This case, like United States v. Carolina Freight Carriers Corp., 315 U.S. 475, 62 S.Ct. 722, 86 L.Ed. --, decided this day, is an appeal from a district court of three judges (38 F.Supp. 556) convened to review an order of the Interstate Commerce Commission (24 M.C.C. 273) granting appellant a certificate of public convenience and necessity as a common carrier by motor vehicle under the so-called 'grandfather clause', § 206(a) of the Motor Carrier Act of 1935. 49 U.S.C. § 306(a), 49 U.S.C.A. § 306(a).
Appellant made application as a common carrier of general commodities operating over irregular routes. It sought authority to operate between all points in a vast territory comprising most of the country east of the Mississippi River except the New England states. The Commission authorized the issuance of a certificate but limited it in two respects: (1) It restricted the geographical scope of the operations by authorizing service only from Birmingham, Ala., and all points within a radius of 10 miles from that city, to all points in certain states and to designated points in others. (2) Though it permitted appellant to carry general commodities throughout a large segment of the authorized territory, it limited the kinds of commodities which could be carried between specified points. Its finding containing those restrictions (24 M.C.C., p. 277) reads as follows:
'We find that applicant was, on June 1, 1935, and continuously since that time has been, in bona fide operation, in interstate or foreign commerce, as a common carrier by motor vehicle, of general commodities, except commodities of unusual value, high explosives, commodities in bulk, commodities requiring special equipment, and household goods, uncrated or in lift vans in connection with so-called household movings between Birmingham, Ala., and all points within 10 miles thereof, on the one hand, and, on the other, all points in North Carolina, Georgia, Mississippi, and South Carolina, and those in Florida on and north of a line consisting of U.S. Highway 92 from Tampa to Kissimmee, thence U.S. Highway 192 to Melbourne, of paper and paper products from Birmingham to New Orleans, La., and Chattanooga and Knoxville, Tenn., and from Kingsport, Tenn., to Birmingham, of nails, pipe, pipe fittings, steel, and metal ceilings from Canton, Ohio, to Birmingham, of cloth from Alabama City, Ala., to Wheeling, W.Va., and of matches from Wheeling to Chattanooga and Birmingham, all over irregular routes; that by reason of such operation it is entitled to a certificate authorizing the continuance thereof; and that the application in all other respects should be denied.'
The District Court refused to enjoin enforcement of the order and dismissed the complaint. The errors urged here do not relate to the substantiality of the evidence in support of the findings. They involve two questions: Whether the Commission was warranted in limiting shipments to and from points located within a 10 mile, rather than a 100 mile, radius of Birmingham; and (2) whether the Commission erred in limiting the operating rights of appellant to the transportation of only a few commodities between certain points.
I. We perceive no error in the limitation which the Commission made on the territorial scope of appellant's operations.