Schaffer Transportation Co. v. United States, 355 U.S. 83 (1957)

Topics:  Schaffer Transportation

From the U.S. Government Printing Office via GPO Access
 
Case:   SCHAFFER TRANSPORTATION CO. V. UNITED STATES 

Case #: 355US83


NO. 20.  ARGUED NOVEMBER 13, 1957 - DECIDED DECEMBER 9, 1957 - 139 F.
SUPP. 444, REVERSED AND REMANDED. 


THE INTERSTATE COMMERCE COMMISSION DENIED AN APPLICATION BY APPELLANT,
A COMMON CARRIER BY MOTOR TRUCK, FOR AUTHORITY UNDER SEC. 207(A) OF THE
MOTOR CARRIER ACT OF 1935, AS AMENDED BY THE TRANSPORTATION ACT OF
1940, TO TRANSPORT GRANITE BETWEEN VARIOUS POINTS NOW SERVED
EXCLUSIVELY BY RAIL.  CERTAIN SHIPPERS, RECEIVERS, AND AN ASSOCIATION
OF MANUFACTURERS OF FINISHED GRANITE PRODUCTS HAD TESTIFIED THAT THE
EXISTING RAIL SERVICE WAS SATISFACTORY FOR THE TRANSPORTATION OF
CARLOAD SHIPMENTS BUT ENTIRELY INADEQUATE FOR LESS-THAN-CARLOAD
SHIPMENTS, NOT ONLY FROM THE STANDPOINT OF COST BUT ALSO AND PRIMARILY
FROM A SERVICE STANDPOINT.  THE COMMISSION BASED ITS DENIAL OF THE
APPLICATION ON THE GROUNDS THAT THE RAIL SERVICE WAS "REASONABLY
ADEQUATE," THAT THE MAIN PURPOSE OF THESE WITNESSES IN SUPPORTING THE
APPLICATION WAS TO OBTAIN LOWER RATES RATHER THAN IMPROVED SERVICE AND
THAT THIS WAS NOT A PROPER BASIS FOR A GRANT OF AUTHORITY.  IT FAILED
TO EVALUATE THE "INHERENT ADVANTAGES" OF THE PROPOSED MOTOR SERVICE,
INCLUDING WHATEVER BENEFIT MIGHT BE DETERMINED TO EXIST FROM THE
STANDPOINT OF RATES, AND ITS FINDINGS AS TO THE ADEQUACY OF THE RAIL
SERVICE WERE NOT SUFFICIENT TO PROVIDE A BASIS FOR DETERMINING WHETHER
ITS DECISION COMPORTED WITH THE NATIONAL TRANSPORTATION POLICY.  HELD:
THE COMMISSION'S ORDER MUST BE SET ASIDE AND THE CASE REMANDED TO IT
FOR FURTHER PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  PP. 84-93. 

(A)  UNDER THE NATIONAL TRANSPORTATION POLICY, WHEN A MOTOR CARRIER
SEEKS TO OFFER SERVICE WHERE ONLY RAIL TRANSPORTATION IS PRESENTLY
AUTHORIZED, THE "INHERENT ADVANTAGES" OF THE PROPOSED SERVICE ARE A
CRITICAL FACTOR WHICH THE COMMISSION MUST ASSESS.  PP. 88-90. 

(B)  THE RECORD DOES NOT DISCLOSE THE FACTORS WHICH THE COMMISSION
COMPARED IN CONCLUDING THAT EXISTING RAIL SERVICE IS "REASONABLY
ADEQUATE," AND IT DOES NOT PROVIDE THIS COURT WITH A BASIS FOR
DETERMINING WHETHER THE COMMISSION'S DECISION COMPORTS WITH THE
NATIONAL TRANSPORTATION POLICY.  PP. 90, 92. 

(C)  TO REJECT A MOTOR CARRIER'S APPLICATION ON THE BARE CONCLUSION
THAT EXISTING RAIL SERVICE CAN MOVE THE AVAILABLE TRAFFIC, WITHOUT
REGARD TO THE INHERENT ADVANTAGES OF THE PROPOSED SERVICE, WOULD GIVE
ONE MODE OF TRANSPORTATION UNWARRANTED PROTECTION FROM COMPETITION FROM
OTHERS.  PP. 90-91. 

(D)  NO CARRIER IS ENTITLED TO PROTECTION FROM COMPETITION IN THE
CONTINUANCE OF A SERVICE THAT FAILS TO MEET A PUBLIC NEED, NOR SHOULD
THE PUBLIC BE DEPRIVED OF A NEW AND IMPROVED SERVICE BECAUSE IT MAY
DIVERT SOME TRAFFIC FROM OTHER CARRIERS.  P. 91. 

(E) THE ABILITY OF ONE MODE OF TRANSPORTATION TO OPERATE WITH A RATE
LOWER THAN COMPETING TYPES OF TRANSPORTATION IS PRECISELY THE SORT OF
"INHERENT ADVANTAGE" THAT THE NATIONAL TRANSPORTATION POLICY REQUIRES
THE COMMISSION TO RECOGNIZE.  PP. 91-92. 

