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Interstate Commerce Commission v. J-T Transport Co., 368 U.S. 81 USAC (1961)

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American Government Trucking Topics:  J-T Transport

Interstate Commerce Commission v. J-T Transport Co., 368 U.S. 81 USAC (1961)
United States Supreme Court

From the U.S. Government Printing Office via GPO Access
 
Case:   INTERSTATE COMMERCE COMMISSION V. J-T TRANSPORT CO. 

Case #: 368US81USAC
TRANSPORT V. J-T TRANSPORT CO. 368 U.S. 81 ATCHISON, TOPEKA & SANTA FE
RAILWAY CO., V. REDDISH 368 U.S. 81 INTERSTATE COMMERCE COMMISSION V.
REDDISH 368 U.S. 81 ARKANSAS-BEST FREIGHT SYSTEM V. REDDISH 368 U.S.
81 


NO. 17.  ARGUED OCTOBER 17-18, 1961 - DECIDED DECEMBER 4, 1961* - 185 F.
SUPP. 838; 188 F. SUPP. 160, AFFIRMED. 

*TOGETHER WITH NO. 18, U.S.A.C. TRANSPORT, INC., ET AL. V. J-T
TRANSPORT CO., INC., ET AL., ON APPEAL FROM THE SAME COURT, ARGUED
OCTOBER 17-18, 1961; NO. 49, ATCHISON, TOPEKA & SANTA FE RAILWAY CO. ET
AL. V. REDDISH ET AL., NO. 53, INTERSTATE COMMERCE COMMISSION V.
REDDISH ET AL., AND NO. 54, ARKANSAS-BEST FREIGHT SYSTEM, INC., ET AL.
V. REDDISH ET AL., ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF ARKANSAS, ARGUED OCTOBER 18, 1961. 


UNDER SEC. 209(B) OF THE INTERSTATE COMMERCE ACT, AS AMENDED IN 1957,
THE COMMISSION DENIED APPLICATIONS FOR OPERATING PERMITS FILED BY
CONTRACT MOTOR CARRIERS, SUPPORTED BY SHIPPERS AND OPPOSED BY COMMON
CARRIERS.  IN ONE CASE THE SHIPPER CLAIMED THAT A CONTRACT CARRIER'S
OPERATIONS COULD BE BETTER INTEGRATED WITH ITS PRODUCTION OF PARTS FOR
AIRPLANES.  IN THE OTHER CASE THE SHIPPERS CLAIMED THAT THE SERVICES OF
COMMON CARRIERS WERE UNSATISFACTORY AND THAT THEIR RATES WERE
PROHIBITIVE ON LESS-THAN-TRUCKLOAD SHIPMENTS OF CANNED GOODS.  THREE
JUDGE DISTRICT COURTS HELD THAT THE COMMISSION HAD INCORRECTLY APPLIED
THE ACT, AS AMENDED, SET ASIDE THE COMMISSION'S ORDERS AND REMANDED THE
CASES FOR FURTHER CONSIDERATION.  HELD:  THE JUDGMENTS ARE AFFIRMED. 
PP. 83-93. 

(A)  UNDER SEC. 209(B), AS AMENDED, THE ADEQUACY OF EXISTING SERVICES
IS A CRITERION TO BE CONSIDERED BY THE COMMISSION IN PASSING UPON SUCH
AN APPLICATION; BUT IT IS NOT DETERMINATIVE.  UNDER SEC. 203(A)(15), AS
AMENDED, THE "DISTINCT NEED" OF SHIPPERS FOR THE NEW CONTRACT SERVICE
MUST BE WEIGHED AGAINST THE ADEQUACY OF EXISTING SERVICES.  P. 88. 

(B)  BY INDULGING IN A PRESUMPTION THAT THE SERVICES WHICH EXISTING
COMMON CARRIERS RENDER THE PUBLIC WOULD BE ADVERSELY AFFECTED BY A LOSS
OF "POTENTIAL" TRAFFIC, EVEN IF THEY HAD NOT HANDLED IT BEFORE, AND BY
ASSIGNING TO THE APPLICANTS THE BURDEN OF PROVING THE INADEQUACY OF
EXISTING SERVICES, THE COMMISSION FAVORED THE PROTESTANTS' INTERESTS AT
THE EXPENSE OF THE SHIPPERS' IN A MANNER NOT INTENDED BY CONGRESS.  PP.
88-90. 

(C)  THE PROPER PROCEDURE IS FOR THE APPLICANT FIRST TO DEMONSTRATE
THAT THE UNDERTAKING IT PROPOSES IS SPECIALIZED AND TAILORED TO A
SHIPPER'S "DISTINCT NEED."  THE PROTESTANTS THEN MAY PRESENT EVIDENCE
TO SHOW THAT THEY HAVE THE ABILITY AND THE WILLINGNESS TO MEET THAT
SPECIALIZED NEED.  IF THAT IS DONE, THE BURDEN THEN SHIFTS TO THE
APPLICANT TO DEMONSTRATE THAT IT IS BETTER EQUIPPED TO MEET THE
DISTINCT NEEDS OF THE SHIPPER THAN THE PROTESTANTS.  P. 90. 

(D)  UNDER THE ACT, AS AMENDED IN 1957, THE STANDARD IS NOT WHETHER
EXISTING SERVICES ARE "REASONABLY ADEQUATE."  IT IS WHETHER A SHIPPER
HAS A "DISTINCT NEED" FOR A DIFFERENT OR A MORE SELECT OR A MORE
SPECIALIZED SERVICE WHICH THE PROTESTING CARRIERS CANNOT FILL.  PP. 90
91. 

(E)  THE COMMISSION ERRED IN RULING THAT THE DESIRE FOR LOWER RATES
OFFERED BY THE APPLICANT WAS NOT RELEVANT TO THE SHIPPERS' NEEDS, SINCE
THE MATTER OF RATES IS ONE FACTOR TO BE WEIGHED IN DETERMINING WHETHER
THE SHIPPER HAS ESTABLISHED A "NEED" FOR MORE "ECONOMICAL" SERVICE,
WITHIN THE MEANING OF THE NATIONAL TRANSPORTATION POLICY.  PP. 91-92. 

(F)  UNDER THE STATUTE, AS AMENDED, A SHIPPER IS ENTITLED TO HAVE HIS
"DISTINCT NEEDS" MET.  THE ADEQUACY OF EXISTING SERVICES FOR NORMAL
NEEDS AND THE WILLINGNESS AND ABILITY OF AN EXISTING CARRIER TO RENDER
THE SERVICE ARE NOT CONCLUSIVE, SINCE THE "DISTINCT NEED" OF THE
SHIPPER MAY NOT BE SERVED BY THE EXISTING SERVICES, IF THE NEW SERVICE
IS BETTER TAILORED TO FIT THE SPECIAL REQUIREMENTS OF THE SHIPPER'S
BUSINESS, THE LENGTH OF ITS PURSE, OR THE SELECT NATURE OF THE DELIVERY
SERVICE THAT IS DESIRED.  PP. 92-93. 

INTERSTATE COMMERCE COMMISSION V. J-T TRANSPORT CO., INC., ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT
OF MISSOURI. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THESE ARE APPEALS FROM JUDGMENTS OF THREE-JUDGE DISTRICT COURTS, 28
U.S.C. SEC. 1253, WHICH SET ASIDE ORDERS OF THE INTERSTATE COMMERCE
COMMISSION DENYING APPLICATIONS FOR PERMITS AS CONTRACT CARRIERS.  185
F. SUPP. 838; 188 F. SUPP. 160. 

APPELLEE J-T TRANSPORT COMPANY ASKED TO EXTEND ITS PRESENT OPERATIONS
AS AN IRREGULAR-ROUTE CONTRACT CARRIER OF AIRPLANE PARTS TO INCLUDE
CARRIAGE OF AIRCRAFT LANDING GEAR BULKHEADS FOR BOEING AIRPLANE CO.
BOEING SUPPORTED THE APPLICATION.  COMMON CARRIERS OPPOSED THE
APPLICATION, AS DID ANOTHER CARRIER, U.S.A.C. TRANSPORT, INC.,
APPELLANT IN NO. 18.  BOEING INDICATED IT PREFERRED THE APPLICANT OVER
THE OTHER BECAUSE OF ITS UNSATISFACTORY EXPERIENCE WITH THE LATTER IN
OTHER OPERATIONS.  BOEING INDICATED THAT CONTRACT CARRIAGE WAS MORE
PRACTICABLE IN ITS EXPERIENCE THAN COMMON CARRIAGE, AS A CONTRACT
CARRIER'S OPERATIONS COULD BE BETTER INTEGRATED WITH A MANUFACTURER'S
PRODUCTION.  THOUGH THE EXAMINER RECOMMENDED A GRANT OF THE PERMIT, THE
COMMISSION DENIED IT (74 M.C.C. 324, 79 M.C.C. 695) SAYING THAT NO
ATTEMPT HAD BEEN MADE TO ASCERTAIN IF THE EXISTING SERVICES WERE
CAPABLE OF MEETING THE NEEDS OF THE SHIPPER.  IT RULED THAT "THERE IS,
IN EFFECT, A PRESUMPTION THAT THE SERVICES OF EXISTING CARRIERS WILL BE
ADVERSELY AFFECTED BY A LOSS OF 'POTENTIAL' TRAFFIC, EVEN IF THEY MAY
NOT HAVE HANDLED IT BEFORE."  79 M.C.C. 695, 705.  IT HELD THAT THE
APPLICANT HAD NOT ESTABLISHED A NEED FOR THIS CONTRACT SERVICE AND THAT
THE APPLICANT HAD NOT SHOWN "THE EXISTING SERVICE" OF THE OTHER CARRIER
TO BE "INADEQUATE."  ID., 709.  IT INDICATED THAT A SERVICE "NOT
NEEDED" CANNOT BE FOUND CONSISTENT WITH THE PUBLIC INTEREST OR THE
NATIONAL TRANSPORTATION POLICY, AS THOSE TERMS ARE USED IN SEC. 209(B)
OF THE INTERSTATE COMMERCE ACT AS AMENDED, 71 STAT.  411, 49 U.S.C.
SEC. 309(B).  IT SAID THAT THE SHIPPERS DID NOT REQUIRE A DISTINCT TYPE
OF SERVICE THAT COULD NOT BE PROVIDED BY THE PROTESTING CARRIER, WHICH
WAS INDEED IN A POSITION TO PROVIDE ANY SERVICE NEEDED AND WHICH WOULD
BE ADVERSELY AFFECTED BY A GRANT OF THIS APPLICATION, EVEN THOUGH IT
NEVER HAD HAD THE BUSINESS IN QUESTION. 

APPELLEE REDDISH MADE APPLICATION TO CARRY CANNED GOODS AS A CONTRACT
CARRIER FROM THREE POINTS IN ARKANSAS AND ONE IN OKLAHOMA TO VARIOUS
POINTS IN THIRTY-THREE STATES AND TO CARRY OTHER GOODS ON RETURN.  HIS
APPLICATION WAS SUPPORTED BY HIS PROSPECTIVE SHIPPERS AND OPPOSED BY
MOTOR COMMON CARRIERS, APPELLANTS IN NO. 54, AND BY RAIL COMMON
CARRIERS, APPELLANTS IN NO. 49. 

REDDISH SHOWED THAT HE DELIVERED TO CUSTOMERS WHO ORDERED GOODS IN
LESS-THAN-TRUCKLOAD AMOUNTS.  THESE CUSTOMERS MAINTAINED LOW
INVENTORIES AND NEEDED EXPEDITED DELIVERIES IN SMALL QUANTITIES AND ON
SHORT NOTICE.  SOME ACCEPTED DELIVERIES ONLY ON CERTAIN DAYS, A
REQUIREMENT CALLING FOR INTEGRATION AND COORDINATION BETWEEN SHIPPER
AND CUSTOMER.  THE SHIPPERS SAID THAT COMMON CARRIAGE WAS AN INADEQUATE
SERVICE FOR THESE SHIPMENTS, AS THEY WERE IN SUCH SMALL LOTS THAT THEY
OFTEN HAD TO BE CARRIED IN CONSOLIDATED LOADS WHICH CAUSED DELAYS IN
SHIPMENTS.  MOREOVER, IT WAS SHOWN THAT NOT ALL POINTS WOULD BE SERVED
BY ONE COMMON CARRIER, MAKING IT NECESSARY TO UNLOAD THE SHIPMENTS AND
RELOAD THEM ON ANOTHER CARRIER CAUSING DELAYS, MISCONSIGNMENT, AND
DAMAGE TO GOODS.  THE SHIPPERS ALSO TESTIFIED THAT THE COST OF COMMON
CARRIAGE WAS PROHIBITIVE FOR LESS-THAN-TRUCKLOAD SHIPMENTS AND THAT IF
THE REDDISH APPLICATION WERE DENIED THEY WOULD USE PRIVATE CARRIAGE. 
THE PROTESTING MOTOR COMMON CARRIERS TESTIFIED THEY COULD RENDER
ADEQUATE SERVICE FOR THESE SHIPMENTS AND PROVIDE MULTIPLE PICK-UP AND
DELIVERY SERVICES TO MOST OF THE POINTS BY TRANSFERRING THE SHIPMENTS
TO OTHER CARRIERS.  THE EXAMINER RECOMMENDED THAT THE APPLICATION BE
GRANTED.  THE COMMISSION DENIED IT, SAYING, INTER ALIA, THAT THE
SERVICES NEEDED BY THE SHIPPERS COULD BE PERFORMED BY EXISTING COMMON
CARRIERS, THAT THEY WOULD BE INJURED BY THE LOSS OF POTENTIAL TRAFFIC,
AND THAT THE SHIPPERS' DESIRE TO OBTAIN LOWER RATES FOR LESS-THAN
TRUCKLOAD SHIPMENTS WAS THE PRIMARY REASON FOR THEIR SUPPORT OF THE
APPLICATION, BUT WAS NOT A SUFFICIENT BASIS TO JUSTIFY A GRANT OF
AUTHORITY TO THIS CONTRACT CARRIER.  81 M.C.C. 35. 

THE CASES TURN ON THE MEANING OF LANGUAGE ADDED TO THE ACT IN 1957. 

OUR DECISION IN UNITED STATES V. CONTRACT STEEL CARRIERS, 350 U.S.
409, HELD THAT A CONTRACT CARRIER, RENDERING A SPECIALIZED SERVICE IN
THE SENSE THAT IT HAULED ONLY A LIMITED GROUP OF COMMODITIES OVER
IRREGULAR ROUTES, DID NOT BECOME A COMMON CARRIER BECAUSE IT REACHED
FOR NEW BUSINESS WITHIN THE LIMITS OF ITS LICENSE.  THAT DECISION
CAUSED CONCERN TO THE COMMISSION WHICH PROPOSED AMENDMENTS TO THE ACT. 
(FN1)  IT PROPOSED THAT SEC. 203(A)(15) BE AMENDED SO AS TO DEFINE A
CONTRACT CARRIER AS ONE WHO ENGAGES IN TRANSPORTATION BY MOTOR VEHICLE
"UNDER CONTINUING CONTRACTS WITH ONE PERSON OR A LIMITED NUMBER OF
PERSONS FOR THE FURNISHING OF TRANSPORTATION SERVICES OF A SPECIAL AND
INDIVIDUAL NATURE REQUIRED BY THE CUSTOMER AND NOT PROVIDED BY COMMON
CARRIERS."  IT ALSO PROPOSED THAT SEC. 209(B) BE AMENDED BY ADDING AN
ADDITIONAL REQUIREMENT FOR ISSUANCE OF A CONTRACT CARRIER PERMIT, VIZ.,
"THAT EXISTING COMMON CARRIERS ARE UNWILLING OR UNABLE TO PROVIDE THE
TYPE OF SERVICE FOR WHICH A NEED HAS BEEN SHOWN." 

THESE AMENDMENTS WERE VIGOROUSLY OPPOSED IN SOME QUARTERS.  (FN2)
THE ADDITION TO SEC. 203(A)(15) WAS OBJECTED TO ON THE GROUND THAT MANY
CONTRACT CARRIERS WOULD BE DRIVEN OUT OF BUSINESS BECAUSE THEY COULD
NOT MEET THE TEST OF PERFORMING A SERVICE "NOT PROVIDED BY COMMON
CARRIERS."  THE CHANGE IN SEC. 209(B) WAS OPPOSED BECAUSE IT WOULD BE
IMPOSSIBLE FOR A CONTRACT CARRIER TO PROVE THAT COMPETING COMMON
CARRIERS WERE "UNWILLING" TO RENDER THE SERVICE AND VERY DIFFICULT FOR
IT TO PROVE THAT COMMON CARRIERS WERE "UNABLE" TO RENDER THE SERVICE,
AS THE APPLICANT WOULD HAVE NO INTIMATE KNOWLEDGE OF THE BUSINESS OF
THE OPPOSING CARRIERS. 

THE COMMISSION BOWED TO THESE OBJECTIONS; (FN3) AND THE BILL AS IT
PASSED ELIMINATED THE PROPOSED CHANGES EXCEPT THE ONES THAT CHANGED THE
RESULT OF OUR DECISION IN UNITED STATES V. CONTRACT STEEL CARRIERS,
SUPRA.  (FN4)  SECTION 203(A)(15), HOWEVER, WAS AMENDED, SO FAR AS
MATERIAL HERE, BY ADDING TO THE DESCRIPTION OF THE TERM "CONTRACT
CARRIER BY MOTOR VEHICLE" ONE WHO FURNISHES "TRANSPORTATION SERVICES
DESIGNED TO MEET THE DISTINCT NEED OF EACH INDIVIDUAL CUSTOMER."  (FN5)
AND SEC. 209(B) WAS AMENDED BY ADDING A SENTENCE WHICH SETS FORTH FIVE
FACTORS THE COMMISSION SHALL CONSIDER IN DETERMINING WHETHER THE PERMIT
SHOULD ISSUE: 

"IN DETERMINING WHETHER ISSUANCE OF A PERMIT WILL BE CONSISTENT WITH
THE PUBLIC INTEREST AND THE NATIONAL TRANSPORTATION POLICY DECLARED IN
THIS ACT, THE COMMISSION SHALL CONSIDER (1) THE NUMBER OF SHIPPERS TO
BE SERVED BY THE APPLICANT, (2) THE NATURE OF THE SERVICE PROPOSED, (3)
THE EFFECT WHICH GRANTING THE PERMIT WOULD HAVE UPON THE SERVICES OF
THE PROTESTING CARRIERS AND (4) THE EFFECT WHICH DENYING THE PERMIT
WOULD HAVE UPON THE APPLICANT AND/OR ITS SHIPPER AND (5) THE CHANGING
CHARACTER OF THAT SHIPPER'S REQUIREMENTS."  (NUMERALS ADDED.) 

IT SEEMS CLEAR FROM THESE PROVISIONS THAT THE ADEQUACY OF EXISTING
SERVICES IS A CRITERION TO BE CONSIDERED BY THE COMMISSION, AS IT IS
INSTRUCTED TO CONSIDER "THE EFFECT WHICH GRANTING THE PERMIT WOULD HAVE
UPON THE SERVICES OF THE PROTESTING CARRIERS," AS WELL AS THE EFFECT OF
A DENIAL UPON THE SHIPPERS.  OR TO PUT THE MATTER OTHERWISE, THE
QUESTION OF THE NEED OF THE SHIPPING PUBLIC FOR THE PROPOSED SERVICE
NECESSARILY INCLUDES THE QUESTION WHETHER THE EXTENT, NATURE,
CHARACTER, AND SUITABILITY OF EXISTING, AVAILABLE SERVICE MAKES THE
PROPOSED SERVICE OUT OF LINE WITH THE REQUIREMENTS OF THE NATIONAL
TRANSPORTATION POLICY.  BUT THE ADEQUACY OF EXISTING FACILITIES OR THE
WILLINGNESS OR ABILITY OF EXISTING CARRIERS TO RENDER THE NEW SERVICE
IS NOT DETERMINATIVE.  THE "EFFECT WHICH DENYING THE PERMIT WOULD HAVE
UPON THE APPLICANT AND/OR ITS SHIPPER AND THE CHANGING CHARACTER OF
THAT SHIPPER'S REQUIREMENTS" HAVE ADDITIONAL RELEVANCE.  THIS IS A
PHASE OF THE PROBLEM REFLECTED IN THE BROADENED DEFINITION OF A
"CONTRACT CARRIER BY MOTOR VEHICLE" - ONE WHO FURNISHES TRANSPORTATION
SERVICES "DESIGNED TO MEET THE DISTINCT NEED OF EACH INDIVIDUAL
CUSTOMER."  SEC. 203(A)(15).  IT MEANS, WE THINK, THAT THE "DISTINCT
NEED" OF SHIPPERS FOR THE NEW CONTRACT CARRIER SERVICE MUST BE WEIGHED
AGAINST THE ADEQUACY OF EXISTING SERVICES.  THE COMMISSION INDULGED IN
"A PRESUMPTION THAT THE SERVICES OF EXISTING CARRIERS WILL BE ADVERSELY
AFFECTED BY A LOSS OF 'POTENTIAL' TRAFFIC, EVEN IF THEY MAY NOT HAVE
HANDLED IT BEFORE."  79 M.C.C. 695, 705.  THE EFFECT OF THE PRESUMPTION
IS IN SUBSTANCE TO LIMIT COMPETING CONTRACT CARRIAGE TO SERVICES "NOT
PROVIDED" BY EXISTING CARRIERS - A PROVISION THAT THE COMMISSION SOUGHT
UNSUCCESSFULLY TO HAVE INCORPORATED INTO THE ACT.  WE SEE NO ROOM FOR A
PRESUMPTION IN FAVOR OF, OR AGAINST, ANY OF THE FIVE FACTORS ON WHICH
FINDINGS MUST BE MADE UNDER SEC. 209(B).  THE EFFECT ON PROTESTING
CARRIERS OF A GRANT OF THE APPLICATION AND THE EFFECT ON SHIPPERS OF A
DENIAL ARE FACTORS TO BE WEIGHED IN DETERMINING ON BALANCE WHERE THE
PUBLIC INTEREST LIES.  THE AIM OF THE 1957 AMENDMENTS, AS WE READ THE
LEGISLATIVE HISTORY, WAS NOT TO PROTECT THE STATUS QUO OF EXISTING
CARRIERS BUT TO ESTABLISH A REGIME UNDER WHICH NEW CONTRACT CARRIAGE
COULD BE ALLOWED IF THE "DISTINCT NEED" OF SHIPPERS INDICATED THAT IT
WAS DESIRABLE. 

WE CANNOT ASSUME THAT CONGRESS, IN AMENDING THE STATUTE, INTENDED TO
ADOPT THE ADMINISTRATIVE CONSTRUCTION WHICH PREVAILED PRIOR TO THE
AMENDMENT. 

