be set aside when the record before a Court of Appeals clearly precludes the Board's decision from being justified by a fair estimate of the worth of the testimony of witnesses or its informed judgment on matters within its special competence or both.' Universal Camera Corp. v. National Labor Relations Board, 71 S. Ct. 456, 465. The 'substantial evidence' rule of section 10(e)(5) of the Administrative Procedure Act applies by its terms to cases 'subject to the requirements of sections 7 and 8 (of the Administrative Procedure Act) or otherwise reviewed on the record of an agency hearing provided by statute'. The Supreme Court has recently held that proceedings of the present character are subject to the requirements of section 7 and 8 of the Administrative Procedure Act, 5 U.S.C.A. §§ 1006, 1007. Riss & Co., Inc. v. United States, 71 S. Ct. 620. Accordingly, we shall follow here the principles set forth in the Universal Camera decision.
In applying that standard we must keep in mind that the Commission is, like the Labor Board, 'one of those agencies presumably equipped or informed by experience to deal with a specialized filed of knowledge, whose findings within that field carry the authority of an expertness which courts do not possess and therefore must respect.' And even where expertise is not require, the court may not substitute its own view for that of the Commission on a 'choice between two fairly conflicting views'. Universal Camera Corp. v. National Labor Relations Board, supra. Prior to the enactment of the Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq., the Supreme Court had made clear that in this area the courts are not 'the arbiters of the paramount public interest.' The Court went on to say that 'This is rather the business of the Commission, made such by the very terms of the statute. The function of the reviewing court is much more restricted. * * * It cannot substitute its own view concerning what should be done, whether with reference to competitive considerations or others, for the Commission's judgment upon matters committed to its determination, if that has support in the record and the applicable law.' United States v. Pierce Auto Lines, 327 U.S. 515, 535-536, 66 S. Ct. 687, 698, 90 L. Ed. 821. The Administrative Procedure Act has not changed this principle. The decision in the Universal Camera case (which we have followed here) recognizes that the precise scope of judicial review must vary to a certain extent with the type of action being taken by an administrative agency and must vary also in relation to the statutory framework established by Congress for the guidance of the particular agency.
Under the Universal Camera case, we are not required to weigh the evidence. Nor are we required to indicate what our own view of the evidence would be, or what decision we would reach as to the desirability of the proposed increase in transportation service. These are matters entrusted by Congress to the Joint Board and the Interstate Commerce Commission. Our task is to see that the requirements of the law have been observed in the conduct of the agency's proceedings, and that its conclusion as to public convenience and necessity has a rational basis in the facts found, facts which must be supported by substantial evidence on the record considered as a whole.
Here, the net effect of the testimony offered by Oriole was that there is sentiment among the population of Montgomery County in favor of increased bus service, both on the part of potential passengers and the local commercial groups. There was specific testimony expressing dissatisfaction with the system whereby an Oriole bus with vacant seats must pass by and the passenger be compelled to wait for a Capital Transit bus. Capital Transit was permitted to intervene and to put on testimony, but offered no testimony to rebut the evidence of demand for increased service on the part of the community. With regard to Capital Transit's operations in the area, it can be assumed that the lines in question have not been profitable for Capital Transit.
But a showing of loss is not enough to preclude issuance of a certificate to a competitor. And any gaps in Capital Transit's case are chargeable to it and not to the Joint Board or to the Commission. The latter bodies, after all, are basically concerned with protecting the public interest. They must, of course, consider and give due weight to the position of existing carriers serving the public along the routes in question. I.C.C. v. Parker, 326 U.S. 60, 65 S. Ct. 1490, 89 L. Ed. 2051; American Trucking Ass'ns. v. United States, 326 U.S. 77, 65 S. Ct. 1499, 89 L. Ed. 2065. But under the Motor Carrier Act, 49 U.S.C.A. § 301 et seq., there is no vested right in the public highways or in any transportation business conducted on those highways.
Capital Transit argues that the issuance of the proposed certificate to Oriole may well force it to cut down on its own service or even to abandon service altogether. It is not necessary for us to consider whether or not Capital Transit can legally do either of these things, under Federal law or Maryland law. We certainly cannot say as a matter of law that the Commission acted improperly in authorizing alternative service to the public by another carrier in view of the public demand for more service and Capital Transit's often-repeated suggestion before the Commission (based on the losses which Capital Transit claims it has incurred in its Maryland operations) that it might be forced to diminish service on its lines or even abandon them. In a somewhat analogous case, the Supreme Court said: 'If the Commission were required to deny these applications unless it found an actual inability on the part of existing carriers to acquire the facilities necessary for future transportation needs, a limitation would be imposed on the power of the Commission which is not found in the Act. The Commission is the guardian of the public interest in determining whether certificates of convenience and necessity shall be granted. For the performance of that function the Commission has been entrusted with a wide range of discretionary authority. Interstate Commerce Commission v. Parker, 326 U.S. 60, 65 S. Ct. 1490 (89 L. Ed. 2051). Its function is not only to appraise the facts and to draw inferences from them but also to bring to bear upon the problem an expert judgment and to determine from its analysis of the total situation on which side of the controversy the public interest lies. * * * Forecasts as to the future are necessary to the decision. * * * It may be that the public interest requires that future shipping needs be assured rather than left uncertain. The Commission has the discretion so to decide. It went no further here.' United States v. Detroit Navigation Co., 326 U.S. 236, 240-241, 66 S. Ct. 75, 77, 90 L. Ed. 38.
