No. MC-18975 1 EASTERN TRAILS, INC., COMMON CARRIER Submitted October 31, 1942. Decided March 4, 1943 1. Upon further hearing, Eastern Trails, Inc., applicant in Nos. MC-18975 and MC-18975 (Sub-No. 1), found entitled to continue operation as a common carrier by motor vehicle, of passengers and their baggage, and of express and newspapers in the same vehicle with passengers, over regular routes, between New York, N. Y., and Washington, D. C., and between Baltimore and Emmitsburg, Md., serving all intermediate points, with certain restrictions, by reason of its predecessors' having been engaged in said operation on June 1, 1935, and said predecessors' and applicant's having been so engaged continuously since. 2. Upon further hearing in No. MC-39957 (Sub-No. 5), Northern Trails, Inc., as a partial successor in interest to applicant in No. MC-18975, found entitled to continue operation as a common carrier by motor vehicle, in interstate or foreign commerce, of passengers and their baggage, and of express and newspapers in the same vehicle with passengers, over a regular route, between Philadelphia and Pittsburgh, Pa., serving all intermediate points, by reason of its predecessors' having been engaged in such operation on June 1, 1935, and said predecessors' and applicant's having been so engaged continuously since. 3. Issuance of certificates approved upon compliance by applicants with certain conditions, and applications in all other respects denied. Embraced in prior reports in 4 M. C. C. 547 and 32 M. C. C. 189. R. Granville Curry and Frederick M. Dolan for applicant. H. S. Maxwell, James W. Oram, A. S. Knowlton, Leland Taliaferro, Henry P. Goldstein, George M. Eichler, and E. T. O'Connor for protestants. SECOND REPORT OF THE COMMISSION ON FURTHER HEARING DIVISION 5, COMMISSIONERS MAHAFFIE, ROGERS, AND PATTERSON BY DIVISION 5: Exceptions were filed by Eastern Trails, Inc., and Northern Trails, Inc., to the order on further hearing recommended by the examiner, 1 This report also embraces No. MC-18975 (Sub-No. 1), Eastern Trails, Inc., Common Carrier Application, (which are the number and name assigned to application No. MC18976, Nevin Transit, Inc., Common Carrier Application, after the merger of Nevin Transit, Inc., with Nevin Midland Lines, pursuant to No. MC-F-617, and the change in name of Nevin Midland Lines to Eastern Trails, Inc.); and No. MC-39957 (Sub-No. 5), Northern Trails, Inc., Common Carrier Application (which are the number and name assigned to the rights acquired by purchase by Northern Trails, Inc., from Eastern Trails, Inc., under No. MC-18975, pursuant to No. MC-F-1017). and DeCamp Interstate Transit Co., a motor-carrier protestant, replied. Our conclusions differ slightly from those recommended. In the prior report on further hearing herein, 32 M. C. C. 189, the Commission, division 5, found that Northern Trails, Inc., applicant in No. MC-39957 (Sub-No. 5), and successor in interest to Eastern Trails, Inc., as to that portion of application No. MC-18975 involving operations between Philadelphia and Pittsburgh, Pa., had failed to establish that its predecessors were on June 1, 1935, and that it or its predecessors have been continuously since, in bona fide operation as a common carrier by motor vehicle, in interstate or foreign commerce, of passengers and their baggage, and of express and newspapers in the same vehicle with passengers, between Philadelphia and Pittsburgh, over the regular route specified in appendix A hereto, and that the application should be denied. It further found that Safeway Trails, Inc., which was shown as the successor in interest to all rights claimed by Eastern Trails, Inc., in Nos. MC-18975 and MC-18975 (Sub-No. 1), other than those acquired by Northern Trails, Inc., was entitled to continue operation as a common carrier by motor vehicle, in interstate or foreign commerce, of passengers and their baggage, and of express and newspapers in the same vehicle with passengers, over a regular route between Baltimore and Emmitsburg, Md., with service at all intermediate points, but that it had failed to establish its right to a certificate to continue similar operations over regular routes between New York, N. Y., and Washington, D. C. These denials were based upon the conclusion that there had been an interruption in service by applicants' predecessors during the period from December 31, 1935, to February 7, 1936, which interruption had been within the control of the predecessors, and that they had therefore failed to establish any continuity of operation over any of the routes involved in the applications, other than that