if there were such a holding out, he would have transported additional commodities. Clearly, therefore, since the service actually rendered during the critical period and up to 1939 was definitely limited to a few commodities, the claim of holding out or willingness to carry a larger class of commodities may be disregarded. We are of the opinion that applicant's service, on the statutory date, from St. Louis was one for the transportation of the described special commodities, and that, in these operations, the Oklahoma points served were sufficiently representative, as shown in appendix B hereto, to warrant a grant of authority to serve all points in Oklahoma.

FINDINGS

Upon further hearing, we find that applicant was on July 1, 1935, and continuously since has been, engaged in operation as a common carrier by motor vehicle, in interstate or foreign commerce (1) of general commodities, except articles of unusual value, commodities in bulk, commodities requiring special equipment, dangerous explosives, and household goods as defined in Practices of Motor Common Carriers of Household Goods, 17 M. C. C. 467, from Oklahoma City, Okla., to St. Louis, Mo., and Chicago, Ill., and from Chicago to all points in Oklahoma, (2) of carbide from Keokuk, Iowa, to all points in Oklahoma, (3) of glass containers from Ada, Okla., to St. Louis, Mo., (4) of petroleum products, in containers, from Ponca City and Muskogee, Okla., to Chicago and Peoria, Ill., (5) of canned foods from points in that portion of Illinois on and north of U. S. Highway 150 and on and east of Illinois Highway 78 except Chicago to all points in Oklahoma, and (6) of jar rings, candy, dates, preserves, jelly, sandwich spreads, condiments, olives, and extracts from St. Louis to all points in Oklahoma, over irregular routes, through Kansas when necessary; that a certificate of public convenience and necessity authorizing continuance of such operations should be issued 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.

An order denying the application, except to the extent granted herein, will be entered.

COMMISSIONER LEE was necessarily absent and did not participate.

42 M. C. C.

APPENDIX A

No. MC-70380-Number of shipments from Chicago to Oklahoma points

Oklahoma points served from Chicago after but not before June 1, 1935, and numbers of shipments: Ada, 14; Bartlesville, 1; Blackwell, 3; Durant, 9; Fort Sill, 1; Guthrie, 1; Hobart, 1; Okmulgee, 8; Healdton, 3; Hugo, 10; Miami, 1; and Wewoka, 1; total, 53.

APPENDIX B

No. MC-70380.-Shipments of jar rings, candy, dates, preserves, jelly, sandwich spreads, condiments, olives, and extracts from St. Louis, Mo., to Oklahoma points (shipments after January 1938 are representative only)

Oklahoma points served from St. Louis after but not before June 1, 1935, in the transportation of the above-described commodities, together with numbers of shipments: Ardmore, 2; Chickasha, 2; Durant, 7; Fairview, 1; Fort Sill, 3; Holdenville, 6; Hugo, 3; Okemah, 7; Okmulgee, 2; Pauls Valley, 2; Pryor, 1; Sayre, 1; Shawnee, 32; Synder, 1; Wewoka, 2; Woodware, 1; and Woodward, 5; total, 78.

42 M. C. C.

APPENDIX C

Shipments of commodities other than those described in appendix B from St. Louis to Oklahoma points (shipments after January 1938 are representative only)

No. MC-207831

W. H. TOMPKINS COMPANY COMMON CARRIER
APPLICATION

Decided July 1, 1943

1. In No. MC-20783, applicant found entitled to continue operation as a common carrier by motor vehicle, of (1) general commodities, with certain exceptions, between Nashville, Tenn., and Atlanta, Ga., over a regular route, (2) special commodities from Murfreesboro, Tenn., to points in Georgia and a specified portion of Florida, over irregular routes, and return with returned or rejected shipments, and (3) special commodities from and to Nashville, on the one hand, and points in Georgia, North Carolina, South Carolina, and specified portions of Alabama and Florida, on the other, and return with returned or rejected shipments, over irregular routes.

