ICC v. J-T Transport Co., 368 U.S. 81 (1961)
ICC v. J-T Transport Co., 368 U.S. 81 (1961)
81
82 S.Ct. 216
7 L.Ed.2d 147
On appeals from the United States District Court for the Western District
of Missouri.
[Syllabus from pages 81-82 intentionally omitted]
B. Franklin Taylor, Jr., Washington, D.C., for appellant in No. 17.
Roland Rice for appellants in No. 18.
Richard A. Solomon, Washington, D.C., for appellee United States, in
both cases.
James W. Wrape, Memphis, Tenn., for appellee J-T Transp. Co., Inc., in
both cases.
Nos. 49, 53, 54:
Robert W. Ginnane, Washington, D.C., for appellant in No. 53.
Roland Rice for appellants in Nos. 49 and 54.
Richard A. Solomon, Washington, D.C., for appellee United States in all
three cases.
A. Alvis Layne, Washington, D.C., for remaining appellees in all three
cases.
Reddish showed that he delivered to customers who ordered goods in less-thantruckload amounts. These customers maintained low inventories and needed
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, 76 S.Ct.
461, 100 L.Ed. 482, 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.1 It proposed that 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 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.'
service 'not provided by common carriers.' The change in 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.
8
'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.)
10
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.' 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 carriersa
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 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.
11
We cannot assume that Congress, in amending the statute, intended to adopt the
administrative construction which prevailed prior to the amendment.
12
13
14
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
16
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.'
17
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, 78 S.Ct. 173, 2 L.Ed.2d 117, 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, 49 U.S.C.A. note preceding section 1. 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 Act6 'the Commission's guide' to the public interest. McLean Trucking
Co. v. United States, 321 U.S. 67, 82, 64 S.Ct. 370, 378, 88 L.Ed. 544. 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
ExtensionPhiladelphia, 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.
18
We agree with the court in the JT 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. 203(a)(15). And 'the changing character' of the shipper's
'requirements' is a factor to be weighed before denying the application.
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 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.
19
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, 78 S.Ct. 796, 799, 2 L.Ed. 886;
United States v. United States Smelting Co., 339 U.S. 186, 193, 70 S.Ct. 537,
542, 94 L.Ed. 750.
20
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, 1517, 80
S.Ct. 1570, 1578, 1579, 4 L.Ed.2d 1527. Accordingly the judgments below are
affirmed.
21
Affirmed.
22
Mr. Justice FRANKFURTER, whom Mr. Justice HARLAN and Mr. Justice
STEWART join, dissenting.
23
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 203(a)(15) and
209(b) of the Interstate Commerce Act, 49 U.S.C. 303(a)(15), 309(b), 49
U.S.C.A. 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 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 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.
24
I.
25
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
27
'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 county. * * *
28
'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.
29
30
31
32
'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 * * *.'
33
34
'* * * that 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) * * *.'
35
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 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:
36
'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. * * *
37
'This principle is inherent in the Motor Carrier Act, 1935. The underlying
purpose is plainly to promote and protect adequate and efficient commoncarrier service by motor vehicle in the public interest, and the regulation of
contract carriers is designed and confined with that end in view. * * *
38
'* * * 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).
39
After reciting the relative freedom from regulation enjoyed by contract carriers,
the Commission concluded, in terms peculiarly appropriate to the present
controversy:
40
II.
41
42
'We think that, in order to foster sound economic conditions in the motorcarrier 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.'
43
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.
44
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.
45
Eastern Shore Oil Co. Contract Carrier Application, 7 M.C.C. 173, 175176
(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.
47
48
49
'* * * might 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.)
51
This, it will be seen, is an almost literal paraphrase of what later emerged as the
1957 amendment to 203(a)(15).
52
53
54
In resolving the issue, the Commission foresaw the essentials of the third and
fourth criteria now explicitly commended to their consideration by Congress in
209(b):
56
57
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:
58
59
60
62
'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. * * * (N)or 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.)