between Baltimore and Emmitsburg. Upon petition of applicants, the applications were, on May 25, 1942, reopened for further hearing for the purpose of determining the extent of operations, if any, conducted by applicants or their predecessors during the period from December 31, 1935, to February 7, 1936, both inclusive, and the prior order of January 31, 1942, denying the applications in part, was vacated and set aside. The facts with respect to the purchase and mergers of operating rights to which applicants are successors in interest and the routes over which their operations extend are fully set forth in the prior report on further hearing herein and need be repeated here only to the extent necessary for clarity of discussion. It should be pointed out, however, that, contrary to the statements contained in such prior report, the merger in Safeway Trails, Inc., of Washington, D. C., of the properties and all of the operating rights of Eastern Trails, Inc., except those acquired by Northern Trails, Inc., as approved in No. MC-F-1018, has not in fact been consummated. Therefore, Eastern Trails, Inc., is still the proper party in interest claiming those rights remaining in applications Nos. MC-18975 and MC-18975 (Sub-No. 1). The examiner, in his report and recommended order on further hearing, found (1) in No. MC-18975, that the predecessors of Eastern Trails, Inc., were on June 1, 1935, and that such predecessors and Eastern Trails, Inc., successively have been, in bona fide operation as a common carrier by motor vehicle, in interstate or foreign commerce, of passengers and their baggage, and of express, mail, and newspapers in the same vehicle with passengers, between New York and Washington and between Baltimore and Emmitsburg over the regular routes specified in appendix A hereto, including service at all intermediate points, with certain restrictions specified in appendix A; (2) in No. MC-18975 (Sub-No. 1), that the predecessor of Eastern Trails, Inc., was, on June 1, 1935, and that such predecessor and Eastern Trails, Inc., successively since have been, in bona fide operation as a common carrier by motor vehicle, in interstate or foreign commerce, of passengers and their baggage, and of express, mail, and newspapers in the same vehicle with passengers, between New York and Philadelphia, over the regular routes specified in appendix A hereto, including service at all intermediate points, with the restrictions specified in appendix A; (3) in No. MC-39957 (Sub-No. 5), that Nevin Midland Lines was on June 1, 1935, and that such carrier, Eastern Trails, Inc., and Northland Trails, Inc., successively since have been in bona fide operation as a common carrier by motor vehicle, in interstate or foreign commerce of passengers and their baggage, and of express, mail, and newspapers in the same vehicle with passengers, between Philadelphia and Pittsburgh, over the regular route specified in appendix A hereto, including service at all intermediate points; and (4) that Eastern Trails, Inc., and Northland Trails, Inc., were entitled to the issuance of certificates authorizing the continuance of the described operations. The examiner recommended that, except to the extent indicated, the applications should be denied. On exceptions, Northern Trails, Inc., calls attention to what it assumes is a typographical error contained in the examiner's report and order wherein it, as applicant in No. MC-39957 (Sub-No. 5), is referred to in the findings, the appendix, and the order as "Northland Trails, Inc.," instead of "Northern Trails, Inc." Eastern Trails, Inc., refers to certain errors contained in the description of the routes over which the examiner recommended that it be authorized to conduct its operations. It asserts that, inasmuch as one of the routes between New York City and Philadelphia acquired from Nevin Transit, Inc., in No. MC-18975 (Sub-No. 1) has always extended over U. S. Highway 13 from Trenton, N. J., to Philadelphia, and since New Jersey Highway 27 obviously does not extend beyond New Jersey, it apparently was the examiner's intention to describe the route between New Brunswick, N. J., and Philadelphia as extending over New Jersey Highway 27 to Trenton, thence over U. S. Highway 13 to Philadelphia instead of over New Jersey Highway 27 from New Brunswick to Philadelphia, as it was specified in the appendix to the examiner's report. Eastern Trails, Inc., also alleges that the examiner erred in failing to authorize it, in No. MC-18975 (Sub-No. 1), to conduct operations over U. S. Highway 130 between Trenton and Camden, N. J., and alleges that there is no justification