No. MC-31285 (Sub-No. 1).-This application, as amended, was filed solely as a precautionary measure. The operating authority sought therein is the same as sought in the "grandfather" application. Inasmuch as applicant, in No. MC-31285, has established a "grandfather" right to transport general commodities from points in the Wheeling area to all points within described portions of Georgia, North Carolina, and South Carolina, food products from Pittsburgh to Atlanta, and cotton piece goods from such described portions of Georgia, North Carolina, and South Carolina to Wheeling, we need now concern ourselves only with the request for authority to transport general commodities between points in Pennsylvania and Ohio within 40 miles of Pittsburgh and points in West Virginia other than those in the Wheeling area, on the one hand, and, on the other, points in Georgia, North Carolina, and South Carolina. Several witnesses who supported the "grandfather" application also testified in support of this application. For the major part, their testimony related to transportation which applicant will be authorized to continue in No. MC-31285. An exception was a representative of a glassware manufacturer having plants at Washington, Pa., and Clarksburg who has used applicant's service since 1936. Although the abstracts show shipments of glassware from Clarksburg since that time, none are shown from Washington until November 1940. With the foregoing exception, applicant relies solely on its growth as a carrier and the substantial expansion and increase in its business since 1937 to indicate a public need for the proposed service. Its present operations consist generally of the transportation of various commodities from points in the Wheeling area in West Virginia and from points in western Pennsylvania in the Pittsburgh area to points in Georgia, North Carolina, and South Carolina, and of cotton piece goods and cotton tire fabrics from points in those southern States to Wheeling. As stated above, at time of second hearing, applicant was operating 20 tractor-trailer units. It maintains a terminal and garage at Wheeling. Since 1939, its business has developed quite extensively, as may be seen from its tonnage. It transported, in both directions, 1,685,657 pounds of freight in December 1939, 2,160,622 in December 1940, 2,736,566 in December 1941, and 3,162,333 in January 1942. The tabulation of shipments transported by applicant in certain months between March 1936 and February 1942 shows that for the most part applicant's present traffic originates at or is destined to points in the Wheeling area. In 1936, shipments of food products only are shown from Pittsburgh to Atlanta. Of the 95 representative shipments shown in 1937, 13 were from the Pittsburgh area, and consisted of 5 shipments of food products and 6 of miscellaneous commodities, all of which moved from Pittsburgh to Atlanta, plus 1 of lubricating oil and grease from Butler, Pa., to Asheboro, N. C., and 1 of a printer's machine from Jeannette, Pa., to Atlanta. In November 1938, of the 119 representative shipments shown, only 1 originated in Pennsylvania, and it consisted of lubricating oil from Pittsburgh. In November 1939, 183 shipments are shown, of which 2 consisted of food products moving from Pittsburgh to Atlanta, and 2 of plumber's goods from Monaca, Pa., to Greenville, N. C. In November 1940, 204 shipments are shown, of which 19 consisted of food products, electrical equipment, plumber's goods, and glassware, moved from the Pittsburgh area to points in the south; and 4 consisting of cotton tire fabrics, moved from Kannapolis, N. C., and Columbus, Ga., to points in the Pittsburgh area. During similar periods in 1941 and 1942, the proportion of shipments from and to the Pittsburgh area to the total number of applicant's shipments has remained substantially the same. Although these past operations conducted under a claim of "grandfather" right are entitled to consideration on the issue of public convenience and necessity, D. A. Beard Truck Lines Co. Com. Car. Applic.-New Operation, 34 M. C. C. 395, they are not controlling, and applicant has presented no other evidence of a public need for its expanded service, except the testimony of a single shipper of glassware from Clarksburg, W. Va., and Washington, Pa. On the other hand, there is evidence of adequate and satisfactory motor and rail-carrier service between points in the Pittsburgh area and points in the south. In No. MC-1375, Mountain Truckers, Inc., of Charleston, W. Va., was granted authority to transport general commodities between the Pittsburgh area and points in North Carolina. It has a terminal at Pittsburgh, operates a large number of vehicles, and offers direct second-morning delivery to Greensboro, Winston-Salem, and Charleston, N. C., and surrounding areas. Direct connections are had with other motor carriers to points in South Carolina and Georgia. Horton Motor Lines, Inc., operates between points in the Pittsburgh area and points in North Carolina, South Carolina, and Georgia. Rail lines operating from Pittsburgh have direct connections with southern rail carriers. In the circumstances, the application will be denied. Findings. Upon further hearing, we find, in No. MC-31285, that applicant was on June 1, 1935, and continuously since has been, in bona fide operation, in interstate or foreign commerce, as a common carrier by motor vehicle, (1) of general commodities, except articles of unusual value, 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 Wheeling, W. Va., and all points in West Virginia within 30 miles of Wheeling, also from Clarksburg, and Mannington, W. Va., and Martins Ferry, Ohio, to all points in Georgia on and north of a line extending from Augusta along U. S. Highway 1 to Louisville, Ga., thence along Georgia Highways 24 and 22 through Macon to Columbus, and to all points in North Carolina and South Carolina on, north, and west of U. S. Highway 1, (2) of food products