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November 17, 1955

Arthur SINETT, doing business as Supreme Trucking Co., Plaintiff,
UNITED STATES of America, and Interstate Commerce Commission, Defendants

The opinion of the court was delivered by: MADDEN

Plaintiff, Arthur Sinett, doing business as Supreme Trucking Company (hereinafter referred to as applicant), seeks to set aside an order of the Interstate Commerce Commission which denied, in part, an application for additional operating rights.

 Applicant owns four tractors and four flat bed trailers. Applicant serves one shipper, the Valentine Brick Company, (hereinafter referred to as shipper) presently a division of A. P. Green Fire Brick Company. The flat bed trailers have been tailored especially to handle the firebrick and fireclay of shipper, which constitutes the only commodity or product involved. One of the units is used in the transportation of these products for the shipper, while the remaining three units have been leased to the shipper for transportation of firebrick and fireclay to points in States which the applicant is not now authorized to serve. Shipper utilizes railroads for, roughly, 75 to 80 per cent of its shipments, applicant's trucks for 22 to 25 per cent of its shipments, and 2 to 3 per cent of the transportation is undertaken by shipper's consignees.

 By rights granted in Docket No. MC-1180, Interstate Commerce Commission, applicant presently has authority to transport as a common carrier by motor vehicle of firebrick and fireclay over irregular routes from Woodbridge, New Jersey to New York, New York, Bristol, Easton, Philadelphia, Reading, Bethlehem and Allentown, Pennsylvania. Applicant's authority was obtained with the Commission approval in 1949 from Sewaren Motor Transportation, which, in turn, obtained authority from the Commission in a certificate issued on July 19, 1941.

 The present controversy started on August 8, 1951 when applicant filed an application with the Commission under section 207 of the Interstate Commerce Act, 49 U.S.C.A. § 307, for authority to operate as a common carrier by motor vehicle (1) of firebrick and fireclay from Woodbridge, New Jersey, to points in Connecticut, Delaware, Maryland, the District of Columbia and additional points in New York and Pennsylvania not presently served, and (2) in returning empty containers or other incidental facilities used in transporting firebrick and fireclay from the above destination points to Woodbridge, New Jersey over irregular routes. Joint Northeastern Motor Association and Trunk Line and New England Territory Railroads, except Chesapeake and Ohio Railway Co., filed protests, and Wagner Trucking Co., Inc., Branch Motor Express Co., and White Motor Transportation Co., Inc. intervened at the hearing in opposition to the granting of the application.

 Hearing was held on the application on June 20, 1952 before an Examiner of the Interstate Commerce Commission. The Examiner recommended that applicant be granted the additional authority requested in the application by order and report dated October 27, 1952. Exceptions were filed by interveners Wagner Trucking Co., Inc., and Branch Motor Express Co., and applicant replied.

 Division 5 of the Interstate Commerce Commission, by order dated September 30, 1953, accepted the recommendations of the Examiner in part only, finding that authority should be granted to the applicant to transport the empty containers, or pallets, from the destination points now authorized to be served in New York and Pennsylvania to Woodbridge, New Jersey.

 Applicant, thereafter, on November 4, 1953, petitioned the Commission for a rehearing. By order dated July 30, 1954, the Commission at a general session denied the petition for reconsideration. On October 26, 1954 the applicant filed this suit to set aside the order.

 In substance, the Commission found that the applicant is fit, willing and able properly to perform the service applied for but that there was no showing that the services of the existing carriers are inadequate in any respect. (See Sheet 6 of I.C.C. Report).

 Before applying the law to the facts and record of this particular matter it might be well to examine generally into the function of the Commission, and then this forum as a reviewing court in their respective approaches to the problem.

 The Act, 49 U.S.C.A. § 307, directs the Interstate Commerce Commission to issue a certificate to a qualified applicant who is found fit, willing, and able to furnish the proposed service and to conform to the law and the rules and regulations of the Commission when the proposed service is or will be required by the present or future public convenience and necessity.

 The Commission is to be the determining agency. Congress has seen fit to impose upon that expert body the duty of determining what is best and proper in view of the public interest. Much has been said and many terms used by reviewing courts to describe the Commission's functions; to mention a few:

 'The issue of public convenience and necessity is a matter peculiarly requiring the exercise of the Commission's expert judgment in the field of transportation.' Norfolk Southern Bus Corp. v. United States, D.C.1950, 96 F.Supp. 756, 758. and

 'Its (ICC) function is not only to appraise the facts and to draw inferences from them but also to bring to bear upon the problem an expert judgment and to determine from its analysis of the total situation on which side of the controversy the public interest lies.' United States v. Detroit & Cleveland Navigation Co., 1945, 326 U.S. 236, 241, 66 S. Ct. 75, 77, 90 L. Ed. 38. and

 'The purpose of Congress was to leave to the Commission authoritatively to decide whether additional motor service would serve public convenience and necessity.' Interstate Commerce Commission v. Parker, 1944, 326 ...

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