ZIFFRIN, INC. v. U.S.(1943)
Rehearing Denied March 1, 1943. See 318 U.S. 800 , 63 S.Ct. 757, 87 L.Ed. --.
On Appeal from the District Court of the United States for the Southern District of Indiana. [318 U.S. 73, 74] Mr. Ira Howell Ellis, of Boston, Mass., for appellant.
Mr. Daniel H. Kunkel, of Washington, D.C., for appellees.
Mr. Justice REED delivered the opinion of the Court.
This appeal brings here for review a judgment of a statutory three judge court denying a petition for an interlocutory and a final injunction setting aside and annulling an order of the Interstate Commerce Commission. 1 The order attacked denied an application of appellant, an Indiana corporation, filed February 4, 1936, for a permit to continue designated contract carrier operations under the grandfather clause of Section 209(a) of the Interstate Commerce Act, 49 U.S.C.A. 309(a).
The denial of the application by the Commission on May 29, 1941, 28 M. C.C. 683, was on the ground that applicant and Ziffrin Truck Lines, Inc., a certificated com- [318 U.S. 73, 75] mon carrier by motor vehicle, were owned, controlled and managed in a common interest and that under Section 210 of the Interstate Commerce Act, Part II, 49 U.S.C.A. 310 it would not be consistent with the public interest and the national transportation policy to grant the application.
Section 210 of the Motor Carrier Act was amended between the filing of the application and the entry of the order denying it. The two forms of Section 210 appear in the note below. 2 [318 U.S. 73, 76] It is appellant's contention that whatever may have been the effect of the earlier form, with the passage of the amendment after the hearing the applicant should now have an opportunity to show the absence of common control of it and Ziffrin Truck Lines, Incorporated. As Section 210 stood when appellant requested its permit and at the hearing, a certificate as a common carrier and a permit as a contract carrier were not to be held by the same person without special finding of consistency with the public interest by the Commission. The amendment provided that without a similar special finding no person should hold a contract carrier permit who was under common control with a person holding a common carrier certificate. Person, of course, included a corporation. 49 U.S.C. 303(a)(1), 49 U.S.C. A. 303(a)(1).
Obviously the fear of possible evasion led to the change in language. Indeed, the Commission had disregarded the corporate fiction and interpreted the earlier form as covering persons under common control. 3 This was called to applicant's attention by an order of June 23, 1938, setting the date for hearing the application. 4 The interpretation was discussed in the examiner's report, in the Com- [318 U.S. 73, 77] mission's report, and applied, adversely to appellant, by the findings. 28 M.C.C. 683, 692-99.
When the Transportation Act of 1940 was before the Senate, the draftsmen added a sentence to the earlier form of Section 210, reading as follows: 'This section shall apply to dual operations by affiliated carriers.' When the bill, S. 2009, in the two forms in which it was enacted in the Senate and the House of Representatives, was examined by the Interstate Commerce Commission, the Chairman of its legislative committee transmitted a report on the provisions of the bill to the Chairman of the Senate Interstate Commerce Committee and the Chairman of the House Committee on Interstate and Foreign Commerce. 5 In the report (at page 62) this comment was made as to the present Section 210:
At the conference of the committee for the two Houses of Congress, the form of Section 210 was changed to the present reading. The report contains this explanation:6 [318 U.S. 73, 78] 'Section 21(a). Dual Operations Under Certificates and Permits, Motor Carriers.
It is unnecessary, however, to decide whether the Commission correctly applied Section 210 as originally enacted to such common control as the Commission found in appellant and Ziffrin Truck Lines, Inc. We are convinced that the Commission was required to act under the law as it existed when its order of May 29, 1941, was entered. The permit was effective for the future and the amendment forbade persons under common control holding both a permit and a certificate. Previously appellant had been operating under an ex parte permit. Protests to the grant had been made on account of the dual operation, the formal hearing was held and the question raised by these protests was heard at length. A change in the law between a nisi prius and an appellate decision requires the appellate court to apply the changed law. Vandenbark v. Owens-Illinois Glass Co., 311 U.S. 538 , 61 S.Ct. 347, and cases cited. Cf. Duplex Printing Press Co. v. Deering, 254 U.S. 443, 464 , 41 S.Ct. 172, 175, 16 A.L.R. 196. A fortiori, a change of law pending an administrative hearing must be followed in relation to permits for future acts. Otherwise the administrative body would issue orders contrary to the existing legislation. [318 U.S. 73, 79] We find no basis for appellant's contention that he was given improper notice of the hearing and denied an opportunity to show compliance with the amended section. The steps of notice and hearing detailed above demonstrate the error of the former contention. As to the latter, it is met completely by the report and order of the Commission, made while this suit was pending in the District Court, and denying appellant's motion for reconsideration of the order of May 29, 1941. Ziffrin, Incorporated, Contract Carrier Application, 33 M.C.C. 155. This opinion was called to our attention by the Government in brief and argument. In the circumstances, we will not disregard it. The Commission there said, p. 156:
The Commission then restated the evidence showing common control of the two corporations and concluded that the plan proposed would not change the situation. [318 U.S. 73, 80] See 33 M.C.C. 155; 28 M.C.C. 683, 692, et seq. The evidence is ample to support the conclusion of the Commission entered at the earlier hearing. This is sufficient to support the order upon judicial review. Shields v. Utah Idaho Central R. Co., 305 U.S. 177, 185 , 59 S.Ct. 160, 165; United States v. Maher, 307 U.S. 148, 155 , 59 S.Ct. 768, 771
[ Footnote 1 ] Urgent Deficiencies Act, 38 Stat. 208, 220, 28 U.S.C. 47, 47a, 28 U.S.C.A. 47, 47a; Judicial Code 238, 43 Stat. 936, 938, 28 U.S.C. 345, 28 U.S.C.A. 345; 205(h) Interstate Commerce Act, Part II, 49 Stat. 543, 550, 49 U.S.C. 305(h), 49 U.S.C.A. 305(h).
[ Footnote 2 ] Section 210 (49 Stat. 554), as originally enacted in the Motor Carrier Act, 1935, provided:
Section 210, as amended (49 U.S.C. 310, 49 U.S.C.A. 310) by Section 21(a) of the Transportation Act of 1940 provides:
[ Footnote 3 ] In re New York & New Brunswick Auto Exp. Co., Inc., Common Carrier Application, 23 M.C.C. 663, 671. Cf. In re Bigley Brothers, Inc., Contract Carrier Application, 4 M.C.C. 711; Universal Service, Inc.,-Purchase-W. R. Arthur & Co., Inc., 15 M.C.C. 247.
[ Footnote 4 ] The order read in part as follows:
[ Footnote 5 ] Omnibus Transportation Legislation, House Committee Print, 76th Cong., 2d Sess.
[ Footnote 6 ] H. Rep. No. 2832, 76th Cong., 3d Sess., p. 78.