in this case that the Commission has in a backhanded manner, so to speak, interpreted the scope of its authority which amounts to a revocation of that authority. As Mr. Knox says in his brief in summary:
'We wish again to reiterate that if the Commission had stated that Worster's authority, even if taken for granted, would not have interfered with the grant of authority of Midwest Coast Transport, we would have little (to) complain about in this Court. Why didn't the Commission say so and not leave Worster's authority under a cloud which becomes res judicata without Worster ever having had a chance fully to develop the background of its authority in a plenary proceeding?'
This contention finds support in the dissenting opinion of Commissioner Webb in the 1962 report where he said:
'In my opinion, such a finding is tantamount to a partial revocation of the operating authority of RFX and of all other carriers holding similar operating authority.'
However, it seems to this Court that the apprehension of plaintiff that the Commission's consideration of the scope of its authority may be res judicata is not warranted. The attorney appearing in this Court for the Interstate Commerce Commission forthrightly indicated to the Court in colloquy that the decision of the Commission in Sub 118 and Sub 126 does not preclude a plenary proceeding by Worster before the Commission if Worster so desires to secure a definitive interpretation of its authority. In fact, Mr. Knox has already filed a Sub 66 proceeding asking for an interpretation of its certificate as covering frozen prepared foodstuffs which is pending before the Commission. This Court assumes as shown on the record that the Commission will stand by the statements of its counsel made in this Court. For instance, the colloquy in part is as follows:
'Judge Staley: * * * is it your view * * * on behalf of the Commission * * * that Worster can apply for a plenary proceeding for a definitive interpretation of its certificate as to these matters? 'MR. PLOSS: Yes, your Honor. 'JUDGE STALEY: Even in the face of what allegedly is this interpretation in this proceeding? 'MR. PLOSS: Yes, indeed, your Honor.'
It must not be overlooked that the Interstate Commerce Commission under the law acts on a finding of public convenience and necessity. This necessarily implies that the necessity of the public may change from time to time. The Commission, therefore, is not ruled by res judicata as that term is used by courts as a rule of precedence. 'The power of an administrative body or agency to reconsider its own findings or orders has no relation to, and is not affected by, the doctrine of res judicata.' 50 C.J.S. Judgments, § 607. 'Stated more simply, an administrative agency is not bound by its own prior determinations, though the courts may take these prior determinations into consideration.' State Airlines, Inc. v. Civil Aeronautics Board, 84 U.S.App.D.C. 374, 174 F.2d 510, 518 (1949). See also Pennsylvania Water & Power Co. v. Federal Power Commission, 74 U.S.App.D.C. 351, 123 F.2d 155, 162 (1941).
Upon a careful review of the record, we are satisfied that the Commission acted on substantial evidence well within its powers, and that its Orders must be affirmed. The complaint is directed to be dismissed.
© 1992-2004 VersusLaw Inc.