cants' freedom to substitute or add contracts and to add to their equipment and facilities are, under the restriction here imposed, specifically restricted to the making of contracts with, and the operation of such equipment as may be required by, persons who operate retail food stores. They will no longer be free to serve the chain restaurant owner, the chain hotel company, or the wholesale grocer. There are, of course, numerous retail food stores in the territory served by applicants. However, it is common knowledge that individual retail food stores generally serve rather restricted local areas. They do not ordinarily ship freight in interstate or foreign commerce, and, therefore, they have little or no need for, and rarely employ, the service of a contract carrier such as applicants. As a practical matter, the only persons with whom applicants, under the restriction, can secure individual contracts are chain store grocery companies. The record discloses that in the territory served by applicants two such companies, in addition to A&P, operate retail food stores. Their stores are, however, all located in only a part of this territory. Thus it appears that applicants' "prior opportunity" is restricted to part only of the territory which they have been serving and to two shippers, the possibility of securing contracts with either of which is shown to be remote. In my opinion, the restriction effectively "freezes" applicants to the service of A&P and to the operation only of such equipment and facilities as may be required by A&P. This is, it seems to me, "tantamount to a denial of their [applicants] statutory rights.' It follows from what I have just stated that the contention of applicants and certain interveners, that contract carriers whose permits are subject to the restriction may be forced out of business by the termination of their contracts with the particular chain store companies which they were serving on the "grandfather" date, is not idle argument. Some contract carriers have already sought, and we have granted, revocation of their permits for this reason, and, no doubt, others have discontinued operations for the same reason without requesting revocation of their permits. In my separate expression in the Keystone case I pointed out that it was there sought to justify the restriction on the ground that contract carriers are subject to regulation by us primarily to protect common carriers. I expressed the opinion that it is our duty to regulate the two classes of for-hire carriers, contract and common, so as to preserve the benefits to the public from each. In United States v. N. E. Rosenblum Truck Lines, Inc., 315 U. S. 50, the Supreme Court stated that "The Act clearly contemplates that contract and common carriers will offer competing types of service." It seems to me that to restrict contract carriers to particular shippers largely destroys their opportunities to "offer competing types of service." My opinion with respect to the imposition of the Keystone or other restrictions in the operating authorities issued to contract carriers is also applicable to the imposition of similar restrictions in the operating authorities of common carriers. The statutory right resting in applicants in the instant case is, I think, to continue in the business of a contract carrier of the commodities which they have been transporting on and since July 1, 1935, without restriction as to the persons for whom they may perform transportation service. No. MC-67243 UNION FUNERAL ASSOCIATION COMMON CARRIER APPLICATION Submitted September 28, 1942. Decided March 13, 1943 Transportation by motor vehicle by applicant of (a) corpses for burial in connection with applicant's regular undertaking business, and (b) of sick or injured persons in ambulance service, between points in Illinois, Indiana, and Missouri, over irregular routes, found to be exempt from all provisions of the Interstate Commerce Act except those of section 204 relative to qualifications and maximum hours of service, of employees and safety of operation or standards of equipment. Application denied. Alvin G. Whitehouse for applicant. James R. Clark, Ralph J. Monroe, Eugene Foran, Forrest G. Wikoff, H. A. Williamson, and John H. O'Donnell for interveners. REPORT OF THE COMMISSION DIVISION 5, COMMISSIONERS LEE, ROGERS, AND PATTERSON BY DIVISION 5: Exceptions were filed by applicant and interveners to the recommended order of the examiner. Our conclusions differ from those recommended. By application filed February 7, 1936, under the "grandfather” clause of section 206 (a) of the Interstate Commerce Act, Union Funeral Association, a nonprofit association (not incorporated), of Gillespie, Ill., seeks a certificate of public convenience and necessity authorizing continuance of operation, in interstate or foreign commerce, as a common carrier by motor vehicle, of persons (sick or injured), and of corpses for burial, between points in the States of Illinois, Indiana, and Missouri, over irregular routes. No one opposes the application. Representatives of various funeral directors' associations intervened on behalf of the applicant. Applicant is an association owned by the Progressive Miners Union, an affiliate of the American Federation of Labor. It is operated on a nonprofit basis under the present management of Richard Dodds, and it engages in the ordinary funeral business of preparing the dead for burial and the burial of the dead, and, in addition, the usual ambulance service in transporting sick or injured persons. It maintains four pieces of equipment, namely, one ambulance, one hearse, one combination hearse and ambulance, and one five-passenger automobile. While the vast majority, approximately 85 percent, of the residents of Gillespie are members of the miners' union, applicant also performs the same service for residents who are not members of the union. The greater part of applicant's operation is within the State of Illinois, in intrastate commerce. There are a number of times during the course of a year, however, when it is required to cross State lines, particularly