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does not unduly broaden the scope of the application, in some respects narrows it, and will be allowed.

On December 1, 1934, applicant transferred his interest in the Riverhead Motor Transportation to his then copartner, Victor Smith, and immediately thereafter formed a new copartnership with his brother, using the trade name of Warner Brothers. In the summer of 1935 applicant became the sole owner of Warner Brothers, and at that time or in the summer of 1936 (the record is not clear on this point) he adopted the trade name of Andy's Express. He operates one vehicle, of the tractor-trailer type, and carries adequate insurance. Applicant transports certain commodities during approximately the following seasons: Corn meal, bran, flour, and apparently feed from April to early fall, produce from August 1 to January 1, fertilizer and seed potatoes from January 1 to April 30, and seed from April 1 to August 1.

An oil company for which applicant has worked is willing to let him transport lubricating oil for it from Bayonne to Riverhead, provided he secures appropriate authority. No shipments of oil have been transported by applicant in interstate or foreign commerce. Substantially all traffic transported by applicant to Suffolk County, except fertilizer, is received by him in New York City, but the record does not disclose whether such traffic is transported in interstate or foreign commerce. The application, as amended at the hearing, does not include New York City as a point of origin. Applicant stated that he proposes to transport all traffic in truckload quantities only.

Applicant's evidence of operation consists of (1) a general statement that he has been operating in interstate or foreign commerce since 1934, and has transported fertilizer and potatoes for a certain company on and before June 1, 1935, to and from New Jersey, and (2) a written contract between Warner Brothers and Charles Schaeffer & Son, Incorporated, of Brooklyn, N. Y., dated February 1, 1935, and ended by its own terms December 31, 1935, in which the former agreed to transport for the latter, by motor vehicle, feed, grain, salt, and other commodities from Brooklyn, N. Y., and certain points in New Jersey to points on Long Island. No testimony in corroboration of applicant's statement, or documentary proof other than the contract just referred to, was presented.

The application was not filed by February 12, 1936, and applicant's operation prior to October 21, 1936, was unlawful. Under the circumstances he is not relieved from the necessity of establishing that the proposed operation is required by public convenience and necessity, even though he were in operation on June 1, 1935, as claimed. The record indicates that a considerable number of other motor carriers conduct substantially the same type of operation in the territory in

volved as that for which authority is sought herein. Applicant has failed to sustain the burden of showing that such other carriers are not satisfying the public need and convenience, and that the proposed service would tend to improve that condition.

On exceptions, applicant contends that, because he filed tariffs with us, he should be authorized to continue operations which he conducted during the "grandfather" period. This contention is without merit. The filing of tariffs cannot be substituted for the showing required of an applicant by section 207 (a) of the act, with respect to public convenience and necessity.

1

Section 203 (b) (6) of the act in its present form 1 exempts motor vehicles used in carrying property consisting of livestock, fish (including shellfish), or agricultural commodities (not including manufactured products thereof), if such vehicles are not used in carrying any other property, or passengers, for compensation, from the provisions of the act, except the provisions of section 204 relative to qualifications and maximum hours of service of employees and safety of operation or standards of equipment. Applicant urges that if the same vehicle is used to transport agricultural commodities and the nonexempt commodities in separate loads and not in mixed loads, the exemption applies to the agricultural commodities in separate loads. It was indicated that this is the manner in which applicant transports agricultural commodities. This contention is without merit. Applicant is not entitled to the benefit of the exemption, because his vehicle is also used in carrying other than exempt commodities for compensation.

We find that applicant has failed to show that the present or future public convenience and necessity require, or will require, the service proposed, and that the application should be denied.

An appropriate order will be entered.

1 The provision has been amended, effective June 29, 1938. Prior to the amendment, the same exemption applied to "motor vehicles used exclusively in carrying livestock, fish (including shell fish), or agricultural commodities (not including manufactured products thereof)."

9 M. C. C.

No. MC-59815

L. C. ROBERTSON EXTENSION OF OPERATIONS

Decided September 19, 1938

On reconsideration, findings in prior report, 3 M. C. C. 73, amended, and operation by applicant as a contract carrier by motor vehicle, of automobiles, from the factory of Chrysler Motors of California in Los Angeles County, Calif., to Las Vegas, Nev., over a specified route, found consistent with the public interest and the policy declared in section 202 (a) of the Motor Carrier Act, 1935. Permit granted.

Appearances same as in prior report.

REPORT OF THE COMMISSION ON RECONSIDERATION

DIVISION 5, COMMISSIONERS EASTMAN, LEE, AND ROGERS

BY DIVISION 5:

In the prior report herein, 3 M. C. C. 73, joint board No. 78 found that applicant's operation as a contract carrier by motor vehicle of automobiles from Maywood, Calif., to Las Vegas, Nev., over a specified route, would be consistent with the public interest and with the policy declared in section 202 (a) of the Motor Carrier Act, 1935; and that applicant was fit, willing, and able properly to perform the service of a contract carrier by motor vehicle and to conform to the provisions of the act and our requirements, rules, and regulations thereunder. The order accompanying the report recommended the issuance of an appropriate permit. No exceptions were filed to the recommended order. We did not stay or postpone it, and on September 7, 1937, it became effective as our order. Upon petition of applicant, we reopened the proceeding for reconsideration on the record as made.

