Appeal from the District Court of the United States for the District of Oregon. [327 U.S. 515, 516] Mr.J. Stanley Payne, of Washington, D.C., for appellants, the United States and Interstate Commerce Commission.
Mr. Donald A. Schafer, of Portland, Or., for appellants, Consolidated Freightways, Inc., et al.
[327 U.S. 515, 517] William P. Ellis, of Portland, Or., for appellees.
Mr. Justice RUTLEDGE delivered the opinion of the Court.
The validity of an order of the Interstate Commerce Commission is in question. The order granted to appellants, Consolidated Freightways, Inc., and Oregon-Nevada-California Fast Freight, Inc., certificates of public convenience and necessity authorizing extensions of their operations as motor carriers. Appellees, competing carriers, some of whom are railway affiliated, were protestants in the proceedings before the Commission. They successfully attacked the order in a specially constituted District Court, on grounds questioning the sufficiency of the findings and the evidence, as well as the propriety and fairness of the Commission's procedure. The District Court's decree, 57 F.Supp. 192, 'suspended' the order and remanded the cause to the Commission for rehearing although a stay pending appeal was denied.
The shortened statement of the major thing in controversy is whether the appellants, Consolidated and O.N.C., properly were allowed by the Commission to substitute wholly independent and competing through services between Portland, Oregon, and San Francisco, California, for the service which they jointly rendered between those cities, prior to the filing of these applications, by interchanging freight at intermediate points. The protesting appellees were carriers competing with the joint service of Consolidated and O.N.C. and will be competitors of each, as those companies will be with each other, if the Commission's order is sustained. This fact is the source of the controversy and is important to bear in mind for full understanding of the detailed facts and issues as well as of what is ultimately at stake. Although each ap- [327 U.S. 515, 518] pellant originally sought exclusive authority to conduct the proposed through operation in substitution for the former joint service, and thus opposed the other's application, both now seek to sustain the Commission's order, as of course does the Commission itself.
At the time of Consolidated's application in December, 1939, it operated various routes in the Northwest, some extending eastward from the Portland and Seattle areas, in addition to the joint service by in erchange with O.N.C. southward from Portland to San Francisco.1 Two of these routes, comprising part of the latter service, extended from Portland southerly to Medford and Klamath Falls, both of which lie just north of the Oregon-California boundary and were points of interchange with O.N.C. 2 In so far as it is now pertinent, Consolidated's application sought permission to extend its operations from Medford and Klamath Falls southward to San Francisco,3 in other words, over the portion of the route previously used in the joint service for O.N.C.'s operations. [327 U.S. 515, 519] Conversely, at the time of O.N.C.'s application in January, 1940, it was operating from San Francisco to Medford and Klamath Falls. 4 It sought to extend its operations from Medford to Portland and, as an alternative slightly longer route, from Klamath Falls to Portland through Goshen, Oregon. 5
Thus, in effect, Consolidated and O.N.C. each sought to conduct operations independently throughout the entire distance between Portland and San Francisco.6 The occasion for the separate applications was O.N.C. 's refusal to join an association of connecting carriers which Consolidated was sponsoring. 7
The applications were heard separately, as the statute requires, before different joint boards. 8 However, because [327 U.S. 515, 520] they were so closely related in their common features, the hearings were held at the same places and one application was heard immediately after the other. Each applicant intervened in the proceeding on the other's application, and various parties, including the appellees,9 appeared in opposition in both proceedings. The parties stipulated that much of the evidence presented in the O.N.C. hearing should be introduced by reference into the Consolidated record. This included all of the appellees' affirmative evidence in opposition to the two applications. The hearings thus were substantially coordinated, though not technically consolidated, for the common features of the applications.
As neither joint board could agree upon the recommendations to be made, both matters were referred to an examiner. 10 In separate reports he recommended the denial of both applications. Division 5, with one commissioner dissenting, dealt with both in a single report. It reversed the examiner in both cases and ordered that each [327 U.S. 515, 521] application be granted. 11 Appellees' petition for rehearing was denied. They thereupon brought this suit in the District Court.