(concurring specially).
I concur in the result reached by my colleagues but do not feel that 49 U.S. C.A. § 5(9) alone is sufficient authority to justify the Commission’s action under the circumstances of this case. For involved herein is not just the power of the Commission to supplement an order issued pursuant to 49 U.S.C.A. § 5 (2), but its power to alter the conditions *843upon which Baggett may retain a certificate of convenience and necessity. A wide variety of orders are contemplated by section 5(2) of the Interstate Commerce Act. Many involve orders of approval of contracts by the Commission which have no relation to a certificate, such as contracts for joint yard operations by railroads. However, in the case of the transfer of a certificate the proceeding culminates in the issuance of a new certificate to one of the parties. The question then arises: Can an order, which purports to alter only the order of approval of the transfer but which in fact alters the conditions upon which the transferee may retain the certificate of convenience and necessity, be issued without complying with the statutory provisions for altering a certificate. The opinion of the court deals with this in two ways: First, it argues that Baggett’s certificate has not been altered, and, second, it indicates that even if the certificate has been altered in some way, the recent case of Civil Aeronautics Board v. Delta Air Lines, Inc., 367 U.S. 316, 81 S.Ct. 1611, 6 L.Ed.2d 869 (1961), requires only that Baggett be given adequate notice and a hearing before the change. I disagree with both premises.
The Court in Delta Air Lines emphasized that, by including strict provisions for the alteration of certificates of convenience and necessity, Congress was concerned with protecting the “route security” of the carriers, “providing assurance to the carrier that its investment in operations would be protected insofar as reasonably possible.” 367 U.S. at 324, 81 S.Ct. at 1618. While the Court was there interpreting the certificate modification provisions of the Federal Aviation Act, the Interstate Commerce Act, 49 U.S.C.A. § 312(a) has the almost identical language which begins :
“Certificates, permits, and licenses shall be effective from the date specified therein, and shall remain in effect until suspended or terminated as herein provided.”
A transfer under section 5(2) differs from the acquisition of a certificate by original proceedings with respect to not only the standards applied but also the obligations involved. Inevitably there are employees of the purchased carrier who must be dealt with in accordance with the Commission’s order of approval of the transfer; the treatment of these employees undoubtedly represents a significant practical and financial element in choosing this method of acquiring a certificate and completing the transfer. It is, in effect, one element in the investment in the new routes. Here, the Commission, by adding the severance pay provisions, has retroactively increased the cost of investment, a cost which if known at the time the transfer was being considered by the parties might have altered their business judgment on the feasibility of the transfer, just as Delta Air Lines may no longer have wished the new routes after learning of their summary curtailment by the Commission in the Delta Air Lines case. In my opinion the addition of these new labor protective provisions alters the conditions upon which Baggett may obtain and retain its certificate, bringing the change within the ambit of section 312(a). Nor should the fact that the certificate is acquired by transfer rather than original proceedings in any way weaken Baggett’s route security. To the acquiring party, the acquisition by transfer rather than original proceeding is of little moment once operations have begun. The reliance on the certificate, the investment in the acquired and perhaps new equipment, development of routes, obligations of a functioning carrier to the ICC, and so forth, are identical in both cases. I therefore feel that neither section 5(2) nor 5(9) should be interpreted to weaken the strictures of section 312(a).
Further, I believe the majority incorrectly implies that Delta Air Lines requires only notice and a hearing when a certificate change is involved, rather than a proceeding in accord with section 312 (a). For the Court in Delta Air Lines *844stated repeatedly with respect to the counterpart of section 312(a) in the Federal Aviation Act:
“And there is no other explanation but that Congress delimited the Board’s power to reconsider its awards with precisely this factor in mind [route security]; hence the language that a certificate ‘shall be effective * * * until suspended or revoked as hereinafter provided’ * * * ” 367 U.S. at 324, 81 S.Ct. at 1618.
