1. Decided upon the authority of
United States v. Rosenblum
Truck Lines and
United States v. Margolies, ante, p.
315 U. S. 50. P.
315 U. S.
59.
2. That the application was for either a common carrier
certificate or a contract carrier permit, rather than for only a
contract carrier permit, does not distinguish this case from the
Rosenblum and
Margolies cases. P.
315 U. S.
59.
3. The Commission's order denying "grandfather" right to the
applicant in this case is not vitiated by absence of findings as to
whether the common carrier with whom the applicant's arrangements
for hauling were made was acting as a broker during the period in
question, and as to whether the applicant's name was carried on his
equipment. Findings on these two points were not
"
quasi-jurisdictional." P.
315 U. S.
59.
39 F. Supp. 780 affirmed.
Appeal from a decree of a District Court of three judges
dismissing a petition to set aside an order of the Interstate
Commerce Commission under the Motor Carrier Act of 1935.
Page 315 U. S. 58
MR. JUSTICE MURPHY delivered the opinion of the Court.
This is a companion case to
United States v. N.E. Rosenblum
Truck Lines, Inc., and
United States v. Margolies,
ante, p.
315 U. S. 50. It is
a direct appeal from the final decree of a specially constituted
three-judge district court [
Footnote 1] dismissing appellant's petition to set aside
an order of the Interstate Commerce Commission denying appellant's
application under the "grandfather" clauses of Sections 206(a) and
209(a) of the Motor Carrier Act of 1935 [
Footnote 2] for operating authority as a "common" or
"contract" carrier by motor vehicle.
The Commission's findings [
Footnote 3] show that appellant's method of operations was
substantially the same as that of appellees in the
Rosenblum and the
Margolies cases. Appellant
operated between Los Angeles and Seattle. and held permits from the
States of California, Oregon, and Washington. Between June, 1935,
and January, 1938, most, if not all, of the traffic handled by
appellant was solicited and billed by other motor carriers and
moved in appellant's vehicles only between the terminals of those
other carriers. From April, 1937, until January, 1938, appellant
hauled exclusively for a single common carrier, Hendricks
Refrigerated Truck Lines, Inc. The goods moved on Hendricks' bills
of lading, and its tariff rates were applied. Appellant requested
loading instructions from, and reported
Page 315 U. S. 59
loadings to, Hendricks. Appellant received the total revenue
less ten percent on southbound loads and the total revenue on
northbound loads. On "express" traffic, he received a flat rate of
eighty cents per hundred pounds. Shippers' claims generally were
paid in the first instance by Hendricks, and then charged back to
appellant.
In January, 1938, appellant engaged a solicitor of his own,
established terminals, and apparently discontinued the operations
previously conducted in connection with other carriers.
On the basis of its findings, the Commission concluded that the
service performed
"was not the fulfillment of engagements in consequence of a
holding out to the general public, but primarily was the hauling of
traffic for motor common carriers. [
Footnote 4]"
While the application in the instant case is for a common
carrier certificate, or, in the alternative, for a contract carrier
permit, rather than for a contract carrier permit, as in
United
States v. N.E. Rosenblum Truck Lines, Inc. and
United
States v. Margolies, that difference is without legal
significance. The question in both situations is whether the
applicant was a carrier, either common or contract, within the
meaning of the Act prior to June, 1935, and continuously thereafter
to the date of the hearing. For the reasons set forth in the
Rosenblum and
Margolies cases, the decision below
must be affirmed.
We have considered and found without substance appellant's
argument that findings as to whether Hendricks was acting as a
broker during the period in question and as to whether appellant's
name was carried on his equipment were
"
quasi-jurisdictional," and that the absence of findings
on those points renders the order void. Neither finding was here
essential to the existence of authority
Page 315 U. S. 60
to enter the order, and hence was not
"
quasi-jurisdictional."
Cf. United States v. Baltimore
& Ohio R. Co., 293 U. S. 454,
293 U. S.
462-463;
Florida v. United States, 282 U.
S. 194,
282 U. S.
214-215. One of the findings of the Commission, which
appellant may not attack, [
Footnote
5] was that appellant hauled "for Hendricks, a common carrier
by motor vehicle," and the Commission was satisfied from the
evidence before it that Hendricks, and not the appellant, was the
carrier in respect to the operations in which appellant was
engaged. It was therefore immaterial whether Hendricks acted as a
broker in connection with some other operations. Whether
appellant's name was on his equipment can only be a factor bearing
on the ultimate issue. It is in no sense
"
quasi-jurisdictional."
Affirmed.
MR. JUSTICE ROBERTS took no part in the consideration or
decision of this case.
[
Footnote 1]
Convened pursuant to the Urgent Deficiencies Act of 1913, 38
Stat. 220, 28 U.S.C. §§ 47 and 47a, and § 205(h) of the Motor
Carrier Act of 1935, rearranged by the Transportation Act of 1940,
54 Stat. 899, as § 205(g) of Part II of the Interstate Commerce
Act.
[
Footnote 2]
The Motor Carrier Act of 1935 is now designated as Part II of
the Interstate Commerce Act. 54 Stat. 919.
[
Footnote 3]
Since the evidence upon which these findings were made is not
included in the record before us, appellant may not here attack
them.
Mississippi Valley Barge Line Co. v. United States,
292 U. S. 282,
292 U. S. 286,
and cases cited.
[
Footnote 4]
24 M.C.C. 141 at 147.
[
Footnote 5]
See Note 3
ante.