No. MC-88797 (SUB-No. 1) NEW YORK, SUSQUEHANNA & WESTERN RAILROAD COMPANY (WALTER KIDDE, TRUSTEE) EXTENSION OF OPERATIONS-NORTH HAWTHORNE, N. J. Decided May 2, 1940 On reconsideration, findings in prior report, 18 M. C. C. 821, modified to elimi nate certain conditions relating to mode of operation, under certificate granted applicant to operate as a common carrier by motor vehicle, of passengers and their baggage, between Butler and North Hawthorne, N. J., over a regular route. Appearances shown in prior report. REPORT AND ORDER OF THE COMMISSION ON RECONSIDERATION DIVISION 5, COMMISSIONERS LEE, ROGERS, AND ALLDREDGE BY DIVISION 5: In the prior report and order herein, 18 M. C. C. 821, decided July 5, 1939, division 5 authorized the issuance to applicant of a certificate of public convenience and necessity as a common carrier by motor vehicle, in interstate or foreign commerce, of passengers and their baggage, between Butler and North Hawthorne, N. J., over a regular route, serving certain intermediate points. The issuance of the certificate was conditioned upon the performance of the proposed service by applicant directly with its own motor vehicles and employees, or under such new arrangements with a contractor as would permit the actual transportation operations to be carried on with the contractor's vehicles and employees under a lease of equipment made in accordance with our Bureau of Motor Carrier's administrative ruling 4. The proceeding is hereby reopened on our own motion for the purpose of giving consideration to eliminating the conditions specified above. While we feel that the method by which applicant proposed to conduct the operation was rightly condemned by the prior report in this proceeding, it appears that the grant of the certificate need not have been conditioned in the manner indicated, since obviously applicant itself can conduct the operations authorized only by its own vehicles and employees or by a lease of equipment of others under the principles announced in Dixie Ohio Exp. Co. Common Carrier Application, 17 M. C. C. 735. Furthermore, it appears that the con ditions imposed would prevent the leasing of the granted operating rights themselves under the provisions of section 213 of the Motor Carrier Act, 1935. On reconsideration, we find that the prior report and order should be, and they hereby are, amended and corrected so as to eliminate the conditions specified above, and it is so ordered. No. MC-15896 O. K. TRANSFER & STORAGE CO. COMMON CARRIER APPLICATION Submitted March 13, 1939. Decided May 4, 1940 Applicant found entitled to continue operation as a common carrier by motor vehicle, of household goods, between points in Oklahoma, on the one hand, and points in Missouri, Arkansas, Texas, Louisiana, Mississippi, Kansas, and Illinois, on the other, over irregular routes, by reason of having been engaged in such operation on and since June 1, 1935. Issuance of a certificate approved upon compliance by applicant with certain conditions, and application in all other respects denied. Carl L. Phinney for applicant. Fred N. Bigelow, H. J. Carr, and Nathan S. Sherman for prot estants. REPORT OF THE COMMISSION DIVISION 5, COMMISSIONERS LEE, ROGERS, AND ALLDREDGE BY DIVISION 5: Exceptions were filed by applicant to the order recommended by the examiner. Our conclusions differ somewhat from those recommended. 1 By application 1 filed February 11, 1936, O. K. Transfer & Storage Co., of McAlester, Okla., seeks a certificate of public convenience and necessity authorizing continuance of operation as a common carrier by motor vehicle of general commodities, except explosives, in interstate or foreign commerce, between points in Oklahoma, Missouri, Illinois, Indiana, Ohio, Michigan, Arkansas, Tennessee, Louisiana, Texas, Kansas, Iowa, Colorado, Mississippi, New Mexico, Virginia, Georgia, Alabama, Pennsylvania, New York, and West Virginia, over irregular routes; and of general commodities in collection and delivery service for railroads within McAlester. Numerous rail carriers opposed the application but offered no evidence. 1 Under the "grandfather" clause of section 206 (a) of the Motor Carrier Act, 1935. Applicant is incorporated under the laws of Oklahoma, has been engaged in the moving business for 13 years, and was registered in 1934 under a code of fair competition. Its president testified that it had authority from the State commissions to operate within the respective States of Texas, Oklahoma, Missouri, Arkansas, and Louisiana. In 1936 it became associated with the Allied Van Lines, but it continued to conduct its individual operation. In addition, it performs, under contract, pick-up and delivery service for rail carriers within McAlester. This service is not subject to the provisions of the Motor Carrier Act, 1935. Scott Bros., Inc., Collection and Delivery Service, 4 M. C. C. 551. Applicant also transports intrastate commerce within Oklahoma. Several abstracts of shipments, compiled from record books and bills of lading, were submitted. They establish that on and since June 1, 1935, applicant has transported household goods between points in Oklahoma, on the one hand, and points in Arkansas, Illinois, Kansas, Louisiana, Mississippi, Missouri, and Texas, on the other. There were two shipments from McAlester and Dallas, Tex., to destinations in Ohio in 1930 and 1933, respectively, one