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January 31, 1945


The opinion of the court was delivered by: MCGUIRE

This is a suit under 28 U.S.C.A. §§ 41(28), 43-47a, to set aside an order of the Interstate Commerce Commission entered November 11, 1943.

 The report and order of Division 5 of the Commission (Exhibit B to the complaint) dismissed plaintiff's application under the 'grandfather' clause of Section 206(a) of the Interstate Commerce Act. *fn1" This application, as amended, *fn2" sought a certificate of public convenience and necessity to continue operations as a common carrier by motor vehicle in interstate commerce of commodities to and from certain designated points over irregular routes. *fn3"

 On February 4, 1936, one John R. Mitchell (plaintiff's predecessor) filed an application with the Commission under the 'grandfather clause' of the Interstate Commerce Act -- supra, *fn1" requesting authority to operate as a common carrier by motor vehicle of commodities generally throughout Maryland, Virginia, North Carolina, Delaware, Pennsylvania, New Jersey and New York. The application was filed on the short emergency form, which specified that the applicant must, on or before a date to be designated by the Commission, furnish evidence to support all allegations.

 On March 8, 1937, Mitchell filed a statement of facts in support of his application in which he said that the main volume of his traffic was obtained in Florida, North Carolina, and Del-Mar-Va Peninsula, and was transported to Northern and Eastern markets. Seventy-five percent of the revenue was claimed to be derived from hauling farm products, the remainder from general commodities. At the same time Mitchell filed statements by two shippers to the effect that he had carried shipments for them to and from Florida, and he also filed a certificate of registration under the N.R.A. which recited that he operated in North Carolina, Virginia, Maryland, Delaware, Pennsylvania, New Jersey and New York. In this statement Mitchell indicated that, in addition to the seven states just named, he operated in Florida, Georgia, South Carolina, the District of Columbia, Connecticut, Rhode Island and Massachusetts.

 On April 5, 1937, the application was transferred to Mitchell's successor, Mitchell and Furniss, d/b/a Sussex Motor Line, a partnership.

 On December 8, 1937, at the direction of the Commission, Mitchell appeared before a District Supervisor to submit proof of his operations. He submitted an affidavit in which he enumerated seventeen classes of commodities which he handled and specified the points of origin and destination. It is alleged by the plaintiff that Mitchell exhibited to the Supervisor certain documents, books and papers, in support of his operations, and this allegation is apparently admitted by the Commission; there is, however, no reference to this evidence in the papers forwarded by the Supervisor to the Commission. Mitchell also submitted affidavits of ten shippers to the effect that he had hauled commodities for them; only one of those is specific as to dates, commodities transported, origin and destination. The District Supervisor forwarded to the Commission these eleven affidavits together with a short questionnaire, but it nowhere appears in the record what, if any, recommendation the Supervisor made.

 On February 12, 1938, the Commission entered an order authorizing the applicant to transport the seventeen classes of commodities enumerated in Mitchell's affidavit and designating practically the same points of origin and destination as had been specified in Mitchell's affidavit.

 On March 15, 1938, the rail carriers in the Official Classification Territory filed a petition with the Commission to stay issuance of the certificate upon the ground that there was not adequate proof to support the order as issued; it was requested further that the applicant be required to furnish documentary proof or specific affidavits indicating the nature of his operations. This petition was denied by Division 5 of the Commission on May 12, 1938.

 On October 28, 1938, the rail carriers filed another petition asking reconsideration and reopening of the applicant's case on the ground that proper proof had not been submitted to support such a broad authorization. It was further alleged that the original application, which mentioned only the seven states from North Carolina to New York, had never been amended. On May 19, 1939, the rail carriers were notified that the Commission deemed their objections sufficient to refer the case back to the field for further investigation.

 Accordingly the case was referred back to the District Supervisor with instructions to hold a conference with the rail carriers. After holding this conference the Supervisor notified the applicant that in the opinion of the protestants the evidence submitted was not sufficient to substantiate the scope of operations granted in the original order.

 The Supervisor requested that the applicant appear in his office on June 8, 1939, for an informal conference with the protesting rail carriers, bringing with him such additional proof as he had and specific affidavits of shippers. The applicant refused to appear and requested a formal hearing. On July 24, 1939, the Commission vacated the original order.

 On August 22, 1939, the application of Mitchell and Furniss was transfered to the Peninsula Corporation.

 On September 13, 1939, the Commission set the case for a formal hearing to be held before Examiner Kephart at Salisbury, Maryland, on October 11, 1939. On September 30, 1939, the rail carriers filed a ...

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