HUTCHESON, Circuit Judge.
This is a final hearing before a three-judge court on an application for injunction; an interlocutory application having been made, pressed, and denied.
Plaintiff is a Texas corporation, a subsidiary of J. Kahn & Co., cotton factors of Dallas, Tex., created to carry Kahn’s cotton to port, and on the back haul products for two other Dallas concerns. Defendants are members of the Railroad Commission of Texas, the Governor, and the Attorney General of Texas. The suit was for an injunction to prevent defendants from interfering with or preventing plaintiff from engaging in such business, and from arresting their drivers and prosecuting them for doing so. It was alleged that plaintiff had filed its application with the Commission for a permit as a contract motor carrier hauling interstate, to operate two hundred trucks, forty-eight described, over 1,577 miles of state highway described in the application, including Federal Highway No. 75, which is State Highways Nos. 19, 32, and 14, from Dallas to Houston, Tex. It was also alleged that the Commission, upon the grounds stated in the order attached to the bill, that considerations of traffic safety and convenience required its refusal, had denied the permit. It was further alleged that this denial was unreasonable and arbitrary, and without authority of law, because, in violation of the commerce clause of the Federal Constitution (article 1, § 8, cl. 3), it placed a direct burden on interstate commerce by preventing plaintiff from engaging in it without any adequate police reason for doing so. It was further alleged that in violation of the Fourteenth Amendment and of the commerce clause the Commission had discriminated against plaintiff by allowing other permits to persons similarly situated, except that some of these persons were hauling intrastate and plaintiff was hauling interstate.
The defendants, admitting that the permit had been refused on the grounds stated in the order, and affirming that those grounds were sound and valid and supported by the facts, denied that the Commission had arbitrarily interfered with interstate commerce, or had discriminated against it or plaintiff. On the trial of the case the issue was joined as it had been before the Commission, on Highway No. 75; it being conceded by all that the right to travel over this highway was of the essence of the plaintiff’s application, in fact the crucial point in the ease. Plaintiff offered Kahn to prove that the cotton 'it proposed to haul would be moving in and a part of interstate commerce, and proved by him the buying of cotton in the interior and the concentration of it at the port for warehousing and further treatment there, and foreign shipment. It offered proof of other permits the Commission had granted since its application had been refused, read from the deposition of Swain district engineer of United States public roads, that in his opinion Highway No. 75 was capable of supporting any reasonable load which could be carried over it, and [30]*30was capable of carrying considerably more traffic than it did carry. As proof of discrimination, plaintiff relied upon the permits alone and did not prove that they were granted to persons in the same situation as plaintiff was, or doing the same kind and amount of business which plaintiff proposed to do. Some of the permits were shown to be specially for a peculiar and occasional kind of hauling, for instance, hauling race horses to racing meets; others were shown to have been merely shifting from one highway to another, still others were shown to have been for temporary or for small uses; not a single one was shown to have been for anywhere near the amount of hauling plaintiff wanted to do, or for hauling of the kind it asked permit for, cotton, which the proof showed was seasonably very heavy. In short, there was no proof that any discrimination had in fact been practiced. Plaintiff offered, too, the testimony of Andress as to traffic counts he had made, liis opinion as to whether granting plaintiff’s permit would cause congestion on the roads, and also his opinion as to what constitutes congestion.
Defendants offered the findings and the order of the Commission,1 an affidavit of [31]*31Knapp covering highway and traffie conditions on No. 75 and other highways, and from the voluminous record made before the Commission the lengthy testimony of Knapp to the same matters. They also offered the testimony of persons living along the line which plaintiff desired a permit to haul over as to highway and traffie conditions.
