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JONES TRUCK LINES v. UNITED STATES

December 12, 1956

JONES TRUCK LINES, INC., PLAINTIFF,
v.
UNITED STATES OF AMERICA, AND THE INTERSTATE COMMERCE COMMISSION, DEFENDANTS, AND EAST TEXAS MOTOR FREIGHT LINES, AND SUPERIOR FORWARDING COMPANY, INC., INTERVENING DEFENDANTS.



Before Whittaker, Circuit Judge, and Miller and Ridge, District Judges.

The opinion of the court was delivered by: Whittaker, Circuit Judge.

By this action the plaintiff, Jones Truck Lines, Inc. — hereinafter called Jones — asks this specially constituted three-judge Court to enjoin enforcement of, and to set aside, an order of the Interstate Commerce Commission, dated March 13, 1956, requiring Jones to cease conducting motor carrier operations in areas in Arkansas found in that order to be beyond the scope of its certificate of convenience and necessity.

Though jurisdictional and procedural questions are raised, the basic dispute is over what area is embraced in an irregular route operating authority in Arkansas, purchased by Jones (along with other operating rights) from Chief Express, Inc., with Commission approval, and covered in a new certificate, No. MC-111231 (Sub. No. 5), issued to Jones on October 4, 1951, which described the area as follows:

"Between points in Arkansas on and east of U.S. Highways 63 and 67 * * *."

These highways cross Arkansas somewhat in the form of an "X". Highway 63 enters Arkansas, from the north, at the Missouri-Arkansas border near the Arkansas town of Mammoth Springs, and runs, thence, southeasterly, through Hoxie, to the Mississippi River. Highway 67 enters Arkansas, from the north, at the Missouri-Arkansas border near the Arkansas town of Corning, and runs, thence, southwesterly, through Hoxie, to Texarkana, Arkansas. These highways, thus, cross at Hoxie.

Soon after the issuance of the questioned certificate, Jones published tariffs applicable to, and began operating in, and has ever since operated in, not only the east quadrant, but also in the north and south quadrants, of the "X".

On December 15, 1952, slightly more than one year after the issuance of the questioned certificate, the District Director of the Commission's Bureau of Motor Carriers (one Hagarty) stationed in Little Rock, wrote Jones, saying it appeared that Jones was erroneously interpreting the area description in the certificate "as embracing a larger area than that intended", and that "the area involved embraces only that portion of Arkansas on and east of U.S. Highway 63 from the Mississippi River to its junction with U. S. Highway 67, and on and east of U.S. Highway 67 to the Arkansas-Missouri state line", and the letter requested Jones to confine its future activities to that area. Jones did not reply to that letter, but, in a later conference with a Commission representative, it disagreed with the interpretation of the area embraced by the certificate as set forth in that letter, and admitted it was conducting operations in the north and south quadrants of the "X", but claimed the right to do so under the language of the certificate and asserted it would continue to serve that area.

On March 24, 1955, the Commission, Division 5, entered an order instituting a formal investigation into the matter. The order recited that on October 4, 1951, in MC-111231, Sub. 5, a certificate was issued to Jones authorizing, in part, operations "over irregular routes between points and places in Arkansas on and east of U.S. Highways 63 and 67", and recited further that "there is reason to believe" that Jones had been operating to and from named towns in the south quadrant of the "X", which said certificate did not authorize it to serve, in violation of Section 206(a)(1) of the Interstate Commerce Act, and it ordered an investigation, under Sections 204(a) and 212(a) of the Act, into the practices of Jones, and further ordered Jones to appear for hearing at a time and place to be later fixed, and it further ordered the Commission's Bureau of Inquiry and Compliance — hereafter called the Bureau — to give timely notice to Jones, prior to the proposed hearing, of "the particular operations alleged to have been performed in violation of Section 206(a)(1) of said Act."

That order was timely served upon Jones, and, on April 15, 1955, counsel for the Bureau wrote Jones, referring to the Commission's order of March 24, 1955, instituting the investigation, and attaching an exhibit, listing 21 shipments transported by Jones to or from towns located in the south quadrant of the "X" referred to, and saying that the exhibit would be offered in evidence at the hearing, and saying further, "In addition, it will be contended that your company has no authority, under Sub. 5 above, to serve any portion of the territory in Arkansas lying east of Highway 67 and south of Highway 63, and lying west of Highway 67 and north of Highway 63."

To correct the error of reference to Section 204(a) in the original order — when Section 204(c) was intended — and to disclose the source of Jones' full operating authority, the Commission, on May 12, 1955, entered an amended order of investigation, reciting that certificates of public convenience and necessity issued to Jones in Docket numbered MC-111231, and Subs. 1, 3, 5, 7, 8, 9, 15, 18 and 21 thereto, authorized operations over regular and irregular routes between points and areas in Illinois, Missouri, Kansas, Arkansas, Oklahoma, Texas and Tennessee, and reciting that on October 4, 1951, in MC-111231, Sub. 5, a certificate was issued to Jones authorizing, in part, operations over "irregular routes between points and places in Arkansas on and east of U.S. Highways 63 and 67, on the one hand, and, on the other, points to which service is authorized in connection with the regular routes described in said certificate", and reciting that there is reason to believe that Jones, in transporting commodities under the various certificates issued to it, or by various combinations of its operating authority, had been serving points in Arkansas, in the south quadrant of the "X", not authorized to be served under Certificate MC-111231, Sub. 5, in violation of Section 206(a)(1) of the Act, and ordering that an investigation be instituted, under Sections 204(c) and 212(a) of the Act, into Jones practices, and referring the matter to Joint Board No. 91 (consisting of representatives of the states of Missouri and Arkansas) for hearing at Little Rock on June 20, 1955.

A copy of that amended order was timely served on Jones, and on May 19, 1955, the Commission issued and served on Jones an amended notice of hearing, reciting that the hearing to be held at Little Rock on June 20, 1955, "will be upon matters covered by the amended order of the Commission, Division 5, entered May 12, 1955."

On June 3, 1955, the Commission, Division 5, entered an order vacating so much of the order of May 12, 1955 as referred this matter to Joint Board 91 for hearing, and ordered that the matter be referred to Examiner Cantrell for hearing at Little Rock on June 20, 1955. That order was duly served upon Jones.

Before, and again at the time of, the hearing before Examiner Cantrell at Little Rock, on June 20, 1955, Jones objected both to the timeliness and the sufficiency of the notice of hearing, and also objected to the holding of the hearing before a Commission examiner, contending that the matter was one properly to be heard by a joint board. These objections were overruled, and the hearing proceeded before Examiner Cantrell at the place and on the date stated, at which the Bureau offered, and, over objection of Jones, the Examiner received in evidence, the original certificate, creating this irregular route operating authority, issued by the Commission to Righter Trucking Company on April 27, 1942, and all subsequent certificates issued by the Commission to transferees of this operating authority.

Examiner Cantrell filed his proposed report on October 10, 1955, finding and concluding that Jones' Sub. 5 certificate, in unambiguous terms, embraced only "points in Arkansas on and east of U.S. Highway 63 from the Mississippi River to Hoxie and on and east of U.S. Highway 67 from Hoxie to the Arkansas-Missouri state line", and that Jones was knowingly and willfully operating outside that area, under that certificate, in violation of Section ...


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