The opinion of the court was delivered by: MCGUIRE
McGUIRE, Associate Justice.
This is an action brought by the plaintiff to set aside an order of the Interstate Commerce Commission.
The order under review, issued February 2, 1942, denied the plaintiff's application for a contract carrier permit (Docket No. MC925, Filed Dec. 31, 1935) under the so-called "grandfather" provisions of the Motor Carrier Act, 49 U.S.C.A. §§ 301, 306(a), 309(a), but did grant it a common carrier certificate under the same provisions of the act, by virtue of an application (Docket No. MC924) seeking the same, filed on the same date as that seeking the contract carrier permit referred to above. The Commission on April 16, 1942 extended the effective date of this order to June 1, 1942. Pursuant to Title 28 U.S.C.A. § 47, the case was heard by a three judge court.
The essential facts with respect to the plaintiff's activities were found substantially to be as follows:
For about the same length of time under individual contracts concluded for a period of several years with a single shipper, it has transported the same general commodities, more specifically cotton piece goods, cotton work clothing, buttons, thread, wire goods, and cardboard boxes for all practical purposes over the same route from the shipper's warehouse in Nashville to manufacturing plants in small Kentucky towns, and has transported the same commodities in the finished form of work clothing, principally overalls, jumpers, and shirts, from the manufacturing plants referred to to another warehouse of the shipper in Nashville. (T. 7, 24, 56, 58) Under Section 210 of the Act, 49 U.S.C.A. § 310,
these dual operations in the same territory cannot be performed unless they be found consistent with the public interest and the national transportation policy.
The plaintiff claims that the Commission erred in denying its application for a contract carrier permit, and in its finding that the operations conducted by it under contract with the single shipper have been those of a common carrier.
1. The Commission has erroneously construed the statutory definition of a contract carrier by motor vehicle.
2. The so-called test of "specialization" applied by the Commission should not have been applied, and if it should, it was applied arbitrarily and capriciously in the present case.
3. The Commission's findings as to material facts are not supported by substantial evidence.
4. The denial of the plaintiff's application as a contract carrier by motor vehicle and the imposition upon it of the duties of common carrier exclusive of its relationship with the individual shipper is at ...