of our transportation." On the other hand, it appears that, on particularly large sales, 14 cents per mile has been used as a basis for figuring transportation cost. There is not a very definite showing as to the expenses actually incurred by applicant in the operation of his equipment. In arriving at the usual 17-cent per-mile basis, he consulted the records of several cement companies and obtained the opinions of two or three motor carriers as to what would constitute a compensatory charge. While he had no detailed figures as to his actual transportation costs, the 17-cent figure is confirmed in a general way by an exhibit showing that he incurred a total truck expense of $40,950.97 for 1939. This figure, divided by 235,720, the total miles operated during the same year, results in a cost figure of 17.4 cents per mile. The records used in arriving at the above transportation-cost figure were not available at the hearing, and applicant was unable to give detailed information concerning them. It cannot be ascertained, therefore, whether applicant realizes a profit on transportation operations as a whole. That he does not, at least in those instances where as above stated he charges as little as 14 cents per mile, appears clear, however.

2

Applicant asserts that his primary business is that of a dealer in building materials, mining supplies, and allied articles; that the motor-vehicle transportation which he performs is in furtherance of this commercial enterprise and a necessary incident thereto; that he does not hold himself out to engage in transportation for hire, but, on the contrary, has refused to transport articles unrelated to those in which he deals; that his charge for the transportation which he performs in delivering materials which he has sold is merely a recovery of transportation expenses; and that the transportation which he performs should not be construed as transportation for compensation.

Protestants contend, on the other hand, that applicant engages in an enterprise separate from his building-material business when delivering the materials sold under the arrangements above described; that such transportation is not that of a private carrier; and that the findings of the joint board, that the transportation service performed in connection with direct sales may not be performed without operating authority under part II of the act, is sound.

The issue of for-hire versus private carriage thus presented is one which has been considered by this Commission numerous times in various cases. Among the earliest was Carpenter Common Carrier Application, 2 M. C. C. 85. Carpenter, the owner of one small truck, was primarily engaged in the hauling of milk from farms on a par

2 The exhibit specifies as truck expenses salary, insurance, taxes, repairs, fuel and oil, tires, and depreciation.

ticular route to a creamery. His milk haul was, however, completed about 10:30 a. m. daily, and thereafter he occasionally hauled agricultural commodities and feed intrastate for farmers or coal interstate from two colleries in an adjacent State directly to consumers, principally farmers on his milk route. Upon receipt of an order for coal, he would proceed to the mine, purchase the coal with his own funds, transport it to destination, and deliver it to the customers for a fixed amount in excess of the cost at the mine. Notwithstanding his ownership of the coal while in transit and the other facts suggesting private carriage, it was found that in such operation he was “engaged primarily in the transportation of property" for compensation, and, since his transportation services were available to any who sought them, he was found to be a common carrier by motor vehicle.

This decision has been followed by many others, too numerous to cite. The controlling consideration in each was the primary business of the applicant. Whenever, as in the Carpenter case, it was apparent that the furnishing of transportation for compensation as distinguished from some bona fide merchandising or manufacturing enterprise was an applicant's real business, he was found to be a carrier for hire, regardless of the existence of some semblance of a trade enterprise. On the other hand, there is a substantial line of cases in which the applicants have been found to be primarily engaged in some business other than transportation to which the transportation performed was bona fide incidental. See, for example, CongoleumNairn, Inc., Contract Carrier Application, 2 M. C. C. 237; Hourigan Contract Carrier Application, 11 M. C. C. 455; Swanson Contract Carrier Application, 12 M. C. C. 516; Spanhake Common Carrier Application, 21 M. C. C. 258; Youngson Common Carrier Application, 21 M. C. C. 625; Rossmiller Extension-South Sioux City, Nebr., 22 M. C. C. 781, and Dugan Extension of Operations-Nebraska Points, 26 M. C. C. 233. The Swanson case well illustrates the application of the principle of these cases. Swanson operated a warehouse at Wichita, Kans., where he dealt in mill feeds, seeds, and livestock. He was also the agent for a molasses livestock feed manufactured by Tarkio Molasses Feed Company, and, as such, sold and distributed that product in a defined territory. He owned two trucks in which he transported his own livestock and that of others from Wichita and vicinity to Kansas City, Mo., and his own mill feeds and Tarkio products on return. Concerning this transportation of feeds and Tarkio products, the Commission, division 5, said, beginning at page 518:

All of the described feeds are sold principally from applicant's warehouse. Purchasers often transport a supply from the warehouse in their own vehicles. In some instances applicant makes delivery to the customer, from the warehouse, of his own feeds or of Tarkio company products. In delivering his own

feeds applicant includes in the selling price a charge for the transportation service rendered by him from the warehouse to the point of delivery and also an allowance for transportation to the warehouse. In handling Tarkio Company products in his capacity as agent, it appears, applicant receives a commission on all such products sold by him at the warehouse or in his sales territory; in some instances he makes delivery thereof from the warehouse, including in the delivered price a transportation charge equal to the rail rate from Kansas City to Wichita, plus a charge for delivery by him from the warehouse to the customer; and occasionally he delivers an order for a truckload direct from Kansas City to a customer in Kansas, including in the delivered price a transportation charge equal to the rail rate from Kansas City to the rail point nearest the purchaser, plus one cent per 100 pounds for each 10 miles from such rail point to the place of delivery.

