American Trucking Associations v. United States, 364 U.S. 1 (1960)

Topics:  American Trucking Associations

From the U.S. Government Printing Office via GPO Access
 
Case:   AMERICAN TRUCKING ASSOCIATIONS V. UNITED STATES 

Case #: 364US1


NO. 74.  ARGUED MAY 19, 1960 - DECIDED JUNE 27, 1960 - 170 F. SUPP. 38,
REVERSED. 


1.  IN THIS PROCEEDING UNDER SEC. 209(B) OF THE INTERSTATE COMMERCE
ACT, THE COMMISSION EXCEEDED ITS STUATUTORY AUTHORITY BY GRANTING TO A
MOTOR CARRIER SUBSIDIARY OF A RAILROAD PERMITS TO ACT AS A CONTRACT
CARRIER FOR A SINGLE SHIPPER FROM POINTS ON THE RAILROAD'S LINE IN
CALIFORNIA TO POINTS ON ITS LINE IN CERTAIN OTHER STATES, SINCE THE
COMMISSION NEITHER (1) IMPOSED CONDITIONS UPON THE PERMITS SUFFICIENT
TO ASSURE THAT THE SERVICE TO BE RENDERED WOULD BE TRULY AUXILIARY TO,
AND SUPPLEMENTAL OF, THE RAIL SERVICE, NOR (2) MADE FINDINGS SUFFICIENT
TO ESTABLISH THE EXISTENCE OF "SPECIAL CIRCUMSTANCES" JUSTIFYING THE
WAIVER OF SUCH RESTRICTIONS.  PP. 3-15. 

(A)  THE GENERAL POLICY UNDER SEC. 5(2)(B) AND THE NATIONAL
TRANSPORTATION POLICY OF RESTRICTING THE SERVICES OF MOTOR CARRIER
SUBSIDIARIES OF RAILROADS TO THOSE WHICH ARE AUXILIARY TO, OR
SUPPLEMENTAL OF, THE PARENT RAILROAD'S SERVICES IS APPLICABLE TO
PERMITS UNDER SEC. 209(B).  PP. 6-7. 

(B)  IF A TRUCKING SERVICE CAN FAIRLY BE CHARACTERIZED AS AUXILIARY
TO, OR SUPPLEMENTAL OF, TRAIN SERVICE, THERE IS COMPLIANCE WITH THE
MANDATE OF SEC. 5(2)(B) THAT THE RAILROAD SHOULD BE ABLE TO "USE
SERVICE BY MOTOR VEHICLE TO PUBLIC ADVANTAGE IN ITS OPERATIONS"; BUT,
IF THE MOTOR TRANSPORTATION IS ESSENTIALLY UNRELATED TO THE RAIL
SERVICE, THE PARENT RAILROAD IS INVADING THE FIELD OF TRUCKING, AND,
UNDER NORMAL CIRCUMSTANCES, THE NATIONAL TRANSPORTATION POLICY IS
THEREBY OFFENDED.  PP. 7-9. 

(C)  WHEN THERE ARE "SPECIAL CIRCUMSTANCES" SUFFICIENT TO JUSTIFY
SUCH ACTION IN THE PUBLIC INTEREST, HOWEVER, THE COMMISSION MAY
SOMETIMES REFRAIN FROM IMPOSING THE CONDITION THAT THE TRUCKING SERVICE
BE AUXILIARY TO, OR SUPPLEMENTAL OF, THE RAIL SERVICE.  AMERICAN
TRUCKING ASSOCIATIONS V. UNITED STATES, 355 U.S. 141.  PP. 10-11. 

(D)  THE CONDITIONS IMPOSED UPON THE PERMITS IN THIS CASE WERE NOT
SUFFICIENT TO RESTRICT THE MOTOR CARRIER TO OPERATIONS TRULY AUXILIARY
TO, OR SUPPLEMENTAL OF, THE RAIL SERVICE.  PP. 11-13. 

(E)  THE COMMISSION'S FINDINGS IN THIS CASE WERE NOT SUFFICIENT TO
ESTABLISH THE EXISTENCE OF "SPECIAL CIRCUMSTANCES" JUSTIFYING THE
WAIVER OF SUCH RESTRICTIONS.  PP. 13-15. 

2.  INSOFAR AS IT PERTAINS TO THE PERMITS TO SERVE POINTS ON THE
RAILROAD'S LINES, THE JUDGMENT OF THE DISTRICT COURT DENYING RELIEF IS
REVERSED, AND THE CASE IS REMANDED TO THE COMMISSION FOR SUCH FURTHER
PROCEEDINGS, NOT INCONSISTENT WITH THIS OPINION, AS MAY BE
APPROPRIATE.  PP. 15-17. 

3.  THE REVERSAL AND REMAND, HOWEVER, DO NOT APPLY TO THE
COMMISSION'S GRANT OF AUTHORITY TO PROVIDE CONTRACT CARRIER SERVICE TO
THREE NONRAIL POINTS IN NEVADA.  P. 17. 

4.  APPELLANTS, SIX MOTOR CARRIERS AND THREE ASSOCIATIONS OF MOTOR
CARRIERS, HAD STANDING TO MAINTAIN THEIR ACTION TO SET ASIDE THE
COMMISSION'S ORDER, UNDER THE "PARTY IN INTEREST" CRITERION OF SEC.
205(G) OF THE INTERSTATE COMMERCE ACT AND UNDER THE "PERSON SUFFERING
LEGAL WRONG  ..  ORR ADVERSELY AFFECTED OR AGGRIEVED" CRITERION OF SEC.
10(A) OF THE ADMINISTRATIVE PROCEDURE ACT.  PP. 17-18. 

AMERICAN TRUCKING ASSOCIATIONS, INC., ET AL. V. UNITED STATES ET AL. 

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA. 

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

THE PRINCIPAL QUESTION PRESENTED ON THIS APPEAL IS WHETHER THE
APPELLEE INTERSTATE COMMERCE COMMISSION PROPERLY DECLINED TO IMPOSE
CERTAIN RESTRICTIONS UPON MOTOR CARRIER PERMITS IT ISSUED TO A TRUCKING
COMPANY WHICH IS A SUBSIDIARY OF A RAILROAD. 

THE PERMITS IN QUESTION ARE DESIGNED TO ALLOW APPELLEE PACIFIC MOTOR
TRUCKING COMPANY, A WHOLLY OWNED SUBSIDIARY OF SOUTHERN PACIFIC
COMPANY, TO PERFORM A PARTICULAR TYPE OF TRANSPORTATION SERVICE FOR
APPELLEE GENERAL MOTORS CORPORATION.  PRIOR TO ISSUANCE OF THESE
PERMITS, PACIFIC MOTOR ALREADY HAD BEEN AUTHORIZED TO CONDUCT CERTAIN
TRUCKING ACTIVITIES IN A NUMBER OF STATES INTO WHICH SOUTHERN PACIFIC'S
EXTENSIVE RAILWAY SYSTEM PENETRATES.  WITHOUT ADVERTING TO IMMATERIAL
DETAILS, THAT AUTHORITY MAY BE DESCRIBED AS FOLLOWS:  PACIFIC MOTOR
HELD COMMON CARRIER CERTIFICATES FROM THE COMMISSION FOR THE
TRANSPORTATION OF COMMODITIES, BY WAY OF SERVICE AUXILIARY TO AND
SUPPLEMENTAL OF SOUTHERN PACIFIC RAIL SERVICE, OVER ROUTES PARALLELING
SOUTHERN PACIFIC LINES IN OREGON, CALIFORNIA, NEVADA, ARIZONA, NEW
MEXICO, AND TEXAS.  IT ALSO HELD CONTRACT CARRIER AUTHORITY FROM THE
STATE OF CALIFORNIA FOR INTRASTATE TRANSPORTATION OF TRUCKS AND
AUTOMOBILES.  FINALLY, IT HAD BEEN GRANTED CONTRACT CARRIER PERMITS BY
THE COMMISSION FOR THE TRANSPORTATION OF AUTOMOBILES, TRUCKS, AND BUSES
FROM CERTAIN POINTS IN CALIFORNIA TO THREE NONRAIL POINTS IN NEVADA, TO
TWO POINTS ON THE MEXICAN BORDER, TO CERTAIN POINTS IN LOS ANGELES
HARBOR, AND TO POINTS IN NEVADA LOCATED ON THE SOUTHERN PACIFIC LINE. 
THESE LATTER CONTRACT CARRIER PERMITS DID NOT CONTAIN RESTRICTIONS
DESIGNED TO MAKE THE SERVICE AUXILIARY TO AND SUPPLEMENTAL OF SOUTHERN
PACIFIC RAIL SERVICE.  PACIFIC MOTOR'S ONLY CONTRACT CARRIER SHIPPER
HAS BEEN GENERAL MOTORS. 

