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is emphasized that because of the nature of this work, the shifting of oil-well drilling operations from State to State, and temporary abandonment of fields, as well as the comparatively short life of oil wells generally, it has not been possible to sustain an operation to all points in the entire Midcontinent field on a given date. Applicant asserts that since on and before June 1, 1935, he has held out to transport for any who may choose to engage his services, between any points in the Midcontinent field, and there is no evidence to the contrary,
Protestants contend in substance (1) that at most applicant should be confined to the actual points between which he transported shipments on and since June 1, 1935, (2) that certain of applicant's cperations a year or more prior to the effective date of the "grandfather” clause were too remote to establish rights under this application, and (3) that the mere offer or willingness to serve an area is immaterial.
It has been stated in previous cases that the holding out, as well as the actual operation, by carriers serving large territories over irregular routes and furnishing what may be termed "call on demand” service, must be considered. A number of certificates granted under the "grandfather” clause of the act include many points from or to which shipments had not been transported. The basis for such grants of authority was, in a large measure, the character of the service offered and performed, and especially by carriers of such commodities as oil-field equipment and household goods. Although such carriers were willing and ready to transport from or to all points in the areas involved, the demand for single or repeated service from or to each point, is, because of the uses of the particular commodities, irregular and occasional. See Greer Common Carrier Application, 3 M. C. C. 483.
The question presented is whether operations by applicant within the "grandfather” period have been consistent with his holding out in the natural and normal course of business. It has been clearly shown that applicant for many years has been, and is now, engaged in the transportation of the considered commodities between points in Colorado, Kansas, Louisiana, New Mexico, Texas, Wyoming, and Oklahoma, to the extent of the demand upon him for such service, and that he has continuously held himself out to perform such transportation anywhere in and between these States, to the limit of his facilities. In our opinion he should be authorized to continue such operations in interstate or foreign commerce between all points in these States. See Union City Transfer Common Carrier Application, 7 M. C. C. 717.
Extension application. By this application, authority is sought to continue operations like those above described, between points in Oklahoma, Louisiana, and Arkansas, over irregular routes. It is stated in the application that such operations were commenced between June 1 and October 15, 1935. Operations between Oklahoma and Louisiana were embraced in the application because applicant was uncertain as to his right to continue such operations under the provisions of the "grandfather" clause. We have concluded, as above shown, that he has established such right and therefore the question for determination is whether he should be authorized to extend his operation to include points in Arkansas, on the one hand, and points in Oklahoma and Louisiana, on the other.
As above stated, applicant has, for many years, been engaged in the transportation of oil-field machinery, equipment, and supplies between points in the Midcontinent field. As of May 4, 1937, he owned 38 tractors and 38 trailers specially equipped for that service and had a net worth of about $98,500. The evidence establishes his fitness, willingness, and ability to conduct the proposed operation.
Applicant did not begin operation to or from points in Arkansas until on or about May 14, 1936. The operation was not authorized by us and, therefore, was, and is, in contravention of the act.
No evidence was offered in opposition to the application and no exceptions were filed to the recommended order in which granting of the application was proposed. It is not shown that the specialized service which applicant performs could be, or would be, rendered by other carriers.
Findings.-We find that applicant was on June 1, 1935, and continuously since has been, in bona fide operation as a common carrier by motor vehicle, in interstate or foreign commerce, of oil-field machinery, equipment, and supplies, over irregular routes, between points in Colorado, Kansas, Louisiana, New Mexico, Oklahoma, Texas, and Wyoming, and that applicant is entitled to a certificate of public convenience and necessity authorizing the continuance of such operations.
We further find that public convenience and necessity require operation by applicant as a common carrier by motor vehicle, in interstate or foreign commerce, of oil-field machinery, equipment, and supplies, over irregular routes, between points in Arkansas and points in Oklahoma and Louisiana; that applicant is fit, willing, and able properly to perform such service and to conform to the provisions of the act and our rules and regulations thereunder; and that a certificate authorizing such operation should be granted.
Upon compliance by applicant with sections 215 and 217 of the act, and our rules and regulations thereunder, an appropriate certificate will be issued.
