to render division decisions final and, by its general rules, to
restrict the right to file petitions for reconsideration of
division decisions by the entire Commission to those cases in
which "an issue of general transportation importance" is
involved. Clark's petition to have the instant proceeding
declared an issue of general transportation importance was
CONCLUSIONS OF LAW
1. The court has jurisdiction of the subject matter of the
action and of the parties.
2. McKee and Ford are proper parties to this proceeding.
3. The findings of the Commission are supported by substantial
evidence in the record as a whole and there is a rational basis
for the findings and conclusions of the Commission based upon
4. The decision of the Commission has a rational basis and is
proper in all respects and therefore the relief sought by
plaintiff should be denied, the interlocutory injunction vacated,
and the complaint dismissed.
5. Any conclusion of law entered herein which may be construed
as a finding of fact shall be so deemed and treated as if set
forth under findings of fact.
Wherefore, it is ordered that an appropriate final judgment in
accordance with the foregoing findings of fact, conclusions of
law, and opinion be entered.
This court, of course, is confined in the scope of its judicial
review of the Commission's order which granted McKee's
application for a permit. Our function is to determine whether
there is in the record, considered as a whole, substantial
evidence and a rational basis to support the Commission's
findings and order, and whether the Commission correctly applied
the criteria which Congress declared should be considered by the
Commission "in determining whether issuance of a permit will be
consistent with the public interest and the national
transportation policy declared in this Act."
Having studied the record made before the Commission, and
without in any wise substituting any of my own inferences for
those drawn by the Commission from the testimony taken and the
record made, I conclude that I cannot agree that the findings of
the Commission are supported by substantial evidence in the
record as a whole nor can I agree that there is a rational basis
for the findings and conclusions of the Commission based upon
such evidence. Moreover, I do not believe that the Commission
correctly applied or balanced the criteria.
In Section (b) of the statute (49 U.S.C.A. § 309), Congress
requires that one of the conditions for the issuance of a permit
be that the proposed operation, to the extent authorized by the
permit, will be consistent with the public interest and the
National Transportation Policy declared in the Act, and then sets
forth criteria or guide posts for the Commission to consider and
follow in determining whether the proposed operation will be
consistent with those goals. Presumably Congress intended that
the interest of the general public be considered — not only that
of the shipping public but also of the vast purchasing or
consuming public. The Commission is required to 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. Since Congress makes no point that one of
the criteria shall be given more weight than any other, we may
conclude that each is to be given the same weight — a matter of
delicate precision and balancing.
Without going into an extended discussion of the record, it
appears that Clark Transport Company has served Ford Motor
Company, the shipper, well, satisfactorily and, on one occasion,
with commendation since about June, 1961,
handling Ford's secondary traffic for the Twin Cities to North
Dakota, and capable and willing, as well as accustomed to making
modifications and adjustments in its equipment to meet changing
and particular needs of the shipper.
One of the purposes of the National Transportation Policy as
declared by Congress is "to promote safe, adequate, economical,
and efficient service and foster sound economic conditions in
transportation and among the several carriers."
From the record it appears that Clark, a common carrier,
presently has a good coverage in North Dakota as well as a good
mix and good service there. However, it appears that if the
volume of Clark's traffic to North Dakota is reduced by the loss
of Ford's traffic, other members of the shipping public will be
adversely affected because, since North Dakota is a sparsely
settled State, a carrier must have a large volume of traffic in
order properly to mix its load. The problem involved is
interestingly illustrated by an operating example set out in
Clark's opening brief:
"Suppose Clark had 2 Chevrolets, 1 Dodge, and 2
Fords, a full load, all destined to Bismarck, North
Dakota at the same time. This is proper `mixing' and
everyone benefits by it.
"Suppose, however, that Clark loses the Ford
business * * * and, on the day that the 2 Chevrolets
and the 1 Dodge are scheduled to begin the move to
Bismarck, Clark Transport, because of having no
Fords, has only three cars on that load.
"Clark, then, has three choices available, each of
them costly. (1) Clark can wait until General Motors
or Chrysler sends, via rail, two more cars destined
to Bismarck to fill in the load. This penalizes the
General Motors and Chrysler dealers in Bismarck who
must wait for their cars, running the risk of losing
a sale to a disgruntled automobile buyer. (2) Clark
can fill in the load with two cars to Fargo — 200
miles this side of Bismarck. This is fine to Fargo,
but between Fargo and Bismarck, Clark would be
running partly empty and must assess the additional
rate prescribed in its tariff. (3) Clark could simply
take off with only three cars on the truck. Clark,
however, must charge General Motors or Chrysler in
that event a three car rate which, per car, is
obviously higher than a five car rate. The more cars
loaded, the less it costs per car. This penalizes
General Motors and Chrysler."
Parenthetically, I think we may safely predict at this point that
the purchasing or consuming public would be adversely affected by
the higher car prices which would result. As one witness said,
"Somebody has to pay for it in the rates or some place."
McKee, the applicant, never lawfully handled the traffic in
question and would suffer no adverse effect in the event of a
denial of its application.
There was testimony that Clark had received a total gross
revenue of almost $174,000.00 in thirteen months, a considerable
sum. Clearly, the potential loss of traffic to Clark Transport
Company would outweigh any detriment to applicant McKee.
Undeniably, Ford, the shipper supporting the application, has
demonstrated a preference for the services of the applicant.
However, I do not find substantial evidence in the record that
Ford's distinct needs will be better served by McKee or that
Ford's needs are or will be changing.
In my opinion, the Commission has in this case improperly
applied the criteria by "loading" the scales in favor of the
shipper and the applicant, and has not in fact given the
requisite consideration to the public interest and the National
I would remand this cause to the Commission for further
PERRY, District Judge (dissenting).
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