SCHAFFER TRANSPORTATION CO. ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH
DAKOTA. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THE ISSUE IN THIS CASE IS WHETHER THE INTERSTATE COMMERCE COMMISSION
ADEQUATELY AND CORRECTLY APPLIED THE STANDARDS OF THE NATIONAL
TRANSPORTATION POLICY IN DENYING A MOTOR CARRIER'S APPLICATION TO
PROVIDE SERVICE BETWEEN POINTS NOW SERVED EXCLUSIVELY BY RAIL.  THE
APPLICANT, A.W. SCHAFFER, A COMMON CARRIER BY MOTOR DOING BUSINESS AS
SCHAFFER TRANSPORTATION CO., HOLDS A CERTIFICATE OF PUBLIC CONVENIENCE
AND NECESSITY AUTHORIZING HIM TO TRANSPORT GRANITE FROM GRANT COUNTY,
SOUTH DAKOTA, TO POINTS IN 15 STATES.  IN THE PRESENT APPLICATION HE
SOUGHT ADDITIONAL AUTHORITY UNDER SEC. 207(A) OF THE MOTOR CARRIER ACT
OF 1935, AS AMENDED BY THE TRANSPORTATION ACT OF 1940, (FN1) TO
TRANSPORT GRANITE FROM GRANT COUNTY TO VARIOUS NEW POINTS AS WELL AS
AUTHORITY TO TRANSPORT FROM POINTS IN VERMONT TO SEVERAL STATES IN THE
MIDWEST AND SOUTH.  (FN2)  FROM ALL THAT APPEARS IN THE COMMISSION'S
REPORT, RAIL SERVICE IS CURRENTLY THE ONLY MODE OF TRANSPORTATION
AVAILABLE TO SHIPPERS OF GRANITE BETWEEN THE POINTS SOUGHT TO BE SERVED
BY SCHAFFER. 

THE EVIDENCE ADDUCED TO DEMONSTRATE THE NEED FOR SCHAFFER'S SERVICE
CAME FROM THREE SHIPPERS, SIX RECEIVERS AND AN ASSOCIATION COMPOSED
PRIMARILY OF VERMONT MANUFACTURERS OF FINISHED GRANITE PRODUCTS.  THEIR
EVIDENCE, AS SUMMARIZED IN THE REPORT OF DIVISION 5 OF THE COMMISSION,
DISCLOSED THE FOLLOWING ADVANTAGES TO BE GAINED FROM MOTOR CARRIER
SERVICE:  (FN3) 

"THEY ALL AGREE THAT (EXISTING RAIL) SERVICE, IN THE MAIN, IS
SATISFACTORY FOR THE TRANSPORTATION OF CARLOAD SHIPMENTS BUT ENTIRELY
INADEQUATE FOR THE TRANSPORTATION OF LESS-THAN-CARLOAD SHIPMENTS, NOT
ONLY FROM THE STANDPOINT OF COST, BUT ALSO AND PRIMARILY FROM A SERVICE
STANDPOINT.  IN THIS RESPECT, THE RECORD SHOWS THAT ON MOVEMENTS OF
SMALL SHIPMENTS THE SUPPORTING WITNESSES HAVE EXPERIENCED DELAYS,
DAMAGE TO THEIR MERCHANDISE, AND HAVE BEEN HAMPERED TO SOME DEGREE BY
THE LACK OR INSUFFICIENCY OF RAIL SIDINGS.  IN MANY INSTANCES, THEY
HAVE BEEN ASKED BY CUSTOMERS TO FURNISH DELIVERY BY MOTOR CARRIER BUT
BECAUSE OF THE LACK OF SUCH SERVICE THEY HAVE BEEN UNABLE TO COMPLY
WITH THESE REQUESTS.  MOREOVER, AND NO LESS IMPORTANT FROM A BUSINESS
POINT OF VIEW, THE SHIPPERS ARE FACED WITH THE COMPETITIVE DISADVANTAGE
OF HAVING TO COMPETE WITH PRODUCERS OF GRANITE AT OTHER LOCATIONS WHICH
HAVE TRUCK DELIVERY AVAILABLE.  THEN, TOO, THE LACK OF TRUCK SERVICE
HAS IMPEDED SHIPPERS' ABILITY TO INCREASE THEIR SALES AND EXPAND THEIR
MARKETS IN THIS AREA.  BY USE OF THE PROPOSED SERVICE, CERTAIN OTHER
BENEFITS ALSO WOULD ACCRUE TO THE SHIPPERS OR DEALERS.  FOR EXAMPLE,
THE LATTER WOULD BE ABLE TO MAINTAIN LOWER INVENTORIES, RECEIVE THEIR
FREIGHT FASTER AND MORE FREQUENTLY, AND THUS, BE ABLE BETTER TO MEET
ERECTION DEADLINES, ESPECIALLY DURING THE PEAK SEASONS.   FURTHERMORE,
THE AMOUNT OF CRATING NOW NECESSARY WOULD BE REDUCED WITH RESULTANT
SAVINGS IN TIME AND MONEY." 

