in such certificate. * * * ' at pp. 14, 15.
The Commission made further findings with respect to the issues of non-user and abandonment, pursuant to the request of the court, in which it negated their effect upon the right of Powell to a through route and affirmed the purchase approval it had made in its prior report.
The District Court, upon the filing of the Commission's Report on Reconsideration, resumed its consideration of the matter. In Byers Transp. Co. v. United States, D.C., 49 F.Supp. 828, the court accepted the construction of the Commission, and found that the proof was clear that Bryan operated over the entire length of U.S. Highway 40 between St. Louis, Illinois, and Kansas City, Kansas, although he conducted his operations over routes having a common point in the Highway. It sustained the Commission's findings as to non-user and abandonment and dismissed the complaint.
In the G. & M. case the carrier applied to the Commission to clarify its certificate for review and modification to authorize cross-haul transportation between northern and southern portions of authorized territory without interchange. Its certificate authorized operations over irregular routes, between Elkin and Statesville, North Carolina, and points in Delaware, Georgia, Maryland, New Jersey, Ohio, Pennsylvania, South Carolina, Virginia, West Virginia and the District of Columbia, and those in designated points in Tennessee and New York.
It contended that its certificate should be interpreted to mean that it had authority to operate, for instance, from a point in New York to a Georgia point by way of Statesville, based on the theory that since it had authority to operate from a point in New York in in-bound service to Statesville and in in-bound service from Statesville to a point in Georgia, it should have the right to interchange with itself, and so provide through service over the two separately stated routes.
The Commission found this position untenable. It had the applicant, as an irregular-route radial common carrier, was not authorized to transport shipments between points in its separate radial territories through points in its 'base territory'. It further held that the applicant's suggested interpretation of its certificate would require it to create a new operating right on the basis of the fiction that it may 'interchange' with itself, a fiction to which the Commission declined to subscribe. It denied the petition, 43 M.C.C. 497.
The ruling of the Commission was tested by its suit to restrain the G. & M. Transfer Company, Inc., from operating beyond the provisions of its certificate as interpreted by it, which was instituted in the United States District Court, Western District of North Carolina, Statesville Division. On April 30, 1945, that court held, in Interstate Commerce Comn. v. G. & M. Motor Transfer Co., 64 F.Supp. 302, that it was bound by the construction placed upon the certificate by the Commission and that the certificate and the construction thereof could not be attacked collaterally as was undertaken by the Company in its defense.
The plaintiff's hypotheses that the Commission rejected its pronouncements in the Powell case, and instead, applied its pronouncements in the G. & M. case, are in the realm of conjecture. The Commission makes no reference to these two cases in its report dated November 26, 1943, and in denying the application for a rehearing where these issues were first raised it made no findings. The authorities hold that the Commission is not required to make findings on such an application. Watson Bros. Transp. Co. v. United States, D.C., 59 F.Supp. 762, 777; Carolina Scenic Coach Lines v. United States, D.C., 59 F.Supp. 336, 337.
In reply to plaintiff's charge that inconsistent pronouncements had been made in the Powell case and G. & M. case, the Commission asserted that consistency in its decisions was not a legal requirement in its adjudication of the cases before it. Moreover, neither the reason nor the wisdom of its decisions are susceptible of question by the courts. The scope of their inquiry is confined to the determination of whether or not there is evidence to support the judgments of the Commission. In any event, the Commission took the further position that its decisions in question were quite consistent and that there was substantial evidence to support its findings.
The duty of administrative boards to be consistent was considered by the court in National Labor Relations Board v. Mall Tool Co., 7 Cir., 119 F.2d 700, at page 702, which said: 'Consistency in administrative rulings is essential, for to adopt different standards for similar situations is to act arbitrarily. Under such circumstances, affirmative orders violate administrative discretion and become punitive, rather than remedial measures, outside the scope of the Board's powers. Republic Steel Corp. v. N.L.R.B., 311 U.S. 7, 61 S. Ct. 77, 85 L. Ed. 6; Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 59 S. Ct. 206, 83 L. Ed. 126; National Labor Relations Board v. Pensteel Metallurgical Corp., 306 U.S. 240, 59 S. Ct. 490, 83 L. Ed. 627, 123 A.L.R. 599.'
However, we are not required to pass upon the abstract theory propounded by the Commission that it has a right to indulge in inconsistencies of judgment, for we do not find any inconsistency upon its part in the decisions to which the plaintiff has pointed.
