the traffic which would move over the routes in question within the Trailways System which had heretofore been lost to Greyhound because of the absence of the through Trailways route. A total of sixty-seven public witnesses testified as to their need for the involved service, and, in addition, the general passenger agent of Lehigh Valley Railroad Company, which abandoned virtually all of its services in the involved territory, testified during the course of Capitol's direct case before the Commission.
The hearing examiner in his report served on March 21, 1960, recommended that the application be granted, plaintiffs filed exceptions and Capitol replied. On October 5, 1960, Division 1 of the Commission found:
'The evidence, the examiner's recommendations, the exceptions, and the reply have been considered. We find the statement of facts in the examiner's report to be correct, and we adopt it as our own.'
After discussing the evidence and the principles involved, the Division further found:
'* * * that the present and future public convenience and necessity require operation by applicant, in interstate or foreign commerce, as a common carrier by motor vehicle, over regular routes, of passengers and their baggage, and of express and newspapers in the same vehicle with passengers, between Wilkes-Barre, Pa., and Elmira, N.Y., from Wilkes-Barre, over U.S. Highway 309 to Waverly, N.Y., thence over New York Highway 17 to Elmira, and return over the same route serving all intermediate points; that applicant is fit, willing, and able properly to perform such service and to conform to the requirements of the Interstate Commerce Act and our rules and regulations thereunder; * * *'.
Our function here is not to weigh the evidence before the Commission; we are not permitted to substitute our independent judgment for that of the Commission on the question of the public need for the involved service. Our sole responsibility is to determine whether there is found to have been before the Commission evidence to support its finding that the present and future public convenience required Capitol's service. It is our opinion that there is ample evidence to support this finding.
The testimony of the public witnesses indicated the need for a through bus, daylight and round trip operation between Wilkes-Barre and Elmira. Not until after Capitol had completed its case in chief in this proceeding did Greyhound make any effort to provide this type of scheduled service. The service offered the public by a protesting motor carrier should be considered as that service provided at the time of the filing of the new application. Not having moved for years, Greyhound should not be permitted to wait until the filing of an application by a competing carrier to increase or improve its service.
Plaintiffs complain that the Commission's orders were not supported by definite and specific subordinate findings, and they contend that an ultimate finding in the statutory language is not enough.
We find no absolute requirement for, nor any particular virtue in, a mere formula which here would fall in the accustomed category of findings of fact. We do feel that from an abundance of credible testimony the Commission did reach its conclusions and did make its orders. The findings are therefore fully adequate to support the orders in this respect. United States et al. v. Pierce Auto Freight Lines, Inc., 1946, 327 U.S. 515, 66 S. Ct. 687, 90 L. Ed. 821; Southern Kansas Greyhound Lines, Inc., et al. v. United States of America et al., 1955, D.C.W.D.Mo., 134 F.Supp. 502. As stated by the Court in Southern Kansas Greyhound Lines, Inc., et al. v. United States of America et al., supra (Page 507):
"* * * the Commission is not required to make detailed findings of fact except in a case where damages are involved. Manufacturers' R. Co. v. United States, 246 U.S. 457, 489-490, 38 S. Ct. 383, 62 L. Ed. 831. The ultimate findings required by law are only that the applicant is fit, willing and able to perform the proposed service and that the service will serve the public convenience and necessity, 49 U.S.C.A. 909(c). Such findings were made here.' * * *'
The same is true in the instant case.
