(concurring in result).
The Motor Carrier Act of 1935 contains provisions to subject the business of common carriers of goods or passengers by motor vehicle to administrative regulation by the Interstate Commerce Commission. That body was directed to issue certificates, confirming the operations of any carrier “if any such carrier or predecessor in interest was in bona fide operation as a common carrier by motor vehicle 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” without further proof of public convenience and necessity. In the absence of controlling authority, these basic provisions relating to existing businesses engaged in interstate transportation by motor carrier seem to indicate that property rights of the existing carriers were recognized and confirmed by these .clauses of the legislation and that the power conferred upon the commission in respect thereto is judicial, rather than administrative.
The Commission have, however, treated such determinations as legislative or administrative questions and have by interstitial legislation established distinctions and tests relating to these property rights which Congress did not expressly authorize. By so doing, it would seem that the Commission have actually been influenced by their concept of public necessity and convenience which the act expressly removes from their consideration with respect to carriers operating on June 1, 1935. By drawing distinctions as technical as those of the common law relating to pleadings or contingent remainders, the Commission seem thus to have substituted tests of administrative convenience established after the immunizing period has passed in place of the test laid down by Congress to satisfy the dictates of fairness.
There is no clause of the act which provides that one who has been transporting goods in interstate commerce on and since June 1, 1935, must have dealt directly with the shippers and himself issued bills of lading. But the Commission were apparently influenced by their ideas that public policy required that no more than one “grandfather” certificate should be issued for a single operation. 'This determination seems to wipe out property rights of a small operation which Congress sought to preserve.
Numerous other instances of like determinations could be cited.1
The tendency of the Commission, influenced by such considerations, to eliminate the smaller or more irregular operator from the field, the seeming injustice of drawing distinctions by interstitial interpolation to serve administrative convenience, the apparent evil of permitting the Commission to extend the immunizing period for over five years and then to destroy a business existing at the date of the approval of the statute not upon a broad survey of the record of operation as a whole but upon a deviation which did not continue more than four months, the patent injustice of using a test which at the time of the event had not been called to the attention of the carrier by express terms of the governing statute nor foreshadowed by the decisions of the Commission itself are ably pointed out in the dissenting opinion of my colleague, Judge Claude McCOLLOCH.
However, a consideration of the holding in a previous .case is vital here. That cause was commenced by an application of one Maher for a certificate under the terms of the Motor Carriers Act of 1935. The issuance of a certificate was denied upon the ground that Maher had “abandoned” an “anywhere-for-hire” operation mainly conducted over United States Highway 99 in Oregon and Washington, when upon May 29, 1936, after the effective date of the act, he began regular runs over the same route between Portland and Seattle. The Commission thereupon issued a cease and desist order which prevented Maher from operating as a common carrier by motor ve*191hide under any circumstances. Thereby the Commission destroyed the right of Ma-her to operate, although he was a bona fide common carrier by motor vehicle in interstate commerce on June 1, 1935, and admittedly was still a bona fide common carrier by motor vehicle in interstate commerce at the date of the Commission order October 27, 1937, over the same route or routes and within the same territory.
Upon hearing in the District Court this cease and desist order was suspended until the Commission should consider whether Maher should not have confirmed his rights as an “anywhere-for-hire” operator under the “grandfather” clause and further until the Commission should consider whether “public convenience and necessity’ did not warrant the continuance of his operations.2 The prevailing opinion held that the policy of the act was to grant rights to common carriers by motor vehicle in interstate commerce in the period between June 1, 1935, the date set in the statute, and August 9, 1935, the effective date of the act, and that the Commission could not destroy these rights by administrative considerations nor by giving weight to events which occurred long after the effective date of the act and thus, beyond the period of immunization.
In reversing the result arrived at by the majority in the District Court, the Supreme Court followed the conclusions attained by Circuit Judge Haney, who wrote the dissenting opinion. The Supreme Court say: “Congress responded to the felt need for regulating interstate motor transportation through familiar administrative devices, while at the same time it satisfied the dictates of fairness by affording sanction for enterprises theretofore established. Whether an applicant seeking exemption had in fact been in operation within the immunizing period of the statute was bound to raise controverted matters of fact.” United States v. Maher, 307 U.S. 148, 153, 59 S. Ct. 768, 771, 83 L.Ed. 1162.
The announcement of this doctrine placed all the existing businesses which Congress sought to preserve in the spirit of fairness beyond the scope of judicial consideration by drawing about such controversies the magic circle of “questions of fact”. It may be pointed out that a consistent policy in determination of questions of fact has in reality the force of a rule of law.3
However, this court without obvious rationalization cannot fail to recognize the proposition that the Supreme Court has declared that these are questions of fact and not of law, nor the axiom that upon questions of fact the judgment of the Commission is final, no matter how arbitrary the result may seem.
Solely because a lower court should not attempt to reverse a policy laid down by the highest tribunal, when the pronouncement is plain, I concur in the result reached by Circuit Judge HANEY.
See Welsh Common Carrier Application, 23 M.C.C. 404; N. E. Rosenblum Truck Lines v. United States, D.C., 36 F.Supp. 467, 469 (requirement that a common earner must deal directly with shippers); Carolina Freight Carriers Corp. Common Carrier Application, 24 M. C.C. 305, 308 (requirements in regard to transportation of general commodities over irregular routes seem to involve considerations of public necessity and convenience); Terre Haute Union Transfer & Storage Co., Contract Carrier Application, 23 M.C.C. 653, 656 (distinctions as to ownership and control of corporations applying for separate operating rights).
Maher v. United States, D.C., 23 F. Supp. 810.
Especially when administrative interpretation of the statute is given great weight. See United States v. American Trucking Ass’ns, 310 U.S. 534, 549, 60 S.Ct. 1059, 84 L.Ed. 1345.