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Oklahoma City over a route not here involved. No other interstate service is shown to or from Tulsa, or points on U. S. Highway 75 north of Dallas (route 6 of appendix A) other than Durant. Shipments to Durant apparently were given by the predecessor to another carrier at Ardmore.
Packing-house and dairy products.-As further evidence that it is entitled to authority as a common carrier to transport general commodities over the routes here involved, applicant refers to the operations it and its predecessor, Jackson, have performed for Wilson & Co. Such operations were performed under contract, and protestants maintain that applicant and Jackson were operating as contract carriers. Under the terms of the contract, such services were performed in the regular course of Jackson's and applicant's business. There is no doubt in our minds but that such operations were those of a common carrier.
The shipments transported consisted of meat, meat products, cheese, poultry, eggs, butter, oleomargarine, lard, and lard substitutes, and, with the exception of infrequent shipments of packing-house supplies shipped from Houston, on and prior to June 1, 1935, all shipments originated at the Wilson plant at Oklahoma City and moved to (a) Waco, Hempstead, and points on Texas Highway 6 between Waco and Hempstead, as well as Brenham, Tex., located on U. S. Highway 77 west of Hempstead, (6) San Antonio, and points on U. S. Highway 81 between Waco and San Antonio, (c) Corsicana, Conroe, and points on U. S. Highway 75 between Corsicana and Conroe, Tex., and (d) Rosebud, Rockdale, and points on U. S. Highway 77 between Rosebud and Rockdale. Shipments also were transported to Houston and Beaumont, Tex., prior to the statutory date. Jackson operated two schedules a week for Wilson, over separate routes, thus rendering weekly service to all of the above-described points. Truckload shipments comprised the majority of those transported. However, less than truckloads also were transported, and, when such traffic was available, Jackson transported miscellaneous freight in the same truck.
Since the statutory date, Jackson and applicant have continued substantially the operations described above.
Discussion.-Protestants contend (1) that operations over routes other than those set forth in the above-described Texas interstate certificate have not been bona fide, (2) that there was a cessation of operation on the part of Jackson, and (3) that, in view of the terms of the Texas certificate, any authority granted should not authorize operations between one point in Texas and another point in Texas. These contentions will be discussed separately.
Under the above-described Texas certificate, Jackson had authority to operate over those portions of routes 1 (a), 1 (6), and 5, described
in appendix A, which are located in Texas, and applicant holds similar authority. Operations over the other routes to the extent shown by evidence of past shipments were conducted by Jackson on and prior to June 1, 1935, and have been continued since by Jackson and applicant. The record shows that Jackson's driver was arrested by the Texas authorities only once for operating without appropriate authority. Such arrest, in the fall of 1934, was based upon Jackson's operations over Texas Highway 6, between Waco and Hempstead. There is evidence that, during the latter part of 1934, Jackson secured a temporary injunction against the Texas Railroad Commission and under such injunction operated for a short time over Texas Highway 6. The injunction appears to have expired prior to January 1, 1935, and Jackson was of the opinion that thereafter he had authority from the railroad commission to operate over that route as well as all of the other routes described in appendix A hereto. In any event, he and applicant have continued operations over all routes without interference; and such operations have been conducted openly without any subterfuge.
Protestants rely upon McDonald v. Thompson, 305 U. S. 263, to support their contention that operations over routes other than those set forth in the Texas certificate were not bona fide. We cannot agree that the principle set forth in the McDonald case is applicable here. In this proceeding, Jackson and applicant had some operating authority and merely exceeded the rights granted. In the McDonald case, there was an absolute defiance of an order of the Texas commission. Here there is no evidence that Jackson and applicant were ordered to cease operations or that since January 1, 1935, their trucks were stopped and the drivers arrested in Texas for failure to have adequate operating authority. Nor does the State of Texas oppose the application. Operations by both Jackson and applicant were not characterized by elements of fraud, deceit, or subterfuge. Protestants also refer to an injunction obtained by applicant some time subsequent to June 1, 1935. The evidence with respect to the provisions thereof and their application is lacking, but it appears that, whatever its provisions might have been, they applied to those operations formerly conducted by Carter Motor Freight Forwarding Company and not to those predicated upon Jackson's operations. We conclude, therefore, that such operations were bona fide. Compare Fisher Common Carrier Application, 14 M. C. C. 655.
During a period of 2 months sometime around May 1935, Jackson was ill and made arrangements to have other persons conduct his operations. North-bound operations were conducted by D. A. Beard, who also conducts a motor-carrier operation of his own. The record is not clear just what arrangements were made between Beard and Jackson, but it appears that Beard managed Jackson's north-bound operations using some of his (Beard's) equipment under lease to Jackson and also using Jackson's equipment. With respect thereto, Jackson testified:
Q. You would not have control over Beard's trucks?
A. Sure, you see I just made the agreement to pay so much for him to handle my line for me. I had a man in Oklahoma City to get the freight to return back.
Freight moved continuously during that time on Jackson's freight bills, and the record fails to show any interruption of service. We conclude that Jackson's operations were continuous as well as bona fide, and that applicant as successor to Jackson is entitled to such authority as is warranted by the evidence.