BY ADDING THE FIVE CRITERIA WHICH IT DIRECTED THE COMMISSION TO
CONSIDER, CONGRESS EXPRESSED ITS WILL THAT THE COMMISSION SHOULD NOT
MANIFEST SPECIAL SOLICITUDE FOR THAT CRITERION WHICH DIRECTS ATTENTION
TO THE SITUATION OF PROTESTING CARRIERS, AT THE EXPENSE OF THAT WHICH
DIRECTS ATTENTION TO THE SITUATION OF SUPPORTING SHIPPERS, WHEN THOSE
CRITERIA HAVE CONTRARY IMPLICATIONS.  SUCH A SITUATION DOUBTLESS EXISTS
IN THESE CASES, FOR GRANTING THE PERMITS MIGHT WELL HAVE PRODUCED SOME
CONSEQUENCES ADVERSE TO THE PROTESTING CARRIERS, WHILE DENYING THEM MAY
JUST AS CERTAINLY PROVE BURDENSOME TO THE SUPPORTING SHIPPERS.  HAD THE
COMMISSION, HAVING DRAWN OUT AND CRYSTALLIZED THESE COMPETING
INTERESTS, ATTEMPTED TO JUDGE THEM WITH AS MUCH DELICACY AS THE
PROSPECTIVE NATURE OF THE INQUIRY PERMITS, WE SHOULD HAVE BEEN CAUTIOUS
ABOUT DISTURBING ITS CONCLUSION. 

BUT WHILE SUCH A DETERMINATION IS PRIMARILY A RESPONSIBILITY OF THE
COMMISSION, WE ARE UNDER NO COMPULSION TO ACCEPT ITS READING WHERE, AS
HERE, WE ARE CONVINCED THAT IT HAS LOADED ONE OF THE SCALES.  BY
INDULGING IN A PRESUMPTION "THAT THE SERVICES OF EXISTING CARRIERS WILL
BE ADVERSELY AFFECTED BY A LOSS OF 'POTENTIAL' TRAFFIC, EVEN IF THEY
MAY NOT HAVE HANDLED IT BEFORE," AND BY ASSIGNING TO THE APPLICANTS THE
BURDEN OF PROVING THE INADEQUACY OF EXISTING SERVICES, THE COMMISSION
FAVORED THE PROTESTANTS' INTERESTS AT THE EXPENSE OF THE SHIPPERS' IN A
MANNER NOT COUNTENANCED BY ANYTHING DISCOVERABLE IN CONGRESS'
DELEGATION TO IT OF RESPONSIBILITY. 

IT IS ARGUED THAT THE COMMISSION, IN HOLDING THAT U.S.A.C. IS WILLING
AND ABLE TO RENDER THE SERVICE, DID NOT RELY ON THE PRESUMPTION.  WE
ARE, HOWEVER, NOT CONVINCED.  THE COMMISSION SEEMS TO HAVE PLACED THE
BURDEN OF PROVING INADEQUACY OF EXISTING SERVICES ON THE APPLICANT, FOR
IT SAID THAT THE APPLICANT HAD NOT SHOWN THAT THE SERVICE OF U.S.A.C.
WAS "INADEQUATE."  79 M.C.C. 695, 709.  SUCH A BURDEN IS IMPROPERLY
PLACED ON THE APPLICANT, AS THE REJECTION OF THE PROPOSED AMENDMENT TO
SEC. 209(B) SUGGESTS.  THE CAPABILITIES OF PROTESTING CARRIERS ARE
MATTERS PECULIARLY WITHIN THEIR KNOWLEDGE.  IN THE REDDISH CASE THE
COMMISSION MADE THE SAME ERROR, AS IS EVIDENT FROM ITS STATEMENT THAT
THE "SHIPPERS HAVE FAILED TO SHOW THAT THEY HAVE BEEN UNABLE TO OBTAIN
REASONABLY ADEQUATE SERVICE UPON REQUEST."  81 M.C.C. 35, 42. 

THE PROPER PROCEDURE, WE CONCLUDE, IS FOR THE APPLICANT FIRST TO
DEMONSTRATE THAT THE UNDERTAKING IT PROPOSES IS SPECIALIZED AND
TAILORED TO A SHIPPER'S DISTINCT NEED.  THE PROTESTANTS THEN MAY
PRESENT EVIDENCE TO SHOW THEY HAVE THE ABILITY AS WELL AS THE
WILLINGNESS TO MEET THAT SPECIALIZED NEED.  IF THAT IS DONE, THEN THE
BURDEN SHIFTS TO THE APPLICANT TO DEMONSTRATE THAT IT IS BETTER
EQUIPPED TO MEET THE DISTINCT NEEDS OF THE SHIPPER THAN THE
PROTESTANTS. 

MOREOVER, AS WE READ THE ACT, AS AMENDED IN 1957, THE STANDARD IS NOT
WHETHER EXISTING SERVICES ARE "REASONABLY ADEQUATE."  IT IS WHETHER A
SHIPPER HAS A "DISTINCT NEED" FOR A DIFFERENT OR A MORE SELECT OR A
MORE SPECIALIZED SERVICE.  THE PROTESTING CARRIERS MUST SHOW THEY CAN
FILL THAT "DISTINCT NEED," NOT THAT THEY CAN PROVIDE A "REASONABLY
ADEQUATE SERVICE."    IN THE REDDISH CASE THE COMMISSION RULED THAT THE
DESIRE FOR LOWER RATES OFFERED BY THE APPLICANT WAS IRRELEVANT TO A
SHIPPER'S NEEDS, THAT IF THE RATES OF EXISTING CARRIERS WERE TOO HIGH,
SHIPPERS SHOULD SEEK RELIEF FOR THEIR REDUCTION.  81 M.C.C. 35, 42-43. 
WE THINK THE MATTER OF RATES IS ONE FACTOR TO BE WEIGHED IN DETERMINING
THE NEED FOR THE NEW SERVICE.  IN A CONTEST BETWEEN CARRIERS BY MOTOR
VEHICLES AND CARRIERS BY RAIL, WE HELD IN SCHAFFER TRANSPORTATION CO.
V. UNITED STATES, 355 U.S. 83, THAT THE ABILITY OF A PARTICULAR MODE OF
TRANSPORTATION TO OPERATE WITH A LOWER RATE IS ONE OF THE "INHERENT
ADVANTAGES" THAT ONE TYPE MAY HAVE OVER ANOTHER WITHIN THE MEANING OF
THE ACT.  54 STAT. 899.  BY ANALOGY, CONTRACT CARRIAGE MAY BE MORE
"ECONOMICAL" THAN COMMON CARRIAGE BY MOTOR OR RAIL WITHIN THE FRAMEWORK
OF THE NATIONAL TRANSPORTATION POLICY, AS IT IS DEFINED IN THE ACT
(FN6) - "THE COMMISSION'S GUIDE" TO THE PUBLIC INTEREST.  MCLEAN
TRUCKING CO. V. UNITED STATES, 321 U.S. 67, 82.  IT WOULD SEEM HARDLY
CONTESTABLE THAT IF DENIAL OF THE APPLICATION MEANT, FOR EXAMPLE, THAT
A SHIPPER'S COSTS OF TRANSPORTATION WOULD BE PROHIBITIVE, THE SHIPPER
HAD ESTABLISHED A "NEED" FOR THE MORE "ECONOMICAL" SERVICE.  SEE HERMAN
R. EWELL EXTENSION - PHILADELPHIA, 72 M.C.C.  645.  THIS DOES NOT MEAN
THAT THE LAWFULNESS OF RATES WOULD BE INJECTED INTO CERTIFICATE
PROCEEDINGS.  THE ISSUE OF WHETHER OR NOT THE PROPOSED SERVICE OFFERS A
RATE ADVANTAGE AND IF SO WHETHER SUCH ADVANTAGE ESTABLISHES A "NEED"
FOR THE SERVICE THAT OVERRIDES COUNTERBALANCING CONSIDERATIONS PRESENTS
ISSUES THAT FALL FAR SHORT OF A RATE PROCEEDING. 

WE AGREE WITH THE COURT IN THE J-T TRANSPORT CO. CASE THAT, WHILE THE
1957 AMENDMENTS CHANGED THE RESULT OF OUR DECISION IN UNITED STATES V.
CONTRACT STEEL CARRIERS, SUPRA, BY GIVING THE COMMISSION POWER TO LIMIT
THE NUMBER OF CONTRACTS WHICH A CONTRACT CARRIER CAN MAINTAIN, THE
AMENDMENTS IN OTHER RESPECTS PUT THE CONTRACT CARRIER ON A FIRMER
FOOTING.  THAT COURT SAID, "UNDER THE STATUTE A SHIPPER IS ENTITLED TO
HAVE HIS DISTINCT NEEDS MET."  185 F. SUPP. 838, 849.  WE AGREE.  WE
ALSO AGREE THAT THOUGH COMMON CARRIER SERVICE IS REASONABLY ADEQUATE
AND THOUGH ANOTHER CARRIER IS WILLING AND ABLE TO FURNISH THE SERVICE,
A PERMIT TO A CONTRACT CARRIER TO FURNISH THIS PARTICULAR SERVICE STILL
MIGHT BE WHOLLY CONSISTENT WITH THE NATIONAL TRANSPORTATION POLICY
DEFINED IN THE ACT.   FOR IT IS "THE DISTINCT NEED OF EACH INDIVIDUAL
CUSTOMER" THAT THE CONTRACT CARRIER IS DESIGNED TO FILL.  SEC.
203(A)(15).  AND "THE CHANGING CHARACTER" OF THE SHIPPER'S
"REQUIREMENTS" IS A FACTOR TO BE WEIGHED BEFORE DENYING THE
APPLICATION.  SEC. 209(B).  HENCE THE ADEQUACY OF EXISTING SERVICES FOR
NORMAL NEEDS AND THE WILLINGNESS AND ABILITY OF AN EXISTING CARRIER TO
RENDER THE SERVICE ARE NOT THE END OF THE MATTER.  THE "DISTINCT NEED"
OF THE SHIPPER MAY NONETHELESS NOT BE SERVED BY EXISTING SERVICES, IF
THE NEW SERVICE IS BETTER TAILORED TO FIT THE SPECIAL REQUIREMENTS OF A
SHIPPER'S BUSINESS, THE LENGTH OF ITS PURSE, OR THE SELECT NATURE OF
THE DELIVERY SERVICE THAT IS DESIRED.  THE FACT THAT THE PROTESTING
CARRIERS DO NOT PRESENTLY PERFORM THE SERVICE BEING TENDERED AND THAT
THE GRANT OF THE APPLICATION WOULD NOT DIVERT BUSINESS FROM THEM DOES
NOT NECESSARILY MEAN THAT THE GRANT WOULD HAVE NO EFFECT "UPON THE
SERVICES" OF THE PROTESTING CARRIERS WITHIN THE MEANING OF SEC.
209(B).  BUT WHERE THE PROTESTING CARRIERS DO NOT PRESENTLY HAVE THE
BUSINESS, IT WOULD SEEM THAT THE GRANT OF IT TO A NEWCOMER WOULD HAVE
AN ADVERSE EFFECT ON THEM ONLY IN THE UNUSUAL CASE. 

WE INTIMATE NO OPINION ON THE MERITS, FOR IT IS THE COMMISSION, NOT
THE COURTS, THAT BRINGS AN EXPERTISE TO BEAR ON THE PROBLEM, THAT MAKES
THE FINDINGS, AND THAT GRANTS OR DENIES THE APPLICATIONS.  YET THAT
EXPERTISE IS NOT SUFFICIENT BY ITSELF.  FINDINGS SUPPORTED BY
SUBSTANTIAL EVIDENCE ARE REQUIRED.  PUBLIC SERVICE COMM'N V. UNITED
STATES, 356 U.S. 421, 427; UNITED STATES V. UNITED STATES SMELTING CO.,
339 U.S. 186, 193. 

SINCE THE STANDARDS AND CRITERIA EMPLOYED BY THE COMMISSION WERE NOT
THE PROPER ONES, THE CAUSES MUST BE REMANDED FOR FURTHER CONSIDERATION
AND FOR NEW FINDINGS.  AMERICAN TRUCKING ASSNS.  V. UNITED STATES, 364
U.S. 1, 15-17.  ACCORDINGLY THE JUDGMENTS BELOW ARE AFFIRMED. 

FN1  HEARINGS, S. 1384, SUBCOMMITTEE OF COMMITTEE ON INTERSTATE AND
FOREIGN COMMERCE, 85TH CONG., 1ST SESS., P. 6. 

FN2  THE PROPOSED AMENDMENTS WERE OBJECTED TO BY THE DEPARTMENT OF
JUSTICE AS BEING "UNDULY RESTRICTIVE" (S. HEARINGS, SUBCOMMITTEE OF
COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, 85TH CONG., 1ST SESS., P.
11) AND IN PART BY THE DEPARTMENT OF COMMERCE.  ID., 200-203.  THEY
WERE ALSO OPPOSED BY THE CONTRACT CARRIER CONFERENCE THAT STATED, INTER
ALIA, "SINCE THE STATE OF MIND OF THE COMMON CARRIERS CONCERNING THEIR
WILLINGNESS IS A MATTER PECULIARLY WITHIN THEIR OWN KNOWLEDGE, IT WOULD
BE ABSOLUTELY IMPOSSIBLE FOR A CONTRACT CARRIER TO EVER PROVE TO THE
CONTRARY.  FURTHERMORE, IT WOULD BE VERY DIFFICULT FOR A CONTRACT
CARRIER OR ITS SUPPORTING SHIPPER, HAVING NO INTIMATE KNOWLEDGE OF THE
BUSINESS OF OPPOSING COMMON CARRIERS, TO PROVE THAT SUCH CARRIERS WERE
UNABLE TO PERFORM A GIVEN SERVICE."  ID., P. 303. 

FN3  THE CHANGE IN THE COMMISSION'S ATTITUDE IS SUMMARIZED AS FOLLOWS
IN S. REP. NO. 703, 85TH CONG., 1ST SESS., P. 4:  "  ..  THHE
COMMISSION, UPON REFLECTION, ON THE OBJECTIONS OF CONTRACT AND PRIVATE
CARRIERS TO THE BILL, CONCLUDED THAT IN SOME RESPECTS S. 1384 WOULD
PROVIDE TOO RIGID A PATTERN.  IT DECIDED THAT THE PROPOSED REQUIREMENT
IN SECTION 209(B) THAT ADDITIONAL PERMITS COULD BE ISSUED ONLY UPON A
SHOWING THAT EXISTING COMMON CARRIERS ARE UNWILLING OR UNABLE TO RENDER
THE REQUIRED TYPES OF SERVICE SHOULD BE WITHDRAWN." 

FN4  THAT THIS CHANGE WAS MADE IS CLEAR.  SEE S. REP. NO. 703, 85TH
CONG., 1ST SESS., PP. 2-3, 6, 7; H. REP. NO. 970, 85TH CONG., 1ST
SESS., P. 3. 

FN5  SEC. 203(A)(15) AS AMENDED READS AS FOLLOWS: 

"THE TERM 'CONTRACT CARRIER BY MOTOR VEHICLE' MEANS ANY PERSON WHICH
ENGAGES IN TRANSPORTATION BY MOTOR VEHICLE OF PASSENGERS OR PROPERTY IN
INTERSTATE OR FOREIGN COMMERCE, FOR COMPENSATION (OTHER THAN
TRANSPORTATION REFERRED TO IN PARAGRAPH (14) AND THE EXCEPTION
THEREIN), UNDER CONTINUING CONTRACTS WITH ONE PERSON OR A LIMITED
NUMBER OF PERSONS EITHER (A) FOR THE FURNISHING OF TRANSPORTATION
SERVICES THROUGH THE ASSIGNMENT OF MOTOR VEHICLES FOR A CONTINUING
PERIOD OF TIME TO THE EXCLUSIVE USE OF EACH PERSON SERVED OR (B) FOR
THE FURNISHING OF TRANSPORTATION SERVICES DESIGNED TO MEET THE DISTINCT
NEED OF EACH INDIVIDUAL CUSTOMER." 

FN6  CONGRESS IN 1940 DESCRIBED THE NATIONAL TRANSPORTATION POLICY: 

"IT IS HEREBY DECLARED TO BE THE NATIONAL TRANSPORTATION POLICY OF
THE CONGRESS TO PROVIDE FOR FAIR AND IMPARTIAL REGULATION OF ALL MODES
OF TRANSPORTATION SUBJECT TO THE PROVISIONS OF THIS ACT, SO
ADMINISTERED AS TO RECOGNIZE AND PRESERVE THE INHERENT ADVANTAGES OF
EACH; TO PROMOTE SAFE, ADEQUATE, ECONOMICAL, AND EFFICIENT SERVICE AND
FOSTER SOUND ECONOMIC CONDITIONS IN TRANSPORTATION AND AMONG THE
SEVERAL CARRIERS; TO ENCOURAGE THE ESTABLISHMENT AND MAINTENANCE OF
REASONABLE CHARGES FOR TRANSPORTATION SERVICES, WITHOUT UNJUST
DISCRIMINATIONS, UNDUE PREFERENCES OR ADVANTAGES, OR UNFAIR OR
DESTRUCTIVE COMPETITIVE PRACTICES; TO COOPERATE WITH THE SEVERAL STATES
AND THE DULY AUTHORIZED OFFICIALS THEREOF; AND TO ENCOURAGE FAIR WAGES
AND EQUITABLE WORKING CONDITIONS; - ALL TO THE END OF DEVELOPING,
COORDINATING, AND PRESERVING A NATIONAL TRANSPORTATION SYSTEM BY WATER,
HIGHWAY, AND RAIL, AS WELL AS OTHER MEANS, ADEQUATE TO MEET THE NEEDS
OF THE COMMERCE OF THE UNITED STATES, OF THE POSTAL SERVICE, AND OF THE
NATIONAL DEFENSE.  ALL OF THE PROVISIONS OF THIS ACT SHALL BE
ADMINISTERED AND ENFORCED WITH A VIEW TO CARRYING OUT THE ABOVE
DECLARATION OF POLICY."  54 STAT. 899. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE HARLAN AND MR. JUSTICE
STEWART JOIN, DISSENTING.* 

*(THIS OPINION APPLIES TO NO. 17, INTERSTATE COMMERCE COMMISSION V. J
T TRANSPORT CO., INC., AND NO. 18, U.S.A.C. TRANSPORT, INC., V. J-T
TRANSPORT CO., INC.) 

THESE ARE RELATED APPEALS FROM A DECREE OF A DISTRICT COURT SETTING
ASIDE AN ORDER OF THE INTERSTATE COMMERCE COMMISSION DENYING AN
APPLICATION FOR A CONTRACT-CARRIER PERMIT UNDER THE 1957 AMENDMENTS TO
SECS. 203(A)(15) AND 209(B) OF THE INTERSTATE COMMERCE ACT, 49 U.S.C.
SECS. 303(A)(15), 309(B).  AT ISSUE ARE THE DISTRICT COURT'S
DETERMINATIONS THAT THE COMMISSION EXCEEDED ITS AUTHORITY UNDER THOSE
PROVISIONS IN FOUR PARTICULARS.  FIRST, BY CONSIDERING THE ADEQUACY OF
EXISTING CARRIAGE FOR THE TRANSPORTATION SERVICE PROPOSED, THE
COMMISSION IS SAID TO HAVE INJECTED AN INADMISSIBLE "SIXTH CRITERION"
INTO THE FIVE FACTORS DESIGNATED BY CONGRESS IN THE REVISED SEC.
209(B).  SECOND, THE COMMISSION WAS HELD TO HAVE IMPOSED ON THE
APPLICANT A BURDEN OF PROVING THE INADEQUACY OF EXISTING SERVICES THAT
CONGRESS HAD SPECIFICALLY REFUSED TO APPROVE.  THIRD, THE COURT
CONCLUDED THAT THE COMMISSION'S RELIANCE ON THE CAPACITY OF EXISTING
CARRIERS TO MEET THE "REASONABLE TRANSPORTATION NEEDS" OF THE SHIPPER
DID NOT MEET THE STANDARD OF SPECIFIC NEEDS IN AMENDED SEC.
203(A)(15).  FOURTH, THE COMMISSION IS CHARGED WITH INVOKING AN
IMPERMISSIBLE PRESUMPTION THAT AN EXISTING CARRIER WILLING AND ABLE TO
PERFORM A TRANSPORTATION SERVICE IT HAS NOT PREVIOUSLY UNDERTAKEN WILL
BE ADVERSELY AFFECTED BY THE LOSS OF POTENTIAL TRAFFIC. 

DISPOSITION OF THESE CONCLUSIONS TURNS FIRST ON A CONSTRUCTION OF THE
1957 AMENDMENTS IN THE CONTEXT OF THE MOTOR CARRIER ACT OF 1935, APART
FROM WHICH THEY ARE UNINTELLIGIBLE; NEXT UPON DUE CONSIDERATION OF WHAT
THE COMMISSION HAS HERE UNDERTAKEN TO DO, AS DISCLOSED IN A FAIR
READING OF ITS FINAL REPORT DENYING THE APPLICATION; AND, MOST
IMPORTANTLY, ON APPROPRIATE REGARD FOR THE LIMITS ON JUDICIAL REVIEW OF
SUCH COMMISSION ACTION AS IS NOW BEFORE US.

                                        I. 

THE MOTOR CARRIER ACT, THIS COURT HAS NOTED, WAS PASSED AT A TIME
WHEN "THE INDUSTRY WAS UNSTABLE ECONOMICALLY, DOMINATED BY EASE OF
COMPETITIVE ENTRY AND A FLUID RATE PICTURE.  AND AS A RESULT, IT BECAME
OVERCROWDED WITH SMALL ECONOMIC UNITS WHICH PROVED UNABLE TO SATISFY
EVEN THE MOST MINIMAL STANDARDS OF SAFETY OR FINANCIAL RESPONSIBILITY. 
SO CONGRESS FELT COMPELLED TO REQUIRE AUTHORIZATION FOR ALL INTERSTATE
OPERATIONS TO PRESERVE THE MOTOR TRANSPORTATION SYSTEM FROM OVER
COMPETITION  ..  .""  AMERICAN TRUCKING ASSNS.  V. UNITED STATES, 344
U.S. 298, 312-313. 

THESE WERE INDEED THE CONDITIONS THAT PROMPTED LEGISLATIVE
RECOMMENDATIONS BY THE GREATLY ESTEEMED FEDERAL COORDINATOR OF
TRANSPORTATION, JOSEPH B. EASTMAN.  SEE S. DOC. NO. 152, 73D CONG., 2D
SESS. (1934).  ONE OF THE PRIME PURPOSES OF THE MEASURE HE PROPOSED WAS
TO CONTROL THE NUMBER AND SCOPE OF CONTRACT-CARRIER OPERATIONS IN ORDER
TO PRESERVE AND PROTECT COMMON-CARRIER SERVICE: 

"THESE PRIVATE AND CONTRACT CARRIERS MIGHT BE IGNORED IF THEY DID NOT
HAVE A TENDENCY TO DEMORALIZE OR IMPAIR THE SYSTEM OF COMMON CARRIAGE
WHICH UNDERTAKES TO SERVE ALL ALIKE AND IS OF PRIME IMPORTANCE TO THE
COUNTRY  ..  .  

