No. MC-16670 SMITH BROTHERS, JOHN C. SANDIDGE, RECEIVER, REVOCATION OF CERTIFICATE Decided May 10, 1943 Report on oral argument, 33 M. C. C. 465, modified to correct printing errors inadvertently made. Prior reports, 22 M. C. C. 524, 26 M. C. C. 219, and 33 M. C. C. 465. Appearances shown in prior reports. SUPPLEMENTAL REPORT OF THE COMMISSION BY THE COMMISSION: In our report on oral argument, 33 M. C. C. 465, certain errors were inadvertently made in the printing of the third complete paragraph on page 472. As printed, that paragraph reads as follows: In expressing the views stated above, we do not desire to be understood as holding that a certificate obtained by fraud, or misrepresentation, or one issued in error by this Commission, may not be changed or revoked without proceeding under section 212 (a). Here, there is no question of fraud, misrepresentation, or a certificate issued in error. As approved and adopted by us on April 13, 1942, that paragraph read as follows: In expressing the views stated above we do not desire to be understood as holding that a certificate obtained by fraud or misrepresentation, or inadvertently issued by this Commission, may not be changed or revoked without proceeding under section 212 (a). Here, there is no question of fraud, misrepresentation, or inadvertence. We find that our report on oral argument as printed should be, and it is hereby, modified by correcting the third complete paragraph on page 472 thereof to read as approved and adopted on April 13, 1942, as stated above. 42 M. C. C. No. MC-C-3061 MONTGOMERY WARD & CO., INCORPORATED, v. SANTA FE TRAIL TRANSPORTATION CO. Submitted October 28, 1942. Decided May 10, 1943 1. Upon complaints that the failure or refusal of certain defendant common carriers by motor vehicle to pick up or deliver interstate shipments at complainant's Kansas City, Mo., plant violated the Interstate Commerce Act, found that such failure or refusal by defendants was unlawful. Cease and desist order entered against these defendants. 2. Certain complaints dismissed, upon motion of complainant, because inadvertently filed. John A. Barr, Stuart S. Ball, and Brooks Wynne for complainant. Roland J. Lehman, Dean Wood, Carll V. Kretsinger, Robert L. Jackson, and Carl E. Bingham for defendants. Charles B. Turney for intervener. REPORT OF THE COMMISSION DIVISION 3, COMMISSIONERS MILLER, PATTERSON, AND JOHNSON BY DIVISION 3: Defendant, Santa Fe Trail Transportation Co., hereinafter called the Santa Fe, and the intervener filed exceptions to the order recommended by the examiner, complainant replied, and the parties were heard in oral argument. By complaints filed September 24 and October 15 and 20, 1941, Montgomery Ward & Co., Incorporated, having its main office in Chicago, Ill., alleges that the 10 defendant common carriers by motor vehicle have, since July 1, 1941, willfully failed and refused to provide adequate transportation of property, in interstate or foreign commerce, originating at or consigned to its Kansas City, Mo., plant, and that their continued failure or refusal to serve complainant, while according common-carrier service to others, was and is unlawful, unjustly discriminatory, and unduly prejudicial, in violation of part II of the Interstate Commerce Act. Complainant prays that an order 1 This report also embraces No. MC-C-306 (Sub-No. 1), Same v. Watson Brothers Transportation Co.; No. MC-C-306 (Sub-No. 2), Same v. Southern Transit Lines; No. MC-C-306 (Sub-No. 3), Same v. Healzer Cartage Co.; No. MC-C-306 (Sub-No. 4), Same v. Brooks Truck Line: No. MC-C-306 (Sub-No. 5), Same v. Lawrence A. Elliott Truck Transportation; No. MC-C-306 (Sub-No. 6), Same v. Schien Truck Lines; No. MC-C-306 (Sub-No. 7), Same v. Monark Motor Freight System, Inc.; No. MC-C-306 (Sub-No. 8), Same v. Yellow Transit Company; and No. MC-C-306 (Sub-No. 9), Same v. Adams Transfer & Storage Co. be entered commanding each of the defendants to cease and desist from the aforesaid violations and that such order provide for the revocation of the operating authority of any defendant wilfully failing to comply therewith. Local Union No. 41, hereinafter called Local 41, of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, hereinafter called the Brotherhood, intervened in support of the defendants, but offered no evidence. The complaints in Nos. MC-C-306 and MC-C-306 (subnumbers 1, 2, 3, and 4) also seek awards of reparation in specified amounts as damages resulting from the aforesaid violations. We do not have authority to award reparation in matters of this character. Dixie Mercerizing Co. v. ET & WNC Motor Transp. Co., 41 M. C. C. 355. Prior to the hearing, the Santa Fe, defendant, Watson Brothers Transportation Co., Inc., hereinafter called Watson Brothers, and the complainant filed separate motions to dismiss the complaints on the ground that service had been resumed at complainant's plant on or about January 30, 1942, the defendants contending that the issues in the proceedings were moot, and the complainant contending that the issues involved would be determined in a then pending proceeding, Montgomery Ward & Co., Inc., v. Consolidated Freightways, Inc., 42 M. C. C. 225. That proceeding is decided concurrently herewith, and, as will more fully appear, is not controlling herein. Division 2 overruled the motion of the Santa Fe, and we overruled the other motions. Certain defendants renewed the motion to dismiss at the hearing. In Jones v. Securities & Exc. Comm., 298 U. S. 1, the question presented was whether a registrant who had filed a registration statement with the Securities and Exchange Commission had an unqualified right to withdraw such statement prior to a hearing thereon. The United States Supreme Court found that the proceeding before that Commission was analogous to a suit in equity to obtain an injunction, and that, in the absence of a statute to the contrary, the power of a commission to refuse to dismiss a proceeding on motion of the one who instituted it cannot be greater than the power which may be exercised by the judicial tribunals of the land under similar circumstances. The Court stated (page 19) that the general rule is settled for the Federal tribunals that a plaintiff possesses the