Warren Transport, Inc. v. U.S., 75-1203
| Decision Date | 10 November 1975 |
| Docket Number | No. 75-1203,75-1203 |
| Citation | 525 F.2d 148 |
| Parties | WARREN TRANSPORT, INC., Petitioner, v. UNITED STATES of America and Interstate Commerce Commission, Respondents. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Daniel C. Sullivan, Chicago, Ill., for petitioner.
Walter H. Walker, III, Washington, D. C., for I.C.C.
Before CLARK, * Associate Justice, and LAY and ROSS, Circuit Judges.
Warren Transport, Inc. brings this petition for review of a final Interstate Commerce Commission order denying it a certificate of public convenience and necessity for operating authority as a common carrier over irregular routes transporting highway construction equipment and supplies between various points in the United States and Beadle County, South Dakota. The Commission found that petitioner already holds extensive authority to serve the shipper, Huron Manufacturing Corporation, by transporting the various commodities either by tacking or interlining. However, Warren seeks complete direct authority to serve the shipper.
The Review Board denied the application in full based on its finding that Warren's existing service was not materially inadequate and that the supporting shipper, Huron, had failed to adequately demonstrate specific transportation needs. The Commission affirmed the findings of the Review Board. Warren urges that the Commission erred in (1) basing the denial on a failure to show that Warren's own service was inadequate, and (2) finding that the need for the proposed service was not adequately demonstrated by the supporting shipper. We disagree and therefore affirm the Commission's denial of the certificate.
The inadequacy of existing service is one of several elements on which the Commission may base its exercise of discretion in granting a certificate of public convenience and necessity. As stated in Feature Film Service, Inc. v. United States, 349 F.Supp. 191 (S.D.Ind.1972):
The adequacy or inadequacy of existing service is a basic ingredient in the determination of public convenience and necessity, but it is not and may not be used as the sole test in determining whether public convenience and necessity exist. . . . Successful past operations of the applicant, along with other factors, are also entitled to consideration in determining public need.
In addition to finding that the existing service was adequate, the Commission expressly considered the total lack of evidence by the supporting shipper as to its need for the proposed service. There exists substantial evidence on the record as a whole to support the Commission's finding.
In Pan-American Bus Lines Operation, 1 M.C.C. 190 (1936), the Commission promulgated certain guidelines governing an application for a certificate of public convenience and necessity:
The question, in substance, is whether the new operation or service will serve a useful public purpose, responsive to a public demand or need; whether this purpose can and will be served as well by existing lines or carriers; and whether it can be served by applicant with the new operation or service proposed without endangering or impairing the operations of existing carriers contrary to the public interest.
The factors considered by the Review Board in the instant case clearly fall within these standards. The Supreme Court in ICC v. Parker Motor Freight, 326 U.S. 60, 65 S.Ct. 1490, 89 L.Ed. 2051 (1945) set out the narrow limits of judicial review. The Court stated:
Public convenience and necessity is not defined by the statute. The nouns in the phrase possess connotations which have evolved from the half-century experience of government in the regulation of transportation. When Congress in 1935 amended the Interstate Commerce Act by adding the Motor Carrier Act, it chose the same words to state the condition for new motor lines which had been employed for similar purposes for railroads in the same act since the Transportation Act of 1920, § 402(18) and (20), 41 Stat. 477, 49 U.S.C.A. § 1(18, 20). Such use indicated a continuation of the administrative and judicial interpretation of the language. Cf. Case v. Los Angeles Lumber Co., 308 U.S. 106, 115, 60 S.Ct. 1, 7, 84 L.Ed. 110. The Commission had assumed, as its duty under these earlier subsections, the finding of facts and the exercise of its judgment to determine public convenience and necessity. This Court approved this construction. Chesapeake & Ohio R. Co. v. United States, 283 U.S. 35, 42, 51 S.Ct. 337, 339, 75 L.Ed. 824. Cf. Gray v. Powell, 314 U.S. 402, 411-12, 62 S.Ct. 326, 332, 86 L.Ed. 301. The purpose of Congress was to leave the Commission authoritatively to decide whether additional motor service would serve public convenience and necessity. Cf. Powell v. United States, 300 U.S. 276, 287, 57 S.Ct. 470, 476, 81 L.Ed. 643. This, of course, gives administrative discretion to the Commission, cf. McLean Trucking Co. v. United States, 321 U.S. 67, 87-88, 64 S.Ct. 370, 380, 381, 88 L.Ed. 544, to draw its conclusion from the infinite variety of circumstances which may occur in specific instances.
326 U.S. at 65, 65 S.Ct. at 1492 (emphasis added).
Recently, the Supreme Court in discussing whether a Commission order was "arbitrary or capricious" observed:
Under the "arbitrary and capricious" standard the scope of review is a narrow one. A reviewing court must
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