In the application it is set forth that applicant proposes to transport automobiles under contract for Chrysler Motors of California, Slauson and Eastern Avenues, Los Angeles, Calif. At the hearing, however, witnesses referred to the location of the factory from which applicant sought to transport automobiles as in Maywood, Calif., a suburb of Los Angeles. Under our prior order we intended to authorize applicant to serve the Chrysler factory. In its petition, applicant points out that the factory is not in Maywood, but is a short distance east thereof in Los Angeles County, Calif. In Robertson Contract Carrier Application, 8 M. C. C. 32, decided June 14, 1938, we

authorized the issuance to applicant of a permit to serve this factory under the "grandfather" clause of section 209 (a) of the act.

Upon reconsideration, we find that applicant is fit, willing, and able properly to perform the service of a contract carrier by motor vehicle, of automobiles, in interstate or foreign commerce, from the factory of Chrysler Motors of California at Slauson and Eastern Avenues in Los Angeles County, Calif., to Las Vegas, Nev., over irregular routes, to Los Angeles, Calif., thence over U. S. Highway 66 to Barstow, Calif., and thence over U. S. Highway 91; that such operation will be consistent with the public interest and with the policy declared in section 202 (a) of the act; and that a permit authorizing such operation should be granted.

The prior report contains the following statement with regard to caravaning methods of transporting automobiles, "the driving of cars from the California-Nevada State line to Las Vegas during 1935 was simply caravaning and was not a motor-carrier operation.” We take this opportunity to correct that statement. The moving of automobiles interstate by individual driving of the vehicle under its own power or by driving one vehicle under its own power and towing a second vehicle attached to the first either by a mechanical device, generally called a tow bar, or by bolster mount or full mount, which consists of driving one vehicle under its own power upon which another vehicle is partially (front wheels) or wholly mounted, or by a combination of both, is, in our opinion, transportation within the meaning of the act and we so conclude. See discussion in Fleming Common Carrier Application, 8 M. C. C. 469, concurrently decided.

An appropriate permit will be issued upon compliance by applicant with sections 215 and 218 of the act, with our rules and regulations thereunder, and with the requirements established in Contracts of Contract Carriers, 1 M. C. C. 628.

9 M. C. C.

INVESTIGATION AND SUSPENSION DOCKET NO. M-279

MINIMUM WEIGHTS OF COFFMAN BROTHERS

Submitted May 6, 1938. Decided September 20, 1938

Proposed minimum weights on beer, canned goods, sugar, and dairy products consisting of cheese, cream, and butter, between Baltimore, Md., New York, N. Y., Norristown and Philadelphia, Pa., and Washington, D. C., on the one hand, and points in Virginia, on the other, found unlawful. Suspended items canceled, and proceeding discontinued.

H. D. Coffman for respondents.

Glenn F. Morgan for protestant.

REPORT OF THE COMMISSION

DIVISION 5, COMMISSIONERS EASTMAN, LEE, AND ROGERS BY DIVISION 5:

The recommended order of the examiner, to which no exceptions were filed, was stayed by us.

By their tariff MF-I. C. C. No. 4, filed to become effective January 1, 1938, H. D. Coffman and I. A. Coffman, of Staunton, Va., doing business as Coffman Brothers, who have filed an application under the "grandfather" clause of section 206 (a) of the Motor Carrier Act, 1935, for a certificate as a common carrier in interstate or foreign commerce, proposed to establish certain new and reduced rates and minimum weights on beer, canned goods, sugar, and dairy products consisting of cheese, cream, and butter. Upon protest of Middle Atlantic States Motor Carrier Conference, Incorporated, the rates under consideration were, by our orders dated December 31, 1937, and March 24, 1938, suspended until June 30, 1938, and thereafter voluntarily postponed by respondents until September 30, 1938.

The rates under suspension, with the exceptions listed in the footnote,1 do not reflect reductions in the rates provided in respondents' previous tariff, MF-I. C. C. No. 3. Protestant opposes only the reduc

1 The truckload rate on canned goods from Philadelphia to Charlottesville, Va., is reduced from 30 cents to 28 cents per 100 pounds, and the less-than-truckload rate from New York to Charlottesville is reduced from 50 cents to 45 cents. The truckload rate on sugar from Baltimore to Staunton, Va., is reduced from 21 cents to 20 cents per 100 pounds. The less-than-truckload rates on dairy products from Luray, Va., to Baltimore, New York, Philadelphia, and Washington, are reduced in amounts of 2 cents and 2.5 cents per 100 pounds, and the truckload rates from Luray to Baltimore and Philadelphia are reduced in the amount of 2 cents per 100 pounds.

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