COLLET, Circuit Judge.
The plaintiff, Brady Transfer
&
Storage Company, which will hereinafter be referred to as Brady, carries on extensive operations as a common carrier by motor vehicle under certificates issued by the Interstate Commerce Commission. Brady was so engaged prior to the effective date of the Motor Carrier Act of 1935, now Part II of the Interstate Commerce Act, 49 U.S.C.A. §§ 301-327. In due time after the effective date of the above Act, Brady applied to the Commission under the so-called Grandfather Clause, 49 U.S.C.A. § 306(a), for authority to continue the operations then engaged in Pursuant to the authority of the Act, 49 U.S.C.A. § 306(a), Brady continued in the prosecution of its business pending final determination of the foregoing application. Originally the applications made were for several individual certificates. Among those applications authority was requested for the right to operate as a regular route common carrier of freight over specified routes serving specified points in many states and over a large area. After several years several of such regular route certificates were issued. None of them are in controversy in this action. One of the applications that Brady originally made under the Grandfather Clause was for authority to operate as an irregular route common carrier of freight. That application requested among other ■things authority to operate between St. Paul and Minneapolis, Minnesota, and all points in the State of Iowa. The application was not exactly so worded but for present purposes the question at issue will be simplified by referring to. it in that manner. This application had. a somewhat hectic course. Originally the Commission, in 1940, 23 M.C.C. 767, issued a report in which the conclusion was stated that Brady had been operating as a common carrier of freight over an irregular route between those points and that specified area, and that the certificate should be granted on that ground. After reconsideration the Commission issued a report denying the irregular route certificate. Subsequent hearings and rehearings finally resulted in the issuance in 1944 of a certificate authorizing among other things irregular
route service substantially as requested in the application. In 1947 all of Brady’s certificates were consolidated into one. In the meantime, however, in 1941 the Commission instituted on its own motion an investigation to determine whether Brady was actually carrying on an operation between St. Paul and Minneapolis, Minnesota, on the one hand and Spencer and Fort Dodge, Iowa, on the other which exceeded the authority requested in its application for an irregular route between those points. After an extensive investigation by the Commission and participation in the proceedings by many interested parties, all or most of whom have intervened in the present action, the Commission issued its report stating the conclusion that Brady was not carrying on an irregular route operation within the meaning assigned to that term by the - Commission and ordering him to cease and desist from exceeding the authority which he had applied for and which had been given him to operate between those points as an irregular route carrier in 1944. The report last referred to was issued in February, 1947. 47 M.C.C. 23. The effective date of this order has been extended from time to time, permitting the bringing of this action and has, since the action was brought, been further extended at the request of and for the convenience of the Court to permit the disposition of this action before the effective date of the order.
This action is brought under 28 U.S.C.A. §§ 1336, 1398, 2284, 2321-2323, 2325, challenging the validity of the Commission’s order directing Brady to cease exceeding its irregular route authority between St. Paul and Minneapolis, Minnesota, and Spencer and Fort Dodge, Iowa. The usual statutory three-judge Court ‘was convened and the cause submitted upon the pleadings, stipulation and affidavit. The material facts are not in dispute. Brady concedes, for the purposes of this case, that- the evidence before the Commission supports its factual findings in which the operations conducted by Brady are described. Brady does not concur, however, in the conclusion of the Commission that those facts demonstrate an exercise of authority in excess of that granted and' possessed by Brady under the irregular route certificate. A brief outline of the factual situation will materially ciar-' ify the legal differences now in dispute.
