the recommendation of an appropriate order thereon. Hearing has been held. Rail carriers in trunk-line territory intervened but presented no testimony. Applicant's testimony and other evidence discloses that fertilizer is transported from Carteret to Lyons and Medina, and canned goods from Medina to Pittsburgh, over specified routes described in the appendix, and the application will be treated as amended accordingly. Applicant also transports fertilizer, moving by barge from Carteret, from the Barge Canal ports to Lyons and Medina, but this transportation is the subject of another proceeding. Applicant was originally a road contractor and became engaged in the general trucking business in 1933. He was registered in 1934 under the trucking code of the National Recovery Administration. Prior to 1936 applicant kept very little documentary evidence of shipments transported but the evidence shows that he has transported fertilizer, in truckloads, from Carteret to Medina and Lyons prior to June 1, 1935, and continuously since that time. The first shipment of canned goods from Medina to Pittsburgh occurred on October 15, 1935, and similar transportation has been performed continuously since. As this transportation was not commenced before the statutory date, public convenience and necessity must be shown. Canned goods are transported in truckload quantities only, according to the requirements of the shipper. Applicant is the only operator in Medina who is equipped and able to conduct this operation. The fact that the shipper has continued to use applicant's facilities over a period of two years indicates the need and desirability of his service. While the application is for a permit as a contract carrier, it contains a prayer for a certificate as a common carrier if that is found to be the appropriate form of authority. Applicant testified that he operated under verbal agreements until June 1936, when he obtained written contracts for the transportation of fertilizer and canned goods in compliance with the Commission's requirements governing contract carriers. Applicant did not understand the distinction between common and contract carriers, but stated that he had always held out, and continues to hold out, to transport for any one who desires to use his services. In view of this "holding out" and the fact that applicant engages in other operations as a common carrier, which are the subject of another proceeding, it is believed that the considered operation is that of a common carrier. Applicant has six semitrailer units and maintains a small storage warehouse at Medina. He employs only experienced drivers, who have been instructed to observe the Commission's safety regulations. No. MC-86332 A. MASTROBERTE COMMON CARRIER APPLICATION Decided July 30, 1938 1. The operation here considered found to be that of a contract carrier. 2. Operation by applicant as a contract carrier by motor vehicle, of steel pipe, from Passaic, N. J., to New York City, N. Y., found to be consistent with the public interest and the policy declared in section 202 (a) of the Motor Carrier Act, 1935. Permit granted. Application denied in all other respects. Morris Dobrin for applicant. Grover R. James for protestants. REPORT OF THE COMMISSION DIVISION 5, COMMISSIONERS EASTMAN, CASKIE, AND ROGERS BY DIVISION 5: On June 30, 1938, the following recommended report and a recommended order appended thereto, filed with us by joint board No. 67, were served on the parties. No exceptions to the order were filed, but on July 20, 1938, we postponed to July 30, 1938, the date on which the said order should become the order of the Commission and become effective. Not having been stayed or further postponed by us, it has become effective as our order. REPORT AND ORDER RECOMMENDED BY JOINT BOARD NO. 67, COMPOSED OF THOMAS L. HANSON OF NEW JERSEY AND D. J. DRISCOLL OF PENNSYLVANIA By application filed September 23, 1936, A. Mastroberte, of Garfield, N. J., seeks a certificate of public convenience and necessity authorizing operation as a common carrier by motor vehicle, in interstate or foreign commerce, of general commodities, between points in New Jersey, New York, and Pennsylvania, over irregular routes. At the time and place originally appointed, the application was called for hearing but applicant did not appear nor did anyone appear in his behalf. Thereupon the joint board recommended that the application be denied for want of prosecution. However, upon applicant's petition for further hearing and in accordance with the provisions of the Motor Carrier Act, 1935, the application was referred to joint board No. 67 for further hearing and the recommendation of an appropriate order thereon. Such further hearing has been held. Trunk-line rail carriers opposed the granting of the application as filed, but withdrew their opposition when it became apparent that applicant was seeking only certain limited authority as will hereinafter be discussed. Central New York Freightways, Incorporated, filed a protest but did not enter an appearance at the hearing. Applicant has been engaged in motortruck operations for about 18 years. During 1935, and for some time prior thereto, applicant was operating, and was president of, Liberty Motor Freight Transportation Company, Incorporated,1 of Garfield, N. J., hereinafter called Liberty. At that time applicant did not conduct any operations in his own name. Liberty seasonably filed an application 2 claiming rights