authority to a rail subsidiary, it has done so only upon the showing of 'special circumstances.' The only 'special circumstances' which have led the Commission to relax its restrictions on motor service by rail subsidiaries have been the unavailability of independent motor carrier service for the area involved.
In American Trucking Associations, Inc. v. United States, 355 U.S. 141, 78 S. Ct. 165, 2 L. Ed. 2d 158 (1957), when the Commission did not limit a rail subsidiary to auxiliary or supplementary service, it had found that eleven points on the applicant's requested route would be totally without peddle service if the usual restrictions were applied. This was accompanied by the finding that at other places in the area independent motor carriers either failed to handle the traffic or gave service inferior to that proposed by the applicant. In American Trucking Associations, Inc. v. United States, 364 U.S. 1, 80 S. Ct. 1570, 4 L. Ed. 2d 1527 (1960), the Supreme Court refused to sustain the Commission's grant to a rail subsidiary of authority for unrestricted service when the record did not contain a finding that independent carriers were unable or unwilling to perform the same type of service as that proposed by applicant.
In fact, in the case upon which plaintiffs rely for their so-called 'unoccupied field exception' (Rock Island Motor Transit Company -- Purchase -- White Line, supra), the Commission restricted the applicant to auxiliary or supplemental service. Footnote No. 4 dealt only with exceptions to restricting service to rail points and not with exceptions to all auxiliary or supplemental service limitations. Since the phrase 'auxiliary to or supplementary of' implies a limitation of function, i.e., type of trucking service, and not merely a geographical limitation, i.e., place where the service is performed, it is apparent that the Commission did not intend to open a new field of exceptions to its established rule. American Trucking Associations, Inc. v. United States, 364 U.S. 1, 80 S. Ct. 1570, 4 L. Ed. 2d 1527 (1960).
The Commission, exercising the discretionary and supervisory power with which Congress has endowed it, has permitted rail affiliates to leave the line of the railroad only to serve communities without other motor carrier transportation. The Commission here found that the independent motor carrier applicants were fit, willing and able to furnish the proposed service so that the cement industry in the Lehigh District would not be without motor carrier transportation. The Commission has never granted unrestricted authority to a rail subsidiary merely because there were no independent motor carriers serving the territory prior to the railroad's application. We agree with the Commission's conclusion that under the existing law it may not grant functionally unrestricted motor carrier operating rights under such circumstances.
In reply to plaintiffs' contention that the application of Black Diamond Transport Company should be granted because its economic plight supplies the 'Special circumstances' for an exception, we need only reiterate that the only 'special circumstances' recognized by the Commission are the unavailability of motor carrier transportation which would result from the denial of a rail subsidiary's application. Those 'special circumstances' do not exist here.
While there may be some merit to the plaintiffs' contention that changed conditions in the transportation industry since the enactment of the Interstate Commerce Act require a reassessment of the National Transportation Policy with respect to railroads, this Court should not become the vehicle for reshaping the laws which Congress has written. The plaintiffs' appeal in that regard must be to Congress itself. The complaint must be dismissed.
An appropriate order will be entered.