RELYING ON THESE FACTORS, DIVISION 5 APPROVED THE APPLICATION, BUT
THE FULL COMMISSION RECONSIDERED THE APPLICATION ON THE SAME RECORD,
AND, WITH FOUR COMMISSIONERS DISSENTING, ORDERED IT DENIED.  A.W.
SCHAFFER EXTENSION - GRANITE, 63 M.C.C. 247.  SCHAFFER BROUGHT AN
ACTION BEFORE A STATUTORY THREE-JUDGE COURT UNDER 49 U.S.C. SEC. 305(G)
TO SET THE ORDER ASIDE.  THE DISTRICT COURT DENIED RELIEF AND ORDERED
THE COMPLAINT DISMISSED.  139 F. SUPP.  444.  THE CASE IS HERE ON
DIRECT APPEAL.  (FN4)  28 U.S.C. SECS. 1253, 2101(B).  WE NOTED
PROBABLE JURISDICTION.  352 U.S. 923. 

THE NATIONAL TRANSPORTATION POLICY, (FN5) FORMULATED BY CONGRESS,
SPECIFIES IN ITS TERMS THAT IT IS TO GOVERN THE COMMISSION IN THE
ADMINISTRATION AND ENFORCEMENT OF ALL PROVISIONS OF THE ACT, AND THIS
COURT HAS MADE IT CLEAR THAT THIS POLICY IS THE YARDSTICK BY WHICH THE
CORRECTNESS OF THE COMMISSION'S ACTIONS WILL BE MEASURED.  DIXIE
CARRIERS, INC. V. UNITED STATES, 351 U.S. 56; EASTERN-CENTRAL MOTOR
CARRIERS ASSN. V. UNITED STATES, 321 U.S. 194; MCLEAN TRUCKING CO. V.
UNITED STATES, 321 U.S. 67.  OF COURSE, THE COMMISSION POSSESSES A
"WIDE RANGE OF DISCRETIONARY AUTHORITY" IN DETERMINING WHETHER THE
PUBLIC INTEREST WARRANTS CERTIFICATION OF ANY PARTICULAR PROPOSED
SERVICE.  UNITED STATES V. DETROIT & CLEVELAND NAVIGATION CO., 326 U.S.
236, 241; INTERSTATE COMMERCE COMMISSION V. PARKER, 326 U.S. 60.  BUT
THAT DISCRETION MUST BE EXERCISED IN CONFORMITY WITH THE DECLARED
POLICIES OF THE CONGRESS.  TO SEE WHETHER THOSE POLICIES HAVE BEEN
IMPLEMENTED WE LOOK TO THE COMMISSION'S OWN SUMMARY OF THE EVIDENCE,
AND PARTICULARLY TO THE FINDINGS, FORMAL OR OTHERWISE, WHICH THE
COMMISSION HAS MADE.  JUST AS WE WOULD OVERSTEP OUR DUTY BY UNDERTAKING
TO EVALUATE THE EVIDENCE ACCORDING TO OUR OWN NOTIONS OF THE PUBLIC
INTEREST, WE WOULD SHIRK OUR DUTY WERE WE SUMMARILY TO APPROVE THE
COMMISSION'S EVALUATION OF THE RECORD WITHOUT DETERMINING THAT THE
AGENCY'S EVALUATION HAD BEEN MADE IN ACCORDANCE WITH THE MANDATE OF
CONGRESS. 

THE COMMISSION DENIED SCHAFFER'S APPLICATION ON THE FOLLOWING BASIS: 

"ON THE FOREGOING FACTS, WE ARE UNABLE TO CONCLUDE THAT THE PUBLIC
CONVENIENCE AND NECESSITY REQUIRE THE PROPOSED OPERATION.  IT IS SEEN
THAT FOR ONE REASON OR ANOTHER THE SUPPORTING WITNESSES FIND FAULT WITH
THE PRESENTLY UTILIZED RAIL SERVICE.  ACTUALLY, HOWEVER, THE EVIDENCE
WARRANTS THE CONCLUSION THAT THE WITNESSES ARE REASONABLY SATISFIED
WITH RAIL SERVICE EXCEPT FOR THE ONE COMPLAINT THAT ALL SHARE, NAMELY,
THAT RAIL SERVICE IS TOO SLOW.  NEVERTHELESS, IT IS THE PRACTICE FOR
THE VERMONT SHIPPERS TO HOLD FINISHED GRANITE UNTIL THEY CAN ACCUMULATE
A POOL-CAR LOAD IN ORDER THAT THE SHIPMENTS MAY MOVE AT THE LOWER POOL
CAR RATE.  THIS PRACTICE IS FOLLOWED WITH THE KNOWLEDGE AND CONSENT OF
THE CONSIGNEES, AND THE SOLE PURPOSE THEREIN IS TO TAKE ADVANTAGE OF
THE LOWER RAIL RATE.  LESS-THAN-CARLOAD RAIL SERVICE, WHILE NOT AS
EXPEDITIOUS AS THE PROPOSED SERVICE, IS FAIRLY GOOD, BUT BECAUSE OF THE
HIGHER RATE INVOLVED THIS SERVICE IS SELDOM USED BY THE SUPPORTING
WITNESSES.  THE TESTIMONY OF THE SOUTH DAKOTA SHIPPER ALSO INDICATES
THAT ITS SUPPORT OF THE APPLICATION IS LARGELY MOTIVATED BY ANTICIPATED
CHEAPER TRANSPORTATION. 

