Turning to the first of these questions, it involves the application of the rule of administrative finality, which is that if the Commission's order is based upon adequate findings which, in turn, are supported by substantial evidence, it cannot be disturbed by a court on review, even though the court might consider the Commission's action wrong, and against the weight of the evidence. Interstate Commerce Commission v. Union Pacific R. Co., 222 U.S. 541, 32 S.Ct. 108, 56 L.Ed. 308. The Supreme Court has held that this rule has direct application to action by the Commission on an application, as here, under Section 5 of the Interstate Commerce Act. McLean Trucking Co. v. United States, 321 U.S. 67, 64 S.Ct. 370, 88 L.Ed. 544; O.C. Wiley Sons v. United States, 338 U.S. 902, 70 S.Ct. 308, 94 L.Ed. 554, affirming, per curiam, D.C., 85 F. Supp. 542. See also Virginia Stage Lines v. United States, D.C., 48 F. Supp. 79; Shein v. United States, D.C., 102 F. Supp. 320, affirmed per curiam, 343 U.S. 944, 72 S.Ct. 1043, 96 L.Ed. 1349.
The Commission is not required to deal with the subtleties of "good title" before assuming jurisdiction over a ยง 5 matter. Cf. O. C. Wiley Sons v. United States, 85 F. Supp. 542, 543-545 (D.C. W. D. Va.), aff'd per curiam, 388 U.S. 902 (1949); Walker v. United States, 208 F. Supp. 388, 396 (D.C. W. D. Tex. 1962); Interstate Investors, Inc. v. United States, 287 F. Supp. 374, 392 n. 32 (D.C. S.D. N.Y. 1968), aff'd per curiam, 393 U.S. 479 (1969). And because a Commission order under ยง 5(2) "is permissive, not mandatory."
"As to vendor's desire to withdraw from the transaction, we have repeatedly found that authority granted under former section 213 and present section 5 is permissive only, and may, or may not, be exercised by the parties, and that all matters involving the interpretation and enforcement of the terms of contracts must be left for settlement between the parties themselves or by the courts." See also, Watson Bros. Transp. Co. v. Jaffa, 8 Cir., 1944, 143 F.2d 340; O.C. Wiley Sons v. United States, W.D.Va., 1949, 85 F. Supp. 542; Marion Trucking Co. โ Purchase โ Harwood Trucking Co., 50 MCC 613, 632 (1948); The Service Transport Co. โ Purchase (Portion) โ F.E. Kerr Co., 59 MCC 481. Even where a carrier has transferred the same rights and equipment to two different parties, the Commission has held that it must treat each application on its merits and let the two vendees litigate their conflict in the courts. Yellow Coach Corp. โ Purchase โ O.B. Darnell, 59 MCC 185, 193-94. From these cases, we believe the Commission is of the opinion that the carriers must rely upon applicable contract and corporate law to carry their section 5(2) transaction into effect, and may not rely upon the Commission's "approval" to coerce a recalcitrant party into line.
No court should encourage violation of the clear statutory policy by enforcing performance of such a contract โ whether by awarding specific performance of the acquisition or damages for not performing โ when Commission approval could not be had within the time limit. See, e.g., Watson Bros. Transportation Co. v. Jaffa, 8 Cir., 143 F.2d 340; O.C. Wiley Sons, Inc., D.C., 85 F. Supp. 542, affirmed 338 U.S. 902, 70 S.Ct. 308, 94 L.Ed. 554; Cleveland, C.C. St. L. Ry. Co. v. Jackson, 6 Cir., 22 F.2d 509; Zabarsky v. Flemings, 113 Vt. 200, 32 A.2d 663; Royal Blue Coaches, Inc., v. Delaware River Coach Lines, Inc., 140 N.J. Eq. 19, 52 A.2d 763, appeal dismissed, 2 N.J. 73, 65 A.2d 264; McLean v. Keith, 236 N.C. 59, 72 S.E.2d 44. 49 U.S.C.A. ยง 10(1), so far as pertinent, reads as follows: "Any common carrier subject to the provisions of this chapter, or whenever such common carrier is a corporation, any director or officer thereof, or any receiver, trustee, lessee, agent, or person acting for or employed by such corporation who, alone or with any other corporation, company, person, or party, shall willfully do or cause to be done, or shall willingly suffer or permit to be done, any act, matter, or thing in this chapter prohibited or declared to be unlawful, or who shall aid or abet therein, or shall willfully omit or fail to do any act, matter, or thing in this chapter req
Section 5 of the Interstate Commerce Act grants broader authority and discretion to the ICC in connection with mergers or purchase of operating rights than most any other section of the Act. See O.C. Wiley Sons v. United States, 85 F. Supp. 542, 545, (W.D.Va. 1949), aff'd. 338 U.S. 902, 70 S.Ct. 308, 94 L.Ed. 554 (1949); Bell Lines, Inc. v. United States, 291 F. Supp. 964, (S.D.W.Va. 1968); M M Transportation Co. v. United States, 128 F. Supp. 296, 298 (Mass. 1955), aff'd.
