Page images

York City, Lebanon, and Baltimore. The Philadelphia commercial zone includes Camden in New Jersey and Chester and Marcus Hook in Pennsylvania. Lebanon is treated as a specific point, because it is the only point served in Lebanon County and because that county is somewhat remote from the rest of the northern territory served by applicant.

Summing up, we conclude that, south-bound, applicant has rendered substantial service since February 6, 1936, as a common carrier by motor vehicle of general commodities, with exceptions shown in footnote 1, from the foregoing origin areas to points in Mecklenburg, Cabarrus, Guilford, Rowan, and Rockingham Counties, N. C.

General discussion.-As a basis for our ultimate conclusions, we have determined the scope of the operations conducted substantially and continuously by applicant and its two predecessors, Keller and Hawkins. As seen, the operations of all three carriers varied in some respects according to the direction of movement, that is, north-bound and south-bound.

North-bound, Keller transported new furniture, lumber, and herbs, whereas applicant transported textile products. Both were engaged in a special-commodity service, but each transported different groups of commodities. Keller's service was used chiefly by furniture manufacturers and applicant's by textile manufacturers, although both classes of manufacturers are located throughout the respective origin areas in North Carolina. As far as the record discloses, applicant has never transported new furniture, lumber, and herbs, nor attempted to serve the customers of Keller. In actual practice, it abandoned the north-bound operations formerly conducted by Keller. Thus, we rely on no mere technicality in concluding that, north-bound, applicant has failed to continue the operations of Keller because it has transported an entirely different group of commodities.

North-bound, Hawkins transported general commodities, including textile products, and applicant transported textile products but no other variety of general commodities. The description "general commodities” is broad and clearly includes textile products as well as numerous other varieties of general commodities. Applicant transported one variety of commodities (textile products) the same as Hawkins, even though it abandoned the transportation of all other varieties of commodities formerly carried by him. As respects the commodities transported, we conclude, therefore, that applicant has continued the operations of Hawkins. Compare Bondurant Common Carrier Application, 34 M. C. C. 175.

The question remains whether applicant has continued the operations of Hawkins as respects the territories served north-bound, especially the points of origin in North Carolina. The base origin area served by Hawkins includes nine counties in the north central part of the State whereas that served by applicant includes three counties in the south central part. The former counties lie to the north, and the latter to the south, of the Yadkin River. Since the counties served by applicant lie south of those served by Hawkins, its operations have differed from his in respect of the origin territories served. We conclude that, north-bound, applicant has not continued the operations of Hawkins, because it has served a different origin territory.

South-bound, the two predecessors and applicant transported general commodities. The question here is whether applicant has continued to serve the same territories as the respective predecessors and, if so, the geographical scope of such territories. Applicant served a base destination area in North Carolina which includes points formerly served by one or the other of the predecessors, and, in some instances, by both. It also served an outlying origin area in the northern territory which includes similar duplications. For purposes of comparison, the points served substantially and continuously by each predecessor and applicant in south-bound operations are set forth in the appendix hereto.

Inasmuch as the territories served by Hawkins are broader than those served by Keller, the former will be considered first. Comparing the points served by Hawkins and applicant, we note that it has continued his service from and to the following points: From points in New Jersey in Hudson, Essex, Union, Middlesex, and Gloucester Counties, points in the Philadelphia commercial zone, as described in Philadelphia, Pa., Commercial Zone, supra, Lebanon, and Baltimore, to points in Mecklenburg, Cabarrus, Guilford, Rowan, and Rockingham Counties, N. C. A similar comparison of the points served by Keller and applicant shows that the latter served no additional points as successor to the former. Applicant served some points that were served by Keller as well as by Hawkins, but these duplicate points will be authorized on the basis of the service of Hawkins.

Finally, the operations conducted by applicant as successor to these two predecessors will be compared with its present authorized operations and revised to preclude any grants of duplicate authority. On April 3, 1943, applicant, as successor to certain other predecessors, was issued a certificate of public convenience and necessity which, insofar as here pertinent, authorizes the transportation of general commodities, with exceptions shown in footnote 1, between Lexington and points in North Carolina within 135 miles of Lexington, on the one hand, and, on the other, New York City, Newark and Bayonne, N. J., Philadelphia and Chester, Pa., and Baltimore, over irregular routes. The 135-mile area surrounding Lexington includes all points in the base destination area served by applicant as successor to Keller and

Hawkins. As a result, applicant now has authority to serve all points in this base destination area from the foregoing six points in the northern territory. In order to preclude the grant of duplicate authority, these six points of origin will be eliminated in describing the outlying origin area which applicant is entitled to serve under our findings herein.

As seen from the foregoing discussion, applicant and its predecessors have conducted operations in the same general territory, namely, between North Carolina and the States north thereof as far as New York City. Our conclusions as to the commodities transported and the points served by applicant are entitled to considerable weight as they are based primarily on a mathematical analysis of 2,300 shipments in the absence of any oral testimony respecting specific operations. This analysis clearly shows what applicant has done since February 6, 1936, and, thus, affords a reliable basis for determining the exact extent to which it has continued the prior operations of each of its predecessors. The precise operations which it is entitled to continue are those conducted south-bound as described in our findings.

