and necessity require the operations to the full extent sought. It is noted that during the 3-year period prior to the hearing applicant had not transported any shipments from Allentown to Vermont, South Carolina, or Mississippi, or to any States west of the Mississippi River except Minnesota, Iowa, Missouri, Louisiana, Oklahoma. and Texas. It is admitted that the Mack Company ships by rail and water, and the record indicates that such transportation is adequate and actually preferred by the shipper for those States in the far-west section of the country.

As to Vermont, South Carolina, Mississippi, and Arkansas, although applicant has been operating for about 3 years, according to the record it has not delivered a single vehicle in these States, and the record contains no proof whatsoever that public convenience and necessity require service to points in those States.

Protestant F. W. Myers has on file an application under the "grandfather" clause of section 206 (a) of the act claiming among other things the right to transport motor vehicles from Springfield. He asserts that, by reason of our denial of his petition for further hearing in the instant proceeding, pertinent facts have been withheld with respect to his operations and the need for the continuance of operations by applicant out of Springfield. The instant record contains positive evidence that this protestant, after applicant acquired his lot and driving personnel on or about October 1, 1935, ceased to operate out of Springfield, and that he has not served the International Harvester Company from Springfield since shortly after that date. Thus, upon all the information available, it does not appear that any mistake was made in denying a rehearing.

On exceptions, protestant rail carriers contend that the record shows that existing rail and motor transportation facilities are adequate, relying in part upon the fact that on October 1, 1935, at Springfield there were about 15 motor carriers in this service. As stated, most of these have ceased operations at Springfield. As to existing rail service, the evidence shows that it has not been entirely satisfactory to the interested shippers or adequate to meet their needs in the wide distribution of new motor vehicles from their plants at Springfield and Allentown.

It is apparent that shipments from Springfield to points in Ohio and from Allentown to points in Pennsylvania are movements in intrastate commerce. Accordingly, the authority authorized in the findings below will exclude those particular operations.

We find that public convenience and necessity require operation by applicant as a common carrier by motor vehicle, in interstate or foreign commerce, by the drive-away method, over irregular routes, in initial movements, (1) of new motortrucks, chassis, busses, self

propelled fire-fighting apparatus, freight trailers, and freight trailer carts, and parts thereof, from Allentown, Pa., to points in Alabama, Connecticut, Delaware, District of Columbia, Florida, Georgia, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, New Hampshire, New Jersey, New York, North Carolina, Ohio, Oklahoma, Rhode Island, Tennessee, Texas, Virginia, West Virginia, and Wisconsin, with operations through, but serving no points in, Arkansas, Mississippi, South Carolina, and Vermont, and (2) of new motortrucks and parts thereof from Springfield, Ohio, to points in Maine, New Hampshire, Vermont, Massachusetts, Connecticut, Rhode Island, New Jersey, Kentucky, and Wisconsin; that applicant is fit, willing, and able properly to perform such service, and to conform to the provisions of the act and our requirements, rules, and regulations thereunder; and that a certificate authorizing such service should be issued.

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 applications except to the extent that a certificate is granted herein.

Applicant's total deliveries from Springfield, Ohio, within States covered by

No. MC-95756

JAMES O. WILGIS COMMON CARRIER APPLICATION

Submitted June 16, 1939. Decided May 4, 1940

1. Applicant's operations found to be in part those of a common carrier and in part those of a contract carrier.

2. Public convenience and necessity found to require operation by applicant as a common carrier by motor vehicle, of household goods, between West Chester, Pa., and points within a radius of 10 miles thereof, and points in specified areas in Delaware, Maryland, New Jersey, and New York, over irregular routes. Issuance of a certificate approved upon compliance by applicant with certain conditions.

3. Operation by applicant as a contract carrier by motor vehicle, of described! commodities, from West Chester to points within 30 miles thereof in Delaware, Maryland, and New Jersey and of returned or rejected shipments, in the reverse direction, found consistent with the public interest and the policy declared in section 202 (a) of the Motor Carrier Act, 1935. Issuance of a permit approved upon compliance by applicant with certain conditions, and application in all other respects denied.

4. Dual operations authorized.

G. A. Bruestle for applicant.

Isadore H. Schwartz and Joseph H. Flagler for protestants.
REPORT OF THE COMMISSION

DIVISION 5, COMMISSIONERS LEE, ROGERS, AND ALLDREDGE

BY DIVISION 5:

Exceptions were filed by protestant rail carriers to the recommended order of the examiner. Our conclusions differ somewhat from those recommended.

By application filed January 14, 1939, as amended, James O. Wilgis, of West Chester, Pa., seeks a certificate of public convenience and necessity authorizing operation, in interstate or foreign commerce, as a common carrier by motor vehicle of commodities sold by department stores, from West Chester to points in Delaware on and north of a line drawn from Newark to New Castle, Del., points in Maryland east of the Susquehanna River, and points in New Jersey on and west of U. S. Highway 130 between Camden and Penns Grove, N. J., and of used household goods and office and store furniture and fixtures, from West Chester and points within 10 miles thereof to points in Maryland, Delaware, New Jersey, and New York, over irregular routes. South Jersey Motor Carriers

Service Bureau, Incorporated, and rail carriers in trunk-line territory opposed the application.

Applicant has been engaged in the transportation of used household goods and office and store furniture and fixtures since 1932, operating from West Chester and points within a 10-mile radius thereof to points in Delaware on and north of Delaware Highway 8; to points in Maryland west of the Susquehanna River and Chesapeake Bay, and on and north of U. S. Highway 50 and the Maryland-Virginia State line; to points in New Jersey on and south of New Jersey Highway 33; and to New York City, N. Y., and points in New York within a 30-mile radius thereof. In this operation he has held himself out to serve the general public. His status in respect of this operation is, therefore, that of a common carrier.

In addition to the above-described operation, he has since 1934 also served Montgomery Ward & Company in the transportation of merchandise dealt in by it. This operation has extended from West Chester to customers located at points within a 30-mile radius thereof in Delaware, Maryland, and New Jersey. In the reverse direction he has transported only returned or rejected shipments. This service has been performed solely for the company in question and under written contracts. Applicant does not propose to offer this transportation to the public in general, but intends to continue to limit it to the company heretofore served. It is clear, therefore, that as to the operation applicant's status is that of a contract carrier, and in line with the decision in Keystone Transp. Co. Contract Carrier Application, 19 M. C. C. 475, the authority herein granted will be limited to transportation, under special and individual contracts or agreements with persons, as defined in section 203 (a) of the act, operating retail department stores, of such merchandise as is dealt in by such stores.

Although applicant's showing in respect of the need for his services is meager, the fact that it has been rendered since before 1935 raises a presumption, which has not been rebutted, that there is a demand for its continuance.

Inasmuch as nearly everything included within the term "household goods" as defined in Practices of Motor Common Carriers of Household Goods, 17 M. C. C. 467, is dealt in by Montgomery Ward & Company, a dual operation within section 210 of the act will to some extent result from a grant of the authority sought. However the operations are essentially different and not competitive. With the restriction, as to shippers, of the contract-carrier operation, above indicated, the finding required by the section mentioned may, we think, properly be made.