from the distinct need of a particular shipper. Since all of the plaintiff's customers dealt in products having generally similar characteristics, the same equipment was required for the transportation of the products of all of the customers of the plaintiff and of any others in the same production field whom it might secure. The evidence failed to disclose a separate distinct need of a particular customer for which plaintiff's equipment was peculiarly intended. Plaintiff's equipment was designed for a type of product produced by a class of customers and not for the special requirements of a particular product of a single customer. The record before the Commission failed to establish that any of plaintiff's customers had individual requirements relating to the transportation of its product which were peculiar to its business and for which the plaintiff provided a 'tailormade' service to meet the individual customer's distinct need. That plaintiff's equipment was peculiarly essential for the type of product which it transported does not negate its status as a common, as distinguished from a contract, carrier, since its specialized service may be held out to all members of the public who have occasion to ship products for which such specialized equipment is appropriate. Therefore, the Commission properly concluded that Tar Asphalt did not assign motor vehicles for a continuing period of time to the exclusive use of each of its customers, nor did it furnish transportation services designed to meet 'the distinct need of each individual customer' as required by the definition of 'contract carrier by motor vehicle' contained in 49 U.S.C.A. § 303(a)(15).
Although plaintiff (at the time of the hearing before the Commission's Examiner) enjoyed only 19 continuing contracts with different customers, those contracts were for the transportation of a 'narrow' group of related commodities consisting basically of asphalt and related petroleum products in bulk. However, plaintiff's witness testified that Tar Asphalt will enter into a transportation contract with any shipper requesting such service, provided agreeable terms for such service are arrived at. There was, therefore, substantial evidence justifying the Commission in concluding that the plaintiff will serve the ordinary needs for transportation of any shipper, of the commodities which it is equipped to handle, within its area of operations.
The plaintiff does not challenge the Commission's finding that Tar Asphalt's operations 'are otherwise lawful,' which is required by 49 U.S.C.A. § 312(c) as the third prerequisite for authorization to operate as a common carrier of the products which the plaintiff handles. Plaintiff, however, contends that the proviso in the Commission's order 'that separately stated grants of operating authority shall not be joined or tacked directly one to another in order to provide a through transportation service * * *' is erroneous. The purpose of the limitation contained in that proviso is obviously to maintain substantial parity with the operating authority contained in Tar Asphalt's contract carrier permits, and is in accord with the legislative intent implicit in section 312(c) of the Act which provides for 'the transportation, as a common carrier, of the same commodities between the same points or within the same territory as authorized in the permit' (for contract carriage). See Crescent Express Lines Inc. v. United States, 1943, 320 U.S. 401, 64 S. Ct. 167, 88 L. Ed. 127. The contemporaneous construction of the Act by the Commission in this regard, as set forth in its decision in T. T. Brooks Trucking Co., Inc., Conversion Application 81 MCC 561 (1959) is entitled to great weight. United States v. American Trucking Associations, 1940, 310 U.S. 534, 60 S. Ct. 1059, 84 L. Ed. 1345. We accept it as a well reasoned authority.
We find to be without merit Tar Asphalt's further contention that the Commission's attempt to convert its status from that of contract carrier to that of common carrier, against the plaintiff's will, amounts to a taking of private property for public use without just compensation and without due process of law in violation of the Fourteenth Amendment to the Federal Constitution. The Act does not authorize, and the Commission's order does not effect, a conversion of the plaintiff from a private carrier to a public utility. The statute does not require that Tar Asphalt operate as a common carrier, it merely affords an opportunity to plaintiff to continue to operate as a common carrier within the territory and for the purposes which it had formerly authorized by its previously issued permits. The statute merely embodies a new definition of a 'contract carrier' and authorizes the Commission to determine whether one holding a permit as a contract carrier comes within that definition. The evidence before the Examiner amply sustained the Commission's conclusion that the plaintiff's operations did not bring it within the statutory definition. In this connection, plaintiff's argument that the burden of proving that it was not a contract carrier was cast upon the Commission, and required the presentation of proof by the Commission, indicates a misconception on the part of the plaintiff of the meaning and effect of section 312(c). The Commission is the administrative body to which Congress had delegated the exercise of its congressional authority in the field of interstate commerce. The Act imposes numerous inquisitorial, regulatory and supervisory duties upon the Commission in the discharge of its statutorily authorized powers and responsibilities. Assuming, without so deciding, that plaintiff has preserved its right to contend that the burden of proof rested upon the Commission and not upon it, the statutory power reposed in the Commission by 49 U.S.C.A. § 305(d) would have enabled the Commission to reach the same conclusion if plaintiff had not presented its witness and exhibits before the Examiner.
This Court may not set aside an order of the Commission which is within the scope of the Commission's statutory authority and based upon adequate findings supported by substantial evidence. United States v. Pierce Auto Freight Lines, 1946, 327 U.S. 515, 66 S. Ct. 687, 90 L. Ed. 821. Where, as here, the applicable statutory language has been construed by the Commission in the light of its legislative history, such construction commands greater respect than that usually accorded administrative determinations of questions of law. United States v. American Trucking Associations, supra.
The order of the Commission is affirmed, and an appropriate order may be presented.