BY THE FOUR APPLICATIONS WHICH GAVE RISE TO THE PRESENT CONTROVERSY,
PACIFIC MOTOR SOUGHT TO EXTEND THE SCOPE OF ITS CONTRACT CARRIER
SERVICE FOR GENERAL MOTORS.  IT REQUESTED AUTHORIZATION FROM THE
COMMISSION FOR THE TRANSPORTATION OF NEW AUTOMOTIVE EQUIPMENT FROM
PLANTS OF GENERAL MOTORS AT OAKLAND, RAYMER, AND SOUTH GATE,
CALIFORNIA, TO VARIOUS INTERSTATE DESTINATIONS NOT INCLUDED WITHIN ITS
PRIOR PERMITS.  GENERALLY SPEAKING, THE FIRST APPLICATION, DESIGNATED
SUB 34, COVERED CONTRACT CARRIER SERVICE FROM THE OAKLAND PLANTS TO
POINTS ON THE SOUTHERN PACIFIC LINE IN OREGON; THE SECOND, SUB 35,
COVERED SIMILAR SERVICE TO THREE NEVADA NONRAIL POINTS; THE THIRD, SUB
36, COVERED TRANSPORTATION FROM THE RAYMER PLANT TO POINTS IN ARIZONA
WHICH ARE STATIONS ON THE SOUTHERN PACIFIC LINE; AND THE LAST - AND
BROADEST - APPLICATION, SUB 37, COVERED TRANSPORTATION FROM THE
OAKLAND, RAYMER, AND SOUTH GATE PLANTS TO POINTS IN SEVEN STATES,
WHETHER OR NOT ON THE SOUTHERN PACIFIC LINE.  (FN1) 

THE COMMISSION PROCEEDINGS RESULTED IN THE GRANT OF SOME, BUT NOT
ALL, OF THE REQUESTED AUTHORITY.   ON MAY 8, 1957, THE COMMISSION ACTED
FAVORABLY ON THE SUB 34 APPLICATION.  71 M.C.C. 561.  HOWEVER, THE
COMMISSION THEREAFTER CONSOLIDATED THE FOUR APPLICATIONS AND HEARD ORAL
ARGUMENT.  ON SEPTEMBER 9, 1958, THE COMMISSION ISSUED ITS FINAL
REPORT, 77 M.C.C. 605, WHICH MAY BE DESCRIBED SPECIFICALLY ENOUGH FOR
OUR PURPOSES AS AUTHORIZING TRANSPORTATION BY PACIFIC MOTOR TO THE
THREE ADDITIONAL NEVADA NONRAIL POINTS AND TO POINTS ON THE SOUTHERN
PACIFIC LINE IN NEVADA, UTAH, ARIZONA, OREGON, AND NEW MEXICO.  (FN2)
OTHERWISE, THE APPLICATIONS WERE DENIED.  THERE WERE CERTAIN OTHER
CONDITIONS IMPOSED BY THE COMMISSION, WHICH WE WILL DETAIL LATER, BUT
THE MAJOR RESTRICTION WAS THE LIMITATION OF POINTS OF DESTINATION TO
POINTS ON THE SOUTHERN PACIFIC LINE. 

APPELLANTS - AMERICAN TRUCKING ASSOCIATIONS, INC., ITS CONTRACT
CARRIER CONFERENCE, THE NATIONAL AUTOMOBILE TRANSPORTERS ASSOCIATION,
AND SIX MOTOR CARRIERS - BROUGHT SUIT IN FEDERAL DISTRICT COURT TO SET
ASIDE THE COMMISSION'S ORDER.  SEE 28 U.S.C.  SEC. 1336.  APPELLEES
PACIFIC MOTOR AND GENERAL MOTORS INTERVENED IN SUPPORT OF THE ORDER. 
THE UNITED STATES WAS NAMED A PARTY DEFENDANT, TOGETHER WITH THE
INTERSTATE COMMERCE COMMISSION, BUT DID NOT EITHER PARTICIPATE IN OR
OPPOSE THE DEFENSE.  SEE 28 U.S.C. SEC. 2323.  A THREE-JUDGE COURT,
WHICH WAS CONVENED PURSUANT TO 28 U.S.C.  SECS. 2325 AND 2284, DENIED
RELIEF.  170 F. SUPP. 38.  OUR APPELLATE JURISDICTION WAS INVOKED UNDER
28 U.S.C. SEC. 1253, AND WE NOTED PROBABLE JURISDICTION.  361 U.S.
806.  IN THIS COURT, THE COMMISSION OPPOSES AND THE UNITED STATES
SUPPORTS THE APPELLANTS. 

THERE IS A PRELIMINARY CHALLENGE BY PACIFIC MOTOR AND GENERAL MOTORS
TO APPELLANTS' STANDING, A CHALLENGE WHICH WAS SUSTAINED BY TWO MEMBERS
OF THE LOWER COURT.  WE DISAGREE WITH THIS HOLDING.  SINCE THE BASIS
FOR OUR VIEW ON THE PROBLEM OF STANDING WILL BE MORE READILY
APPRECIATED AFTER THE MERITS OF THE CASE HAVE BEEN FULLY TREATED, WE
POSTPONE OUR DISCUSSION OF THIS MATTER. 

THE CRITICAL ISSUE RAISED BY APPELLANTS IS WHETHER THE COMMISSION
EXCEEDED ITS STATUTORY AUTHORITY BY GRANTING THE PERMITS IN QUESTION TO
A RAILROAD SUBSIDIARY WITHOUT IMPOSING MORE STRINGENT LIMITATIONS THAN
IT DID.  ON THIS QUESTION, THE LOWER COURT UNANIMOUSLY RULED AGAINST
APPELLANTS.  THIS JUDGMENT MUST BE EVALUATED IN THE LIGHT OF THIS
COURT'S PREVIOUS DECISIONS, SET AGAINST THE BACKGROUND OF COMMISSION
PRACTICE. 