Plaintiff urged the contention that the G. & M. case cannot be differentiated from the Powell case except on the ground that the latter involved regular-route radial operation. It submits that the Commission held that regular-route highway sections may be combined to form through service, unless a specific limitation is written into the certificate while irregular highway sections may not be combined to form through service unless specific authority has been provided in the certificate whether or not the same highways, pick-up and destination points are employed. The plaintiff thereby claimed the right to draw the inference that certificates of regular-route operators will be interpreted liberally by the Commission, but that certificates of irregular-route radial operators will be construed narrowly.
From this assumption plaintiff proceeded to the conclusion that the Commission has applied to discriminatory practice, unwarranted in the law, against the plaintiff as an irregular-route radial carrier.
But the Commission actually differentiated the G. & M. case from the Powell case on altogether other ground when it said: 'Neither are we impressed with applicant's reference to cases dealing with operating rights flowing from unifications of two or more motor common carriers under sections 5 and 212(b) of the act, as supporting its position. These unifications are not analogous to the situation here. In such cases the test is whether the unification is consistent with the public interest, and the through service generally authorized is one that the carriers involved lawfully may have performed by interchange of traffic at common points of service prior to the unification. In other words, no new operating right is created, but merely a unification. In other words, no new operating of the existing rights of two or more carriers. To agree with applicant's interpretation of its certificate would require us to create a new operating right on the basis of the fiction that it may 'interchange' with itself.' G. & M. case, supra, at p. 501.
The Commission defined the distinction between radial and nonradial service in the following terms:
'(C) Irregular-route radial service -- An irregular-route radial-service carrier is any person who or which undertakes to transport property or any class or classes of property in interstate or foreign commerce by motor vehicle for compensation over irregular routes from a fixed base point or points to points or places located within such radial area as shall have been fixed and authorized by the Interstate Commerce Commission in a certificate of public convenience and necessity, or permit, or from any point located within such radial area to such carrier's fixed base point or points.
'(D) Irregular-route nonradial service. -- An irregular-route nonradial service is any person who or which undertakes to transport property or any class or classes of property in interstate or foreign commerce by motor vehicle for compensation over irregular routes between points or communities located within such general territory as shall have been defined geographically, or permit, and any other points or communities located within the same general territory without respect to a hub community or a fixed base point of operation.' G. & M. case, supra, pp. 501, 502.
The right of the Commission to make such classification has not been successfully questioned. It held that to adopt the interpretation urged by applicant and permit radial operators to perform cross-hauls between points in authorized radial territories through a base point or points would so change the scope of such carrier's operation as to virtually eliminate the distinction between radial and nonradial carriers; that it would be contrary to the informal interpretation given to certificates of irregular-route radial carriers by its Bureau of Motor Carriers under which interpretation the industry had flourished; that neither the public interest nor the national transportation policy had been shown to require any relaxation in the principles announced with respect to irregular-route radial authorization and that they should not be relaxed on general principles as suggested by the applicant.
Plaintiff's case is similar to the G. & M. case and we believe that the Commission has not discriminated against plaintiff by reason of its status as an irregular-route common carrier.
The function of the Commission in the proceeding before it was to determine the scope of the authority to be granted to plaintiff in the way of 'grandfather' rights upon the basis of its application and the proofs. The fact that it may be more economical to the public to allow the plaintiff to conduct through operations from points in New England territory to Baltimore and Washington or in the opposite direction does not constitute a valid criterion in the Commission's considerations in establishing plaintiff's 'grandfather' rights.
A similar argument was raised in Loving v. United States, D.C., 32 F.Supp. 464, affirmed 310 U.S. 609, 60 S. Ct. 898, 84 L. Ed. 1387. The court in that case said: 'The purpose of the Act is regulatory, and we believe that the 'grandfather clause' was included therein for the benefit of carriers who had been in bona fide operation on and prior to the 'grandfather' date, rather than for the serving of public convenience. Adequate provision was contained in the Act for the granting of certificates upon proper showing that there is public necessity for such service, or that a public convenience will be served.' at page 467 of 32 F.Supp.
