and likewise two separate intrastate rights covered by Texas certificates 2023 and 2225. The intent of the parties is that vendor would sell his operating rights between Fort Worth and Dallas, granted in No. MC-59814, except that he would retain the right to serve intermediate points as therein authorized, and sell his intrastate right covered by Texas certificate 2023; and would retain the identical right described in No. MC-59814 (Sub-No. 1) and the intrastate right covered by Texas certificate 2225. The purchase agreement provides: This contract is made subject to the approval of the Railroad Commission of Texas and the Interstate Commerce Commission, as hereinabove set forth. If seller shall fail to obtain both his certificates from the Interstate Commerce Commission or if the application for the sale of the respective certificates and operating rights by seller to purchaser, as hereinabove set forth, shall be denied, whether by the Railroad Commission of Texas or by the Interstate Commerce Commission, then this contract shall be null and void. It is understood between the parties that seller has two separate certificates or operating rights between Fort Worth and Dallas over U. S. Highway 80, one by virtue of MC-59814, and the other by virtue of Docket MC-60528 [MC-59814 (SubNo. 1)], and that seller has two certificates and operating rights in intrastate commerce, one by virtue of the Railroad Commission of Texas Certificate No: 2023, and the other by virtue of the Railroad Commission of Texas Certificate No. 2225. Applicant and Johnson contend that the latter has two intrastate rights and two interstate rights between Fort Worth and Dallas, over U. S. Highway 80, because these rights originated in different parties, i. e., Johnson and Rose, and, it is argued, two interstate "grandfather” rights have been granted by this Commission by separate orders. Therefore, it is asserted, the interstate right granted by one such order may now be sold (in part) to applicant, along with one corresponding intrastate right, without affecting Johnson's right to continue operating as at present by virtue of the right granted by the other order and the other intrastate certificate. The parties contend that to hold that upon consummation of the purchase from Rose the latter's right merged with that of Johnson, and that thereafter Johnson possessed only one unified right and operation, would constitute revocation of an operating right in a manner other than as provided in section 212 (a) and would be an unconstitutional deprivation of property. Prot Ballinger; and from Oklahoma City over U. S. Highway 77 to Denton, Tex., thence over * The pertinent portion of the description of rights contained in the order of November 28, 1938, in No. MC-59814 (Sub-No. 1), reads: "Between San Angelo, Tex., and Dallas, Tex. From San Angelo over U. S. Highway 67 to Ballinger, Tex., thence over U. S. Highway 83 to Abilene, Tex., thence over U. S. Highway 80 to Dallas, and return over the same route. All intermediate points." estants contend, on the other hand, that the effect of the purchase from Rose was to unify the operating rights in Johnson, and that his operations thereafter as a single motor-carrier entity were under one unified right. In part, the argument that Johnson possesses two separable rights over this route is based on our administrative mechanics. In many cases, upon consummation of a purchase, merger, or consolidation transaction authorized under section 213, the former "grandfather" application of the vendor or liquidating company has been consolidated with that of the purchaser or surviving company, and thereafter a single order has been entered confirming one right in such purchaser or surviving company, with duplications in rights eliminated. In other cases, as was true here after the decision in Johnson-Purchase-Rose, supra, the respective pending applications were not physically consolidated, and each received separate consideration and separate orders were entered as to each. Such administrative handling is purely ministerial and does not change the essential nature of a unification accomplished under section 213. Applicant also points to the omission from the report in Johnson-Purchase-Rose, supra, of language now usually included in reports in section 213 proceedings to indicate specifically that the operating rights involved would be unified "with duplications eliminated". The proceeding in Johnson--Purchase-Rose, supra, was an early case arising under section 213, and it was not until later that it became apparent that in some instances carriers were viewing duplicate rights purchased as separate rights which might later be sold. It was then that division 5 decided to include the phrase above quoted, as to the effect of a unification under section 213, and we have continued the practice. It should be observed that the language is not included in cases of acquisition of control through stock ownership, as physical unification of properties does not there occur. The purpose in using the abovequoted language, therefore, is merely to describe what actually transpires, whether or not such language is included, namely, unification of the properties involved. To say that the separate properties and rights are preserved in existence by a single motor-carrier operation, after consummation of a purchase transaction, would be contrary to the meaning of the word "purchase" as used in section 213, namely, control through single-entity ownership and operation. The contention here made is not distinguishable from that heretofore advanced in other cases, and rejected, that the mechanical repetition of routes in an order granting operating authority to a motor carrier results in creation of two or more operating rights over the routes and between the points so repeated. H. P. Welch Co.