1. A grant by the Interstate Commerce Commission of a
certificate of public convenience and necessity for operation as a
common carrier by motor vehicle under the "grandfather clause" of
the Motor Carrier Act of 1935, authorizing service only from a
particular city and all points within a radius of 10 miles thereof,
to all points in certain States and to designated points in others,
held not erroneous. P.
315 U. S.
498.
Page 315 U. S. 496
2. In a grant of common carrier rights under the "grandfather
clause," that part of the order of the Commission in this case
which limit the kinds of commodities which may be carried between
specified points is not supported by the requisite basic or
essential findings.
United States v. Carolina Freight Carriers,
ante, p.
315 U. S. 475. P.
315 U. S. 495.
38 F. Supp. 556 reversed.
Appeal from a decree dismissing the complaint in a suit to
enjoin enforcement of an order of the Interstate Commerce
Commission.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
This case, like
United States v. Carolina Freight Carriers
Corp., ante, p.
315 U. S. 475, is
an appeal from a district court of three judges (38 F.Supp. 556)
convened to review an order of the Interstate Commerce Commission
(24 M.C.C. 273) granting appellant a certificate of public
convenience and necessity as a common carrier by motor vehicle
under the so-called "grandfather clause" (§ 206(a)) of the Motor
Carrier Act of 1935. 49 U.S.C. § 306.
Appellant made application as a common carrier of general
commodities operating over irregular routes. It
Page 315 U. S. 497
sought authority to operate between all points in a vast
territory comprising most of the country east of the Mississippi
River except the New England states. The Commission authorized the
issuance of a certificate, but limited it in two respects: (1) It
restricted the geographical scope of the operations by authorizing
service only from Birmingham, Ala., and all points within a radius
of 10 miles from that city to all points in certain states and to
designated points in others. (2) Though it permitted appellant to
carry general commodities throughout a large segment of the
authorized territory, it limited the kinds of commodities which
could be carried between specified points. Its finding containing
those restrictions (24 M.C.C. p. 277) reads as follows:
"We find that applicant was, on June 1, 1935, and continuously
since that time has been, in
bona fide operation, in
interstate or foreign commerce, as a common carrier by motor
vehicle, of general commodities, except commodities of unusual
value, high explosives, commodities in bulk, commodities requiring
special equipment, and household goods, uncrated or in lift vans in
connection with so-called household movings between Birmingham,
Ala., and all points within 10 miles thereof, on the one hand, and,
on the other, all points in North Carolina, Georgia, Mississippi,
and South Carolina, and those in Florida on and north of a line
consisting of U.S. Highway 92 from Tampa to Kissimmee, thence U.S.
Highway 192 to Melbourne, of paper and paper products from
Birmingham to New Orleans, La., and Chattanooga and Knoxville,
Tenn., and from Kingsport, Tenn., to Birmingham, of nails, pipe,
pipe fittings, steel, and metal ceilings from Canton, Ohio, to
Birmingham, of cloth from Alabama City, Ala., to Wheeling, W.Va.,
and of matches from Wheeling to Chattanooga and Birmingham, all
over irregular routes; that, by reason of such operation, it is
Page 315 U. S. 498
entitled to a certificate authorizing the continuance thereof,
and that the application in all other respects should be
denied."
The District Court refused to enjoin enforcement of the order,
and dismissed the complaint. The errors urged here do not relate to
the substantiality of the evidence in support of the findings. They
involve two questions: whether the Commission was warranted in
limiting shipments to and from points located within a 10 mile,
rather than a 100 mile, radius of Birmingham, and (2) whether the
Commission erred in limiting the operating rights of appellant to
the transportation of only a few commodities between certain
points.
I. We perceive no error in the limitation which the Commission
made on the territorial scope of appellant's operations.
Appellant argues that, if it may be authorized to serve all
points in one state, say Georgia, without showing that every point
in Georgia had been previously served by it, then it must be
granted like authority as respects the 100 mile radius around
Birmingham. That is a
non sequitur. Prior operations to
several points in a region may or may not justify the Commission in
authorizing service throughout the whole region. The precise
geographical pattern for future operations is the product of an
expert judgment based on the substantiality of the evidence as to
prior operations, the characteristics of the particular type of
carrier, the capacity or ability of the applicant to render the
service, and the like.