to St. Louis, Mo., which is about 50 miles from Gillespie. A charge, separate and distinct from that of a "complete funeral," is made for such transportation. The same is true for the ambulance service, which is independent of any hospital or other institution. The transportation of corpses, in interstate or foreign commerce, by applicant for the years 1936 to 1941, inclusive, amounted to 4 trips in 1936, 4 in 1937, 3 in 1938, 2 in 1939, 5 in 1940, and 1 in 1941. The transportation of sick or injured across State lines for the same period consisted of 16 trips in 1936, 22 in 1937, 19 in 1938, 14 in 1939, 14 in 1940, and 12 in 1941. For both types of service, this amounts to little less than 5 percent of the total number of trips. Applicant's manager testified that the same average prevailed during 1934 and 1935. There is an occasional movement between the railroad station at Gillespie and the funeral parlor or the home of relatives of the deceased person. The examiner, in his report, recommended a finding that, for purposes of administering the act, the transportation of corpses for burial is the transportation of property for which authority is necessary if such transportation is performed for hire in interstate or foreign commerce. He also recommended a finding that the transportation for compensation of sick or injured persons in ambulances in interstate or foreign commerce is the transportation of passengers for which authority from this Commission is necessary. Applicant and interveners on their exceptions contend that (1) corpses are not "property" within the meaning of that term as used in the act; (2) a sick or injured person usually is unable to enter into a contract for transportation and therefore is not a "passenger" as that term is used in the act; (3) the transportation of corpses and of sick or injured persons by this applicant is casual and occasional and therefore exempt from the provisions of section 203 (b) (9) of the act; and (4) the request of applicant to withdraw its application should have been granted. We are inclined to the view that the transportation in question is casual and occasional. The principal occupation of applicant is the preparation for burial and burial of the dead. The transportation of the corpse usually is a part of the funeral service. As stated above, less than 5 percent of such transportation is rendered as a service which is not a part of the usual funeral service. The charge for the transportation when a part of the funeral and performed in connection with the preparation of the body for burial usually is not stated separately. Applicant is not engaged in the transportation of corpses as a regular occupation or business. Such transportation is only an incident of its undertaking services. The transportation of sick and injured persons is very much in the same category. That likewise is an incident of applicant's general business, which is not transportation. Section 203 (b) (9) of the act provides, in substance, that the casual, occasional, or reciprocal transportation of passengers or property by motor vehicle in interstate or foreign commerce for compensation by any person not engaged in transportation by motor vehicle as a regular occupation or business is exempt from all the regulatory provisions in the act except those relative to qualifications and maximum hours of service of employees and safety of operation and standards of equipment. We are of the opinion that the transportation in interstate or foreign commerce performed by applicant is of such a casual and occasional nature as to bring it well within the exemption provided in section 203 (b) (9). We find that the operations conducted by applicant for which authority is sought in this application are not those for which a certificate or permit is required under the act, and that the application should be denied. An appropriate order will be entered. 42 M. C. C. INVESTIGATION AND SUSPENSION DOCKET NO. M-2087 Submitted January 2, 1943. Decided March 29, 1943 Proposed reduced truckload commodity rate on sodium hypochlorite solution from St. Louis, Mo., to Louisville, Ky., and points grouped therewith, providing for one delivery, found just and reasonable. Proposed reduced truckload rates from and to these points on the same commodity, including delivery to more than one but not to exceed eight consignees, found unlawful. Proposed schedules, to the extent found unlawful, ordered canceled, and proceeding discontinued. E. G. Minor for respondent. Harry M. Slater and F. C. Culkin for protestants. REPORT OF THE COMMISSION DIVISION 2, COMMISSIONERS AITCHISON, SPLAWN, AND ALLDREDGE BY DIVISION 2: Exceptions, were filed by protestant to the order recommended by the examiner. Our conclusions differ in part from those recommended. By schedules filed to become effective August 22, 1942, respondents, certain motor common carriers participating in an agency tariff of the Central States Motor Freight Bureau, Inc., hereinafter termed the bureau, proposed to establish reduced truckload commodity rates on sodium hypochlorite solution, in glass in boxes, from St. Louis, Mo.,1 to Louisville, Ky. Upon protest of the bureau on behalf of its members other than the respondents, the operation of the schedules was suspended until March 22, 1943, and their effectiveness has been postponed indefinitely by the respondents. Certain other rates suspended in this proceeding have been canceled by the respondents, and, as to them, the proceeding will be discontinued. Rates will be stated in cents per 100 pounds. The proposed rates, although published to apply over the lines of 10 carriers, were sponsored primarily by Western Trucking Company, Inc., of St. Louis, Mo., and that carrier, hereinafter termed the respondent, undertook to justify them. The proposed rates, minimum 20,000 pounds, are 27 cents, including delivery to 1 consignee, and 32 cents, including delivery to more than 1, but not to exceed 8, con 1 Also applicable from a number of nearby points in Illinois and Missouri. * Also applicable to five nearby points in Indiana and Kentucky. |