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DAILY EXPRESS, INC. v. UNITED STATES

May 17, 1972

Daily Express, Inc. and Johnson Trucking Co., Plaintiffs,
v.
United States of America and Interstate Commerce Commission, Defendants


Adams, Circuit Judge, Sheridan, Chief District Judge, and Muir, District Judge.


The opinion of the court was delivered by: MUIR

This is an action brought to set aside orders of the Interstate Commerce Commission which approved the acquisition by Daily Express, Inc. of control of Johnson Trucking Co. and the operating rights of Johnson. Daily Express, Inc. is called in this opinion "Daily" and Johnson Trucking Co. is called "Johnson." Plaintiffs contend that the approving orders (1) interpreted the certificates of public convenience of Johnson incorrectly, (2) conditioned consummation of the acquisition upon the acceptance by Daily of certificates containing restrictive interpretations of the grants of authority to Johnson and (3) denied a companion application of Daily seeking specifically the authority which the Commission had denied Plaintiffs by such interpretations.

 Jurisdiction is conferred upon this Court by 28 U.S.C. § 1336, 49 U.S.C. § 17(9), and 49 U.S.C. §§ 305(g)(h) and 5 U.S.C. §§ 701 et seq., specifically §§ 702 and 703, subject to provisions of 28 U.S.C. §§ 2284 and 2321-2325 concerning three-judge district court procedure applicable to such review.

 Venue in this district is founded upon 28 U.S.C. § 1398 by reason of the fact that the principal office of Daily is located in this District.

 Johnson is a common carrier authorized to transport iron and steel and heavy hauling commodities. The gravamen of Plaintiffs' case turns on the language and interpretation of its authorizations at Docket No. MC-84726 and Sub-Nos. 23 and 26. The base certificate at Docket No. MC-84726 reads as follows:

 
"Iron and steel, and iron and steel products, machinery, boilers, and contractors' equipment, over irregular routes,
 
Between points and places in Franklin County, Ohio, on the one hand, and, on the other, points and places in Kentucky, West Virginia, Indiana, Michigan, and Pennsylvania."

 Sub-No. 23 (Docket No. MC-84726) reads as follows:

 
"Commodities the transportation of which, because of their size or weight, require the use of special equipment, and related iron and steel and iron and steel products when their transportation is incidental to the transportation by said carrier of commodities which by reason of size or weight require special equipment, over irregular routes,
 
Between Columbus and points and places within 80 miles thereof (except points and places in Franklin County), on the one hand, and, on the other, points and places in Kentucky, West Virginia, Indiana, Michigan, and Pennsylvania.
 
Between Columbus and points and places within 80 miles thereof, on the one hand, and, on the other, points and places in Illinois and New York."

 Sub-No. 26 (Docket No. MC-84726) reads as follows:

 
"IRREGULAR ROUTES:
 
Self-propelled articles, each weighing 15,000 pounds or more, and related machinery, tools, parts, and supplies moving in connection therewith,
 
Between Columbus, Ohio, and points within 80 miles thereof (except points in Franklin County), on the one hand, and, on the other, points in Indiana, Kentucky, ...

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