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W.J. DILLNER TRANSFER CO. v. UNITED STATES

December 14, 1967

W.J. Dillner Transfer Co., Plaintiff,
v.
United States of America and Interstate Commerce Commission, Defendants



The opinion of the court was delivered by: WEBER

This is an action under Sections 1336, 1398, 2284, and 2321-2325 of Title 28, United States Code, to set aside the report and order of the Interstate Commerce Commission in W.J. Dillner Transfer Co. Common Carrier "Grandfather" Application - Petition for Modification, 99 M.C.C. 485, decided September 3, 1965.

Dillner claims that the Interstate Commerce Commission has, by subsequent interpretation, modified or restricted the operation of its motor common carrier "grandfather" certificate previously granted it in 1942 under Section 206 of the Interstate Commerce Act, 49 U.S.C. § 306.

 W.J. Dillner Transfer Co. is a Pennsylvania corporation, successor to a partnership, which has continuously conducted a transportation business since 1910. Upon the adoption of the Motor Carrier Act of 1935 [now designated as Part II of the Interstate Commerce Act, 49 U.S.C. § 306], Dillner made application for a certificate as a common carrier by motor vehicle under the "grandfather clause" of that Act. Section 206(a)(1) of the Interstate Commerce Act, 49 U.S.C. § 306(a)(1) provides in part:

 
"Except as otherwise provided . . . no common carrier by motor vehicle . . . shall engage in any interstate or foreign operation . . . unless there is in force with respect to such carrier a certificate of public convenience and necessity issued by the Commission authorizing such operations: Provided, however, That, . . . if any such carrier or a predecessor in interest was in bona fide operation as a common carrier by motor vehicle on June 1, 1935, over the route or routes or within the territory for which application is made and has so operated since that time, . . . the Commission shall issue such certificate without requiring further proof that public convenience and necessity will be served by such operation, and without further proceedings, if application for such certificate is made . . . and if such carrier was registered on June 1, 1935, under any code of fair competition requiring registration, the fact of registration shall be evidence of bona fide operations to be considered in connection with the issuance of such certificate . . ."

 Sec. 208(a), 49 U.S.C. § 308(a) reads in part:

 
"Any certificate issued under section 306 or 307 of this title shall specify the service to be rendered and the routes over which . . . the motor carrier is authorized to operate . . ."

 Dillner made timely application for a "grandfather" certificate in 1936, and after extensive proceedings it was finally issued its certificate on September 14, 1942, the relevant portion of which reads as follows:

 
"Heavy machinery, and such commodities which because of their weight and size, require special equipment . . ."

 In 1950, on application of Plaintiff, a more extensive certificate was granted Dillner on evidence of public convenience and necessity, couched in somewhat different language:

 
"Such commodities as, because of their weight or size require special equipment, . . ."

 In 1950, on application of Plaintiff, a more extensive certificate was granted Dillner on evidence of public convenience and necessity, couched in somewhat different language:

 
"Such commodities as, because of their weight or size, require special equipment, . . ."

 On April 10, 1959, in W.J. Dillner Transfer Co. - Investigation of Operations, 79 M.C.C. 335, the Commission undertook an extensive investigation of what was involved in Dillner's rights as a heavy hauler. The Commission's conclusion was that the test of whether a special equipment carrier was authorized to transport a particular commodity depended upon whether the commodity in question required the use of a special service or special equipment by the carrier in either loading, transporting or unloading. The resolution of the entire problem depended upon whether the commodity involved required the use of such special equipment because of its "inherent nature." Under such a test commodities such as bundled steel rods or palletized firebrick were not within the heavy hauling rights of Dillner because their inherent nature did not require bundling or mounting on pallets for shipment. Upon ...


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