These cases are an appeal and a cross appeal under § 210, 28 U.S.C. § 47a, 28 U.S.C.A. § 47a, and § 238 of the Judicial Code as amended, 28 U.S.C. § 345, 28 U.S.C.A. § 345, to review a final decree of a district court of three judges (28 U.S.C. § 47, 28 U.S.C.A. § 47) which modified in part and sustained as modified (D.C., 36 F.Supp. 898) an order of the Interstate Commerce Commission (8 M.C.C. 469) granting appellee Fleming 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 Stat. 543, 551, 49 U.S.C. § 306, 49 U.S.C.A. § 306(a).
The findings of the Commission may be briefly summarized as follows: Fleming on and since June 1, 1935, was engaged in bona fide operation as a common carrier by motor vehicle 'in driveaway service of new automotive vehicles, finished and unfinished, and new automotive vehicle chassis.' This driveaway or caravaning method of transportation is performed by individual driving of the vehicle under its own power, by driving one vehicle under its own power and towing a second vehicle attached to the first, or by driving under its own power a vehicle upon which another vehicle is partially or wholly mounted. Shipments by Fleming originated from the factories of automobile manufacturers in Detroit, Michigan, and were made to dealers and distributors in various states. Certain new cars were returned to Detroit in the same manner. Fleming commenced operations in 1933 and between January 1, 1934 and June 1, 1935 transported shipments to one point each in Arkansas and Alabama; to two points each in California, New York, Pennsylvania and Tennessee; to three points each in Washington, Oregon, Kentucky and North Carolina; to four points in Texas; to five points in South Carolina; and to seven points in Georgia. About 1200 vehicles were transported in this period and more than 2100 from 1933 to July, 1936, the time of the hearing. Shipments consisted of from one to sixteen vehicles, shipments of two and four being the most common. Fleming's service was confined to deliveries at very few points in several states due to the fact that he was furnishing a highly specialized transportation service from manufacturers to dealers and distributors. Shipments to most of the states named were numerous. Shipments to other states were fewer in number. Thus the three shipments to Arkansas aggregated twenty-five vehicles, the four shipments each to Texas and Oregon aggregated fourteen vehicles and twenty-four vehicles respectively, and the five shipments to Washington aggregated twenty-eight vehicles. Operations in those four states started just prior to June 1, 1935; but they were sufficient in scope to establish that Fleming was in bona fide operation in them on the statutory date. Fleming held his services out to the public generally as a common carrier and operated as such; and he held himself out to transport by the driveaway method between any points in the states for which application was made.
Though his transportation of shipments was restricted to a few points in each of the enumerated states, the Commission held that he was entitled to transport to all points in all of the states served, with the exception of New York and Pennsylvania as respects which the application was denied. The District Court sustained the order of the Commission in all respects except the operation in Arkansas. As to that it held that his service had been abandoned.