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Interstate Commerce Commission v. Barron Trucking Co.

April 18, 1960

INTERSTATE COMMERCE COMMISSION
v.
BARRON TRUCKING COMPANY, INC. AND MICHAEL BARRON AND JOSEPHINE BARRON D. B. A. M. BARRON.



Before BIGGS, Chief Judge, and GOODRICH, McLAUGHLIN and KALODNER, Circuit Judges.

Per Curiam: The Court has considered the argument made on behalf of the Interstate Commerce Commission on the petition for rehearing. We adhere to the former opinion and overrule the petition.

Biggs, Chief Judge, dissenting.

The Barron Partnership has violated the terms of its certificate of convenience and necessity (I.C.C. Docket No. MC 71550) issued in 1943. This court and the court below agree that this is so. But because it is alleged by the Partnership that this violation merely continues the Partnership practices as they existed long prior to the issuance of the certificate of 1943 and the Partnership has applied to the Commission for a certificate which, if granted, would legalize the presently prohibited practices by way of the "grandfather clause", Section 206(a)(1) of the Interstate Commerce Act, this court has stayed the injunction issued by the court below pending the disposition by the Commission of the application referred to.

The complaint filed by the Commission is based on Section 222(b) of the Interstate Commerce Act. This section does not require proof that the carrier has knowingly and wilfully violated the statute. Motive is not pertinent. Compare the provisions of Section 222(a). The intent of Section 222 (b) is to prevent and forestall future violations of the Act by authorizing the issuance of an injunction by a United States district court as here. The stay by this court of the injunction issued may permit the prohibited conduct of the carrier to continue at least until the decision of the Commission of the Partnership's new applications and the appeal processes have been exhausted. Months may pass before the issues presented by the new application can be decided.

The judgment of the court below surely cannot be said to be clearly erroneous.See Rule 52(a), Fed. R. Civ. Proc., 28 U.S.C. I think that this court was in error in staying the injunction and that the stay is contrary to the Interstate Commerce Act. Certainly the decision of this court on the ground set forth in its opinion, viz., that grandfather clause applications are pending, if followed by other courts, will have a serious effect on the National Transportation Policy.

For these reasons I conclude that the case should be reheard before the court en banc and I must respectfully dissent from the order of the court denying such a rehearing.

19600418

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