"WE HAVE CAREFULLY CONSIDERED APPLICANT'S ARGUMENTS TO THE CONTRARY,
BUT ARE FORCED TO CONCLUDE THAT THE SERVICE PRESENTLY AVAILABLE IS
REASONABLY ADEQUATE.  THE EVIDENCE INDICATES THAT THE WITNESSES' MAIN
PURPOSE IN SUPPORTING THE APPLICATION IS TO OBTAIN LOWER RATES RATHER
THAN IMPROVED SERVICE.  IT IS WELL ESTABLISHED THAT THIS IS NOT A
PROPER BASIS FOR A GRANT OF AUTHORITY, AND THE APPLICATION, THEREFORE,
MUST BE DENIED." 

VIEWING THESE CONCLUSIONS IN LIGHT OF THE NATIONAL TRANSPORTATION
POLICY WE FIND AT THE OUTSET THAT THERE HAS BEEN NO EVALUATION MADE OF
THE "INHERENT ADVANTAGES" OF THE MOTOR SERVICE PROPOSED BY THE
APPLICANT.  THAT POLICY REQUIRES THE COMMISSION TO ADMINISTER THE ACT
SO AS TO "RECOGNIZE AND PRESERVE THE INHERENT ADVANTAGES" OF EACH MODE
OF TRANSPORTATION.  DIXIE CARRIERS, INC. V. UNITED STATES, SUPRA;
INTERSTATE COMMERCE COMMISSION V. MECHLING, 330 U.S. 567.  WHEN A MOTOR
CARRIER SEEKS TO OFFER SERVICE WHERE ONLY RAIL TRANSPORTATION IS
PRESENTLY AUTHORIZED, THE INHERENT ADVANTAGES OF THE PROPOSED SERVICE
ARE A CRITICAL FACTOR WHICH THE COMMISSION MUST ASSESS.  HOW
SIGNIFICANT THESE ADVANTAGES ARE IN A GIVEN FACTUAL CONTEXT AND WHAT
NEED EXISTS FOR A SERVICE THAT CAN SUPPLY THESE ADVANTAGES ARE
CONSIDERATIONS FOR THE COMMISSION. 

RATHER THAN EVALUATE THE BENEFIT THAT SCHAFFER'S PROPOSED MOTOR
SERVICE MIGHT BRING TO THE PUBLIC, THE COMMISSION CAST ITS FIRST
PRINCIPAL CONCLUSION IN TERMS OF THE ADEQUACY OF EXISTING RAIL SERVICE,
FINDING THAT SERVICE TO BE "REASONABLY ADEQUATE."  YET THE COMMISSION
ITSELF HAS PREVIOUSLY STATED:  "THAT A PARTICULAR POINT HAS ADEQUATE
RAIL SERVICE IS NOT A SUFFICIENT REASON FOR DENIAL OF A CERTIFICATE (TO
A MOTOR CARRIER)."  BOWLES COMMON CARRIER APPLICATION, 1 M.C.C. 589,
591.  OF COURSE, ADEQUACY OF RAIL SERVICE IS A RELEVANT CONSIDERATION,
BUT AS THE COMMISSION RECOGNIZED IN METLER EXTENSION - CRUDE SULPHUR,
62 M.C.C. 143, 148, "RELATIVE OR COMPARATIVE ADEQUACY" OF THE EXISTING
SERVICE IS THE SIGNIFICANT CONSIDERATION WHEN THE INTERESTS OF
COMPETITION ARE BEING RECONCILED WITH THE POLICY OF MAINTAINING A SOUND
TRANSPORTATION SYSTEM.  THE RECORD HERE DOES NOT DISCLOSE THE FACTORS
THE COMMISSION COMPARED IN CONCLUDING THAT EXISTING RAIL SERVICE IS
"REASONABLY ADEQUATE."  FOR EXAMPLE, THE COMMISSION HAS NOT DETERMINED
WHETHER THERE ARE BENEFITS THAT MOTOR SERVICE WOULD PROVIDE WHICH ARE
NOT NOW BEING PROVIDED BY THE RAIL CARRIERS, WHETHER CERTIFICATION OF A
MOTOR CARRIER WOULD BE "UNDULY PREJUDICIAL" (FN6) TO THE EXISTING
CARRIERS, AND WHETHER ON BALANCE THE PUBLIC INTEREST WOULD BE BETTER
SERVED BY ADDITIONAL COMPETITIVE SERVICE.  TO REJECT A MOTOR CARRIER'S
APPLICATION ON THE BARE CONCLUSION THAT EXISTING RAIL SERVICE CAN MOVE
THE AVAILABLE TRAFFIC, WITHOUT REGARD TO THE INHERENT ADVANTAGES OF THE
PROPOSED SERVICE, WOULD GIVE ONE MODE OF TRANSPORTATION UNWARRANTED
PROTECTION FROM COMPETITION FROM OTHERS.  AS THE REPORT OF DIVISION 5
EMPHASIZES, "NO CARRIER IS ENTITLED TO PROTECTION FROM COMPETITION IN
THE CONTINUANCE OF A SERVICE THAT FAILS TO MEET A PUBLIC NEED, NOR, BY
THE SAME TOKEN, SHOULD THE PUBLIC BE DEPRIVED OF A NEW AND IMPROVED
SERVICE BECAUSE IT MAY DIVERT SOME TRAFFIC FROM OTHER CARRIERS." 