"THE CONTRACT CARRIER MAY DIFFER FROM THE COMMON CARRIER ONLY IN THE
FACT THAT HE UNDERTAKES TO SKIM THE CREAM OF THE TRAFFIC AND LEAVE THE
PORTION WHICH LACKS THE BUTTERFATS TO HIS COMMON-CARRIER COMPETITOR. 
OBVIOUSLY SUCH OPERATIONS CAN HAVE VERY UNFORTUNATE AND UNDESIRABLE
RESULTS. 

"  ..  SOO FAR AS REGULATION IS DIRECTED AGAINST PRIVATE AND CONTRACT
OPERATORS, IT SHOULD BE FOR THE CHIEF PURPOSE OF PROTECTING THE COMMON
CARRIERS AGAINST UNFAIR AND DEMORALIZING COMPETITION."  REPORT OF THE
FEDERAL COORDINATOR OF TRANSPORTATION, 1934, H.R. DOC. NO. 89, 74TH
CONG., 1ST SESS. 17 (1935). 

COORDINATOR EASTMAN'S PROPOSAL WAS ENACTED BY CONGRESS INTO THE MOTOR
CARRIER ACT OF 1935 (NOW INTERSTATE COMMERCE ACT, PART II).  SEE H.R.
REP. NO. 1645, 74TH CONG., 1ST SESS. 5 (1935); S. REP. NO. 482, 74TH
CONG., 1ST SESS. 2 (1935).  AS ENACTED, IT LAID FAR MORE STRINGENT
CONTROLS UPON COMMON CARRIERS THAN ON CONTRACT CARRIERS.  THE FORMER
WERE REQUIRED TO HOLD THEMSELVES OUT TO THE GENERAL PUBLIC, SECS.
203(A)(14), 207, UNDER JUST AND NONDISCRIMINATORY TARIFFS, SECS.
216(D), 217, WHILE THE LATTER WERE UNCONTROLLED IN THEIR CHARGES ABOVE
A REASONABLE MINIMUM, SEC. 218.  MOTOR CARRIERS OWNING MORE THAN 20
VEHICLES, WHICH PRESUMABLY INCLUDED MOST COMMON CARRIERS AND FEW IF ANY
CONTRACT CARRIERS, HAD TO OBTAIN COMMISSION APPROVAL BEFORE GOING OUT
OF BUSINESS, INTERSTATE COMMERCE ACT, PART I, SEC. 5, AND SEE 49 CFR
SECS. 179.2-179.5 (1961).  NO LIMITATION WAS LAID ON THE TYPES OF
TRAFFIC FOR WHICH CONTRACT CARRIERS COULD COMPETE, AND INDEED THERE HAS
NEVER DEVELOPED ANY INHERENT DIFFERENCE IN THE OPERATIONS PERFORMABLE
BY COMMON OR CONTRACT CARRIERS.  (FN1) INSTEAD, CONGRESS CHOSE TO
PROTECT COMMON CARRIERS FROM DESTRUCTIVE COMPETITION BY ENTRUSTING THE
INTERSTATE COMMERCE COMMISSION WITH THE ADMINISTRATION OF CERTAIN
GENERALIZED QUALIFICATIONS NEEDED TO OBTAIN A CONTRACT-CARRIER PERMIT. 

AS ORIGINALLY ENACTED, 49 STAT. 543, 544 (1935), SEC. 203(A)(15)
PROVIDED: 

"THE TERM 'CONTRACT CARRIER BY MOTOR VEHICLE' MEANS ANY PERSON,
(OTHER THAN A COMMON CARRIER)  ..  ,  WHO OR WHICH, UNDER SPECIAL AND
INDIVIDUAL CONTRACTS OR AGREEMENTS, AND WHETHER DIRECTLY OR BY A LEASE
OR ANY OTHER ARRANGEMENT, TRANSPORTS PASSENGERS OR PROPERTY IN
INTERSTATE OR FOREIGN COMMERCE ..  ."" 

THE COMMISSION TO ISSUE PERMITS TO CONTRACT CARRIERS WHEN IT APPEARED,
INTER ALIA: 

"  ..  THHAT THE PROPOSED OPERATION, TO THE EXTENT AUTHORIZED BY THE
PERMIT, WILL BE CONSISTENT WITH THE PUBLIC INTEREST AND THE POLICY
DECLARED IN SECTION 202(A) OF THIS PART (THE 1935 FORERUNNER OF THE
NATIONAL TRANSPORTATION POLICY ADOPTED IN 1940)  ..  .""    THE DESIGN
OF THESE SECTIONS WAS EXPLICATED BY THE COMMISSION SHORTLY AFTER THEIR
PASSAGE, IN CONTRACTS OF CONTRACT CARRIERS, 1 M.C.C. 628 (1937).  THIS
WAS A RULE-MAKING PROCEEDING UNDER SEC. 209(B) TO ATTACH LIMITATIONS TO
CONTRACT-CARRIER PERMITS IN ORDER TO FORESTALL TRANSGRESSION UPON
COMMON CARRIAGE.  THE REASONS GIVEN FOR PROMULGATION OF THE RULE AFFORD
PERSUASIVE EVIDENCE OF THE CONTEMPORANEOUS UNDERSTANDING OF THE ACT: 

"THE TERM 'CONTRACT CARRIER' WAS COINED IN STATE STATUTES FOR THE
REGULATION OF MOTOR CARRIERS.  IN A NUMBER OF THESE STATUTES,
PROTECTION OF THE COMMON CARRIER WAS EXPRESSLY RECITED AS THE PURPOSE
OF REGULATING THE CONTRACT CARRIER.  IN OTHERS, THIS PURPOSE APPEARED
BY NECESSARY IMPLICATION  ..     "THIS PRINCIPLE IS INHERENT IN THE
MOTOR CARRIER ACT, 1935.  THE UNDERLYING PURPOSE IS PLAINLY TO PROMOTE
AND PROTECT ADEQUATE AND EFFICIENT COMMON-CARRIER SERVICE BY MOTOR
VEHICLE IN THE PUBLIC INTEREST, AND THE REGULATION OF CONTRACT CARRIERS
IS DESIGNED AND CONFINED WITH THAT END IN VIEW ..  .  

"  ..  .   THE PATENT OBJECT OF CONGRESS IS TO PROTECT THE COMMON
CARRIERS AGAINST CUT-THROAT COMPETITION."  1 M.C.C., AT 629.  SEE ALSO
FILING OF CONTRACTS BY CONTRACT CARRIERS, 20 M.C.C. 8, 11 (1939). 

AFTER RECITING THE RELATIVE FREEDOM FROM REGULATION ENJOYED BY
CONTRACT CARRIERS, THE COMMISSION CONCLUDED, IN TERMS PECULIARLY
APPROPRIATE TO THE PRESENT CONTROVERSY: 

"THIS INHERENT AND INEVITABLE DISADVANTAGE OF THE COMMON CARRIERS IS
ACCENTUATED AND BECOMES A SOURCE OF POSITIVE PERIL TO THEM WHEN
COMPETITORS, CLAIMING TO BE CONTRACT CARRIERS, ARE PROMISCUOUS IN THEIR
DEALINGS WITH SHIPPERS WHO  ..  MAAY PLAY THE CONTRACT CARRIER AGAINST
THE COMMON CARRIER ..  WIITH THE RESULT THAT THE UNFAIR AND DESTRUCTIVE
COMPETITION WHICH CONGRESS SOUGHT IN THE ACT TO ABATE IS INSTEAD
INTENSIFIED  ..  .""  1 M.C.C., AT 631. 

                          II. 

IN ACTING UPON APPLICATIONS FOR CONTRACT-CARRIER PERMITS, THE
COMMISSION HAS FROM THE BEGINNING REGARDED THE ADEQUACY OF EXISTING
COMMON-CARRIER FACILITIES TO BE OF CRUCIAL IMPORTANCE IN DETERMINING
CONSISTENCY WITH THE PUBLIC INTEREST AS DEFINED BY THE HISTORY AND
PURPOSES OF THE ACT.   IN C.&D. OIL CO. CONTRACT CARRIER APPLICATION, 1
M.C.C. 329, 332 (1936), IT EARLY STATED A GUIDING PRINCIPLE THAT HAS
BEEN REAFFIRMED MANY TIMES SINCE: 

"WE THINK THAT, IN ORDER TO FOSTER SOUND ECONOMIC CONDITIONS IN THE
MOTOR-CARRIER INDUSTRY, EXISTING MOTOR CARRIERS SHOULD NORMALLY BE
ACCORDED THE RIGHT TO TRANSPORT ALL TRAFFIC WHICH THEY CAN HANDLE
ADEQUATELY, EFFICIENTLY, AND ECONOMICALLY IN THE TERRITORIES SERVED BY
THEM, AS AGAINST ANY PERSON NOW SEEKING TO ENTER THE FIELD OF MOTOR
CARRIER TRANSPORTATION IN CIRCUMSTANCES SUCH AS ARE HERE DISCLOSED." 

A REVIEW OF COMMISSION ACTION FROM 1935 TO 1957 DISCLOSES THAT THIS
PRINCIPLE HAS BEEN UNWAVERINGLY APPLIED IN CIRCUMSTANCES IDENTICAL OR
NEARLY SO TO THOSE IN THE PRESENT CASE, AND THAT ITS APPLICATION HAS
PRODUCED CONSISTENT RULINGS EXACTLY AKIN TO THOSE NOW CHALLENGED HERE. 

C.&D. OIL CO. CONTRACT CARRIER APPLICATION, SUPRA.  THE DESIRE OF A
SHIPPER TO ENGAGE THE SERVICES OF A PARTICULAR CARRIER, ALTHOUGH BASED
ON SOUND AND LEGITIMATE BUSINESS REASONS, DOES NOT CONTROL DECISION AS
TO TRANSPORTATION NEEDS, AND IS NOT, STANDING ALONE, ENOUGH TO REQUIRE
A FINDING THAT THE PROPOSED SERVICE WOULD BE CONSISTENT WITH THE PUBLIC
INTEREST OR NATIONAL TRANSPORTATION POLICY. 

R.L. SMITH CONTRACT CARRIER APPLICATION, 1 M.C.C. 717 (1937). 
APPLICANT PROPOSED TO CARRY ONLY PEAK-LOAD SUPPLIES NOT PRESENTLY
CARRIED BY PROTESTANT COMMON CARRIERS, BUT THE PERMIT WAS DENIED
BECAUSE THE EXISTING CARRIERS "MAY AUGMENT THEIR FACILITIES AT WILL
THROUGH THE PURCHASE OR LEASE OF ADDITIONAL EQUIPMENT AND MAY THEREBY
FURNISH SUCH EMERGENCY SERVICE."  (AT 719.)  A LOSS OF POTENTIAL
TRAFFIC WAS THUS MADE DETERMINATIVE. 

EASTERN SHORE OIL CO. CONTRACT CARRIER APPLICATION, 7 M.C.C. 173, 175
176 (1938).  THERE WERE SEVERAL COMMON CARRIERS WITH AUTHORITY AND
FACILITIES TO HANDLE THE PROPOSED TRAFFIC, ALTHOUGH NONE HAD IN FACT
EVER CARRIED ANY OF IT.  THE COMMISSION CONCLUDED THAT NO NEED FOR THE
SERVICE HAD BEEN SHOWN, CONSISTENT WITH THE PUBLIC INTEREST AND THE
NATIONAL TRANSPORTATION POLICY, AND REAFFIRMED ITS RULING IN C.&D. THAT
THE DESIRE OF A SHIPPER TO ENGAGE A PARTICULAR CARRIER WAS INSUFFICIENT
GROUND FOR THE GRANTING OF A PERMIT. 

WILLIAM HEIM CARTAGE CO., EXTENSION OF OPERATIONS - INDIANAPOLIS, 20
M.C.C. 329 (1939).  APPLICANT PROPOSED TO DEDICATE THREE TRUCKS TO
SHIPPER'S EXCLUSIVE USE.  THERE WAS TESTIMONY THAT EXISTING COMMON
CARRIERS HAD THE CAPACITY TO UNDERTAKE THE TRAFFIC.  THE SHIPPER SOUGHT
TO OVERCOME THIS BY CLAIMING (1) THAT BECAUSE OF THE VARIETY OF GOODS
SHIPPED, COMMON-CARRIER RATES WOULD BE PROHIBITIVE, AND (2) THAT IF THE
APPLICATION WAS DENIED, THE SHIPPER WOULD NOT USE COMMON-CARRIER
SERVICE BUT WOULD PROBABLY INITIATE PRIVATE CARRIAGE.  NEVERTHELESS THE
COMMISSION DENIED THE PERMIT, HOLDING THAT THE BURDEN WAS ON THE
APPLICANT TO SHOW THAT ITS PROPOSED SERVICE "WOULD TEND TO CORRECT OR
SUBSTANTIALLY IMPROVE" A DEFICIENCY IN EXISTING SERVICE.  THE "MERE
DESIRE" OF A SHIPPER TO ENGAGE A PARTICULAR CARRIER WAS AGAIN REJECTED
AS A DETERMINING FACTOR. 

HORACE L. DAUM EXTENSION OF OPERATIONS - ILLINOIS, 22 M.C.C. 366
(1940).  SHIPPER HAD BEEN USING ITS OWN TRUCKS, AND SUPPORTED THIS
APPLICATION BY STATING THAT, IF REFUSED, IT WOULD CONTINUE TO USE ITS
OWN FACILITIES.  THE PROTESTANT COMMON CARRIER BY MOTOR VEHICLE HAD
ESTABLISHED THAT ITS EQUIPMENT WAS NOT BEING OPERATED TO FULL CAPACITY,
AND THAT IT WAS ABLE AND WILLING TO PURCHASE ADDITIONAL EQUIPMENT IF
NEEDED.  REAFFIRMING C.&D., THE COMMISSION DENIED THE PERMIT. 

N.S. CRAIG CONTRACT CARRIER APPLICATION, 31 M.C.C. 705 (1941).  THE
COMMISSION HAD BEFORE IT THE AMENDMENTS INTRODUCED BY THE
TRANSPORTATION ACT OF 1940, AND HAD TO DETERMINE WHETHER THE LINES IT
HAD THERETOFORE DRAWN WERE ALTERED BY THE DELETION OF THE WORD
"SPECIAL" FROM SEC. 203(A)(15) (FN2) OR BY THE ADOPTION OF THE NATIONAL
TRANSPORTATION POLICY IN ITS PRESENT FORM.  (FN3)  IT CONCLUDED FROM AN
EXAMINATION OF THE LEGISLATIVE HISTORY THAT, FAR FROM THERE BEING A
CHANGE, CONGRESS HAD APPROVED THE DISTINCTIONS EMPLOYED BY THE
COMMISSION, (FN4) WHICH IT RESTATED IN TERMS THAT ARE NOW UNMISTAKABLY
ENTRENCHED IN THE 1957 AMENDMENT TO SEC. 203(A)(15):  "THE STATUTORY
DEFINITIONS AS NOW AMENDED ARE ESSENTIALLY DECLARATORY OF THE COMMON
LAW.  IN OTHER WORDS, THE FACT OR NOT OF A PUBLIC HOLDING OUT REMAINS
THE FINAL OR ULTIMATE TEST OF COMMON CARRIAGE."  (AT 710.)  NUMEROUS
SECONDARY TESTS HAD BEEN USED TO DISTINGUISH CONTRACT CARRIAGE, BUT
EACH SHARED A COMMON FEATURE:  THE CRITERION OF "SPECIALIZATION, EITHER
IN THE NATURE OF THE PHYSICAL OPERATION, OR IN RESPECT OF THE SHIPPERS
SERVED, WITHOUT SOME SHOWING OF WHICH CONTRACT CARRIAGE CANNOT BE FOUND
TO EXIST."  (AT 711.)  A CARRIER MIGHT ENGAGE IN SPECIALIZED OPERATIONS
AND REMAIN A COMMON CARRIER IF IT HELD ITSELF OUT TO PERFORM SIMILAR
SERVICE FOR ANY SHIPPER THAT MIGHT WANT IT, BUT UNLESS IT DID SO
SPECIALIZE IT COULD NOT BE A CONTRACT CARRIER.  THE SPECIALIZATION THE
COMMISSION HAD IN MIND: 

"  ..  MIIGHT TAKE THE FORM OF SPECIALIZED PHYSICAL OPERATIONS
DESIGNED TO MEET THE PECULIAR NEEDS OF PARTICULAR SHIPPERS OR MIGHT
CONSIST IN THE RIGID DEVOTION OF AN OTHERWISE ORDINARY PHYSICAL SERVICE
TO A SINGLE SHIPPER OR VERY LIMITED NUMBER OF SHIPPERS."  (AT 708.) 

THIS, IT WILL BE SEEN, IS AN ALMOST LITERAL PARAPHRASE OF WHAT LATER
EMERGED AS THE 1957 AMENDMENT TO SEC. 203(A)(15). 

HAVING ANTICIPATED EXPLICIT CONGRESSIONAL PURPOSE IN THIS MANNER, THE
COMMISSION CONTINUED TO ADHERE TO ITS EARLIER RULINGS AS CONSISTENT
WITH THAT PURPOSE. 

SAMUEL I. MAJOR CONTRACT CARRIER APPLICATION, 43 M.C.C. 795, 799-800
(1944).  NO SHOWING OF CONSISTENCY WITH PUBLIC INTEREST WHEN THERE ARE
COMMON CARRIERS AUTHORIZED, EQUIPPED, AND WILLING TO HANDLE THE
TRAFFIC. 

WILLARD J. HIBBARD EXTENSION OF OPERATIONS - LIME, 47 M.C.C. 311
(1947).  SHIPPER EMPHATIC THAT ONLY A CONTRACT CARRIER WILL DO, AND
THAT IT WILL NOT USE THE SERVICES OF A COMMON CARRIER.  THE COMMISSION
FOUND FROM THE EVIDENCE THAT EXISTING COMMON CARRIERS COULD
SATISFACTORILY PERFORM THE JOB:  "THE FACT THAT EXISTING CARRIERS HAVE
NOT PARTICIPATED IN THE TRAFFIC, IN THE ABSENCE OF ANY SHOWING THAT
THEY ARE UNABLE OR UNWILLING TO PROVIDE A SERVICE AS REQUIRED, DOES NOT
WARRANT A GRANT OF AUTHORITY TO A NEW CARRIER."  (AT 314.) 

B&F BUS SERVICE, INC., CONTRACT CARRIER APPLICATION, 53 M.C.C. 501
(1951).  IN A SITUATION REMARKABLY LIKE THE PRESENT ONE, THE COMMISSION
DEVISED AND APPLIED CRITERIA VIRTUALLY IDENTICAL TO THOSE ADOPTED BY
CONGRESS IN ITS 1957 AMENDMENT TO SEC. 209(B), AND DENIED THE
APPLICATION.  THE CONTRACT CARRIER THERE PROPOSED AN EXPRESS BUS
SERVICE FOR THE EMPLOYEES OF A PLANT IN CLIFTON, NEW JERSEY, TO CARRY
THEM BACK AND FORTH FROM NEW YORK.  THE PROTESTANT COMMON CARRIERS
ESTABLISHED THAT ONE OR ANOTHER OF THEM COULD CARRY THE PASSENGERS
WITHIN TWO MILES OF THE PLANT WHERE THEY COULD OBTAIN A TRANSFER ON A
LOCAL CROSSTOWN BUS TO AND FROM THE PLANT.  TWO PROTESTANTS OFFERED TO
RUN AN EXPRESS SERVICE IF 30 PASSENGERS COULD BE ASSURED.  EACH
PROTESTANT WAS DESIROUS OF OBTAINING THE TRAFFIC AND THOUGHT IT
NECESSARY FOR HIS BUSINESS TO DO SO. 

IN RESOLVING THE ISSUE, THE COMMISSION FORESAW THE ESSENTIALS OF THE
THIRD AND FOURTH CRITERIA NOW EXPLICITLY COMMENDED TO THEIR
CONSIDERATION BY CONGRESS IN SEC. 209(B): 

"BEFORE THE PROPOSED OPERATION MAY BE AUTHORIZED IT MUST BE FOUND
CONSISTENT WITH THE PUBLIC INTEREST AND THE NATIONAL TRANSPORTATION
POLICY.  AMONG THE FACTORS TO BE CONSIDERED IN MAKING SUCH
DETERMINATION ARE (1) THE MANNER AND EXTENT SUCH SERVICE WILL AFFECT
THE OPERATIONS OF COMPETING COMMON CARRIERS AND THEIR PATRONS, (2) THE
NATURE AND EXTENT OF THE INCONVENIENCE PROSPECTIVE PATRONS OF THE
PROPOSED CONTRACT-CARRIER SERVICE WILL SUFFER IF IT IS NOT AUTHORIZED
AND, CONVERSELY, THE BENEFITS SUCH SERVICE WILL AFFORD THEM, AND (3)
THE ASCERTAINMENT OF THE PUBLIC INTEREST FROM A WEIGHING OF THESE
RESPECTIVE FACTS."  (AT 504-505.) 

APPLYING THIS FORMULA TO THAT CASE, THE COMMISSION DETERMINED THAT
THE POTENTIAL DAMAGE TO THE COMMON-CARRIER PROTESTANTS FROM LOSS OF A
NEW SERVICE AND OTHERS LIKE IT IN THE FUTURE, OUTWEIGHED THE ADVANTAGE
IN CONVENIENCE OFFERED BY THE CONTRACT-CARRIER APPLICANT.  THE TERMS IN
WHICH IT DREW THE BALANCE ARE OF ESPECIAL PERTINENCY TO OUR
CONTROVERSY: 

"WHERE A PROPOSED CONTRACT-CARRIER SERVICE WOULD SUBSTANTIALLY IMPAIR
THE COMMON-CARRIER SERVICE UPON WHICH THE PUBLIC GENERALLY MUST RELY,
EITHER IMMEDIATELY OR POTENTIALLY THROUGH A WEAKENING OF THE FINANCIAL
ABILITY OF THE COMMON CARRIERS TO MEET THE NEEDS OF THE PUBLIC,
ISSUANCE OF A PERMIT WOULD BE FOUND INCONSISTENT WITH THE PUBLIC
INTEREST."  (AT 505.) 

THIS MODE OF ADJUSTING CONFLICTING INTERESTS WHOSE ACCOMMODATION WAS
LATER EXPLICITLY COMMITTED TO THE COMMISSION BY CONGRESS FURNISHES
STRONG EVIDENCE OF THE WAY IN WHICH THOSE FACTORS ARE APPROPRIATELY
EVALUATED.  SUBSEQUENT RULINGS AFFORD IMPRESSIVE PROOF OF THIS UNIFORM
ADMINISTRATIVE PRACTICE. 

