in southwestern Ohio, and those in Ohio and Kentucky within 10 miles of Cincinnati, Ohio. On February 1, 1943, upon applicant's petition, we reopened the proceeding for reconsideration solely to determine whether the public convenience and necessity require operation by applicant to and from Indiana points on and east of U. S. Highway 31 in the transportation of the commodities described above, and vacated and set aside the prior order therein denying the application in part. The facts in respect of applicant's operations are set forth in the prior reports, and will not be restated here except as they relate to operations to and from Indiana points on and east of U. S. Highway 31.

The evidence relative to need for applicant's service in the transportation of the commodities involved to and from Indiana consists of the testimony of one witness, who is interested in service between Michigan and Indiana, and documentary evidence of traffic transported in the past, such past operations having been conducted under authority of applicant's then pending "grandfather" application. An examination of this documentary evidence reveals that applicant's service between southwestern Michigan and eastern Indiana received considerable patronage from the public. A substantial volume of traffic has been transported regularly since 1936 south-bound from Allegan, Kalamazoo, Plainville, Three Rivers, Watervliet, and White Pigeon, Mich., to Angola, Auburn, Berne, Connersville, Decatur, Fort Wayne, Indianapolis, Kendallville, Lagrange, Lynn, Portland, Richmond, South Bend, Union City, and Winchester, Ind. The movement northbound has not been as heavy as that south-bound, but a moderate volume of traffic nevertheless has been handled from Anderson, Decatur, and Fort Wayne, Ind., to Kalamazoo, Otsego, and White Pigeon, Mich. The Indiana points served are located on and east of U. S. Highway 31 and on and north of U. S. Highway 52. The Michigan points served lie within the territory in that State described in the findings in the report on reconsideration, 41 M. C. C. 127. The evidence in our opinion establishes a need for service by applicant between the Michigan and Indiana territories so described.

The record contains documentary evidence of movement by applicant of three shipments in 1937, six in 1938, and three in the first half of 1939 from Cincinnati, Dayton, and Middletown, Ohio, to Auburn, Elkhart, Fort Wayne, Muncie, Richmond, and South Bend, Ind. This evidence, standing alone, fails to establish any need for applicant's

Ohio points on and north of a line extending from Cincinnati, Ohio, along U. S. Highway 42, Ohio Highway 142, and U. S. Highway 40 to Columbus, Ohio, and on, west, and south of a line extending thence along U. S. Highway 33 to Wapakoneta, Ohio, U. S. Highway 25 to Lima, Ohio, and U. S. Highways 30S and 30 to the OhioIndiana State line.

42 M. C. C.

service from Ohio to Indiana points, and there is no testimony by any shipper of a need for such service.

On reconsideration, we find that the present and future public convenience and necessity require operation by applicant as a common carrier by motor vehicle, in interstate or foreign commerce, of paper, paper products, paper-manufacturing machinery and parts therefor, and paper-mill supplies between points in Michigan on and west of U. S. Highway 27 from the Michigan-Indiana State line to Lansing, Mich., and on and south of U. S. Highway 16 from Lansing to Muskegon, Mich., on the one hand, and, on the other, points in Indiana on and east of U. S. Highway 31 from the Michigan-Indiana State line to Indianapolis and on and north of U. S. Highway 52 from Indianapolis to the Ohio-Indiana State line, in addition to the authority granted in report on reconsideration of September 9, 1942; that applicant is fit, willing, and able properly to perform such service and to conform to the requirements of the Interstate Commerce Act and our rules and regulations thereunder; that an appropriate certificate should be granted; and that the application, as reopened on February 1, 1943, should in all other respects be denied.

Upon compliance by applicant with the requirements of sections 215 and 217 of the act, and with our rules and regulations thereunder, an appropriate certificate will be issued. An appropriate order will be entered.

42 M. C. C.

No. MC-9914

WARREN TRUCKING CO., INC., COMMON CARRIER APPLICATION

Decided April 13, 1943

1. On reconsideration, findings in prior report, 34 M. C. C. 372, modified. Applicant found entitled to a "grandfather" certificate as a common carrier by motor vehicle, over irregular routes, of (1) new furniture, from Martinsville, Va., to described points in Delaware, the District of Columbia, Maryland, New Jersey, New York, North Carolina, Ohio, Pennsylvania, and West Virginia, and (2) general commodities, with exceptions, from defined areas in New York, Pennsylvania, and Maryland to defined areas in Virginia and North Carolina.

2. Public convenience and necessity found to require operation by applicant as a common carrier by motor vehicle of furniture materials, from Williamsport, Pa., to defined areas in Virginia and North Carolina, over irregular routes.

3. Issuance of a certificate approved upon compliance by applicant with certain conditions, and application in all other respects denied.

Appearances as shown in prior report.

REPORT OF THE COMMISSION ON RECONSIDERATION

BY THE COMMISSION:

By application, under the "grandfather" clause of section 206 (a) of the Interstate Commerce Act, filed February 8, 1936, as amended at the hearing, Warren Trucking Co., Inc., of Martinsville, Va., seeks a certificate of public convenience and necessity authorizing continuance of operations, in interstate or foreign commerce, as a common carrier by motor vehicle of general commodities, between Martinsville and points within 100 miles thereof, on the one hand, and, on the other, points in Delaware, Maryland, New Jersey, New York, North Carolina, South Carolina, Ohio, Pennsylvania, Virginia, and the District of Columbia, over irregular routes. Rail carriers in official- and southern-classification territories and certain motor carriers oppose the application.