Findings. On reconsideration, we find that the respective predecessors were on June 1, 1935, and that such predecessors and applicant, successively, have been continuously since, in bona fide operation as common carriers by motor vehicle, in interstate or foreign commerce, for the transportation of general commodities, with exceptions shown in footnote 1, over irregular routes, from points in New Jersey in the following counties: Hudson (except Bayonme), Essex (except Newark), Union, Middlesex, and Gloucester, points in the Philadelphia commercial zone (except Philadelphia and Chester, Pa.) as described in Philadelphia, Pa., Commercial Zone, 17 M. C. C. 533, and Lebanon, Pa., to points in Mecklenburg, Cabarrus, Guilford, Rowan, and Rockingham Counties, N. C.; that applicant is entitled to a certificate of public convenience and necessity authorizing the continuance of such operations; and that in all other respects the application should be denied.

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 denying the application except to the extent granted herein. JOHNSON, Commissioner, dissenting:

The findings in this report deny applicant authority to transport any traffic north-bound but authorize it as the successor in interest of Keller and Hawkins to operate south-bound as a common carrier of commodities generally from all points in Hudson, Essex, Union, Middlesex, and Gloucester Counties in New Jersey, and points in the Philadelphia commercial zone to points in five counties in North Carolina. Applicant now has authority to operate as a common carrier of commodities generally, as a successor of S. M. Hederick, between Lexington, N. C., and all points in North Carolina within 135 miles of Lexington, on the one hand, and the cities of Warsaw and New York, N. Y., Newark and Bayonne, N. J., Chester, Philadelphia, Meadville, Allentown, Lewistown, Reading, and Pottsville, Pa., Cumberland and Baltimore, Md., Columbus, Zanesville, and Akron, Ohio, and Parkersburg and Huntington, W. Va.

Therefore, applicant can now operate as a common carrier of commodities generally from all points in North Carolina within a 135-mile radius of Lexington to two cities in New Jersey, two in New York, seven in Pennsylvania, and two in Maryland. But it cannot transport any traffic to any adjacent or intermediate point in those States. It can transport traffic from all points in five counties in New Jersey to all points in five counties in North Carolina, but it cannot transport any traffic to any intermediate or other point in North Carolina. From Bayonne, in Hudson County, and Newark, in Essex County, N. J., it may transport traffic to any point in North Carolina within a radius of 135 miles of Lexington, but from Jersey City, in Hudson County, and all other points in New Jersey it can only transport traffic to two counties in the northern part of North Carolina and three counties in the southwestern part of that State. It would be a very difficult matter to police such overlapping operations.

Applicant is seeking operating rights between all points in the territory it is now serving in North Carolina and the territory in the northern States referred to above served by Keller and Hawkins. Keller and Hawkins held themselves out to serve the general public throughout the territory in North Carolina extending from Raleigh to Asheville, which is approximately the territory in that State applicant now has authority to serve. They held themselves out to carry general commodities, actually solicited anything they could get, and carried all traffic tendered to them. The predominating traffic handled by both was new furniture. Hawkins seems to have been more successful than Keller in procuring a variety of other traffic. The testimony as to the operations of both carriers is not very conclusive as to the multiformity of the articles transported, the frequency of movement of the diverse commodities, or the points at which shipments of such articles originated. It seems clear, however, that both carriers rendered what is referred to in the report as call and demand service over irregular routes, and that they did not by word or deed limit their services to any specific commodities, or from any particular origins or areas within the territory they held themselves out to serve. The report concludes that Keller was a common carrier north-bound of a special group of commodities, namely, new furniture, lumber, and herbs He actually carried a number of other commodities but in

a very much smaller volume than new furniture and with less frequency. The report concludes that Hawkins was a common carrier of commodities north-bound. The mere fact that the variety of articles transported may be limited and that one or more commodities may constitute the great bulk of the tonnage transported does not necessarily make a carrier a carrier of only special commodities. This is exemplified clearly by some of the coal-carrying railroads.

Applicant obtained the operating rights of Keller and Hawkins on February 6, 1936, commenced operations as the successor of those carriers, and has continued such operations since that time. The evidence as to applicant's operations deals only with the period between February 6, 1936, and December 31, 1938. It did not obtain rights to operate as a successor of Hederick until April 6, 1938. It was not successful in retaining the business of the principal shippers served by Keller and Hawkins, but it was more successful than either of them in obtaining textile products for transportation. Therefore, there was a shift in the predominating kind of traffic transported by its predecessors and by it, and consequently in the origins from which the bulk of that traffic moved. New furniture, textile products, and tobacco products are the principal manufactures produced in North Carolina. Therefore, it is natural that one or more of those commodities should constitute the bulk of north-bound traffic of most motor carriers. To consider all other traffic incidental, occasional, or unsubstantial, and to deny carriers the right to transport other commodities on that ground would not preserve the national transportation system.

Applicant held itself out to serve the same territory in North Carolina that its predecessors served. It actually solicited all kinds of traffic and transported whatever it was able to obtain. Applicant obtained possession of Keller's and Hawkins' business in order that it might lawfully operate as a common carrier by motor vehicle in 1936. It knew that the continuation of their operations was necessary to entitle it to a certificate under the "grandfather” clause. There is no warrant for the conclusion that it abandoned the operations of Keller by confining its carriage to three commodities not transported by him and abandoned the operations of Hawkins by ceasing to serve the territory served by him. It is said that applicant's operating revenue is now about $800,000 a year.

In United States v. Carolina Freight Carriers Corp., 315 U. S. 475, with which the majority says the report is intended to conform, the Court said, at page 488: Appellee's "bona fide operation” may possibly be limited only to those articles actually carried. But where it was actively soliciting whatever it could get at any of the points, it does violence to its common carrier status to make the origin or destination of future shipments conform to the precise pattern of the old.

« PreviousContinue »