question but that, prior to and since June 1, 1935, applicant has actively solicited the transportation of household goods by means of extensive advertising in the New York Telephone Directory, and by personal solicitation of Carroll and at least one other solicitor. It has maintained an office in New York at the same address since prior to June 1, 1935. The testimony of Carroll and Kochansky concerning which of the two had the control over the drivers of the leased vehicles is somewhat contradictory. At the first hearing, Carroll stated that Empire hired and furnished the drivers, whereas at the second hearing he and Kochansky asserted that Carroll had always hired the drivers. Although Carroll stated that applicant carried workmen's compensation insurance and made social security tax payments on the drivers, they are listed by Empire in its social security reports as Empire's employees. The testimony of Carroll and Kochansky is that, since January 21, 1935, applicant has paid Empire on a monthly basis for the use of the trucks, and for garage rental, salaries of drivers, and gas and oil. Checks evidencing payment to Empire by applicant for such items, the earliest of which was dated September 4, 1936, were received in evidence. These bore certain notations such as "drivers' salaries, leasing of vans, gas, oil and fine"; "gas, oil, union dues, plates"; and "leasing of vans, gas, oil, garage, salaries," to indicate the object for which they were drawn. Although Carroll stated that checks evidencing payment to Empire for the use of vehicles prior to June 1, 1935, were either in applicant's files or in the possession of a local attorney and he promised to produce them, he did not do so. Similarly, Kochansky, stating that Empire's books would show such payments, did not produce the books. Although payments to Empire were based upon a monthly accounting, applicant sometimes did not settle with Empire for 2 or 3 months. Prior to June 1, 1935, the "leased" trucks were operated under State authorities and State license plates issued to Empire. The record does not show in whose name the vehicles were registered prior to 1937. Beginning at that time they were registered in New Jersey under the names of Empire as lessor and applicant as lessee. It appears that the vehicles have always carried Empire's name in addition to applicant's. In July 1937, when applicant's name was changed, the vans were lettered "Member Interstate Van Lines," in addition to "Empire Moving & Storage Co." Neither Carroll nor Kochansky was able to explain why Empire's name was carried on the vehicles. Both insisted that Empire never used them. It appears that Empire has never leased vehicles to any person other than applicant. The oral testimony is that applicant has always provided and paid for public-liability, property-damage, and cargo insurance, although this is at variance with the provisions of the first lease. No policies to substantiate the claims were submitted. Samuel Kochansky stated that the only time he takes any active part in the management of applicant is when Carrol is out of town and that he has never drawn any remuneration from applicant, except one dividend of $300 in 1939. He drew up contracts for moving in the name of United Transit, prior to June 1, 1935. It is noted that Abraham Kochansky also signed a contract representing applicant prior to June 1, 1935. Samuel Kochansky stated that he had seen his brother Abraham around applicant's office. In addition to the relations between applicant and Empire with respect to the leasing of equipment, each turns over or "surrenders" to the other household-goods shipments for a 30-percent commission. Both are participants in the same agency tariff. Neither, however, participates in a joint haul with the other. Empire surrenders to applicant in preference to other carriers. At the time of the further hearing, applicant was indebted to Empire for fixed charges under the terms of the leasing agreement then in effect. A storage receipt dated September 4, 1936, and issued by Empire when goods delivered to it by applicant for storage were released to applicant for transportation, bears the printed heading "Empire Moving & Storage Company" and the typewritten statement "Agents for United Transit Lines, Inc." Carroll, denying that either Empire or applicant was ever an agent for one another, offered the explanation that an office employee must have made the insertion through inadvertence. The burden of establishing affirmatively that since prior to June 1, 1935, it has maintained direction and control over the leased equipment and drivers thereof and responsibility for the operations conducted therewith is upon the applicant. After reviewing all of the evidence we are not convinced that applicant has sustained this burden. In the light of all the evidence, and in view of the fact that Empire was on June 1, 1935, and since that time has been, engaged in operations as a common carrier in most of the territory claimed by applicant, we conclude that applicant has not established that it was a bona fide common carrier by motor vehicle within the meaning of the act on and since June 1, 1935. No. MC-73728.-Applicant submitted oral and documentary evidence showing that, since prior to June 1, 1935, it has, for a 30-percent commission, surrendered shipments to motor carriers for transportation. However, it is not necessary for an applicant seeking a license to show the extent of past operations but only to establish that the proposed operation is or will be consistent with the public interest and the national transportation policy, and that it is fit, willing, and able properly to perform such service. 