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April 12, 1949


The opinion of the court was delivered by: BLACK

In this action plaintiffs seek to set aside and annul a report and order dated August 13, 1947 of the Interstate Commerce Commission and the certificate of public use and necessity issued thereunder on February 25, 1948 to United Truck Lines, Inc.

 Plaintiffs hereinafter will usually be referred to as Consolidated Freight, Garrett Freight and Inland Motor, respectively. United Truck Lines, Inc., intervening defendant and grantee of the certificate complained of, will usually be referred to as United Truck or applicant.

 In such report the Commission by Division 5, found that the present and future public convenience and necessity required operation by United Truck, the applicant, in interstate and foreign commerce as a common carrier by motor vehicle of general commodities, with certain exceptions, between Spokane, Washington and Boise, Idaho, over a specified regular route, and over an alternate route via Moscow, Idaho, with service at intermediate points between Spokane and Lewiston, Idaho and between Boise and Caldwell, Idaho, and to the off-route point of Clarkston, Washington, which is just across the Snake River from Lewiston, Idaho. A bridge spans such river boundary between the two states.

 The application of United Truck was filed in June, 1945 pursuant to the provision of 49 U.S.C.A. § 307. By such application United Truck asked not only the authority granted by the Commission but also considerable more, both as to additional routes, regular and irregular, and as to additional points on the regular route granted.

 The three plaintiffs above-named and a number of other carriers, such others mostly operating over short routes, protested the application. Hearings were held at Spokane in November, 1945, at Boise in April, 1946, and at Lewiston later in April, 1946. The record thereof comprised 527 pages of testimony and 31 exhibits.

 In its recommended report and order of November, 1946 the Joint Board recommended denial of authority to United Truck to operate over the irregular routes requested and recommended granting of all the authority finally permitted by the certificate issued February, 1948, as above. In addition, such Joint Board's recommended report of November, 1946 recommended authority to United Truck to serve three off-route points instead of merely Clarkston as ultimately specified.

 The three plaintiffs herein filed exceptions to such recommended report and order of said Joint Board. No other protestants or parties took any exception thereto. United Truck duly filed its answer to such exceptions.

 Division 5 of the Commission on August 13, 1947 made its report and order which in this proceeding are attacked. The findings of the Joint Board were sustained except that the three off-route service points were reduced to Clarkston only as previously stated.

 Plaintiffs on September 10, 1947 filed their joint petition for reconsideration. Such petition was denied by the entire Commission at a General Session on January 5, 1948. The certificate to United Truck was issued in February, 1948.

 Plaintiffs promptly brought this action on the same day the certificate was issued. But immediately before the time fixed for the hearing of this matter before the three-judge court plaintiffs made a motion for continuance upon the ground that they had just filed with the Interstate Commerce Commission a petition asking revocation of the certificate issued to United Truck. A copy of the alleged petition for revocation accompanied the motion.

 The Interstate Commerce Commission objected to any such continuance, alleging that no such petition for revocation had been filed with it, and urging that in any event the motion did not state any ground for a continuance of the hearing in this proceeding.

 All parties being represented before the Court, the hearing was held, the motion for continuance being taken under advisement. In due course briefs were submitted in behalf of the various parties.

 Such motion for continuance would, therefore, appear moot. In any event the motion for continuance should be denied because of the tardiness of its presentment. Aside from that the motion is not meritorious. This court's function in this matter has been to consider whether or not the Commission's action in authorizing and issuing the certificate should be set aside.

 Whether plaintiffs are entitled under the Act, See 49 U.S.C.A. § 312, to have the Commission subsequently revoke the certificate previously issued is another and entirely independent question and entirely one for the Commission in ...

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