A certificate of convenience and necessity to operate as a
common carrier by water, issued by the Interstate Commerce
Commission under § 309 of Part III of the Interstate Commerce Act,
was subsequently amended by an order of the Commission restricting
the carrier's operations to freightage, as distinguished from
towage, and the amended certificate was accepted by the carrier.
Appellant sought and obtained Commission approval of a transfer of
the amended certificate to appellant. Thereafter, appellant claimed
the right under the certificate to engage in towage operations. The
Commission denied the right, and appellant sued to set aside its
1. Appellant had no standing to raise, in this collateral
proceeding, the question of the power of the Commission to modify
the original certificate. Pp. 345 U. S.
2. Having invoked the power of the Commission to approve the
transfer of the amended certificate, appellant was estopped to deny
the Commission's power to issue the certificate in the form in
which it was when appellant sought its transfer. P. 345 U. S.
107 F. Supp. 184, affirmed.
In a suit to set aside an order of the Interstate Commerce
Commission, 285 I.C.C. 75, a three-judge District Court held
against appellant. 107 F. Supp. 184. On direct appeal to this
p. 345 U. S.
Page 345 U. S. 508
MR. JUSTICE MINTON delivered the opinion of the Court.
In 1941, one Joseph R. Hutton applied to the Interstate Commerce
Commission for a permit to operate as a contract carrier by water
between points on Long Island Sound, New York Harbor, the Hudson
River, the New York State Barge Canal System, the Niagara River,
and contiguous ports. In the alternative, he prayed a certificate
of convenience and necessity if he be found to be a common carrier.
The application was a "grandfather" clause proceeding under § 309
of Part III, Water Carriers, of the Interstate Commerce Act, 54
Stat. 941, 49 U.S.C. (1946 ed.) § 909.
The Commission, after hearing and investigation, made findings
of fact and conclusions of law thereon to the effect that, for 37
years, Hutton had been in operation; that
"[h]e owns and manages 1 steam power boat of about 240
horsepower, and 4 barges, all of which are operated as a unit. The
power boat is used to tow the barges, but also carries about 150
gross tons of freight. On occasion, other barges are rented or
chartered for operation in applicant's fleet."
It was further found that, during and since 1939 and 1940,
"applicant's operation has been that of a common carrier of
commodities generally between points on New York Harbor, the Hudson
River below its junction with the New York State Barge Canal, the
New York State Barge Canal between the Hudson River and the Niagara
River including the Oswego branch, and the Niagara River."
The Commission further found that the applicant was in operation
January 1, 1940, the critical
Page 345 U. S. 509
date provided in § 309 for "grandfather" proceedings, and by
reason of his long, continuous operation, public convenience and
necessity would be served by continuance of such operation, and
"We find that applicant is a common carrier by water; that
public convenience and necessity require operation by applicant as
a common carrier in interstate or foreign commerce, of commodities
generally, between points on New York Harbor as determined in Ex
Parte No. 140, points on the Hudson River below its junction with
the New York State Barge Canal, the New York State Barge Canal
between the Hudson River and the Niagara River including the Oswego
branch, and the Niagara River; that applicant is fit, willing and
able properly to perform said transportation, and that applicant is
entitled to a certificate authorizing such operation, subject,
however, to general conditions which are necessary to carry out,
with respect to such operation, the requirement of Part III of the
act and the orders, rules, and regulations of the Commission
The Commission entered an order on July 17, 1942, effective
October 5, 1942, granting the certificate of convenience and
necessity to Hutton. This order recited the fact of the above
findings and incorporated them by reference. 250 I.C.C. 804.
Thus, it will be seen that the Commission found the operations
of Hutton to be those of a common carrier by water of commodities
generally in self-ropelled vessels which he owned and which he also
used to tow barges he owned, rented, or chartered. There is no
finding that his operations included the towing of barges which he
did not own, rent, or charter. The certificate was accepted by
Hutton, and, as far as appears on this
Page 345 U. S. 510
record, he operated under it until March 7, 1944, in the same
manner as he had before.
On March 7, 1944, the Commission of its own motion opened the
record in Hutton's original application and, after reconsidering
its former findings, specified the type of vessels to be used in
the exercise of its authority theretofore granted. 260 I.C.C. 804.
The Commission's order of March 7, 1944, in pertinent part reads as
"That public convenience and necessity require the continuance
of operation by applicant as a common carrier by water, by
self-ropelled vessels and by non-elf-ropelled vessels with the use
of separate towing vessels in interstate or foreign commerce, in
the transportation of commodities generally between points in the
area defined by the order of the Commission. . . ."