KILMER TRANSP.  CO. EXTENSION - UNIONTOWN, 53 M.C.C. 561 (1951). 
THIS IS ANOTHER CASE VERY CLOSE TO THE PRESENT ONE ON ITS FACTS. 
SHIPPERS OF FRAGILE EARTHENWARE PRODUCTS, REQUIRING SPECIAL HANDLING
AND EQUIPMENT, DESIRED TO USE A CONTRACT CARRIER WHICH HAD DESIGNED
SPECIAL TRAILERS, TRAINED EXPERIENCED DRIVERS, AND PROPOSED TO DEDICATE
ITS EQUIPMENT TO THE EXCLUSIVE USE OF THE SHIPPERS.  THERE WERE A
NUMBER OF COMMON CARRIERS AUTHORIZED AND WITH THE CAPACITY TO CARRY
THIS TRAFFIC.  THE SHIPPERS HAD EXPERIENCED SOME DELAYS WITH COMMON
CARRIAGE AND WISHED THE FLEXIBILITY PROPOSED BY THE APPLICANT OF
PICKING UP PORTIONS OF A LOAD AT DIFFERENT FACTORIES.  THE APPLICATION
WAS DENIED, THE COMMISSION STATING THAT "IN THE ABSENCE OF A SHOWING
THAT THE PROPOSED SERVICE WOULD PROVIDE SHIPPER WITH SOMETHING
SUBSTANTIAL IN THE WAY OF SERVICE WHICH EXISTING CARRIERS ARE UNABLE OR
UNWILLING TO PROVIDE, THE APPLICATION MUST BE DENIED."  (AT 571.) 

BEATTY MOTOR EXPRESS, INC., EXTENSION - SOAP TO PITTSBURGH, PA., 66
M.C.C. 160 (1955).  THE APPLICATION WAS SUPPORTED BY A SHIPPER WHO HAD
HAD A SATISFACTORY EXPERIENCE WITH THE APPLICANT AND WISHED TO CONTINUE
ITS SERVICE.  IN REFUSING THE REQUESTED PERMIT, THE COMMISSION
RECAPITULATED THE STANDARDS IT WAS APPLYING, CLARIFYING ESPECIALLY THE
MATTER OF BURDEN OF PROOF: 

"IT IS CLEAR FROM THE RECORD THAT EXISTING CARRIERS HAVE THE
AUTHORITY, EQUIPMENT, AND FACILITIES NECESSARY TO TRANSPORT ALL OF THE
CONSIDERED COMMODITIES FROM AND TO THE POINTS INVOLVED  ..  .  NOR IS
THERE ANY SHOWING THAT THE PROPOSED SERVICE IS SO UNIQUE OR SO
SPECIALIZED THAT THE EXISTING CARRIERS ARE UNABLE TO PROVIDE THE
SUPPORTING SHIPPER WITH A REASONABLY SATISFACTORY SERVICE.  THERE IS NO
DOUBT THAT A GRANT OF AUTHORITY TO TRANSPORT THE INVOLVED SOAP PRODUCTS
AND PREPARATIONS WOULD BE CONVENIENT TO THE SUPPORTING SHIPPER, BUT THE
RECORD IS LACKING IN PROOF THAT THE SHIPPER WILL BE PREJUDICED OR
HANDICAPPED UNLESS THE AUTHORITY SOUGHT IS GRANTED.  PAST USE OF A
MOTOR-CARRIER SERVICE, COUPLED WITH THE MERE PREFERENCE FOR THE SERVICE
OF A PARTICULAR CARRIER OVER THAT OF EXISTING CARRIERS, IS NOT
SUFFICIENT TO WARRANT A GRANT OF AUTHORITY.  WE HAVE CONSISTENTLY HELD
THAT EXISTING CARRIERS SHOULD BE ACCORDED THE RIGHT TO TRANSPORT ALL
TRAFFIC WHICH, UNDER NORMAL CONDITIONS, THEY CAN HANDLE ADEQUATELY,
EFFICIENTLY, AND ECONOMICALLY IN THE TERRITORY SERVED BY THEM, WITHOUT
THE COMPETITION OF A NEW OPERATION."  (AT 162.) 

OVERLAND FREIGHT LINES, INC., EXTENSION - KENTUCKY, 69 M.C.C. 143,
148 (1956).  AN APPLICATION WAS DENIED DESPITE EVIDENCE THAT THE
PLACEMENT OF COMMON CARRIERS AT THE SHIPPER'S PLATFORM HAD INVOLVED
DELAYS REQUIRING PAYMENT OF OVERTIME THAT RAISED COSTS ON LOW-SALES
VALUE UNITS OF MERCHANDISE.  "WE CANNOT REASONABLY CONCLUDE THAT THEIR
PLACEMENTS, AS A WHOLE, HAVE BEEN SO UNREASONABLY DELAYED OR SO
INCONVENIENTLY MADE AS TO MERIT A FINDING THAT THE SERVICES OF THESE
CARRIERS HAVE BEEN INADEQUATE."  PAST DILIGENCE AND FUTURE WILLINGNESS
TO SPOT EQUIPMENT AT THE PLANT WERE SHOWN AND RELIED ON TO DENY THE
APPLICATION.    REFINERS TRANSPORT, INC., EXTENSION - MISSOURI, 71
M.C.C. 272 (1957).  ISSUANCE OF A PERMIT WAS REFUSED DESPITE (1)
EVIDENCE OF THREE OCCASIONS OF UNSATISFACTORY SHIPMENT BY THE
PROTESTANTS, AND (2) A STATEMENT BY THE CONSIGNEE THAT IT WOULD DO
FURTHER BUSINESS WITH THE SHIPPER ONLY IF THE APPLICANT'S
TRANSPORTATION SERVICE WAS OBTAINED. 

      III. 

THE LAW AND PRACTICE GOVERNING CONTRACT-CARRIER APPLICATIONS, AS IT
EMERGED FROM THE LANGUAGE, HISTORY, AND PURPOSES OF THE MOTOR CARRIER
ACT AND FROM CONSISTENT ADMINISTRATIVE CONSTRUCTION BETWEEN 1935 AND
1957, MAY BE SUMMARIZED AS FOLLOWS.  STRICTLY REGULATED COMMON CARRIAGE
WAS CONSIDERED THE BACKBONE OF THE MOTOR TRANSPORT INDUSTRY.  CONTRACT
CARRIERS MIGHT BE ABLE TO PERFORM CERTAIN SPECIALIZED TRANSPORTATION
TASKS MORE EASILY THAN COMMON CARRIERS, AND WHEN THIS WAS SO THEY
SHOULD BE ALLOWED TO ENTER THE FIELD.  IN ORDER TO PRESERVE THE
FINANCIAL AND OPERATIONAL CAPACITY OF COMMON CARRIERS TO PERFORM THE
VARIETY OF TASKS REQUIRED BY THE PUBLIC, HOWEVER, APPLICANTS FOR A
CONTRACT-CARRIER PERMIT MUST NOT BE AWARDED BUSINESS THAT EXISTING
COMMON CARRIERS ARE EQUIPPED AND OBLIGED IN THEIR CERTIFICATES TO
HANDLE.  ACCORDINGLY, THE APPLICANT MUST FIRST DEMONSTRATE THAT HE
PROPOSES A SPECIALIZED UNDERTAKING.  PROTESTANTS MAY THEN PRESENT
EVIDENCE THAT THEY HAVE THE CAPACITY AND THE DESIRE TO CARRY THE
PARTICULAR TRAFFIC PROPOSED.  IF THAT IS DONE, THE BURDEN SHIFTS BACK
TO THE APPLICANT TO DEMONSTRATE THAT THE PROTESTANTS ARE NOT SO WELL
EQUIPPED AS HE TO MEET THE NEEDS OF THE SHIPPER.  SHIPPER PREFERENCE IS
NOT SUFFICIENT.  UNLESS THE APPLICANT CAN SHOW THAT ITS SERVICE WILL BE
SUBSTANTIALLY SUPERIOR TO THAT OFFERED BY THE PROTESTANTS, THE ISSUANCE
OF A PERMIT MUST BE REFUSED, AND THIS ALTHOUGH THE PROTESTANT MAY NEVER
HAVE CARRIED THE TRAFFIC BEFORE AND MAY HAVE NO ASSURANCE THAT IT WILL
BE OFFERED HIM ONCE THE APPLICATION IS DENIED.  ONLY THUS, THE
COMMISSION HAD CONCLUDED, COULD THE POLICY OF CONGRESS TO PRESERVE A
VIABLE SYSTEM OF COMMON CARRIAGE BE SATISFIED. 

IT IS THIS BODY OF PRECEDENT, CONSCIENTIOUSLY DEVELOPED OVER A PERIOD
OF YEARS TO EFFECTUATE THE POLICIES FORMULATED IN THE MOTOR CARRIER ACT
FOR COMMISSION ENFORCEMENT, THAT WE ARE TOLD WAS OVERTURNED BY
CONGRESSIONAL AMENDMENT IN 1957.  AND SO WE MUST TURN TO THE TERMS,
ORIGIN, AND PURPOSE OF THOSE AMENDMENTS. 

AS NOW AMENDED BY 71 STAT. 411 (1957), SEC. 203(A)(15), 49 U.S.C.
SEC. 303(A)(15) READS AS FOLLOWS: 

"THE TERM 'CONTRACT CARRIER BY MOTOR VEHICLE' MEANS ANY PERSON WHICH
ENGAGES IN TRANSPORTATION BY MOTOR VEHICLE OF PASSENGERS OR PROPERTY IN
INTERSTATE OR FOREIGN COMMERCE, FOR COMPENSATION (OTHER THAN AS A
COMMON CARRIER)  ..  UNNDER CONTINUING CONTRACTS WITH ONE PERSON OR A
LIMITED NUMBER OF PERSONS EITHER (A) FOR THE FURNISHING OF
TRANSPORTATION SERVICES THROUGH THE ASSIGNMENT OF MOTOR VEHICLES FOR A
CONTINUING PERIOD OF TIME TO THE EXCLUSIVE USE OF EACH PERSON SERVED OR
(B) FOR THE FURNISHING OF TRANSPORTATION SERVICES DESIGNED TO MEET THE
DISTINCT NEED OF EACH INDIVIDUAL CUSTOMER." 

71 STAT. 411 (1957) ADDED TO SEC. 209(B), 49 U.S.C. SEC. 309(B), THE
FOLLOWING PROVISION: 

"IN DETERMINING WHETHER ISSUANCE OF A PERMIT WILL BE CONSISTENT WITH
THE PUBLIC INTEREST AND THE NATIONAL TRANSPORTATION POLICY DECLARED IN
THIS ACT, THE COMMISSION SHALL CONSIDER (1) THE NUMBER OF SHIPPERS TO
BE SERVED BY THE APPLICANT, (2) THE NATURE OF THE SERVICE PROPOSED, (3)
THE EFFECT WHICH GRANTING THE PERMIT WOULD HAVE UPON THE SERVICES OF
THE PROTESTING CARRIERS AND (4) THE EFFECT WHICH DENYING THE PERMIT
WOULD HAVE UPON THE APPLICANT AND/OR ITS SHIPPER AND (5) THE CHANGING
CHARACTER OF THAT SHIPPER'S REQUIREMENTS."  (FN5) 

FROM THE ITALICIZED CHANGES IT IS SAID TO FOLLOW THAT THE COMMISSION
MAY NO LONGER ASSIGN DUE WEIGHT, IN ITS JUDGMENT, TO THE ABILITY OF
EXISTING COMMON CARRIERS TO FURNISH SUBSTANTIALLY THE TRANSPORTATION
SERVICE PROPOSED.  THIS IS SO, IT IS ARGUED, BECAUSE FACTORS (3) AND
(4) ARE PLACED IN CONJUNCTIVE EQUIPOISE, DEMANDING A BALANCE ON
UNTILTED SCALES.  AND THE FULCRUM, TO COMPLETE THE METAPHOR, IS LOCATED
BY THIS ARGUMENT PRECISELY AT THE "DISTINCT NEED" OF THE SHIPPER
REFERRED TO IN AMENDED SEC. 203(A)(15). 

IF THE ISSUE BEFORE US WERE ONLY WHETHER THE LANGUAGE OF THE
AMENDMENTS COULD BEAR THIS CONSTRUCTION, THERE WOULD BE LITTLE
ARGUMENT.  BUT EVEN IF THE SUGGESTED INTERPRETATION WERE SUPPORTED BY
THE PLAIN MEANING OF THE WORDS, THIS WOULD NOT ADVANCE OUR INQUIRY VERY
FAR.  FOR THE "PLAIN MEANING" RULE AS AN AUTOMATIC CANON OF STATUTORY
CONSTRUCTION IS MISCHIEVOUS AND MISLEADING AND HAS BEEN LONG AGO
REJECTED.  SEE BOSTON SAND CO. V. UNITED STATES, 278 U.S. 41, 48;
UNITED STATES V. AMERICAN TRUCKING ASSNS., 310 U.S. 534, 542-550. 
WORDS ARE SELDOM SO PLAIN THAT THEIR CONTEXT CANNOT SHAPE THEM.  ONCE
THE "TYRANNY OF LITERALNESS" IS REJECTED, UNITED STATES V. WITKOVICH,
353 U.S. 194, 199, THE REAL MEANING OF SEEMINGLY PLAIN WORDS MUST BE
SUPPLIED BY A CONSIDERATION OF THE STATUTE AS A WHOLE AS WELL AS BY AN
INQUIRY INTO RELEVANT LEGISLATIVE HISTORY.  INDEED WHEN THERE IS NEED
FOR AID, WE MAY TURN TO "ALL THE LIGHT RELEVANTLY SHED UPON THE WORDS
AND THE CLAUSE AND THE STATUTE THAT EXPRESS THE PURPOSE OF CONGRESS,"
UNITED STATES V. UNIVERSAL CORP., 344 U.S. 218, 221. 

THE STARTING POINT FOR DETERMINING LEGISLATIVE PURPOSE IS PLAINLY AN
APPRECIATION OF THE "MISCHIEF" THAT CONGRESS WAS SEEKING TO ALLEVIATE. 
IN THIS INSTANCE, FORTUNATELY, IT IS NOT HARD TO FIND, FOR THE COURT
ITSELF EXPOSED IT IN UNITED STATES V. CONTRACT STEEL CARRIERS, 350 U.S.
409.  THE COMMISSION HAD THERE DETERMINED THAT A CONTRACT CARRIER HAD,
THROUGH ACTIVE SOLICITATION OF SOME 69 TRANSPORTATION CONTRACTS, SO
EXPANDED ITS BUSINESS AS TO BECOME INDISTINGUISHABLE IN OPERATION FROM
A COMMON CARRIER, AND ORDERED IT TO CEASE AND DESIST.  THIS COURT
AFFIRMED REVERSAL OF THAT ORDER, RELYING ON SEC. 209(B) AS IT WAS THEN
WRITTEN (FN6) TO DECLARE THAT "A CONTRACT CARRIER IS FREE TO
AGGRESSIVELY SEARCH FOR NEW BUSINESS WITHIN THE LIMITS OF HIS
LICENSE."  350 U.S., AT 412. 

THE LATITUDE THUS AUTHORITATIVELY RECOGNIZED IN CONTRACT CARRIERS TO
ENGAGE ESSENTIALLY IN COMMON CARRIAGE WITHOUT AT THE SAME TIME
SUBJECTING THEMSELVES TO REGULATION AS COMMON CARRIERS, WAS THE
MISCHIEF THAT PROMPTED THE COMMISSION TO SEEK A RESTRICTIVE REWRITING
OF SECS. 203(A)(15) AND 209(B).  70 I.C.C. ANN. REP. 162 (1956). 
CHAIRMAN CLARKE OF THE COMMISSION TESTIFIED IN THE SENATE HEARINGS ON
THE COMMISSION'S PROPOSED BILL THAT, AS MATTERS THEN STOOD, CONTRACT
CARRIER EXPANSION COULD IMPAIR THE ABILITY OF COMMON CARRIERS TO OFFER
SERVICE TO THE GENERAL PUBLIC, PARTICULARLY TO THE SMALL SHIPPER WHO
COULD NOT AFFORD THE SERVICES OF A CONTRACT CARRIER.  THE COMMISSION
FEARED THAT THE INHERENT ADVANTAGES OF CONTRACT CARRIERS WOULD PERMIT
THEM TO "ENCROACH UPON THE OPERATIONS OF THE COMMON CARRIERS AND SKIM
OFF THE CREAM OF THE TRAFFIC UPON WHICH THEY DEPEND TO SUPPORT THEIR
OVERALL SERVICE TO THE PUBLIC."  (FN7) 

THIS CLEARLY WAS THE APPREHENDED EVIL THAT PROMPTED A FAVORABLE
REPORT OF THE AMENDMENTS.  S. REP. NO. 703, 85TH CONG., 1ST SESS. 1, 3,
7 (1957).  AS PHRASED IN THE HOUSE REPORT, THE FREEDOM ACCORDED
CONTRACT CARRIERS IN THE CONTRACT STEEL DECISION "OBLITERATES THE
DISTINCTION WHICH CONGRESS INTENDED TO MAKE BETWEEN COMMON AND CONTRACT
CARRIERS, AND OPENS THE DOOR TO UNJUST DISCRIMINATION AMONG SHIPPERS." 
H.R. REP. NO. 970, 85TH CONG., 1ST SESS. 3 (1957).  IN PRESENTING THE
BILL THAT WAS ADOPTED BY CONGRESS, SENATOR SMATHERS, THE SENATE
SUBCOMMITTEE CHAIRMAN, THUS STATED THE NEED IT WAS DESIGNED TO
FULFILL: 

"UNLIMITED DIVERSION OF TRAFFIC FROM COMMON CARRIERS TO CONTRACT
CARRIERS COULD IMPAIR THE COMMON CARRIERS' ABILITY TO RENDER ADEQUATE
SERVICE TO THE GENERAL PUBLIC; CONSEQUENTLY, A MORE PRECISE DEFINITION
OF CONTRACT CARRIAGE IN THE INTERSTATE COMMERCE ACT IS DEEMED
NECESSARY. 

     *         *         *        *         * 

"THE DECISION OF THE SUPREME COURT CLEARLY MEANS THAT THE CONGRESS
SHOULD DO SOMETHING TO CORRECT THE SITUATION."  103 CONG. REC. 14035,
14036 (1957). 

THE "MORE PRECISE DEFINITION OF CONTRACT CARRIAGE" IN THE RESULTING
SEC. 203(A)(15) WAS PLAINLY INTENDED TO RESTRICT THE OPPORTUNITIES OF
CONTRACT CARRIERS, NOT TO ENHANCE THEM. 

TO BE SURE, THE ADDITION OF THE FIVE CRITERIA FOR COMMISSION
CONSIDERATION IN THE AMENDMENT TO SEC. 209(B) WAS NOT EXPLICITLY
RESPONSIVE TO THE CONTRACT STEEL DECISION.  NEITHER THE HOUSE NOR THE
SENATE REPORT MAKES ANY MENTION OF THE MEANING OR PURPOSE OF THE
ADDITION.  THE CRITERIA WERE NOT CONTAINED IN THE BILLS, S. 1384 AND
H.R. 5123, 85TH CONG., 1ST SESS. (1957), AS INITIALLY PROPOSED BY THE
COMMISSION.  THEY EMANATED INSTEAD FROM A SUGGESTION BY THE CONTRACT
CARRIER CONFERENCE, AN APPELLEE IN THIS CASE; AND THERE IS LANGUAGE IN
THE TESTIMONY OF ITS GENERAL COUNSEL, CLARENCE D. TODD, BEFORE THE
SENATE SUBCOMMITTEE, FROM WHICH SUPPORT IS NOW DRAWN FOR THE APPELLEES'
POSITION: 

"THE PRIMARY THING THAT WE HAVE ALWAYS FELT THE COMMISSION SHOULD DO
IN THOSE CASES IS CONSIDER NOT ONLY THE EFFECT OF GRANTING THIS
AUTHORITY ON THE COMMON CARRIER - THEY DO THAT IN EACH AND EVERY CASE -
BUT TO CONSIDER THE EFFECT DENIAL WILL HAVE ON THE CONTRACT CARRIERS;
THE PUBLIC INTEREST IS SOMETHING TO BE BALANCED, AND WE THINK THAT BOTH
OF THOSE MATTERS SHOULD BE TAKEN INTO CONSIDERATION."  SENATE HEARINGS
300. 

THESE OBSERVATIONS, IT WILL BE NOTED, DID NOT ADDRESS THEMSELVES TO
THE EFFECT OF A DENIAL ON THE SHIPPER, WHICH IS AT ISSUE HERE. 
CONSIDERATION OF THE SHIPPER'S NEEDS WAS NOT ADVERTED TO IN THE
RECOMMENDATIONS MADE BY THE CONTRACT CARRIER CONFERENCE, SEE SENATE
HEARINGS 305; IT WAS ADDED BY THE SUBCOMMITTEE.  IN ANY EVENT, THE
"BALANCE" TO BE STRUCK WAS NOT DEFINED, NOR THE PROCESS BY WHICH IT WAS
TO BE DETERMINED.  AS A MATTER OF FACT, THE CONTRACT CARRIERS APPEAR TO
HAVE ACCEPTED THE EXISTING COMMISSION PRACTICE; THEY NEITHER ASKED FOR
NOR ANTICIPATED RELAXATION OF IT: 

"THE AMENDMENT SUGGESTED BY THE CONTRACT CARRIERS WOULD STILL REQUIRE
PROOF THAT THE PROPOSED SERVICE IS 'CONSISTENT WITH THE PUBLIC INTEREST
AND THE NATIONAL TRANSPORTATION POLICY' BUT IT SETS FORTH CERTAIN
MATTERS WHICH THE COMMISSION SHOULD CONSIDER IN DETERMINING THIS
QUESTION.  WE DO NOT BELIEVE THAT THIS AMENDMENT WOULD MAKE IT ANY
EASIER FOR OUR CONTRACT CARRIERS TO OBTAIN NEW AUTHORITY  ..  .   ALL
IT WOULD DO WOULD BE TO REQUIRE THE COMMISSION TO GIVE CONSIDERATION TO
FACTORS WHICH, IN OUR OPINION, ARE IMPORTANT TO THE PUBLIC INTEREST." 
SENATE HEARINGS 304. 

THAT THIS WAS CONGRESS' UNDERSTANDING OF THE ADDITION IS EVIDENCED BY
SENATOR SMATHERS' EXPLANATION IN RECOMMENDING ITS ADOPTION:  "IN THIS,
THE COMMITTEE IS PROPOSING TO GIVE THE COMMISSION MORE HELPFUL
STANDARDS THAN ARE CONTAINED IN THE PRESENT LAW."  103 CONG.  REC.
14036 (1957).  LIKE EVIDENCE IS CONTAINED IN A LETTER FROM CHAIRMAN
CLARKE TO THE HOUSE COMMITTEE, STATING THE COMMISSION'S BELIEF "THAT
H.R. 8825 (THE BILL AMENDED BY THE SENATE AS IT EVENTUALLY PASSED) IS
AN IMPROVEMENT OVER H.R. 5123, SUBMITTED BY THE COMMISSION IN DRAFT
FORM."  H.R. REP NO. 970, 85TH CONG., 1ST SESS., APPENDIX (1957).  THIS
IS HARDLY THE LANGUAGE OF A LOSER.  IF, IN CONSTRUING LEGISLATION, WE
ARE TO LOOK TO THE SPONSORS OF A BILL TO DETERMINE ITS MEANING,
SCHWEGMANN BROS. V. CALVERT CORP., 341 U.S. 384, 394-395, THESE
STATEMENTS SHOULD LEAVE NO DOUBT THAT THE ADDITION OF THE FIVE CRITERIA
TO SEC. 209(B) WORKED NO CHANGE IN THE COMMISSION'S LONGSTANDING
PRACTICE OF PREFERRING AVAILABLE COMMON CARRIERS TO CONTRACT-CARRIER
APPLICANTS. 