Plaintiff’s primary position is that it made out its ease for relief by merely showing the interstate character of the proposed operations for which permit was denied, and that other permits over the same highway, some for interstate and some for intrastate commerce, have been since granted. It is quite plain that this will not do. The Commission, when operating within the sphere of its powers as statutory administrator to protect the highways of the state from injury and destruction, and to secure the safety and convenience of those primarily entitled to travel thereon, has authority over contract carriers hauling interstate commerce to regulate and prohibit, as well as over those hauling intrastate. In the case of an interstate carrier, as in the ease of an intrastate carrier, if the order refusing a permit to a contract carrier [32]*32hauling goods rests on findings grounded on considerations of highway safety and convenience, the same presumption attends the order and findings and the same burden is on the complainant to overthrow them. Wald Storage & Transfer Co. v. Smith, 200 U. S. 596, 54 S. Ct. 129, 78 L. Ed. 524; Bradley v. Public Utilities, 289 U. S. 92, 53 S. Ct. 577, 77 L. Ed. 1053, 85 A. L. R. 1131; cf. Interstate Transit, Inc. v. Lindsey, 283 U. S. 186, 51 S. Ct. 380, 75 L. Ed. 963. It is only when the Commission has undertaken to exercise control not over the safety of the highways and of the traveling public, but over the commerce itself, that its orders refusing permits to interstate carriers are inoperative. Allen v. Galveston Truck Line, 289 U. S. 708, 53 S. Ct. 694, 77 L. Ed. 1463; Buck v. Kuykendall, 267 U. S. 307, 45 S. Ct. 324, 69 L. Ed. 623, 38 A. L. R. 286; Michigan Com. v. Duke, 266 U. S. 570, 45 S. Ct. 191, 69 L. Ed. 445, 36 A. L. R. 1105; Bradley v. Public Utilities, supra. It insists, too, that its evidence as to traffic conditions established that the Commission’s order was a purely artificial one, having no real relation to the legitimate powers purported to be exerted, and that defendants’ evidence has not overthrown the ease it made.' Defendants urge that plaintiff has neither alleged nor proven a ease for the exercise of the equitable jurisdiction. They argue that it has not shown, it cannot show, a vested property right entitled to equitable protection, because business operations on the highways of the state like those proposed by plaintiff are conducted not as matter of right, but of privilege. Ex parte Sterling, 122 Tex. 108, 53 S.W. (2d) 294; Ex parte Phares, 122 Tex. 104, 53 S.W. (2d) 297. They argue that if plaintiff has pleaded a case it has not proven one, both because the operation it mainly seeks a permit for, the cotton haul, will not be interstate commerce, Bacon v. Illinois, 227 U. S. 504, 33 S. Ct.
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HUTCHESON, Circuit Judge.
This is a final hearing before a three-judge court on an application for injunction; an interlocutory application having been made, pressed, and denied.
Plaintiff is a Texas corporation, a subsidiary of J. Kahn & Co., cotton factors of Dallas, Tex., created to carry Kahn’s cotton to port, and on the back haul products for two other Dallas concerns. Defendants are members of the Railroad Commission of Texas, the Governor, and the Attorney General of Texas. The suit was for an injunction to prevent defendants from interfering with or preventing plaintiff from engaging in such business, and from arresting their drivers and prosecuting them for doing so. It was alleged that plaintiff had filed its application with the Commission for a permit as a contract motor carrier hauling interstate, to operate two hundred trucks, forty-eight described, over 1,577 miles of state highway described in the application, including Federal Highway No. 75, which is State Highways Nos. 19, 32, and 14, from Dallas to Houston, Tex. It was also alleged that the Commission, upon the grounds stated in the order attached to the bill, that considerations of traffic safety and convenience required its refusal, had denied the permit. It was further alleged that this denial was unreasonable and arbitrary, and without authority of law, because, in violation of the commerce clause of the Federal Constitution (article 1, § 8, cl. 3), it placed a direct burden on interstate commerce by preventing plaintiff from engaging in it without any adequate police reason for doing so. It was further alleged that in violation of the Fourteenth Amendment and of the commerce clause the Commission had discriminated against plaintiff by allowing other permits to persons similarly situated, except that some of these persons were hauling intrastate and plaintiff was hauling interstate.
