The Interstate Commerce Commission (ICC) concluded, pursuant to
§ 207(a) of the Interstate Commerce Act, that a certificate of
public convenience and necessity should issue to Braswell Motor
Freight Lines, Inc., authorizing service to certain points which
the ICC found were being inadequately served. The District Court on
suit by competing motor carriers enjoined the grant to Braswell on
the ground that the ICC had failed to make adequate findings and
had not afforded existing carriers opportunity to rectify service
deficiencies. Upon remand, the ICC made detailed findings and held
that existing carriers could not be depended upon for adequate
service. The District Court, on review, stated that it was the
ICC's "invariable rule" that no new certificate would issue without
giving existing carriers opportunity to improve service, that this
was a "rule of property," and that the rule had not been followed
in this case. The court permanently enjoined the issuance of a
certificate to Braswell "unless and until" existing carriers "are
first afforded a reasonable opportunity to furnish such
service."
Held: While the ICC should consider the public interest
in maintaining the health and stability of existing carriers, it
may, upon the basis of appropriate findings, authorize a new
certificate "even though the existing carriers might arrange to
furnish successfully the projected service."
ICC v.
Parker, 326 U. S. 60,
326 U. S. 70
(1945).
268 F.
Supp. 239, reversed and remanded.
Page 389 U. S. 410
PER CURIAM.
Pursuant to § 207(a) of the Interstate Commerce Act, 49
Stat. 551, 49 U.S.C. § 307(a), the Interstate Commerce
Commission concluded that a certificate of public convenience and
necessity should issue to Braswell Motor Freight Lines, Inc.,
authorizing Braswell to extend its motor carrier services to stated
points. This conclusion was based upon the Commission's finding
that existing service to those points was inadequate to serve
public needs. Upon suit by several competing motor carriers serving
the area, the District Court enjoined the Commission from
proceeding with the grant to Braswell on the ground that the
Commission had failed to make adequate findings and that it had
failed to afford existing carriers an opportunity to rectify
deficiencies in their service. Upon remand, the Commission did not
take further evidence, but it made additional findings in
considerable detail. It again concluded that shippers and receivers
were hampered by the inadequacy of existing service, and it held
that, despite numerous complaints, existing carriers had not
demonstrated that they could be depended upon to furnish adequate
service.
The competing carriers then filed in the District Court a motion
under the All-Writs Act, 28 U.S.C. § 1651, contending that the
Commission had disregarded the prior opinion and order of the court
and asking that the court enforce its prior judgment. The District
Court agreed. It stated that it was the Commission's "invariable
rule" that no certificate would issue to add a
Page 389 U. S. 411
carrier to those serving an area without first furnishing
existing carriers an opportunity to improve the service. It
referred to this as a "rule of property" operating in favor of
existing carriers. Accordingly, it permanently enjoined the
Commission from issuing a certificate of convenience and necessity
to Braswell "unless and until the [appellees -- the existing motor
carriers] are first afforded a reasonable opportunity to furnish
such service . . . ."
The United States and the Commission, and Braswell, appealed the
judgment to this Court under the provisions of 28 U.S.C.
§§ 1253 and 2101(b).**
The District Court erred in holding that it is the "invariable
rule" of the Commission to grant existing carriers an opportunity
to remedy deficiencies in service, and in holding that carriers
have a property right to such opportunity before a new certificate
may be issued upon a lawful finding of public convenience and
necessity pursuant to the statute. The Commission's power is not so
circumscribed. No such limitation has been established by the
Commission's own decisions or by judicial determinations. It is, of
course, true that the Commission should consider the public
interest in maintaining the health and stability of existing
carriers,
see United States v. Drum, 368 U.
S. 370,
368 U. S. 374
(1962); but it is also true that, upon the basis of appropriate
findings, "the Commission may authorize the certificate even though
the existing carriers might arrange to furnish successfully the
projected service."
ICC v. Parker,
326
Page 389 U. S. 412
U.S. 60,
326 U. S. 70
(1945);
see Schaffer Transportation Co. v. United States,
355 U. S. 83,
355 U. S. 90-91
(1957). Accordingly, we reverse and remand for further proceedings
consistent with this opinion.
MR. JUSTICE MARSHALL took no part in the consideration or
decision of these cases.
* Together with No. 707,
Braswell Motor Freight Lines, Inc.
v. Dixie Highway Express, Inc., et al., also on appeal from
the same court.
** Appellees urge that the appeals are untimely because they
were filed more than 60 days after the District Court's initial
judgment. This is palpably untenable because, without passing upon
the appropriateness of the All-Writs procedure which appellees
utilized, it is clear that the appeals were properly taken from the
District Court's second order entered after the Commission decision
upon remand.