THESE PARTICULARIZED INDICATIONS ARE CONFIRMED AND REINFORCED BY THE
LEGISLATIVE HISTORY AS A WHOLE FOR PRECLUDING THE VIEW, UNDERLYING THE
DISTRICT COURT'S DECISION, THAT THE 1957 AMENDMENTS INTRODUCED A
RADICAL DEPARTURE IN REGULATORY POLICY.  AS WE HAVE SEEN, THE
COMMISSION HAD, IN ADVANCE OF THE AMENDMENTS, DEVELOPED AND APPLIED THE
CRITERIA AT ISSUE IN THIS CASE, AND HAD STRUCK THE SAME BALANCE THERE
AS HERE.  B&F BUS SERVICE, INC., CONTRACT CARRIER APPLICATION, SUPRA.
NEITHER THIS LEADING COMMISSION DISPOSITION, NOR ANY OTHER TO THE SAME
EFFECT, WAS CRITICIZED OR EVEN MENTIONED TO THE SUBCOMMITTEE THAT
DRAFTED THE AMENDED BILL.  HAD THE COMMISSION, WHICH MAINTAINED A
REPRESENTATIVE THROUGHOUT THE SENATE HEARINGS, SUSPECTED THAT ITS
PRACTICE IN THIS REGARD WAS BEING OVERTURNED, IT WOULD SCARCELY HAVE
GIVEN THE UNQUALIFIED APPROVAL THAT IT DID TO THE FINAL BILL.  SEE H.R.
REP. NO. 970, 85TH CONG., 1ST SESS. 2 (1957); S. REP. NO. 703, 85TH
CONG., 1ST SESS.  6 (1957); 103 CONG. REC. 14035 (1957)(REMARKS OF SEN.
SMATHERS).  ON THE CONTRARY, IT HAD GOOD REASON FOR ASSUMING THAT ITS
PRACTICE WAS BEING APPROVED.  THE REPORT THAT ISSUED FROM THE HEARINGS
CONTAINED THE FOLLOWING ENDORSEMENT: 

"YOUR COMMITTEE IS OF THE OPINION THAT THE PUBLIC INTEREST IN A SOUND
TRANSPORTATION SYSTEM, AND PARTICULARLY IN A STABLE AND ADEQUATE SYSTEM
OF COMMON CARRIAGE, IN THE LIGHT OF THE OBJECTIVES OF THE NATIONAL
TRANSPORTATION POLICY, REQUIRE THAT THE BILL, AS AMENDED, BE PASSED." 
S. REP. NO. 703, 85TH CONG., 1ST SESS. 7 (1957). 

FURTHERMORE, THE VERY SAME SESSION OF CONGRESS THAT PASSED THE
AMENDMENTS HERE IN ISSUE ALSO AMENDED SEC. 218(A), BY 71 STAT. 343
(1957), 49 U.S.C. SEC. 318(A), TO REQUIRE CONTRACT CARRIERS TO FILE
ACTUAL RATHER THAN MINIMUM RATES OR CHARGES.  THIS LEGISLATION WAS
REQUESTED BY THE COMMISSION, 70 I.C.C. ANN. REP. 168-169 (1956), AND
RECOMMENDED BY SENATOR SMATHERS' SUBCOMMITTEE, S. REP. NO. 335, 85TH
CONG., 1ST SESS. 2 (1957), TO ELIMINATE A COMPETITIVE ADVANTAGE HELD BY
CONTRACT CARRIERS.   IT SHOULD BE CONSTRUED IN PARI MATERIA WITH THE
AMENDMENTS TO SECS. 203(A)(15) AND 209(B).  THAT THE 1957 CONGRESS
SHARED THE ORIGINAL UNDERSTANDING OF THE MOTOR CARRIER ACT'S PURPOSE IS
MANIFESTED IN THE SENATE REPORT, AT 2:    "THE UNDERLYING PURPOSE OF
THE MOTOR CARRIER ACT (PT. II OF THE INTERSTATE COMMERCE ACT) IS THE
PROMOTION AND PROTECTION OF ADEQUATE AND EFFICIENT COMMON-CARRIER
SERVICE BY MOTOR VEHICLE IN THE PUBLIC INTEREST.  THE REGULATION OF
CONTRACT CARRIERS WAS DESIGNED WITH THAT END, AMONG OTHERS, IN VIEW." 

                             IV. 

THE FOREGOING DISTILLATION OF STATUTORY PURPOSE FROM THE LEGISLATIVE
HISTORY OF THE AMENDMENTS IS NOT AFFECTED BY THE DELETION FROM THE BILL
OF LANGUAGE INITIALLY SUBMITTED BY THE COMMISSION.  IN ITS ORIGINAL
FORM, S. 1384 WOULD HAVE AMENDED THE DEFINITION OF A CONTRACT CARRIER
IN SEC. 203(A)(15) TO MAKE IT ONE ENGAGING IN TRANSPORTATION UNDER
CONTRACTS FOR THE FURNISHING OF SPECIAL AND INDIVIDUAL SERVICES
REQUIRED BY THE CUSTOMER "AND NOT PROVIDED BY COMMON CARRIERS."  THE
COMMISSION BILL WOULD HAVE ALSO AMENDED SEC.  209(B) TO REQUIRE A
SHOWING BY A CONTRACT-CARRIER APPLICANT "THAT EXISTING COMMON CARRIERS
ARE UNWILLING OR UNABLE TO PROVIDE THE TYPE OF SERVICE FOR WHICH A NEED
HAS BEEN SHOWN."  (FN8)  THE QUOTED LANGUAGE WAS OBJECTED TO BY THE
JUSTICE DEPARTMENT, SENATE HEARINGS 10-11, AND DELETED BY THE SENATE
SUBCOMMITTEE, S. REP. NO. 703, 85TH CONG., 1ST SESS. 3 (1957), AS
"UNDULY RESTRICTIVE" OF CONTRACT CARRIAGE.  THIS DOES NOT AFFECT
CONSTRUCTION OF THE AMENDMENTS AS THEY EMERGED IN FINAL FORM, SO FAR AS
THEY ARE RELEVANT TO OUR PROBLEM.  THE FACT THAT THE COMMISSION
WITHDREW ITS INITIAL SUGGESTION FOR INCREASED RESTRICTIONS ON CONTRACT
CARRIAGE HARDLY AFFORDS THE BASIS FOR A CONCLUSION THAT EXISTING
RESTRICTIONS WERE LEGISLATIVELY DISAPPROVED OR NARROWED. 

IN TRUTH, THE COMMISSION'S LANGUAGE WAS DELETED BECAUSE IT WAS
THOUGHT TO PLACE AN IMPOSSIBLE BURDEN OF PROOF ON AN APPLICANT, OF
DEMONSTRATING A STATE OF MIND ("UNWILLING"), OR OF FACILITIES
("UNABLE"), ENTIRELY WITHIN THE KNOWLEDGE OF THE PROTESTANT.  THUS,
VERY EARLY IN THE SENATE HEARINGS, BEFORE ANY OTHER WITNESS HAD BEEN
HEARD FROM, CHAIRMAN CLARKE WITHDREW THE "UNWILLING" LANGUAGE FROM THE
SUGGESTED AMENDMENT TO SEC. 209(B) "BECAUSE OF THE VERY DIFFICULT
BURDEN OF PROOF THAT WOULD BE IMPOSED ON APPLICANTS  ..  .""  SENATE
HEARINGS 22.  LATER ON, THE REPRESENTATIVE OF THE CONTRACT CARRIER
CONFERENCE ASKED FOR DELETION OF THE "NOT PROVIDED" LANGUAGE, SUPRA,
FROM THE AMENDMENT TO SEC. 203(A)(15) BECAUSE IT PRESENTED THE VERY
SAME BURDEN OF PROOF PROBLEM.  SENATE HEARINGS 294-295.  THE COMMISSION
SUBSEQUENTLY RECOMMENDED THIS DELETION BECAUSE THE LANGUAGE WAS "NOT
NECESSARY TO CARRY OUT THE PURPOSE OF THE BILL  ..  .""  SENATE
HEARINGS 43-44.  SEE ALSO S. REP. NO. 703, 85TH CONG., 1ST SESS. 5
(1957).  (FN9)

   V. 

AN AMENDMENT IS NOT TO BE READ IN ISOLATION BUT AS AN ORGANIC PART OF
THE STATUTE IT AFFECTS.  AN AMENDMENT IS NOT A REPEAL.  EVEN WHEN PLAIN
WORDS ARE SUGGESTIVE OF A CHANGE IN POLICY, THEY ARE NOT TO BE
CONSTRUED AS SUCH IF THERE HAS BEEN A HISTORY OF CONSISTENT CONTRARY
LEGISLATIVE POLICY.  BOSTON SAND CO. V. UNITED STATES, 278 U.S. 41;
GUESSEFELDT V. MCGRATH, 342 U.S. 308, 313-315. 

THE INTERSTATE COMMERCE COMMITTEES THAT CONSIDERED THESE AMENDMENTS
WERE ADDRESSING THEMSELVES TO A LIMITED PROBLEM LAID BARE BY THE
CONTRACT STEEL DECISION.  IT WOULD BE HEEDLESS OF THE PRACTICALITIES OF
LEGISLATIVE PROCEDURE TO ASSUME THAT THESE EXPERIENCED COMMITTEES CHOSE
TO USE THE OCCASION TO OVERTURN A CONSISTENT PATTERN OF STATUTORY
REGULATION WITHOUT INVITING THE VIEWS OF THE COMMISSION, WITHOUT
UNDERTAKING ANY REVIEW OF COMMISSION PRECEDENTS, AND WITHOUT SELECTING
LANGUAGE PLAINLY EVINCING A PURPOSE TO CHANGE THE LAW IN THIS RESPECT. 
TO THE CONTRARY, IT SEEMS CLEAR THAT THESE CAREFUL ARCHITECTS OF MOTOR
CARRIER REGULATION FASHIONED AMENDMENTS THAT FIT HARMONIOUSLY INTO THE
PRIOR LAW.  THEY DID NOT INADVERTENTLY ADD A COLONIAL WING TO A GOTHIC
CATHEDRAL. 

                          VI. 

WHAT HAS BEEN SAID DISPOSES OF THE CONTENTION THAT THE COMMISSION
ERRONEOUSLY IMPORTED A "SIXTH CRITERION" OF THE ADEQUACY OF EXISTING
COMMON-CARRIER SERVICES INTO ITS CONSIDERATION OF THIS APPLICATION.  IT
DID NOT.  THAT CRITERION IS IMPLICIT IN THE THIRD FACTOR ENUNCIATED IN
AMENDED SEC. 209(B):  "THE EFFECT WHICH GRANTING THE PERMIT WOULD HAVE
UPON THE SERVICES OF THE PROTESTING CARRIERS."  THIS HAS ALWAYS BEEN A
CRUCIAL CONSIDERATION IN CONTRACT-CARRIER PROCEEDINGS, AND NOTHING IN
THE AMENDMENTS INTIMATES A CHANGE.  THE FUNDAMENTAL DIFFICULTY WITH THE
DISTRICT COURT'S JUDGMENT IN THIS CASE IS THAT IT RESTS UPON A MISTAKEN
APPREHENSION THAT THE 1957 AMENDMENTS HAD ELIMINATED PREFERENCE FOR
EXISTING COMMON-CARRIER SERVICE AS A PERMISSIBLE DETERMINANT OF
COMMISSION ACTION.  THUS IT CHARACTERIZED THE CRITERIA IN SEC.  209(B)
AS DESIGNED "TO INSURE THAT THEIR (APPLICANT'S AND SHIPPER'S) INTERESTS
WOULD RECEIVE THE SAME CONSIDERATION AND BE WEIGHED IN THE SAME BALANCE
AS THOSE OF OPPOSING CARRIERS."  185 F. SUPP. 838, 848 (W.D. MO.
1960).  THIS WAS A DESTRUCTIVE ERROR. 

THERE REMAIN THREE FURTHER GROUNDS ON WHICH THE DISTRICT COURT
INVALIDATED THE COMMISSION'S ORDER. 

(1)  THE COURT HELD THAT THE COMMISSION HAD IMPOSED ON THE APPLICANT
THE PRECISE BURDEN OF PROOF PROPOSED IN THE REJECTED LANGUAGE OF ITS
BILL, THAT EXISTING CARRIERS WERE UNABLE OR UNWILLING TO PROVIDE THE
TRANSPORTATION SERVICE APPLIED FOR.  HAD THE COMMISSION DONE THIS IT
WOULD HAVE BEEN IN CLEAR ERROR.  IT DID NOT DO SO. 

THE TRIAL EXAMINER'S FINDINGS AND RECOMMENDED ORDER WERE FIRST
REVIEWED BY DIVISION 1 OF THE COMMISSION.  IT HELD IN PART THAT "THE
BURDEN IS UPON AN APPLICANT SEEKING CONTRACT-CARRIER AUTHORITY, AS WELL
AS ONE SEEKING COMMON-CARRIER AUTHORITY, TO ESTABLISH, AMONG OTHER
THINGS, THAT THERE IS A NEED FOR THE SERVICE PROPOSED WHICH EXISTING
CARRIERS CANNOT OR WILL NOT MEET  ..  .   A SERVICE NOT NEEDED CANNOT
BE FOUND CONSISTENT WITH THE PUBLIC INTEREST OR THE NATIONAL
TRANSPORTATION POLICY."  74 M.C.C. 324, 328 (1958).  THIS STATEMENT IS
PERFECTLY CONSISTENT WITH PLACING THE BURDEN OF PROVING ITS WILLINGNESS
AND ABILITY ON THE PROTESTANT, LEAVING THE APPLICANT TO GO FORWARD WITH
A DEMONSTRATION OF ITS SUPERIOR CAPACITY TO MEET THE TRANSPORTATION
NEEDS OF THE SHIPPER.  (FN10)  ON RECONSIDERATION BY THE FULL
COMMISSION, A STATEMENT OF LIKE PURPORT WAS MADE: WE CANNOT FIND THAT
EXISTING SERVICE HAS BEEN SHOWN TO BE INADEQUATE."  79 M.C.C.  695, 709
(1959). 

THE COURT SEEMS TO HAVE FEARED THAT THE COMMISSION WAS IN FACT
PLACING A FULLER AND IMPERMISSIBLE BURDEN ON APPLICANTS, AND TURNED TO
LATER COMMISSION DISPOSITIONS TO CONFIRM ITS SUSPICIONS.  IN ROY D.
YIENGST COMMON CARRIER APPLICATION, 79 M.C.C. 265, 268 (1959), IT FOUND
A STATEMENT THAT THERE HAD BEEN NO "SHOWING THAT THE EXISTING CARRIERS
ARE UNWILLING OR UNABLE" TO PROVIDE THE SERVICE.  BUT A POSSIBLY
CARELESS PHRASE IS NOT CONCLUSIVE OF WHAT THE PHRASER IS DECIDING.  IF
IT WERE, OUR OWN OPINIONS MIGHT AT TIMES BE USED TO BIND OUR HANDS IN
LATER DECISIONS.  HAD THE DISTRICT COURT LOOKED BEHIND THE WORDS
EMPLOYED IN THE YIENGST DECISION, SUPRA, IT WOULD HAVE DISCOVERED THAT
THEY WERE USED AS A SHORTHAND DESCRIPTION OF A MORE COMPLICATED
ALLOCATION OF THE BURDEN OF PROOF; FOR THE PROTESTANTS THERE HAD COME
FORWARD AND SHOWN THEIR EXPERIENCE AND CAPACITY TO HANDLE THE TRAFFIC,
AND IT WAS THE APPLICANT'S SUBSEQUENT ASSERTION OF ITS SUPERIORITY THAT
WAS CONSIDERED INSUFFICIENT TO OVERCOME THIS SHOWING.  THE SAME THING
WAS TRUE IN CAROLINA HAULERS, INC., CONTRACT CARRIER APPLICATION, 76
M.C.C. 254, 256 (1958), LIKEWISE IMPROPERLY RELIED ON BY THE DISTRICT
COURT. 

WE SHOULD JUDGE A CHALLENGED ORDER OF THE COMMISSION BY "THE REPORT,
READ AS A WHOLE," UNITED STATES V. LOUISIANA, 290 U.S. 70, 80, AND BY
THE RECORD AS A WHOLE OUT OF WHICH THE REPORT AROSE.  WHEN THAT IS DONE
IN THIS CASE, IT BECOMES APPARENT THAT THE COMMISSION DID NOT ASSIGN A
STATUTORILY IMPERMISSIBLE BURDEN OF PROOF TO THE APPLICANT. 

THE COMMISSION'S FINAL REPORT FOUND FROM THE WHOLE RECORD THAT THE
PROTESTING CARRIER WAS IN FACT ABLE AND WILLING TO PERFORM THE PROPOSED
TRANSPORTATION SERVICE IN THE FOLLOWING RESPECTS, EACH OF WHICH IS SET
FORTH EXPLICITLY IN THE REPORT.  (1)  U.S.A.C., THE PROTESTANT, IS A
SPECIALIZED COMMON CARRIER IN THE AIRCRAFT FIELD, WITH APPROXIMATELY 60
PERCENT OF ITS PRESENT TRAFFIC CONSISTING OF FRAGILE PARTS, LIKE THE
LANDING-GEAR BULKHEADS WHOSE TRANSPORTATION IS NEEDED FOR BOEING
AIRPLANE COMPANY, THE SHIPPER.  (2)  U.S.A.C. IS ACCUSTOMED TO
MODIFYING ITS EQUIPMENT TO MEET SPECIFIC NEEDS, AND CAN FASHION ITS
SERVICES TO MEET THE SHIPPER'S PRODUCTION SCHEDULES.  (3)
SPECIFICALLY, AS CONCERNS THIS TRAFFIC, 79 M.C.C., AT 708, 

"U.S.A.C. HOLDS THE OPERATING AUTHORITY NECESSARY TO FURNISH THE
NEEDED SERVICE.  ITS DRIVERS HAVE SECURITY CLEARANCE; IT HAS EQUIPMENT
SUITABLE FOR TRANSPORTING AIRCRAFT ASSEMBLIES, PARTS, AND EQUIPMENT;
AND, IF THE SUPPORTING SHIPPERS WILL FURNISH IT WITH SPECIFICATIONS FOR
THE FIXTURES NECESSARY TO HANDLE THEIR PARTICULAR TRAFFIC, IT WILL
MODIFY AS MANY PIECES OF ITS EQUIPMENT AS IS NECESSARY TO PROVIDE
ADEQUATE SERVICE.  FURTHERMORE, IT IS WILLING TO DEDICATE CERTAIN OF
ITS TRAILERS TO THE EXCLUSIVE USE OF EACH OF THE SHIPPERS." 

IT IS DIFFICULT TO CONCEIVE OF MORE EXPLICIT FINDINGS, OR TO QUARREL
WITH THE COMMISSION'S CONCLUSION FROM THEM THAT "U.S.A.C. IS IN A
POSITION TO PROVIDE ANY SERVICE THAT IS NEEDED  ..  .""  79 M.C.C., AT
707.  THE FINDINGS, MOREOVER, FIND AMPLE SUPPORT IN THE EXTENSIVE AND
DETAILED TESTIMONY OF MR. DECKER, IN CHARGE OF FLEET CONTROL AND
OPERATIONS FOR U.S.A.C.  AFTER THE BURDEN OF PRODUCTION WAS PLACED ON
THE PROTESTANT TO SHOW IN WHAT RESPECTS IT WAS CAPABLE OF HANDLING THE
DISPUTED TRAFFIC, THE COMMISSION SURELY EXCEEDED NO STATUTORY
PROHIBITION IN SHIFTING TO THE APPLICANT THE BURDEN OF PERSUASION OF
ITS SUBSTANTIAL SUPERIORITY. 

(2)  THE DISTRICT COURT WAS PERSUADED, HOWEVER, THAT THE COMMISSION
HAD IMPOSED TOO LENIENT A BURDEN OF PRODUCTION ON THE PROTESTANT, TO
SHOW MERELY THAT "AVAILABLE COMMON-CARRIER SERVICE WAS REASONABLY
ADEQUATE TO MEET THE TRANSPORTATION NEEDS INVOLVED."  79 M.C.C., AT
701.  IT CONCLUDED THAT THE PROPER STANDARD WAS THE ONE ENUNCIATED BY
CONGRESS IN AMENDED SEC. 203(A)(15), OF MEETING THE "DISTINCT NEED" OF
EACH SHIPPER.  AND IT DETERMINED THAT THE COMMISSION HAD NOT EMPLOYED
THAT STANDARD:  "NO CONSIDERATION WAS GIVEN TO THE SPECIAL SERVICES
WHICH IN FACT COULD NOT BE SUPPLIED BY A COMMON CARRIER."  185 F.
SUPP., AT 850.  A REVIEW OF THE REPORT AND THE RECORD, JUDGED BY THE
STATUTE'S REQUIREMENTS, DOES NOT SUSTAIN THIS HOLDING. 

IN THE FIRST PLACE, THE COMMISSION MADE THE PRECISE FINDING REQUIRED
BY THE COURT UNDER SEC. 203(A)(15):  "PLAINLY, THERE IS NO WARRANT ON
THESE RECORDS FOR A FINDING THAT THE SUPPORTING SHIPPERS REQUIRE A
DISTINCT TYPE OF SERVICE THAT CANNOT BE PROVIDED BY U.S.A.C.  TO THE
CONTRARY, THE VERY BUSINESS OF U.S.A.C. IS THE TRANSPORTATION OF THE
TYPE OF TRAFFIC INVOLVED."  79 M.C.C., AT 709.  THIS FINDING WAS ITSELF
A CONCLUSION FROM THE DETAILED ENUMERATION OF U.S.A.C. CAPABILITIES
QUOTED PREVIOUSLY.  AND THERE WAS SUBSTANTIAL EVIDENCE IN THE RECORD TO
SUPPORT THE CONCLUSION THAT THE SHIPPER WOULD BE AS WELL SERVED BY
U.S.A.C.  AS BY THE APPLICANT J-T. 

THE SERVICE PROPOSED BY J-T WAS SPECIALIZED IN THE FOLLOWING
PARTICULARS.  IT HAD DESIGNED A TRAILER EXCLUSIVELY FOR BOEING'S
LANDING-GEAR BULKHEADS AT A COST OF $3,360 WITHIN ABOUT TWO WEEKS.  THE
TRAILER WAS UNDERSLUNG WITH AN ADJUSTABLE FLOOR AND ROOF IN ORDER TO
PERMIT REAR-END LOADING, A FULLY ENCLOSED CARRIER, AND THE HEIGHT
CLEARANCE REQUIRED BY STATE LAW ON THE ROADS IT TRAVELED.  THE TRAILER
WAS SPOTTED AT BOEING'S WICHITA PLANT, AVAILABLE AT ALL TIMES ON SHORT
NOTICE TO LEAVE FOR THE SUPPLIER'S PLANT IN INDIANAPOLIS TO PICK UP
ANOTHER LOAD OF BULKHEADS. 

