a final determination by the Administrative Agency rejects the findings of a hearing examiner. It would appear that an examiner's report is not as unassailable as a master and can be reversed by the Commission. The reviewing court while it need not give a trial examiner's findings more weight than they deserve in the light of reason and judicial experience, they should be accorded the relevance that they reasonably command in answering the over-all question whether the evidence supporting the Commission's order is substantial. See In re United Corporation, 3 Cir., 249 F.2d 168.
An examination of the proposed report of the examiner and the report of the Commission indicates that there was not a substantial variance in the two reports. The examiner felt that Dillner ought to be permitted under Group II to transport aggregate loads of steel plates, steel sheets, and firebrick. The Commission found that the transportation of these commodities except as to the bundling of sheets and plates were required by their inherent nature was beyond the scope of Dillner's authority.
The Commission concluded that steel sheets and plates which could be handled individually and were palletized or packaged not because of necessity, but because of efficiency and economy was insufficient reason to hold that their transportation required special equipment. A similar conclusion was reached on firebrick. It would appear that their main difference was in determining which overall products were aggregated due to their inherent nature and which overall products were aggregated for economy purposes. The Commission set forth in its report wherein it differed with its examiner. It is clearly set forth where it differed from its examiners, and that is all it is required to do. We might point out that the difference here did not go to the credibility of witnesses in a situation in which the examiner's opinion ought to be given considerable weight but rather its interpretation and meaning of terms and the Commission's decisions in those cases are for the Commission rather than for the Examiner in the final instance. And, of course, there is no rule that holds that the Commission may not differ from its hearing examiner. See Sinett v. United States, D.C., 136 F.Supp. 37.
Dillner also complains that the Commission did not consider its so-called grandfather clause. From the brief filed by the Commission, it would appear that this was not referred to by the Commission. However, it appears that Dillner did not prior to June 1, 1935, and continuously thereafter transport packaged articles of iron and steel and palletized firebrick. The Commission was construing Dillner's rights and had there been evidence that Dillner was transporting this material prior to June 1, 1935, and had the Commission failed to consider it, it would present a different problem. However, in view of the fact that Dillner offered no evidence as to its 'grandfather operations' we do not see why it was incumbent upon the Commission to consider this.
Basically, the burden is upon Dillner to prove that the order and report of the Commission was clearly erroneous, capricious, and arbitrary, and not supported by substantial evidence. We do not feel that Dillner has met the burden imposed by law. It is not our function to set aside the report merely because we might or might not differ with the Commission. We must act when we find that the report and order is not supported by substantial evidence. The burden is upon Dillner to prove this to the Court. It has not met this burden of proof, and, therefore, an appropriate order will be entered dismissing the complaint.
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