(dissenting).
Even though it be true, as contended by counsel, that the modern decisions grant the unreviewable right to the Interstate Commerce Commission to interpret and apply the Motor Carrier Act to concrete situations, it does not follow that the Commission may exercise such power, judicial in nature, in a distinctly unjudicial manner. The statute gives “grandfather rights” to an applicant “if any such carrier or predecessor in interest was in bona fide operation as a common carrier by motor vehicle on June 1, 1935, * * * and has so operated since that time”. More than five years after the grandfather date the Commission ruled that, because for a period of four months (February-June, 1937), the first of applicant’s two predecessors in interest did not, in the opinion of the Commission, maintain his status as a common carrier, applicant was not entitled to a permit. In arriving at its decision, the Commission said it need not, and therefore did not, give any consideration to the carriers’ operations either before or after the named period in 1937.
Whether an applicant and his predecessors have maintained bona fide status as a common carrier over a period of time is not to be determined by finding a flaw in the chain of operating title and then stopping there. Neither a title examiner nor a court in passing on title to real property would stop at a single flaw, and say, as the Commission said here, we need look no farther, we adjudge the title bad, what has *192gone before or after is of no consequence. On the contrary, a defect in chain of title to real property would be appraised in its whole setting. So here, the claim of right to a permit under the Motor Carrier Act should have been determined on the basis of the full five years’ operation, not solely on the basis of a selected few months. Analogies in the law could be multiplied where determination of status is involved. I would not expect any court in assessing conduct to hold that, because a suitor had done a particular thing that was bad, he was not entitled to have the good in his conduct considered and balanced against the bad.
The Motor Carrier Act, as I said in Maher v. United States, D.C., 23 F.Supp. 810, 818; Id., 307 U.S. 148, 59 S.Ct. 768, 83 L. Ed. 1162, affects the welfare of many small operators and should not be interpreted so strictly that slight deviation from perfect conduct works a loss of status.
I feel that the case should be remanded to the Commission for consideration of the full time of operation in determining whether there was bona fide common carrier operation subsequent to the grandfather date and to the date of hearing.