“But, we feel that we would be paying less than adequate deference to the intent of Congress were we not to hold that, after a certificate has gone into effect, the instructions set out in the statute are to be followed scrupulously.” 367 U.S. at 325, 81 S.Ct. 1618.
“All we hold is that, if the Board wishes to do so [modify a certificate], it must proceed in the manner authorized by statute. Thus, for example, the Board may reconsider an effective certificate at any time if it affords the certificated carrier notice and hearing prior to decision * 367 U.S. at 329, 81 S.Ct. at 1621.
This clearly contemplates a notice and a hearing pursuant to the relevant statutory provisions, section 312(a) in this case. Since the majority does not even imply that their “good cause shown” would satisfy the criteria for modifying a certificate as set out in section 312(a), I find their grounds insufficient to support the decision.
The majority also indicates that the differing provisions of the Motor Carrier Act, in particular 49 U.S.C.A. § 308, makes the strict rule of Delta Air Lines inapplicable, and quotes the manner in which the Court in Delta Air Lines distinguished the case of United States v. Rock Island Motor Transp. Co., 340 U.S. 419, 71 S.Ct. 382, 95 L.Ed. 391 (1951):
“However, two important distinctions between that ease and this are apparent: (1) The Motor Carrier Act makes express provision for summary modifications after certification, 49 U.S.C. § 308.- — and (2) the Court in Rock Island was very careful to limit its holding to the particular modification made in that case.”
The very careful limitations of Rock Island, however, are worthy of further note. The Court specially emphasized that the modification which the Commission there made to an outstanding certificate was pursuant to an express reservation in the certificate providing for such a modification. The modification was also one which was necessary to insure that the original purpose of the certificate would continue to be carried out. Although the court made note of section 308, 340 U.S. at 435, 71 S.Ct. 382, it was of the clear opinion that only the express reservation kept the Commission from violating section 312(a).1 The dis*845senting Justices were of the opinion that the modifications were a partial revocation of the certificate in a manner not authorized by the statute (340 U.S. 449, 71 S.Ct. 382). If section 308 were authority for the modification there would have been no need for the special emphasis on the reservation or for the dissent. There is no reservation in the certificate or order in this ease to provide for the protection of Hunt’s employees, and § 308 is not authority, in my mind, for reopening the original proceedings to attach new conditions.
Nor am I persuaded by the Government’s attempt to escape the Court’s holding in Delta Air Lines. It argues that the certificate in this case was inadvertently issued while a petition for reconsideration was still pending before the Commission and that under the case of American Trucking Association v. Frisco Co., 1958, 358 U.S. 133, 79 S.Ct. 170, 3 L.Ed.2d 172, an outstanding certificate may be modified for the correction of inadvertent errors. The Government’s argument, however, is misplaced. The American Trucking case held that where a restrictive condition had been omitted from the certificate as a result of a clerical and ministerial error on the part of the Commission’s staff, the error could be corrected. The error went not to the time of issuance, but to the content. The argument here is not that a protective labor provision carefully spelled out in the Commission’s report and order was omitted from the certificate issued August 30, 1957 as the result of a clerical error, but that the issuance itself, before the Commission passed on a petition for reconsideration on the merits, was an inadvertent error. The way to correct the error was not to consider the petition while the certificate was outstanding but to withdraw the inadvertently issued certificate. For example, if the Court of Appeals inadvertently issued a mandate while a valid petition for rehearing was still pending before it, the proper procedure would be to withdraw the mandate, entertain the rehearing, and then issue a valid mandate after conclusion of the rehearing. It clearly could not entertain the rehearing while the inadvertently issued mandate was outstanding and being relied upon by the parties and the court below. Thus the mere fact of inadvertent issuance of the certificate would not suspend the strict rule of Civil Aeronautics Board v. Delta Air Lines, Inc., and permit the Commission to add new conditions years later after hearing the petition for reconsideration.