THE COMMISSION'S SECOND BASIC CONCLUSION FROM THE RECORD WAS THAT THE
MAIN PURPOSE OF THE WITNESSES IN SUPPORTING THE APPLICATION WAS THE
PROSPECT OF OBTAINING LOWER RATES.  FOR THIS REASON THE COMMISSION
DISCOUNTED THE TESTIMONY OF THESE WITNESSES, APPARENTLY WITHOUT EVEN
EVALUATING THE CLAIMED ADVANTAGES OF THE PROPOSED SERVICE OTHER THAN
REDUCED RATES.  WE THINK THIS APPROACH RUNS COUNTER TO THE NATIONAL
TRANSPORTATION POLICY.  THE ABILITY OF ONE MODE OF TRANSPORTATION TO
OPERATE WITH A RATE LOWER THAN COMPETING TYPES OF TRANSPORTATION IS
PRECISELY THE SORT OF "INHERENT ADVANTAGE" THAT THE CONGRESSIONAL
POLICY REQUIRES THE COMMISSION TO RECOGNIZE.  DIXIE CARRIERS, INC. V.
UNITED STATES, SUPRA.  THE COMMISSION ASSERTS THAT IT HAS ALWAYS
CONSIDERED RATES IRRELEVANT IN CERTIFICATION PROCEEDINGS UNDER SEC.
207(A), YET, WITH BUT ONE EXCEPTION, IT RELIES ON ADMINISTRATIVE
DECISIONS INVOLVING APPLICATIONS BY A CARRIER TO PROVIDE SERVICE TO AN
AREA ALREADY SERVED BY THE SAME MODE OF TRANSPORTATION.  (FN7)  THOSE
DECISIONS ARE ENTIRELY DIFFERENT FROM THE SITUATION PRESENTED HERE,
WHERE A MOTOR CARRIER SEEKS TO COMPETE FOR TRAFFIC NOW HANDLED
EXCLUSIVELY BY RAIL SERVICE.  IN THESE CIRCUMSTANCES A RATE BENEFIT
ATTRIBUTABLE TO DIFFERENCES BETWEEN THE TWO MODES OF TRANSPORTATION IS
AN "INHERENT ADVANTAGE" OF THE COMPETING TYPE OF CARRIER AND CANNOT BE
IGNORED BY THE COMMISSION. 

SINCE THE COMMISSION HAS FAILED TO EVALUATE THE BENEFITS THAT
SCHAFFER'S PROPOSED SERVICE WOULD PROVIDE THE PUBLIC, INCLUDING
WHATEVER BENEFIT MAY BE DETERMINED TO EXIST FROM THE STANDPOINT OF
RATES, AND SINCE THE FINDINGS AS TO THE ADEQUACY OF RAIL SERVICE DO NOT
PROVIDE THIS COURT WITH A BASIS FOR DETERMINING WHETHER THE
COMMISSION'S DECISION COMPORTS WITH THE NATIONAL TRANSPORTATION POLICY,
THAT DECISION MUST BE SET ASIDE, AND THE COMMISSION MUST PROCEED
FURTHER IN LIGHT OF WHAT WE HAVE SAID. 

WE DO NOT MINIMIZE THE COMPLEXITY OF THE TASK THE COMMISSION FACES IN
EVALUATING AND BALANCING THE NUMEROUS CONSIDERATIONS THAT COLLECTIVELY
DETERMINE WHERE THE PUBLIC INTEREST LIES IN A PARTICULAR SITUATION. 
AND WE DO NOT SUGGEST THAT THE NATIONAL TRANSPORTATION POLICY IS A SET
OF SELF-EXECUTING PRINCIPLES THAT INEVITABLY POINT THE WAY TO A CLEAR
RESULT IN EACH CASE.  ON THE CONTRARY, THOSE PRINCIPLES OVERLAP AND MAY
CONFLICT, AND, WHERE THIS OCCURS, RESOLUTION IS THE TASK OF THE AGENCY
THAT IS EXPERT IN THE FIELD.  BUT THERE IS HERE NO INDICATION IN THE
COMMISSION'S FINDINGS OF A CONFLICT OF POLICIES.  SHIPPERS AND
RECEIVERS NOW SERVED EXCLUSIVELY BY RAIL HAVE TESTIFIED TO THE
ADVANTAGES THEY WOULD GAIN FROM A PROPOSED MOTOR CARRIER SERVICE. 
THERE IS NO FINDING THAT THE AUTHORIZATION OF THE PROPOSED SERVICE
WOULD IMPAIR THE SOUND OPERATION OF THE CARRIERS ALREADY CERTIFICATED. 
NOR HAS THE COMMISSION PROPERLY EVALUATED THE ADVANTAGES URGED BY THE
SUPPORTING WITNESSES TO DETERMINE WHETHER THE STANDARD OF PUBLIC
CONVENIENCE AND NECESSITY HAS BEEN MET. 

