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December 11, 1959


Before Woodrough, Circuit Judge, and John E. Miller and Henley, District Judges.

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 affirmative relief.

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 miles.

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 of all 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."

In a recent case arising in this circuit, involving a similar order of the Interstate Commerce Commission, Judge Devitt, speaking for a three-judge court, said in Quickie Transport Co. v. United States, D.C.D.Minn. 1959, 169 F. Supp. 826, 828, affirmed by the Supreme Court per curiam, 80 S.Ct. 140:

    "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 ...

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