From the analysis of past operations set forth above, it is seen that, on and prior to June 1, 1935, Jackson was transporting general commodities in regular service between Houston and Oklahoma City and between San Antonio and Oklahoma City over routes 1, 3, 5, and 10 as set forth in appendix B hereto, serving the intermediate points of Dallas, Fort Worth, Waco, Austin, Hempstead, Navasota, College Station, and Waxahachie, Tex., and Ardmore and Pauls Valley, Okla. In addition, as a common carrier he transported packing-house and dairy products from Oklahoma City to a great number of points in Texas on such routes. Considering the evidence as a whole, we conclude that applicant, as successor in interest to Jackson, is entitled to authority to operate as a common carrier by motor vehicle of general commodities, with certain exceptions hereinafter described, over routes 1, 3, 5, and 10 as set forth in appendix B, serving all intermediate points. As pointed out above, no operations are shown to have been conducted prior to June 1, 1935, over route 6 of appendix A. With respect to operations over route 17 of appendix A, applicant has shown only evidence of the transportation of packing-house and dairy products by Jackson to Beaumont from Oklahoma City. In the absence of evidence of shipments of commodities other than packinghouse and dairy products, operations at Beaumont will be restricted to the delivery of the latter commodities. No service has been shown to have been rendered at intermediate points on route 17.
Protestants urge that any authority granted to applicant should contain a restriction similar to that set forth in the State permit, forbidding the transportation of property from one point in Texas to another point in Texas. Applicant states that such a restriction was placed in the permit to cover intrastate movements. Such a restriction would be impractical and unreasonable in respect of interstate traffic.
Upon further hearing, we find that, on June 1, 1935, Tom Jackson, doing business as Tom Jackson Motor Freight Line, was, and Tom Jackson and applicant continuously since have been, in bona fide operation as a common carrier by motor vehicle, in interstate or foreign commerce, of the commodities, to and from the points, and in the manner described in appendix B hereto; that a certificate of public convenience and necessity authorizing continuance of such operations should be granted to applicant; and that the application in all other respects should be denied.
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 authorizing operations described in appendix B and pick-up and delivery service at Houston as authorized in the prior report. An order will be entered denying the application except to the extent granted.
COMMISSIONER PATTERSON dissents.
Proceeding reopened as to routes set forth below
Route 1, between Houston, Tex., and Oklahoma City, Okla., and intermediate points as follows: (a) Houston to Dallas, Tex., via U. S. Highway No. 75, and (0) Dallas to Oklahoma City via U. S. Highway 77.
Route 3, between Houston, Tex., and Fort Worth, Tex., and intermediate points, via U. S. Highways 290, 190, 77, and 81.
Route 5, between Fort Worth, Tex., and Dallas, Tex., via U. S. Highway 80.
Route 6, between Dallas, Tex., and Tulsa, Okla., and intermediate points via U. S. Highway 75.
Route 10, between San Antonio, Tex., and Dallas, Tex., and intermediate points via U. S. Highways 81 and 77.
Route 17, Houston to Beaumont, Tex., and intermediate points, via Texas Highway 3.
Route 38 (added route), Waco to Hempstead, Tex., and intermediate points, via Texas Highway 6. (This route was formerly U. S. Highway 190 and is included in route 3 above, in the manner originally applied for.)
A. General commodities, except articles of unusual value, dangerous explosives, commodities in bulk, commodities requiring special equipment, and house hold goods as defined in Practices of Motor Common Carriers of Household Goods, 17 M. C. C. 467 :
Route 1, between Houston, Tex., and Oklahoma City, Okla. : From Houston over U. S. Highway 75 to Dallas, Tex., thence over U. S. Highway 77 to Oklahoma City, and return.
Route 3, between Houston and Fort Worth, Tex.: From Houston over U. S. Highway 290 through Hempstead, Tex., to Giddings, Tex., thence over U. S. Highway 77 to Waco, Tex., thence over U. S. Highway 81 to Fort Worth (also over Texas Highway 6 between Hempstead and Waco), and return.
Route 5, between Fort Worth and Dallas, over U. S. Highway 80.
Route 10, between San Antonio, Tex., and Dallas, from San Antonio over U. S. Highway 81 to Waco, and thence to Dallas, as specified above.
With service at intermediate points on the above-specified routes.
From Oklahoma City to Beaumont, Tex.: From Oklahoma City to Houston as specified above and thence over U. S. Highway 30 to Beaumont, serving no intermediate points except as authorized above.
No. MC-45105 (SUB-No. 1)
Decided April 6, 1943
On reconsideration, findings in prior reports, 30 M. C. C. 807 and 41 M. C. C. 127.
modified, and public convenience and necessity found to require operation by applicant as a common carrier by motor vehicle of paper and allied commodities between points in described portions of Michigan and Indiana, over irregular routes. Issuance of certificate approved upon compliance with certain conditions, and application denied, except as granted herein and in the prior report of September 9, 1942. Appearances shown in prior report.
SECOND REPORT OF THE COMMISSION ON RECONSIDERATION
BY THE COMMISSION:
In the report on reconsideration herein, 41 M. C. C. 127, following a prior report by division 5, 30 M. C. C. 807, we found that the public convenience and necessity require operation by applicant, Bell Motor Freight, Inc., of Kalamazoo, Mich., as a motor common carrier of paper, paper products, paper-manufacturing machinery and parts therefor, and paper-mill supplies, over irregular routes, between points in southwestern Michigan, on the one hand, and, on the other, those
· Bell Motor Freight, Inc., Common Carrier Application, 30 M. C. C. 807 and 41 M. C. C. 127, embracing this application as well as applicant's "grandfather" clause application, No. MC-45105, which was denied therein.
Michigan points on and west of U. S. Highway 27 from the Indiana-Michigan State line to Lansing, Mich., and on and south of U. S. Highway 16 from Lansing to Muskegon, Mich.