FOR THE FOREGOING REASONS, THE JUDGMENT IS REVERSED AND THE CAUSE IS
REMANDED TO THE DISTRICT COURT WITH DIRECTIONS TO SET ASIDE THE
COMMISSION'S ORDER AND REMAND THE CAUSE TO THE COMMISSION FOR FURTHER
PROCEEDINGS IN CONFORMITY WITH THIS OPINION.  IT IS SO ORDERED. 

FN1  49 STAT. 551, AS AMENDED, 54 STAT. 923, 49 U.S.C. SEC. 307(A). 

"(A) SUBJECT TO SECTION 210, A CERTIFICATE SHALL BE ISSUED TO ANY
QUALIFIED APPLICANT THEREFOR, AUTHORIZING THE WHOLE OR ANY PART OF THE
OPERATIONS COVERED BY THE APPLICATION, IF IT IS FOUND THAT THE
APPLICANT IS FIT, WILLING, AND ABLE PROPERLY TO PERFORM THE SERVICE
PROPOSED AND TO CONFORM TO THE PROVISIONS OF THIS PART AND THE
REQUIREMENTS, RULES, AND REGULATIONS OF THE COMMISSION THEREUNDER, AND
THAT THE PROPOSED SERVICE, TO THE EXTENT TO BE AUTHORIZED BY THE
CERTIFICATE, IS OR WILL BE REQUIRED BY THE PRESENT OR FUTURE PUBLIC
CONVENIENCE AND NECESSITY; OTHERWISE SUCH APPLICATION SHALL BE DENIED
..  .""    FN2  A PORTION OF THE REQUESTED EAST-BOUND AUTHORITY WAS
OPPOSED BY A MOTOR CARRIER ALREADY CERTIFICATED TO SERVE POINTS IN FIVE
OF THE EASTERN STATES.  THIS PORTION OF THE REQUESTED AUTHORITY WAS
DENIED BY DIVISION 5 OF THE COMMISSION AND IS NO LONGER IN ISSUE AS
SCHAFFER DID NOT SEEK RECONSIDERATION.  WITH THIS EXCEPTION, THE
REQUESTED AUTHORITY WAS OPPOSED SOLELY BY RAILROADS WHICH PRESENTLY
SERVE THE POINTS INVOLVED. 

FN3  WHETHER THESE ADVANTAGES DEMONSTRATE THAT THE PUBLIC CONVENIENCE
AND NECESSITY REQUIRED SCHAFFER'S PROPOSED SERVICE IS NOT FOR US TO
SAY.  WE TAKE NOTE OF THEM ONLY TO INDICATE THAT SOME SHOWING OF NEED
WAS ESTABLISHED. 

FN4  THE AMERICAN TRUCKING ASSOCIATION, INC., WAS A PLAINTIFF BELOW
AND IS AN APPELLANT HERE.  THE UNITED STATES SUPPORTED THE ICC'S ORDER
IN THE DISTRICT COURT BUT HAS SINCE CONCLUDED "ON FURTHER ANALYSIS"
THAT THE ORDER IS ERRONEOUS; THE UNITED STATES THEREFORE OPPOSED IN
THIS COURT THE COMMISSION'S MOTION TO AFFIRM AND BOTH FILED A BRIEF AND
PRESENTED ORAL ARGUMENT IN SUPPORT OF APPELLANTS.  FIFTY-FOUR
RAILROADS, PRESENTLY SERVING THE AREAS FOR WHICH SCHAFFER SEEKS
OPERATING AUTHORITY, APPEAR AS APPELLEES ALONG WITH THE COMMISSION. 

