The suit was to enjoin and set aside orders of the Interstate Commerce Commission to the extent that they limited and thereby in part denied the “grandfather” certificate complainant had applied for. The claim was that in limiting the common carrier certificate, the commission granted, to the movement of edible nuts westbound from San Antonio, Texas, to Los Angeles, California, and general commodities, with certain exceptions, eastbound from Los Angeles to San Antonio, but not serving any intermediate points, and thereby denying applicant the right to carry general commodities eastbound and to serve the intermediate points of El Paso, Tucson, Phoenix and Yuma, the commission had failed and refused to follow the evidence and had acted arbitrarily in refusing.
The defense was a general denial and an insistence that in making the reports and orders in the proceeding before it, the commission had considered and weighed carefully, in the light of its own knowledge and experience, each fact, circumstance, and condition called to its attention on behalf of the parties, and that its order instead of being arbitrary and without support in the evidence was fully supported and reasonable.
On allegations that for some years before, and continuously since, June 1, 1935, the applicant had been engaged in operations as a motor carrier carrying general commodities between San Antonia, Texas, and Los Angeles, California, including the intermediate points of El Paso, Tucson, Phoenix and Yuma, over regular routes, complainant, as applicant, applied to the commission, under the “grandfather” clauses, Sections 206(a) and 209(a) of the Motor Carrier Act of 1935,
Applicant complaining that the findings and order arbitrarily disregarded the evidence and its effect, and unreasonably restricted applicant’s certificate, secured a reconsideration. On December 8, 1942, the full commission handed down a report modifying the findings in its prior report. Still denying the full certificate applied for, it enlarged the certificate granted so as to authorize the westbound carriage of edible nuts from San Antonio, Texas, to Los Angeles, California, and the eastward carriage of general commodities with certain exceptions from Los Angeles to San Antonio,
It also invokes the language of that •court in Howard Hall Co. v. United States,
“As we indicated in United States v. Carolina Freight Carriers Corp., supra [315 U.S. 475 ,62 S.Ct. 722 ,86 L.Ed. 971 ], if the applicant had established that it was a ‘common carrier’ of general commodities during the critical periods in a specified territory, restrictions on commodities which could be moved between specified points in that territory would not be justified.
“The mere fact that the particular commodities had never been transported between designated points in that territory would not mean that authority to haul them between such points should be withheld.”
.and the ruling in Alton Ry. Co. v. United States,
The commission on its part insisting that its function is to determine the facts and that its findings and order must be sustained if supported by evidence, ar.gues that it was for it to say whether it should reject the oral testimony to be guided alone by the documentary evidence, .and that in finding from that evidence that while applicant was perhaps holding himself out to haul general commodities, he did not in fact do so, it was well within the record. It particularly defends its statement of the governing principle upon which it rests its decision that “in order to be entitled to ‘grandfather rights with respect to the hauling of general commodities there should be some greater showing than has been made herein that a diversified class of commodities was actually being handled consistent with any holding out in that respect on and prior to the statutory date”. It also insists that its finding that the solicitation and hauling of other commodities was merely incidental to applicant’s main business and occurred occasionally for the purpose of fillers for the loads of the specific commodities he was handling is supported by evidence and itself supports the conclusion that this is not sufficient to make him a general carrier. It will serve no useful purpose for us to discuss the authorities on which complainant and the commission rely, for the legal principles governing this case are not in dispute. It is for the commission to determine from the evidence whether the facts exist which entitle the applicant to the certificate he applies for. In other words, the withholding or the granting of a “grandfather” certificate is not a matter resting within the discretion of the commission to be granted or denied as a matter of grace. It must be granted if the facts show applicant entitled to it, it must be denied if they fail so to show, and, if the controlling facts are in dispute, it is for the commission, under well-settled principles, to determine where the truth lies and what has in fact been proven. Also, though the statute contains no provision authorizing the commission to limit grandfather certificates to particular commodities, it may not be doubted that the guiding principle of action under the statute which authorizes a continuance of operations bona fide conducted on and after the critical date authorizes the commission to limit the certificate in accordance with the facts. This concession, however, does not mean that, where the undisputed evidence, as here, shows an operation as a common carrier with a holding out to carry commodities in general and an actual carrying of many of them, the certificate can be limited to special commodities because applicant could not always get a general cargo or because, though he held himself out as, and was, a carrier of general cargo, his carrying space was most often occupied by a particular kind of goods. A careful consideration of the findings and order complained of in the light of the undisputed evidence in the record and of the principles controlling here, convinces
As to the carriage to and from the intermediate points, we think there is undoubtedly less positive evidence that the applicant was a carrier of general commodities to the intermediate points than there' was as to his being such a carrier through. But we think it plain that the record admits of no other reasonable conclusion than that, within the principle established in Hall v. United States, supra, the applicant established that he was a common carrier of general commodities during the critical period to and from the intermediate points concerned, and that the order denying the certificate as to such carriage is likewise invalid. Because the findings are without support in the evidence, and the order, limiting plaintiff’s certificate for carriage westbound and denying it altogether for carriage to and from intermediate points, is in that respect arbitrary and invalid, a decree enjoining and setting the order aside to the extent that it limits and denies plaintiff’s application will be entered.
Notes
49 U.S.C.A. §§ 306 and 309.
19 M.C.C. 677.
“Upon reconsideration, we find that on and continuously since June 1, 1935, applicant was and has been engaged in operation, in interstate commerce, as a common carrier by motor vehicle (1) of edible nuts from San Antonio, Texas, to Los Angeles, California, and (2) of general commodities, except articles of unusual value, dangerous explosives, commodities in bulk and those requiring special equipment, from Los Angeles to San Antonio, in each instance over the following route: (Route described) serving no intermediate points; that a certificate authorizing continuance of such operations should be granted; and that the application to the extent it was reopened, should be deified in all other respects.
“Upon compliance by applicant with the requirements of sections 215 and 217 of the act and our rules and regulations thereunder, an appropriate amended certificate reflecting our findings herein will be issued. An order will be entered denying the application except to the extent granted herein.”