63
64
66
67
68
'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) * * *
under continuing contracts with one person or a limited number of persons
either (a) for the furnishing of tranportation services through the assignment of
motor vehicles for a continuing period of time to the exclusive use of each
70
'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.'5
71
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 203(a)(15).
72
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, 49 S.Ct. 52,
53, 73 L.Ed. 170; United States v. American Trucking Ass'ns, 310 U.S. 534,
542550, 60 S.Ct. 1059, 10631067, 84 L.Ed. 1345. 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, 77 S.Ct. 779, 782, 1
L.Ed.2d 765, 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,
73 S.Ct. 227, 229, 97 L.Ed. 260.
73
fortunately, it is not hard to find, for the Court itself exposed it in United States
v. Contract Steel Carriers, 350 U.S. 409, 76 S.Ct. 461, 100 L.Ed. 482. 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 209(b)
as it was then written6 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, 76
S.Ct. at 463.
74
75
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), U.S.Code
Cong. & Adm.News 1957, p. 1599. 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:
76
77
'The decision of the Supreme Court clearly means that the Congress should do
something to correct the situation.' 103 Cong.Rec. 14035, 14036 (1957).
78
The 'more precise definition of contract carriage' in the resulting 203(a) (15)
78
The 'more precise definition of contract carriage' in the resulting 203(a) (15)
was plainly intended to restrict the opportunities of contract carriers, not to
enhance them.
79
To be sure, the addition of the five criteria for Commission consideration in the
amendment to 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:
80
'(T)he 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 carrierthey do that in each and every casebut 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.
81
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:
82
'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.
83
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, 394395, 71 S.Ct. 745, 750 751, 95 L.Ed. 1035, these statements
should leave no doubt that the addition of the five criteria to 209(b) worked
no change in the Commission's long-standing practice of preferring available
common carriers to contract-carrier applicants.
84
85
86
Furthermore, the very same session of Congress that passed the amendments
here in issue also amended 218(a), by 71 Stat. 343 (1957), 49 U.S.C.
318(a), 49 U.S.C.A. 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. 168169 (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
'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.
88
89
V.
90
91
VI.
92
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 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 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.
93
There remain three further grounds on which the District Court invalidated the
Commission's order.
94
(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.
95
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 commoncarrier 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.10 On reconsideration by the full Commission, a statement of like
purport was made: '(W)e cannot find that existing service has been shown to be
inadequate.' 79 M.C.C. 695, 709 (1959).
96
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.
97
98
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 he
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,
99
'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.'
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 JT was in actuality based on a
misunderstanding of common-carrier authority that the Commission was under
no obligation to credit.12
107 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 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.
108 Beyond this parsing of 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.
109 (3) The District Court was most emphatic in its conclusion that the Commission
had erred in its resolution of the third factor in 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:
110 'The question presented * * * is 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.
111 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 203(a) (15). But, as we
have seen, that is plainly not what the Commission did.
112 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 * * * the 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.
113 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.
114 '(S)urely 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 205(g) of the Interstate Commerce Act, * * * and under the 'person
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.
123 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 responsibility 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, 32 S.Ct. 108, 110
111, 56 L.Ed. 308.
124 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, 368371, 66 S.Ct. 637, 642644,
90 L.Ed. 718, with National Labor Relations Board v. Hearst Publications, 322
U.S. 111, 128131, 64 S.Ct. 851, 859860, 88 L.Ed. 1170. 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.
125 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, 535536, 66 S.Ct. 687, 697698, 90 L.Ed. 821 (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, 79 S.Ct. 351, 3 L.Ed.2d 350 (same); cf. United States v.
Detroit & Cleveland Nav. Co., 326 U.S. 236, 240241, 66 S.Ct. 75, 77 90
L.Ed. 38. In Schaffer Transp. Co. v. United States, 355 U.S. 83, 86 n. 3, 90, 78
S.Ct. 173, 175, 177, 2 L.Ed.2d 117, the Court deliberately refrained from
guiding the Commission's discretion in evaluating the relative advantages of
competing carriers.13
126 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.
127 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, 58 S.Ct. 771, 773, 82 L.Ed. 1262; cf. Universal Camera Corp. v.