FN5  "IT IS HEREBY DECLARED TO BE THE NATIONAL TRANSPORTATION POLICY
OF THE CONGRESS TO PROVIDE FOR FAIR AND IMPARTIAL REGULATION OF ALL
MODES OF TRANSPORTATION SUBJECT TO THE PROVISIONS OF THIS ACT, SO
ADMINISTERED AS TO RECOGNIZE AND PRESERVE THE INHERENT ADVANTAGES OF
EACH; TO PROMOTE SAFE, ADEQUATE, ECONOMICAL, AND EFFICIENT SERVICE AND
FOSTER SOUND ECONOMIC CONDITIONS IN TRANSPORTATION AND AMONG THE
SEVERAL CARRIERS; TO ENCOURAGE THE ESTABLISHMENT AND MAINTENANCE OF
REASONABLE CHARGES FOR TRANSPORTATION SERVICES, WITHOUT UNJUST
DISCRIMINATIONS, UNDUE PREFERENCES OR ADVANTAGES, OR UNFAIR OR
DESTRUCTIVE COMPETITIVE PRACTICES; TO COOPERATE WITH THE SEVERAL STATES
AND THE DULY AUTHORIZED OFFICIALS THEREOF; AND TO ENCOURAGE FAIR WAGES
AND EQUITABLE WORKING CONDITIONS; - ALL TO THE END OF DEVELOPING,
COORDINATING, AND PRESERVING A NATIONAL TRANSPORTATION SYSTEM BY WATER,
HIGHWAY, AND RAIL, AS WELL AS OTHER MEANS, ADEQUATE TO MEET THE NEEDS
OF THE COMMERCE OF THE UNITED STATES, OF THE POSTAL SERVICE, AND OF THE
NATIONAL DEFENSE.  ALL OF THE PROVISIONS OF THIS ACT SHALL BE
ADMINISTERED AND ENFORCED WITH A VIEW TO CARRYING OUT THE ABOVE
DECLARATION OF POLICY."  54 STAT. 899, 49 U.S.C. PRECEDING SEC. 1. 

FN6  INTERSTATE COMMERCE COMMISSION V. PARKER, 326 U.S. 60, 70. 

THE COMMISSION DID NOT PURPORT TO RELY ON ANY EVIDENCE INDICATING
WHAT REVENUE THE RAILROADS MIGHT LOSE BY CERTIFICATION OF THE
APPLICANT. 

FN7  OMAHA & C.B. RY. & BRIDGE CO. COMMON CARRIER APPLICATION, 52
M.C.C. 207, 234-235; POMPROWITZ EXTENSION - PACKING HOUSE PRODUCTS, 51
M.C.C. 343, 347-348; BLACK EXTENSION OF OPERATIONS - PREFABRICATED
HOUSES, 48 M.C.C. 695, 708-709; JOHNSON COMMON CARRIER APPLICATION, 18
M.C.C. 194, 195-196; WELLSPEAK COMMON CARRIER APPLICATION, 1 M.C.C.
712, 714. 

IN THE ONE EXCEPTION, YOUNGBLOOD EXTENSION OF OPERATIONS - CANTON,
N.C., 8 M.C.C. 193, THE MOTOR CARRIER'S APPLICATION WAS OPPOSED BY
OTHER MOTOR CARRIERS. 

MR. JUSTICE FRANKFURTER. 

THE TRANSPORTATION ACT OF 1940 (AMENDING THE INTERSTATE COMMERCE ACT)
GRANTS TO THE INTERSTATE COMMERCE COMMISSION POWERS AND IMPOSES
LIMITATIONS UPON THEIR EXERCISE IN TERMS OF GREATLY VARYING DEGREES OF
DEFINITENESS.  AS A CONSEQUENCE, THE RANGE OF DISCRETION LEFT TO THE
COMMISSION AND, CORRESPONDINGLY, THE SCOPE OF JUDICIAL REVIEW OF
COMMISSION ORDERS GREATLY VARY.  THUS, OUR DECISION THIS DAY IN NOS. 6
AND 8, AMERICAN TRUCKING ASSOCIATIONS V. UNITED STATES, POST, P. 141,
IS A STRIKING ILLUSTRATION OF THE DIFFERENCE BETWEEN THE LIMITATION TO
WHICH THE COMMISSION IS SUBJECTED IN A PROCEEDING UNDER SEC. 5(2)(B) OF
THE INTERSTATE COMMERCE ACT, 24 STAT. 379, AS AMENDED, 49 U.S.C. SEC.
5(2)(B), AND THE REQUIREMENTS OF SEC. 207 OF THAT ACT, AS AMENDED BY 49
STAT. 551, 49 U.S.C. SEC. 307, ALTHOUGH BOTH RELATE TO MOTOR CARRIER
SERVICE BY RAILROADS.  THE COMMISSION'S POWER TO GRANT RELIEF UNDER THE
UNDEFINED TERMS OF THE LONG-AND-SHORT-HAUL CLAUSE OF SEC. 4 OF THAT
ACT, AS AMENDED BY THE MANN-ELKINS ACT OF JUNE 18, 1910, 36 STAT. 539,
547, SEE INTERMOUNTAIN RATE CASES, 234 U.S. 476, WAS MODIFIED BY THE
SPECIFIC REQUIREMENTS WHICH CONGRESS WROTE INTO THE LONG-AND-SHORT-HAUL
CLAUSE IN SEC. 6 OF THE TRANSPORTATION ACT OF 1940, 54 STAT. 904, 49
U.S.C. SEC. 4(1).  IN SHORT, SOME RULES DEALING WITH THE REGULATION OF
SURFACE TRANSPORTATION ARE NARROWLY SPECIFIC, LEAVING PRACTICALLY NO
SCOPE FOR DISCRETION IN THEIR APPLICATION BY THE INTERSTATE COMMERCE
COMMISSION.  OTHER PROVISIONS ARE EXPRESSED IN TERMS WHICH NECESSARILY
LEAVE CONSIDERABLE SCOPE IN THE EVALUATION OF THEIR IMPLIED
INGREDIENTS, WHILE STILL OTHERS ARE OF SUCH BREADTH AS TO LEAVE EVEN
WIDER OPPORTUNITY FOR AN EXERCISE OF JUDGMENT BY THE COMMISSION NOT TO
BE DISPLACED BY A COURT'S INDEPENDENT JUDGMENT UNDER THE GUISE OF
JUDICIAL REVIEW. 

