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1 M. C. C. 628, an appropriate permit will be issued. An appropriate order will be entered.

PATTERSON, Commissioner, dissenting:

I do not agree with the majority that applicant is a contract carrier. Applicant's two wholly owned subsidiaries are merely departments of its business, and the trucking operations conducted by applicant, consisting in the transportation of its own products and those of its subsidiaries, is another department engaged wholly in private carriage.

42 M. C. C.

No. MC-89913 (SUB-No. 4)

FRISCO TRANSPORTATION COMPANY EXTENSION OF OPERATIONS-LAKE CITY, ARK.

Submitted August 6, 1942. Decided August 27, 1943

On reconsideration, findings in prior reports, 32 M. C. C. 141 and 41 M. C. C. 266, with respect to conditions imposed, affirmed.

Appearances as shown in prior report.

REPORT OF THE COMMISSION ON FURTHER HEARING

DIVISION 5, COMMISSIONERS LEE, ROGERS, AND PATTERSON

BY DIVISION 5:

In the original report herein, 32 M. C. C. 141, Frisco Transportation Company, of St. Louis, Mo., a corporation, and a subsidiary of the St. Louis-San Francisco Railway Company (John G. Lonsdale and J. M. Kurn, trustees), hereinafter called the railway, was granted a certificate authorizing operation, in interstate or foreign commerce, in rendering a service auxiliary to and supplemental of the rail service of the railway, as a common carrier by motor vehicle of general commodities, subject to certain conditions, (1) between Walnut Ridge and Datto, Ark., over U. S. Highway 67, serving all intermediate points, with alternate route between Pocahontas, Ark., and Datto through Middlebrook, Ark., over Arkansas Highway 115 and an unnumbered county road, (2) between Nettleton and Lake City, Ark., over Arkansas Highway 18, serving no intermediate points, (3) between Osceola and Marked Tree, Ark., over Arkansas Highway 40, serving the intermediate point of West Ridge, Ark., and those between West Ridge and Marked Tree, and (4) between Armorel and Barfield, Ark., over Arkansas Highway 18, serving no intermediate points.

Applicant at present operates a motor-carrier service over a number of routes in several States, generally paralleling the lines of the railway. As stated in the original report, it has acquired by purchase and conducts operations over several routes in Arkansas. Among these routes is one between Memphis, Tenn., and Walnut Ridge through Turrell, Ark., Marked Tree, Nettleton, and Hoxie, Ark., and another between Blytheville, Ark., and Turrell, through Osceola.

Pursuant to the grant of authority in our original report herein, as above described, a certificate was issued on March 25, 1942, which imposed, among others, the following conditions:

3. Shipments transported by applicant shall be limited to those which it receives from or delivers to the railway under a through bill of lading covering, in addition to movement by applicant, a prior or subsequent movement by rail. By order entered June 26, 1942, following a petition of applicant filed April 13, 1942, the proceeding was reopened for further hearing solely with respect to the modification of condition 3 above set forth. Further hearing has been held. Certain motor carriers oppose modification of condition 3. The parties of record submitted the case on the record developed at the further hearing, without the filing of briefs, and waived the service of a recommended order of the joint board.

On June 5, 1942, applicant filed another petition seeking modification of condition 3 to permit the hauling by it of cotton from ginning or origin points to nearby compress or concentration points under transit rules. By our report and order on reconsideration of August 31, 1942, 41 M. C. C. 266, we reopened the proceeding on the record as made, for the purpose of giving further consideration to the matter, and affirmed the findings in the prior report, except that we found that condition 3 should be modified to read as follows:

3. Shipments transported by applicant shall be limited to those which it receives from or delivers to the railway under a through bill of lading covering, in addition to movement by applicant, a prior or subsequent movement by rail, and those which it transports as parts of through shipments prior or subsequent to movement by rail under appropriate transit rules.

Accordingly, on November 26, 1942, a certificate was issued applicant, superseding the certificate issued March 25, 1942, and embodying the modified condition 3. As seen, this modification is in response to the petition of June 5, 1942, which had reference only to the peculiar characteristics of the transportation of cotton. It does not eliminate the requirement of a prior or subsequent movement by rail, but merely adds the requirement of appropriate transit rules as an alternative to that of a through bill of lading. On further hearing, applicant seeks complete elimination of condition 3.

On March 25, 1943, applicant filed another petition in which authority is requested to abandon and discontinue rendering service between certain of the points and over certain of the routes granted in our prior report, 32 M. C. C. 141, and the revocation to that extent of the certificate issued November 26, 1942, is requested.