from Detroit, Mich., to Hartshorne, Okla., in 1931, and one from Fort Smith, Ark., to Dallas in 1932. This evidence will not support applicant's claim to a right to operate in the additional States. In addition to the movement of household goods, the abstracts also show that a few shipments of machinery, dynamite, and general merchandise moved prior to June 1, 1935. Shipments of machinery moved between points in Oklahoma, Texas, Missouri, Illinois, Kansas, Michigan, and Arkansas during the period December 12, 1928, to March 26, 1934. Four shipments of machinery are shown as having moved subsequent to the latter date, one from McAlester to Van Buren, Ark., on June 10, 1935; one from McAlester to Hackett, Ark., on May 8, 1936; one from Pryor, Okla., to Pretty Prairie, Kans., on June 9, 1936; and one from Croweburg, Kans., to McAlester on December 24, 1937. Six shipments of dynamite are shown as having moved between points in Arkansas, Oklahoma, Texas, and Missouri during the period December 21, 1926, to October 4, 1930. Applicant's president stated that his firm did not desire authority to transport dynamite. Several shipments of general merchandise also are shown to have been transported between points in Oklahoma, Illinois, Missouri, Arkansas, and Texas, but only two of them moved subsequent to June 1, 1935-one from Vinita, Okla., to West Plains, Mo., on August 21, 1935, and another from Fayetteville, Ark., to McAlester on April 13, 1936. 248723-41-vol. 23——6 Evidence of the transportation of machinery, dynamite, and general merchandise subsequent to June 1, 1935, is insufficient, in our opinion, to establish a continuity of movement after the statutory date. On exceptions applicant contends that it should receive authority to transport household goods within a more extensive territory than that recommended. The record shows that on and prior to June 1, 1935, shipments of household goods either originated at or were delivered to 17 points in Oklahoma, other than McAlester, several of these points being over 100 miles from McAlester. Subsequent to the statutory date similar shipments originated at or moved to 13 points in Oklahoma, other than McAlester. In our opinion this evidence is sufficient to establish the right under the "grandfather" clause to transport household goods to or from points in Oklahoma. We find that applicant was on June 1, 1935, and has been continuously since that time, in bona fide operation, in interstate or foreign commerce, as a common carrier by motor vehicle, of household goods, as defined in Practices of Motor Common Carriers of Household Goods, 17 M. C. C. 467, between points in Oklahoma, on the one hand, and points in Missouri, Arkansas, Texas, Louisiana, Mississippi, Kansas, and Illinois, on the other, over irregular routes; that applicant is entitled to a certificate of public convenience and necessity authorizing continuance of such operation; and that the application should be denied in all other respects. Upon compliance by applicant with the requirements of sections 215 and 217 of the act, and our rules and regulations thereunder, an appropriate certificate will be issued. An order will be entered denying the application except to the extent granted herein. 23 M. C. C. No. MC-69892 (SUB-No. 1) MARVIN A. OSBORNE AND HERBERT O. KLEIN EXTENSION OF OPERATIONS-ILLINOIS-OHIO Submitted September 9, 1939. Decided May 4, 1940 Public convenience and necessity found to require operation by applicants as a common carrier by motor vehicle, of special commodities, from and to specified points in Illinois, Indiana, and Ohio, over irregular routes. Issuance of a certificate approved upon compliance by applicant with certain conditions, and application in all other respects denied. Ferdinand Born and Ezra Weiss for applicants. Paul Hergenroeder, Ralph M. Buzek, and Jesse L. Cook for prot estants. REPORT OF THE COMMISSION DIVISION 5, COMMISSIONERS LEE, ROGERS, AND ALLDREDGE BY DIVISION 5: Exceptions to the recommended order of the joint board were filed by applicants and by rail-carrier protestants. Our conclusions differ somewhat from those recommended. By application filed April 19, 1939, as amended, Marvin A. Osborne and Herbert O. Klein, partners, doing business at Vincennes, Ind., as Osborne Trucking Company, seek a certificate of public convenience and necessity authorizing operation, in interstate or foreign commerce, as a common carrier by motor vehicle of various special commodities, from and to certain points in Illinois, Indiana, and Ohio, over irregular routes. Rail and motor carriers opposed the application. By order of May 4, 1939, in No. MC-69892, applicants were granted a "grandfather" certificate authorizing operation in interstate or foreign commerce as a common carrier by motor vehicle of numerous special commodities from and to certain points in central territory. By the instant application they seek authority to continue operations, said to have been conducted on June 1, 1935, but which they were unable to establish in the "grandfather" proceeding. Representatives of two major oil companies appeared in support of the application insofar as it requests authority for the transportation of petroleum products in containers (1) from Wood River, Ill., to Vincennes, and (2) from Lawrenceville, Ill., to all points in that part of Indiana on and south of a line beginning at the |