*

On present evidence, it appears that the operations of applicant in transporting his own feeds and Tarkio products from Kansas City to his Wichita warehouse and other points in Kansas are those of a private carrier. When carrying feeds purchased by him in Kansas City to his warehouse in Wichita or from that warehouse to customers in Kansas, it is plain, he is carrying his own property in private carriage, regardless of whether his selling price of such feeds includes charges for transportation. D. L. Wartena, Inc., Common Carrier Application, 4 M. C. C. 619. It seems clear also that, when transporting Tarkio Company products from Kansas City to this warehouse or directly to purchasers at other points in Kansas, he is engaging in the transportation of property of which he is a bailee, for the purpose of sale and in the furtherance of a commercial enterprise. The fact that a charge for transportation is included in the selling price of these products is not controlling of the status of such operations. All of applicant's operations in carrying Tarkio Company products and his own feeds are incidental to his principal business as a feed dealer and are not engaged in as a separate and distinct undertaking. In this connection, applicant testified that his operations for the transportation of feeds are an integral part of his feed business and are necessary in order to operate successfully that business as a whole. We conclude, therefore, that all these operations are those of a private carrier. [Emphasis added.]

Thus, we have a line of cases wherein persons engaged primarily in the supplying of transportation for compensation and with a purpose to profit from the transportation charge have been found to be carriers for hire, notwithstanding that each was the owner of the goods transported while in transit and was transporting them for the purpose of sale and perhaps also had some other of the characteristics of a merchandiser. On the other hand, we have a line of cases in which persons who are primarily engaged in some manufacturing or merchandising undertaking have been found not to be carriers for hire, though as an incident to their primary business, and without a purpose to profit therefrom, they perform certain transportation for which they received compensation which is identifiable as compensation for transportation and in some instances included a measure of profit. In other words, the finding for or against a carrier-forhire status in each such case has turned upon the sole question of fact

as to the primary business of the transporter. Recently, however, our resort of this ultimate test has been questioned, and we take this occasion to reexamine the entire question.

Section 203 (a) defines common, contract, and private carriers, as follows:

(14) The term "common carrier by motor vehicle" means any person which holds itself out to the general public to engage in the transportation by motor vehicle in interstate or foreign commerce of passengers or property or any class or classes thereof for compensation, whether over regular or irregular routes, except transportation by motor vehicle by an express company to the extent that such transportation has heretofore been subject to part I, to which extent such transportation shall continue to be considered to be and shall be regulated as transportation subject to part I.

(15) The term "contract carrier by motor vehicle" means any person which, under individual contracts or agreements, engages in the transportation (other than transportation referred to in paragraph (14) and the exception therein) by motor vehicle of passengers or property in interstate or foreign commerce for compensation.

(17) The term "private carrier of property by motor vehicle" means any person not included in the terms "common carrier by motor vehicle" or "contract carrier by motor vehicle", who or which transports in interstate or foreign commerce by motor vehicle property of which such person is the owner, lessee, or bailee, when such transportation is for the purpose of sale, lease, rent, or bailment, or in furtherance of any commercial enterprise.

It will be noted that in arrangement the private-carrier definition follows the definitions of common and contract carriers, and that it specifically excludes from the private-carrier class those who come within either the common- or the contract-carrier definition. From this it is urged by those who question the "primary business" test that any factual situation be considered in the exact order in which the definitions are set up in the statute. That is to say, before applicant's operations, of the type here considered, may be found to be those of a private carrier, as above defined, it is said that we must first determine that such operations are not those either of a common or of a contract carrier. More specifically, it is said that, before we can properly consider whether particular transportation is being performed by the "owner, lessee, or bailee", of the thing transported or "for the purpose of sale, lease, rent, or bailment, or in the furtherance of any commercial enterprise" of the transporter within the meaning of the private-carrier definition, we must first determine whether the considered transportation is performed "for compensation" identifiable as compensation for transportation, within the meaning of either the common- or contract-carrier definition, and, if it is found that such transportation is performed for compensation in any form which is capable of identification as compensation for transportation as

transportation, then we must find that such transportation is either common or contract carriage without considering at all the privatecarrier definition. It is reasoned that the private-carrier definition creates a condition precedent to the determination that any given kind of transportation is private carriage, namely, a finding that the transportation in question is not common or contract carriage. Following up the same thought, it is said that transportation for compensation is involved whenever the difference between the cost of the article at point of origin and the selling price at destination varies in direct proportion to the distance such article is transported.

Though they have been carefully considered, we are unable completely to accept these views. The act, of which the quoted definitions are a part, was designed to regulate a large number of for-hire carriers and to exempt from regulation, except in minor respects, all private carriers. Consistently with this purpose, definitions of private carriers almost necessarily exclude those included within the common- or contract-carrier definitions, and, this being true, we must, of course, determine that a particular operator is not a common or contract carrier before it can be concluded that he is a private carrier, but this does not mean that possibility of his being a private carrier may not be considered prior to a finding that he is not either a common or contract carrier. If such was the case, the private-carrier definition would be largely useless, for, before it could be applied as to any particular operator, such operator would already have been determined not to be among those intended to be regulated, and the need for any further inquiry as to his status would have passed.

As a practical matter, one applying the three definitions must, of course, start with one of them, and both the arrangement and the substance suggest that both the definitions of common and contract carriers be considered before the private-carrier definition is reached, but clearly the conclusion to be reached cannot be based purely on a mechanical or numerical basis. To do so would, it seems to us, completely ignore the fundamental rule of statutory construction that the act be construed as a whole, that each part, including every definition, be construed with every other part, including all other definitions, in mind. We agree that the common- and contract-carrier definitions must be considered first but not that a conclusion as to their application must be reached before the private-carrier definition can even be considered.

The important attributes of common carriage under section 203 (a) (14) of the act are (1) a holding out to the general public to engage in transportation by motor vehicle, (2) of property or any class or classes thereof, (3) for compensation. Those of a contract carrier under section 203 (a) (15) are (1) operations under individual con