The routes which applicant desires to abandon are (1) between Pocahontas and Success, Ark., through Middlebrook, a distance of 29 miles, (2) between Armorel and Barfield, a distance of 5 miles, and (3) between West Ridge and Osceola, a distance of 18 miles. The operations over these routes produced a deficit of $367.14 during the period July 1 to December 31, 1942. Applicant urges that there is no fur

ther need for service between the points named, and that the abandonment thereof would be in accordance with the policy established by the Office of Defense Transportation.

The alternate route authorized in the prior reports between Pocahontas and Datto through Middlebrook comprises a portion of a loop through Datto, and no intermediate points on this alternate route are authorized to be served. Success is a point on that portion of the alternate route between Middlebrook and Datto. No service thereat was authorized under the present certificate. Abandonment of the alternate route would leave applicant with another route between Walnut Ridge and Datto, through Pocahontas, over U. S. Highway 67. The alternate route proposed to be abandoned does not parallel a line of the railway, and was authorized for applicant's operating convenience only. Applicant does not propose to eliminate that portion of the alternate route between Success and Datto. However, it has no authority to serve Success or any point between Success and Datto, and therefore no operation can be conducted beyond Datto. The route between West Ridge and Osceola which applicant proposes to abandon likewise does not parallel a line of the railway. No intermediate points are authorized to be served on this route. Service over the route between Marked Tree and Osceola through West Ridge was designed to obtain a faster distribution of less-than-carload shipments than was possible over a circuitous rail route through Turrell, Ark., or Memphis, Tenn. Applicant intends to continue service between Marked Tree and West Ridge, including intermediate points. The route between Armorel and Barfield originally was designed to provide the shipping public with more satisfactory service because of a lack of regular train service between the points.

As stated in the original report, the territory involved is served satisfactorily by independent motor carriers. The service proposed to be abandoned was found in the prior report to be auxiliary to, and supplementary of, rail service. Except for the 5 miles between Armorel and Barfield, the routes proposed to be abandoned do not parallel the rail line. The same service as applicant now renders over the route proposed to be abandoned between Pocahontas and Datto can be rendered over its remaining route between Walnut Ridge and Datto. The route between West Ridge and Osceola was authorized only for the operating convenience of applicant. The railway presumably is continuing to perform rail service between the points served by it, as stated in our original report herein. The public interest would not appear to be injuriously affected by the abandonment of motor-carrier service by applicant over the involved routes. In conformity with applicant's request for permission to abandon and discontinue certain of its operations, we conclude that the certificate

at present held by applicant should be amended to eliminate the routes above discussed, and an order will be entered for this purpose.

In view of the amended certificate to be issued eliminating authority to serve the foregoing routes, our consideration of the proposal to remove condition 3 will be limited to the remaining routes (1) between Walnut Ridge and Datto over U. S. Highway 67, serving all intermediate points, (2) between Nettleton and Lake City over Arkansas Highway 18, serving no intermediate points, and (3) between Marked Tree and West Ridge over Arkansas Highway 40, serving all intermediate points.

The evidence at the further hearing dealt primarily with the necessity for some modification of condition 3 to permit transportation by applicant of cotton which does not move on through bills of lading from origins or ginning points to nearby compress or concentration points. As hereinbefore stated, this particular situation was considered in connection with applicant's petition filed June 5, 1942, without a further hearing, and in our prior report on reconsideration, 41 M. C. C. 266, issued subsequent to the said further hearing, but without reference thereto, we modified the condition to permit applicant to transport property as parts of through shipments prior or subsequent to movement by rail under appropriate transit rules. Apparently condition 3, so modified, overcame the difficulty encountered by applicant in connection with the transportation of cotton, as applicant surrendered the certificate as originally issued, and was issued an amended certificate that includes the modified condition 3. As stated, applicant seeks the complete elimination of condition 3.

In our original report, we found that the routes under consideration were parallel with certain branch lines of the railway, over which train service would not be discontinued. Applicant's service was intended to be supplemental of or auxiliary to but not in complete substitution of such rail service. The territory served by these routes is agricultural and thinly populated. The volume of traffic to and from the territory is small. The requirement that traffic hauled by applicant between these points have a prior or subsequent movement by rail precludes the all-motor transportation by applicant of shipments originating at points such as Memphis, Tenn., and Springfield, Mo. Thus, traffic originating at Memphis must be transported by rail to a break-bulk point, such as Walnut Ridge, from which point applicant hauls the shipment to the branch-line destination. As stated, applicant at present is authorized to transport shipments originating at Memphis and destined to Walnut Ridge without these restrictions. The purpose of the proposed removal of the condition principally is to enable applicant to transport such traffic through to

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