In the prior report herein, 34 M. C. C. 372, division 5 found applicant entitled to a "grandfather" certificate authorizing continuance of

1 Substitution of Warren Trucking Co., Inc. (a public service corporation), as applicant in lieu of the predecessor, Warren Trucking Company, Inc. (a private corporation), was approved on December 14, 1940, in No. MC-FC-14307. Unless otherwise specified, the term "applicant" will be used herein to refer to both corporations according to the time indicated by the context.

operation as a common carrier by motor vehicle, over irregular routes, (1) of new furniture, from Martinsville, Va., to all points in Delaware, the District of Columbia, Maryland, New Jersey, North Carolina, Pennsylvania, West Virginia, that part of Ohio on and east of a line beginning at Portsmouth, Ohio, and extending along U. S. Highway 23 to Marion Ohio, and thence along Ohio Highway 4 to Sandusky, Ohio, and in that part of New York within the New York, N. Y., commercial zone, as defined in New York, N. Y., Commercial Zone, 1 M. C. C. 665, (2) of returned or rejected shipments of new furniture and of materials used in manufacture of new furniture, from points in the destination territory described above to Martinsville, and (3) of general commodities, with certain exceptions, from Baltimore, Md., and points within 5 miles of Baltimore, to Martinsville and points within 20 miles of Martinsville. An order was entered denying the application in all other respects. Subsequently, applicant filed a petition for reconsideration, and protestant rail carriers replied thereto. Upon consideration of the record and applicant's petition, we reopened the proceeding for reconsideration on the present record, and vacated and set aside the order insofar as it denied the application.

In its petition, applicant seeks reconsideration only in respect of its in-bound operations and that portion of its out-bound operations relating to the transportation of new furniture to Ozone Park and Hempstead, N. Y. Applicant contends that it is entitled to authority to transport general commodities in lieu of "materials used in the manufacture of new furniture," hereinafter called furniture materials, from points in the nine destination States, as described under (1) in the preceding paragraph, to Martinsville and points within 20 miles thereof. The evidence of record is stated adequately in the prior report and will be restated herein only to the extent necessary to dispose of the issues presented by applicant's petition.

Apropos of the issue respecting out-bound operations, the prior report contains the following statement: "As to New York, it appears that service has not been extended beyond New York City and points in the immediate vicinity thereof." Pursuant to this statement, applicant was found entitled to transport new furniture from Martinsville to all points in that part of New York within the New York commercial zone, as defined in New York, N. Y., Commercial Zone, supra. This zone includes Ozone Park but does not include Hempstead, a point 5 miles beyond the zone in Nassau County, N. Y. Considering the territorial nature of this transportation service, we believe that the previously authorized destination area in New York should be broadened somewhat to include all points in Nassau County. The other portions of the destination territory authorized for the transportation of new furniture in the prior report are not questioned by appli

cant or by protestants in their reply to applicant's petition, and we affirm the prior findings in this respect.

The issues involved in the in-bound operations are not so simple. The questions to be determined are (1) applicant's status as to commodities and (2) the geographical scope of its operations. In the prior report, applicant was found to be a motor common carrier of furniture materials from points in nine States to Martinsville and also of general commodities from Baltimore and points within 5 miles of Baltimore, to Martinsville and points within 20 miles of Martinsville. The finding in respect of furniture materials was based largely on applicant's holding out to transport these commodities on return trips to Martinsville from points where out-bound shipments of furniture were delivered. The other finding in respect of general commodities was based principally on evidence of the actual transportation of a variety of commodities from the Baltimore area to the Martinsville area. We shall reexamine both findings in the light of the principles announced by the United States Supreme Court in United States v. Carolina Freight Carriers Corp., 315 U. S. 475.

There, the Court laid down the following principles for our guidance in the determination of an applicant's "grand father" rights under section 206 (a) of the act:

The questions are whether his service within the territory in question was sufficiently regular and whether his coverage of commodities was sufficiently representative to support a finding that he was in "bona fide operation" as a "common carrier" of the group of commodities or of the class or classes of property during the periods in question.

In discussing an applicant's coverage of commodities, the Court pointed out that "he may have been a common carrier of a large group of general commodities or of an entire class of property both before and after the critical date though the specific commodities carried varied considerably." The Court also pointed out that "an applicant's status may vary from one part of the territory to another or be different in northbound shipments than in southbound shipments." Thus, in the prior report herein, the division found that applicant's status was different in north-bound shipments than in south-bound shipments and, furthermore, that, in respect of the latter shipments, its status also was different in one part of the territory (the Baltimore area) than in the rest of the territory. Applicant does not question the difference between north-bound and south-bound shipments but only the subdivision in respect of the latter shipments.

In its petition, applicant lists approximately 75 separate commodities as having been transported prior and subsequent to June 1, 1935, in its in-bound operations, which operations chiefly comprise south-bound as distinguished from north-bound shipments.