from Pittsburgh, Pa., to Atlanta, Ga., and (3) of unfinished cotton piece goods from the points in Georgia, North Carolina, and South Carolina, described in (1) above, to Wheeling, W. Va., over irregular routes; that, by reason of such operation, applicant is entitled to a certificate authorizing continuance thereof; and that the application should be denied in all other respects. We further find, in No. MC-31285 (Sub-No. 1), that applicant has failed to establish that the present and future public convenience and necessity require operation by it, in interstate or foreign commerce, as a common carrier by motor vehicle, of general commodities between points in Ohio, West Virginia, and Pennsylvania, on the one hand, and, on the other, points in Georgia, North Carolina, and South Carolina not covered by our prior finding herein, and that this application 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 will be entered denying the applications except to the extent indicated. 42 M. C. C. INVESTIGATION AND SUSPENSION DOCKET NO. M-2093 Submitted April 12, 1943. Decided July 20, 1943 Proposed motor common carrier commodity rates on trisodium phosphate, minimum 100,000 pounds, from certain points in Delaware and Pennsylvania to Jersey City, N. J., found unlawful. Suspended schedules ordered canceled without prejudice to the filing of new schedules in conformity with the findings. Proceeding discontinued. Joseph R. Tilton for respondent. John F. Rose and A. R. Eldred for protestants. REPORT OF THE COMMISSION DIVISION 3, COMMISSIONERS MILLER, PATTERSON, AND JOHNSON BY DIVISION 3: Exceptions were filed by Middle Atlantic States Motor Carrier Conference, Inc., to the order recommended by the examiner. Our conclusions differ in part from those recommended. By schedules filed to become effective September 3, 1942, Academy Storage & Warehouse, Inc., of Newark, N. J., a motor common carrier, proposed to establish a reduced truckload commodity rate and an increased minimum weight on trisodium phosphate from Claymont and North Claymont, Del., and Marcus Hook, Pa., to Jersey City, N.J. The Commission, upon its own motion, entered upon an investigation concerning the lawfulness of the rates, charges, regulations, and practices stated in the proposed schedules and suspended their operation until April 3, 1943. Respondent has postponed indefinitely the effective date of the schedules. Rates will be stated in cents per 100 pounds. Middle Atlantic States Motor Carrier Conference, Inc., hereafter referred to as the conference, and the rail carriers in trunk-line territory appeared at the hearing in opposition to the proposed rates and minima, but confined their participation to cross-examination of respondent's witness. The proposed rate is 15 cents, minimum 100,000 pounds, from each of the origins. In Academy Storage & Warehouse, Inc., Com. Car. Application, 32 M. C. C. 82, division 5 found respondent entitled to authority to operate as a common carrier by motor vehicle of general commodities, with certain exceptions, between points in New Jersey within 15 miles of Newark, on the one hand, and, on the other, points in the Pennsylvania counties of Philadelphia, Lackawanna, Luzerne, Lehigh, and Northampton, and New Castle County, Del., as well as between other points not pertinent hereto. In its report on reconsideration, 41 M. C. C. 548, the Commission granted respondent additional authority between points not involved herein. Respondent apparently holds no authority to perform transportation in interstate commerce to or from Marcus Hook, which is in Delaware County, Pa. The rate proposed from that point is therefore unlawful. Respondent's rate on this traffic at the time of the hearing was the same as that maintained by the conference, 17 cents, minimum 30,000 pounds. The protestant rail carriers maintain on the commodity from North Claymont and Marcus Hook to Jersey City rates of 14 cents, minimum 100,000 pounds, and 17 cents, minimum 40,000 pounds. The only rate maintained by these carriers on the traffic from Claymont is a class rate of 19 cents, minimum 40,000 pounds. The proposed rate of 15 cents is approximately 22 percent of the first-class rate maintained by respondent and the conference carriers between these points. The normal classification basis for this commodity in trunk-line territory is fifth class, 35 percent of first class, minimum 23,000 pounds. The commodity has a value of about $2.35 per 100 pounds and a density of 50 pounds per cubic foot. It can be loaded in excess of the present minimum weight of 30,000 pounds, but it appears on this record that the maximum amounts which respondent could lawfully transport in its vehicles are 24,000 pounds in Pennsylvania and 26,000 pounds in Delaware, while 30,000 pounds may be transported lawfully in New Jersey. The maintenance by motor common carriers of rates subject to minimum weights greater than can be loaded in a single vehicle, lower than rates maintained for single truckloads, are unlawful. Rugs and Matting from East to W. T. L. Territory, 31 M. C. C. 193 and 34 M. C. C. 641. The conference excepted to the conclusion of the examiner that the proposed rate of 15 cents from Claymont would yield truck-mile revenues of 40.2 cents on loads of 30,000 pounds, 34.8 cents for 26,000 pounds, and 32.1 cents on shipments of 24,000 pounds, based on an assumed haul of approximately 112 miles. The distance of 112 miles used in computing these revenues is that over a route by way of the Delaware River ferry from Chester, Pa., to Bridgeport, N. J., and protestant contends that the evidence establishes that the traffic would not move through Pennsylvania. Respondent's general manager testified that, when it last transported this traffic, the movement was over a ferry operating from New Castle, Del., to Pennsville, N. J., which the witness stated was about 6 blocks from the point of shipment. The New Castle-Pennsville ferry is approximately 15 miles from Claymont, and |