This amended certificate, which limited Hutton to the identical
operations he had long carried on and upon which his § 309 rights
were authorized, was accepted by him without question, and he
continued to operate under it until his death several months
The Callanan Road Improvement Company, the appellant here,
sought to purchase the amended certificate from Hutton's
administratrix for operations limited to the Hudson River and New
York Harbor. By § 312 of the Interstate Commerce Act, 54 Stat. 944,
49 U.S.C. (1946 ed.) § 912, the Interstate Commerce Commission's
authorization is required for such a transfer. An application for
approval was filed before the Commission by the appellant and the
administratrix. After hearing, the Commission by order dated August
18, 1947 (265 I.C.C. 813), authorized the transfer of the amended
certificate to the appellant in the following words:
"It is further ordered, That, following consummation of the sale
to the transferee of the operating
Page 345 U. S. 511
rights covered by said amended certificate, said transferee may
perform to the extent above described, the water carrier service
heretofore authorized under said amended certificate dated March 7,
1944, in No. W-103."
On February 5, 1948, the Commission issued an amended
certificate to the appellant, pursuant to its order of August 18,
1947. Thus, the appellant sought and received a transfer of the
amended certificate of March 7, 1944, limited by consent as to
waters to be operated upon.
On January 5, 1951, the appellant filed a petition with the
Commission for interpretation of the amended certificate it had
purchased from Hutton's administratrix. Cornell Steamboat Company,
engaged only in towing on the waters in question, appeared and
offered evidence against the appellant. In this proceeding, the
appellant claimed the right under its certificate to engage in
towing service, as distinguished from freighting service. It is and
was the contention of the appellant that, under the original
certificate issued to Hutton in 1942, the latter was a common
carrier of goods generally, and that the limitations or
modification of this certificate by the order of the Commission of
March 7, 1944, which denied Hutton the right to engage in towing
services was unauthorized, and, as transferee, the appellant was
entitled to engage in towing service and to promulgate and file
tariffs therefor. The Commission, after hearing, held the appellant
was not entitled to engage in the service of towing, and cancelled
the tariffs filed by the appellant covering towing services. 285
The appellant filed a complaint in the District Court of the
United States for the Northern District of New York to set aside
that order. A statutory three-udge court refused to set it aside,
107 F. Supp. 184, and this appeal followed.
Page 345 U. S. 512
We need not go into the differences between towage and
freightage. It is admitted for the purposes of this case that the
limitations placed by the order of March 7, 1944, upon the original
certificate issued Hutton in 1942, had the effect of restricting
his operations to freightage, and denied him the right to engage in
towage. The appellant cannot now raise the question of the power of
the Commission to modify the original certificate of July 17, 1942,
by the limitations contained in the order of March 7, 1944. Whether
the Commissions' action in reopening the 1942 proceedings and
placing the limitations on the certificate theretofore issued was
right or wrong, the jurisdiction of the Commission was not
destroyed thereby. A direct attack in such circumstances was the
Hutton not only did not object. He accepted the modified
certificate and operated under it, just as he had always operated.
His operation was not cut down by the limitations placed upon the
certificate. The appellant, as transferee of that modified
certificate, stands in no better position than Hutton stood.
Cf. Gregg Cartage & Storage Co. v. United States,
316 U. S. 74
316 U. S. 82
Indeed, in the 1947 transfer proceedings before the Commission when
the appellant sought to acquire Hutton's amended certificate of
March 7, 1944, the appellant objected that the protestant there
could not raise the question of the Commission's power to modify
the certificate, as this would be a collateral attack on the
Commission's order. That is exactly what the appellant seeks to do
here. It cannot in this collateral proceeding attack the validity
of the Commission's order of March 7, 1944. Securities &
Exchange Comm'n v. Central-llinois Sec. Corp., 338 U. S.
, 338 U. S. 143
Stanley v. Supervisors, 121 U. S. 535
121 U. S. 550
Reconstruction Finance Corp. v. Lightsey,
185 F.2d 167;
City of Tulsa v. Midland Valley R. Co.,
168 F.2d 252, 254;
Brown County v. Atlantic Pipe Line,
91 F.2d 394, 398. The
appellant must take the certificate as it stood at the
Page 345 U. S. 513
time it sought and received the Commission's approval for its
Furthermore, the appellant, having invoked the power of the
Commission to approve the transfer of the amended certificate to
it, is now estopped to deny the Commission's power to issue the
certificate in its present form and as it existed prior to the time
the appellant sought its transfer. United Fuel Gas Co. v.
Railroad Comm'n, 278 U. S. 300
278 U. S.
-308; St. Louis Malleable Casting Co. v. George
C. Prendergast Construction Co., 260 U.
. This is especially true in view of the
appellant's contention at the 1947 transfer hearing that the
protestant in that hearing could not raise the question there which
the appellant seeks to raise here, as it would constitute a
collateral attack on the order of the Commission. The appellant
cannot blow hot and cold, and take now a position contrary to that
taken in the proceedings it invoked to obtain the Commission's
approval. If the appellant then had taken the position it seeks
now, the Commission might conceivably have refused its approval of
the transfer. The appellant accepted the transfer with the
limitations contained in the certificate. The appellant now will
not be heard to say it is entitled to receive more than its
transferor had or the certificate transferred gave.
The judgment of the District Court is
MR. JUSTICE BLACK concurs in the result.
MR. JUSTICE DOUGLAS dissents.