The opinion of the court was delivered by: LEVET
AAACon Auto Transport Inc. (hereinafter referred to as "AAACon"), plaintiff herein, seeks to suspend, annul and set aside an order of the Interstate Commerce Commission (hereinafter referred to as "Commission") in a proceeding entitled "Auto Driveaway Company, Extension -- Points in United States," No. MC-125985 (Sub-No. 4) authorizing the issuance of a certificate of public convenience and necessity to Auto Driveaway Company (hereinafter referred to as "Driveaway"). Driveaway was permitted to intervene in this action.
The first of many proceedings in this action was a hearing before an examiner. The result of those hearings was a report by the examiner recommending that Driveaway's application be denied. This order was adopted by a majority of the Commission, Division I.
Thereafter, Driveaway was granted leave to reopen the matter. It was only at this point, approximately two years after Driveaway's initial application was filed, that AAACon sought to intervene. The Commission allowed the intervention and both sides submitted papers in a so-called "modified procedure."
The Commission, in a printed decision dated July 9, 1969 (110 M.C.C. 222), reversed its prior denial and approved the application of Driveaway. The plaintiff, AAACon, then petitioned the Commission for reconsideration and for a further hearing. The petition was denied. Thereafter, plaintiff again sought a further hearing and a subpoena duces tecum to permit it to secure certain evidence. This, in turn, was denied by the Commission.
Jurisdiction and venue in this action are in this court by reason of the provisions of 28 USCA §§ 1336, 1398, 2284 and 2321-2325, 49 USCA §§ 17(9), 305(g), and 5 USCA § 1009. Accordingly, a three-judge court was convened by order dated June 10, 1970, pursuant to the provisions of 28 USCA §§ 2284 and 2321.
The scope of judicial review of the orders of the Commission is basically determined by Section 10(e)(B) of the Administrative Procedure Act, 5 USCA § 706(2)(B). See United States v. Pierce Auto Freight Lines, Inc., 327 U.S. 515, 535, 90 L. Ed. 821, 66 S. Ct. 687 (1946); Neptune World Wide Moving, Inc. v. United States, 284 F. Supp. 135, 138 (S.D.N.Y. 1968); James Hughes, Inc. v. United States, 292 F. Supp. 372, 373 (S.D.N.Y. 1968). See also Resort Bus Lines, Inc. v. Interstate Commerce Commission, 264 F. Supp. 742, 746 (S.D.N.Y. 1967). No amplification is needed here.
For the issuance of a motor carrier certificate the statute requires proof of the following:
(1) That the proposed service to the extent required by the present or future public convenience is necessary;
(2) That the applicant is qualified, is fit, willing and able properly to perform the service proposed and to conform to the requirements, rules and regulations of the Commission thereunder (49 USCA § 307).
SUBSTANTIAL EVIDENCE WAS SUBMITTED FOR THE COMMISSION TO SUPPORT THE FINDING THAT THE PROPOSED SERVICE WAS NECESSARY.
Twenty-six shipper witnesses composed of nine automobile and truck leasing companies, five companies operating motor vehicle fleets, three repossessors of pledged or mortgaged automobiles, two finance companies, one automobile broker, and six miscellaneous individual shippers testified in support of the application. (See 110 M.C.C. 231-241)
The Commission concluded that "we are persuaded that applicant has established a need for the proposed service." (110 M.C.C. 226) Nothing in the record would suggest this finding to be arbitrary, capricious, or an abuse of discretion, and we must therefore affirm the findings of the Commission. Rational and adequate evidence was present to support the conclusion that the need existed. ...