ment, laundry, salvaged material such as waste paper, and empty containers such as banana hampers, bread boxes, cartons, crates, bags, butter tubs, and egg cases. Under the heading of plant supplies and equipment, applicant has actually transported, also, a great variety of other articles not generally associated with the business of A&P. For example, the record shows that applicant has transported for A&P such miscellaneous items as automobile tires, children's scooters, hatchets, flashlights, flags, a mechanical cow, fertilizer, animal foods, oystershells, gladiola bulbs, topsoil, coal, brick, and lumber.

In the order of February 14, 1938, applicant was authorized to transport "such merchandise as is dealt in by wholesale, retail, and chain grocerly and food business houses and in connection therewith equipment, materials, and supplies, used in the conduct of such business." In the Keystone case, the same commodity description was approved, Commissioner Eastman suggesting, in a separate expression, that for practical purposes it was equivalent to a grant of authority to transport general commodities. Applicant has no particular objection thereto, provided it is construed as a general-commodity grant, but he urges that his has been a general-commodity operation and that the commodities transported have been in excess of those required "by persons who operate retail stores, the business of which is the sale of food." Such argument overlooks the fact that the description in question is sufficiently broad in scope to permit the transportation of any commodities which A&P deals in or are necessary to supply or equip its stores.

The great variety of the commodities transported by applicant has already been indicated.. Admittedly, they might very readily be designated as "general commodities." On the other hand, the description heretofore used is somewhat more precise and is broad enough to include every commodity which applicant has transported, even those not generally associated with the business of A&P. In the circumstances, it appears most practical to adhere to it and without, of course, any understanding that it shall be construed to mean general commodities. No doubt in most instances it will be equivalent to a general-commodity grant. In others, it may not be. Since it is clearly adequate to cover everything that applicant has ever transported, there is no occasion to explore here how it might be construed in every possible case. The impropriety of using such description with the express undestanding that it means something else, which it would be much simpler to say in the first instance, is apparent.

On exceptions, applicant asserts that "general commodities" is a "precise" description and, citing United States v. Carolina Freight Carriers Corp., 315 U. S. 475, urges that, inasmuch as the commodities transported might be described as "general commodities," we can

not restrict the commodities which may be transported. It is also urged that the commodity description heretofore used would be difficult to police. Whether or not general commodities is a "precise" description seems to be immaterial to the issues in this case. The commodities or class of commodities which a carrier undertakes to transport is a principal factor in establishing that carrier's type of service and enables its proper classification. Thus we have household-goods carriers confining their transportation strictly to household goods, and petroleum carriers transporting only petroleum products. These carriers render a special type of service. Applicant similarly renders a special type of service which is not susceptible of classification solely by the class of commodities handled, but rather has its characterization in the person to whom the service is held out.

The commodity description used in the order of February 14, 1938, and in the Keystone case clearly is such as to insure applicant the right to continue to transport every commodity which he has transported in the past and every other commodity of like class which might be offered him. More than that, he is not entitled to. Applicant will be authorized to transport only such merchandise as is dealt in by wholesale, retail, and chain grocery and food business houses, and, in connection therewith, equipment, materials, and supplies used in the conduct of such businesses. Whether the operation of the carrier under such a commodity description is difficult of policing is a question which is immaterial in determining the type of carrier service. We do not, however, admit that such is the case.

The order of February 14, 1938, also granted authority to transport fruits, vegetables, farm products, poultry, and sea food "in the respective seasons of their production" from points in Ulster County, N. Y., and Hunterdon County, N. J., to points in the described territory adjacent to Paterson. The present record makes no reference whatever to any such operation. Brief reference thereto in the application indicates that it, too, was performed for A&P, but on the present record no authority to continue any such operation can be granted.

Territory, routes, et cetera.-Applicant's oral contract with A&P in effect on July 1, 1935, required him to supply transportation service "anywhere." Actually, he operated only in a comparatively limited territory adjacent to the general merchandise warehouse and other A&P facilities at Paterson, N. J., known as the Paterson unit. Within this territory, applicant has continuously supplied any required transportation for the movement of merchandise, supplies,

The written contract dated March 27, 1939, requires him to serve "when and where A&P may require" insofar as he is "qualified under the law."

equipment, et cetera, from, to, or between rail or water terminals, warehouses, processing or manufacturing plants, or other places of supply, and retail stores. Probably most of the traffic moved to or from Paterson, but it is clear that applicant regularly performed service between other points, particularly in the distribution to adjacent stores of carload shipments which might be received by A&P at any convenient break-bulk point in the territory.

The order of February 14, 1938, granted applicant authority:

Between points and places within the territory bounded by a line beginning at Weehawken, N. J., and extending in a northwesterly direction through Rutherford to Mountain View, N. J., thence in a southwesterly direction to Myersville, N. J., thence west through Far Hills to Cokesbury, N. J., thence in a northwesterly direction through Port Murray to Belvidere, N. J., thence across the Delaware River to the west bank thereof, thence in a northeasterly direction along the west bank of the river through Milford and Matamoras, Pennsylvania, to Port Jervis, N. Y., thence in a northeasterly direction through Middletown to Pine Bush, N. Y., thence east to Wallkill, N. Y., thence in a southeasterly direction to Newburgh, N. Y., and thence south along the west bank of the Hudson River to Weehawken.

Between points and places in the above-specified territory, on the one hand, and New York, Bronx, Kings, Queens, Nassau, Richmond Counties, N. Y., Hudson, Bergen, and Essex Counties, N. J., on the other.

Neither applicant nor protestants question the territorial scope of this grant. It appears to be amply justified by the record and will be followed herein. The described operations have necessarily been performed over irregular routes.

