No. MC-2986 (SUB-No. 1) INDIANAPOLIS & SOUTHERN MOTOR EXPRESS, INCORPORATED, EXTENSIONS-INDIANA Decided August 20, 1938 Public convenience and necessity found to require operation by applicant as a common carrier by motor vehicle, in the transportation of general commodities, in interstate or foreign commerce, between points within Indiana, over five specified routes. Claude H. Anderson and W. Wallace Wilhite for applicant. DIVISION 5, COMMISSIONERS MEYER, SPLAWN, AND ROGERS BY DIVISION 5: On July 21, 1938, the following recommended report and a recommended order appended thereto, filed with us by joint board No. 72, were served on the parties. No exceptions to the order were filed, but on August 10, 1938, we postponed to August 20, 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. 72, COMPOSED OF MOIE COOK OF INDIANA The Indianapolis & Southern Motor Express, Incorporated, of Indianapolis, Ind., by application filed August 23, 1937, seeks authority to operate as a common carrier by motor vehicle, of general commodities, in interstate or foreign commerce, over five specified routes within Indiana. The routes are detailed in an appendix to this report. In accordance with the provisions of the Motor Carrier Act, 1935, the application was referred to the joint board for hearing and the recommendation of an appropriate order thereon. Hearing has been held. No one opposed the granting of the application. Applicant's history and general operations are detailed in the report covering its "grand father" operations, and the evidence in that record has, by reference, been made part of the record here. 1 No. MC-2986, Indianapolis & Southern Motor Express, Incorporated, Common Carrier Application. From a time prior to June 1, 1935, to the present time, applicant has operated continuously over the five routes and has served all points thereon in the transportation of general commodities moving in interstate or foreign commerce, as well as in intrastate commerce. The Public Service Commission of Indiana, by an order approved September 18, 1936, authorized intrastate operation over all the routes. The five routes are all short, one being 21 miles, and the others not exceeding 2 miles in length. The points to be served are few and unimportant. Some of the points are not served by other motor carriers. Two of the routes will connect some of applicant's principal routes and thereby facilitate service over these lines. The fact of operations during the "grandfather" period, together with other facts of record, fully justifies the granting of the authority sought. The joint board finds that present and future public convenience and necessity require operation by applicant as a common carrier by motor vehicle, in the transportation of general commodities, in interstate or foreign commerce, between the points and over the routes set forth in the appendix to this report; that applicant is fit, willing, and able properly to perform such service and to conform to the provisions of the act and to the requirements, rules, and regulations of the Commission thereunder; and that an appropriate certificate should be issued. In view of the findings herein, the joint board recommends that the appended order be entered. APPENDIX Route 1, between Princeton, Ind., and the junction of Indiana Highways 57 and 56, as follows: From Princeton over Indiana Highway 64 to its junction with Indiana Highway 57, thence over Indiana Highway 57 to its junction with Indiana Highway 56, passing through and serving all intermediate points. Route 2, between the junction of Indiana Highways 58 and 67 and Freelandville, Ind., as follows: From the junction of Indiana Highways 58 and 67 over Indiana Highway 58 to Freelandville, passing through and serving all intermediate points. Route 3, between Indiana Highway 56 and Dubois, Ind., as follows: From Indiana Highway 56 over a county road to Dubois, passing through and serving all intermediate points. Route 4, between the junction of Indiana Highways 37 and 39 and the junction of Indiana Highways 39 and 67, as follows: From the junction of Indiana Highways 37 and 39 over Indiana Highway 39 to its junction with Indiana Highway 67 passing through and serving all intermediate points. Route 5, between the junction of U. S. Highway 50 with Indiana Highway 1 and Milan, Ind., as follows: From the junction of U. S. Highway 50 with Indiana Highway 1 to Milan, passing through and serving all intermediate points. No. MC-30259 COAST LINE EXPRESS, INCORPORATED, CONTRACT CARRIER APPLICATION Decided August 20, 1938 1. Applicant's operations found to be those of a common carrier. 2 Applicant found entitled to continue operation as a common carrier by motor vehicle, over irregular routes, of malt beverages and automobile parts and accessories, from Lowell, Mass., to points in certain parts of Maine and New Hampshire, with empty beverage containers on return, and of carbonated beverages from Chelmsford, Mass., to Bangor and Waterville, Maine, with empty beverage containers on return. Certificate granted. Application denied in all other respects. J. Joseph Hennessey for applicant. Harry S. Kearney, James G. Lane, and Oliver C. Peterson for in terveners. REPORT OF THE COMMISSION DIVISION 5, COMMISSIONERS MEYER, SPLAWN, AND ROGERS BY DIVISION 5: On July 21, 1938, the following recommended report and a recommended order appended thereto, filed with us by the examiner, were served on the parties. No exceptions to the order were filed, but on August 10, 1938, we postponed to August 20, 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 THE EXAMINER By application filed January 29, 1936, as supplemented, Coast Line Express, Incorporated, of Lowell, Mass., seeks a permit