As pointed out in the Loving case, the plaintiff may, of course, apply to the Commission for the broader authority desired; such application will not be granted automatically as under the 'grandfather' clause, but will have to meet the requirements of 207(a), 49 U.S.C.A. § 307(a). Upon such an application proof as to economic value to the public might be highly instructive upon the issue of actual public convenience and necessity,
but plaintiff cannot intrude that issue into this proceeding which concerns itself only with the legality of the Commission's adjudication of plaintiff's 'grandfather' rights.
The effect of plaintiff's petition for reconsideration was that plaintiff sought not so much an interpretation of the Commission's findings but rather an extension of authority to operate in a manner not contemplated by the Commission in the certificate. Our view is that the certificate granted to plaintiff is clear and unambiguous and states with definiteness the scope in which plaintiff is to be permitted to operate based upon the Commission's findings as to the extent of the bona fide operations of the plaintiff on June 1, 1935 and continuously since that date.
Plaintiff's complaint must, therefore, be dismissed.
Findings of Fact and Conclusions of Law
Findings of Fact
We find as facts that:
1. Plaintiff, a New Jersey corporation, is a common carrier for hire by motor vehicle in inter-state commerce.
2. On December 31, 1935, plaintiff filed an application with the Interstate Commerce Commission, pursuant to the provisions of 49 U.S.C.A. § 306(a), to establish its 'grandfather' rights.
3. After several hearings, a report and findings were made on November 26, 1943 by Division 5 of the Interstate Commerce Commission and an order was entered thereon authorizing operations as a common carrier of general commodities with certain exceptions, over irregular routes between the points, or to or from the points named and described in Appendix B attached to said report and findings.
4. On January 12, 1944 plaintiff filed with the Interstate Commerce Commission a Petition for Reconsideration of its order of November 26, 1943, wherein it averred that it did not question the findings of the Division.
'other than that which apparently restricts through transportation service between points in 'trunk-line' territory, on the one hand, and points in 'New England' territory, on the other hand, which moves through the 'base' territory. It accepts the Division's holding that it can no longer continue to render services between points situate in 'trunk-line' territory, south of the 'base' territory, which are not authorized in the Division's decision. Similarly, it does not question the Division's findings that it can no longer continue to render intraterritorial service between points in New England, except to the extent authorized in the Division's decision.
'Should the Commission conclude that the interpretation of certificates, which it announced in the Powell Bros. Truck Lines, Inc., case, supra, applies to irregular route carriers, the same as to regular route carriers, and that applicant, under the certificate authorized to be issued by Division 5, as a matter of fact, will be entitled to perform the through transportation service herein described, then it is respectfully requested that there be issued a supplemental report making it clear that applicant is entitled to perform such transportation service.'
5. On October 9, 1944 the Interstate Commerce Commission denied plaintiff's petition for reconsideration without stating its reason for such action.
6. The plaintiff in this suit seeks to have the court set aside the order of the Interstate Commerce Commission of November 26, 1943 and remand the application of plaintiff to the Interstate Commerce Commission for a modified certificate.
7. In this suit plaintiff reiterated its position with respect to the territorial limitations set forth in the order of the Interstate Commerce Commission of November 26, 1943, and raised substantially the same issues as are noted in preceding Finding of Fact No. 4.
8. The record submitted to the court does not disclose that plaintiff, on June 1, 1935, and continuously since that time, transported as part of its substantial and bona fide operations, general commodities between points in 'New England' territory, on the one hand, and, on the other, points situate in the states of New Jersey, Pennsylvania, Delaware and Maryland through plaintiff's 'base Territory'.
Conclusions of Law
We find as Conclusions of Law that:
1. This court has jurisdiction of the action herein and the parties.
2. The Interstate Commerce Commission gave plaintiff full and fair hearings in which it ignored no material evidence offered by plaintiff and it did not act in an arbitrary and unreasonable manner with respect to the proofs submitted to it.
3. The Interstate Commerce Commission did not err in failing to apply its decision in the case of Powell Bros. Truck Lines, Inc. -- Purchase -- Bryan, 39 M.C.C. 11, to the application of the plaintiff.
4. The order of the Interstate Commerce Commission of November 26, 1943 is supported by substantial evidence.
5. There is no evidence to support the charge that the Interstate Commerce Commission discriminated against plaintiff to its disadvantage because it is classified as an irregular-route radial common carrier, or otherwise acted toward plaintiff in an arbitrary, capricious or unreasonable manner.
6. Plaintiff's complaint should be dismissed.