BOTH THE COMMISSION AND THIS COURT HAVE RECOGNIZED THAT CONGRESS HAS
EXPRESSED A STRONG GENERAL POLICY AGAINST RAILROAD INVASION OF THE
MOTOR CARRIER FIELD.  THIS POLICY IS EVINCED IN A GENERAL WAY IN THE
PREAMBLE TO THE 1940 AMENDMENTS TO THE INTERSTATE COMMERCE ACT - THE
NATIONAL TRANSPORTATION POLICY, 54 STAT. 899 - WHICH ARTICULATES THE
CONGRESSIONAL PURPOSE THAT THE ACT BE "SO ADMINISTERED AS TO RECOGNIZE
AND PRESERVE THE INHERENT ADVANTAGES" OF "ALL MODES OF
TRANSPORTATION."  MORE PARTICULARLY, CONGRESS' ATTITUDE IS REFLECTED BY
A PROVISO TO SEC. 5(2)(B) OF THE ACT, (FN3) WHICH ENJOINS THE
COMMISSION TO WITHHOLD APPROVAL OF AN ACQUISITION BY A RAILROAD OF A
MOTOR CARRIER "UNLESS IT FINDS THAT THE TRANSACTION PROPOSED WILL BE
CONSISTENT WITH THE PUBLIC INTEREST AND WILL ENABLE SUCH CARRIER TO USE
SERVICE BY MOTOR VEHICLE TO PUBLIC ADVANTAGE IN ITS OPERATIONS AND WILL
NOT UNDULY RESTRAIN COMPETITION." 

THE COMMISSION LONG AGO CONCLUDED THAT THE POLICY OF THE
TRANSPORTATION LEGISLATION REQUIRES THAT THE STANDARDS OF SEC. 5(2)(B)
THEN SEC. 213(A) OF THE MOTOR CARRIER ACT OF 1935, 49 STAT. 555 - BE
FOLLOWED AS A GENERAL RULE IN OTHER SITUATIONS, NOTABLY IN APPLICATIONS
FOR COMMON CARRIER CERTIFICATES OF CONVENIENCE AND NECESSITY UNDER SEC.
207.  (FN4)  KANSAS CITY SOUTHERN TRANSPORT CO., COMMON CARRIER
APPLICATION, 10 M.C.C.  221 (1938).  AND THIS COURT HAS CONFIRMED THE
CORRECTNESS OF THE COMMISSION'S CONCEPTION OF ITS RESPONSIBILITIES
UNDER BOTH SEC. 5(2)(B) AND SEC. 207.  SEE UNITED STATES V. ROCK ISLAND
MOTOR TRANSIT CO., 340 U.S. 419; UNITED STATES V. TEXAS & PACIFIC MOTOR
TRANSPORT CO., 340 U.S. 450; INTERSTATE COMMERCE COMM'N V. PARKER, 326
U.S. 60.  THE COURT HAS ALSO TAKEN COGNIZANCE OF THE CONGRESSIONAL
CONFIRMATION OF THE COMMISSION'S POLICY BY THE 1940 RE-ENACTMENT IN
SEC. 5(2)(B) OF THE PROVISIONS OF SEC. 213(A), AFTER SOME OF THE
PERTINENT COMMISSION DECISIONS HAD BEEN SPECIFICALLY CALLED TO
CONGRESS' ATTENTION.  SEE UNITED STATES V. ROCK ISLAND MOTOR TRANSIT
CO., SUPRA, AT 432.  AND ALTHOUGH THE INSTANT PROCEEDING INVOLVES
CONTRACT CARRIER APPLICATIONS AND HENCE FALLS UNDER SEC. 209, (FN5) THE
COMMISSION IN ITS OPINION RECOGNIZED THAT, FOR PURPOSES OF THE
RELEVANCE OF THE SEC. 5(2)(B) STANDARDS, THERE IS NO DISTINCTION
BETWEEN THIS TYPE OF CASE AND PROCEEDINGS ARISING UNDER SEC. 207.  77
M.C.C. 621-622.  NOR CAN WE DISCERN ANY GROUNDS FOR DIFFERENTIATION. 

THUS IT IS EVIDENT THAT THE POLICY OF OPPOSITION TO RAILROAD
INCURSIONS INTO THE FIELD OF MOTOR CARRIER SERVICE HAS BECOME FIRMLY
ENTRENCHED AS A PART OF OUR TRANSPORTATION LAW.  MOREOVER, THIS GENERAL
POLICY FORTUNATELY HAS NOT BEEN IMPLEMENTED MERELY BY WAY OF A MORE OR
LESS UNGUIDED SUSPICION OF RAILROAD SUBSIDIARIES, BUT RATHER HAS
EVOLVED THROUGH A SERIES OF COMMISSION DECISIONS FROM EMBRYONIC FORM
INTO A SET OF REASONABLY FIRM, CONCRETE STANDARDS.  (FN6)  THE
COMMISSION'S OPINION IN THE CASE AT BAR DESCRIBES THESE STANDARDS AS
FOLLOWS: 

"THE RESTRICTIONS USUALLY IMPOSED IN COMMON-CARRIER CERTIFICATES
ISSUED TO RAIL CARRIERS OR THEIR AFFILIATES IN ORDER TO INSURE THAT THE
SERVICE RENDERED THEREUNDER SHALL BE NO MORE THAN THAT WHICH IS
AUXILIARY TO OR SUPPLEMENTAL OF TRAIN SERVICE ARE:  (1) THE SERVICE BY
MOTOR VEHICLE TO BE PERFORMED BY RAIL CARRIER OR BY A RAIL-CONTROLLED
MOTOR SUBSIDIARY SHOULD BE LIMITED TO SERVICE WHICH IS AUXILIARY TO OR
SUPPLEMENTAL OF RAIL SERVICE, (2) APPLICANT SHALL NOT SERVE ANY POINT
NOT A STATION ON THE RAILROAD, (3) A KEY-POINT REQUIREMENT OR A
REQUIREMENT THAT SHIPMENTS TRANSPORTED BY MOTOR SHALL BE LIMITED TO
THOSE WHICH IT RECEIVES FROM OR DELIVERS TO THE RAILROAD UNDER A
THROUGH BILL OF LADING AT RAIL RATES COVERING, IN ADDITION TO THE
MOVEMENT BY APPLICANT, A PRIOR OR SUBSEQUENT MOVEMENT BY RAIL, (4) ALL
CONTRACTS BETWEEN THE RAIL CARRIER AND THE MOTOR CARRIER SHALL BE
REPORTED TO THE COMMISSION AND SHALL BE SUBJECT TO REVISION IF AND AS
THE COMMISSION FINDS IT TO BE NECESSARY IN ORDER THAT SUCH ARRANGEMENTS
SHALL BE FAIR AND EQUITABLE TO THE PARTIES, AND (5) SUCH FURTHER
SPECIFIC CONDITIONS AS THE COMMISSION, IN THE FUTURE, MAY FIND IT
NECESSARY TO IMPOSE IN ORDER TO INSURE THAT THE SERVICE SHALL BE
AUXILIARY TO, OR SUPPLEMENTAL OF, TRAIN SERVICE  .. ."  

THE KEY PHRASE IN THIS SUMMARY IS OBVIOUSLY "AUXILIARY TO OR
SUPPLEMENTAL OF TRAIN SERVICE."  IF A TRUCKING SERVICE CAN FAIRLY BE SO
CHARACTERIZED, IT IS CLEAR ENOUGH THAT THERE IS COMPLIANCE WITH THE
MANDATE OF SEC. 5(2)(B) THAT THE CARRIER SHOULD BE ABLE "TO USE SERVICE
BY MOTOR VEHICLE TO PUBLIC ADVANTAGE IN ITS OPERATIONS."  BUT IF, ON
THE OTHER HAND, THE MOTOR TRANSPORTATION IS ESSENTIALLY UNRELATED TO
RAIL SERVICE, THE RAILROAD PARENT IS INVADING THE FIELD OF TRUCKING,
AND, UNDER NORMAL CIRCUMSTANCES, THE NATIONAL TRANSPORTATION POLICY IS
THEREBY OFFENDED. 