IN THE CASE BEFORE US, THE INTERSTATE COMMERCE COMMISSION DENIED AN
APPLICATION FOR A CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY UNDER
SEC. 207(A) OF THE INTERSTATE COMMERCE ACT, AS AMENDED.  ON REVIEW OF
THIS DENIAL, THE THREE-JUDGE DISTRICT COURT SUSTAINED THE COMMISSION. 
THIS COURT REVERSES THE DISTRICT COURT ON THE GROUND THAT THE
COMMISSION HAS FAILED TO ENFORCE THE NATIONAL TRANSPORTATION POLICY IN
SEC. 1 OF THE TRANSPORTATION ACT OF 1940, 54 STAT. 899, 49 U.S.C., AT
P. 7107.  THE VERY NAME OF THESE INTRODUCTORY RECITALS TO THE
TRANSPORTATION ACT ILLUMINES THEIR LEGAL SIGNIFICANCE:  "ALL OF THE
PROVISIONS OF THIS ACT SHALL BE ADMINISTERED AND ENFORCED WITH A VIEW
TO CARRYING OUT THE ABOVE DECLARATION OF POLICY."  CONGRESS THUS
CONVEYED TO THE COMMISSION A MOST GENERALIZED POINT OF VIEW FOR
CARRYING OUT ITS MANIFOLD, COMPLICATED AND FREQUENTLY ELUSIVE DUTIES. 
IN THE VERY NATURE OF THINGS THIS POLICY IS UNLIKE A MORE OR LESS
SPECIFIC RULE AFFORDING MORE OR LESS DEFINED CRITERIA FOR APPLICATION
IN A PARTICULAR CASE.  STILL LESS DOES IT AFFORD CONCRETE, DEFINABLE
CRITERIA FOR JUDICIAL OVERTURNING OF THE COMMISSION'S CONSCIENTIOUS
ATTEMPT TO TRANSLATE SUCH POLICY INTO CONCRETENESS IN A PARTICULAR
CASE. 

NO DOUBT THE COMMISSION IS UNDER OBLIGATION TO HEED WHAT WAS DECLARED
TO BE "THE NATIONAL TRANSPORTATION POLICY OF THE CONGRESS," NAMELY, "TO
PROVIDE FOR FAIR AND IMPARTIAL REGULATION OF ALL MODES OF
TRANSPORTATION SUBJECT TO THE PROVISIONS OF THIS ACT, SO ADMINISTERED
AS TO RECOGNIZE AND PRESERVE THE INHERENT ADVANTAGES OF EACH."  SURELY
THESE ARE NOT MECHANICAL OR SELF-DEFINING STANDARDS.  THEY INEVITABLY
IMPLY THE WIDEST AREAS FOR JUDGMENT TO BE EXERCISED, AS THE COMMISSION
HAS SOUGHT TO EXERCISE IT, WITH THE MASSIVE EXPERIENCE WHICH MUST BE
ATTRIBUTED TO IT IN THIS PARTICULAR CASE.  IT IS BECAUSE I FIND MYSELF
REGRETFULLY IN DISAGREEMENT WITH MY BRETHREN REGARDING THE NATURE AND
SCOPE OF THE PROBLEM OF JUDICIAL REVIEW IN A CASE LIKE THIS THAT I
WOULD AFFIRM THE JUDGMENT OF THE DISTRICT COURT. 

IT IS, HOWEVER, PERTINENT TO ADD THAT THE COURT'S DECISION MAY SERVE
A USEFUL PURPOSE IF IT WILL LEAD THE INTERSTATE COMMERCE COMMISSION,
DESPITE ITS ENORMOUS VOLUME OF BUSINESS, TO A MORE DETAILED AND
ILLUMINATING FORMULATION OF THE REASONS FOR THE JUDGMENT THAT IT
REACHES EVEN IN THAT CLASS OF CASES WHERE CONGRESS HAS RELIED ON THE
COMMISSION'S DISCRETION IN ENFORCING THE MOST BROADLY EXPRESSED
CONGRESSIONAL POLICY.  SINCE THE ORDERS IN SUCH CASES ALSO FALL UNDER
JUDICIAL SCRUTINY, IT IS DESIRABLE TO INSIST UPON PRECISION IN THE
FINDINGS AND THE REASONS FOR THE COMMISSION'S ACTION.