and operating revenues during the period applicant was in operation. For example, the English Freight Company, in 1935, transported 13,834,791 pounds of freight, and its gross revenue was $95,361; and in 1939, it transported 72,649,031 pounds of freight, and its gross revenue was $513,745. Other protestant motor carriers had similar increases in the tonnage transported and in the gross revenues received. Discussion and conclusions.-The provisions of section 207 (a) require an affirmative showing that applicant is fit, willing, and able properly to perform the service proposed, and that such service is or will be required by the present or future public convenience and necessity. Protestants contend that applicant is unfit to conduct the service proposed, because his past operations were conducted unlawfully in violation of the laws of Texas. The history of applicant's operations and his difficulties with the Texas commission are adequately set forth in the report in the "grandfather" proceeding. Briefly, he filed an application with the Texas commission prior to June 1, 1935, for authority to transport general commodities exclusively in interstate commerce between San Antonio and Houston, and, after this application was denied on June 22, 1935, he resorted to the court for protection. Subsequently, he filed another similar application with the Texas commission. Although that commission originally opposed his "grandfather" application, they subsequently filed a motion with us seeking to withdraw their opposition thereto, but such motion was overruled. In the meantime, applicant's second application was approved by the Texas commission, and he was granted authority to conduct operations in interstate commerce only, as a common carrier by motor vehicle, of general commodities, between the points included in the instant proceeding, contingent upon the granting by us of similar authority. Furthermore, the joint board, to which this application was assigned for hearing and recommended order, was composed of a representative of the Texas commission, and he recommended that applicant be granted the authority sought. The fact that applicant may have violated a State law or even the act which we administer is not, as we have held in numerous cases, an absolute bar to the granting of a certificate of public convenience and necessity. Applicant is willing to conform to the provisions of the act and our requirements, rules, and regulations thereunder. He has retained his motor vehicles and at least a part of his organization. He is financially and otherwise able properly to conduct the operations for which authority is sought. 42 M. C. C. We, therefore, conclude that applicant is fit, willing, and able to conduct such operations as we may hereinafter authorize. There remains for consideration the question of whether applicant has successfully sustained the burden of proof that present or future public convenience and necessity require the proposed service. Protestants contend that existing common-carrier service between San Antonio and Houston is adequate to meet the needs of the shipping public and that, if applicant is granted the authority sought, it would tend to adversely affect transportation facilities. While the testimony of protestants' shippers and receiver witnesses lends some support to these contentions, which testimony was to the effect that such service meets their particular needs, we must consider the record in its entirety. In contrast, a number of shippers and receivers of freight used applicant's service because it met their shipping requirements and generally indicated that they would again use his service if it was reestablished. The fact that applicant satisfactorily served a number of shippers and receivers of freight for a long period of time cannot be ignored, and, after carefully considering the evidence presented by the record before us, we believe that applicant's service, to the extent hereinafter authorized, is required by the public convenience and necessity, and that the authorization thereof will not materially affect the service of existing common carriers. Although applicant seeks authority to transport general commodities without any exceptions, in either direction, there is no evidence that he has transported commodities of unusual value, livestock, dangerous explosives, commodities in bulk, those requiring special equipment, and household goods, nor is there any evidence of a need for the transportation of such commodities. The authority hereinafter granted will exclude the transportation of such commodities. Upon reconsideration, we find that the present and future public convenience and necessity require operation by applicant as a common carrier by motor vehicle, in interstate or foreign commerce, of general commodities, except commodities of unusual value, livestock, dangerous explosives, commodities in bulk, those requiring special equipment, and household goods as defined in Practices of Motor Common Carriers of Household Goods, 17 M.C.C. 467, between San Antonio and Houston, Tex., over U. S. Highway 90 to the junction with Texas Highway 73, near Alleyton, Tex., thence over Texas Highway 73 to Houston, with no service at intermediate points; that applicant is fit, willing, and able properly to perform such service, and to conform to the requirements of the Interstate Commerce Act and our rules and regulations thereunder; that a certificate authorizing such operations should be granted; and that the application in all other respects 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. COMMISSIONERS, MILLER, ROGERS, and JOHNSON dissent. PATTERSON, Commissioner, dissenting: I disagree with the majority for reasons stated in my dissenting expression in D. A. Beard Truck Lines Co. Com. Car. Applic.