Before Finnegan, Circuit Judge, Platt, Chief Judge, and
Juergens, District Judge.
The opinion of the court was delivered by: Platt, Chief Judge.
Plaintiff, an Illinois Corporation, with its principal place
of business in St. Clair County, Illinois, and in the Eastern
District of Illinois, presents its complaint to set aside the
report and orders of the Interstate Commerce Commission
decided May 10, 1957 and October 3, 1957 denying an
application for certificate of public convenience and
necessity in Commercial Transport, Inc., Extension
Illinois-Missouri, Docket No. M.C. 13-104654 (Sub. No. 106).
Plaintiff presents its complaint to this court under section
205(g) of the Interstate Commerce Act, 49 U.S.C.A. § 305(g),
and section 10 of the Administrative Act, 5 U.S.C.A. § 1009.
The court has jurisdiction of the subject matter and the
parties. Judicial Code and Judiciary, Title 28 U.S.C.A. §§
1336, 1398, 2284, 2321-2325.
Plaintiff filed an application on October 26, 1956 seeking
a certificate of public convenience and necessity authorizing
the operation in interstate commerce, as a common carrier by
motor vehicle over irregular routes, of cement, in bulk, in
hopper vehicles, between points in Missouri and Illinios. The
application was assigned to and heard by a joint board on
January 8, 1957. Five railroads who serve this territory and
are intervening defendants in this suit, and the Lehigh
Portland Cement Company appeared by petition in opposition to
the application. The Alpha Portland Cement Company and the
Missouri Portland Cement Company provided witnesses who
testified against the application on behalf of the railroads.
No motor carrier appeared.
On February 1, 1957, the joint board issued a report and an
order recommending that applicant be granted authority to
transport cement in bulk, in hopper vehicles, between points
in Illinois and Missouri over irregular routes. On February
13, 1957 protestant cement company filed exceptions to this
report and recommended order, and on March 4, 1957 intervening
railroad defendants also filed their exceptions. On March 25,
1957 plaintiff filed a reply to those exceptions.
May 24, 1957 the report and order of division 1 of the
Interstate Commerce Commission dated May 10, 1957 denied
plaintiff's application, thereby rejecting the recommendation
of the joint board. July 1, 1957 plaintiff filed a petition
for reconsideration with the Commission, and the intervening
defendants and the cement producer filed a timely reply. On
October 3, 1957 the full Commission upheld the decision of
division 1 denying plaintiff's petition for reconsideration
"for the reason that the findings of division 1 are in
accordance with the evidence and the applicable law." The
complaint in this court resulted.
The Interstate Commerce Commission, United States of
America, and the intervening defendants who had been granted
permission to intervene by this court answered. It is to be
noted that all answers were in defense of the decision of the
Commission except the answer of the United States of America
which "admits only that the Interstate Commerce
Commission * * * has failed to make proper findings as to the
inherent advantages of plaintiff's proposed mode of
transportation," and " * * * prays that the orders of the
Commission * * be annulled and set aside and that the matter be
remanded to the Commission to make proper findings in
accordance with the National Transportation Policy."
1. The order complained of is the result of arbitrary and
capricious action, and the findings upon which it is based are
unsupported by substantial evidence, and
2. In denying plaintiff's application the Interstate
Commerce Commission has not correctly applied the standards of
the National Transportation Policy, and failed to make
adequate findings in terms of that policy.
The transcript of evidence discloses the following facts:
A large highway building program was scheduled by the State
of Illinois for 1957 and future years. Large quantities of
bulk cement are necessary for such construction. At present
railroad service is used to carry bulk cement in the area
Plaintiff is engaged as a common carrier in the business of
transporting bulk liquid, principally petroleum products, by
motor vehicle in interstate commerce over irregular routes
between points in Illinois and Missouri and other states
pursuant to authority granted by the Interstate Commerce
Commission. Plaintiff is now operating 51 tractors and 36 tank
trailers, and maintains terminals at various points in
Illinois and Missouri. Because it has extra tractors available
during the spring, summer and early autumn seasons when demand
for bulk cement is heaviest, plaintiff filed this application.
The special hoppers necessary to carry bulk cement, and
existing terminals in Illinois and Missouri will be available,
and service will be on call but not on schedule. Motor carrier
service is mechanically feasible and economically practical.
Plaintiff is financially responsible and would be a fit
carrier to conduct the business. Hefkin Company and the
Association of General Contractors of Illinois supported the
Hefkin Company is engaged in building highways in Missouri
and Illinois, and maintains a ready-mix plant at Belleville,
Illinois, which is supplied with cement from Alpha Portland
Cement Company and Missouri Portland Cement Company from their
St. Louis plants, the Universal Atlas Company of Hannibal,
Missouri, and the Marquette Cement Company of Cape Girardeau,
Missouri. Hefkin Company had purchased cement on one job from
Lehigh Portland Cement Company at Mitchell, Indiana, which
also has a plant at Oglesby, Illinois.
The railroads at the present time have a sufficient number
of hopper cars to transport bulk cement and anticipate loss of
business if the certificate for motor truck service were to
issue. No investigation was made as to whether Universal Atlas
Company or Marquette Cement Company have present facilities
for loading trucks, or if not, whether they intend to provide
such equipment; the remaining three cement companies who now
control the traffic for their bulk cement are not presently
equipped for loading trucks, and because of the expense in
establishing such facilities, have no immediate intention to
build truck loading docks. If this application were ...