unqualified right to dismiss his complaint at law or his bill in equity unless some plain legal prejudice would result to the defendant other than the mere prospect of a second litigation upon the subject matter, and cited certain prior decisions wherein it had held as follows: The right to dismiss, if it exists, is absolute. It does not depend on the reasons which the plaintiff offers for his action. The fact that he may not have disclosed all his reasons or may not have given the real one can not affect his right. The usual ground for denying a complainant in equity the right to dismiss his bill without prejudice at his own costs is that the cause has proceeded so far that the defendant is in a position to demand on the pleadings an opportunity to seek affirmative relief and he would be prejudiced by being remitted to a separate action. Having been put to the trouble of getting his counter case properly pleaded and ready, he may insist that the cause proceed to a decree. The Court then held that a dismissal must be granted if no prejudice be shown beyond the prospect of another suit unless there be a specific rule of court to the contrary, and that the withdrawal should have been allowed as of course. The Commission has, in numerous proceedings involving the lawfulness of rates, regulations, and practices of carriers subject to its jurisdiction, found that a complainant before it cannot, as a matter of right, withdraw its complaint whenever in its opinion its purposes would thus be served better than by having the proceeding continue to a conclusion. Royster Guano Co. v. Atlantic Coast Line R. Co., 50 I. C. C. 34; and C. H. Dexter & Sons, Inc., v. New York, N. H. & H. R. Co., 234 I. C. C. 597. We refused to dismiss the complaints in these proceedings because unlike the decision of a court, which ordinarily is conclusive only of the rights of the interested parties, a report and order of the Commission, prescribing rates, regulations, or practices for the future, affects many who are not directly represented before it. In the instant proceeding, the practices of the defendants in relation to their obligation to perform transportation are in issue and our conclusions herein will be a guide for the future to them and other carriers similarly situated. The issues have not become moot. The previous action in overruling the motions to dismiss is affirmed. The complaints against the Brooks Truck Line, No. MC-C-306 (Sub-No. 4), Schien Truck Lines, No. MC-C-306 (Sub-No. 6), and the Adams Transfer & Storage Co., No. MC-C-306 (Sub-No. 9), were inadvertently filed, and complainant, at the hearing, moved to dismiss them. No evidence in support of these complaints was adduced at the hearing. The motion is granted. Reference hereinafter to defendants will not include these three carriers. Complainant is engaged in retail and mail-order merchandising. Its retail store and warehouse at Kansas City are in the same building. It normally ships from 50,000 to 150,000 pounds, and receives from 25,000 to 50,000 pounds, daily by motor carriers. Prior to June 30, 1941, its merchandise was transported locally under contract by Israel Transfer Company. Complainant terminated that contract and entered into a new one with the Railway Express Agency, Incorporated, under which the latter took over the transportation of the local mail and miscellaneous freight on and after July 1, 1941. The drivers for the express company are members of the Brotherhood of Railway Clerks, and the drivers for the Israel Transfer Company are members of Local 41. That union established a picket line at complainant's plant on July 1, 1941, and maintained it until January 29, 1942, because complainant transferred its business from the Israel Transfer Company to the express company. During the period the picket line was maintained, the defendants were tendered out-bound interstate shipments by complainant, or transported in-bound interstate shipments consigned to complainant to their terminals at Kansas City, but such shipments were not picked up or delivered by defendants in accordance with their applicable tariffs, because their drivers refused to go through the picket line. Prior to August 19, 1941, complainant tendered traffic to defendants by requesting them, by telephone, to pick up its shipments. Some of the defendants informed complainant that they could not do so because of the picket line and others occasionally dispatched trucks to complainant's plant to collect the freight, but the drivers always returned without it. On that date, the express company entered into a contract with the railroads at Kansas City to transport lessthan-carload shipments between railroad freight depots and shipping or delivery points in Kansas City, and thereafter complainant shipped its out-bound less-than-carload freight by rail. This service to some points was not as prompt and efficient as the truck service. In some instances, in-bound shipments arriving at defendants' terminals were hauled by them to some point outside of Kansas City and turned over to a rail carrier for transportation and delivery to complainant. During the entire period, the services of the express company, and of certain local contract draymen, were uninterrupted. The drivers employed by defendants were either members of Local 41 or of another local union of the Brotherhood. The union rules, among other things, prohibited its members from passing through a picket line, and the closed-shop agreement between defendants and Local 41 contained the following provision, among others: The employer shall not request or instruct any Employee to go through a picket line of a striking Union. However, the Union agrees that in the event the Employer becomes involved in a controversy with any other Union, the Union will do all in its power to effect a fair settlement. The defendants concede that they took no disciplinary action against the drivers who refused to cross the picket line and made no effort to serve the complainant other than dispatching trucks, as previously mentioned. They state that they were bound by the terms of the closed-shop agreement; that there was a strike of their employees; that they were, therefore, prevented from rendering service; and |