2. In No. MC-20783 (Sub-No. 1), findings in prior report, 29 M. C. C. 359, affirmed.

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

Appearances as shown in prior report.

REPORT OF THE COMMISSION ON RECONSIDERATION

DIVISION 5, COMMISSIONERS LEE, ROGERS, AND PATTERSON

BY DIVISION 5:

By application in No. MC-20783, filed February 12, 1936, as amended, under the "grandfather" clauses of sections 206 (a) and 209 (a) of the Interstate Commerce Act, W. H. Tompkins Company, a corporation, of Nashville, Tenn., seeks a certificate of public convenience and necessity as a common carrier by motor vehicle or, in the alternative, a permit as a contract carrier by motor vehicle, authorizing continuance of operation, in interstate or foreign commerce, in the transportation of general commodities, with certain exceptions,2 (1) between Nashville and Atlanta, Ga., over U. S. Highway 41, serving all intermediate points and certain off-route points which, in view of our conclusions herein, need not be further described, and (2) between

1 This report also embraces No. MC-20783 (Sub-No. 1), W. H. Tompkins Company Extension of Operations-Seven States.

2 Exceptions are loose bulk commodities, livestock, dangerous explosives, currency, bullion, valuable jewelry, articles of virtu, commodities contaminating or injurious to other lading, and articles exceeding the limits of ordinary equipment and loading facilities.

42 M. C. C.

points in Alabama, Florida, Georgia, North Carolina, South Carolina, Tennessee, and Virginia over irregular routes.

In the prior report herein, 29 M. C. C. 359, decided May 29, 1941, in No. MC-20783, applicant was granted a certificate authorizing operations as a common carrier by motor vehicle in the transportation of general commodities, with certain exceptions, over the foregoing route between Nashville and Atlanta, serving no intermediate or off-route points, and special commodities over irregular routes as follows: (1) Packing-house and dairy products, eggs, and poultry from Nashville to points in Georgia, North Carolina, and South Carolina, those in Alabama on and east of U. S. Highway 31, and those in Florida on and north of Florida Highway 30, (2) dairy prdoucts, eggs, and poultry from Murfreesboro, Tenn., to points in Georgia and those in Florida on and north of Florida Highway 30, (3) cotton-factory products from points in Georgia, North Carolina, and South Carolina, and those in Alabama on and east of U. S. Highway 241 (from the Tennessee-Alabama State line to Phenix City, Ala.), to Nashville, (4) canned and fresh fruits and canned fruit juices from points in Florida on and north of Florida Highway 30 to Nashville, (5) coffee from Jacksonville, Fla., to Nashville, (6) granite from Elberton, Ga., to Nashville, and (7) sugar from Savannah and Port Wentworth, Ga., to Nashville. The application in all other respects was denied. On March 10, 1942, a certificate was issued to applicant covering the above-described operations. By order entered August 7, 1942, division 5 authorized the issuance of a certificate to Tompkins Motor Lines, Inc., successor to applicant, superseding the certificate of March 10, 1942. The prior report was entered before the Supreme Court decision in United States v. Carolina Freight Carriers Corp., 315 U. S. 475, was rendered. Applicant thereafter brought action in the United States Court for the Middle District of Tennessee, and the court order therein remanded our previous order because of insufficient findings. The Commission has vacated and set aside the prior order, upon its own motion, recognizing that findings in that report were insufficient, in the light of principles established by the Supreme Court in the Carolina opinion. Findings herein are intended to clearly state the basis of our conclusions and to conform to principles stated by the Court. The facts concerning the matters involved are fully set forth in the prior report and will be repeated only where necessary for clarity in discussion.

Although the vacated order included No. MC-20783 (Sub-No. 1), our prior findings in that proceeding are not questioned by any of the parties, and they are affirmed.

Our prior findings in No. MC-20783 are not questioned insofar as they (1) find applicant's operation to be that of a common carrier,