The defendants, admitting that the permit had been refused on the grounds stated in the order, and affirming that those grounds were sound and valid and supported by the facts, denied that the Commission had arbitrarily interfered with interstate commerce, or had discriminated against it or plaintiff. On the trial of the case the issue was joined as it had been before the Commission, on Highway No. 75; it being conceded by all that the right to travel over this highway was of the essence of the plaintiff’s application, in fact the crucial point in the ease. Plaintiff offered Kahn to prove that the cotton 'it proposed to haul would be moving in and a part of interstate commerce, and proved by him the buying of cotton in the interior and the concentration of it at the port for warehousing and further treatment there, and foreign shipment. It offered proof of other permits the Commission had granted since its application had been refused, read from the deposition of Swain district engineer of United States public roads, that in his opinion Highway No. 75 was capable of supporting any reasonable load which could be carried over it, and [30]*30was capable of carrying considerably more traffic than it did carry. As proof of discrimination, plaintiff relied upon the permits alone and did not prove that they were granted to persons in the same situation as plaintiff was, or doing the same kind and amount of business which plaintiff proposed to do. Some of the permits were shown to be specially for a peculiar and occasional kind of hauling, for instance, hauling race horses to racing meets; others were shown to have been merely shifting from one highway to another, still others were shown to have been for temporary or for small uses; not a single one was shown to have been for anywhere near the amount of hauling plaintiff wanted to do, or for hauling of the kind it asked permit for, cotton, which the proof showed was seasonably very heavy. In short, there was no proof that any discrimination had in fact been practiced. Plaintiff offered, too, the testimony of Andress as to traffic counts he had made, liis opinion as to whether granting plaintiff’s permit would cause congestion on the roads, and also his opinion as to what constitutes congestion.
Defendants offered the findings and the order of the Commission,1 an affidavit of [31]*31Knapp covering highway and traffie conditions on No. 75 and other highways, and from the voluminous record made before the Commission the lengthy testimony of Knapp to the same matters. They also offered the testimony of persons living along the line which plaintiff desired a permit to haul over as to highway and traffie conditions.
Plaintiff’s primary position is that it made out its ease for relief by merely showing the interstate character of the proposed operations for which permit was denied, and that other permits over the same highway, some for interstate and some for intrastate commerce, have been since granted. It is quite plain that this will not do. The Commission, when operating within the sphere of its powers as statutory administrator to protect the highways of the state from injury and destruction, and to secure the safety and convenience of those primarily entitled to travel thereon, has authority over contract carriers hauling interstate commerce to regulate and prohibit, as well as over those hauling intrastate. In the case of an interstate carrier, as in the ease of an intrastate carrier, if the order refusing a permit to a contract carrier [32]*32hauling goods rests on findings grounded on considerations of highway safety and convenience, the same presumption attends the order and findings and the same burden is on the complainant to overthrow them. Wald Storage & Transfer Co. v. Smith, 200 U. S. 596, 54 S. Ct. 129, 78 L. Ed. 524; Bradley v. Public Utilities, 289 U. S. 92, 53 S. Ct. 577, 77 L. Ed. 1053, 85 A. L. R. 1131; cf. Interstate Transit, Inc. v. Lindsey, 283 U. S. 186, 51 S. Ct. 380, 75 L. Ed. 963. It is only when the Commission has undertaken to exercise control not over the safety of the highways and of the traveling public, but over the commerce itself, that its orders refusing permits to interstate carriers are inoperative. Allen v. Galveston Truck Line, 289 U. S. 708, 53 S. Ct. 694, 77 L. Ed. 1463; Buck v. Kuykendall, 267 U. S. 307, 45 S. Ct. 324, 69 L. Ed. 623, 38 A. L. R. 286; Michigan Com. v. Duke, 266 U. S. 570, 45 S. Ct. 191, 69 L. Ed. 445, 36 A. L. R. 1105; Bradley v. Public Utilities, supra. It insists, too, that its evidence as to traffic conditions established that the Commission’s order was a purely artificial one, having no real relation to the legitimate powers purported to be exerted, and that defendants’ evidence has not overthrown the ease it made.' Defendants urge that plaintiff has neither alleged nor proven a ease for the exercise of the equitable jurisdiction. They argue that it has not shown, it cannot show, a vested property right entitled to equitable protection, because business operations on the highways of the state like those proposed by plaintiff are conducted not as matter of right, but of privilege. Ex parte Sterling, 122 Tex. 108, 53 S.W. (2d) 294; Ex parte Phares, 122 Tex. 104, 53 S.W. (2d) 297. They argue that if plaintiff has pleaded a case it has not proven one, both because the operation it mainly seeks a permit for, the cotton haul, will not be interstate commerce, Bacon v. Illinois, 227 U. S. 504, 33 S. Ct. 299; 57 L. Ed. 615; Federal Compress Co. v. McLean, 291 U. S. 18, 54 S. Ct. 267, 78 L. Ed. 622; Missouri Pacific v. Schnipper (C. C. A.) 56 F.(2d) 30; Chassanoil v. Greenwood, 291 U. S. 584, 54 S. Ct. 541, 78 L. Ed. 1004, and because, if its operations are to be confined to interstate commerce, as the Commission in making its order assumed they would, plaintiff has not sustained the heavy burden resting oh it to overcome the presumption of verity attending orders and findings of the Commission under the Texas Motor Carrier Act.