As heretofore noted, Brady was operating extensively as a motor carrier of freight prior to 1935. Incident to those operations occasions presumably arose, again presumably comparatively infrequent, for Brady, in its capacity as a common carrier, holding itself out to the public as ready, able and willing fq carry freight anywhere, for it to transport freight from St. Paul and Minneapolis to indiscriminate points in Iowa. We say “presumably” because that kind of an operation is the type of business which historically and customarily provoked the type of application which Brady filed — a request for irregular route authority between St. Paul and Minneapolis on the one hand and all points in Iowa on the other. Again, presumably, Brady was not .operat-. ing between St. Paul and Minneapolis on the one hand and all points in Iowa on the other at that time or any time nor was it necessary for it to be so operating in order t-o justify the application for and the issuance of a certificate as an irregular route carrier. Alton Railroad Company v. United States, 1942, 315 U.S. 15, 21, 62 S.Ct. 432, 86 L.Ed. 586. As time went on Brady saw the opportunity of increasing materially the volume of business and the profits rej suiting from its operation by the establishment of regular scheduled trips, the solicitation of business between St. Paul and Minneapolis and Spencer and F'ort Dodge, Iowa, the' advertisement to the general public, and the solicitation of shippers upon the basis that regular scheduled daily service was offered between St. Paul and Minneapolis on the one hand and Spencer and Fort Dodge on the other. Considerable business was built up as the result. The Commission concluded that this new systematic, regular scheduled service given by Brady between St. Paul and Minneapolis bn the one hand and Spencer and Fort Dodge on the other constituted a change in the
type
of the operation which Brady had been giving prior to 1935 and which it had requested authority to continue under the Grandfather Clause and which it had been granted authority to continue by the issuance of the irregular route certificate.
That conclusion was based upon the consideration of eight factors set forth in the Commission’s extensive report. 47 M.C.C. 23, 43-56 (1947). The Commission expressly disavows any intent to curtail the volume of Brady’s irregular route business between these points. With equal clarity and positiveness it renounces any intent or power to curtail the number of trips which Brady makes between St. Paul or Minneapolis and Spencer or Fort Dodge under the irregular route certificate. It states in its report (47 M.C.C. 23) (1947), in the language of the experts in that field, with a meticulous care as to terminology which we will not undertake to emulate or improve upon for the very good reason that it is not within the province of this Court to do so, why the present operations by Brady as demonstrated by the conceded facts represent a change in the
type
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COLLET, Circuit Judge.
The plaintiff, Brady Transfer
&
Storage Company, which will hereinafter be referred to as Brady, carries on extensive operations as a common carrier by motor vehicle under certificates issued by the Interstate Commerce Commission. Brady was so engaged prior to the effective date of the Motor Carrier Act of 1935, now Part II of the Interstate Commerce Act, 49 U.S.C.A. §§ 301-327. In due time after the effective date of the above Act, Brady applied to the Commission under the so-called Grandfather Clause, 49 U.S.C.A. § 306(a), for authority to continue the operations then engaged in Pursuant to the authority of the Act, 49 U.S.C.A. § 306(a), Brady continued in the prosecution of its business pending final determination of the foregoing application. Originally the applications made were for several individual certificates. Among those applications authority was requested for the right to operate as a regular route common carrier of freight over specified routes serving specified points in many states and over a large area. After several years several of such regular route certificates were issued. None of them are in controversy in this action. One of the applications that Brady originally made under the Grandfather Clause was for authority to operate as an irregular route common carrier of freight. That application requested among other ■things authority to operate between St. Paul and Minneapolis, Minnesota, and all points in the State of Iowa. The application was not exactly so worded but for present purposes the question at issue will be simplified by referring to. it in that manner. This application had. a somewhat hectic course. Originally the Commission, in 1940, 23 M.C.C. 767, issued a report in which the conclusion was stated that Brady had been operating as a common carrier of freight over an irregular route between those points and that specified area, and that the certificate should be granted on that ground. After reconsideration the Commission issued a report denying the irregular route certificate. Subsequent hearings and rehearings finally resulted in the issuance in 1944 of a certificate authorizing among other things irregular
route service substantially as requested in the application. In 1947 all of Brady’s certificates were consolidated into one. In the meantime, however, in 1941 the Commission instituted on its own motion an investigation to determine whether Brady was actually carrying on an operation between St. Paul and Minneapolis, Minnesota, on the one hand and Spencer and Fort Dodge, Iowa, on the other which exceeded the authority requested in its application for an irregular route between those points. After an extensive investigation by the Commission and participation in the proceedings by many interested parties, all or most of whom have intervened in the present action, the Commission issued its report stating the conclusion that Brady was not carrying on an irregular route operation within the meaning assigned to that term by the - Commission and ordering him to cease and desist from exceeding the authority which he had applied for and which had been given him to operate between those points as an irregular route carrier in 1944. The report last referred to was issued in February, 1947. 47 M.C.C. 23. The effective date of this order has been extended from time to time, permitting the bringing of this action and has, since the action was brought, been further extended at the request of and for the convenience of the Court to permit the disposition of this action before the effective date of the order.
