beyond SP to other rail points), and limited to points on the rail line of SP (so as not to cut in on territory which potentially might be served by independent motor carrier protestants), subject to the condition that 'the permits authorizing such operations should be issued upon receipt of a written request from applicant for the imposition of a restriction against the transportation of automobiles and trucks' in its outstanding common carrier certificates (in the interest of avoiding the possibility of dual motor carrier operations), and the further condition 'that there may from time to time in the future be attached to the permits granted such reasonable terms, conditions and limitations as the public interest and national transportation policy may require.'
The court finds that the Commission's order violates no statutory prohibition, either in letter or in spirit, and that the authority granted thereby to PMT is in the public interest and in keeping with the national transportation policy, affording the shipper adequate, economical, and efficient service in a specialized field, and at the same time effecting no encroachment on the operations of other carriers or transportation media. Thus, the court finds without merit plaintiffs' allegations of error numbered 1, 2, and 4.
As to the plaintiffs' third allegation of error, that the Commission failed to follow its own precedent cases and failed to conform to decisions of the Supreme Court applicable to the proceedings under review, the plaintiffs have pointed to no case determinative of the particular question here involved. Most of the cases cited deal with orders under § 5(2)(b) or § 207 and administrative practice in interpreting and applying those sections. At the argument, plaintiffs relied principally on the Supreme Court's decisions in United States v. Rock Island Motor Transit Company, 1951, 340 U.S. 419, 71 S. Ct. 382, 385, 95 L. Ed. 391, and American Trucking Associations, Inc., v. United States, 1957, 355 U.S. 141, 78 S. Ct. 165, 2 L. Ed. 2d 158, affirming D.C., 144 F.Supp. 365. In both cases the Supreme Court upheld the Commission's administrative interpretation and application of § 207 in the light of the policies underlying the Interstate Commerce Act as a whole and the national transportation policy. In the Rock Island case, the Court approved the Commission's imposition of five restrictions administratively adopted to insure that common carrier operations by a railway affiliate under a § 207 certificate would be 'auxiliary and supplemental' to the rail operations in the absence of special circumstances justifying broader authority in the public interest, holding that the modification was authorized by the Commission's reservation, in the original § 207 certificate, of power to impose such further restrictions as subsequently might appear necessary. In the American Trucking Associations case the Court merely held that the Commission, in granting a § 207 common carrier certificate, had correctly given consideration to the policy underlying § 5(2)(b), although the latter section did not constitute a rigid limitation on § 207 certificates. The court finds the Commission's order in the instant case in harmony with the rulings in those cases.
For the foregoing reasons, the court concludes that the Commission in authorizing the extended operations by PMT acted within the limits of its statutory authority and did not exercise its discretion arbitrarily or capriciously; hence, the Commission's order must be upheld on the merits.
The intervenors have raised a further question, namely, the standing of the plaintiffs to bring this action. The intervenors contend that the complaint shows upon its face that none of the association plaintiffs is a 'party in interest' authorized by § 205(g) of the Interstate Commerce Act (49 U.S.C.A. § 305(g)) to seek judicial review, or the equivalent 'person suffering legal wrong because of any agency action' within 10 of the Administrative Procedure Act (5 U.S.C.A. § 1009) and, further, that the complaint fails to include any allegation and there is an absence of proof that the motor carrier plaintiffs have suffered or are threatened with damage or financial injury as the result of the Commission's order, so as to make them parties in interest entitled to bring suit. The intervenors urge that neither mere concern for obedience to law nor the mere possibility of stronger competition by virtue of the grant of new operating authority is sufficient to give the plaintiffs standing to bring this action to set aside the Commission's order, and that to constitute a 'party in interest' under 205(g) a plaintiff must show that some definite legal right possessed by him has been directly damaged or seriously threatened by the order. Atchison, Topeka & Santa Fe Railway Co. v. United States, D.C., 130 F.Supp. 76, affirmed per curiam 1955, 350 U.S. 892, 76 S. Ct. 152, 100 L. Ed. 785. They point out further that the fact that the plaintiffs were permitted to intervene before the Commission does not alone furnish a basis for plaintiffs' required 'interest'. Pittsburgh & W.V.R. Co. v. United States, 1930, 281 U.S. 479, 50 S. Ct. 378, 74 L. Ed. 980.
The defendant Interstate Commerce Commission did not raise the issue of standing, and the question was argued by the intervenors after the court had heard the case on the merits.
A majority of the court find that the association plaintiffs obviously are not persons possessed of some legal right directly and adversely affected by the administrative action, entitling them to bring an action to set aside the Commission's order. The majority further find that, not only is the complaint devoid of any allegation of direct injury, present or threatened, to the motor carrier plaintiffs by granting of the extension of operating authority to PMT, but, at the hearing on the merits, there was no showing of actual or anticipated direct injury such as would entitle them to institute this action. Had the complaint been filed by some qualified 'party in interest,' all of the plaintiffs would have had the right to intervene under the provisions of 28 U.S.C. § 2323;
but the right to intervene presupposes the existence of an action brought by a proper plaintiff. Since none of the plaintiffs has alleged or shown standing to bring the action under the statutes providing for judicial review of the Commission's orders, it is the view of Judges KEECH and CURRAN that the complaint must be dismissed on the further ground that plaintiffs lack standing to sue.
Judge BASTIAN concurs in so much of this opinion as deals with dismissal of the complaint on the merits.
Counsel will present an appropriate order dismissing the complaint (1) on the merits and (2) for lack of standing to sue.