substantially the same as those sought in the instant application. Some time subsequent to 1935 applicant severed his connection with Liberty and, as an individual, began transporting steel pipe for the Midwest Piping and Supply Company, Incorporated, hereinafter called Midwest, from Passaic, N. J., to New York City, N. Y. Although applicant testified that he has been performing this transportation for the past 18 years, it is evident that for a substantial portion of that time, including 1935, such transportation was conducted by Liberty. It therefore follows that the transportation service which applicant has been conducting since the termination of his relationship with Liberty has been, and is, unlawful, as applicant did not acquire any "grandfather" rights in his own name through the application filed by Liberty. The application should not be denied solely because of such unlawful operation. Applicant, however, should discontinue this operation until he obtains proper authority therefor. The application requests authority to transport general commodities from and to points in New Jersey, New York, and Pennsylvania as a common carrier, but applicant, at the hearing, stated that he desires authority only to transport steel pipe, under contract with Midwest, from Passaic to New York City. It seems clear that such an operation is that of a contract carrier rather than that of a common carrier, and an applicant should be granted that form of authority which the evidence shows it is entitled to receive. Tucker Contract Carrier Application, 2 M. C. C. 335. 1 This company on September 30, 1936, was authorized to change its name to Liberty Fast Freight Company, Incorporated. Under the “grandfather" clause of section 206 (a) of the act. New York City includes the boroughs of Manhattan, Bronx, Queens, Brooklyn, and Richmond. Although no representative of Midwest testified in his behalf, applicant claimed that Midwest desires him to continue hauling for it. Since the hearing applicant has submitted a copy of a contract with Midwest which, although it may or may not conform to the requirements of the Commission relative to the filing of bilateral contracts, is indicative that that company does desire applicant to transport its shipments of steel pipe from Passaic to New York City. Applicant owns one truck, and he appears to be financially and otherwise able to conduct the operation here considered. He has never had an accident and is willing to conform to the insurance requirements of the Commission. The joint board finds that the operation here considered is that of a contract carrier under the Motor Carrier Act, 1935; that applicant is fit, willing, and able properly to perform the service of a contract carrier by motor vehicle, in interstate or foreign commerce, of steel pipe, from Passaic to New York City, over irregular routes, and to conform to the provisions of the Motor Carrier Act, 1935, and the requirements, rules, and regulations of the Commission thereunder; and that such service will be consistent with the public interest and with the policy declared in section 202 (a) of the act. An appropriate permit should be granted upon compliance by applicant with the requirements established in Contracts of Contract Carriers, 1 M. C. C. 628. It is recommended that the appended order be entered. The joint-board member from the State of Pennsylvania, who was necessarily absent, did not participate in the disposition of this case. 9 M. C. C. No. MC-88051 McMAKIN MOTOR COACHES, INCORPORATED, EXTENSION OF OPERATIONS Decided July 22, 1938 Public convenience and necessity found to require operation by applicant as a common carrier by motor vehicle, in interstate or foreign commerce, of passengers and their baggage, and of express and newspapers in the same vehicle with passengers, over specified routes between Vernon and Seymour, Tex., and between Floydada and Childress, Tex., including service at intermediate points. Certificate, which shall include authority to transport mail, granted. W. D. Benson, Jr., for applicant. REPORT OF THE COMMISSION DIVISION 5, COMMISSIONERS EASTMAN, CASKIE, AND ROGERS BY DIVISION 5: On June 22, 1938, the following recommended report and a recommended order appended thereto, filed with us by joint board No. 77, were served on the parties. No exceptions to the order were filed, but on July 12, 1938, we postponed to July 22, 1938, the date on which the said order should become the order of the Commission and become effective. Not having been stayed or further postponed by us, it has become effective as our order. REPORT AND ORDER RECOMMENDED BY JOINT BOARD NO. 77, COMPOSED OF C. V. TERRELL OF TEXAS By application filed June 10, 1937, McMakin Motor Coaches, Incorporated, of Lubbock, Tex., seeks a certificate of public convenience and necessity authorizing operation as a common carrier by motor vehicle, in interstate or foreign commerce, of passengers and their baggage and of express, mail, and newspapers in the same vehicle with passengers, between the following points, over regular routes: Route 1, between Vernon and Seymour, Tex., over Texas Highway 23. Route 2, between Floydada and Childress, Tex., over a county road which is apparently an extension of Texas Highway 207 to Silverton, Tex., over Texas Highway 86 to Estelline, Tex., and over U. S. Highway 370 to Childress, and all points intermediate thereto, except between Childress and Estelline. No intrastate passengers transported. |