McLean Trucking Co. v. United States, 321 U.S. 67, 87-88, 64 S.Ct. 370, 88 L.Ed. 544 (1944); Illinois Central Railroad Co. v. Norfolk Western Railway Co., 385 U.S. 57, 66, 87 S.Ct. 255, 17 L.Ed.2d 162 (1966). As was pointed out by Judge Dobie in O.C. Wiley Sons, Inc. v. United States, 85 F. Supp. 542, 545 (W.D.Va. 1949), in reviewing Commission orders concerning acquisition of control of carriers under Section 5 of the Act, we must take cognizance of the wide discretion given the Commission by Congress to determine which acquisitions are and which are not in the "public interest," "It has been often recognized that Section 5 confers broader authority and greater administrative discretion than most any other section of the Act and that the legislative history of the recent amendments to this section of the Act show congressional intent to broaden the authority of the Commission. * * * The primary concern of the Commission here is the protection of the public interest. It has been repeatedly held that a very strong showing must be made * * * by one who seeks to set aside an order of the Commission in this field."
ยง 5(2)(b). Its order, therefore, is permissive only. New York Central Securities Corp. v. United States, 1932, 287 U.S. 12, 26, 53 S.Ct. 45, 77 L.Ed. 138; O.C. Wiley Sons v. United States, W.D.Va., 1949, 85 F. Supp. 542, 544, affirmed 338 U.S. 902, 70 S.Ct. 308, 94 L.Ed. 555; Benton v. United States, M.D.Ga., 1953, 114 F. Supp. 37, 43; and see many other cases cited recently in Texas New Orleans R. Co. v. Brotherhood of Railroad Trainmen, 5 Cir., 1962, 307 F.2d 151 at note 4 and preceding appended text [No. 19164, July 6, 1962]. It does not compel action by either the applicant or the carrier-to-be-acquired. The Commission's power to grant a ยง 5 approval for acquisition is not limited to the existence of a legally enforceable contract. If that were so, the Commission as a condition precedent to the exercise of its statutory responsibility would have to determine the threshold question of legal enforceability of the contract.
" See also Stott v. United States, D.C.S.D.N.Y., 166 F. Supp. 851 and authorities cited at page 855; O.C. Wiley Sons v. United States, D.C.W.D.Va., 85 F. Supp. 542, 544, affirmed 338 U.S. 902, 70 S.Ct. 308, 94 L.Ed. 554. In approving a voluntary merger the Commission must find, first, that it "will be consistent with the public interest"; second, that it is "just and reasonable."
The courts have viewed the administrative authority of the Commission in cases involving the acquisition of control of one railroad by another under section 5(2) of the Interstate Commerce Act (49 U.S.C.A. ยง 5(2)) as being very broad. McLean Trucking Co. v. United States, 321 U.S. 67, 64 S.Ct. 370, 88 L.Ed. 544; O.C. Wiley Sons v. United States, D.C.W.D.Va. 1949, 85 F. Supp. 542, affirmed 338 U.S. 902, 70 S.Ct. 308, 94 L.Ed. 554. In M. M. Transportation Co. v. United States, D.C.D.Mass. 1955, 128 F. Supp. 296, 298, affirmed 350 U.S. 857, 76 S.Ct. 102, 100 L.Ed. 762, the court labeled the Commission's authority in these cases as "sweeping":
"The judicial function is exhausted when there is found to be a rational basis for the conclusions approved by the administrative body." The rule of administrative finality has application to Commission decisions in purchase and merger proceedings under Section 5, Title 49 U.S.C.A. Virginia State Lines v. U.S., D.C., 48 F. Supp. 79, 82; O.C. Wiley Sons v. U.S., D.C., 85 F. Supp. 542, 545, affirmed 338 U.S. 902, 70 S.Ct. 308, 94 L.Ed. 554; McLean Trucking Co. v. U.S., 321 U.S. 67, 87-88, 64 S.Ct. 370, 88 L.Ed. 544. The proceeding before the Commission was instituted by Federal pursuant to the provisions of Section 5(2), Title 49 U.S.C.A. (The Interstate Commerce Act). This section in general terms permits the unification, merger and acquisition of control by one carrier subject to the Interstate Commerce Act, of the ownership, management and operation of the properties of another carrier. It further provides that before the Commission's approval may be had on any application filed pursuant to its terms, the Commission shall find that the proposed transaction "is within the scope of subparagraph (a) and will be consistent with the public interest."