-Purchase-E. J. Scannell, Inc., 25 M. C. C. 558. In Atlantic Greyhound Corp.-Purchase-Pan American Bus, 25 M. C. C. 551, we refused to recognize the existence in one carrier of two separate operating rights over a common highway, although the route there involved was included in each of two orders granting the rights, entered in separate proceedings, one under the "grandfather" clause and the other after proof of public convenience and necessity. We there stated: In many instances carriers filing applications under the Motor Carrier Act have filed more than one such application under the "grandfather" clause, for an interim operation under section 206 (b), or for a new operation, and in the mechanical description of routes over which rights have been sought in such applications, duplications appear. Separate action on such applications and use of routes in our orders granting rights sought may inadvertently result in inclusion of a route over which a carrier has already been granted rights. In the instant case the only rights granted in No. MC-60457 [“grandfather"] were for service to intermediate points over a route already operated between Columbia and Savannah, notwithstanding the manner in which rights may have been there described, and the resulting right under which vendor lawfully conducts operations is the sum of those confirmed, without duplications. [Footnote omitted.] Of similar import is the following from Riley-Purchase-Peterson, 25 M. C. C. 325, 328: It is pertinent here to observe that the existence and scope of "grandfather" rights must be determined by actual operations, performed in interstate or foreign commerce on and after the "grandfather" date, rather than by the authority for intrastate operations possessed by the carrier. [Johnson, after purchase of the Rose rights, conducted only one operation.] Certainly it is not sound to contend that a single motor carrier, by virtue of its operations on and after the "grandfather" date, preserves as many transferable rights to operate in interstate or foreign commerce as it has State certificates to operate over the particular route in intrastate commerce Acceptance of the view that operating rights may be indefinitely removed from active use and preserved in existence for subsequent transfer and vitalization in an additional motor carrier when, perhaps, competitive conditions or the traffic potentialities of a given territory have materially changed, would be inconsistent with the public interest, would not foster sound economic conditions in the industry, and would be incompatible with the policy declared in section 202 (a) of the act. This view was rejected in Consolidated Freightways, Inc.Lease-Mont. Transport, 25 M. C. C. 428, wherein authority to lease duplicate rights, thus preserving two rights by one operation, was denied. The objections there mentioned are equally applicable here where such preservation is argued notwithstanding actual unification by purchase. We there stated (at pages 431-432): The question arises, considering the fact that applicant already has operating rights over more than half of lessor's routes, whether approval of the instant transaction would be consistent with the public interest. In Huber-Purchase— Newland, 15 M. C. C. 451, embracing also N. F. Huber et al.-Lease-Central Motor Freight Lines, Incorporated, where, unlike the situation in the instant case, lessor's claimed "grandfather" rights which were the subject matter of the proposed lease were not yet determined, division 5 stated: "In view of the fact they [applicants] already claim rights to operate over this identical route in interstate or foreign commerce as part of their Chicago, Ill.— Knoxville [Tenn.] operation, the record fails to show wherein lease by applicants of additional claimed rights would be consistent with the public interest or that applicants should be permitted to preserve, by their operation, two operating rights over the duplicating route through the medium of a lease. If two claimed "grandfather" rights may be preserved through a lease, it would be possible similarly to preserve an indefinite number of such claimed rights through the same device. While this has not been shown, at least in the present case, to be consistent with the public interest, such conclusion is without prejudice to the filing herein of a supplemental application seeking authority to effect unification of the claimed rights through purchase, consolidation, or merger." 