Plaintiffs contend that the existing facts and circumstances do not warrant the application of the close-the-gap principle. They also argue that in an earlier proceeding (Capitol's application Sub 7) the Commission rejected this principle as applicable hereto. Further reference to the Sub 7 proceeding will be made herein at a later point. Suffice it here to say that for reasons hereinafter stated the Commission's rulings in the prior proceeding are not in any sense binding upon it in the instant proceeding. On this matter the Commission stated:
'Applicant is presently authorized to operate between Washington and Wilkes-Barre, and between Elmira and Towanda, although not over the identical route involved here. Trailways System connections are available at Washington to points south thereof and at Elmira to Buffalo and Rochester. Thus there is a gap between Towanda and Wilkes-Barre in Trailways' service between Washington and Baltimore, on the south, and Elmira, Buffalo, Rochester, and other western New York points on the north. The result of this gap is that passengers who begin their journeys as Trailways' patrons must transfer to a Greyhound route at some time during their trip. Passengers from points south of Washington destined to points beyond Wilkes-Barre and Scranton will frequently transfer to a Greyhound route at Washington in order to avoid a second transfer at Scranton, thus depriving applicant of a number of passengers who would otherwise complete their journey over the Trailways lines. In addition, New York Lines, the Trailways affiliate operating in western New York must necessarily find it difficult to compete for passengers traveling south of Towanda, as Greyhound is able to offer such passengers a through-bus service. If we were to deny applicant the right to close the gap in its operations between Wilkes-Barre and Towanda, we would, as we said in an earlier case, 'merely be hampering the development of a competing system of transportation for the sake of protecting a single carrier from some diversion of traffic.' Tri-State Transit Co. of La., Inc., Ext. -- Jackson, Tenn., 29 M.C.C. 381, 402. It is true that a carrier can deliberately create such a situation by the acquisition of operating rights which, of themselves, are of little use because of their failure to connect with its other routes. It must be borne in mind, however, that the primary consideration here is the interest of the traveling public. We think it desirable to eliminate gaps such as that in applicant's routes where this can be done without resulting in a materially adverse effect upon existing carriers, and we believe that this is a factor to be taken into consideration, among others, in a case such as this.'
The close-the-gap principle recognized in the Commission's report is given the approval of the Supreme Court in United States et al., v. Pierce Auto Fright Lines, Inc., et al., supra, 327 U.S. page 532, 66 S. Ct. page 696, Footnote 20, in connection with the Court's observation that 'The Commission has recognized the value of reasonable competition.'
The Commission stated in its report that the primary consideration involved in Sub 12 'is the interest of the traveling public'. That its issuance of a certificate in Sub 12 was reasonably calculated to expedite through service between Capitol's northern and southern routes and to eliminate inconveniences due to changes of terminals and layovers is, of course, implicit in its action. The Commission obviously felt that the missing link in Capitol's operations, not only on its own account but as a member of the Trailways system, operated to the distinct disadvantage of both interstate and intrastate travelers and aside from the inconvenience to the traveling public placed Capitol and its parent affiliate at a definite competitive disadvantage.
In Carolina Scenic Coach Lines v. United States et al., 1944, D.C.W.D.N.C., 56 F.Supp. 801, 803-804, in sustaining the action of the Commission, the Court said:
'We think there can be no question but that on these facts the order of the Commission was amply supported. What public convenience and necessity require in the premises is a matter which Congress has confided to the judgment of the Commission, and not of the courts, to determine. * * * And courts in reviewing orders made by the Commission in the exercise of the discretion reposed in it by Congress may not substitute their judgment for that of the Commission, nor may they set aside the orders unless they are made without substantial evidence to support them, involve error of law or are so manifestly arbitrary and unreasonable as to transcend the power conferred by statute. The well settled rule was thus stated by this Court in the recent case of Bondurant v. United States, D.C., 50 F.Supp. 704, 706:
"We cannot say that the Commission's findings are not supported by the evidence, that they involve any error of law or that they are so arbitrary or unreasonable as to amount to an abuse of discretion. This being true, the relief prayed for must be denied. 'This court has no concern with the correctness of the Commission's reasoning, with the soundness of its conclusions, or with the alleged inconsistency with findings made in other proceedings before it'. Virginia R. (Co.) v. United States, 272 U.S. 658, 665, 666, 47 S. Ct. 222, 225, 71 L. Ed. 463; Interstate Commerce Commission v. Union Pac. R. Co., 222 U.S. 541, 32 S. Ct. 108, 56 L. Ed. 308.'
