majority here that there can be no such thing as a motor contract carrier of forwarder shipments. Failure to recognize the clear distinction between the dealings of the forwarder with its patrons and the entirely separate and distinct dealings of the forwarder with the motor carrier, and the attempt to combine the two to support the conclusion reached, serve only to produce a confusion of thought obscuring the fundamental issue. Authority may not be granted under the "grandfather" clause which will permit a carrier to expand its operations beyond the scope of those conducted in the past. The majority concede that to restrict the authorized operations to service for a particular shipper or particular shippers (in this case a forwarder, for the motor carrier had no transportation dealings with any one else) would be inconsistent with common-carrier status and that a motor carrier, whose service is so limited, "obviously would not be a common carrier." They seek to maintain the integrity of the finding that the operations were in fact those of a common carrier, and at the same time to "effectively accomplish the purpose" of restricting the operations to service for forwarders, by limiting the authority to the transportation of commodities "which are at the time moving on bills of lading of freight forwarders." Their argument is that this is a restriction as to the character of traffic and does not constitute a restriction of service to particular shippers. But, if we look back of the form of the restrictive words to what caused them and what they are intended to cause and do cause, it is obvious that they can have no other effect than to restrict the carrier's service to that for forwarders only, for the only traffic that can possibly be moving at the time on forwarder bills of lading is that tendered to the carrier by forwarders. Where common-carrier operations are lawfully limited to the handling of a particular class of traffic, any person having such traffic to transport is entitled to avail himself of the carrier's service at the published tariff rates named for such service. Here, however, the carrier's service and its published tariff rates consistent with the above restriction can be availed of only by forwarders-not by the forwarder's patrons or by any other person. Thus a shipper, such as Montgomery Ward or Sears Roebuck, desiring to make a shipment over the line of the motor carrier under the same conditions and at the same rate as applicable to a like shipment by a forwarder, would be prevented from doing so. It could obtain that particular service, if at all, only by employing the forwarder and paying the forwarder's charges, and even then would have no right to demand of the forwarder that the goods be transported over the line of that particular carrier. If such a motor carrier is a common carrier, it may not limit its service to a single forwarder, or even to forwarders, but must render like transportation sevice for others at like rates. It cannot legally enter into a contract with a forwarder for such transportation unless it makes, publishes, and applies for such service a rate open to all. Kansas City Southern Ry. Co. v. Carl, 227 U. S. 639; Chicago & A. R. Co. v. Kirby, 225 U. S. 155. If the decision of the majority is sound in principle, then particular forwarders or groups of forwarders are free to utilize particular "common carriers" whose loaded-truck facilities are devoted exclusively to such forwarders. By reason of the ensuing large and steady volume of traffic, such carriers would presumably be in a position profitably to accord lower rates than common carriers serving shippers generally could afford to maintain. The latter carriers would thus be prevented from handling such traffic at all, either directly at less-thancarload or less-than-truckload rates or for the forwarder at their carload or truckload rates, and the principal occasion for operations of a forwarder, namely, to supplement and coordinate the services offered by regular common carriers by consolidating into carload or truckload lots articles of merchandise which such common carriers would otherwise be called upon to transport in less-than-carload or less-thantruckload lots, would cease to exist. Considerations of expediency, or of supposed hardship that might result from a finding that the operations were those of a contract carrier do not justify declaring a contract carrier to be a common carrier. If applicants desire authority to operate as common carriers in order that they may continue to serve forwarders as in the past, and, as required of common carriers, to make their services available also to others, they should file an appropriate application. 42 M. C. C. No. MC-C-296 1 PETROLEUM PRODUCTS FROM KANSAS TO COLORADO Submitted March 23, 1942. Decided July 17, 1943 1. In No. MC-C-296, minimum rate on gasoline from Augusta, Kans., to Center and Monte Vista, Colo., found unjust and unreasonable. Reasonable minimum rate prescribed. 