CONCLUSIONS AND FINDINGS

Neither applicant, A&P, nor any other interested party has pointed out in any respect wherein the Keystone restriction is unlawful, unwarranted by the facts with respect to applicant's past operations, or will in any wise embarrass applicant in the continuance of the bona fide operation he was conducting on July 1, 1935. A&P admits that applicant, now operating within the terms of the restriction, is giving satisfactory service. In the circumstances, the operating right granted herein will be made subject to the same restriction as was imposed in the Keystone case.

We find that on and continuously since July 1, 1935, applicant was, and has been, in bona fide operation, in interstate or foreign commerce, as a contract carrier by motor vehicle for the transportation under individual contracts with persons (as defined in section 203 (a) of the act) who operate retail stores, the business of which is the sale of food, of such merchandise as is dealt in by wholesale, retail, and chain grocery and food business houses, and, in connection therewith, equipment, materials, and supplies used in the conduct of such busi

nesses, over irregular routes, between points in the territory bounded by a line beginning at Weehawken, N. J., and extending in a northwesterly direction through Rutherford to Mountain View, N. J., thence in a southwesterly direction to Myersville, N. J., thence west through Far Hills to Cokesbury, N. J., thence in a northwesterly direction through Port Murray to Belvidere, N. J., thence across the Delaware River to the west bank thereof, thence along the west bank of the river through Milford to Matamoras, Pa., thence across the river to Port Jervis, N. Y., thence in a northeasterly direction through Middletown to Pine Bush, N. Y., thence east to Wallkill, N. Y., thence in a southeasterly direction to Newburgh, N. Y., and thence south along the west bank of the Hudson River to Weehawken, and between points and places in the territory just described, on the one hand, and points and places in New York, Bronx, Kings, Queens, Nassau, and Richmond Counties, N. Y., and Hudson, Bergen, and Essex Counties, N. J., on the other; that by reason of such operation he is entitled to a permit authorizing continuance thereof; and that in all other respects the considered application should be denied.

Upon compliance by applicant with the requirements of sections 215 and 218 of the Interstate Commerce Act, with our rules and regulations thereunder, and with the requirements established in Contracts of Contract Carriers, 1 M. C. C. 628, an appropriate permit will be issued. An order will be entered denying the application except to the extent granted by our findings herein.

LEE, Commissioner, dissenting in part:

In my dissenting-in-part expression in Keystone Transp. Co. Contract Carrier Application, 19 M. C. C. 475, I questioned both the legality and the wisdom of the Keystone restriction. That was considered as a policy case, and I have not, therefore, undertaken to issue dissenting expressions in all cases in which the restriction has since. been imposed. I felt that fairness dictated that carriers such as Keystone Transportation Company should all be shackled or all set free at the same time. This proceeding is considered a carefully selected test case, and I, therefore, feel that I should state that after over 31⁄2 additional years of experience in the regulation of motor carriers I am convinced that it was wrong to impose the restriction, although I freely admit that, because such a large number of carriers have been granted operating authorities subject thereto, it will be much to our advantage from an administrative standpoint if that action is not disturbed. In the following opinion I shall refer to applicants and their predecessor simply as applicants.

Applicants have been in bona fide operation, without interruption, since prior to July 1, 1935, as a contract carrier by motor vehicle of a

wide variety of articles within the territory described in our order of February 14, 1938. That they are entitled to a permit under the "grandfather" clause of section 209 (a) of the act is not questioned. True, they have entered into "individual contracts or agreements" with one shipper only, A&P, part of whose activities has consisted of the operation of retail food stores, but prior to and on July 1, 1935, they were, and since that date they have been, free to transport the abovenamed articles, within the described territory, for anyone with whom they chose to enter into an individual contract or agreement. They have been, during all of this time, free to exercise the right which the proviso of section 209 (b) expressly preserves, that is, to substitute or add contracts and to add to their equipment and facilities. This was understood by both A&P and applicants. For instance, had applicants desired to do so, they were free to transport groceries, fruits and vegetables, meats, dairy products, and sea foods for a chain restaurant owner, or a chain hotel company, or a wholesale food establishment, even though the latter operated no retail food stores. They were free to enter into an individual contract with such restaurant owner, or hotel company, or wholesale grocer and to acquire additional vehicles with which to comply with such contract. Had they lost their contract with A&P, their opportunity to continue in business was not restricted to such employment, if any, as they might have secured from persons who operated retail food stores. In short, their opportunity to substitute or to add contracts was not restricted to the furnishing of transportation service for any particular shippers.

The Supreme Court has stated that the "grandfather" clause of section 206 (a) contemplates "substantial parity between future operations and prior bona fide operations"; that the carrier's "prior opportunity should not be restricted beyond the clear requirements of the statute"; that "this Act should be liberally construed to preserve the position which those like appellee have struggled to obtain in our national transportation system"; and that to "freeze them into the precise pattern of their prior activities not only may alter materially the basic characteristics of their service; it also may well be tantamount to a denial of their statutory rights." Alton R. Co. v. United States, 315 U. S. 15, and United States v. Carolina Freight Carriers Corp., 315 U. S. 475. The pertinent language of the "grandfather" clause of section 209 (a) is identical with that of section 206 (a), and, obviously, the meaning and intent thereof are the same. Appli

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Including groceries, fruits and vegetables, meats, dairy products, sea foods, beverages, miscellaneous small household items, miscellaneous store and plant supplies and equipment, laundry, salvaged materials, empty containers, automobile tires, children's scooters, hatchets, flashlights, flags, fertilizer, animal foods, oystershells, topsoil, coal, brick, and lumber.

Such as interveners, Robert Gair Company, Inc., and Francis Leggett and Company.