IT IS THIS "AUXILIARY TO OR SUPPLEMENTAL OF" VERBALIZATION OF THE
POLICY OF SEC. 5(2)(B), AS APPLIED TO SEC. 207, THAT HAS FOUND FAVOR IN
THIS COURT.  SEE AMERICAN TRUCKING ASSNS.  V. UNITED STATES, 355 U.S.
141; UNITED STATES V. ROCK ISLAND MOTOR TRANSIT CO., SUPRA; UNITED
STATES V. TEXAS & PACIFIC MOTOR TRANSPORT CO., SUPRA; INTERSTATE
COMMERCE COMM'N V. PARKER, SUPRA.  MOREOVER, WHILE THE COURT HAS NOT
SPECIFIED THE MORE PARTICULARIZED RESTRICTIONS WHICH IT MIGHT REGARD AS
ESSENTIAL CONSTITUENTS OF THE "AUXILIARY TO OR SUPPLEMENTAL OF"
CONCEPT, IT IS SIGNIFICANT THAT THE COURT IN ROCK ISLAND APPARENTLY
ACCEPTED THE COMMISSION'S VIEW THAT THE PHRASE IMPLIES A LIMITATION OF
FUNCTION, I.E., TYPE OF TRUCKING SERVICE, AND NOT MERELY A GEOGRAPHICAL
LIMITATION, I.E., PLACE WHERE THE SERVICE IS PERFORMED.  (FN7)  340
U.S., AT 436-444. 

BUT WHILE THE JUDICIAL AND ADMINISTRATIVE CURRENT HAS RUN STRONGLY IN
FAVOR OF AUXILIARY AND SUPPLEMENTAL RESTRICTIONS ON MOTOR CARRIER
SUBSIDIARIES OF RAILROADS, THE COMMISSION HAS DETERMINED, AND THIS
COURT HAS AGREED, THAT THE PUBLIC INTEREST MAY SOMETIMES BE PROMOTED BY
NOT IMPOSING SUCH LIMITATIONS.  A PRIME EXAMPLE IS AMERICAN TRUCKING
ASSNS.  V. UNITED STATES, SUPRA, WHERE THE TRUCKING SERVICE WAS NOT
BEING PERFORMED ADEQUATELY BY INDEPENDENT MOTOR CONCERNS.  WE THERE
OBSERVED THAT THE MANDATORY PROVISIONS OF SEC. 5(2)(B) DO NOT APPEAR IN
SEC. 207, AND APPROVED THE COMMISSION'S POLICY OF NOT ATTACHING
AUXILIARY AND SUPPLEMENTAL RESTRICTIONS WHERE "SPECIAL CIRCUMSTANCES"
PREVAIL.  WE CONCLUDED: 

"WE REPEAT  ..  THHAT THE UNDERLYING POLICY OF SEC. 5(2)(B) MUST NOT
BE DIVORCED FROM PROCEEDINGS FOR NEW CERTIFICATES UNDER SEC. 207. 
INDEED, THE COMMISSION MUST TAKE 'COGNIZANCE' OF THE NATIONAL
TRANSPORTATION POLICY AND APPLY THE ACT 'AS A WHOLE.'  BUT  ..  WEE DO
NOT BELIEVE THAT THE COMMISSION ACTS BEYOND ITS STATUTORY AUTHORITY
WHEN IN THE PUBLIC INTEREST IT OCCASIONALLY DEPARTS FROM THE AUXILIARY
AND SUPPLEMENTARY LIMITATIONS IN A SEC. 207 PROCEEDING."  355 U.S., AT
151-152. 

THESE, THEN, ARE THE GUIDING PRINCIPLES WHICH HAVE BEEN ESTABLISHED
BY WHAT HAS GONE BEFORE AND WHICH MARK THE RANGE OF OUR INQUIRY IN THIS
CASE.  SINCE, AS WE HAVE INDICATED, THE COMMISSION BELIEVES, AND WE
AGREE, THAT THERE IS NO RELEVANT DIFFERENCE BETWEEN A SEC.  207
PROCEEDING AND A SEC. 209 PROCEEDING SO FAR AS THE PROBLEM HERE
INVOLVED IS CONCERNED, THE DECISIVE QUESTIONS ARE: (1) DID THE
COMMISSION IMPOSE CONDITIONS UPON THE PERMITS ISSUED TO PACIFIC MOTOR
UNDER WHICH THE SERVICE TO BE RENDERED WOULD BE TRULY AUXILIARY TO AND
SUPPLEMENTAL OF SOUTHERN PACIFIC'S RAIL SERVICE?  (2) IF NOT, WAS THE
COMMISSION'S WAIVER OF SUCH RESTRICTIONS JUSTIFIED BY "SPECIAL
CIRCUMSTANCES"?    THE FIRST QUESTION NEED NOT DETAIN US LONG.  THE
PRINCIPAL PERMITS WERE QUALIFIED ONLY BY THE FOLLOWING CONDITIONS:  (1)
THE SERVICE WAS TO BE RESTRICTED TO POINTS WHICH ARE STATIONS ON THE
SOUTHERN PACIFIC LINE; (2) "THERE MAY FROM TIME TO TIME IN THE FUTURE
BE ATTACHED TO THE PERMITS ..  SUUCH REASONABLE TERMS, CONDITIONS, AND
LIMITATIONS AS THE PUBLIC INTEREST AND NATIONAL TRANSPORTATION POLICY
MAY REQUIRE"; AND (3) PACIFIC MOTOR WAS TO REQUEST THE IMPOSITION OF
RESTRICTIONS UPON ITS OUTSTANDING CERTIFICATES WITH RESPECT TO THE
TRANSPORTATION OF AUTOMOBILES AND TRUCKS. 

THE LAST RESTRICTION WAS DESIGNED TO OBVIATE ANY DUAL OPERATION
PROBLEM UNDER SEC.  210, (FN8) AND IS NOT PERTINENT TO THE AUXILIARY
AND SUPPLEMENTAL STANDARD.  SEE 77 M.C.C., AT 624.  THE SECOND
CONDITION OBVIOUSLY IS NO RESTRICTION AT ALL ON PRESENT OPERATIONS, AND
HENCE CAN HARDLY BE SAID TO LIMIT THE TRUCKING TO AN AUXILIARY OR
SUPPLEMENTAL SERVICE.  WE SO RECOGNIZED IN AMERICAN TRUCKING
ASSOCIATIONS, WHERE THE CERTIFICATES CONTAINED A SIMILAR RESTRICTION. 
355 U.S., AT 154.  AND THE FIRST LIMITATION, UPON WHICH APPELLEES
PRINCIPALLY RELY, IS BUT A GEOGRAPHICAL, NOT A FUNCTIONAL,
RESTRICTION.  AS WE HAVE NOTED, ROCK ISLAND GIVES STRONG SUPPORT TO THE
VIEW THERE EXPRESSED BY THE COMMISSION THAT THE ESSENCE OF AUXILIARY
AND SUPPLEMENTAL LIMITATION IS FUNCTIONAL CONTROL.  WHILE IT MAY BE
TRUE, AS APPELLEES ARGUE, THAT SUCH A GEOGRAPHICAL LIMITATION IS A
NECESSARY INGREDIENT OF AN AUXILIARY AND SUPPLEMENTAL RESTRICTION, IT
DOES NOT BY ANY MEANS FOLLOW THAT THIS INGREDIENT MAKES THE WHOLE. 
MOREOVER, WE HAVE THE STRONGEST EVIDENCE THAT THE COMMISSION DID NOT
BELIEVE THAT IT DID, SINCE THE COMMISSION SPECIFICALLY REFRAINED FROM
IMPOSING THE MOST GENERAL, BUT OBVIOUSLY THE MOST SIGNIFICANT,
RESTRICTION - THAT "THE SERVICE BY MOTOR VEHICLE  ..  SHHOULD BE
LIMITED TO SERVICE WHICH IS AUXILIARY TO OR SUPPLEMENTAL OF RAIL
SERVICE."  77 M.C.C., AT 622-623.  THE CONCLUSION SEEMS INESCAPABLE
THAT THE CONDITIONS IMPOSED UPON THE PERMITS TO PACIFIC MOTOR, THOUGH
UNDOUBTEDLY "RESTRICTIONS" IN A GENERAL SENSE, WERE NOT LIMITATIONS
SUFFICIENT TO HOLD PACIFIC MOTOR TO A TRULY AUXILIARY AND SUPPLEMENTAL
SERVICE. 