THE TRAFFIC MANAGER FOR BOEING'S WICHITA PLANT TESTIFIED THAT THE
SHIPPER HAD ENJOYED PARTICULARLY THE CLOSE COORDINATION WITH J-T MADE
POSSIBLE THROUGH ITS NEAR-BY WICHITA TERMINAL.  THE BULKHEADS HAD TO BE
SCHEDULED INTO THE ASSEMBLY OPERATION AT A PREDETERMINED TIME; CONSTANT
ENGINEERING CHANGES NECESSITATED SUPPLY OF PARTICULAR BULKHEADS FOR
PARTICULAR PLANES, AND A DELAY IN TRANSPORTATION COULD PROVE VERY
EXPENSIVE.  THE SHIPPER WAS DISINCLINED TO USE U.S.A.C. BECAUSE IT HAD
NO WICHITA TERMINAL, BECAUSE ITS TARIFFS GAVE IT AUTHORITY TO DECIDE ON
THE TYPE OF EQUIPMENT IT WOULD USE, AND BECAUSE OF AN EXPERIENCE OF
CARELESSNESS IN 1953, ALTHOUGH IT WAS UNCERTAIN WHETHER THIS HAD BEEN
THE FAULT OF U.S.A.C. OR OF THE SHIPPER. 

U.S.A.C. OFFERED EVIDENCE THAT IT MAINTAINED A TERMINAL IN
INDIANAPOLIS AND ONE IN TOPEKA, KANSAS, WHICH COULD COVER SHIPMENTS
FROM WICHITA.  U.S.A.C. WOULD BE WILLING TO MODIFY ITS CANVAS-TOPPED
TRAILER TO INSTALL NECESSARY FIXTURES AND A REMOVABLE OR ELEVATABLE
ROOF AS NEEDED.  THE ROOF WOULD TAKE THREE DAYS TO INSTALL, THE
NECESSARY FIXTURES TEN DAYS TO TWO WEEKS.  ITS TARIFF POWER TO CONTROL
EQUIPMENT WAS USED ONLY TO PREVENT OVERLOADING.  (FN11)  IT WAS WILLING
TO DEDICATE THE NECESSARY EQUIPMENT EXCLUSIVELY TO THE SHIPPER. 

FROM THIS EVIDENCE IT WAS CERTAINLY OPEN TO THE COMMISSION TO FIND,
AS IT DID, THAT U.S.A.C. COULD MEET THE "DISTINCT NEED" OF THE
SHIPPER.  THE TARIFF POWER WAS NO OBSTACLE.  AN AMBIGUOUS AND ANCIENT
COMPLAINT ABOUT SERVICE NEED NOT CONTROL.  THE ABSENCE OF A WICHITA
TERMINAL COULD BE OFFSET, IF NEED BE, BY THE PRESENCE OF AN
INDIANAPOLIS TERMINAL:  THE TRAFFIC HAD THUS FAR BEEN ENTIRELY ONE WAY,
FROM INDIANAPOLIS TO WICHITA, AND NO REASON WAS GIVEN WHY TELEPHONIC
CONSULTATION WITH INDIANAPOLIS, REACHING THE SUPPLIER AND THE CARRIER
IN THE SAME PLACE, MIGHT NOT BE AS EFFICIENT OR MORE SO.  MOREOVER, THE
SHIPPER ON THREE OCCASIONS GAVE EVIDENCE THAT ITS PREFERENCE FOR J-T
WAS IN ACTUALITY BASED ON A MISUNDERSTANDING OF COMMON-CARRIER
AUTHORITY THAT THE COMMISSION WAS UNDER NO OBLIGATION TO CREDIT. 
(FN12)    BUT THIS DOES NOT MEAN THAT, AS A STATUTORY MATTER, THE
COMMISSION WAS REQUIRED TO FIND THAT THE PROTESTANT COULD MEET THE
"DISTINCT NEED" OF THE SHIPPER.  THAT PHRASE WAS INSERTED IN SEC.
203(A)(15) TO RESTRICT THE DEFINITION OF A CONTRACT CARRIER, NOT TO
LIMIT THE OPPORTUNITIES OF A COMMON CARRIER.  IT SHOULD BE NOTED THAT A
CONTRACT CARRIER MAY SO QUALIFY UNDER THAT SECTION EITHER BY MEETING
THE DISTINCT NEED OF A PARTICULAR CUSTOMER OR BY MEETING VERY ORDINARY
NEEDS THROUGH THE ASSIGNMENT OF VEHICLES TO THE SHIPPER'S EXCLUSIVE
USE.  IF THE LATTER QUALIFICATION WERE CONTROLLING IN A GIVEN CASE, THE
CONSIDERATION OF "DISTINCT NEED" WOULD BE IRRELEVANT. 

BEYOND THIS PARSING OF SEC. 203(A)(15), MOREOVER, THERE IS REASON IN
POLICY FOR THE COMMISSION TO DENY AN APPLICATION WHEN THE PROTESTANT IS
ABLE TO FURNISH "REASONABLY ADEQUATE" SERVICES.  THE MOTOR CARRIER ACT
EXPRESSES A POLICY, AS WE HAVE SEEN, OF PRESERVING EXISTING COMMON
CARRIAGE AGAINST THE INROADS OF CONTRACT CARRIAGE.  ONE WAY OF PUTTING
THAT POLICY INTO EFFECT IS TO DENY A CONTRACT-CARRIER APPLICATION, AS
THE COMMISSION HAS ALWAYS DONE, UNLESS THE APPLICANT CAN DEMONSTRATE
THAT ITS SERVICE WILL BE SUBSTANTIALLY SUPERIOR TO THAT AFFORDED BY
EXISTING CARRIERS.  ANOTHER WAY OF DESCRIBING THIS PRACTICE, WHICH THE
1957 AMENDMENTS HAVE IN NO WAY AFFECTED, IS THAT NO PERMIT WILL ISSUE
FOR TRAFFIC THAT CAN BE HANDLED WITH REASONABLE ADEQUACY BY A
PROTESTANT. 

(3)  THE DISTRICT COURT WAS MOST EMPHATIC IN ITS CONCLUSION THAT THE
COMMISSION HAD ERRED IN ITS RESOLUTION OF THE THIRD FACTOR IN SEC.
209(B) - "THE EFFECT WHICH GRANTING THE PERMIT WOULD HAVE UPON THE
SERVICES OF THE PROTESTING CARRIERS" - BY THE AID OF AN UNWARRANTED
PRESUMPTION.  THE RELEVANT LANGUAGE OF THE FINAL REPORT IS AS FOLLOWS: 

"THE QUESTION PRESENTED  ..  ISS HOW WE ARE TO DETERMINE WHETHER A
GRANT OF AUTHORITY WILL ADVERSELY AFFECT THE SERVICE OF A PROTESTANT. 
IT MIGHT BE ARGUED THAT WHERE, AS HERE, A PROTESTANT IS NOT NOW
ENJOYING THE INVOLVED TRAFFIC, IT CANNOT BE ADVERSELY AFFECTED BY A
GRANT OF AUTHORITY.  HOWEVER, WE BELIEVE THAT OUR PAST HOLDINGS THAT
EXISTING CARRIERS ARE ENTITLED TO TRANSPORT ALL THE TRAFFIC WHICH THEY
CAN ECONOMICALLY AND EFFICIENTLY HANDLE BEFORE ADDITIONAL AUTHORITY IS
GRANTED ARE EQUALLY VALID TODAY AS THEY WERE PRIOR TO THE 1957
AMENDMENTS TO THE ACT.  THERE IS, IN EFFECT, A PRESUMPTION THAT THE
SERVICES OF EXISTING CARRIERS WILL BE ADVERSELY AFFECTED BY A LOSS OF
'POTENTIAL' TRAFFIC, EVEN IF THEY MAY NOT HAVE HANDLED IT BEFORE."  79
M.C.C., AT 705. 

HOW THE DISTRICT COURT COULD BE CONFIDENT THAT THE COMMISSION WAS
BLINDLY APPLYING WHAT IT ITSELF CALLED ONLY "IN EFFECT" A PRESUMPTION,
IN THE FACE OF DETAILED FINDINGS THAT THE TRAFFIC WAS ONE THAT THE
PROTESTANT "CAN ECONOMICALLY AND EFFICIENTLY HANDLE," IT DID NOT
EXPLAIN.  DOUBTLESS IF THE COMMISSION HAD ERECTED A PRESUMPTION OF
ADVERSE EFFECT FROM EVIDENCE SIMPLY THAT THE PROTESTANT POSSESSED
AUTHORITY IN ITS CERTIFICATE TO CARRY THAT TRAFFIC, ITS ACTION WOULD
HAVE BEEN INCONSISTENT WITH CONGRESSIONAL DELETION OF THE WORDS "NOT
PROVIDED BY COMMON CARRIERS" FROM THE AMENDMENT TO SEC. 203(A)(15). 
BUT, AS WE HAVE SEEN, THAT IS PLAINLY NOT WHAT THE COMMISSION DID. 

THE COURT WENT FURTHER, HOWEVER, AND DETERMINED THAT EVIDENCE OF THE
PROTESTANT'S WILLINGNESS AND ABILITY WAS BY ITSELF INSUFFICIENT TO
SUPPORT THE REQUISITE FINDING OF AN ADVERSE EFFECT.  "WHERE ..  THHE
PROTESTING CARRIER IS NOT PARTICIPATING IN THE TRAFFIC INVOLVED, THERE
CAN BE NO DIVERSION OF TRAFFIC AND HENCE ORDINARILY THERE WOULD BE NO
ADVERSE EFFECT ON THE SERVICES OF THE PROTESTING CARRIER."  185 F.
SUPP., AT 848.  IT IS SOMEWHAT DIFFICULT TO KNOW BY WHAT EXPERT INSIGHT
THE DISTRICT COURT ACHIEVED THIS CONCLUSION, AT VARIANCE WITH THE
COMMISSION'S DELIBERATE AND CONSIDERED CONTRARY RESOLUTION OF THE SAME
ISSUE.  APPARENTLY THE COURT THOUGHT THAT THE SHIPPER'S EXPRESSED
PREFERENCE FOR THE APPLICANT HAD TO BE TAKEN INTO CONSIDERATION IN
DETERMINING WHETHER THE PROTESTANT WOULD BE INJURED BY A GRANT OF THE
PERMIT.  EVEN IF THIS WERE A PROPER READING OF THE STATUTE, IT WOULD
NOT JUSTIFY THE DISTRICT COURT'S CONCLUSION.  FOR THE RECORD SHOWS THAT
WHEN THE SHIPPER WAS ASKED WHOSE SERVICES IT WOULD USE IF THE PERMIT
WERE DENIED, IT REPLIED THAT IT DID NOT KNOW. 

BUT IT IS PLAINLY AN IMPROPER READING OF THE STATUTE.  THE COMMISSION
HAS INVARIABLY HELD THAT THE PREFERENCE OF A SHIPPER FOR A PARTICULAR
CARRIER, EVEN THOUGH BASED ON SOUND BUSINESS REASONS, IS NOT ENOUGH TO
WARRANT ISSUANCE OF A PERMIT.  THIS PRACTICE IS UNAFFECTED BY THE 1957
AMENDMENTS.  WE HAVE OURSELVES UNANIMOUSLY HELD, SINCE THOSE AMENDMENTS
WENT INTO EFFECT, THAT LEGALLY COGNIZABLE INJURY MIGHT ACCRUE TO AN
EXISTING CARRIER DENIED POTENTIAL TRAFFIC. 

"SURELY THE STATEMENT BY GENERAL MOTORS (THE SHIPPER) THAT IT WOULD
NOT IN ANY EVENT GIVE THE BUSINESS TO ANY APPELLANT CANNOT DEPRIVE
APPELLANTS OF STANDING.  THE INTERESTS OF THESE INDEPENDENTS CANNOT BE
PLACED IN THE HANDS OF A SHIPPER TO DO WITH AS IT SEES FIT THROUGH
PREDICTIONS AS TO WHOM ITS BUSINESS WILL OR WILL NOT GO  ..  .   WE
CONCLUDE, THEN, THAT APPELLANTS HAD STANDING TO MAINTAIN THEIR ACTION
TO SET ASIDE THE COMMISSION'S ORDER UNDER THE 'PARTY IN INTEREST'
CRITERION OF SEC. 205(G) OF THE INTERSTATE COMMERCE ACT,  ..  ANND
UNDER THE 'PERSON SUFFERING LEGAL WRONG  ..  ORR ADVERSELY AFFECTED OR
AGGRIEVED' CRITERION OF SEC. 10(A) OF THE ADMINISTRATIVE PROCEDURE ACT
..  .""  AMERICAN TRUCKING ASSNS.  V. UNITED STATES, 364 U.S. 1, 18. 

IF A PROTESTANT MAY BE "ADVERSELY AFFECTED" DESPITE SHIPPER HOSTILITY
FOR PURPOSES OF SEEKING JUDICIAL REVIEW, IT SEEMS CONSISTENT TO PERMIT
THE COMMISSION TO FIND IT SO FOR PURPOSES OF RULING UPON AN APPLICATION
UNDER SEC. 209(B). 

THERE IS PERSUASIVE LEGISLATIVE HISTORY TO THE SAME EFFECT.  THE
AMENDMENTS TO S. 1384 PROPOSED IN THE SENATE HEARINGS BY THE CONTRACT
CARRIER CONFERENCE, WHICH WERE SUBSTANTIALLY ADOPTED AS THE CRITERIA IN
SEC. 209(B), WOULD HAVE ERECTED A PRESUMPTION IN FAVOR OF A CONTRACT
CARRIER APPLICANT WHEN THE SHIPPER HAD PREVIOUSLY BEEN USING PRIVATE
CARRIAGE.  SENATE HEARINGS 305.  THIS PROVISION WAS SUPPORTED ON THE
GROUND THAT NO ADVERSE EFFECT WOULD NORMALLY BE VISITED ON A PROTESTANT
WHEN THE SHIPPER HAD SO DEMONSTRATED ITS ANTIPATHY TO COMMON CARRIAGE. 
IT WAS DELETED BY THE SUBCOMMITTEE.  THUS, IF WE ARE TO PLACE EMPHASIS
ON CONGRESSIONAL REJECTIONS, WE MUST TAKE THIS DELETION AS SIGNIFICANT
THAT SHIPPERS' DESIRES ARE NOT TO BE CONTROLLING. 

BUT WE NEED NOT RELY ON THIS EPISODE TO PROVE THE POINT.  THE WHOLE
SCHEME OF STATUTORY REGULATION POINTS THE SAME WAY.  FOR WE MUST
REMEMBER THAT CONGRESS HAS CHOSEN IN THE MOTOR CARRIER ACT TO REGULATE
MOTOR TRANSPORTATION NOT BY THE FORCES OF COMPETITION BUT BY IMPARTIAL
ADMINISTRATION THROUGH AN EXPERT BODY.  NO DOUBT CONTRACT CARRIAGE IS
FREQUENTLY PREFERRED BY SHIPPERS FOR THE ADVANTAGES, CHIEFLY IN
FLEXIBILIBY OF OPERATIONS, THAT IT MAY HOLD OVER AVAILABLE COMMON
CARRIAGE.  BUT THE NATIONAL INTEREST TO BE SAFEGUARDED UNDER THE
NATIONAL TRANSPORTATION POLICY IS ENTRUSTED TO THE I.C.C. AND NOT TO
THE SELF-INTEREST OF SHIPPERS.  SO LONG AS THE COMMISSION DOES NOT
BEHAVE ARBITRARILY, DOES NOT REJECT THE OFFER OF RELEVANT TESTIMONY OR
REFUSE TO "CONSIDER" SOME FACTOR THAT CONGRESS HAS COMMANDED TO BE
TAKEN INTO ACCOUNT, THE WEIGHT OR VALUE ACCORDED THE VARIOUS FACTORS
AND THE COMMISSION'S EVALUATION OF THE COMPARATIVE NEEDS OF SHIPPER,
APPLICANT, AND PROTESTANT IN A PARTICULAR SITUATION ARE CONCLUSIVE. 

A CAREFUL READING OF THE REPORT AND RECORD DEMONSTRATES THE UNWISDOM
OF OVERTURNING THE COMMISSION'S EXERCISE OF ITS REGULATORY FUNCTIONS
UPON MERELY APPARENT SURFACE IMPROPRIETIES.  FOR THE COMMISSION FOUND
AS A FACT THAT THE PROTESTANT NEEDED THE PROPOSED TRAFFIC; THAT
U.S.A.C.'S: 

"ABILITY TO OBTAIN BUSINESS DEPENDS ON ITS ABILITY TO SATISFY THE
NEEDS OF THE SHIPPERS HAVING TRANSPORTATION REQUIREMENTS SIMILAR TO
THOSE OF THESE SUPPORTING SHIPPERS, AND IT IS DEPENDENT UPON THE VERY
KIND OF TRAFFIC THAT IS HERE CONSIDERED FOR THE CONTINUANCE OF ITS
OPERATIONS."  79 M.C.C., AT 708. 

THIS IS THE CONTENT OF THE "PRESUMPTION" THAT FLOWS FROM A
PROTESTANT'S SHOWING OF ITS WILLINGNESS AND ABILITY:  A DECIDEDLY
ADVERSE EFFECT FROM A LOSS OF "POTENTIAL" TRAFFIC.  AND THE FINDING
RESTED ON A SUBSTANTIAL ARRAY OF RECORD FACTS.  U.S.A.C. HAD
DEMONSTRATED ITS NEEDS BY ACTUALLY SOLICITING BOEING FOR THE TRAFFIC,
FAR IN ADVANCE OF THIS PROCEEDING.  ITS RECORD OF RECENT "DEADHEADS,"
OR EMPTY TRAILERS, LEAVING INDIANAPOLIS WAS IMPRESSIVE: IN MARCH OF
1957, 92 DEADHEADS AS AGAINST 61 FULL LOADS; IN APRIL, 85 AGAINST 60. 
A SIMILAR EMPTY-EQUIPMENT PROBLEM EXISTED IN WICHITA.  AIRCRAFT-PARTS
TRANSPORTATION IN GENERAL HAD RECENTLY DECREASED.  THE PROBLEM WAS ONE
OF AIRCRAFT OBSOLESCENCE, MAKING THE BUSINESS SPOTTY, WITH RECURRENT
HIGHS AND LOWS.  U.S.A.C. HAD BEEN ENGAGED IN THE PROGRAMS FOR THE
BUILDING OF F-184'S, B-47'S, AND B-36'S.  EACH HAD ENDED. 

SURELY IT WOULD HAVE BEEN PERMISSIBLE FOR THE COMMISSION, CHARGED AS
IT IS WITH PRESERVING TRANSPORTATION FOR THE NATIONAL DEFENSE, TO
CONCLUDE THAT THE NATIONAL INTEREST LAY IN SEEKING TO KEEP U.S.A.C.'S
EXCESS CAPACITY PROFITABLY EMPLOYED AND AVAILABLE FOR FUTURE DEFENSE
NEEDS.  THE FACT THAT THE COMMISSION DID NOT ADVERT EXPRESSLY TO
DEFENSE NEEDS IN ITS REPORT DOES NOT AFFECT THE ILLUSTRATION THIS
EVIDENCE AFFORDS OF THE WAY IN WHICH A PRESUMPTION OF ADVERSITY MAY
REASONABLY BE DRAWN FROM EVIDENCE OF A PROTESTANT'S DESIRE AND CAPACITY
FOR TRAFFIC. 

VII. 

THE APPROPRIATE RELATION BETWEEN THE COMMISSION AND THE COURTS WAS
DELINEATED IN OUR TREATMENT OF THE CLOSELY PARALLEL PROBLEM IN
SECRETARY OF AGRICULTURE V. CENTRAL ROIG REF. CO., 338 U.S. 604.  THE
SUGAR ACT OF 1948, SEC. 205(A), AUTHORIZED THE SECRETARY TO ALLOCATE
MARKETING QUOTAS AMONG PARTICULAR REFINERIES "IN SUCH AMOUNTS AS TO
PROVIDE A FAIR, EFFICIENT, AND EQUITABLE DISTRIBUTION" (COMPARE
"CONSISTENT WITH THE PUBLIC INTEREST AND THE NATIONAL TRANSPORTATION
POLICY"), AND DIRECTED HIM TO DO SO "BY TAKING INTO CONSIDERATION"
THREE FACTORS - ONE RELATED TO PROCESSING OF RAW SUGAR FROM SUGAR CANE,
WHICH THE SECRETARY DECIDED WAS INAPPLICABLE, AND THE OTHER TWO PAST
MARKETINGS AND FUTURE MARKETING CAPACITY.  THE SECRETARY APPLIED THESE
TWO BY GIVING THEM EQUAL WEIGHT AND REFERRING THEM TO A PRE-WORLD WAR
II BASE PERIOD SELECTED AS ONE UNAFFECTED BY SPECIAL WARTIME DEMANDS. 
THE RESULTING ALLOCATION ORDER WAS ATTACKED AS EXCEEDING STATUTORY
AUTHORITY AND WAS SET ASIDE BY THE COURT OF APPEALS.  THIS COURT
REVERSED, HOLDING THAT THE SECRETARY HAD NOT EXCEEDED THE DISCRETION
NECESSARILY VESTED IN HIM BY THE SUGAR-QUOTA SCHEME.  WE NOTED THAT A
DIRECTION TO "CONSIDER" CERTAIN FACTORS DID NOT CONTROL THE SECRETARY'S
JUDGMENT AS TO WHAT WEIGHT SHOULD BE ASSIGNED TO EACH OR WHETHER TO
GIVE WEIGHT TO ALL THREE IN EACH SITUATION.  WE CONCLUDED THAT SO LONG
AS THE SECRETARY WAS NOT ARBITRARY IN HIS CHOICE OF MEANS TO REACH AN
EQUITABLE DISTRIBUTION, HIS DECISION SHOULD STAND. 

IT IS A COMMONPLACE OF ADMINISTRATIVE LAW THAT THE EVALUATION TO BE
GIVEN CRITERIAL FINDINGS, IF ADEQUATELY SUPPORTED, IS LEFT ESSENTIALLY
TO THE ADMINISTRATIVE AGENCY CHARGED WITH PRIMARY RESPONSIBLIITY FOR
INTERPRETING THE WILL OF CONGRESS.  THE EXTENT TO WHICH THIS IS SO WILL
BE MISCONCEIVED IF DRAWN FROM ABSTRACT CONCEPTIONS OF "FACT," "LAW," OR
"LAW-APPLICATION."  FOR ONE THING, THE PERMISSIBLE SCOPE OF
ADMINISTRATIVE DISCRETION MAY VARY FROM SECTION TO SECTION WITHIN A
SINGLE STATUTE.  FOR ANOTHER, THE TASK OF EXERCISING AN INFORMED
DISCRETION IN ADMINISTRATIVE PROCEEDINGS EXTENDS FROM TESTIMONIAL
SUBMISSIONS THROUGH CONSIDERATIONS OF REGULATORY POLICY TO OBEDIENCE OF
A STATUTORY COMMAND.  IT IS A QUESTION OF POLICY, DERIVED FROM DUE
REGARD FOR, AND BASED ON UNDERSTANDING OF, THE REGULATORY SCHEME
ENACTED BY CONGRESS, AT WHICH POINT A REVIEWING COURT SHOULD
INTERVENE.  A CONCLUSION THAT THE AGENCY'S DETERMINATION, RESTING ON
FINDINGS (WHERE, AS IS NORMALLY TRUE, THEY ARE REQUIRED) APPROPRIATELY
SUPPORTED BY EVIDENCE, IS WITHIN ITS POWER TO MAKE IS A CONCLUSION THAT
THE FACTORS CALLING FOR INTERVENTION ARE ABSENT.  COMPARE INTERSTATE
COMMERCE COMMISSION V. UNION PACIFIC R. CO., 222 U.S. 541, 547-548. 

