St. Louis, Mo., and Fort Wayne, Ind., and (c) between Milwaukee and Galesburg, Ill., and (3) of soap, soap powder and flakes, and scouring compounds between Burlington, on the one hand, and, on the other, points in Wisconsin on and south of a line consisting of U. S. Highway 16 from La Crosse to the junction with Wisconsin Highway 21, thence Wisconsin Highway 21 to Oshkosh, thence U. S. Highway 41 to Fond du Lac, and thence U. S. Highway 151 to Manitowoc, and points in Minnesota on and south of a line consisting of U. S. Highway 12 from the Minnesota-Wisconsin State line to the junction with Minnesota Highway 15, and on and east of a line extending from the junction of U. S. Highway 12 and Minnesota Highway 15, along Minnesota Highway 15 to the Minnesota-Iowa State line, over irregular routes, in each instance; that applicant is entitled to a certificate authorizing the continuance of such operations except as authorized in No. MC-101186; and that the application in all other respects should be denied.

We find upon further hearing, in No. MC-101186, that public convenience and necessity require operation by applicant, in interstate or foreign commerce, as a common carrier by motor vehicle (1) of soap, in truckloads, from Burlington, Iowa, to Wausau, Wis., and all points in Wisconsin south of the Green Bay and Western Railroad between Kewaunee and Winona, Wis., and (2) of canned fruit and vegetables from all points in Wisconsin, except Waupun, Union Grove, Franksville, Racine, Milwaukee, Elkhorn, and Oconomowoc, to Burlington, over irregular routes in each instance; that applicant is fit, willing, and able properly to conduct such operations; and that the application in all other respects should be denied.

We further find, in Nos. MC-73202 (Sub-No. 1) and MC-73202 (Sub-No. 2), that applicant has failed to establish the right to a certificate or a permit under the "grandfather" clause of section 206 (a) or 209 (a) of the Interstate Commerce Act; and that these applications should therefore be denied.

We further find that applications Nos. MC-73202 and MC-FC14621, should be dismissed for want of prosecution.

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 dismissing Nos. MC-73202 and MC-FC-14621 and denying the other considered applications except to the extent granted herein.

42 M. C. C.

No. MC-711

JAY ROUNTREE (SUCCESSOR IN INTEREST TO J. A. ROBISON) COMMON CARRIER APPLICATION

Submitted October 16, 1941. Decided July 29, 1943

1. Upon further hearing, finding, in 22 M. C. C. 355, that applicant in No. MC72988 (Sub-No. 1) had failed to establish that he is entitled to a certificate as a common carrier by motor vehicle under the "grandfather" clause of section 206 (a) of the Interstate Commerce Act, affirmed. Application denied.

2. In No. MC-59468 (Sub-No. 4), applicant, as successor in interest, found entitled to continue operation as a common carrier by motor vehicle of general commodities, with certain exceptions, between Shreveport, La., and the Louisiana-Texas State line, over a regular route, serving all intermediate points, because his predecessor was engaged in such operation on June 1, 1935, and because applicant and his predecessor have been so engaged continuously since. Issuance of a certificate approved upon compliance by applicant with certain conditions, and application in all other respects denied.

Appearances as shown in prior report, also: Reagan Sayers for applicants and W. H. Winchester for protestants.

REPORT OF THE COMMISSION ON FURTHER HEARING

DIVISION 5, COMMISSIONERS LEE, ROGERS, AND ALLDREDGE BY DIVISION 5:

In the prior report, 22 M. C. C. 355, which, in addition to the title case, included Nos. MC-59468 (Sub-No. 4), MC-1210 (Sub-No. 1), and MC-72988 (Sub-No. 1), we authorized certain operations in No. MC1210 (Sub-No. 1) not here involved and denied that application in all other respects. We further found that applications Nos. MC-71, MC-59468 (Sub-No. 4), and MC-72988 (Sub-No. 1) should be denied except as to the operation covered by No. MC-59468 (Sub-No. 4) between Shreveport, La., and the Louisiana-Texas State line, over Louisiana Highway 8, as to which rehearing was granted. Thereafter, upon petitions to reopen filed by J. A. Robison, of Texarkana, Tex., doing business as La-Tex Motor Line, and by H. E. English, of Lufkin, Tex., doing business as Red Ball Motor Freight Lines, to which replies were filed by certain protestants, by an order of June

This report also embraces No. MC-59468 (Sub-No. 4), H. E. English Extension of Operations-Shreveport-Atlanta and No. MC-72988 (Sub-No. 1), J. A, Robison Extension of Operations-Atlanta-Texarkana.

18, 1940, we reopened Nos. MC-71, MC-59468 (Sub-No. 4), and MC72988 (Sub-No. 1) for further hearing with respect to operation between Texarkana, Ark., and Shreveport, over Texas Highway 47 (now Texas Highway 11) between Texarkana and Atlanta and over Texas Highway 77 and Louisiana Highway 8 between Atlanta and Shreveport, and vacated our order of March 27, 1940, to the extent that it denied authority to continue operation over the above-described route between Texarkana and Shreveport.

Further hearings have been held in Nos. MC-59468 (Sub-No. 4) and MC-72988 (Sub-No. 1), both of which represent portions of No. MC-71, and separate reports and recommended orders of joint boards have been served in each proceeding. In No. MC-59468 (Sub-No. 4), exceptions were filed by applicant to the recommended order. In No. MC-72988 (Sub-No. 1), exceptions were filed by a motor carrier and certain Texas railroads to the recommended order. Our conclusions differ from those recommended in No. MC-72988 (Sub-No. 1).