We next consider Capital Transit's contention, made at all stages of the proceeding, that Oriole is not fit, willing or able properly to perform the service proposed or to conform to the provisions of the Motor Carrier Act and the Commission's requirements thereunder. At the hearing before the Joint Board, Capital Transit endeavored to show that Oriole did not meet all its schedules, that its equipment went back to 1938, and the like. At a later stage, on December 28, 1949, Capital Transit filed supplemental exceptions to the report of the Joint Board. These exceptions were based on a complaint filed on December 12, 1949, by the Commission against Oriole in the United States District Court for the District of Maryland. The exceptions were considered by Division 5 of the Commission, which stated that 'unlawful operations and violations of the provisions of the Act render a carrier subject to prosecution, but do not necessarily require a finding of lack of fitness and are therefore not a bar to the granting of authority.'
It is not for this court to determine whether or not the Commission's complaint against Oriole was justified, or to attempt to assess the exact weight the Commission gave to its issuance of that complaint in considering Oriole's application for the proposed increase in service. The Commission cannot estop itself by issuing such a complaint from facing the ultimate issue whether public convenience and necessity require the issuance of a certificate under section 207 of the Act. What we have in the present situation is simply the question whether Oriole shall be permitted to open its doors in an area heretofore restricted and take on additional passengers in need of service. The Commission may well have considered that the provision of that additional service on routes which were already in operation, and which the issuance of its complaint would in no way have brought to an end, was paramount. Oriole's financial and physical ability to provide the service was clearly demonstrated. In view of the other evidence as to the fitness, willingness and ability of Oriole to render the increased service, we cannot say that the final determination of the Commission in this respect was unreasonable or that it was not based on substantial evidence.
Capital Transit also contends that the Commission did not make the necessary findings of fact to support its determination. Specifically Capital Transit cites section 8(b) of the Administrative Procedure Act, 5 U.S.C.A. § 1007(b), which requires that in certain classes of agency proceedings 'All decisions * * * shall * * * include a statement of (1) findings and conclusions, as well as the reasons or basis therefor, upon all the material issues of fact, law, or discretion presented on the record * * *.' As we have indicated, the Supreme Court has very recently determined that a licensing proceeding before the Interstate Commerce Commission is a case where there is an 'adjudication required by statute to be determined on the record after opportunity for an agency hearing'. 5 U.S.C.A § 1004. Riss & Co., Inc. v. United States, supra. Under the statutory provisions, it follows that section 8(b) is applicable to proceedings such as these.
The Commission here made its ultimate findings in the terms of the Motor Carriers Act, which authorizes issuance of a certificate of convenience and necessity when it is found 'that the applicant is fit, willing, and able properly to perform the service proposed and to conform to * * *' the requirements of law 'and that the proposed service * * * is or will be required by the present or future public convenience and necessity * * *.' In addition, Division 5 of the Commission filed a lengthy opinion setting out the facts in detail and the considerations which it deemed applicable in reaching its conclusion. Certainly more than 'Enough has been 'put of record to enable us to perform the limited task which is ours." Alabama Great Southern R.R. Co., et al. v. United States, 340 U.S. 216, 71 S. Ct. 264, 272. And the Administrative Procedure Act does not require detailed findings of every subsidiary evidentiary fact. So long as the agency makes amply clear the factual basis upon which it has proceeded, there can be no ground for complaint. Here the facts and policies upon which the Commission proceeded are fully set forth. There appears to be no omission in the Commission's statement which is in any way prejudicial to complainant. There is not lacking any element, either as to findings of fact or considerations of policy, necessary to support the present order of the Commission. The requirements of section 8(b) of the Administrative Procedure Act were satisfied. See Norfolk Southern Bus Corp. v. United States, D.C.E.D. Va., 96 F.Supp. 756, affirmed 340 U.S. 802, 71 S. Ct. 68.
Since the Commission's findings of fact are supported by substantial evidence on the entire record, and since in determining public convenience and necessity the Commission acted within the discretion delegated to it by Congress, arriving at a conclusion having rational basis in the facts, its determination should stand.
The injunctive relief sought will be denied, and the complaint will be