The opinion of the court was delivered by: EAST
The Plaintiffs, Garrett Freightlines, Inc., O.N.C. Motor Freight System and Silver Eagle Company (Plaintiffs) seek through these proceedings to set aside and annul an order of the Intervenor-Defendant Interstate Commerce Commission (Commission), made and entered pursuant to the provisions of Section 5(2) of the Interstate Commerce Act, 49 U.S.C. and authorizing the Intervenor-Defendant, Puget Sound Truck Lines, Inc. (Puget Sound), to purchase and put in operation certain motor operating rights of the Intervenor-Defendant, South Bend Transfer, Inc. (South Bend).
Commission, Puget Sound and South Bend urge the validity of the Commission's order.
We note this Court's jurisdiction under 49 U.S.C. Sections 17(9), 305(g), 305(h) and 28 U.S.C. Sections 1336, 1398 and 2284.
South Bend, prior to the sale, held operating authority from the Commission to transport freight between such points as Portland, Oregon and Cosmopolis, Washington. Puget Sound, on the other hand, has held Commission authority for some time to transport freight between Cosmopolis and such other points in the State of Washington as Everett, Seattle, Tacoma, Olympia and Aberdeen. Through the purchase of South Bend's authority and connecting or tacking
it with its own existing authority at the common point of Cosmopolis, Puget Sound is now able to render a through service for shippers between the various points in Washington and Portland, Oregon.
The Commission made extensive findings of fact as to the past satisfactory service history of Puget Sound and South Bend under their respective authorities, the economic reasons for the sale and purchase arrangement and approved the same. Suffice, here the service under the respective authorities had been for many years and was active and virile.
The Commission's order of August 25, 1971, the only order of the Commission in the proceedings that is challenged, was an amendatory order entered by Division 3, an Appellate Division, amending the decision and order of Review Board Number 5, dated January 28, 1971 which affirmed the order of the Hearing Examiner, served August 14, 1970. That amendatory order provided, inter alia:
" It appearing, . . . applicants seeks (sic) reconsideration only insofar as the Review Board affirmed the recommended order of the Hearing Examiner which imposed a tacking restriction on the unified operating rights resulting from the transaction;" (sale and purchase arrangement)
" It further appearing, that under present policy, grants of authority will not be encumbered with restrictions against tacking unless protestants show, which they have not on this record, that they will be materially and adversely affected by the failure to impose such restriction, Rawlings Extension-Emporia, 78 M.C.C. 636, and Fox-Smythe Transp. Co. Extension -- Oklahoma, 106 M.C.C. 1; and that the said restriction should be eliminated from the decision and order of January 28, 1971;"
" It is ordered, That the petition, to the extent it seeks reconsideration be, and it is hereby, granted, the proceeding be, and it is hereby reopened, and that the findings in the Decision and Order of January 28, 1971, be, and they are hereby modified to reflect approval of the transaction without the tacking restriction;" and
"It is further ordered, That the decision and order of January 28, 1971, as modified herein, shall be effective 35 days from the date this order is served."
The Hearing Examiner's findings and order generally approved the sale-purchase arrangement and authorized Puget Sound to put into operation the joint authorities, however with tacking restriction at Cosmopolis. The basis of the tacking restriction was Puget Sound's failure to prove a public necessity and convenience for the through route, as expounded in Braswell Motor Freight Lines, Inc. v. U.S., ...