Before Woodrough, Circuit Judge, and John E. Miller and Henley,
The opinion of the court was delivered by: Miller, John E., District Judge.
This is an action to vacate and set aside an order of the
Interstate Commerce Commission dated May 9, 1958, which denied
plaintiff's application for additional authorization to operate
as a motor common carrier in interstate commerce and for
Plaintiff is a citizen of Arkansas and resides at Ashdown in
the Western District. He has been engaged in the transportation
of lumber by motor vehicle in interstate commerce pursuant to a
Certificate of Public Convenience and Necessity authorizing
operations between Ashdown, Arkansas, and points within 125
On August 5, 1957, plaintiff filed with the Interstate Commerce
Commission five applications for authority, in general, to
operate as a motor common carrier of lumber, certain wood
articles, and feed to or from points in Arkansas, Louisiana, and
numerous other states.*fn1 These applications were docketed by
the Commission, and were referred to an examiner for a formal
hearing which was held on September 30 and October 1, 1957, at
Little Rock, Arkansas. Plaintiff introduced evidence in support
the applications. Numerous rail and motor carriers appeared in
opposition. After the hearing the examiner issued his report and
recommended order proposing that all the applications be denied.
Plaintiff thereupon filed exceptions to the examiner's report and
recommended order, to which numerous parties replied. On May 9,
1958, the Commission entered a report and order finding that the
plaintiff had failed to establish that the present or future
public convenience and necessity required the granting of the
applications. Accordingly, the applications were denied.
Plaintiff thereafter filed a petition for reconsideration of
Sub-No. 15 only, and several parties replied thereto. On October
8, 1958, the Commission entered an order denying the petition for
reconsideration, thus terminating the administrative proceeding.
The present action was instituted April 4, 1959, with the
filing of a complaint against the United States and the
Interstate Commerce Commission. A three-judge court was duly
convened. Oral arguments were heard on September 3, 1959, and at
the conclusion of the arguments the case was submitted.
It should be noted that the complaint attacks only the portion
of the Commission's order relating to Sub-No. 15. The issues were
further narrowed by the plaintiff prior to the beginning of oral
arguments by abandoning all portions of Sub-No. 15 except those
seeking authority (1) to transport lumber from Danville and
Zwolle, Louisiana, to points in Mississippi; (2) to transport
lumber from Mt. Holly, Arkansas, to points in Illinois; and (3)
to transport lumber from Springhill, Louisiana, and Urbana,
Arkansas, to points in Illinois.
The scope of the review by the court in a case of this kind is
limited to a determination of whether the Commission's action is
supported by substantial evidence. In United States v. Pierce
Auto Freight Lines, Inc., 1946, 327 U.S. 515, at page 535, 66
S.Ct. 687, at page 698, 90 L.Ed. 821, the Supreme Court said:
"We think the court misconceived not only the
effects of the Commission's action in these cases but
also its own function. It is not true, as the opinion
stated, that `* * * the courts must in a litigated
case, be the arbiters of the paramount public
interest.' This is rather the business of the
Commission, made such by the very terms of the
statute. The function of the reviewing court is much
more restricted. It is limited to ascertaining
whether there is warrant in the law and the facts for
what the Commission has done. Unless in some specific
respect there has been prejudicial departure from
requirements of the law or abuse of the Commission's
discretion, the reviewing court is without authority
to intervene. It cannot substitute its own view
concerning what should be done, whether with
reference to competitive considerations or others,
for the Commission's judgment upon matters committed
to its determination, if that has support in the
record and the applicable law."
The weight to be given by the Court to an administrative
finding is well established. In Interstate Commerce Commission v.
Union Pacific Railroad, 222 U.S. 541, 547, 32 S.Ct. 108, 111, 56
L.Ed. 308, the Supreme Court observed that it would "not consider
the expediency or wisdom of the order, or, whether, on like
testimony, it would have made a similar ruling." In Georgia
Public Service Commission v. United States, 283 U.S. 765, 775, 51
S.Ct. 619, 623, 75 L.Ed 1397, the court said:
"It is not our province to enquire into the
soundness of the Commission's reasoning, the wisdom
of its decisions, or the consistency of its
conclusion with those reached in similar cases."
"As is well established, the authority of courts in
reviewing the actions of an administrative body are
very limited. We are confined to determining whether
there is warrant in the law and the facts for the
Commission's action. We can go no further. We cannot
substitute our judgment for that of the Commission or
challenge the wisdom of its action. United States v.
Pierce Auto Freight Lines, 327 U.S. 515, 66 S.Ct.
687, 90 L.Ed. 821; Federal Security Administrator v.
Quaker Oats Co., 318 U.S. 218, 227, 228, 63 S.Ct.
589, 87 L.Ed. 724. For further recent expression of
our limited authority in this respect, see Canadian
Pacific Railway Co. v. United States, D.C.,
158 F. Supp. 248; Minneapolis & St. Louis Railway Co. v.
United States, D.C., 165 F. Supp. 893."
The Commission is the fact-finder, and the judicial function is
exhausted when there is found to be a rational basis for the
conclusions reached by the administrative body. Southern Kansas
Greyhound Lines v. United States, D.C.W.D.Mo. 1955, 134 F. Supp. 502.
With these limitations in mind, we proceed to an examination
of the evidence presented to the Commission relative to the three
routes now in dispute. It should be borne in mind that the burden
of proof before the Commission was upon the plaintiff. It was his
duty to support the applications ...