Labor Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456; see Administrative
Procedure Act, 10(e), 60 Stat. 237, 243 (1946), 5 U.S.C. 1009(e), 5
U.S.C.A. 1009(e). The Commission's detailed report negatives this, as it
would a claim that the Commission neglected to make requisite findings.
128 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, 78 S.Ct. 173, 176, 2 L.Ed.2d 117, 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 Ass'ns v. United States, 344
U.S. 298, 314, 73 S.Ct. 307, 316, 97 L.Ed. 337; see Interstate Commerce
Commission v. Parker, 326 U.S. 60, 66, 65 S.Ct. 1490, 1493, 89 L.Ed. 2051.
The Commission's action here certainly does not fall short of that standard. See
79 M.C.C., at 705706.
129 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, 510511, 55 S.Ct. 462, 467,
79 L.Ed. 1023. 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.
130 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,
64 S.Ct. 327, 88 L.Ed. 400, 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, Public Service Comm. v. U.S., 323 U.S. 675, 65 S.Ct. 130,
89 L.Ed. 548. That wasteful charade ought not to be repeated here.
131 I would reverse and allow the Commission's order to stand.
132 Mr. Justice FRANKFURTER, whom Mr. Justice HARLAN and Mr. Justice
STEWART join, concurring in part.
133 These are appeals from the judgment of a District Court setting aside an order
of the Interstate Commerce Commission denying an application for a contractcarrier 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.
134 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.
135 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.
136
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.
137 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.
138 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 209(b)
of Part II of the Interstate Commerce Act, added by 71 Stat. 411 (1957), 49
U.S.C. 309(b), 49 U.S.C.A. 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 JT
Transport application, reviewed here today, 368 U.S., p. 81, 82 S.Ct., p. 204,
supra. The pertinent portion of its report is as follows:
139 '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
See, e.g., Dixon & Koster Contract Carrier Application, 32 M.C.C. 1, 4 (1942);
James F. Black Extension of OperationsPrefabricated Houses, 48 M.C.C.
695, 708709 (1948); Joseph Pomprowitz ExtensionPacking House
Products, 51 M.C.C. 343, 350 (1950). That is what it ruled in this case, see 81
M.C.C., at 4243.
144 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, 234235 (1950), largely because at the
application stage there is as yet no revealing record of profit or loss derived
from the proposed transportation service,2 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, 78 S.Ct. 330, 2 L.Ed.2d 257;
see American Trucking Ass'ns v. United States, 326 U.S. 77, 8687, 65 S.Ct.
1499, 1503, 89 L.Ed. 2065.
145 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, 78
S.Ct. 173, 2 L.Ed.2d 117. The Commission is specifically admonished, in
218(b) of the Act, not to prescribe minimum rates that give contract carriers an
undue competitive advantage over common carriers.
146 In rate proceedings, however, the Commission has construed this section as not
authorizing it to invalidate cost-justified rates of 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.
147 That policy is unaffected by the 1957 amendments to 203(a)(15) and 209(b).
(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.'
152 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., ExtensionMolasses, 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. State of Florida v. United States, 282 U.S. 194, 214
215, 51 S.Ct. 119, 124 125, 75 L.Ed. 291.
153 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.
That this change was made is clear. See S. Rep. No. 703, 85th Cong., 1st Sess.,
pp. 23, 6, 7; H.Rep. No. 970, 85th Cong., 1st Sess., p. 3.
with a view to carrying out the above declaration of policy.' 54 Stat. 899.
1
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.
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 * * *.'
7
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 (sic) carrier simply because someone claims that there is common
carrier service there.' Senate Hearings 200201, 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.
10
The statement may be deemed lacking in detail in not explicitly considering the
five criteria in 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, 63 S.Ct. 465, 468, 87
L.Ed. 621. The final order of the full Commission made the detailed findings,
however, so that the question need not detain us.
11
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.)
12
JT's application was supported because '* * * we 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.
13
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 9091, 78
S.Ct. at 178.
On 9192, 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.
1
Thus in the present case the applicant submitted a balance sheet but no income
statement (R. 31).