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WILLIS SHAW FROZEN EXPRESS, INC. v. UNITED STATES

May 31, 1966

WILLIS SHAW FROZEN EXPRESS, INC., PLAINTIFF,
v.
UNITED STATES OF AMERICA AND INTERSTATE COMMERCE COMMISSION, DEFENDANTS.



Before Mehaffy, Circuit Judge, and Miller and Henley, District Judges.

The opinion of the court was delivered by: John E. Miller, District Judge.

  OPINION

In this action commenced July 6, 1965, the plaintiff, Willis Shaw Frozen Express, Inc., seeks to suspend and set aside orders of the Interstate Commerce Commission of February 2, 1965, and June 3, 1965. The instant action is a continuation of protracted litigation between the plaintiff and the ICC which has lasted almost eight years. This court has jurisdiction of the subject matter and of the parties under 49 U.S.C.A. Sec. 17(9), 305(g); 28 U.S.C.A., Secs. 1336, 1398, 2321, 2325, 2284.

"Findings

    "The examiner finds that on May 1, 1958,
  applicant was in bona fide operation, in
  interstate or foreign commerce, as a common
  carrier by motor vehicle, (a) of frozen fruits,
  frozen berries, and frozen vegetables, (1) from
  Burley, Caldwell, and Nampa, Idaho, and points in
  California, Oregon, and Washington, to Denver,
  Colo., Detroit, Mich., Omaha, Nebr., and points
  in Arkansas, Illinois, Iowa, Kansas, Missouri,
  Oklahoma, and Texas, (2) from Little Rock, Ark.,
  and from points in that part of Arkansas on,
  north, and west of a line beginning at the
  Arkansas-Oklahoma State line near Fort Smith,
  Ark., and extending along Arkansas Highway 22 to
  Dardanelle, Ark., thence northward along Arkansas
  Highway 7 to Harrison, Ark., and thence along
  U.S. Highway 65 to the Arkansas-Missouri State
  line, to points in Illinois, Michigan, Missouri,
  and Texas, (3) from points in Minnesota on and
  south of U.S. Highway 14 to Omaha, Nebr., and
  points in Arkansas, Kansas, Missouri and
  Oklahoma, (4) from points in the Lower Peninsula
  of Michigan to Omaha, Nebr., and points in
  Kansas, Missouri, and Oklahoma, (5) from Kansas
  City, Kans., Kansas City, Mo., Omaha, Nebr., and
  Oklahoma City, Okla., to points in California and
  Oregon, (6) from Omaha to points in Arkansas, and
  (7) from Chicago, Ill.; to Kansas City, Mo., and
  (b) of frozen fish when moving in the same
  vehicle with frozen fruits, frozen berries, or
  frozen vegetables from Monterey, San Jose, San
  Francisco, and Los Angeles, Calif., Idaho Falls
  and Twin Falls, Idaho, Astoria, Oreg., and
  Seattle, Wash., to points in Arkansas, Illinois,
  Iowa, Kansas, Missouri, Oklahoma, and Texas, all
  over irregular routes, and has so operated since
  that time; that applicant is entitled to a
  certificate authorizing continuance of the
  described operation; and that the application in
  all other respects should be denied."

On September 27, 1961, Division I of the Interstate Commerce Commission denied a substantial part of the authority sought by plaintiff, and restricted and delineated the authority recommended by Hearing Examiner Cave, set forth above. Shaw requested reconsideration, which was denied February 7, 1962.

On March 29, 1962, Shaw commenced the initial action in this court against the United States and the Interstate Commerce Commission to review and set aside the report and order of the Commission of September 27, 1961. This court, Circuit Judge M. C. Matthes, District Judges John E. Miller and J. Smith Henley, dismissed the plaintiff's complaint February 11, 1963, and plaintiff's motion for rehearing was denied by the court March 8, 1963.

Shaw appealed the judgment dismissing his complaint to the Supreme Court of the United States, which reversed the judgment of this court May 4, 1964, and in a per curiam opinion, 377 U.S. 159, 84 S.Ct. 1154, 12 L.Ed.2d 211, stated:

    "Appellant applied to the Interstate Commerce
  Commission under the grandfather clause of the
  Transportation Act of 1958, Sec. 7(c), 72 Stat.
  573, 49 U.S.C. § 303(b)(6), to transport as a
  common carrier over irregular routes frozen
  fruits, berries, and vegetables, and frozen
  seafoods and poultry when transported with such
  frozen fruits, berries, and vegetables. The
  Commission granted a certificate which
  substantially curtailed appellant's prior
  operations. 89 M.C.C. 377.

  The District Court affirmed without opinion.
    "We think United States v. Carolina Freight
  Carriers Corp., 315 U.S. 475, 62 S.Ct. 722, 86
  L.Ed. 971, requires reversal of the judgment and
  a remand to the Commission for reconsideration in
  light of appellant's status and performance as a
  common carrier, the transportation
  characteristics and marketing pattern of these
  seasonal agricultural products, and the
  demonstrated ability of appellant to perform the
  services. [Id., at 482-489] [62 S.Ct., at
  726-730]."

On June 15, 1964, this court remanded the case to the Interstate Commerce Commission for further proceedings consistent with the above quoted opinion and mandate of the United States Supreme Court. The Commission's report, February 2, 1965, contains two dissents, one by Commissioner Webb and one by Commissioner Brown. The dissents emphasized that the items in question, frozen fruits, frozen berries and frozen vegetables, should be considered for the purposes of this plaintiff's application as a single class of commodities. They were of the opinion that the territorial authority should be granted on the basis of considering these three items as a single class because of their common characteristics, common packing and handling and delivery to common consignees.

Willis D. Shaw, as an individual, began operating a trucking business in 1938. From the period 1938 through 1948 he transported in interstate commerce fresh fruit, fresh vegetables and live poultry between points in Arkansas, Georgia, Delaware, Maryland, Indiana, Missouri, Oklahoma, Kansas, Texas, Illinois, Minnesota, Michigan, Iowa, Florida, Louisiana, New York, Colorado, Ohio, Pennsylvania, Alabama, California, New Mexico, South Dakota, Kentucky, and Wisconsin. The trucking operation during this period was operated both for hire and as a buy-and-sell with approximately 20 tractors and trailers. Between 1948 and 1957 the trucking operation was operated as a partnership by Willis Shaw and Ellis Bogan. They transported in interstate commerce fresh fruits and vegetables and frozen commodities in straight and mixed loads, both for hire and buy-and-sell. In 1957 a contract carrier permit was granted, authorizing the transportation of frozen poultry and frozen foods from three named companies from Little Rock and points in northwest Arkansas to points in eight western states. The permit was converted to an interstate certificate June 2, 1958, and was transferred to Willis Shaw Frozen Express, Inc., on February 4, 1959. Since 1948 the partnership and later the corporation, the present applicant, have transported frozen fruits, frozen berries, frozen vegetables, frozen poultry, frozen fish, as well as certain exempt items in straight and mixed shipments. The plaintiff presently maintains its general office at Elm Springs, Ark.

The plaintiff's application for "grandfather" authority resulted from the passage of the Transportation Act of 1958, which brought under regulatory power of the ICC commodities including frozen fruits, frozen berries and frozen vegetables, which prior to that time had been exempt from regulation. See 49 U.S.C.A., Sec. 303(b)(6). Prior to the passage of the Transportation Act, Shaw was in bona fide operation as an irregular-route motor common carrier in interstate commerce, transporting frozen fruits, frozen berries and frozen vegetables. In its application for a "grandfather" ...


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