of property, for compensation, in interstate commerce, and which, in the ordinary and usual course of its undertaking, (A) assembles and consolidates or provides for assembling and consolidating shipments of such property, and performs or provides for the performance of break-bulk and distributing operations with respect to such consolidated shipments, and (B) assumes responsibility for the transportation of such property from point of receipt to point of destination, and (C) utilizes, for the whole or any part of the transportation of such shipments, the services of a carrier or carriers subject to part I, II, or III of this Act.

This definition indicates quite plainly the character of service which freight forwarders perform, and it furnishes no basis for changing our conception of freight forwarders disclosed in the many decisions, including those cited above, in which we considered the nature of their operations prior to the enactment of part IV. In this connection, it should be noted that section 418 of part IV prohibits freight forwarders from employing or utilizing the instrumentalities of any carriers other than common carriers by motor vehicle, railroad, air, or water except in the performance within terminal areas of transfer, collection, or delivery services. The enactment of part IV of the act in no way affects the soundness of our decisions referred to above. We can perceive no reason for departing from the views expressed therein, and we accordingly affirm the findings of division 5 that applicants have been and are common carriers by motor vehicle.

Barnett contends that it should be granted authority to serve various points named in its application. It refers to the recommendation of the examiner that it be authorized to operate over a specified route between Pittsburgh and Cleveland, Ohio, serving Akron, Canton, and Youngstown, Ohio, as intermediate points. An examination of the record discloses that the only traffic transported by it between these points prior to June 1, 1935, was a single shipment, moved in March 1932 from Cleveland to Pittsburgh. There was no further operation between these points until some time in 1936. Its operations between other points and the operations conducted by Globe are accurately described in the prior reports. In our opinion, there is no basis for the granting of authority under the "grandfather" clause of the act to either Barnett or Globe except between the points and over the routes specified by division 5 in the prior reports.

We come now to the contentions of protestants and interveners that division 5 failed properly "to restrict the authority" granted to applicants. Division 5 found that we cannot, consistently with applicants' common-carrier status, restrict their service to particular shippers. We believe this is a correct statement of the law. Section 203 (a) (14) of the act provides that the term "common carrier by motor vehicle" means any person which holds itself out to the general public to engage in the transportation by motor vehicle of passengers or property for

compensation. A motor carrier whose service is restricted or limited to particular shippers of the ordinary kind obviously would not be a common carrier. Applicants are, however, as we have already determined, common carriers and are entitled to authority to continue operations as such. We are without power to restrict or limit their operations in a manner which would change their status from that of common carriers.

We are satisfied, however, that, in the circumstances here present, the relation between applicants and the freight forwarders should not be treated the same as that existing between an ordinary shipper and a motor common carrier. We pointed out in Bleich Common Carrier Application, supra, that the forwarder is not like an ordinary shipper who tenders its own goods to a carrier for transportation. The forwarder merely tenders for transportation freight belonging to the general public, which it has accepted and assembled as the result of an understanding with many shippers or consignees that it will undertake to have the same transported to ultimate destinations. During the "grandfather" period, the freight forwarders have tendered to applicants, and applicants have transported, not traffic belonging to the forwarders but freight belonging to the general public, which the forwarders accepted and assembled as the result of the understanding with the shippers or consignees thereof that they would undertake to have the same transported. The facts which satisfy the requirement, insofar as applicants are concerned, that to be a common carrier there must be a holding out to transport for the general public are, first, that the forwarders dealt with the shipping public in general and did not limit their activities to selected shippers, and, second, that applicants transported traffic of the shipping public in general which was assembled by the forwarders as a result of the latter's undertaking to have the same transported. Under these circumstances, we think the freight forwarders must be treated, not as ordinary shippers, but as intermediary agencies through which applicants held themselves out to the general public to engage in the transportation of property by motor vehicle. To grant applicants authority to transport only traffic assembled by freight forwarders would enable them to continue all bona fide common-carrier operations in which they have been engaged during the "grandfather" period. They are entitled to no more or no less than this under the "grandfather" clause of section 206 (a) of the act. The issuance to them of certificates authorizing the transportation of general commodities (with the exceptions previously indicated) which are at the time moving on bills of lading of freight forwarders, would effectively accomplish this purpose.

Applicants' operations during the "grandfather" period may be likened to the operations of common carriers of special commodities.

In cases too numerous to require citation, we have found that common carriers who have transported special commodities only are entitled, not to authority to transport general commodities, but to authority to continue transporting such special commodities. Common carriers of petroleum products, in bulk, in tank trucks, furnish an example. Obviously, only a small part of the general public ever has occasion to ship petroleum products, in bulk, in tank trucks. The service of such carriers is therefore in fact available only to a small part of the public. To "specify the service to be rendered" by such carriers in the certificates issued to them, in accordance with the provisions of section 208 (a) of the act, as the transportation of petroleum products, in bulk, in tank trucks, does not, however, constitute a restriction of their service to particular shippers. On the contrary, it constitutes a grant of authority to transport petroleum products, in bulk, in tank trucks, for anyone who offers such traffic for transportation.