APPELLEES URGE THAT NONETHELESS THERE WERE "SPECIAL CIRCUMSTANCES"
WITHIN THE MEANING OF AMERICAN TRUCKING ASSOCIATIONS.  APPELLEES POINT
TO VARIOUS FINDINGS OF FACT BY THE COMMISSION, SUCH AS THE NEED OF
GENERAL MOTORS FOR A SERVICE OF THE TYPE HERE INVOLVED, PACIFIC MOTOR'S
EXPERIENCE AND QUALIFICATIONS, AND THE UNLIKELIHOOD THAT A SIGNIFICANT
AMOUNT OF TRAFFIC WOULD BE DIVERTED FROM RAIL TO MOTOR TRANSPORTATION
EVEN IF THE PERMITS WERE GRANTED.  THE DIFFICULTY WITH APPELLEES'
ARGUMENT IS THAT THE COMMISSION DID NOT FIND THAT CONSIDERATIONS OF
THIS NATURE CONSTITUTED "SPECIAL CIRCUMSTANCES" UNDER THE AMERICAN
TRUCKING ASSOCIATIONS RULE, BUT RATHER VIEWED THEM SIMPLY AS SUPPORTING
THE BASIC DETERMINATIONS WHICH IT WAS REQUIRED TO MAKE UNDER SEC.
209(B) IN ORDER TO ISSUE A CONTRACT CARRIER PERMIT TO ANY APPLICANT. 
(FN9)  AND NATURALLY WE SHOULD NOT SUBSTITUTE OUR JUDGMENT FOR THE
COMMISSION'S ON A MATTER LIKE THIS, FOR "THE GROUNDS UPON WHICH AN
ADMINISTRATIVE ORDER MUST BE JUDGED ARE THOSE UPON WHICH THE RECORD
DISCLOSES THAT ITS ACTION WAS BASED."  SECURITIES & EXCHANGE COMM'N V.
CHENERY CORP., 318 U.S. 80, 87. 

THE COMMISSION ASSIGNED BUT A SINGLE REASON FOR NOT IMPOSING THE
NORMAL RESTRICTIONS UPON THE PACIFIC MOTOR PERMITS:  TO DO SO WOULD
COMPEL PACIFIC MOTOR TO CONDUCT A COMMON CARRIER SERVICE.  APPELLEES
SUPPORT THIS DECISION UPON THE GROUND THAT THE COMMISSION IS WITHOUT
AUTHORITY UNDER SEC. 209(B) TO IMPOSE SUCH CHARACTER-DESTROYING
CONDITIONS UPON A CONTRACT CARRIER PERMIT.  (FN10)  WE NEED NOT
DETERMINE WHETHER THE COMMISSION POSSESSES THE POWER TO ATTACH SUCH
LIMITATIONS, OR, IN THE ALTERNATIVE, TO AWARD A COMMON CARRIER
CERTIFICATE, SINCE WE BELIEVE THAT, IN ANY EVENT, THE COMMISSION'S
REASON IS INSUFFICIENT JUSTIFICATION FOR ITS ACTION.  ASSUMING THAT THE
RESTRICTIONS WHICH WOULD LIMIT PACIFIC MOTOR'S OPERATIONS TO AN
AUXILIARY AND SUPPLEMENTAL SERVICE WOULD ALSO BE INCOMPATIBLE WITH A
CONTRACT CARRIER OPERATION, AND THAT THE COMMISSION WAS CONSEQUENTLY
POWERLESS TO IMPOSE THOSE RESTRICTIONS, THIS ALONE DOES NOT, IN OUR
VIEW, MEET THE "SPECIAL CIRCUMSTANCES" TEST.  THERE IS, FOR EXAMPLE, NO
FINDING THAT INDEPENDENT CONTRACT CARRIERS WERE UNABLE OR UNWILLING TO
PERFORM THE SAME TYPE OF SERVICE AS PACIFIC MOTOR.  IN SUCH A SITUATION
WE DO NOT BELIEVE THAT THE POLICY OF THE ACT ALLOWS THE COMMISSION TO
AUTHORIZE SERVICE BY PACIFIC MOTOR, LIMITED ONLY TO POINTS ON THE
SOUTHERN PACIFIC LINE, SIMPLY BECAUSE GENERAL MOTORS WANTS A CONTRACT
CARRIER OPERATION.  IF THAT DESIRE OF GENERAL MOTORS, IN COMBINATION
WITH THE POLICY OF THE ACT, DISABLES A RAILROAD SUBSIDIARY FROM
OBTAINING THE BUSINESS, THAT IS SIMPLY THE RESULT OF THE NATIONAL
TRANSPORTATION POLICY.  (FN11)  THIS CONSEQUENCE, WE BELIEVE, DOES NOT
MEET THE COMPELLING PUBLIC INTEREST STANDARD ESTABLISHED BY AMERICAN
TRUCKING ASSOCIATIONS.  A CONTRARY CONCLUSION WOULD OPEN THE DOOR TO
APPROVAL OF OVER-THE-ROAD CONTRACT TRUCKING BY RAILROAD SUBSIDIARIES TO
MOST, IF NOT VIRTUALLY ALL, MAJOR DESTINATIONS, AND HENCE WOULD GREATLY
ATTENUATE THE SAFEGUARDS WHICH HAVE BEEN PAINSTAKINGLY ERECTED TO
PREVENT RAILROAD DOMINATION OF TRUCKING.  APPELLEES SAY THAT THESE
SAFEGUARDS ARE NO LONGER NEEDED, BECAUSE INDEPENDENT TRUCKING IS NO
LONGER AN "INFANT INDUSTRY."  THIS IS AN IMMATERIAL ARGUMENT IN THIS
FORUM.  WE DO NOT CONDEMN THE WISDOM OF THE COMMISSION'S ACTION.  WE
SIMPLY SAY THAT THE TRANSPORTATION LEGISLATION DOES, AND THAT THE
PARDONING POWER IN THIS CASE BELONGS TO CONGRESS. 

