William O. Douglas

“ Fleming on and since June 1, 1935, was engaged in bona fide operation as a common carrier by motor vehicle 'in driveaway service of new automotive vehicles, finished and unfinished, and new automotive vehicle chassis.' This driveaway or caravaning method of transportation is performed by individual driving of the vehicle under its own power, by driving one vehicle under its own power and towing a second vehicle attached to the first, or by driving under its own power a vehicle upon which another vehicle is partially or wholly mounted. ”

“ It noted that Fleming was restricted to shipments at points where the manufacturers had established distribution facilities; that those facilities were limited in any given area; that Fleming's opportunity for service was therefore confined to a very few distribution points and his operations were irregular; that less than an estimated seven per cent of all new automobiles sold during 1935 in twenty-four western states were transported by the driveaway method; that distribution points in the automobile industry are constantly shifted ”

“ They clearly have a stake as carriers in the transportation situation which the order of the Commission affected. They are competitors of Fleming for automobile traffic in territory served by him. They are transportation agencies directly affected by competition with the motor transport industry-competition which prior to the Motor Carrier Act of 1935 had proved destructive. ”

“ We cannot say that an unexplained failure to make any shipments to Arkansas for over a year 'since that time' satisfies the statutory command even though the nature of the highly specialized transportation service involved be given the greatest weight. Cf. United States v. Maher, supra. A mere holding out will not alone suffice to bridge the long gap extending through and beyond one entire automobile production year, since applicant carries the burden of establishing his right to the statutory grant. ”

“ Hence they are parties in interest within the meaning of § 205 (h) under the tests announced in Texas & Pacific Ry. Co. v. Gulf, Colorado & Santa Fe Ry. Co., 270 U.S. 266, 46 S.Ct. 263, 70 L.Ed. 578; Western Pacific California R. Co. v. ”