Plaintiffs seek to invoke the doctrine of res judicata for the reason that a previous application by Capitol Bus Company was denied. The previous application (No. MC-109736 (Sub 7)) was denied in Report dated May 28, 1958. The situation existing at that time is clearly stated by the Commission as follows:
'By application filed May 7, 1956, Capitol Bus Company of Harrisburg, Pa., seeks a certificate of public convenience and necessity authorizing operation, in interstate or foreign commerce, as a common carrier by motor vehicle of passengers and their baggage, and of express, mail, and newspapers in the same vehicle with passengers, between Scranton, Pa., and Elmira, N.Y., from Scranton over U.S. Highway 11 to Clarks Summit, Pa., thence over U.S. Highway 6 to Tunkhannock, Pa., thence over U.S. Highway 309 to Towanda, Pa., thence over U.S. Highway 220 to Waverly, N.Y., thence over New York Highway 17 to Elmira, and return over the same route, serving all intermediate points. * * *
'Applicant presently holds authority as a motor common carrier authorizing the transportation of passengers and their baggage, together with express and newspapers, (a) between Scranton and Baltimore, Md., generally over U.S. Highways 11, 309, 22, 15, and 140 by way of Pottsville, Harrisburg, York Springs, and Hanover, Pa., and Hampstead and Reisterstown, Md., serving all intermediate points, (b) between York Springs and Gettysburg, Pa., over U.S. Highway 15, serving all intermediate points, and (c) between Gettysburg and Washington, D.C., over U.S. Highways 15 and 240, serving no intermediate points. Subsequent to the hearing, it was authorized, in No. MC-F-6383, Capital Bus Co. -- Purchase -- Vallilee, 70 M.C.C. -- (not printed in full), decided July 10, 1957, to acquire a certificate hereinafter referred to as the Vallilee rights, authorizing operations between Waverly, N.Y., and Towanda, Pa., over U.S. Highway 220, serving all intermediate points. This route is approximately 17 miles long and duplicates a part of the 120-mile route sought herein. * * *'
The Commission would not, however, be estopped by its refusal to invoke the close-the-gap principle in the earlier Sub 7 proceeding. The Court of Appeals of this Circuit with regard to the issuance of a certificate of public convenience and necessity in Panhandle Eastern Pipe Line Company v. Federal Power Commission, 1956, 3 Cir., 236 F.2d 289, 292, held:
'In the first place the doctrine of res judicata can have no application to a proceeding, such as this, which involves a determination of the present or future public convenience or necessity with respect to the continuance or abandonment of natural gas service. For, as Judge Learned Hand said in a somewhat analogous situation in United States Feldspar Corporation v. United States, D.C.N.Y., 1930, 38 F.2d 91, 95, 'No estoppel is relevant upon that inquiry, no inconsistency important, except as it helps to ascertain the very truth; the inquiry is not to be assimilated to the ordinary suit inter partes where no more is at stake than the settlement of a private dispute.' * * *'
Cases cited by the plaintiffs are inapplicable here. The situation in Dixie Carriers Inc., et al. v. United States, 1956, D.C.S.D.Tex., 143 F.Supp. 844, 850, is summed up in its remarks that 'the simple phrase 'and good cause appearing therefor" is inadequate to upset prior positive findings, and (Page 854) 'This is particularly so where, * * * relief is first denied but, without any other or further showing, is then granted', but the Court there likewise conceded that 'Courts and administrative agencies have, and must have, power to change their minds.' In Hudson Transit Lines, Inc. v. United States et al., 1948, D.C.S.D.N.Y., 82 F.Supp. 153, the proceedings were reopened 'for reconsideration on the record as made.' The Court said: 'The case is unusual in that upon the same record the Commission has reached two contradictory conclusions.' In the present case the Commission was not, however, in the Sub 12 application holding a rehearing on the Sub 7 record but had before it an entirely new record based upon additional facts and changed conditions.
We accordingly conclude that the Commission acted within its statutory authority and that there is rational basis for its Order. Therefore, the complaint will be dismissed.