ADMINISTRATIVE AGENCIES ARE NOT ONLY VESTED WITH DISCRETION IN
SIFTING EVIDENCE AND IN MAKING FINDINGS BUT MAY ALSO DRAW ON THEIR
SPECIALIZED COMPETENCE FOR ASCERTAINING THE REACH AND MEANING OF
STATUTORY LANGUAGE.  COMPARE SOCIAL SECURITY BOARD V. NIEROTKO, 327
U.S. 358, 368-371, WITH LABOR BOARD V. HEARST PUBLICATIONS, 322 U.S.
111, 128-131.  THE FACTORS TO BE CONSIDERED ON JUDICIAL REVIEW OF SUCH
AN ADMINISTRATIVE DETERMINATION INCLUDE THE PRECISION OF THE STATUTORY
LANGUAGE, THE TECHNICAL COMPLEXITY OF THE RELEVANT ISSUES, THE NEED FOR
CERTAINTY AS AGAINST EXPERIMENTATION, AND THE LIKELIHOOD THAT CONGRESS
FORESAW THE PRECISE QUESTION AT ISSUE AND DESIRED TO EXPRESS A
FORECLOSING JUDGMENT ON IT.  IN ASSESSING THESE FACTORS, WE ARE GUIDED
PRIMARILY BY AN INVESTIGATION OF THE PRIOR LAW AS IT SHEDS LIGHT ON THE
"MISCHIEF" CONGRESS SOUGHT TO ALLEVIATE, AND OF THE STATUTE ITSELF TO
SEE HOW CLOSELY CONGRESS SOUGHT TO DEFINE THE BALANCE OF COMPETING
CONSIDERATIONS IT ADDRESSED.    THAT INVESTIGATION HERE REVEALS THAT
CONGRESS CONFERRED THE POWER ON THE COMMISSION TO DECIDE AS IT HAS DONE
IN THIS CASE.  NONE OF THE PRECEDENTS IS TO THE CONTRARY; EACH POINTS
TO THIS CONCLUSION.  SEE UNITED STATES V. PIERCE AUTO LINES, 327 U.S.
515, 535-536 (NOT FOR COURTS TO GAUGE PUBLIC INTEREST; SO LONG AS
REQUISITE FINDINGS ARE MADE AND SUPPORTED BY EVIDENCE, THE RESOLUTION
OF RELEVANT FACTORS IS FOR THE COMMISSION); BASS V. UNITED STATES, 163
F. SUPP. 1, 4 (W.D. VA. 1958), AFF'D PER CURIAM, 358 U.S. 333 (SAME);
CF. UNITED STATES V. DETROIT & CLEVELAND NAV. CO., 326 U.S. 236, 240
241.  IN SCHAFFER TRANSP.  CO. V. UNITED STATES, 355 U.S. 83, 86 N. 3,
90, THE COURT DELIBERATELY REFRAINED FROM GUIDING THE COMMISSION'S
DISCRETION IN EVALUATING THE RELATIVE ADVANTAGES OF COMPETING
CARRIERS.  (FN13) 

DETERMINATIONS BY THE COMMISSION WHICH CONGRESS HAS COMMITTED TO ITS
JUDGMENT MUST BE JUDICIALLY RESPECTED BECAUSE SUCH EXERCISES OF
ADMINISTRATIVE DISCRETION ARE BEYOND THE COMPETENCE OR JURISDICTION OF
COURTS.  THEIR POWER OF REVIEW IS CONFINED TO CORRECTION OF COMMISSION
ACTION THAT TRANSCENDS THE AUTHORITY GIVEN IT BY CONGRESS, INCLUDING OF
COURSE DISREGARD BY THE COMMISSION OF PROCEDURAL PROPRIETIES RESULTING
IN ARBITRARY USE OF ITS POWERS. 

IN THE PRESENT CASE, NO CLAIM CAN BE MADE THAT THE COMMISSION'S
FINDINGS ARE UNSUPPORTED BY SUBSTANTIAL EVIDENCE.  UNITED STATES V. PAN
AMERICAN CORP., 304 U.S. 156, 158; CF. UNIVERSAL CAMERA CORP. V. LABOR
BOARD, 340 U.S. 474; SEE ADMINISTRATIVE PROCEDURE ACT, SEC.  10(E), 60
STAT. 237, 243 (1946), 5 U.S.C. SEC. 1009(E).  THE COMMISSION'S
DETAILED REPORT NEGATIVES THIS, AS IT WOULD A CLAIM THAT THE COMMISSION
NEGLECTED TO MAKE REQUISITE FINDINGS. 

OF COURSE THE PROVISIONS OF THE NATIONAL TRANSPORTATION POLICY MUST
BE APPLIED BY THE COMMISSION TO EACH APPLICATION, SEE SCHAFFER TRANSP. 
CO. V. UNITED STATES, 355 U.S. 83, 88, BUT THEY "REPRESENT, AT BEST, A
COMPROMISE BETWEEN STABILITY AND FLEXIBILITY OF INDUSTRY CONDITIONS,
EACH ALLEGED TO BE IN THE NATIONAL INTEREST, AND WE CAN ONLY LOOK TO
SEE IF THE COMMISSION HAS APPLIED ITS FAMILIARITY WITH TRANSPORTATION
PROBLEMS TO THESE CONFLICTING CONSIDERATIONS."  AMERICAN TRUCKING
ASSNS.  V. UNITED STATES, 344 U.S. 298, 314; SEE INTERSTATE COMMERCE
COMMISSION V. PARKER, 326 U.S. 60, 66.  THE COMMISSION'S ACTION HERE
CERTAINLY DOES NOT FALL SHORT OF THAT STANDARD.  SEE 79 M.C.C., AT 705
706. 

AN ORDER OF THE COMMISSION CANNOT STAND, IT IS TRUE, IF WE CANNOT
TELL WHAT HAS BEEN DECIDED OR IF IT LEAVES UNCLEAR THE BASIS FOR ITS
CONCLUSIONS.  UNITED STATES V. CHICAGO, M., ST. P.&P.R. CO., 294 U.S.
499, 510-511.  FINDINGS ARE NO DOUBT JUDICIALLY MORE PERSUASIVE THE
MORE FELICITOUSLY THEY ARE FORMULATED AND THE LESS THEY REQUIRE
EXTRACTION FROM A DIFFUSE REPORT.  BUT THE COMMISSION IS NOT UNDER
STATUTORY DUTY TO SET FORTH ITS FINDINGS IN SERRIED ARRAY.  IT IS THE
COURT'S DUTY TO SUSTAIN THE COMMISSION'S FINDINGS IF, AS HERE, THERE IS
NO REAL DIFFICULTY IN DETERMINING WHAT WAS DECIDED AND ON WHAT
GROUNDS. 

IT IS NOT THE COURT'S FUNCTION TO IMPOSE OUR STANDARDS OF LUCIDITY OR
ELEGANCE IN EXPOSITION UPON THE COMMISSION.  AND WE SHOULD TAKE DUE
WARNING FROM THE CONSEQUENCES OF OUR DECISION IN CITY OF YONKERS V.
UNITED STATES, 320 U.S. 685, OF WHAT MAY FOLLOW FROM EXACTING OVERNICE
REQUIREMENTS OF THE I.C.C.  THERE THE COMMISSION HAD MADE NO EXPLICIT
FINDING THAT AN ELECTRIC INTERURBAN RAILWAY WAS AN INTEGRAL PART OF A
STEAM RAILROAD SYSTEM AS IT HAD TO BE BEFORE THE COMMISSION COULD ALLOW
IT TO SUSPEND ITS OPERATIONS.  THE FACTS WERE SO CLEARLY SPREAD UPON
THE RECORD THAT THE POINT WAS NOT ARGUED UNTIL ONE OF THE PARTIES
RAISED IT ON APPEAL.  THIS COURT REMANDED THE CASE FOR AN EXPRESS
FINDING.  THE COMMISSION TOOK SOME MORE EVIDENCE AND IN DUE COURSE IT
ENTERED THE INEVITABLE FINDING.  THE ORDER WAS ATTACKED AGAIN IN THE
DISTRICT COURT, AFFIRMED AGAIN AFTER ANOTHER LENGTHY OPINION, AND
EVENTUALLY AFFIRMED PER CURIAM, 323 U.S. 675.  THAT WASTEFUL CHARADE
OUGHT NOT TO BE REPEATED HERE. 

I WOULD REVERSE AND ALLOW THE COMMISSION'S ORDER TO STAND. 

FN1  THE COMMISSION HAS CLASSIFIED MOTOR CARRIAGE BY 17 TYPES OF
COMMODITIES, AND EACH ONE ADMITS OF COMMON OR CONTRACT CARRIAGE.  49
CFR SEC. 165.2 (1961). 

FN2  54 STAT. 898, 920 (1940). 

FN3  THE NATIONAL TRANSPORTATION POLICY, ADDED BY 54 STAT. 898, 899
(1940), 49 U.S.C.  PRECEDING SEC. 301, PROVIDES IN RELEVANT PART:  "IT
IS HEREBY DECLARED TO BE THE NATIONAL TRANSPORTATION POLICY OF THE
CONGRESS TO PROVIDE FOR FAIR AND IMPARTIAL REGULATION OF ALL MODES OF
TRANSPORTATION SUBJECT TO THE PROVISIONS OF THIS ACT, SO ADMINISTERED
AS TO RECOGNIZE AND PRESERVE THE INHERENT ADVANTAGES OF EACH; TO
PROMOTE SAFE, ADEQUATE, ECONOMICAL, AND EFFICIENT SERVICE AND FOSTER
SOUND ECONOMIC CONDITIONS IN TRANSPORTATION AND AMONG THE SEVERAL
CARRIERS; TO ENCOURAGE THE ESTABLISHMENT AND MAINTENANCE OF REASONABLE
CHARGES  ..  WIITHOUT  ..  UNNFAIR OR DESTRUCTIVE COMPETITIVE PRACTICES
..   -- ALL TO THE END OF DEVELOPING  ..  A  NATIONAL TRANSPORTATION
SYSTEM  .. ADEEQUATE TO MEET THE NEEDS OF THE COMMERCE OF THE UNITED
STATES, OF THE POSTAL SERVICE, AND OF THE NATIONAL DEFENSE.  ALL OF THE
PROVISIONS OF THIS ACT SHALL BE ADMINISTERED AND ENFORCED WITH A VIEW
TO CARRYING OUT THE ABOVE DECLARATION OF POLICY." 

FN4  SENATOR TRUMAN, A SENATE CONFEREE, SAID IN PRESENTING THE BILL: 

"SECTION 203, PARAGRAPHS (14) AND (15), HAVE BEEN REWRITTEN FOR THE
SOLE PURPOSE OF ELIMINATING CARRIERS PERFORMING PICK-UP, DELIVERY, AND
TRANSFER SERVICE.  THIS CHANGE WAS SUGGESTED BY THE CHAIRMAN OF THE
INTERSTATE COMMERCE COMMISSION. 

"THE CONFEREES WISH TO MAKE IT PLAIN THAT IT IS NOT THEIR INTENTION,
BY CHANGING THE LANGUAGE OF PARAGRAPHS (14) AND (15) OF SECTION 203 TO
CHANGE THE LEGISLATIVE INTENT OF THE CONGRESS ONE IOTA WITH RESPECT TO
DEFINITION OF COMMON AND CONTRACT CARRIERS OTHER THAN THOSE PERFORMING
PICK-UP, DELIVERY, AND TRANSFER SERVICE.  IT IS INTENDED THAT ALL OVER
THE-ROAD TRUCKERS SHALL WHENEVER POSSIBLE FALL WITHIN THE DESCRIPTION
OF COMMON CARRIERS. 

"IT IS INTENDED BY THE DEFINITION OF CONTRACT CARRIERS TO LIMIT THAT
GROUP  ..  .""  86 CONG. REC. 11546 (1940). 

FN5  BRACKETED NUMBERS ADDED FOR CONVENIENT REFERENCE.  ONLY THE
THIRD FACTOR AND SO MUCH OF THE FOURTH AS IS ITALICIZED ARE IN ISSUE
HERE.  THE COMMISSION CONSIDERED THE OTHERS, AND NO CHALLENGE IS MADE
TO ITS DISPOSITION OF THEM. 

FN6  SECTION 209(B) THEN EXCLUDED FROM THE LIMITATIONS THE COMMISSION
COULD IMPOSE, "THE RIGHT OF THE CARRIER TO SUBSTITUTE OR ADD CONTRACTS
WITHIN THE SCOPE OF THE PERMIT."  AS AMENDED AFTER CONTRACT STEEL, 71
STAT. 411, 412 (1957), THE SECTION EMPOWERS THE COMMISSION TO ATTACH
"TERMS, CONDITIONS AND LIMITATIONS RESPECTING THE PERSON OR PERSONS AND
THE NUMBER OR CLASS THEREOF FOR WHICH THE CONTRACT CARRIER MAY PERFORM
TRANSPORTATION SERVICE, AS MAY BE NECESSARY TO ASSURE THAT THE BUSINESS
IS THAT OF A CONTRACT CARRIER AND WITHIN THE SCOPE OF THE PERMIT  ..
."  

FN7  SURFACE TRANSPORTATION - SCOPE OF AUTHORITY OF I.C.C. - HEARINGS
BEFORE THE SUBCOMMITTEE ON SURFACE TRANSPORTATION OF THE SENATE
COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE, 85TH CONG., 1ST SESS. 23
(1957)(HEREINAFTER CITED AS SENATE HEARINGS). 

FN8  S. 1384 IS PRINTED AT SENATE HEARINGS 6. 

FN9  THE ONLY OTHER LIGHT SHED ON THE SIGNIFICANCE OF THE DELETIONS
IS FURNISHED IN A COLLOQUY IN THE COURSE OF THE HEARINGS: 

"SENATOR SCHOEPPEL.  I WOULD LIKE TO ASK A QUESTION RIGHT THERE:
SUPPOSING YOU HAD A COMMON CARRIER SERVING CERTAIN TERRITORY BUT WASN'T
FURNISHING ADEQUATE SERVICE.  THERE WAS COMMON CARRIER SERVICE THERE,
BUT OF A VERY LIMITED NATURE, AND WITH THE MODE AND EXTENT OF DOING
BUSINESS NOWADAYS WOULD YOU DRAW THE LINE THERE THAT THE COMMON CARRIER
HAD TO FURNISH REASONABLY ADEQUATE AND PROMPT SERVICE?" 

"MR. ROTHSCHILD (FROM THE DEPARTMENT OF COMMERCE, DEFERRED SPECIFIC
ANSWER AND THEN REPLIED).  THEY SHOULD NOT BE ABLE TO DENY THE
APPLICATION OF A COMMON CARRIER SIMPLY BECAUSE SOMEONE CLAIMS THAT
THERE IS COMMON CARRIER SERVICE THERE."  SENATE HEARINGS 200-201, 203. 

WHAT WEIGHT, IF ANY, SHOULD BE ACCORDED THIS EXPLORATORY SPECULATION
BETWEEN A SINGLE SUBCOMMITTEE MEMBER AND A REPRESENTATIVE OF A
GOVERNMENT DEPARTMENT HAVING NO INTIMATE FAMILIARITY WITH PRIOR
ADMINISTRATIVE PRACTICE, IS PROBLEMATICAL.  EVEN GIVING IT THE FULLEST
SIGNIFICANCE IT CAN BEAR, HOWEVER, THE MOST THAT EMERGES IS THIS:  WHEN
A CONTRACT CARRIER APPLIES FOR A PERMIT, IT IS NOT ENOUGH FOR A
PROTESTANT TO SHOW THAT IT HAS AUTHORITY TO TRANSPORT THE PROPOSED
TRAFFIC.  IT MUST SHOW ALSO THAT IT HAS THE CAPACITY AND WILLINGNESS TO
DO SO, AND THE COMMISSION MUST BE SATISFIED FROM ALL THE EVIDENCE THAT,
IN SENATOR SCHOEPPEL'S WORDS, THE SERVICE IT CAN PERFORM IS "REASONABLY
ADEQUATE" TO MEET THE SHIPPER'S NEEDS.  BUT THIS, IT WILL BE SEEN, IS
PRECISELY THE PROCEDURE THAT THE COMMISSION HAD INVARIABLY FOLLOWED
FROM 1935 TO 1957. 

FN10  THE STATEMENT MAY BE DEEMED LACKING IN DETAIL IN NOT EXPLICITLY
CONSIDERING THE FIVE CRITERIA IN SEC. 209(B), WHICH BECAME EFFECTIVE IN
ITS AMENDED FORM ON AUGUST 22, 1957, AFTER THE APPLICATION HAD BEEN
HEARD BUT BEFORE DIVISION 1'S ORDER WAS ISSUED.  SEE ZIFFRIN, INC., V.
UNITED STATES, 318 U.S. 73, 78.  THE FINAL ORDER OF THE FULL COMMISSION
MADE THE DETAILED FINDINGS, HOWEVER, SO THAT THE QUESTION NEED NOT
DETAIN US. 

FN11  THE EVIDENCE SHOWED THAT THE TOTAL WEIGHT OF THE HAUL WAS ABOUT
5,500 POUNDS (R. 92), AND THE TRAILER PROPOSED BY U.S.A.C. HAD A
CAPACITY OF 24,000 POUNDS.  (PROTESTANT'S EXHIBIT NO. 15, R. 147; R.
112.) 

FN12  J-T'S APPLICATION WAS SUPPORTED BECAUSE "  ..  WEE RECOGNIZED
THAT THE CONTRACT CARRIER CAN DEDICATE EQUIPMENT TO OUR SERVICE, THE
TYPE OF EQUIPMENT THAT WE WANT, AND WE FEEL THAT ON THIS TYPE OF A
TRANSPORTATION IT IS THE BEST THING TO HAVE THE EQUIPMENT SOLELY
DEDICATED TO OUR USE."  (R. 89.) 

IT DID NOT CHOOSE A COMMON CARRIER "BECAUSE THE COMMON CARRIER CANNOT
DEDICATE HIS EQUIPMENT EXCLUSIVELY TO OUR SERVICE AS A CONTRACT CARRIER
CAN."  (R. 97.) 

AGAIN:  "IT IS MY UNDERSTANDING THAT A COMMON CARRIER CANNOT DEDICATE
EQUIPMENT TO A PARTICULAR SHIPPER, THAT HE HOLDS HIMSELF OUT TO FURNISH
THAT EQUIPMENT TO ANY SHIPPER THAT WANTS IT."  (R. 103.) 

THIS WAS OF COURSE AN ERRONEOUS UNDERSTANDING, AS COMMISSION
PRECEDENTS DEMONSTRATE.  A COMMON CARRIER MUST HOLD ITSELF OUT THROUGH
ITS TARIFFS TO SERVE ANY SHIPPER WHO DESIRES THE SAME CLASS OF TRAFFIC,
BUT IT MAY SPECIALIZE AS MUCH AS A CONTRACT CARRIER DOES AND MAY
DEDICATE EQUIPMENT TO THE USE OF ANY ONE SUCH SHIPPER.  WHEN U.S.A.C.
OFFERED TO DO SO, IT WAS A REASONABLE CONCLUSION THAT THE SHIPPER'S
PARTICULAR NEEDS HAD BEEN MET. 

FN13  NOR IS THE HOLDING IN THE SCHAFFER CASE OF ANY AID TO THE
APPELLEES.  THE COURT HELD THAT A COMMON-CARRIER APPLICANT COULD NOT BE
DENIED A CERTIFICATE ON THE GROUNDS OF EXISTING RAIL SERVICE, WITHOUT A
FINDING WHETHER THE "INHERENT ADVANTAGES" OF MOTOR TRANSPORT SHOULD
WARRANT THE GRANT.  SUCH A FINDING WAS THOUGHT NECESSARY TO CONFORM TO
THE DICTATES OF THE NATIONAL TRANSPORTATION POLICY, THE COURT DECLARING
THAT: 

"TO REJECT A MOTOR CARRIER'S APPLICATION ON THE BARE CONCLUSION THAT
EXISTING RAIL SERVICE CAN MOVE THE AVAILABLE TRAFFIC, WITHOUT REGARD TO
THE INHERENT ADVANTAGES OF THE PROPOSED SERVICE, WOULD GIVE ONE MODE OF
TRANSPORTATION UNWARRANTED PROTECTION FROM COMPETITION FROM OTHERS." 
355 U.S., AT 90-91. 

ON 91-92, THE COURT RECOGNIZED THAT THESE CONSIDERATIONS DID NOT
NECESSARILY PERTAIN TO APPLICATIONS OPPOSED BY OTHER MOTOR CARRIERS. 
THE COMMISSION HAS HELD IN THESE PROCEEDINGS THAT MOTOR COMMON AND
CONTRACT CARRIERS ARE NOT DIFFERENT "MODES" OF TRANSPORTATION, 79
M.C.C., AT 710, AND ITS EXPERT CONCLUSION IS ENTITLED TO GREAT WEIGHT. 
INDEED, THE WHOLE HISTORY OF MOTOR CARRIER REGULATION NEGATES ANY
SUGGESTION THAT CONGRESS HAS BEEN INTERESTED IN PRESERVING COMPETITION
BETWEEN THE DIFFERENT CLASSES OF MOTOR CARRIERS. 

MR. JUSTICE FRANKFURTER, WHOM MR. JUSTICE HARLAN AND MR. JUSTICE
STEWART JOIN, CONCURRING IN PART.* 

*(THIS OPINION APPLIES ONLY TO NO. 49, ATCHISON, TOPEKA & SANTA FE R.
CO. V. REDDISH, NO. 53, INTERSTATE COMMERCE COMMISSION V. REDDISH, AND
NO. 54, ARKANSAS-BEST FREIGHT SYSTEM, INC., V. REDDISH.) 

THESE ARE APPEALS FROM THE JUDGMENT OF A DISTRICT COURT SETTING ASIDE
AN ORDER OF THE INTERSTATE COMMERCE COMMISSION DENYING AN APPLICATION
FOR A CONTRACT-CARRIER PERMIT.  THE APPLICATION SOUGHT AUTHORITY TO
TRANSPORT CANNED GOODS UNDER CONTINUING CONTRACTS WITH THREE ARKANSAS
CANNING COMPANIES TO POINTS IN 33 STATES AND TO RETURN FROM THOSE
POINTS WITH CANNED GOODS AND CANNING MATERIALS SUCH AS CANS, LIDS, AND
CORRUGATED BOXES.  IT WAS OPPOSED BY TWO GROUPS OF RAILROADS, ONE MOTOR
CONTRACT CARRIER AND 25 MOTOR COMMON CARRIERS, AUTHORIZED TO UNDERTAKE
TRANSPORTATION IN THE TERRITORY PROPOSED. 