This does not necessitate a reversal, however. For the Commission was very emphatic in its belief that Baggett had made serious misrepresentations to the Commission with respect to its intention to absorb Hunt’s employees. The majority finds that there is no evidence in the record to support this charge; however, I am convinced that the Commission was justified in its conclusion and that this will provide the basis for altering Baggett’s certificate.
In my opinion, the Commission could validly conclude that Baggett’s complete failure to make bona fide offers of employment to Hunt’s employees in accordance with the verified representations of its application was an intentional failure to comply. The only question is whether this intentional failure amounts to legal misrepresentation. Baggett argues that, to prove the original representations fraudulent, the Commission must find that Baggett did not intend to live up to them at the time they were originally made — a finding which would find no support in the record. The crux of the Commission’s theory of misrepresentation, however, does not turn on Baggett’s intent at the time of filing; the Commission’s primary concern is found in its conclusion that “it was Baggett’s responsibility to come to the Commission and disclose its inability to carry out its representations and ask for appropriate relief rather than to adopt a device designed to evade obligations thereunder.” While Baggett might consider this ruling arbitrary, it follows as a matter of course from the type of proceedings we are dealing with and has been inferred in numer*846ous similar circumstances. For example, it has long been the rule in many jurisdictions that insurance policies are voidable at the option of the insurance company when the insured conceals or fails to disclose a material change in facts affecting the risk, which change takes place between the time of the application and the delivery of the policy. See Stipcich v. Metropolitan Life Ins. Co., 1928, 277 U.S. 311, 316-317, 48 S. Ct. 512, 72 L.Ed. 895; Government Employees Ins. Co. v. Powell, 2 Cir., 1947, 160 F.2d 89; Cohen, Friedlander & Martin Co. v. Massachusetts Mut. Life Ins. Co., 6 Cir., 1948, 166 F.2d 63. A similar rule has been laid down with respect to transfers dealing with interests in land. In Hush v. Reaugh, D.C.1938, 23 F.Supp. 646, 652, the court said:
“ * * * for if one has made a statement which was true when made and material change takes place in financial condition, in value or in health, he is guilty of fraud in not disclosing such change when he knows or should know that the other party relies on such original representation. * * * Piedmont & Arlington Life Ins. Co. v. Ewing, 92 U.S. 377, 23 L.Ed. 610 * *
The rationale of this rule is clearly applicable to the present case. The Commission must be able .to rely upon the representations of the parties not only at the time they are made, but at the time that final approval of the transaction is granted. In different words, when representations made to the Commission speak to the nature of the transaction to be approved, they are continuing ones up until the termination of the proceeding. I am therefore of the opinion that the Commission applied the correct rule of law in reaching its conclusion that Baggett had been guilty of misrepresentation.
While fraud is not mentioned in section 312(a) as a ground for altering a certificate, other sections in the statute and the nature of Baggett’s conduct justify the action taken by the Commission.
In finding the source of statutory power allowing the Commission to correct clerical errors in American Trucking Association v. Frisco Co., supra, the Court relied upon section 17(3) of the Interstate Commerce Act, 49 U.S.C.A. § 17(3), which provides:
“The commission shall conduct its proceedings under any provision of law in such manner as will best conduce to the proper dispatch of business and to the ends of justice.”
It pointed out that “it is axiomatic that courts have the power and the duty to correct judgments which contain clerical errors or judgments which have been issued due to inadvertence or mistake,” 358 U.S. at 145, 79 S.Ct. at 177; it then cited Rule 60 of the Federal Rules of Civil Procedure, 28 U.S.C.A., to this effect and held that the Commission also must have such a basic power to “best conduce the ends of justice.” The power to correct fraud is similarly axiomatic and basic to all courts and to a tribunal exercising judicial functions as does the Interstate Commerce Commission. Under such circumstances such rules as the finality of a proceeding or judgment must be put aside to protect the integrity of the judicial process. As the Court said in Hazel-Atlas Glass Co. v. Hartford-Empire Co., 1944, 322 U.S. 238, 246, 64 S.Ct. 997, 88 L.Ed. 1250, in allowing the reopening of a judgment after 12 years for the determination of fraudulent procurement,
“ * * * tampering with the administration of justice in the manner indisputably shown here involves far more than an injury to a single litigant. It is a wrong against the institutions set up to protect and safeguard the public, institutions in which fraud cannot complacently be tolerated consistently with the good order of society. * * * The public welfare demands that the agencies of public justice be not so impotent that they must always be' ' mute and helpless victims of decep- ' tion and fraud.”