as a contract carrier authorizing it to continue the transportation by motor vehicle, of automotive merchandise, beer, sugar, light textile machinery, nonalcoholic beverages, potatoes, and canned goods, in interstate or foreign commerce, between points in Connecticut, Maine, Massachusetts, New Hampshire, New York, Rhode Island, and Vermont, over irregular routes. * Under the "grandfather" clause of section 209 (a) of the Motor Carrier Act, 1935. In accordance with the provisions of the Motor Carrier Act, 1935, the application was referred to the examiner for hearing and the recommendation of an appropriate order thereon. Hearing has been held. Rail carriers in New England and trunk-line territories, Maine Central Transportation Company, Boston & Maine Transportation Company, New England Transportation Company, Railway Express Agency, Associated Motor Carriers Service Bureau, and the New Hampshire Motor Rate Bureau intervened but submitted no evidence. Applicant, or its predecessor in interest, has been in operation for a number of years. In 1934 applicant was incorporated under the laws of the Commonwealth of Massachusetts. Prior to that date operations were conducted under the name of D. T. Trombly & Sons. Applicant has obtained authority from the States of Maine, Massachusetts, and New Hampshire covering its operations. Present operations of applicant are confined to the transportation of automobile parts and accessories, malt beverages, carbonated beverages, empty beverage containers, and potatoes. There is no doubt but that applicant transported these few commodities on and prior to the statutory date and has so operated since that time, with the exception hereinafter noted. There was no evidence introduced by applicant concerning its operations in New York and Vermont. Operations in Connecticut and Rhode Island ceased sometime ago. Transportation of canned goods and textile machinery has been discontinued. Authority to operate in the afore-mentioned States or to transport canned goods and textile machinery need not be further considered herein. This part of the application should be denied. No sugar has been transported since January or February, 1938. This transportation was performed under an agreement with a sugar refinery, but the agreement has expired. The refinery, however, did offer to renew the agreement. Applicant's witness stated that it expected to resume the transportation of sugar, but had no idea as to when such service would be renewed. The only reason offered by applicant for this interruption was, "Because we have been handling beer for Harvard Brewing Company in Maine and we have not cared to take it up at present." A motor carrier must not only prove bona fide operation on the statutory date, but, in addition, must also show that it has so operated since that time except for interruptions over which it had no control. It is apparent from the above facts that this cessation is plainly one over which applicant had control. Authority to transport sugar should, therefore, be denied. Applicant buys potatoes at points in Maine within 35 miles of Bangor and sells them to various retail and wholesale stores in Nashua, N. H., and Boston and Lowell, Mass. Applicant does not operate a store nor is it in the wholesale potato business. Potatoes are bought and sold at the market price and no charge is made for their transportation. In effect, applicant peddles the potatoes and offers to sell them to any of the stores. This transportation is that of a private carrier for which no authority is required under the Motor Carrier Act, 1935. Compare Clemence Contract Carrier Ap plication, 2 M. C. C. 292. In defining the territorial limits of a service as a carrier for hire, such as applicant's, involving but four specific commodities, a broader grant of authority is appropriate than in the case of services which involve the transportation of numerous commodities moving regularly to all points. The territorial authority to be granted herein will include authority to transport to points on those portions of the highways indicated as well as to the specific points named. Applicant has transported malt beverages from Lowell, and empty beverage containers on return, to points in Maine as far north as Bangor, Madison, and Waterville, and to such representative points in New Hampshire as Nashua, Portsmouth, and Rochester. This transportation has been continuous except that the brewery put on its own trucks for a period of one year beginning in March 1937 and served Auburn, Augusta, Portland, and Waterville, Maine, at which points the brewery maintained branches. Applicant continued, however, to serve other Maine points for the brewery and passed through some if not all four places in serving points as far north as Bangor and Madison. Applicant has also served such points with other commodities and the witness testified that service would have been rendered to other concerns if the request had been made. Under the circumstances in this case the examiner is of the opinion that applicant should be authorized to transport malt beverages to all points in that part of Maine as far north as Bangor, Madison, and Waterville. Automobile parts and accessories have been transported from Lowell to such representative points as Augusta, Biddeford, Lewiston, Portland, and Waterville, Maine, and Concord, Dover, Laconia, Manchester, Nashua, Portsmouth, and Rochester, N. H. The transportation of carbonated beverages from Chelmsford, Mass., and of empty beverage containers on return, has been and is performed to only Bangor and Waterville. The record shows that applicant would serve any other person desiring its services in the transportation of the same commodities |