THE TRIAL EXAMINER'S RECITATION OF FACTS, AS ADOPTED BY THE
COMMISSION, MAY BE BRIEFLY SUMMARIZED.   EACH OF THE SUPPORTING
SHIPPERS DOES A SUBSTANTIAL VOLUME OF BUSINESS WITH SMALL-LOT
PURCHASERS.  THESE CUSTOMERS MAINTAIN LOW INVENTORIES, NECESSITATING A
TRANSPORTATION SERVICE CAPABLE OF EFFECTING MULTIPLE PICKUPS AND
DELIVERIES ON SHORT NOTICE.  EACH SHIPPER HAS ENGAGED IN PRIVATE
CARRIAGE FOR THIS PURPOSE, SENDING ONLY SINGLE-LOT FULL TRUCKLOADS BY
COMMON CARRIER.  THE STEELE CANNING COMPANY'S PRIVATE EQUIPMENT WAS
FURNISHED IN PART THROUGH A LEASE OF THE APPLICANT'S TRUCKS.   WHEN A
STRIKE OF ITS DRIVERS OCCURRED, IT SOUGHT TO CONTRACT WITH THE
APPLICANT FOR ITS INDEPENDENT SERVICES.  THE OTHER SHIPPERS, WHO BEFORE
THE STRIKE SOLD MUCH OF THEIR GOODS THROUGH STEELE, NOW WISH TO EXPAND
THEIR SALES TO INDIVIDUAL CUSTOMERS AND DESIRE THE SAME TYPE OF SERVICE
FROM THE APPLICANT.    UNDER ITS TEMPORARY AUTHORITY, THE APPLICANT HAS
BEEN OFFERING SEVERAL STOPS IN TRANSIT AT THE TRUCKLOAD RATE, AND
ASSESSING NO STOP-IN-TRANSIT CHARGE, THUS RENDERING IN EFFECT A LESS
THAN-TRUCKLOAD SERVICE AT TRUCKLOAD RATES. 

EXISTING MOTOR CARRIERS POSSESS THE AUTHORITY AND EQUIPMENT TO
PROVIDE SERVICE TO A SUBSTANTIAL NUMBER OF THE POINTS INVOLVED, EITHER
DIRECTLY OR BY JOINT-LINE OPERATIONS.  ALTHOUGH FEW HAVE PREVIOUSLY
PARTICIPATED IN THIS PARTICULAR TRANSPORTATION, EACH DISPLAYS A DESIRE
TO OBTAIN THE TRAFFIC; SO DO THE PROTESTING RAILROADS, WHICH HAVE
RECENTLY EXPERIENCED A SHARP DECLINE IN CANNED-GOODS TONNAGE.  THE
MOTOR CARRIERS ARE WILLING AND ABLE TO PROVIDE MULTIPLE PICKUPS AND
DELIVERIES WHERE AUTHORIZED. 

THE SHIPPERS ASSERTED A PREFERENCE FOR THE APPLICANT'S SERVICES ON
TWO SPECIFIC GROUNDS.  FIRST, THEY CONTENDED THAT EXISTING CARRIERS
WERE UNABLE TO FURNISH MULTIPLE PICKUP AND DELIVERY SERVICE WITH
SUFFICIENT EXPEDITION.  SECOND, THEY MAINTAINED THAT THE LESS-THAN
TRUCKLOAD RATES CHARGED BY COMMON CARRIERS WERE PROHIBITIVE IN LIGHT OF
THE SMALL PROFIT FROM A CANNED-GOODS SHIPMENT ALLOWED BY COMPETITIVE
CONDITIONS.  ACCORDINGLY, THEY ASSERTED THAT, IF THE PERMIT WERE
DENIED, THEY WOULD RESORT TO PRIVATE CARRIAGE. 

ON THE FIRST POINT, THE COMMISSION CONCLUDED THAT THE TYPE OF SERVICE
REQUIRED BY THE SHIPPERS WAS NOT SUBSTANTIALLY DIFFERENT FROM THAT
OFFERED BY AVAILABLE MOTOR COMMON CARRIERS.  ITS TREATMENT OF THE THIRD
AND FOURTH CRITERIA IN SEC. 209(B) OF PART II OF THE INTERSTATE
COMMERCE ACT, ADDED BY 71 STAT. 411 (1957), 49 U.S.C. SEC. 309(B), A
TREATMENT ATTACKED AND INVALIDATED IN THE DISTRICT COURT, WAS ANIMATED
BY THE SAME POLICY PREFERENCE FOR PRESERVING AVAILABLE COMMON CARRIAGE
THAT CHARACTERIZED ITS DISPOSITION OF THE J-T TRANSPORT APPLICATION,
REVIEWED HERE TODAY, ANTE, P. 81.  THE PERTINENT PORTION OF ITS REPORT
IS AS FOLLOWS: 

"ASIDE FROM EVIDENCE PERTAINING TO RATES, THE RECORD IS DEVOID OF ANY
SUBSTANTIAL SHOWING OF DISSATISFACTION ON THE PART OF THE SHIPPERS WITH
EXISTING SERVICE.  COMPLAINTS ABOUT JOINT-LINE SERVICE, SLOW TRANSIT
TIME, AND INABILITY TO ARRANGE MULTIPLE PICKUPS AND DELIVERIES ARE OF A
GENERAL NATURE, AND ARE NOT SUBSTANTIATED BY REFERENCE TO SPECIFIC
INSTANCES.  ALTHOUGH PROTESTANT MOTOR CARRIERS, ESPECIALLY THOSE
OPERATING OVER REGULAR ROUTES, MAY BE HINDERED IN SOME INSTANCES BY
THEIR AUTHORITIES AND THE NATURE OF THEIR OPERATIONS FROM ACHIEVING
COMPLETE FLEXIBILITY IN EFFECTING MULTIPLE PICKUPS AND DELIVERIES, THE
SUPPORTING SHIPPERS HAVE FAILED TO SHOW THAT THEY HAVE BEEN UNABLE TO
OBTAIN REASONABLY ADEQUATE SERVICE UPON REQUEST  ..  .   IN THE ABSENCE
OF A MORE POSITIVE SHOWING THAT EXISTING SERVICE WILL NOT MEET
SHIPPER'S REASONABLE TRANSPORTATION NEEDS, WE ARE NOT WARRANTED IN
FINDING THAT A NEW SERVICE SHOULD BE AUTHORIZED OR THAT THE SUPPORTING
SHIPPERS WILL BE ADVERSELY AFFECTED BY A DENIAL OF THIS APPLICATION." 
81 M.C.C. 35, 41-42 (1959). 

THIS CONCLUSION WAS ATTACKED AND SET ASIDE IN THE DISTRICT COURT ON
MUCH THE SAME GROUNDS AS THOSE LEADING TO A SIMILAR RESULT IN THE J-T
TRANSPORT CASE, SUPRA.  LITTLE NEED BE ADDED HERE TO WHAT I SAID
THERE.  SUFFICE IT TO SAY THAT THE COMMISSION MADE THE FINDINGS
REQUIRED OF IT BY SEC. 209(B) AND THAT EACH WAS SUPPORTED BY
SUBSTANTIAL EVIDENCE.  ALTHOUGH ITS EVALUATION OF THOSE FINDINGS AND
THE CONCLUSION THAT IT DREW FROM THEM (FN1) MAY BE DIFFERENT FROM THOSE
WE MIGHT HAVE REACHED WERE WE ON THE COMMISSION, IT IS NOT FOR A
REVIEWING COURT TO UPSET THE COMMISSION'S INFORMED JUDGMENT ON THE
FACTORS IT HAS BEEN ASKED BY CONGRESS TO CONSIDER.  UNITED STATES V.
PIERCE AUTO LINES, 327 U.S. 515, 535-536; BASS V. UNITED STATES, 163 F.
SUPP. 1, 4 (W.D. VA. 1958), AFF'D PER CURIAM, 358 U.S. 333; AND SEE
SECRETARY OF AGRICULTURE V. CENTRAL ROIG REF. CO., 338 U.S. 604. 

THERE IS, HOWEVER, AN ADDITIONAL ISSUE IN THIS CASE THAT
DIFFERENTIATES IT FROM J-T TRANSPORT, SUPRA.  IT IS WHETHER THE
COMMISSION IS REQUIRED IN AN APPLICATION PROCEEDING TO CONSIDER
EVIDENCE THAT THE RATES OF AVAILABLE COMMON CARRIERS ARE SO HIGH AS TO
MAKE TRANSPORTATION COSTS PROHIBITIVE FOR A SUPPORTING SHIPPER. 

BEFORE REACHING THAT ISSUE, IT IS NECESSARY TO DISPOSE OF A
CONTENTION THAT PREVAILED IN THE DISTRICT COURT AND IS PRESSED HERE,
THAT THE COMMISSION MUST CONSIDER IN EVERY APPLICATION EVIDENCE OF MERE
RATE ADVANTAGES RESULTING FROM ECONOMIES INHERENT IN CONTRACT-CARRIER
OPERATIONS.  SECTION 209(B) MAKES NO SUCH REQUIREMENT. 

IN SCHAFFER TRANSP.  CO. V. UNITED STATES, 355 U.S. 83, 91-92, WE
RECOGNIZED AND IMPLIEDLY APPROVED THE LONGSTANDING COMMISSION PRACTICE
OF IGNORING RATE ADVANTAGES OFFERED BY AN APPLICANT OVER AVAILABLE
MOTOR CARRIERS.  THE COMMISSION HAS CONSISTENTLY RULED THAT A SHIPPER
DISSATISFIED WITH EXISTING COMMON-CARRIER RATES CANNOT ON THAT GROUND
ALONE SUCCESSFULLY SUPPORT AN APPLICATION FOR A CONTRACT-CARRIER
PERMIT, AND THAT ITS REMEDY LIES IN ATTACKING THE RATES UNDER SEC. 216
OF THE ACT.  SEE, E.G., DIXON & KOSTER CONTRACT CARRIER APPLICATION, 32
M.C.C. 1, 4 (1942); JAMES F. BLACK EXTENSION OF OPERATIONS -
PREFABRICATED HOUSES, 48 M.C.C.  695, 708-709 (1948); JOSEPH POMPROWITZ
EXTENSION - PACKING HOUSE PRODUCTS, 51 M.C.C. 343, 350 (1950).  THAT IS
WHAT IT RULED IN THIS CASE, SEE 81 M.C.C., AT 42-43. 

THIS CONSISTENT COMMISSION PRACTICE RESTS ON RELEVANT TRANSPORTATION
POLICY CONSIDERATIONS.  IF RATE ADVANTAGES RESULTING FROM INHERENT
ECONOMIES WERE MADE A DETERMINING FACTOR, THE COMMISSION WOULD HAVE TO
PERMIT PROTESTANTS TO CHALLENGE THE COST JUSTIFICATION OF AN
APPLICANT'S PROPOSED RATES.  THIS THE COMMISSION HAS NEVER PERMITTED,
SEE OMAHA & C.B.R.  & BRIDGE CO. COMMON CARRIER APPLICATION, 52 M.C.C.
207, 234-235 (1950), LARGELY BECAUSE AT THE APPLICATION STAGE THERE IS
AS YET NO REVEALING RECORD OF PROFIT OR LOSS DERIVED FROM THE PROPOSED
TRANSPORTATION SERVICE, (FN2) AND ITS REFUSAL HAS BEEN JUDICIALLY
APPROVED.  RAILWAY EXPRESS AGENCY V. UNITED STATES, 153 F. SUPP. 738,
741 (S.D.N.Y. 1957), AFF'D PER CURIAM, 355 U.S. 270; SEE AMERICAN
TRUCKING ASSNS.  V. UNITED STATES, 326 U.S. 77, 86-87. 

MORE FUNDAMENTALLY, IT MISCONCEIVES THE OBJECT OF CONGRESSIONAL MOTOR
CARRIER REGULATION TO MAINTAIN THAT THE COMMISSION MUST IN APPLICATION
PROCEEDINGS RESPECT INHERENT COST ADVANTAGES OF CONTRACT AS AGAINST
COMMON CARRIERS.  THEY ARE NOT DIFFERENT "MODES" OF TRANSPORTATION
WITHIN THE MEANING OF THE NATIONAL TRANSPORTATION POLICY, AND CONGRESS
HAS NOT BEEN CONCERNED WITH MAINTAINING COMPETITION BETWEEN THEM AS IT
HAS BEEN, FOR EXAMPLE, BETWEEN RAILROAD AND MOTOR CARRIERS.  COMPARE
SCHAFFER TRANSP.  CO. V. UNITED STATES, 355 U.S. 83.  THE COMMISSION IS
SPECIFICALLY ADMONISHED, IN SEC. 218(B) OF THE ACT, NOT TO PRESCRIBE
MINIMUM RATES THAT GIVE CONTRACT CARRIERS AN UNDUE COMPETITIVE
ADVANTAGE OVER COMMON CARRIERS. 

IN RATE PROCEEDINGS, HOWEVER, THE COMMISSION HAS CONSTRUED THIS
EXISTING, PREVIOUSLY AUTHORIZED CONTRACT CARRIERS EVEN THOUGH THEY MAY
DRAW AWAY A LARGE VOLUME OF TRAFFIC FROM COMMON CARRIERS.  NEW ENGLAND
MOTOR RATE BUREAU V. LEWERS, 30 M.C.C. 651 (1941).  ONCE GRANTED A
PERMIT, THEREFORE, A CONTRACT CARRIER MAY EXPLOIT ITS INHERENT COST
ADVANTAGES TO THE GREAT DETRIMENT OF EXISTING COMMON CARRIERS.  IN
DETERMINING TO IGNORE THOSE COST ADVANTAGES IN AN APPLICATION
PROCEEDING, THE COMMISSION ACTS WELL WITHIN ITS AUTHORITY TO EFFECTUATE
THE CONGRESSIONAL POLICY OF LIMITING ENTRANCE TO CONTRACT CARRIAGE AS A
MEANS OF PRESERVING THE CAPACITY OF AVAILABLE COMMON CARRIERS TO MEET
THE NATION'S TRANSPORTATION NEEDS. 

THAT POLICY IS UNAFFECTED BY THE 1957 AMENDMENTS TO SECS. 203(A)(15)
AND 209(B).  THERE IS NOT ONE REFERENCE TO RATES IN THE LEGISLATIVE
HISTORY OF THOSE AMENDMENTS.  IF ANYTHING, THE ACTION OF THE 1957
CONGRESS LOOKS THE OTHER WAY; SEC. 218(A) WAS AMENDED, BY 71 STAT. 343,
49 U.S.C. SEC. 318(A), TO REQUIRE THE FILING OF ACTUAL RATHER THAN
MINIMUM CONTRACT-CARRIER RATES, SO AS TO ELIMINATE A COMPETITIVE
DISADVANTAGE OF COMMON CARRIERS. 

THE RIGHT OF THE COMMISSION TO DISREGARD RATE ADVANTAGES AS SUCH IN
APPLICATION PROCEEDINGS DOES NOT, HOWEVER, DISPOSE OF THIS CASE.  FOR
THE TESTIMONY AND ARGUMENTS PRESENTED TO THE COMMISSION FAIRLY RAISED
THE CLAIM THAT THE AVAILABLE COMMON CARRIER RATES, WHETHER OR NOT JUST
AND REASONABLE IN RELATION TO TRANSPORTATION COSTS, WERE PROHIBITIVE
FOR THE SHIPPERS.  IF THIS CLAIM WERE SUSTAINED BY THE COMMISSION, IT
IS DIFFICULT TO SEE HOW IT COULD AVOID THE CONCLUSION THAT A DENIAL OF
THE PERMIT WOULD HOBBLE THE SHIPPER WITHOUT BENEFITING PROTESTANTS BY
POTENTIALLY AUGMENTING THEIR TRAFFIC. 

THE COMMISSION HAS IN FACT RECOGNIZED WHAT IT STYLES AN "EMBARGO"
EXCEPTION TO ITS USUAL PRACTICE OF DISREGARDING THE LEVEL OF RATES
CHARGED BY EXISTING CARRIERS.  SEE H.L.&F.  MCBRIDE EXTENSION - OHIO,
62 M.C.C. 779, 790 (1954).  IN HERMAN R. EWELL EXTENSION -
PHILADELPHIA, 72 M.C.C. 645, 648 (1957), THE COMMISSION TREATED A
SHIPPER'S CLAIM SIMILAR TO THE PRESENT ONE IN A MANNER RELEVANT TO OUR
PROBLEM. 

"THE PRESENT RECORD DOES NOT SHOW ANY EFFORT BY THE CARRIERS TO
HANDLE WITH THE SHIPPER ITS CLAIM THAT THEIR RATES ARE PROHIBITIVE. 
SUGAR IS A RELATIVELY INEXPENSIVE COMMODITY WHICH SELLS AT PRICES
WHICH, COMPARED TO PREWAR PRICES, DO NOT APPEAR TO HAVE INCREASED
PERCENTAGEWISE TO THE SAME EXTENT AS MOST OTHER COMMODITIES.  IT
APPEARS NOT IMPROBABLE THAT THE MARGIN OF PROFIT THEREON IS SO NARROW
THAT THE TRAFFIC WILL NOT MOVE EXCEPT AT RATES LOWER THAN OTHER
COMMODITIES CUSTOMARILY MOVED IN TANK-TRUCK EQUIPMENT.  IT MAY BE THAT
PROTESTANT'S RATES, THOUGH NOT INTRINSICALLY UNREASONABLE FROM A
STANDPOINT OF COST OR COMPARED TO OTHER BULK LIQUID RATES, ARE STILL
TOO HIGH TO MOVE THIS PARTICULAR TRAFFIC.  AND IT MAY BE THAT
PROTESTANTS ARE WITHIN THEIR RIGHTS IN THE EXERCISE OF THEIR MANAGERIAL
DISCRETION IN REFUSING ANY REDUCTION EVEN AT THE COST OF LOSING THE
TRAFFIC BUT, IF SO, THEY SHOULD AT LEAST HAVE NEGOTIATED WITH THE
SHIPPERS TO THE POINT OF MAKING THEIR POSITIONS CLEAR.  THEIR FAILURE
TO DO SO INDICATES EITHER DECISION TO FOREGO THE TRAFFIC EXCEPT AT
THEIR PRESENT RATES OR A LACK OF INTEREST IN IT AT RATES AT WHICH IT
CAN MOVE. 

"WITHOUT DEPARTING FROM THE GENERAL PROPOSITION THAT THE
REASONABLENESS OF RATES IS NOT AN ISSUE IN PUBLIC CONVENIENCE AND
NECESSITY PROCEEDINGS, AND THAT IF RATES ARE TOO HIGH AN ADEQUATE
REMEDY IS AVAILABLE UNDER SECTION 216 OF THE INTERSTATE COMMERCE ACT,
WE CONCLUDE THAT AUTHORITY SHOULD BE GRANTED HERE  ..  .  PROTESTANTS'
RATES HAVE NOT AND WILL NOT MOVE THE TRAFFIC; AND TO THIS EXTENT THE
AVAILABLE MOTOR SERVICE IS INADEQUATE TO MEET THE SHIPPER'S
REQUIREMENTS.  PROTESTANTS, NEVER HAVING HANDLED THE TRAFFIC, WILL NOT
BE ADVERSELY AFFECTED BY THIS ACTION." 

IN THE EWELL PROCEEDING, THERE WAS EVIDENCE THAT THE EXISTING RATES
WERE TWO TO THREE TIMES AS HIGH AS THOSE PROPOSED BY THE APPLICANT,
THAT THE SHIPPER WOULD HAVE TO "ABSORB" ABOUT $200 ON EACH 30,000-POUND
SHIPMENT, AND THAT IT HAD ASKED EXISTING CARRIERS TO ADJUST THEIR RATES
WITHOUT RESULT.   SIMILAR EVIDENCE WAS PRESENTED IN THE PRESENT
PROCEEDING.  THE REPRESENTATIVE OF THE STEELE CANNING COMPANY TESTIFIED
THAT, IN NUMEROUS DISCUSSIONS WITH PROTESTANT CARRIERS, IT HAD LEARNED
THAT THEIR LESS-THAN-TRUCKLOAD RATES WERE TWO AND THREE TIMES AS HIGH
AS THE TRUCKLOAD RATES PROPOSED BY THE APPLICANT, AND THAT THESE RATES
WOULD DRIVE ITS CANNED GOODS OUT OF THE COMPETITIVE MARKET.  WHETHER
THIS TESTIMONY WAS SPECIFIC AND PERSUASIVE ENOUGH TO ESTABLISH THAT THE
TRAFFIC WOULD NOT MOVE AT EXISTING RATES WE DO NOT KNOW, FOR THE
COMMISSION MADE NO FINDING ON THIS ISSUE.  COMPARE SCHIRMER TRANSP. 
CO., INC., EXTENSION - MOLASSES, 77 M.C.C. 240, 242 (1958).  UNTIL IT
DOES, WE ARE UNABLE TO EXERCISE OUR REVIEWING FUNCTION OF ENSURING THAT
THE COMMISSION STAYS WITHIN ITS STATUTORY AUTHORITY AND DOES NOT ACT
ARBITRARILY.  CF. FLORIDA V. UNITED STATES, 282 U.S. 194, 214-215. 

I WOULD VACATE THE JUDGMENT OF THE DISTRICT COURT AND REMAND THE CASE
TO THE COMMISSION FOR A CONSIDERED DETERMINATION WHETHER THE RATES OF
PROTESTANT MOTOR CARRIERS ARE PROHIBITIVE.  THE SCOPE OF INQUIRY SHOULD
BE STRICTLY LIMITED.  THE COMMISSION NEED NOT ENGAGE IN A FULL-DRESS
RATE PROCEEDING TO DETERMINE WHETHER PRESENT MOTOR-CARRIER RATES ARE
UNJUST OR UNREASONABLE.  IT NEED ONLY FIND, FROM THE EVIDENCE OF RECORD
OR ADDITIONAL EVIDENCE THAT IT DEEMS NECESSARY, WHETHER THOSE RATES
IMPOSE AN EMBARGO ON THE SHIPPERS' GOODS. 

FN1  THE COMMISSION HAS CONSISTENTLY RULED THAT A JOINT-LINE
TRANSPORTATION SERVICE IS NOT INADEQUATE TO MEET A SHIPPER'S NEEDS. 
SEE CASES COLLECTED IN HALE & HALE, COMPETITION OR CONTROL III:  MOTOR
CARRIERS, 108 U. PA. L. REV. 775, 783 N. 24 (1960). 

FN2  THUS IN THE PRESENT CASE THE APPLICANT SUBMITTED A BALANCE SHEET
BUT NO INCOME STATEMENT (R. 31).



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