This action is brought under 28 U.S.C.A. §§ 1336, 1398, 2284, 2321-2323, 2325, challenging the validity of the Commission’s order directing Brady to cease exceeding its irregular route authority between St. Paul and Minneapolis, Minnesota, and Spencer and Fort Dodge, Iowa. The usual statutory three-judge Court ‘was convened and the cause submitted upon the pleadings, stipulation and affidavit. The material facts are not in dispute. Brady concedes, for the purposes of this case, that- the evidence before the Commission supports its factual findings in which the operations conducted by Brady are described. Brady does not concur, however, in the conclusion of the Commission that those facts demonstrate an exercise of authority in excess of that granted and' possessed by Brady under the irregular route certificate. A brief outline of the factual situation will materially ciar-' ify the legal differences now in dispute.
As heretofore noted, Brady was operating extensively as a motor carrier of freight prior to 1935. Incident to those operations occasions presumably arose, again presumably comparatively infrequent, for Brady, in its capacity as a common carrier, holding itself out to the public as ready, able and willing fq carry freight anywhere, for it to transport freight from St. Paul and Minneapolis to indiscriminate points in Iowa. We say “presumably” because that kind of an operation is the type of business which historically and customarily provoked the type of application which Brady filed — a request for irregular route authority between St. Paul and Minneapolis on the one hand and all points in Iowa on the other. Again, presumably, Brady was not .operat-. ing between St. Paul and Minneapolis on the one hand and all points in Iowa on the other at that time or any time nor was it necessary for it to be so operating in order t-o justify the application for and the issuance of a certificate as an irregular route carrier. Alton Railroad Company v. United States, 1942, 315 U.S. 15, 21, 62 S.Ct. 432, 86 L.Ed. 586. As time went on Brady saw the opportunity of increasing materially the volume of business and the profits rej suiting from its operation by the establishment of regular scheduled trips, the solicitation of business between St. Paul and Minneapolis and Spencer and F'ort Dodge, Iowa, the' advertisement to the general public, and the solicitation of shippers upon the basis that regular scheduled daily service was offered between St. Paul and Minneapolis on the one hand and Spencer and Fort Dodge on the other. Considerable business was built up as the result. The Commission concluded that this new systematic, regular scheduled service given by Brady between St. Paul and Minneapolis bn the one hand and Spencer and Fort Dodge on the other constituted a change in the
type
of the operation which Brady had been giving prior to 1935 and which it had requested authority to continue under the Grandfather Clause and which it had been granted authority to continue by the issuance of the irregular route certificate.
That conclusion was based upon the consideration of eight factors set forth in the Commission’s extensive report. 47 M.C.C. 23, 43-56 (1947). The Commission expressly disavows any intent to curtail the volume of Brady’s irregular route business between these points. With equal clarity and positiveness it renounces any intent or power to curtail the number of trips which Brady makes between St. Paul or Minneapolis and Spencer or Fort Dodge under the irregular route certificate. It states in its report (47 M.C.C. 23) (1947), in the language of the experts in that field, with a meticulous care as to terminology which we will not undertake to emulate or improve upon for the very good reason that it is not within the province of this Court to do so, why the present operations by Brady as demonstrated by the conceded facts represent a change in the
type
of its operations from those of an irregular route carrier to those of a regular route carrier
The question of primary importance presented in this case is stated by Brady in its brief as follows:
“Does the term ‘irregular routes’ as used by the Commission in the Brady certificate constitute a specification only of the highways which the carrier is authorized to traverse — any and all available highways— or does it mean more and constitute a limitation on service and a prohibition of certain operating practices, so that the Commission can now require Brady to refrain from such practices on the ground that they are not authorized by the initial grant?”
As amplified in the argument, this contention amounts to an assertion that the service given by Brady prior to the effective date of the Motor Carrier Act arid which was made the premise of the application for the irregular route certificate under the Grandfather Clause of that Act is relevant only to the determination of the area or points which may be served under the irregular route certificate, with the result that after the issuance of the irregular route certificate granting authority to operate between a given point or points and a specified area or points therein 'the quantity' of such service may be increased under the authority of 49 U.S.C.A. § 308(a)
to an unlimited extent with such improvements in service as an increase in the quantity of 'service may make appropriate, although those refinements and improvements may convert a one-time coincidental’ operation between St. Paul and Minneapolis on the one. hand and Spencer and Fort Dodge on the other into a regular, periodical, scheduled, systematic, “regular route” operation between those points.