Applicants have transported only traffic assembled by freight forwarders. Their service has therefore been rendered only to that part of the public which dealt with freight forwarders. To authorize them to continue the transportation of traffic assembled by freight forwarders would not constitute a restriction of their service to particular shippers. On the contrary, their service would continue to be available to the public to the same extent as it has been during the "grandfather" period. However, to authorize applicants to transport traffic, other than that assembled by freight forwarders, would permit them to enlarge and expand their operations beyond the scope of the transportation businesses in which they have been engaged. The issuance of authority to engage in such enlarged and expanded operations would not be in harmony with the "grandfather" provisions of the act.

We find no merit in the contention of certain protestants that we should "restrict the authority" issued to Globe to "truckload movements only." Its holding out to the general public, in the manner described above, was not limited to the transportation of truckload shipments. In fact, a substantial part of the traffic handled by it consisted of small shipments made by the general public. We think it is entitled to authority to transport both truckload and less-thantruckload shipments. The same protestants urge that we should restrict Globe to the transportation of shipments moving on bills of lading of the single freight forwarder, Universal Carloading & Distributing Company, which has assembled all traffic which Globe has transported during the "grandfather" period. We think that such a limitation is not warranted but that Globe is entitled to authority to transport traffic moving on bills of lading of any freight forwarder.

On reconsideration, we find that applicants are entitled to certificates authorizing operations by them as common carriers of general commodities (except commodities in bulk and those of unusual length, height, or weight) which are at the time moving on bills of lading of freight forwarders, between the points and in the manner described in the findings in the prior reports.

Upon compliance by applicants with the requirements of sections 215 and 217 of the act, and our rules and regulations thereunder, appropriate certificates will be issued. The applications in all other respects will be denied.

PATTERSON, Commissioner, dissenting:

The single issue here is whether a motor carrier which, during the "grandfather" period, and since, has rendered, pursuant to a contractual arrangement, a highly specialized transportation service exclusively for a single forwarder and which has not rendered or held itself out to render transportation service for any other person, can be held to have been operating as a common carrier by motor vehicle and to be entitled to a certificate as a common carrier under section 206 (a) of the act. The service rendered consists of terminal-to-terminal line-haul movement of trucks containing only such merchandise as is loaded therein by such forwarder.

A common carrier, both at common law and under the Interstate Commerce Act, is one that holds itself out to serve the "general public." As such, it is bound, within the scope of its operations, to transport for all impartially. It is the right of the public to use the carrier's facilities and to demand service of it which is the real criterion of whether a particular carrier is a common carrier. Tap Line Cases, 234 U. S. 1. Neither the forwarder's patrons nor any portion of the public had or has any such right in the situation here under consideration, the motor-carrier service being available to a single forwarder only under a special contract with it.

It would seem that the bare statement of the situation ought to suffice conclusively to establish the contract-carrier status of such a motor carrier, and doubtless the majority would have so held if the transportation contract had been with a person other than a forwarder. But, confronted by the fact that by section 418 of the act a forwarder is now prohibited from utilizing the services of carriers other than common carriers, except in terminal areas, and that a holding that the considered motor-carrier operations were those of a motor contract carrier would have the effect of preventing the carrier from continuing operations as conducted by it in the past, the majority, in order to avoid such a result, have attempted to stretch and pull the generally

recognized and accepted concept of what constitutes a common carrier in support of their conclusion that these operations were those of a common carrier. That conclusion is without support, in my opinion, in fact or in law.

The argument advanced amounts to this: That because a forwarder, in relation to its patrons who tender it small packages or lots of goods, serves the general public, any motor carrier whose services the forwarder may choose to utilize in carrying out its individual undertakings with its various patrons to have such goods transported ipso facto also serves the general public and becomes therefore a common carrier. The fallacy of this argument lies in the facts that in such a case the motor carrier has no contractual relation whatever with the forwarder's patrons, it undertakes to transport for the forwarder only and with respect to an entirely different unit of transportation, it has no liability to the forwarder's patrons but its liability is to the forwarder only, and the forwarder's relation to the transporting carrier has uniformly been held to be that of a shipper who must be treated by the carrier, if a common carrier, in all respects the same as any other shipper without regard to the forwarder's previous dealings with its patrons. Interstate Commerce Commission v. Delaware, L. & W. R. Co., 220 U. S. 235; Great Northern Ry. Co. v. O'Connor, 232 U. S. 508; Lehigh Valley R. Co. v. United States, 243 U. S. 444. That the Congress, in subjecting forwarders to regulation under part IV of the Interstate Commerce Act, fully recognized this is definitely and clearly disclosed by the legislative history. That history shows that it was the purpose of that legislation to prevent a forwarder, as a shipper over the line of motor or other carriers, from securing transportation at a less price than common-carrier rates open and available to other shippers. Among other provisions, the provision of section 418 prohibiting the utilization by a forwarder, except in terminal areas, of other than common carriers was in furtherance of that purpose. The effect of the majority holding, and the reasoning in support thereof, is to render this prohibition meaningless by declaring that any motor carrier, even though admittedly a contract carrier and authorized to operate as such, is automatically transformed into a common carrier if any persons, or the only person, engaging its services should happen to be, with or without such carrier's knowledge, a forwarder. And under the same reasoning, a motor carrier utilized by a forwarder in a terminal area would likewise ipso facto become a common carrier although section 418 recognizes that within such areas a forwarder may utilize either a contract or a common carrier. The Commission in the Acme case, 8 M. C. C. 211, recognized that forwarders employed motor contract carriers as well as motor common carriers. It is now held by the