business. In so doing, we shall, of course, give appropriate consideration to the fact, when shown, that an operator receives compensation for transportation performed identifiable as such, but we do not think that such fact alone should be allowed to control our decisions. Neither does it follow that an operator having a bona fide business other than transportation may not also be a carrier for hire if it appears that any transportation which he performs is not primarily in furtherance of his noncarrier interest but rather is performed with a purpose to profit from the transportation as such. In short, each case must be determined upon its own particular facts, and neither the receipt of compensation for transportation identifiable as such nor the existing of some noncarrier business to which the transportation may be incidental is alone conclusive.

In the instant case, the facts already recited are sufficient, in our opinion, to establish that applicant is primarily engaged in a bona fide noncarrier business and that the transportation which he performs in connection with his so-called "direct sales" is performed solely as an incident of, and in furtherance of, such noncarrier business without any purpose to profit from the transportation as such, and that, accordingly, applicant has not been shown to be either a common or contract carrier for hire within the meaning of section 203 (a) (14) or (15). The following facts appear to us to be particularly significant: Applicant has been in business for 12 years, during most of which period he conducted no important motor-carrier operations. He has storage facilities at three separated points. Approximately 60 percent of his gross incomes comes from other than direct sales. His transportation charge, when transportation is furnished, is based on his actual cost experience without any profit added. On large orders, his transportation charge may be substantially below his anticipated cost.

In addition to the transportation performed in connection with his direct sales, applicant, as above indicated, transports some of his supplies of stock from out of State points to his yard at Las Vegas and also makes deliveries from his yard to points in Nevada of goods which have come to rest there. Most of the supplies purchased by applicant for his stock move to Las Vegas by rail or motor commoncarrier. Only infrequently does he use his own equipment in this manner. All such supplies as are transported in his own equipment are purchased f. o. b. the supply point, and applicant bears the cost of transportation. It is clear that such transportation under the tests already discussed is private carriage.

About 60 percent of applicant's gross revenue is realized from sales made from his yard to mines, construction jobs, and the like. Such

sales generally are in small lots and are made on the basis of yard selling price plus transportation. The customer must either pay a carrier of his own selection or applicant for the transportation service. These yard sales, however, are made entirely to purchasers at points in Nevada, and the record contains nothing to indicate that interstate transportation is involved. This phase of applicant's operations need not be further considered.

Upon all the facts of record, we find that applicant is not now operating, and that he does not propose to operate, as either a common or contract carrier by motor vehicle as defined in the act, and that the considered application should be dismissed.

An appropriate order will be entered.

COMMISSIONER PATTERSON concurs.

42 M. C. C.

No. MC-6554 (SUB-NO. 4)

DIXIE FREIGHT LINES, INC., EXTENSION OF OPERATIONS-DELIVERY AREAS

Decided April 13, 1943

On reconsideration, findings in prior report, 41 M. C. C. 843, modified. Public convenience and necessity found to require operation by applicant as a common carrier by motor vehicle of general commodities, with certain exceptions, from and to Fort McClellan, Ala., as an off-route point in connection with operations over authorized regular routes. Issuance of a certificate approved upon compliance by applicant with certain conditions. Appearances shown in prior report.

REPORT OF THE COMMISSION ON RECONSIDERATION

BY THE COMMISSION:

In the prior report herein, 41 M. C. C. 843, decided September 10, 1942, division 5 found that the present and future public convenience and necessity required operation by applicant, Dixie Freight Lines, Inc., of Atlanta, Ga., as a common carrier by motor vehicle, in interstate or foreign commerce, of general commodities, except those of unusual value, livestock, dangerous explosives, commodities in bulk, commodities requiring special equipment and household goods as defined in Practices of Motor Common Carriers of Household Goods, 17 M. C. C. 467, from and to Bessemer, Ala., and all points within 5 miles of Atlanta, Ga., Birmingham and Montgomery, Ala., and those within 2 miles of all intermediate and off-route points to which it had been previously granted operating authority; and that a certificate authorizing such operations should be granted.

On January 4, 1943, upon further consideration of the record and of applicant's petition for reconsideration, to which protestant replied, the proceeding was reopened for reconsideration on the record as made, solely to determine whether applicant should be authorized to serve Fort McClellan, an off-route point, which was considered not to be within the scope of the application.

The facts relating to the operations covered by the application and not included in the order reopening the proceeding are adequately stated in the prior report and will be repeated here only insofar as may be necessary for purposes of clarity.

In Dixie Freight Lines, Inc., Common Carrier Application, 24 M. C. C. 780, applicant was granted a certificate authorizing opera

tions, in interstate or foreign commerce, as a common carrier of general commodities, with certain exceptions, between Birmingham and Atlanta, through Anniston and Oxford, Ala., over U. S. Highway 78, serving all intermediate points, and between these points through Gadsden, Ala., and Rome, Ga., over U. S. Highways 11, 411, and 41, with a connecting route between Gadsden and Anniston, over U. S. Highway 241, serving all intermediate points.

Fort McClellan, hereinafter called the fort, is within a military reservation, the boundary of which parallels the corporate limits of Anniston for a distance of about 1,300 feet. It is necessary, however, for motor carriers, in providing service from and to the fort, to use an entrance which is 3.1 miles from the corporate limits of the city. Applicant, as indicated, originally sought authority to serve all points within 2 miles of all intermediate and off-route points to which it had been previously granted operating authority, which included Anniston. It asserts that it was under the impression that the fort was included within the scope of the application. Evidence with respect to the services of both applicant and protestant from and to the fort was developed at the hearing without objection. The record does not indicate that protestant or any other motor carrier would be unduly prejudiced to any extent by considering the application as amended to include the fort, as an off-route point, and the scope of the issues would not be, thereby, unduly broadened.

Applicant submitted specific evidence with respect to service from and to the fort in connection with its "grandfather" application, and at the hearing herein submitted several freight bills covering shipments of canned goods, inner tubes, sheet steel, and storage batteries that were delivered to the fort between September 1935 and June 1936, as representative of the service performed. A number of additional freight bills covering shipments of various commodities delivered to the same point during the latter part of 1935 and 1936 was also submitted in evidence, but applicant was not certain whether it performed the entire service or whether the shipments were delivered at Anniston to a connecting carrier. Applicant's president and a former traffic manager testified that applicant has served the fort since prior to June 1, 1935. Anniston is one of the more important points served by applicant and is the nearest point of any consequence to the fort, which is now an important military center.

Protestant contends that adequate common-carrier facilities are now available from and to the fort, and that, if applicant is granted the proposed authority, it would adversely affect existing transportation facilities. The record does not show that the protestant would be harmed to any appreciable extent by the granting of the authority sought. Applicant is not, in fact, a new competitor, as it has been per

forming this service for a number of years. In considering the record as a whole, we conclude there is a need for continuance of applicant's service and that it should be granted the additional authority to serve the fort in connection with its present authorized operations.

On reconsideration, we find that the present and future public convenience and necessity require operation, in interstate or foreign commerce, by applicant as a common carrier by motor vehicle of general commodities, except those of unusual value, livestock, dangerous explosives, commodities in bulk, commodities requiring special equipment, and household goods as defined in Practices of Motor Common Carriers of Household Goods, supra, from and to Fort McClellan, Ala., as an off-route point in connection with present authorized regularroute operations; 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; and that a certificate authorizing such operations should be granted.

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.

42 M. C. C.