THUS THE DECISION OF THE DISTRICT COURT MUST BE REVERSED, BECAUSE WE
CONCLUDE THAT THE COMMISSION FELL INTO ERROR OF LAW.  THE QUESTION THEN
ARISES WHETHER THERE SHOULD BE A REMAND WHICH PERMITS FURTHER
PROCEEDINGS.  APPELLANTS ARGUE THAT THERE SHOULD NOT BE, BECAUSE THE
COMMISSION, ACCORDING TO APPELLANTS, FOUND THAT THERE WERE NO SPECIAL
CIRCUMSTANCES ASIDE FROM THE ALLEGED IMPOSSIBILITY OF IMPOSING THE
USUAL RESTRICTIONS UPON A CONTRACT CARRIER.  IT IS TRUE THAT THE
COMMISSION BASED THE RAIL-POINT RESTRICTION UPON "THE ABSENCE OF ANY
SHOWING OF UNUSUAL CONDITIONS."  77 M.C.C., AT 623.  BUT WE CANNOT BE
CERTAIN THAT THE COMMISSION THEREBY INTENDED TO SAY THAT THERE WERE NO
SPECIAL CIRCUMSTANCES WITHIN THE MEANING OF THE AMERICAN TRUCKING
ASSOCIATIONS PRINCIPLE.  AS WE HAVE POINTED OUT, THE RAIL-POINT
RESTRICTION, STANDING ALONE, IS DIFFERENT IN KIND FROM LIMITATIONS
WHICH IMPOSE AN AUXILIARY AND SUPPLEMENTAL SERVICE.  CONSEQUENTLY, WE
CANNOT BE SURE THAT THE COMMISSION BELIEVES THE SAME SORT OF
CIRCUMSTANCES DETERMINE THE APPLICABILITY OF BOTH TYPES OF
RESTRICTIONS.  MOREOVER, THE COMMISSION'S DISCUSSION OF THIS POINT IS
OPEN TO THE INTERPRETATION THAT IT WAS REPEATING SOME OF ITS
CONCLUSIONS WITH RESPECT TO THE SEC. 209(B) STANDARDS, E.G., "THE
EFFECT WHICH GRANTING THE PERMIT WOULD HAVE UPON THE SERVICES OF THE
PROTESTING CARRIERS."  SEE NOTE 9, SUPRA.  (FN12)  UNDER THESE
CIRCUMSTANCES, WE WOULD BE WARRANTED IN PRECLUDING FURTHER PROCEEDINGS
ONLY IF, BY AN INDEPENDENT SEARCH OF THE RECORD, WE WERE ABLE TO
CONCLUDE THAT, AS A MATTER OF LAW, THERE ARE NO FACTORS PRESENT WHICH
THE COMMISSION COULD HAVE REGARDED AS SPECIAL CIRCUMSTANCES.  ALTHOUGH
THE FINDINGS OF THE COMMISSION WHICH ARE REFLECTED IN ITS OPINION DO
NOT SEEM TO US TO COMPLY WITH THE AMERICAN TRUCKING ASSOCIATIONS
STANDARD, AS THE SILENCE OF THE COMMISSION SEEMS TO IMPLY, WE ARE
UNWILLING IN A COMPLICATED PROCEEDING OF THIS NATURE TO DEAL WITH THIS
PROBLEM AB INITIO OR TO SAY THAT THE COMMISSION COULD NOT HAVE MADE
ADDITIONAL FINDINGS ON THE BASIS OF THE EVIDENCE HAD IT BEEN AWARE THAT
THE GROUND ITS DECISION RESTED UPON WAS INSUFFICIENT.  CONSEQUENTLY,
UNDER THE PARTICULAR CIRCUMSTANCES OF THIS CASE, WE BELIEVE THAT IT
SHOULD BE REMANDED TO THE COMMISSION SO THAT IT CAN APPLY WHAT WE HOLD
TO BE THE APPLICABLE PRINCIPLES IN SUCH FURTHER PROCEEDINGS AS IT MAY
FIND TO BE CONSISTENT WITH THIS OPINION. 

THE REVERSAL AND REMAND, HOWEVER, WILL NOT INCLUDE ONE ASPECT OF THE
COMMISSION'S ACTION - THE GRANT OF AUTHORITY TO PROVIDE A SERVICE TO
THREE NONRAIL POINTS IN NEVADA - WHICH IS NOT GOVERNED BY THE RATIONALE
OF OUR OPINION.  THIS SMALL SEGMENT OF THE CONTROVERSY HAS BEEN
SUBMERGED IN THE DISPUTE OVER THE MUCH BROADER PERMIT COVERING
TRANSPORTATION TO RAIL POINTS IN VARIOUS STATES.  IT IS OBVIOUS, OF
COURSE, THAT "SPECIAL CIRCUMSTANCES" WOULD HAVE TO BE PRESENT TO
JUSTIFY THIS NEVADA AWARD.  APPELLEES MAINTAIN THAT THERE WAS SUCH
JUSTIFICATION, AND APPELLANTS HAVE NOT ESTABLISHED THAT IT WAS
LACKING.  NOR DO WE PERCEIVE ANY OTHER REASON TO UPSET THIS AWARD. 
CONSEQUENTLY, WE AFFIRM WITH RESPECT TO THIS PARTICULAR PERMIT. 

THERE REMAINS ONLY THE QUESTION OF STANDING.  ALTHOUGH THE THREE
JUDGE COURT CONCLUDED THAT THE COMMISSION HAD NOT EXCEEDED ITS
AUTHORITY IN THIS CASE, TWO MEMBERS OF THE COURT ALSO BELIEVED THAT
"THERE WAS NO SHOWING OF ACTUAL OR ANTICIPATED DIRECT INJURY SUCH AS
WOULD ENTITLE THE APPELLANTS TO INSTITUTE THIS ACTION."  170 F. SUPP.,
AT 48.  IN SUPPORT OF THIS CONCLUSION, APPELLEES RELY PRINCIPALLY UPON
ATCHISON, T.&S.F.R. CO. V. UNITED STATES, 130 F. SUPP. 76, AFF'D PER
CURIAM, 350 U.S. 892.  THAT DECISION HELD THAT CERTAIN RAILROADS HAD NO
STANDING TO CHALLENGE A COMMISSION ORDER AUTHORIZING ACQUISITION BY ONE
MOTOR CARRIER OF OTHERS.  SINCE THE LOWER COURT IN ATCHISON STRESSED
THE FACT THAT THE COMMISSION THERE HAD NOT CREATED ANY ADDITIONAL MOTOR
CARRIER SERVICE, THE DECISION CLEARLY IS NOT IN POINT.  IN THE INSTANT
CASE, NOT ONLY HAS THE COMMISSION CREATED NEW OPERATING RIGHTS, BUT
THEY ARE RIGHTS IN WHICH APPELLANTS HAVE A STAKE.  AND SURELY THE
STATEMENT BY GENERAL MOTORS THAT IT WOULD NOT IN ANY EVENT GIVE THE
BUSINESS TO ANY APPELLANT CANNOT DEPRIVE APPELLANTS OF STANDING.  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. THE DECISION WE BELIEVE TO BE CONTROLLING
IS NOT ATCHISON, BUT RATHER ALTON R. CO. V. UNITED STATES, 315 U.S. 15,
WHERE THE COURT CONFIRMED THE STANDING OF A RAILROAD TO CONTEST THE
AWARD OF A CERTIFICATE TO A COMPETING TRUCKER.  WE CONCLUDE, THEN, THAT
APPELLANTS HAD STANDING TO MAINTAIN THEIR ACTION TO SET ASIDE THE
COMMISSION'S ORDER UNDER THE "PARTY IN INTEREST" CRITERIA OF SEC.
205(G) OF THE INTERSTATE COMMERCE ACT, 49 STAT. 550, 49 U.S.C. SEC.
305(G), AND UNDER THE "PERSON SUFFERING LEGAL WRONG  ..  ORR ADVERSELY
AFFECTED OR AGGRIEVED" CRITERION OF SEC. 10(A) OF THE ADMINISTRATIVE
PROCEDURE ACT, 60 STAT. 243, 5 U.S.C.  SEC. 1009(A). 

