William O. Douglas

“ 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. ”

“ 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. ”

“ 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. ”

“ 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; italics in report.) 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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 § 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. ”

“ 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. ”

“ 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 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ Sugar is a relatively inexpensive commodity which sells at prices which, compared to prewar prices, do not appear to have increased percentage wise 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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) . ”

“ 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 ”

“ Such a burden is improperly placed on the applicant, as the rejection of the proposed amendment to § 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. ”

“ Later on, the representative of the Contract Carrier Conference asked for deletion of the 'not provided' language, supra, from the amendment to § 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) . [15]
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. ”

“ 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. [17] It was willing to dedicate the necessary equipment exclusively to the shipper. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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 suffering legal wrong * * * or adversely affected or aggrieved' criterion of § 10 (a) of the Administrative Procedure Act * * *.' American Trucking Ass'ns v. ”

“ 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. ”