The further objections to the validity of the Commission’s order are advanced to the effect that (1) the Commission does not have the power to impose the limitations asserted to have been made; (2) the Motor Carrier Act does not recognize or ’permit the classification of common carriers of property into irregular route carriers and regular route operators; (3) the classification section of the Act, 49 U.S.C.A. § 304(b), does not give the Commission power to classify common carriers of property into the above classes; (4) the Commission does not have the power to Restrict the service of an irregular route common carrier for the purpose of improving the competitive position of regular route carriers; and (5) the assajled order violates the due process clause of the Fifth Amendment in that it (a) is invalid for uncertainty, and (b) is discriminatory because it imposes a classification with accompanying restrictions upon irregular route operators without' any reasonable'relation to the purpose of the Act. These further contentions will Ivgely be answered by the determinatjon of the more important question above stated.
The basic underlying dispute in this case is whether Brady has simply increased the quantity of the service it is authorized to give under its irregular route certificate or whether, as the Commission concluded, it has changed the
type
of its operation from that of an irregular route
carrier to that of a regular route carrier. For it ca'nnot be seriously contended that the Act of Congress does not contemplate two types of common carriers i. e. irregular route carriers and regular route carriers. United States v. Maher, 307 U.S. 148, 155, 59 S.Ct. 768, 83 L.Ed. 1162; Crescent Express Lines, Inc., v. U. S., 320 U.S. 401, 64 S.Ct. 167, 88 L.Ed. 127. It is true that the cases just cited deal with the carriage of passengers but we see no valid reason why the principles announced by the Supreme Court in those cases should not apply equally to the carriers of property. Nor can there be serious doubt that Congress granted to the Commission the authority to classify common carriers of property and a fortiori the right to establish the classifications of irregular route carriers and regular route carriers if, of course, there be a reasonable factual basis therefor, since Congress specifically conferred that power by Section 304(b), 49 U.S.C.A., as follows:
“The Commission may from time to time establish such just and reasonable classifications of brokers or of groups of carriers * * * as the special nature of the services performed by such carriers * * * ■shall require; and such just and reasonable rules, regulations and requirements, consistent with the provisions of this chapter, to be observed by the carriers * * * so classified or grouped, as the Commission deems necessary or desirable in the public interest.”
With the premise established that the Commission has the power to classify common carriers of property, our inquiry leads to the determination of the - question of whether that power was properly exercised by the classification of common carriers of property into irregular route and regular route operators. It is reasonably clear from the Act itself that Congress recognized a necessity for distinguishing between these two
types
of operators
but it is apparent from the specific authorization which Congress conferred upon the Commission to classify carriers that it — the Congress — was not undertaking to actually make the classification but preferred to leave that to the considered judgment of the experts in that field.
Was the classification a reasonable one and based upon a justifiable factual
difference between these classes of operators ? The answer to that question depends somewhat upon a consideration of what has historically been the manner of operation of an irregular route carrier and regular route carriers prior to the passage of the Motor Carrier Act of 1935 and at the time the Commission made its classification of those carriers by general order in 1937.
The distinguishing characteristics between the irregular route carrier and one possessing regular route authority were not stated with meticulous nicety in the classification order of 1937, and apparently not until the present case was decided by the Interstate Commerce Commission did that body undertake to set out any extensive formula for making the distinction between the types. And then it disavowed, and we think very properly, the intention or even the possibility of laying down any hard and fast inelastic yardstick which could be applied to all cases for the determination of what class a particular operation fell into. It did in its report in this case announce eight factors or criteria, some or all of which might in an individual case exist and have a relevant bearing on the determination of the type of operation. It is clear from the Commission’s order that there was no intention to assert that any one of those eight factors would necessarily be controlling. On the other hand, it is equally clear that the Commission was undertaking to give such assistance as it could to the industry in announcing these factors in order that so many of them as might exist in any given case might be considered collectively in determining the type of operation. It is unnecessary to restate these factors in detail. The salient portions thereof are set forth in the margin.