串 * * Much of what was there said is equally applicable here, notwithstanding the fact lessor's rights have been confirmed. See also Wilson-Control-Flamming Motor Exp., Inc., 25 M. C. C. 41. In our opinion, what would be in effect the removal of operating authority from active use for long periods is, generally, an undesirable device. That is to say, such preservation in existence of rights which might otherwise be unified with rights of such lessee by means of a purchase, or disposed of to an operator without duplicating routes, in which latter event the existing competitive situation in a given territory would be preserved, is an objectionable result which should not be countenanced. As indicated in the foregoing quotation, we have uniformly viewed the consummation of a purchase, merger, or consolidation transaction authorized under section 213 as automatically, and by virtue of the nature of the transaction itself, effecting physical unification of the properties, theretofore in separate ownership and operation, into a single ownership and operation. In connection with the contention that denial of the existence of two separate duplicate rights in Johnson would result in revocation of an operating right in a manner other than as provided in section 212 (a), it might be observed that authority granted under section 213 is permissive only, that rights of parties to a unification transaction under that section are not revoked, but merged along with other properties, and that such merger is accomplished automatically by reason of the voluntary act of the parties in consummating the transaction, and not by any "requirement" of ours. It is apparent that revenue from freight shipped, formerly shared by the separate operators, accrues to the single operator after the unification. This record is clear that Johnson's operations before and after the Rose purchase have been conducted in exactly the same manner between Fort Worth and Dallas, except, of course, that his traffic increased as result of elimination of Rose as a competitor, and, in addition, optional Dallas-San Angelo routing was made possible, either via Fort Worth, Stephenville, Coleman, and Ballinger, or via Fort Worth, Mineral Wells, Abilene, and Ballinger. It also appears that his future operations between Fort Worth and Dallas, if this purchase is authorized upon the terms proposed, will continue to be the same. In our view this illustrates clearly how unification of separate motor-carrier properties in a single motor carrier works in actual practice. Based on the foregoing, the transaction, upon the terms proposed, has not been shown to be consistent with the public interest, and the application will be denied. However, it seems desirable to refer briefly to another phase of the transaction. Under the proviso of section 213 (a) (1), it is necessary to find before granting the authority sought by a railroad subsidiary, as here, that the "transaction proposed will promote the public interest by enabling" the railroad "to use service by motor vehicle to public advantage in its operations and will not unduly restrain competition". In Pennsylvania Truck Lines, Inc.-Control-Barker M. Frt., 1 M. C. C. 101, 5 M. C. C. 9, 49, herein called the Barker case, in approving acquisition of control of an independent motortruck operator by a railroad subsidiary, the general character and scope of approved and disapproved operations were indicated, it being stated, among other things, that approved operations are those which are auxiliary or supplementary to train service. At the hearing, although Dallas and Fort Worth are both stations on the railroad, no effort was made by applicant to show that the Dallas-Fort Worth motor-carrier operation of applicant would be conducted in a manner auxiliary or supplementary to the service of the railroad within the meaning of the views expressed in the Barker case and later cases dealing with railroad acquisitions. On the contrary, the record indicates that the proposed motor-carrier service between Dallas and Fort Worth would be independent of the railroad's service. Subsequent to hearing, however, counsel for applicant advised that there would be a degree of motor-rail coordination as a result of the Commission's decision in Substituted Freight Service, 232 I. C. C. 683. It is unnecessary to consider this matter further in view of our conclusions. In his exceptions to the order recommended by the examiner, Johnson attached copy of report and order of the Texas commission approving purchase by applicant of that portion of Johnson's Texas intrastate certificate 2023 authorizing operations between Fort Worth and Dallas, but ordering that the retained right under that certificate to serve intermediate points be merged with Johnson's other Texas intrastate certificate 2225, which also authorizes operations between Fort Worth and Dallas, serving all intermediate points. Subsequent to hearing herein, applicant tendered for receipt in |