Alton R. Co. v. United States,
315 U. S. 15;
United States v. Carolina Freight Carriers Corp., supra.
The Commission employed those standards in limiting the territorial
scope of appellant's operations. We cannot say that its reduction
of the Birmingham area from a radius of 100 miles to a radius of 10
miles was unjustified. The Commission found that
Page 315 U. S. 499
only 55 shipments were transported prior to June 1, 1935, to or
from points within 100 miles of Birmingham, as against 875 to or
from that city. Only 12 points were served in that large area.
After June 1, 1935, 270 shipments moved to or from points within
100 miles of Birmingham, as against 2,030 to or from that city. The
Commission reduced the radius to 10 miles in an endeavor to include
only the important industrial area surrounding that city. If we
were to enlarge that area, we would clearly usurp a function which
Congress entrusted to the Commission. Nor can that finding be
assailed because permission to serve all points in other areas was
allowed. Such a difference in treatment plainly is not erroneous as
a matter of law. And nothing has been called to our attention which
would even suggest that the record of prior operations or the
characteristics of this transportation enterprise precluded the
Commission from restricting the territory where shipments mainly
originate while being more liberal as respects the territory where
destination points are located.
II. We take a different view as respects the limitation on
commodities which the Commission imposed in case of shipments
between specified points. We do not say that that limitation was
unjustified. We merely hold that, in this case, as in
United
States v. Carolina Freight Carriers Corp., supra, the basic or
essential findings to support that part of the order are lacking.
The Commission's conclusion that appellant was authorized to
transport general commodities between Birmingham and vicinity, on
the one hand, and all points in designated areas, on the other, was
based on its finding that, prior to and since June 1, 1935,
appellant "held itself out to transport general commodities" in
that territory, and "actually conducted an operation consistent
with such holding out." But, in case of the limitation which it
imposed on the
Page 315 U. S. 500
shipment of certain commodities, it merely found that,
"prior to and since June 1, 1935, applicant transported paper
and paper products from Birmingham to New Orleans, La., and
Chattanooga and Knoxville, Tennessee, and from Kingsport, Tenn., to
Birmingham; nails, pipe, pipe fittings, steel, and metal ceilings
from Canton, Ohio, to Birmingham; cloth from Alabama City, Ala. to
Wheeling, W.Va., and matches from Wheeling to Chattanooga and
Birmingham."
As we indicated in
United States v. Carolina Freight
Carriers Corp., supra, if the applicant had established that
it was a "common carrier" of general commodities during the
critical periods in a specified territory, restrictions on
commodities which could be moved between specified points in that
territory would not be justified. The mere fact that particular
commodities had never been transported between designated points in
that territory would not mean that authority to haul them between
such points should be withheld. On the other hand, an applicant's
status may vary from one part of the territory to another. As
respects carriage between designated points, the applicant may have
restricted its undertaking to particular commodities. It is not
clear, however, that the Commission applied those tests in this
case. From all that appears, it may have allowed only paper and
paper products to be shipped from Birmingham to New Orleans merely
because paper and paper products were the only commodities
previously carried between those cities. It is true that the
Commission quoted from Reliance Trucking Co., Inc., 4 M.C.C. 594,
595, to the effect that the question is whether there has been an
operation within the critical periods consistent with the holding
out in the natural and normal course of business, and that a mere
holding out, without evidence of an operation consistent therewith,
is not enough. Yet it also seems to have placed considerable
Page 315 U. S. 501
reliance on Powell Brothers Truck Lines, Inc., 9 M.C.C. 785,
791-792, which we have discussed in
United States v. Carolina
Freight Carriers Corp., supra, and which apparently treats
irregular route carriers differently in this regard than regular
route carriers. Since the influence of that view seems to have
permeated the findings, we conclude that here, as in
United
States v. Carolina Freight Carriers Corp., supra, the case
should be remanded to the Commission so that the basic or essential
findings required under the rule of
Florida v. United
States, 282 U. S. 194,
282 U. S. 215,
may be made.
Remanded.
MR. JUSTICE FRANKFURTER and MR. JUSTICE JACKSON dissent for the
reasons stated in their dissenting opinion in
United States v.
Carolina Freight Carriers Corp., ante, p.
315 U. S. 475.