42 M. C. C. Applicant receives a weekly average of 10 notifications from outof-town carriers advising the approximate date when their vehicles will arrive at New York and be available for return loads. Applicant also canvasses the drivers of equipment awaiting return loads at several parking lots in New York. Applicant never acts as a broker with respect to a shipment moving to or from a point beyond the territory in which it claims operating authority as a carrier. It always receives its commission from the carrier and never from a shipper. Applicant releases goods only to carriers who are participants in the agency tariff in which it also participates. It seems evident that applicant's status under the act, when it arranges for transportation by a carrier for a commission, is that of a broker unless its restriction of such service only to members of the tariff in which it participates would make it an agent of such carriers rather than a broker. Even assuming, however, that applicant's operations meet the test of a broker's status and that it is fit and able to perform the proposed operation, there remains the question whether such operation would be consistent with the public interest and the national transportation policy. Except for evidence that applicant has acted as an intermediary between shippers and carriers in the past, there is no showing that a need for the continuance of such operation exists. Applicant, by reason of the fact that its president is a partner in a carrier holding extensive operating rights, would naturally be inclined to give the related carrier the first opportunity to take desirable shipments. For a broker to be bound by any circumstances, however weak, to favor one carrier over others is, in our opinion, to render him incapable of performing a service consistent with the public interest and the national transportation policy. Such circumstances destroy the free exercise of discretion which should be that of a broker in making the most favorable arrangements for the general public. Under all of the circumstances, we conclude that it has not been shown that the proposed operation as a broker would be consistent with the public interest and the national transportation policy. In its exceptions to the recommended order of the examiner on further hearing applicant, among other things, requests a rehearing. An initial and further hearing herein have already been held. Applicant alleges no newly discovered evidence or other consideration to support its request for still a further hearing, and we are not persuaded that another hearing is warranted. Applicant's request is accordingly denied. We find, in No. MC-73727, that applicant has failed to establish that on June 1, 1935, it was, and continuously since has been, in bona fide operation as a common carrier by motor vehicle, in interstate or foreign commerce; and that the application should be denied. We find, in No. MC-73728, that applicant has failed to establish that the proposed operation as a broker will be consistent with the public interest and the national transportation policy; and that the application should be denied. An appropriate order will be entered. 42 M. C. C. No. MC-96488 LUKENS STEEL COMPANY CONTRACT CARRIER Submitted January 14, 1943. Decided August 24, 1943 1. Operation by applicant in the transportation of the property of two subsidiaries wholly owned by applicant found to be that of a contract carrier by motor vehicle, as defined in section 203 (a) (15) of the Interstate Commerce Act. 2. Operation by applicant as a contract carrier by motor vehicle of steel and steel products from Coatesville and South Coatesville, Pa., to New York, N. Y., and points in New Jersey, over irregular routes, found consistent with the public interest and the national transportation policy. Issuance of a permit approved upon compliance by applicant with certain conditions, and application denied in all other respects. Charles J. Hepburn and Philip R. Hepburn for applicant. REPORT OF THE COMMISSION DIVISION 5, COMMISSIONERS LEE, ROGERS, AND PATTERSON BY DIVISION 5: No exceptions were filed to the order recommended by the examiner, but it was stayed by us. Our conclusions differ from those recom mended. By application filed March 18, 1942, Lukens Steel Company, a corporation, of Coatesville, Pa., seeks a permit authorizing operation, in interstate or foreign commerce, as a contract carrier by motor vehicle, of iron and steel articles, from Coatesville to points in New York and New Jersey, over irregular routes. Joint Northeastern Motor Carrier Association, Inc., opposes the application. The instant application was filed as a precautionary measure to protect applicant's right to continue operations instituted prior to July 1, 1935, and to determine its status under the Interstate Commerce Act. By petition filed with the application, applicant alleges that its operation constitutes private carriage for which no certificate or permit from us is necessary and requests that the application be dismissed. In view of our findings herein, this petition will be denied. Applicant's operation comprises the transportation of its own property and that of two subsidiaries, By-Products Steel Corporation, and Lukenweld, Inc., hereinafter called By-Products and Lukenweld, |