They do not constitute any new definition of an irregular route carrier,
but merely enunciate the historically established differences in the type of operations long known and recognized by the industry and by Brady at the time it made original application for different types of certificates.. The general criteria which the Commission has laid down as a basis for the classification • of common carriers by type are in our judgment based upon abundant factual premises stated in the factors themselves. We conclude, therefore, that the classification was a reasonable one fully authorized by well recognized principles of law and the Act in question. Brady concedes the correctness of the facts found by the Commission and set forth in its report and order but contends that actually all of the factors considered by the Commission in reaching its conclusion that- Brady had changed the type of its operation were factors originating out of an increase in the
quantity
of its operation, as distinguished from
type,
and hence the application of those factors is prohibited by the limiting provisions of 49 U.S.C.A. § 308(a), heretofore quoted in footnote 1 supra. With that contention we cannot agree. It is unnecessary in view of the careful and full consideration given to the question by the Commission and reported in its report and order, for us to amplify at length the difference in the type of operation which the Commission found Brady was now engaging in from the type of operation which it was performing prior to June 1, 1935, which was made the basis for its .application for the irregular route certificate under the Grand
father - Clause and which was the premise for -the issuance of that authority. We deem it adequate to observe that there is, as the ’Commission found, a clear distinction in type between the indiscriminate, coincidental, rion-scheduled, unperiodical, itinerant, ambulatory service of an irregular route carrier and the operation of a regular route certificate holder over a carefully specified route to only specifically authorized points on that route on schedules published and filed, with the obligation on the part of the carrier to give, and the responsibility on the part of the Commission to compel, the carrying out of that operation to such an extent as the convenience .and, necessity of the public justified. The decision reached by the Commission to the effect that Brady’s systematic, periodic, scheduled, non-coincidental, premeditated, planned, regular service between St. Paul and Minneapolis on the one hand and Spencer and Fort Dodge on the other was a regular route operation, was justified by the conceded facts. To hold otherwise would, in effect, amount to an authorization by the holder of an irregular route certificate, authorizing service between St. Paul and Minneapolis on the one hand and all points in Iowa on the other, to establish regular route operation between St. Paul and Minneapolis and each and every point in Iowa without any finding that such service was necessary or convenient to the public or without any finding that such service had ever at any time been given be
tween two specific points. Such type of service is not that authorized by an irregular route certificate.
The contention that the Commission has restricted the service of this irregular route carrier for the purpose of improving the competitive position of regular route common carriers between the points involved is without merit. There is no indication in the order that such was the proximate ground for the Commission’s cease and desist order.5 It is clear that this order was made because of a finding, which we have heretofore concluded to be justified, that Brady was exceeding the authority of its irregular route certificate. If the result of the order may incidentally be to the advantage of other carriers operating between these points, then it is a result contemplated by the law and therefore not based upon any sinister or improper ground.
Is the order invalid for uncertainty? Brady contends that it is because it simply orders it to cease and desist from exceeding its authority without informing it with definiteness and certainty just what it can do under its irregular route certificate without becoming a regular route carrier and thereby exceeding the authority it holds. As heretofore noted, the Commission has gone to considerable lengths in advising Brady and other carriers of what factors may be relevant to a determination by 'the carrier of its rights under'an irregular route certificate. It cannot, as heretofore observed, lay down any hard and fast inelastic rule by which every case can be automatically determined. The order is sufficiently definite and certain that it is not invalid for want thereof.
There remains the contention that the order is discriminatory because it imposes the classification of an irregular route carrier upon Brady with accompanying restrictions without any reasonable relation, to the purpose of the Act. This contention, has been answered by what has been saidi heretofore.
It may with propriety, however,, be added that the Act of Congress contemplated that its administration should be' primarily in the interest of 'the public convenience and necessity. Such being at least one of the purposes of the Act, it cannot reasonably be held that the limitation^ which the Commission stated in the irregular route certificate, to the effect that the-holder thereof should not operate as a regular route operator, was not in the interest: of public convenience and necessity. 'One-of the underlying principles of regulation, of utilities generally is that when the sovereignty assumes the power of regulation and requires the service and type of service which the regulatory authorities'determine to be necessary and convenient in the public' interest then some measure-of protection against indiscriminate and uncontrolled competition must be provided..
The injunction will be denied and the-complaint dismissed on the merits.