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MISSISSIPPI EAST, INC. v. UNITED STATES

July 14, 1969

Mississippi East, Inc., Plaintiff,
v.
United States of America, Interstate Commerce Commission, Aetna Freight Lines, Inc., Daniels Motor Freight, Inc., Detroit-Pittsburgh Motor Freight, Inc., Hess Cartage Company, The Kaplan Trucking Company, Sentle Trucking Corporation, Herriott Trucking Company, Inc., Lattavo Brothers, Inc., and Industrial Cartage Co., Inc., Defendants



The opinion of the court was delivered by: STAHL

This action was brought by plaintiff Mississippi East, Inc., to annul and set aside the orders of the Interstate Commerce Commission (ICC) of September 18, 1967 *fn1" and June 13, 1968, *fn2" which denied plaintiff's May 17, 1965, application, at Docket No. MC 107726 (Sub. No. 3), for a certificate of public convenience and necessity under § 207(a) of the Interstate Commerce Act, 49 U.S.C. § 307(a). *fn3"

Mississippi East had been granted temporary authority in the spring of 1965 to transport steel and iron articles from Allenport, Monessen and Washington, Pennsylvania, to points in Illinois, Indiana, Ohio, Michigan and St. Louis, Missouri. The temporary authority was granted prior to a threatened steel strike when consumers around the country were stockpiling large quantities of steel in anticipation of labor difficulties. (105 M.C.C. at 643-644.) Plaintiff subsequently applied for permanent authority to enable it to service the above locations.

 To accept the position presented by the plaintiff would be to misunderstand the nature of this litigation. These were not 32 separate proceedings, but rather one single consolidated proceeding to which the plaintiff was a party. Plaintiff relies heavily on the following language from United States v. Pierce Auto Freight Lines, Inc., 327 U.S. 515, 527-528, 90 L. Ed. 821, 66 S. Ct. 687 (1946):

 
. . . The principal cause of complaint in these respects is that the Commission did not consider each case exclusively on its own record but looked to the evidence in both proceedings in forming its judgment. If this is true and if it has resulted in substantial prejudice to the appellees, as might occur, for example, if the Commission were shown prejudicially to have considered evidence bearing on one case which did not affect it and was presented in the other, and which appellees were given no opportunity to meet, the orders, or one of them, would be improperly grounded.

 We believe that the language closely following the above quotation controls this case:

 
. . . In the absence of any showing of specific prejudice, the claim comes down to the highly technical objection that the Commission, in the final stage of forming its judgment, could not in either case take account of what had been done in the other, notwithstanding the closely related character and objects of the applications and the prior proceedings. The contention in its farthest reach amounts to a legal version of the scriptural injunction against letting one's right hand know what one's left hand may be doing.
 
Obviously it would be consistent neither with good sense nor, we think, with the type of hearing assured by the statute to force the Commission to put on such complete blinders. . . . [Given] that the report contains all the essential findings required, cf. Florida v. United States, 282 U.S. 194, 75 L. Ed. 291, 51 S. Ct. 119, the Commission is not compelled to annotate to each finding the evidence supporting it. Id. at 529.

 To require the ICC to conduct separate proceedings in situations similar to the instant case would be to saddle the Commission with an unworkable burden. There is much to be gained in consolidated proceedings. Not only is there benefit to the Commission in having the various applications for service in a single area joined together, but the parties benefit as well, applicants and protestants alike, in that they may interrogate witnesses (including supporting shippers) whose presence at the hearings might otherwise have been difficult or expensive to secure. This serves to accommodate the convenience of all the parties and to make available a great deal of relevant testimony to the hearing examiner and the ICC, thus leading to a more rational decision based upon as much evidence as it is feasible to obtain.

 Plaintiff asserts that such a consolidated proceeding is unfair *fn4" because it does not have standing to cross-examine witnesses whose testimony is elicited by other applicants or protestants. To the contrary, we believe plaintiff does have a right to cross-examine *fn5" and, had plaintiff made such a request and it were denied, the ICC would be precluded from considering evidence concerning applications other than that of the plaintiff. Such a request or denial did not occur here.

 In attacking the procedure employed by the Commission to determine the facts upon which its ultimate decision was based, the plaintiff charges the Commission with failure specifically to relate its findings and conclusions to the evidence. We believe that such a point-by-point annotation is not legally required, United States v. Pierce Auto Freight Lines, Inc., supra, where the grounds for the Commission's action can be clearly perceived from its order. *fn6"

 The Commission listed and summarized the applications sought (105 M.C.C. at 662-667), *fn7" presented the tonnage handled by the applicants holding temporary orders (105 M.C.C. at 667-668), summarized the shipper support for the various applications (105 M.C.C. at 648), and described the services being provided by the shippers with permanent authority (105 M.C.C. at 650-658, 668-678). The Commission fully described the conditions under which the temporary authority had been granted to the various applicants:

 
The considered applications were filed during, or shortly after, the period of negotiations between labor unions and the managements of the principal iron and steel producers in Ohio and western Pennsylvania relating to a new collective bargaining agreement in an attempt to avert a strike. The then effective 3-year agreement was due to expire on April 30, 1965, but the date of the threatened strike was extended because negotiations for a new contract were then in progress. The negotiations extended through the last quarter of 1964 and continued until a satisfactory agreement was reached by the parties in September 1965. During the period of negotiations, and particularly prior to the strike deadline of April 30, 1965, steel producers operated at an alltime peak capacity in response to inventory purchasing by their customers who were fearful that a strike would cut off their sources for iron and steel. Consequently the demand for iron and steel articles ...

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