under the Interstate Commerce Act for imposing the restriction recommended by the examiner, which would prevent it from handling so-called local traffic moving solely between New York City, on the one hand, and Newark or points intermediate to New York City and Newark, on the other; and that to impose such restriction would be error of law and would result in unjust and discriminatory treatment of applicant, as compared with other carriers dealt with in administering the applicable provisions of the act. On reply, protestant contends that applicant has failed to establish that it has been engaged in rendering a commuter or mass transportation service between New York City and Newark, or points intermediate thereto, and that it has never undertaken to afford such service between such points. It therefore asks that the restriction recommended by the examiner be imposed on the operations of Eastern Trails, Inc. Consideration has been given to the entire records as made in the proceedings. The facts stated in the report upon which the examiner based his recommended findings, and to which no exceptions were filed, need not be restated, and we adopt the findings of the examiner except as modified herein. Our discussion will be confined generally to the matters to which the exceptions are directed. The record in No. MC-39957 (Sub-No. 5) shows that the correct name of applicant therein is "Northern Trails, Inc.;" the use of the name "Northland Trails, Inc.," was merely a typographical error occurring in the preparation of the report. The evidence in No. MC-18975 (Sub-No. 1) establishes that the operations of Eastern Trails, Inc., and its predecessors have since prior to June 1, 1935, included service between New Brunswick and Philadelphia over the route referred to by Eastern Trails, Inc., and between Trenton and Camden over two routes east of the Delaware River. One route extends along U. S. Highway 206 from Trenton to the junction of U. S. Highway 130, thence over U. S. Highway 130 to Camden. The other route, which is described in detail in appendix B hereto, extends from the junction of U. S. Highways 206 and 130 generally over unnumbered New Jersey highways, city streets, and a highway known as the River Road, through Bordentown, Fieldsboro, Roebling, Florence, Delanco, Delair, and certain other New Jersey points, to Camden. Eastern Trails, Inc., is therefore entitled to the issuance of authority to continue operations over such routes. In support of its request that the restriction against transporting "local traffic" between New York City and Newark and points intermediate thereto be not imposed, Eastern Trails, Inc., asserts that it and its predecessors have always rendered such service; that its tariffs have always quoted fares covering local service between such points; and that its schedules have, since prior to June 1, 1935, provided for the furnishing of local traffic between New York City and Newark. It also contends that it is immaterial whether it did or did not put on schedules or operate busses in the local service described, in addition to rendering service directly connected with its longdistance operations, since such a freezing of schedules and limitations on equipment would be directly contrary to the prohibition specified in section 208 of the act. Under section 208 (a) we are directed to specify in any certificate issued under section 206 or 207 of the act, among other things, "the service to be rendered," subject to the proviso that we cannot restrict the right of a carrier "to add to his or its equipment and facilities as the development of the business and the demands of the public shall require." In other words, we have the power and duty to specify in any certificate the service to be rendered, except that we may not attach maximum limitations to the quantity of the service to be furnished. The restriction recommended by the examiner which would prevent applicant from affording "local service" between Newark and New York City is solely a limitation on the service which Eastern Trails, Inc., may render, and places no restriction on the quantity of service to be furnished. Such construction is in line with numerous other decisions in which we have expressly recognized our power under the act to impose limitations similar to those recommended by the examiner. See Yellow Cab Transit Co. Extension-Muskogee, Okla., 29 M. C. C. 651, and Nudelman Common Carrier Application, 28 M. C. C. 91. We conclude, therefore, that a limitation on intermediate point service such as that recommended by the examiner would not be contrary to the prohibition |