2. Proceedings in I. and S. Dockets Nos. M-1574, M-1746, and M-1786 discontinued, because the suspended schedules have been canceled. Wm. H. Burnett and E. L. Semke for respondents. J. A. Gallagher, Thomas F. King, J. E. Dimond, R. E. Brandt, and W. M. Spaulding for protestants. REPORT OF THE COMMISSION DIVISION 2, COMMISSIONERS AITCHISON, SPLAWN, AND ALLDREDGE BY DIVISION 2: Exceptions to the examiner's proposed report were filed by respondent E. L. Semke, and the protestants replied. Our conclusions differ in part from those proposed. These proceedings present related issues, were heard on a consolidated record, were the subject of a single proposed report, and will be collectively determined herein. Rates are stated in cents per gallon, except as otherwise indicated, and do not include the general increases of March 1942, except as noted. All of the movements by tank truck involve a return empty movement, and truck-mile revenues are based on round-trip distances. E. L. Semke, of Lamar, Colo., proposed to establish, by schedules filed to become effective on April 29, 1941, in Investigation and Suspension Docket No. M-1574, a reduced minimum rate on gasoline of 2.5 cents, minimum 10,000 pounds, from Augusta, Kans., to Center and Monte Vista, Colo.; and by schedules filed to become effective on August 1, 1941, in Investigation and Suspension Docket No. M-1746, a new minimum rate on gasoline of 2.75 cents, minimum 3,000 gallons, from Enid, Okla., and Hutchinson, Kans., to Center and Monte Vista. In Investigation and Suspension Docket No. M-1796, by schedules 1 This report also embraces I. and S. Docket No. M-1574, Gasoline from Augusta, Kans., to Colorado Points; I. and S. Docket No. M-1746, Gasoline from Enid, Okla., and Hutchinson, Kans., to Colorado Points; and I. and S. Docket No. M-1796, Petroleum Products from Kansas Points to Fowler and Pueblo, Colo. filed to become effective on September 5, 1941, Oscar Schultz, of Dodge City, Kans., proposed to establish, among others, reduced minimum rates on gasoline, kerosene, and distillate, in tank-truck loads, from group 6, defined in the schedules as comprising El Dorado, Potwin, Wichita, McPherson, Augusta, and Hutchinson, Kans., to Pueblo, Colo., of 1.76 cents, and from Arkansas City, Kans., to Pueblo and Fowler, Colo., of 2.06 and 1.9 cents, respectively. Upon protest of rail carriers in western trunk-line territory, operation of the schedules was suspended until November 29, 1941, March 1, 1942, and April 5, 1942, respectively, when they became effective. The title proceeding is an investigation instituted by us, on our own motion, into the reasonableness and lawfulness otherwise of the minimum rates and charges, and the rules, regulations, and practices affecting such minimum rates and charges, maintained by Semke on gasoline from Augusta to Center and Monte Vista, and by Schultz on gasoline, kerosene, and distillate from Augusta and Hutchinson to Monte Vista. Semke canceled the rate from Augusta to Center and Monte Vista that was suspended in I. and S. Docket No. M-1574, effective March 8, 1942, and established a rate of 2.7 cents, minimum 20,000 pounds. On June 21, 1942, the minimum weight was increased to 3,800 gallons. He also canceled the rate from Enid and Hutchinson that was under suspension in I. and S. Docket No. M-1746, effective June 21 and September 18, 1942, respectively, and now publishes no rate from these points. In September 1942, Schultz requested the Commission to dismiss or revoke his applications for operating authority, since he had discontinued operations and had sold his equipment. The permits issued to Schultz in Nos. MC-59031 and MC-89096 were revoked by orders entered April 19, 1943. By a supplement indicated to become effective July 30, 1943, Schultz proposes to cancel the rates suspended in I. and S. Docket No. M-1796, and those under investigation in No. MC-C-296. The investigation and suspension proceedings will therefore be discontinued. Semke offered no testimony in support of any of his rates, but stated he would rest on the evidence presented by Schultz. The average revenue experienced by Schultz for the period from January 1 to August 31, 1941, was 9.52 cents a truck-mile on movements from group 6 points to Monte Vista, at a rate of 2.9 cents, based on 20 loads of 3,500 gallons, 48 of 3,835 gallons, and 68 of 4,110 gallons. The loads of 3,835 gallons yielded 9.3 cents a truck-mile. During this same period, his total truck-mile cost, based on 342,016 miles traveled, was 8.9 cents. During the years 1931 to 1939, of the total gasoline transported by rail and truck from Kansas and Oklahoma to Colorado, the rail proportion progressively declined from 98 percent to 17 percent, and 42 M. C. C. |