(dissenting):
I respectfully dissent. In my view the Commission fell into an error of law in its consideration of these matters. The error arose in the application of the so-called National Transportation Policy to prevent railroad domination of the trucking" industry. United States v. Rock Island Motor Transit Company, 1951, 340 U.S. 419, 71 S.Ct. 382, 95 L. Ed. 391. The general rule of that case as developed by the Commission from the statutes, 49 U.S.C.A. §§ 5(2) (b), 307(a), and by the Supreme Court in subsequent cases, American Trucking Association, Inc. v. United States, 1957, 355 U.S. 141, 78 S.Ct. 165, 2 L.Ed.2d 158, American Trucking Associations, Inc. v. United States, 1960, 364 U.S. 1, 80 S.Ct. 1570, 4 L.Ed.2d 1527, is to restrict railroads in performing motor carrier operations to auxiliary or supplementary service to rail operations. But, and this is the point — there is an exception to the general rule. As Justice Clark said for. the court in the first American Trucking Associations case, 355 U.S. at 150, 78 S.Ct. at 170:
“ . . . While [the Commission] has applied auxiliary and supplementary restrictions in many § 207 proceedings, the Commission has occasionally issued certificates to railroad subsidiaries without the restrictions where ‘special circumstances’ prevail, namely, where unrestricted operations by the rail-owned carrier are found on specific factá and circumstances to be in the public interest.”
The record is replete with supplications that the Commission address itself to the “special circumstances” aspects of this case. Although the parameters of “special circumstances” have not been drawn, the Supreme Court did approve an unrestricted motor carrier certificate in the first American Trucking Associations case, supra, 355 U.S. 141, 78 S.Ct. 165, 2 L.Ed.2d 158, for a railroad subsidiary by treating a finding of public interest as a sufficient “special circumstances.”
Here the evidence goes much further. Applicant is operating under a temporary certificate granted by the Commission. The statutory prerequisite to the grant was “an immediate and urgent need . . . within a territory having no carrier service capable of meeting such need . . .”49 U.S.C.A. § 310a(a). The business developed under the temporary authority proved this to be the case. Applicant also has intrastate operating rights. The piggyback service was not available to shippers on the parent railroad because the only interconnecting rail carrier refused to cooperate in providing the service. The only motor carrier service available was at higher rates and was not available at all necessary points. The Commission, in the Clay case, found a need for additional service, and that no undue restraint would ensue from the grant of the authority.
These facts and findings are background for the error in law made by the Commission and adopted by the majority here. The error is in the Commission having applied its auxiliary and supplementary service rule to applicant as a rigid limitation rather than following its normal policy of determining whether the exception is warranted. American *1039Trucking Association, 355 U.S. at 150, 78 S.Ct. 165. This treatment of applicant is difficult to understand. Given the nine-mile short line status of applicant’s parent, the auxiliary and supplementary service rule amounts to a complete bar of motor carrier service. The rule in question rested originally on reason but the reasoning is absent in the case here and thus the rule should be inapplicable or, at least, of little weight.
That the Commission may have been in doubt in its approach is indicated by the finding that the chances of undue restraint on competition from a grant of the application in the Clay case were remote.
What apparently happened in this erroneous proceeding in the Commission is now mirrored by the majority here. All emphasis is on the National Transportation Policy which, as stated by the Commission and the majority of this court, is in essence, to protect existing modes of transportation by dividing territories and business. The public interest, however, is and must be an overriding unspoken premise in this National Transportation Policy and a prime factor in public interest is service to the shipper. My impression of these cases is that the shippers on the nine-mile parent railroad have been overlooked in the Commission’s effort to maintain the status quo.
I would remand for further proceedings in the Commission directed to considering each case free of the rigid application of the auxiliary and supplementary service rule.