HISTORY OF APPLICATIONS

By that part of application No. MC-71 here involved, J. A. Robison, of Texarkana, doing business as La-Tex Motor Line, sought a certificate under the "grandfather" clause of section 206 (a) of the Interstate Commerce Act authorizing operation as a common carrier by motor vehicle, in interstate or foreign commerce, of general commodities, except commodities of unusual value, high explosives, oil in bulk, cottonseed in bulk, fruits and vegetables in bulk, commodities requiring special equipment, and those injurious or contaminating to other lading, between Texarkana, Ark.-Tex., and Shreveport, over the abovedescribed route, serving all intermediate points and the off-route point of Bloomberg, Tex. On December 1, 1937, the Commission, division 5, in English-Purchase-Robison, 5 M. C. C. 221, approved and authorized the purchase by H. E. English, of Lufkin, doing business as Red Ball Motor Freight Lines, of that portion of the route between the city limits of Atlanta and Shreveport. It was agreed, however, that English was not to serve Atlanta but that he would turn over at Shreveport, all Atlanta traffic to Robison who would transport it to Texarkana, over a route not here involved, and thence to Atlanta as described above. No. MC-59468 (Sub-No. 4) was assigned to English to cover the rights so acquired. Pursuant to No. MC-FC-4643, the remainder of the rights, namely, those between Texarkana and Atlanta, were on September 27, 1938, acquired, through purchase, by Jay Rountree, of Dallas, Tex., doing business as Ozark Motor Lines. No. MC-1210 (Sub-No. 1) was assigned to Rountree to embrace these rights. Pursuant to No. MC-FC-12165, Robison on January 18, 1940,

reacquired, through purchase, from Rountree this Texarkana-Atlanta segment of the route, and No. MC-72988 (Sub-No. 1) was assigned to Robison to cover the reacquired rights.

No. MC-72988 (Sub-No. 1).-The further hearing in this proceeding was held on November 8, 1940. The joint board found that on June 1, 1935, Robison was in bona fide operation as a common carrier by motor vehicle, of general commodities, with certain exceptions, between Texarkana and Atlanta, over a regular route, serving all intermediate points, and that the operation had been conducted by Robison and Rountree continuously since that time except for an interruption in service, hereinafter discussed, over which the carriers had no control. Robinson began operating between Texarkana and Shreveport, through Atlanta, in 1930, and was registered under the code of fair competition for the trucking industry in 1934. In 1932, he was informed by a representative of the Railroad Commission of Texas that operation over Texas highways, although exclusively in interstate or foreign commerce, could not lawfully be conducted without authority from the Texas commission. Until that time, Robison had believed that he had a right to operate in interstate commerce in Texas without obtaining authority from the Texas commission. On December 9, 1932, after receipt of this advice, he filed an application with that commission seeking a certificate of public convenience and necessity authorizing operation, in interstate commerce exclusively, over, among other routes, that portion of the considered route between Texarkana and the Louisiana-Texas State line. The application was heard by the Texas commission and was denied on April 18, 1933. On the following day, a letter was addressed to Robison notifying him of the denial of the application. Robison testified that he did not "remember" receiving any notice of the denial and that, in fact, he did not know whether his application had been granted or denied until advised orally of its denial by a representative of the Texas commission in the early part of 1936. In the meantime, he was operating without interruption.

In March 1936, a complaint was filed against Robinson by the Texas commission. He consulted his attorney and was advised that "it would be cheaper to pay a fine if I could get by with it" whereupon a fine was paid. No action was then taken by Robison contesting or appealing the Texas commission's previous denial order. As set forth, the segment of the route south of Atlanta was acquired by English in December 1937. In February 1938, as the result of numerous complaints against Robison and after his drivers had been arrested several times and threatened with arrest every time they appeared on the highways, an order was issued by the Texas commission requiring Robison to cease and desist from further operation in that State. In March 1938, Robison obtained in a Texas State court a temporary injunction re

42 M. C. C.

Goods, 17 M. C. C. 467, have been transported. These commodities will therefore be named as exceptions to the general-commodity authority granted.

In view of our decision herein, it is unnecessary to discuss the extent of the operation conducted by Robison, Rountree, and English over the considered route in Texas on and subsequent to June 1, 1935.

FINDINGS

Upon further hearing, we find, in No. MC-59468 (Sub-No. 4), that applicant's predecessor in interest on June 1, 1935, was, and that applicant and his predecessor continuously since have been, in bona fide operation, in interstate or foreign commerce, as common carriers by motor vehicle, 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, between Shreveport, La., and the Louisiana-Texas State line, over Louisiana Highway 8, with service at all intermediate points; that applicant is entitled to a certificate authorizing continuance of such operation; and that the application in all other respects should be denied.

Upon further hearing, we further find, in No. MC-72988 (Sub-No. 1), that applicant and his successor-predecessor in interest have failed to establish the right to a certificate under the "grandfather" clause of section 206 (a) of the act and that the application should be denied.

Upon compliance by applicant in No. MC-59468 (Sub-No. 4) 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 application except to the extent indicated.

42 M. C. C.