(dissenting).
I think the Commission misconstrued its authority under the Act. Basically, the Commission’s denial of the application of Navajo to purchase certain operating rights of Strickland was the result of a prior sale by Strickland to Merchants of Strickland’s intrastate operating rights between Amarillo, Dallas-Fort Worth, Texas. The Commission held that this sale would result in the performance of duplicate operations in interstate or foreign commerce. In my *384opinion this is an erroneous conclusion. If the transfer had been approved it would mean a substitution of Navajo for Strickland. If the application is denied Strickland will continue operations between these same points. Whether the application is approved or denied there will still remain the same number of carriers operating between these same points.
Not only the Commission, but the Examiner was influenced by the sale of Strickland’s intrastate rights to Merchants. His finding was approved by the Commission as follows: “The examiner, in his report, found, among other things, that the purchase price payable for the rights and physical property under each plan was reasonable, that the increase in fixed charges which would be incurred by Navajo, would not be. contrary to the public interest, that it would have sufficient capitalizable assets to support the increase in its capitalizad m resulting from the issuance of notes proposed, and that no employees of applicants would be adversely affected”. The Examiner, however, excepted to the “split” of a single operating right which would result from the interstate sale.
The Commission in its decision states: “As indicated, the question here presented is whether it would be consistent with the public interest to approve the purchase by Navajo of Strickland’s interstate rights while at the same time a duplicate service has already been created in Merchants as a result of the sale to the latter by Strickland of its intrastate rights and the registration of those rights by Merchants under the proviso. The burden is upon applicants to present affirmative evidence along those lines if the question is to be resolved in their favor.” (Emphasis added.) This is not a correct statement of the law. See Ratner v. United States, D.C., 162 F. Supp. 518, affirmed 356 U.S. 368, 78 S.Ct. 913, 2 L.Ed.2d 842.
As I view this case the question is not one of merely weighing the evidence which is within the sole province of the Commission. The principal issue is whether the Commission’s order is within the scope of the Act, and whether it is based upon adequate findings that are supported by substantial evidence. The Commission held that Strickland was “responsible for creating two operations in interstate or foreign commerce”. Congress by its enactment of the second proviso of Section 206(a) of the Motor Carrier Act (49 U.S.C.A. § 306) has precluded the Commission from interfering with intrastate operations. If two operations have been created then the fault lies with the statute and not Strickland. Neither can it be said that a carrier is precluded from selling its interstate rights after it has sold its intrastate rights, as a consequence of which sale interstate operations ensue, nor can it be said that there is any factual basis for the conclusion of the Commission that Strickland’s sale to Merchants “was entirely without regard to any public need for additional service * * * ”. The determination of public necessity under the second proviso was exclusively within the purview of the authority delegated to the Texas Railroad Commission.
It is apparent from the Commission’s decision that it has extravagantly used the term “consistent with public interest”. In construing the national transportation policy set out in the Act I think that the following terms and phrases of the Commission are not synonymous with the statutory criterion of “consistent with public interest”; “no need exists for additional transportation services”; “Public Convenience and necessity”; “no inadequacy has been shown to exist in the services presently provided”; “no public need has been shown for the new and different service”.
The term “public interest” includes not only the interest of competing carriers but also free enterprise. The decision of the Commission is replete with references to the adverse effect the proposed sale would have on the protestants, revealing a super-abundance of sympathy with their competitive problems. Nowhere in the decision did the Commission give consideration to the consequences *385of present or future competition to the public interest. The element of competition comes into play only when it adversely affects the public interest. The purpose of the Act is to foster the public interest and not to immunize carriers from additional and competitive carriers, nor to preserve existing arrangments or competitive practices. Control, not prevention, of competition is the object of the Act.
It is not without significance or relevance that the Commission, having granted a certificate to Strickland in the first instance based on public convenience and necessity, now denies Strickland the right to sell the certificate to Navajo, holding that the burden is on Strickland to show public convenience and necessity. Too, we are dealing with a valuable property right which in effect the Commission has held Strickland cannot sell. This decision strikes at the very heart of our free enterprise, which has long distinguished our economy. I do not believe Congress intended to give the Commission carte blanche authority to substitute its judgment for that of the parties on the question of whether a sale should or should not be made. The statute simply states (49 U.S.C.A. § 5, par. (2) (a) “It shall be lawful, with the approval and authorization of the Commission, as provided in subdivision (b) of this paragraph — (i) * * * for any carrier, or two or more carriers jointly, to purchase, lease, or contract to operate the properties, or any part thereof, of another; * * (Emphasis added.)
In this case the strength of the competitors seems more apparent than a transportation need. From what I have said I would return this case to the Commission for reconsideration of the application with the recommendation that the Commission desist from weighing the effect of Strickland’s sale of its intrastate rights to Merchants, and from giving the protestants unwarranted protection against competition; that it reassess its concept of public interest in the light of benefits of the proposed transaction to the public; that it give regard to the inherent advantages of the proposed service; that the Commission be more exact in its finding that the division of Strickland’s interstate rights would result in an objectionable split of a single operating right; that in the event such a split is, in fact, improper, then the Commission could qualify the application to avoid the split. Such a circumstance should not be the basis for disapproval of the application when all other conditions are met.