OUR DISPOSITION OF THE CASE MAKES IT UNNECESSARY TO CONSIDER THE
OTHER ISSUES RAISED BY APPELLANTS. 

WE HAVE NO DESIRE TO HAMPER THE COMMISSION IN THE DISCHARGE OF ITS
HEAVY RESPONSIBILITIES, AND WE HAVE ALWAYS RECOGNIZED THAT THE
COMMISSION HAS BEEN GIVEN A WIDE DISCRETION BY CONGRESS.  BUT THAT
DISCRETION HAS LIMITS; OUR DECISION IN FAVOR OF THE COMMISSION IN
AMERICAN TRUCKING ASSOCIATIONS ESTABLISHED THE LIMITS RELEVANT TO THIS
CASE; AND WE CONCLUDE THAT THOSE LIMITS HAVE BEEN TRANSGRESSED.  OF
COURSE, IN REMANDING THE CASE WE DO NOT INTEND TO CIRCUMSCRIBE THE
COMMISSION IN DETERMINING WHETHER APPROPRIATE "SPECIAL CIRCUMSTANCES"
DO EXIST IN THIS INSTANCE WHICH WOULD TAKE THE CASE OUT OF THE
OTHERWISE CONVENTIONAL STANDARDS. 

THE JUDGMENT OF THE DISTRICT COURT IS REVERSED AND THE CASE IS
REMANDED TO THAT COURT WITH DIRECTIONS TO REMAND TO THE COMMISSION FOR
SUCH FURTHER PROCEEDINGS, NOT INCONSISTENT WITH THIS OPINION, AS MAY BE
APPROPRIATE.  IT IS SO ORDERED. 

FN1  WITH RESPECT TO THE TRANSPORTATION FROM OAKLAND AND RAYMER, THE
STATES WERE WASHINGTON, OREGON, IDAHO, NEVADA, UTAH, ARIZONA, AND NEW
MEXICO.  THE PROPOSED TRANSPORTATION FROM SOUTH GATE WAS TO BE TO THE
SAME STATES, EXCLUDING NEW MEXICO BUT ADDING MONTANA. 

FN2  ONE COMMISSIONER WHO CONCURRED SAID THAT HE WOULD GIVE BROADER
AUTHORITY; THREE COMMISSIONERS DISSENTED FROM THE GRANT; AND OF THE
THREE COMMISSIONERS WHO DID NOT PARTICIPATE, ONE SAID THAT HE WOULD
HAVE JOINED THE DISSENTERS. 

FN3  54 STAT. 906, AS AMENDED, 49 U.S.C. SEC. 5(2)(B). 

FN4  49 STAT. 551, 49 U.S.C. SEC. 307. 

FN5  49 STAT. 552, AS AMENDED, 49 U.S.C. SEC. 309. 

FN6  THE FIRST MAJOR COMMISSION DECISION WAS RENDERED THE YEAR AFTER
ENACTMENT OF THE MOTOR CARRIER ACT OF 1935.  PENNSYLVANIA TRUCK LINES,
INC., ACQUISITION OF CONTROL OF BARKER MOTOR FREIGHT, INC., 1 M.C.C.
101.  IN REFUSING APPROVAL OF AN ACQUISITION UNLESS CERTAIN CONDITIONS
WERE MET, A DIVISION OF THE COMMISSION STATED: 

"  ..  WEE ARE NOT CONVINCED THAT THE WAY TO MAINTAIN FOR THE FUTURE
HEALTHFUL COMPETITION BETWEEN RAIL AND TRUCK SERVICE IS TO GIVE THE
RAILROADS FREE OPPORTUNITY TO GO INTO THE KIND OF TRUCK SERVICE WHICH
IS STRICTLY COMPETITIVE WITH, RATHER THAN AUXILIARY TO, THEIR RAIL
OPERATIONS.  THE LANGUAGE OF SECTION 213  ..  ISS EVIDENCE THAT
CONGRESS WAS NOT CONVINCED THAT THIS SHOULD BE DONE.  TRUCK SERVICE
WOULD NOT, IN OUR JUDGMENT, HAVE DEVELOPED TO THE EXTRAORDINARY EXTENT
TO WHICH IT HAS DEVELOPED IF IT HAD BEEN UNDER RAILROAD CONTROL. 
IMPROVEMENT IN THE PARTICULAR SERVICE NOW FURNISHED BY THE PARTNERSHIP
MIGHT FLOW FROM CONTROL BY THE RAILROAD, BUT THE QUESTION INVOLVED IS
BROADER THAN THAT AND CONCERNS THE FUTURE OF TRUCK SERVICE GENERALLY. 
THE FINANCIAL AND SOLICITING RESOURCES OF THE RAILROADS COULD EASILY BE
SO USED IN THIS FIELD THAT THE DEVELOPMENT OF INDEPENDENT SERVICE WOULD
BE GREATLY HAMPERED AND RESTRICTED, AND WITH ULTIMATE DISADVANTAGE TO
THE PUBLIC."  ID., AT 111-112.    THE DEVELOPMENT OF COMMISSION POLICY
IS TRACED IN DETAIL IN ROCK ISLAND MOTOR TRANSIT CO. - PURCHASE - WHITE
LINE MOTOR FREIGHT CO., 40 M.C.C. 457.  SEE ALSO THE SIMILAR AND
LENGTHY DISCUSSION IN UNITED STATES V. ROCK ISLAND CO., SUPRA, PASSIM. 

FN7  "THE COMMISSION ASSERTS THAT THE MEANING OF 'AUXILIARY AND
SUPPLEMENTAL'  ..  WAAS NOT GEOGRAPHICAL  ..  .  

     *        *         *         *         * 

"WHAT WAS IN THE COMMISSION'S MIND AS TO THE MEANING OF AUXILIARY AND
SUPPLEMENTAL AT THE TIME IT ISSUED ITS CERTIFICATE, WE CANNOT BE SURE. 
AT PRESENT A MOTOR SERVICE IS AUXILIARY AND SUPPLEMENTAL TO RAIL
SERVICE, IN THE COMMISSION'S VIEW, WHEN THE RAILROAD-AFFILIATED MOTOR
CARRIER IN A SUBORDINATE CAPACITY AIDS THE RAILROAD IN ITS RAIL
OPERATIONS BY ENABLING THE RAILROAD TO GIVE BETTER SERVICE OR OPERATE
MORE CHEAPLY RATHER THAN INDEPENDENTLY COMPETING WITH OTHER MOTOR
CARRIERS  ..  .   THE COMMISSION HAS CONTINUALLY EVIDENCED  ..  ITTS
INTENTION TO HAVE RAIL-OWNED MOTOR CARRIERS SERVE IN AUXILIARY AND
SUPPLEMENTAL CAPACITY TO THE RAILROADS. 

