routes. The record establishes, however, that past operations at all times since prior to June 1, 1935, have been conducted over irregular routes. Continuously since 1935, Andrus has operated a coalyard at Barre under the name of Andrus Coal Company. Since his purchase of an interest in the described trucking business in the early part of 1937, he has on occasions, after making delivery of granite to points in New York and New Jersey, proceeded to points in Pennsylvania from which he has returned with coal. The record, though not too clear, suggests that upon the formation of the partnership of Belville and Andrus, in August 1938, the former also acquired an interest in the coal business and that the partnership equipment has since been used in a similar manner in the transportation of coal. The coal so transported is purchased at the mines and, though sometimes delivered directly to purchasers, is at other times stored in Andrus' yard for subsequent sale and delivery. On the whole, the record implies the conclusion that the described transportation of coal is private carriage. If, however, Belville has no interest in the coal business, then the partnership motor equipment cannot lawfully be used in for-hire transportation for Andrus individually without further authority from this Commission. We find that applicants, W. T. Belville and Allen Andrus, as copartners, and their predecessors, on June 1, 1935, were, and continuously since have been, in bona fide operation, in interstate or foreign commerce, as a common carrier by motor vehicle of granite, graniteworking tools and machinery, woolen cloth, wooden bobbins, and empty oil and grease containers, from Barre, Vt., and points within 25 miles thereof to points on Long Island, N. Y., and New York, N. Y., and points in New York and New Jersey within 25 miles of New York City, and of granite and oil and grease, in containers, from New York City and the described territory in New York and New Jersey to Barre and the described territory in Vermont, over irregular routes; that applicants, by reason of such operations, are entitled to a certificate of public convenience and necessity authorizing continuance thereof; and that in all other respects the application should be denied. Upon compliance by applicants with the requirements of sections 215 and 217 of the Interstate Commerce Act, and with our rules and regulations thereunder, an appropriate certificate will be issued. An order will be entered denying the application, except as indicated. PATTERSON, Commissioner, dissenting: Originally authority was sought by and in the name of an association composed of individual members, each conducing a separate and distinct operation. The prior report, to which I was not a party, denied the authority sought for the reason that the association as such was not conducting motor-carrier operations. The present claimants are now claiming operating rights as copartners and as successors not of the association but principally of one member of the association, although there are other equally interested members of the association. With the exception of one of the partners who was formerly a paid employee of the association, applicants herein had no part in the operations conducted on the statutory date. The circumstances under which applicants claim acquisition of rights as successors in interest is not clear. Likewise, there is a doubtful continuity of operation. In my opinion, the evidence in this proceeding does not warrant a grant of "grandfather" authority to applicants herein. 42 M. C. C. No. MC-C-2771 PETROLEUM AND PETROLEUM PRODUCTS BETWEEN IDAHO, MONTANA, NORTH DAKOTA, AND WYOMING Submitted September 18, 1942. Decided July 9, 1943 1. Upon investigation, in No. MC-C-277, rates on petroleum and its products, in tank-truck loads, between points in Idaho, Montana, North Dakota, and Wyoming, maintained by certain motor common carriers, found not unreasonable or otherwise unlawful. Proceedings discontinued. 2. Complaint, in No. MC-C-163, dismissed because issues are disposed of by the findings in No. MC-C-277. J. G. Bruce for Idaho Public Utilities Commission. Melvin N. Hoiness for interested motor carrier. Cale Crowley, T. J. Slattery, George Jeck, W. P. Tuller, R. H. Bierma, and A. H. Lossow for interested rail carriers. REPORT OF THE COMMISSION DIVISION 2, COMMISSIONERS MAHAFFIE, SPLAWN, AND ALLDREDGE BY DIVISION 2: Exceptions were filed by certain respondents in the title proceeding to the recommended order of the examiner, and by the defendant in No. MC-C-163 to the proposed report of the examiner. Our conclusions differ somewhat from those recommended by the examiners. The title proceeding is an investigation instituted by division 2, upon