-New Operation, 34 M. C. C. 395. 42 M. C. C. INVESTIGATION AND SUSPENSION DOCKET No. M-2172 Submitted July 26, 1943. Decided September 14, 1943 Proposed increased motor common carrier commodity rates (1) on battery boxes, in quantities of 9,000 pounds or less, from Watertown, Mass., to Reading, Pa., found not shown to be just and reasonable; (2) on canned fruit and vegetables from Hall, Rochester, and Victor, N. Y., to Reading found just and reasonable; and (3) on macaroni products, in truckloads, from Lebanon, Pa., to New Haven, Conn., Providence, R. I., and certain points in New York and in less than truckloads from Lebanon to the New York points found unjust and unreasonable, and in less than truckloads from Lebanon to New Haven and Providence found just and reasonable. Schedules required to be canceled to extent found unlawful, and maximum reasonable rates on macaroni products, in less than truckloads, from Lebanon to the New York points, prescribed. Albert E. Enoch for respondent. W. Carroll Parks and Haskell Donoho for protestant. REPORT OF THE COMMISSION DIVISION 2, COMMISSIONERS AITCHISON, SPLAWN, AND ALLDREDGE BY DIVISION 2: Exceptions to the order recommended by the examiner were filed by the respondent, and the protestant replied. Our conclusions differ in part from those recommended. By schedules filed to become effective January 18, 1943, Antonio Spina, doing business as Pennsylvania Dispatch, of Reading, Pa., a motor common carrier, proposes to establish increased commodity rates on battery boxes,1 in quantities of 9,000 pounds or less, from Watertown, Mass., to Reading, Pa., and points within 5 miles thereof, hereinafter collectively referred to as Reading, on canned fruit and vegetables, minimum 23,000 pounds, from Hall, Rochester, and Victor, N. Y., to Reading and on macaroni products,2 in less than truckloads, and minimum 20,000 pounds, from Lebanon, Pa., to New Haven, Conn., Providence, R. I., and Albany, Binghamton, Middletown, Poughkeepsie, Schenectady, and Utica, N. Y. Upon protest of the 1 These rates would apply on asphalt composition, impregnated fiber or rubber battery boxes, covers, or vents, including necessary equipment of battery box insulating partitions, and are herein collectively termed battery boxes for convenience. 2 The term "macaroni products" includes macaroni, noodles, spaghetti, or vermicelli, canned or other than canned, and with or without various ingredients, except as otherwise indicated. Office of Price Administration on its own behalf and on behalf of the Director of Economic Stabilization, operation of the schedules was suspended until August 18, 1943, and the respondent has postponed operation of the schedules until October 16, 1943. Rates will be stated in cents per 100 pounds. The respondent is authorized to transport, over irregular routes, the commodities above mentioned from and to these points and, in addition, battery boxes from New Brunswick, N. J., to Reading, and batteries from Reading to Philadelphia, Pa., Boston, Mass., Rochester, Syracuse, Utica, and certain other points in New York, and to Maryland and the District of Columbia. The motor common carrier members of the Middle Atlantic States Motor Carrier Conference, Inc., hereinafter called the conference carriers, are the respondent's principal competitors. In March 1942, these carriers effected a general increase in their rates of about 6 percent; and on December 21, 1942, the respondent increased by a like amount his joint rates on battery boxes from Watertown to Hamburg, Pa., in connection with the New York and Pennsylvania Motor Express, Inc., beyond Reading, and on macaroni products from Lebanon to Boston, in connection with the United Transportation Company of Rhode Island beyond Providence. An increase in his local rates, which in general approximated 6 percent, and certain changes in minimum weights were established on January 18, 1943, except as suspended herein. The suspended rates, with certain exceptions hereinafter noted, represent an increase of approximately 6 percent. No evidence as to the respondent's financial position was adduced other than a general statement that his operations as a whole were profitable in 1942, although not sufficiently so, and that he anticipates the expenses incurred during the year 1943 will be substantially greater than they were in 1942 for such items as labor, taxes, tires, and repair parts. The protestant opposes the proposed increases on the ground that they will be detrimental to the economic stabilization program of the Government. As the result of the Emergency Price Control Act of 1942, as amended, the Price Administrator has issued certain regulations fixing maximum prices at which the manufacturer, wholesaler, and retailer may sell these and other commodities. The protestant's position is that any increase in transportation costs will materially affect the margin of the dealer and may necessitate an increase in the cost to the consumer, contrary to the intent of the Congress in acting to stabilize prices. Battery boxes. The present and proposed rates on the battery boxes, in quantities up to 9,000 pounds, are 86 and 91 cents, respectively. |