     *         *         *         *         * 

"THE COMMISSION HAS EXPRESSED ITS POLICY  ..  BYY THE PHRASE, PERHAPS
TOO SUMMARY, AUXILIARY AND SUPPLEMENTAL.  THOUGH THE PHRASE IS
DIFFICULT TO DEFINE PRECISELY, ITS GENERAL CONTENT IS SET OUT IN TEXAS
& PACIFIC MOTOR TRANSPORT CO. APPLICATION, 41 M.C.C.  721, 726
(ESTABLISHING GENERALLY THE SAME CONDITIONS SET FORTH IN THE TEXT,
SUPRA, PP.  7-9)  ..  .   WHILE THE PRACTICE OF THE COMMISSION HAS
VARIED IN THE CONDITIONS IMPOSED, THE PURPOSE TO HAVE RAIL-CONNECTED
MOTOR CARRIERS ACT IN COORDINATION WITH TRAIN SERVICE HAS NOT  ..  ."" 
340 U.S., AT 439, 442-443. 

SEE THE DETAILED DISCUSSION IN ROCK ISLAND MOTOR TRANSIT CO. -
PURCHASE - WHITE LINE MOTOR FREIGHT CO., 40 M.C.C. 457.  ("THERE  ..
APPPEARS TO HAVE DEVELOPED A TENDENCY IN RAIL-MOTOR ACQUISITION
PROCEEDINGS TO TREAT THE BARKER CASE RESTRICTIONS AS GEOGRAPHICAL OR
TERRITORIAL ONLY IN THEIR INTENT RATHER THAN AS SUBSTANTIVE LIMITATIONS
UPON THE CHARACTER OF THE SERVICE WHICH MIGHT BE RENDERED BY A RAILROAD
OR ITS AFFILIATE UNDER ANY ACQUIRED RIGHT."  ID., AT 470.)  SEE ALSO
TEXAS & PACIFIC MOTOR TRANSPORT CO. COMMON CARRIER APPLICATION, SUPRA,
AT 726.  ("SINCE PETITIONER'S CERTIFICATES LIMIT THE SERVICE TO BE
PERFORMED TO THAT WHICH IS AUXILIARY TO OR SUPPLEMENTAL OF THE RAIL
SERVICE OF THE RAILWAY, IT IS WITHOUT AUTHORITY TO ENGAGE IN OPERATIONS
UNCONNECTED WITH THE RAIL SERVICE  ..  .   TO THE EXTENT PETITIONER IS
PERFORMING OR PARTICIPATING IN ALL-MOTOR MOVEMENTS ON THE BILLS OF
LADING OF A MOTOR CARRIER AND AT ALL-MOTOR RATES, IT IS PERFORMING A
MOTOR SERVICE IN COMPETITION WITH THE RAIL SERVICE AND THE SERVICE OF
EXISTING MOTOR CARRIERS; AND, TO THE EXTENT IT IS SUBSTITUTING RAIL
SERVICE FOR MOTOR-VEHICLE SERVICE, THE RAIL SERVICE IS AUXILIARY TO OR
SUPPLEMENTAL OF THE MOTOR-VEHICLE SERVICE RATHER THAN THE MOTOR-VEHICLE
SERVICE BEING AUXILIARY TO OR SUPPLEMENTAL OF RAIL SERVICE.") 

FN8  49 STAT. 554, AS AMENDED, 49 U.S.C. SEC. 310. 

FN9  SECTION 209(B) PROVIDES IN PERTINENT PART: 

"SUBJECT TO SECTION 310 OF THIS TITLE, A PERMIT SHALL BE ISSUED TO
ANY QUALIFIED APPLICANT THEREFOR AUTHORIZING IN WHOLE OR IN PART THE
OPERATIONS COVERED BY THE APPLICATION, IF IT APPEARS FROM THE
APPLICATIONS OR FROM ANY HEARING HELD THEREON, THAT THE APPLICANT IS
FIT, WILLING, AND ABLE PROPERLY TO PERFORM THE SERVICE OF A CONTRACT
CARRIER BY MOTOR VEHICLE, AND TO CONFORM TO THE PROVISIONS OF THIS
CHAPTER AND THE LAWFUL REQUIREMENTS, RULES, AND REGULATIONS OF THE
COMMISSION THEREUNDER, AND THAT THE PROPOSED OPERATION, TO THE EXTENT
AUTHORIZED BY THE PERMIT, WILL BE CONSISTENT WITH THE PUBLIC INTEREST
AND THE NATIONAL TRANSPORTATION POLICY DECLARED IN THE INTERSTATE
COMMERCE ACT; OTHERWISE SUCH APPLICATION SHALL BE DENIED.  IN
DETERMINING WHETHER ISSUANCE OF A PERMIT WILL BE CONSISTENT WITH THE
PUBLIC INTEREST AND THE NATIONAL TRANSPORTATION POLICY DECLARED IN THE
INTERSTATE COMMERCE ACT, THE COMMISSION SHALL CONSIDER THE NUMBER OF
SHIPPERS TO BE SERVED BY THE APPLICANT, THE NATURE OF THE SERVICE
PROPOSED, THE EFFECT WHICH GRANTING THE PERMIT WOULD HAVE UPON THE
SERVICES OF THE PROTESTING CARRIERS AND THE EFFECT WHICH DENYING THE
PERMIT WOULD HAVE UPON THE APPLICANT AND/OR ITS SHIPPER AND THE
CHANGING CHARACTER OF THAT SHIPPER'S REQUIREMENTS  ..  ."" 

THE ITALICIZED PORTION WAS ADDED BY AN AMENDMENT OF AUGUST 22, 1957,
71 STAT. 411, WELL BEFORE THE COMMISSION'S DECISION OF SEPTEMBER 9,
1958.  CONSEQUENTLY, THE COMMISSION WAS REQUIRED TO APPLY THE NEW
STANDARDS.  ZIFFRIN, INC. V. UNITED STATES, 318 U.S. 73, 78. 

FN10  SECTION 209(B) PROVIDES IN PART THAT THE COMMISSION "SHALL
ATTACH TO THE PERMIT  ..  SUUCH REASONABLE TERMS, CONDITIONS, AND
LIMITATIONS, CONSISTENT WITH THE CHARACTER OF THE HOLDER AS A CONTRACT
CARRIER  ..  ASS MAY BE NECESSARY TO ASSURE THAT THE BUSINESS IS THAT
OF A CONTRACT CARRIER AND WITHIN THE SCOPE OF THE PERMIT, AND TO CARRY
OUT  ..  THHE REQUIREMENTS ESTABLISHED BY THE COMMISSION UNSER SECTION
304(A)(2) AND (6) OF THIS TITLE  ..  ."" 

FN11  "SUCH RESTRICTIONS HAMPER RAILROAD COMPANIES IN THE USE OF
THEIR PHYSICAL FACILITIES - STATIONS, TERMINALS, WAREHOUSES - THEIR
PERSONNEL AND THEIR CAPITAL IN THE DEVELOPMENT OF THEIR TRANSPORTATION
ENTERPRISES TO ENCOMPASS ALL OR AS MUCH OF MOTOR TRANSPORTATION AS THE
ROADS MAY DESIRE.  THE ANNOUNCED TRANSPORTATION POLICY OF CONGRESS DID
NOT PERMIT SUCH DEVELOPMENT."  UNITED STATES V. ROCK ISLAND MOTOR
TRANSIT CO., SUPRA, AT 443-444. 

FN12  THE RAIL-POINT LIMITATION APPEARS TO HAVE BEEN DESIGNED
PRIMARILY TO PREVENT ENCROACHMENT UPON THE BUSINESS OF COMPETING RAIL
CARRIERS.  VARIOUS RAILROADS OPPOSED THE GRANT OF AUTHORITY BEFORE THE
COMMISSION, BUT DID NOT JOIN IN THE FEDERAL COURT ACTION.