We do not agree with defendants that plaintiff may not maintain this suit, because having no permit to operate as a contract motor carrier on the state’s highways it has no vested right which equity will protect or because its proof as to the cotton operations does not sustain its pleading that it seeks a permit to engage in interstate commerce. Though the right to use the highways in the conduct thereover of the business of a con[33]*33tract carrier may be conditioned by the state as to both intra and inter state use, that right, until and except as validly conditioned, does exist and is sufficient, where other prerequisite facts are shown to support federal equity jurisdiction. Sage v. Baldwin (D. C.) 55 F.(2d) 968; Galveston Truck Line v. Allen (D. C.) 2 F. Supp. 488; Allen v. Galveston Truck Line, 289 U. S. 708, 53 S. Ct. 694, 77 L. Ed. 1463; Sproles v. Binford, 286 U. S. 374, 52 S. Ct. 581, 76 L. Ed. 1167; Stephenson v. Binford, 287 U. S. 251, 53 S. Ct. 181, 77 L. Ed. 288, 87 A. L. R. 721; Wald Storage & Transfer Co. v. Smith, 290 U. S. 596, 54 S. Ct. 129, 78 L. Ed. 524; Bradley v. Public Utilities, 289 U. S. 92, 53 S. Ct. 577, 77 L. Ed. 1053, 85 A. L. R. 1131; Packard v. Banton, 264 U. S. 145, 44 S. Ct. 257, 68 L. Ed. 596.
Neither do we agree with them that it is important to determine whether any of plaintiff’s proposed operations for which it seeks á permit would be interstate in character. Admittedly some of them would be interstate, and the Commission, treating the application as plaintiff does, as one for a permit to engage only.in interstate commerce, and rejecting it as such, based its refusal on grounds applicable alike to inter and intra state carriage.
We do agree with defendants, however, that plaintiff has not made out a case for equitable relief. A brief statement of principles will, we think, make plain the correctness of these views.
The state of Texas, by its Motor Carrier Act, article 911b, § 22b, Vernon’s Ann. Civ. St. Tex., has declared that the business of carrying property for hire over the state’s highways may not be conducted as á right, but only as a privilege, and in subordination to the necessities and interests of the general public for whose use the highways were primarily designed and laid down. It has enacted laws to bring this about, and has conferred upon the Railroad Commission as statutory agent, wide powers to control and regulate the business of carrying for hire so as to adapt it to traffic and traffic conditions, and make effective the legislative declaration of policy.2 Stephenson v. Binford, 287 U. S. 251, 53 S. Ct. 181, 77 L. Ed. 288, 87 A. L. R. 721; Sproles v. Binford, 286 U. S. 374, 52 S. Ct. 581, 76 L. Ed. 1167; Railroad Com. v. Inter-City Forwarding Co. (Tex. Civ. App.) 57 S.W.(2d) 290; Ex parte Sterling, 122 Tex. 108, 53 S.W.(2d) 294; Ex parte Phares, 122 Tex. 104, 53 S.W.(2d) 297.