*847This power and duty to reopen a judgment so obtained is granted to the courts of the United States in Rule 60(b) of the Federal Rules of Civil Procedure— the same rule cited by the Court in American Trucking, supra. I am therefore of the opinion that for the same reasons cited by the Court there, the Commission has the statutory power to correct fraud in its orders and certificates as well as clerical errors — it is a necessary power “best to conduce the ends of justice.”
Whether this power should be exercised in the manner adopted here, however, is still an open question since, in addition to the normal policy of finality, Congress has expressed a special interest in the certificated “route-security” of the carriers. It is quickly apparent, however, that the carrier-defendant is in no position to assert his route-security under a certificate when the route or any of the conditions of its use were obtained as the result of its own misrepresentation. Baggett argues that had it known of the protective provisions prior to the completion of its transaction with Hunt, it might not have gone through with the transfer. However, when Baggett made its application for the transfer with the representations contained in that application, it became bound to them. Since the provisions added by the Commission do no more than correct the deviation from these representations, Baggett is in fact saying that had it known it would have to live up to its own representations, it never would have filed the application in the first place. Such a decision is one it should have made before filing. The carrier is entitled to the protection of its routes only to the extent that their certification was properly and legally obtained.
I am therefore of the opinion that the Commission followed a valid procedure in adding the labor protective conditions in this case, especially where a petition for reconsideration was filed prior to the issuance of the certificate and immediately after the discovery of the misrepresentation.2 There is no indication that the Commission has attempted to assert an affirmative power beyond its existing statutory powers in correcting Baggett’s misrepresentation — the labor protective provision is both standard and clearly envisioned by the statute. Such due process requirements as notice and hearing were carefully observed. If Baggett now refuses to obey the amended order, the Commission can institute revocation proceedings under section 212(a) of the Interstate Commerce Act, 49 U.S. C.A. § 312(a).
. “ * * * Such a reservation, of course, does not provide unfettered power in the Commission to change the certificate at will. That would violate § 212, allowing •suspension, change or revocation only for the certificate holders’ willful failure to comply with the Act or lawful orders or regulations of the Commission. The reservation by its terms does not offend against the provision of § 212 that a certificate ‘shall remain in effect until suspended or terminated,’ as § 212 provides. The Commission asserts the modifications were made in accordance with the certificate. The reservation would not authorize changes in operation or service unconnected with the plan of coordinated operation; and indeed Transit was not origmally authorized to operate independently and at large. What the reservation does allow are changes to insure that the operations will continue as auxiliary or supplemental to the train service.
* * * H* *
“ * * * We turn then to the question whether the five directed modifications of the certificate, [340 U.S. at] pp. 425-426, [71 S.Ct. at pages 386, 387,] supra, fairly may be said to be of a character auxiliary to or supplemental of train service and not such a change or revocation in part as is contemplated by the procedure of § 212, for failure to comply with statutory or regulatory provisions.” 340 U.S. at 435, 436, 71 S.Ct. at 391.
. I have found no federal cases directly in point, but a number of state courts have followed the same basic analysis in holding that state administrative agencies have the power to reopen and modify their determinations to correct for fraud. See Miles v. McKinney, 174 Md. 551, 199 A. 540, 117 A.L.R. 207; Industrial Commission of Ohio v. Dell, 104 Ohio St. 389, 135 N.E. 669; Annot., 73 A.L.R.2d 939, 951-52; 42 Am.Jur., Public Administrative Law, § 174.