I dissent.
First. Defendants challenge the jurisdiction of this court. Under the statute, our jurisdiction extends to “cases brought to enjoin, set aside, annul, or suspend in whole or in part any order of the Interstate Commerce Commission”. 28 U.S.C.A. § 41(28). The words “any order”, as there used, mean “any affirmative order”. Procter & Gamble Co. v. United States, 225 U.S. 282, 293, 294, 32 S.Ct. 761, 56 L.Ed. 1091; United States v. Griffin, 58 S.Ct. 601, 82 L.Ed. -, February 28, 1938. That part of the order which denies the application for a certificate of public convenience and necessity is, I believe, an order which is negative in substance and form, over which we have no jurisdiction. Piedmont & N. Ry. Co. v. United States, 280 U.S. 469, 50 S.Ct. 192, 74 L.Ed. 551.
No contention is here made that we have jurisdiction under § 205(h) of the act, 49 U.S.C.A. § 305(h). (See Coordinator Eastman’s memorandum to the Senate Interstate Commerce Committee suggesting amendments to Senate Bill 1639, which is the act'in question.)
Under the express words of the statute, however, our jurisdiction extends to part of an order. Petitioner contends that the cease and desist part of the order is affirmative.
I believe a cease and desist order is ordinarily subject to review by this court. The Tap Line Cases, 234 U.S. 1, 34 S.Ct. 741, 58 L.Ed. 1185.
Defendants contend, however, that the order is not separable because the action of the court would result in an anomalous situation, and rely on Chesapeake & Ohio Ry. Co. v. United States, D.C. W.Va., 35 F.2d 769, affirmed 283 U.S. 35, 51 S.Ct. 337, 75 L.Ed. 824. That case does not hold that in such situation the order is not reviewable, and in fact is not in point, because there the statute made “no specification of the considerations by which the Commission is to be governed in determining whether the public convenience and necessity require the proposed construction.” 283 U.S. 35, 42, 51 S.Ct. 337, 339, 75 L.Ed. 824. Here the Commission had no such latitude and discretion, for it 'was required to issue the certificate on proof of specified facts.
Since the order was a command to petitioner, I believe it is an affirmative order, and within our jurisdiction.
Second. The extent of our reviewing powers is stated in Interstate Commerce Commission v. Union Pacific R. Co., 222 U.S. 541, 547, 32 S.Ct. 108, 111, 56 L.Ed. 308. So far as is here material, the order in question is final, unless “based upon , a mistake of law” under that case. There is no dispute as to the facts. Petitioner was on June 1, 1935, in operation on irregular routes within the territory for which application was made. The Commission construed the act to mean that petitioner was not entitled to a certificate covering a route between fixed termini, unless he was operating on a regular route on and since June 1, 1935, and defendants contend that such construction was correct.
I believe the Commission has not misconstrued the act. The “carrier” referred to in § 306(a) is defined in § 303(a) (14) to include those which operate “over regular or irregular routes”. The fact that petitioner, on June 1, 1935, was operating over an irregular route, does not prevent issuance of a certificate, because of that stat*819ute. Under § 306(a) petitioner is entitled to a certificate “if [he] * * * was in bona fide operation * * * on June 1, 1935, over the route or routes or within the territory for which application is made and has so operated since that time * * * Petitioner although he was in bona fide operation on June 1, 1935, over an irregular route, has not “so operated since that time” because he commenced operations over a regular route on May 29, 1936, and has continued. In other words, I believe the statute means that if a carrier was operating over a regular route on June 1, 1935, he must have so continued after that date in order to obtain a certificate under § 306(a) ; and that if a carrier was operating over an irregular route on June 1, 1935, he must have so continued after that date to obtain such a certificate.
Third. By 49 U.S.C.A. § 306(a), the Commission must issue a certificate upon proof of certain facts. If such facts are not proven, then “the application for such certificate shall be decided in accordance with the procedure provided for in section 307(a) of this chapter and such certificate shall be issued or denied accordingly”. Under the latter section proof of different facts is required before a certificate shall be issued. There is here no allegation in the bill that there was proof of such facts. There were no findings made by the Commission of the required facts. The evidence is not before us. Under such circumstances, we should presume that the Commission performed its duties and therefore refused to grant a certificate under § 307(a) because there was no showing of the required facts. I do not believe we should declare that the Commission should have determined the application under § 307(a) when we do not know whether there was any evidence before it to consider.
Fourth. Did the Commission have power to make the cease and desist order? I think that it had such power. Under § 306(a) such a carrier may not operate without a certificate of public convenience and necessity. Violation of that section is made a crime. § 322(a). Express power to make the order is given by § 304(a)(6) which provides:
“It shall be the duty of the Commission _* * *
“(6) To administer, execute, and enforce all other provisions of this chapter, to make all necessary orders in connection therewith, and to prescribe rules, regulations, and procedure for such administration * * *
For these reasons I think the bill should be dismissed.