The Motor Carrier Act is a comprehensive one. Among other things, it authorizes the filing of suit in the district court of Travis county against the Commission as defendant, to set aside any decision, rule, order, or act with which any party is dissatisfied. It gives the suit precedence both in the trial and in the appellate court. It provides that the suit shall be tried and determined as other civil cases are. It provides, in addition: “In all trials under this section the burden of proof shall rest upon plaintiff, who must show by the preponderance of evidence that the decisions, rates, regulations, rules, orders, classifications, acts, or charges complained of are unreasonable and unjust to it or them.” Vernon’s Ann. Civ. St. Tex. art. 9'llb, § 20. It provides, too, for the granting of an injunction upon equitable principles. Under this statute it is settled that the findings and orders of the Commission are by law prima facie true, and that the reviewing court, on the statutory resort to it, cannot substitute its judgment for that of the Commission and disturb its findings and orders, where there is any substantial basis in the evidence for them. That is, unless it is shown that their rulings are arbitrary, unreasonable, or unlawful. Railroad Com. v. Shupee (Tex. Civ. App.) 57 S.W.(2d) 295, 296; Shupee v. R. R. Com. (Tex. Sup.) 73 S.W.(2d) 505. In such.a proceeding the trial is de novo in the sense that while the issue is as to the reasonableness of the Commission’s order, and it stands [34]*34unless overthrown, whether it is overthrown or not is determined not upon the record before the Commission, but upon the evidence adduced in the trial court. If this is sufficient to overthrow the prima facies attending the Commission’s orders, plaintiff prevails. If it is not, the order stands. Railroad Com. v. Shupee, supra, and Shupee v. R. R. Com., supra. Railroad Comm. v. Galveston Chamber of Commerce, 105 Tex. 115, 145 S. W. 573; Railroad Com. v. Weld & Neville, 06 Tex. 409, 73 S. W. 529. Such suits can be brought, where diversity and amount exist, as well in the federal as in the state court of Travis county. Reagan v. Farmer's Loan & Trust Co., 154 U. S. 362, 14 S. Ct. 1047, 38 L. Ed. 1014. In such suits the validity and authority of the order are determined by the operation and effect of it. The motives and purposes of the Commission are not germane to the inquiry, Railroad Com. v. Weld So Ne-ville, supra, any more than they are in suits against members of the Commission brought on constitutional grounds, People’s Petroleum Producers v. Sterling (D. C.) 60 F.(2d) 1041.
The statutory action thus provided for is a true suit. It is not even quasi administrative or legislative in character, as were those dealt with in Prentis v. Atlantic Coast Line Co., 211 U. S. 210, 29 S. Ct. 67, 53 L. Ed. 150; Porter v. Investors’ Syndicate, 286 U. S. 461, 52 S. Ct. 617, 76 L. Ed. 1226. It is a purely judicial one. Railroad Com. v. Weld & Neville, supra; Porter v. Investors’ Syndicate, 287 U. S. 347, 53 S. Ct. 132, 77 L. Ed. 354. Plaintiff was therefore not obliged to resort to it in exhaustion of administrative remedies before bringing this suit. City Bank v. Schnader, 291 U. S. 24, 54 S. Ct. 259, 78 L. Ed. 628. When, however, it elected, instead of pursuing the statutory remedy afforded, to bring this suit in the federal court on constitutional grounds, it assumed a heavy burden. It is one of the settled principles of the exercise of the jurisdiction which plaintiff invoked that federal courts will not lightly interfere by injunction, with the actions of state administrative officers in enforcing state laws. Especially is this true in administrative matters requiring discretionary action. They will, of course, grant an injunction when the equities of the bill are plain, but only when they are. Amazon Petroleum Corporation v. Commission (D. C.) 5 F. Supp. 638. A mere claim of unconstitutionality is not sufficient. There must be shown also a really irreparable injury for which there is no adequate legal remedy. Northport, etc., Co. v. Hartley, 283 U. S. 568, 51 S. Ct. 581, 75 L. Ed. 1275; Fenner v. Boykin, 271 U. S. 242, 46 S. Ct. 492, 70 L. Ed. 927. There is, too, the further controlling principle that in every suit of this ■kind the burden is upon plaintiff to overthrow the presumption of verity which attends the Commission’s findings and orders by a positive and clear showing that the action of the- Commission was arbitrary; that is, that it represents not the reasonable exercise of- the Commission’s proper jurisdiction, but the unreasonable and arbitrary exertion of power in violation of the constitutional protection invoked. Nectow v. Cambridge, 277 U. S. 183, 48 S. Ct. 447, 72 L. Ed. 842; McLeaish & Co. v. Binford (D. C.) 52 F.(2d) 151; Danciger Oil & Ref. Co. v. Smith (D. C.) 4 F. Supp. 236; Amazon Petroleum Corporation v. R. R. Com. (D. C.) 5 F. Supp. 638.
When the full, definite, and concreto findings of the Commission are considered in the light of these principles, it cannot be maintained that the evidence plaintiff has offered in support of its right to institute á new motor carrier service, using forty-eight to two hundred trucks over the most used highway, and between and through the most densely populated sections of the state, has overcome those findings by showing them to be arbitrary, capricious, and unreasonable. In the light of these principles and of the evidence offered in .this ease, it seems plain to us that the findings and order of the Commission stand.
The injunction prayed for is denied.