its own motion, into and concerning the reasonableness and lawfulness otherwise of the rates and charges, and the rules, regulations, and practices affecting such rates and charges, applicable to the transportation by motor vehicle, in interstate or foreign commerce, of petroleum and its products, between points in Montana and points in North Dakota maintained by Northern Truck Line, Inc., of Williston, N. Dak., hereinafter called Northern, a common carrier, and of the minimum rates and charges, and the rules, regulations, and practices affecting such minimum rates and charges, applicable to the transportation by motor vehicle, in interstate or foreign commerce, of the same commodities between points in Idaho, Montana, North Dakota, and Wyoming, maintained by H. F. Johnson, of Laurel, Mont. 1 This report also embraces No. MC-C-163, Northern Truck Line, Inc., v. H. F. Johnson. In No. MC-C-163, by complaint filed February 9, 1940, as amended at the hearing, Northern alleges that the schedule of contract-carrier minimum rates and charges, and the practices in connection therewith, maintained by the defendant H. F. Johnson for the transportation of liquid petroleum and petroleum products, in tank-truck loads, from Billings and Laurel, Mont., and Cody, Wyo., to points in western North Dakota, and Idaho, from Billings and Laurel to certain points in Wyoming, and from Cody to certain points in Montana, including points within 5 miles of each of these origins for pick-up service only, are unreasonably low, unduly preferential of refineries in Laurel and Billings served in the same territory, and give an undue advantage or preference to the defendant in competition with common carriers by motor vehicle. The prescription of lawful rates for the future is sought. The proceedings were heard separately, but the issues are similar, and will be determined in one report. A representative of the Idaho Public Utilities Commission and certain motor carriers appeared in the title proceeding, and certain rail carriers appeared in both proceedings. Rates will be stated in cents per gallon. One of the grounds of complaint of Northern against Johnson was that he was operating under a permit as a contract carrier in competition with common carriers, but that his method of doing business was more nearly that of a common carrier, and resulted in unfair competitive practices. Subsequent to the hearings Johnson, at his own request, was granted a certificate as a common carrier in lieu of the permits previously issued. Johnson Common Carrier Application, 41 M. C. C. 979. He has now canceled his minimum schedules and established common-carrier rates. On December 19, 1941, subsequent to the hearings, Harry Witcher was granted authority, in No. MC-FC-15853, to acquire a portion of the operating rights of Northern from Laurel and Billings to certain of the points of destination. Witcher adopted the corresponding rates of Northern, and entered a general appearance in the title proceeding, by filing exceptions to the recommended order of the examiner, as a successor in interest to a portion of the rights of respondent Northern. Witcher will therefore be considered as an additional respondent in that proceeding. At the time of the hearings, Northern transported liquid petroleum, in tank-truck loads, from Laurel and Billings to points in western North Dakota over irregular routes, and Johnson transported liquid petroleum products, other than road oil, crude oil, and liquid asphalt, in tank-truck loads, from Laurel and Billings to points in North Dakota, Idaho, and Wyoming; from Cody, Wyo., to points in Mon tana and Idaho; and from Sunburst, Mont., to Salmon, Idaho. Their return movements are without revenue. Northern, Johnson, and Witcher now maintain the same level of rates from Billings and Laurel to the North Dakota points. In the following table are shown the rates, minimum 4,000 gallons, maintained by Johnson to 10 representative points in North Dakota and the round-trip distances from Laurel. Witcher maintains the same rates, minimum 3,800 gallons, to the first 4 points, and Northern maintains the same rates to the other points, minimum 3,260 gallons. Northern also maintains rates to these destinations, subject to a minimum of 2,500 gallons, which are 110 percent of the rates subject to the higher minimum. The round-trip distances from and to Billings on east-bound traffic are 30 miles less than those shown from Laurel. The table also shows round-trip truck-mile earnings based on loads of 3,200 gallons. Revenues based on 4,000 gallons would, of course, be 25 percent greater. Typical rates, minimum 4,000 gallons, and the revenues thereunder, maintained by Johnson from and to other territories involved herein |