Opinion of FRANKFURTER, J. 368 U.S. than minimum contract-carrier rates, so as to eliminate a competitive disadvantage of common carriers. The right of the Commission to disregard rate advantages as such in application proceedings does not, however, dispose of this case. For the testimony and arguments presented to the Commission fairly raised the claim that the available common carrier rates, whether or not just and reasonable in relation to transportation costs, were prohibitive for the shippers. If this claim were sustained by the Commission, it is difficult to see how it could avoid the conclusion that a denial of the permit would hobble the shipper without benefiting protestants by potentially augmenting their traffic. The Commission has in fact recognized what it styles an "embargo" exception to its usual practice of disregarding the level of rates charged by existing carriers. See H. L. & F. McBride Extension—Ohio, 62 M. C. C. 779, 790 (1954). In Herman R. Ewell Extension-Philadelphia, 72 M. C. C. 645, 648 (1957), the Commission. treated a shipper's claim similar to the present one in a manner relevant to our problem. "[T]he present record does not show any effort by the carriers to handle with the shipper its claim that their rates are prohibitive. Sugar is a relatively inexpensive commodity which sells at prices which, compared to prewar prices, do not appear to have increased percentagewise to the same extent as most other commodities. It appears not improbable that the margin of profit thereon is so narrow that the traffic will not move except at rates lower than other commodities customarily moved in tank-truck equipment. It may be that protestant's rates, though not intrinsically unreasonable from a standpoint of cost or compared to other bulk liquid rates, are still too high to move this particular traffic. And it may be that protestants are within their rights in the exer 81 Opinion of FRANKFURTER, J. cise of their managerial discretion in refusing any reduction even at the cost of losing the traffic but, if so, they should at least have negotiated with the shippers to the point of making their positions clear. Their failure to do so indicates either decision to forego the traffic except at their present rates or a lack of interest in it at rates at which it can move. "Without departing from the general proposition that the reasonableness of rates is not an issue in public convenience and necessity proceedings, and that if rates are too high an adequate remedy is available under section 216 of the Interstate Commerce Act, we conclude that authority should be granted here. . . [Protestants'] rates have not and will not move the traffic; and to this extent the available motor service is inadequate to meet the shipper's requirements. Protestants, never having handled the traffic, will not be adversely affected by this action." . In the Ewell proceeding, there was evidence that the existing rates were two to three times as high as those proposed by the applicant, that the shipper would have to "absorb" about $200 on each 30,000-pound shipment, and that it had asked existing carriers to adjust their rates without result. Similar evidence was presented in the present proceeding. The representative of the Steele Canning Company testified that, in numerous discussions with protestant carriers, it had learned that their lessthan-truckload rates were two and three times as high as the truckload rates proposed by the applicant, and that these rates would drive its canned goods out of the competitive market. Whether this testimony was specific and persuasive enough to establish that the traffic would not move at existing rates we do not know, for the Commission made no finding on this issue. Compare Schirmer Transp. Co., Inc., Extension-Molasses, 77 M. C. C. 240, 649690 O-62-15 Opinion of FRANKFURTER, J. 368 U.S. 242 (1958). Until it does, we are unable to exercise our reviewing function of ensuring that the Commission stays within its statutory authority and does not act arbitrarily. Cf. Florida v. United States, 282 U. S. 194, 214–215. I would vacate the judgment of the District Court and remand the case to the Commission for a considered determination whether the rates of protestant motor carriers are prohibitive. The scope of inquiry should be strictly limited. The Commission need not engage in a full-dress rate proceeding to determine whether present motorcarrier rates are unjust or unreasonable. It need only find, from the evidence of record or additional evidence that it deems necessary, whether those rates impose an embargo on the shippers' goods. Per Curiam. HODGES v. UNITED STATES. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. No. 58. Argued November 13, 1961.-Decided December 4, 1961. Certiorari was granted in this case on the understanding that it presented the question whether the District Court should have accorded petitioner a hearing under 28 U. S. C. § 2255 when it appeared that no appeal had been perfected from the original judgment of conviction. A thorough review of the full record revealed that the District Court did in fact conduct such a hearing, though the minutes of such hearing had been lost, and that no hearing was required under the statute, because "the files and records of the case conclusively show" that petitioner was entitled to no relief. Held: The writ is dismissed as improvidently granted. Reported below: 108 U. S. App. D. C. 375, 282 F. 2d 858. Quinn O'Connell argued the cause for petitioner. With him on the briefs were Henry B. Weaver, Jr. and Hershel Shanks. Beatrice Rosenberg argued the cause for the United States. With her on the brief were Solicitor General Cox, Assistant Attorney General Miller and J. F. Bishop. PER CURIAM. We brought this case here upon the understanding that the question it presented was whether the District Court should have accorded petitioner a hearing under 28 U. S. C. § 2255 when it appeared that no appeal had been perfected from the original judgment of conviction. After a thorough review of the full record, made possible after the case was briefed and argued on the merits, we have concluded that the petition for certiorari was improvidently granted. The record shows that the District Court did in fact conduct a hearing upon the petitioner's § 2255 motion, 156 F. Supp. 313, but that the Opinion of FRANKFURTER, J. 368 U.S. 242 (1958). Until it does, we are unable to exercise our reviewing function of ensuring that the Commission stays within its statutory authority and does not act arbitrarily. Cf. Florida v. United States, 282 U. S. 194, 214–215. I would vacate the judgment of the District Court and remand the case to the Commission for a considered determination whether the rates of protestant motor carriers are prohibitive. The scope of inquiry should be strictly limited. The Commission need not engage in a full-dress rate proceeding to determine whether present motorcarrier rates are unjust or unreasonable. It need only find, from the evidence of record or additional evidence that it deems necessary, whether those rates impose an embargo on the shippers' goods. |