No. MC-32779 1 HEYSER'S NICKLE PLATE LINE COMMON CARRIER
Decided October 8, 1938
1. Upon reconsideration, finding in prior report, 1 M. C. C. 572, denying amend
ment of application under "grandfather" clause of section 206 (a) of the
Motor Carrier Act, 1935, reversed. 2. Applicant found entitled to continue operation as a common carrier by motor
vehicle, of general commodities, except used household goods and office furniture, uncrated, between Portland, Oreg., and Seattle, Wash., and all intermediate points, and of specified commodities between Oregon City, Oreg., and Seattle, Wash., and all intermediate points, including the off-route point of Longview, Wash., over specified routes, by reason of having been engaged in such operations on June 1, 1935, and con
tinuously since. Certificate granted. Wm. B. Adams for applicant.
A. C. Spencer, L. W. Hobbs, Phillip Chipman, R. A. Culbertson, Millen F. Kneeland, Alfred E. Hampson, Paul P. Farrins, A. E. Beard, Geo. Dick, G. C. Ealy, H. C. Brodie, Thomas D. Jennings, and Frank C. McColloch for protestants.
REPORT OF THE COMMISSION ON RECONSIDERATION
DIVISION 5, COMMISSIONERS EASTMAN, LEE, AND ROGERS BY DIVISION 5:
In the prior report herein, 1 M. C. C. 572, Heyser's Nickle Plate Line, a corporation, of Portland, Oreg., was granted a certificate of public convenience and necessity, under the "grandfather" clause of section 206 (a) of the Motor Carrier Act, 1935, authorizing continuance of operation as a common carrier by motor vehicle, of general commodities, between Portland, Oreg., and Seattle, Wash., and all intermediate points, over U. S. Highway 99, and also over an alternate route of U. S. Highways 99 and 410 and Washington Highway 5. On March 2, 1938, on our own motion, we reopened the proceeding for reconsideration.
Applicant has operated between Portland and Seattle daily, except Sundays, over the routes described, continuously since a time prior
1 This report also embraces No. MC-32779 (Sub-No. 1), Heyser's Nickle Plate Line Supplemental Application.
carrier in th of Public Sommission
to June 1, 1935, transporting general commodities for the general public. It holds certificates from the Public Utilities Commission of Oregon and the Washington Department of Public Service authorizing it to operate as a motor carrier in those States, and apparently has complied with all State laws relating to these operations.
During the hearing it developed that applicant had also engaged in other operations, and it moved to amend the application to include certain operations between Oregon City, Oreg., and Seattle, Wash, Protestants objected to such amendment. The joint board overruled the objection at the hearing, but in its recommended report it reversed this ruling and refused to permit the amendment. In our prior report herein we affirmed the rejection of the amendment, on the theory that we are without authority to grant amendments to applications under the “grandfather” clause which broaden the scope of the application as originally filed. We then granted applicant 30 days in which to file an application covering the operation in question.
This applicant did, by application filed April 9, 1937, to which we assigned No. MC-32779 (Sub-No. 1). Applicant therein seeks authority to operate as a common carrier, of paper, paper products, paper-manufacturing equipment, pulp, and cement, between Oregon City and Seattle, including named intermediate points and the offroute point of Longview, Wash., over U. S. Highway 99 between Portland and Seattle and over U. S. Highways 99 and 99E as alternate routes between Oregon City and Portland. That application was referred to and heard by joint board No. 45 and a report and recommended order of that board was served. No exceptions were filed to this recommended order, but it was stayed by our order of March 8, 1938.
Upon further consideration we are of the opinion that "grandfather" clause applications seasonably filed on or before February 12, 1936, may be amended by application therefor in keeping with our rules of practice and an appropriate certificate or permit issued, as the case may be, on a showing of bona fide operation as required by the act. Congress clearly intended that the bona fide operations of motor carriers being conducted on June 1, 1935, in the case of common carriers, or on July 1, 1935, in the case of contract carriers, should be protected and appropriate authority therefor issued, provided the operations were continued since that time and application made on or before February 12, 1936. It provided that the applications shall be made in writing, verified under oath, "and shall be in such form and contain such information and be accompanied by proof of service upon such interested parties as the Commission shall, by regulation, require.” During the early administration of the act and
because of the exigencies of the situation then existing, we prepared a simple "grandfather” clause application form, BMC-A, as an alternate and emergency form to be used in lieu of the more detailed forms BMC-1 and BMC-2. This was done to assist motor carriers in timely filing of their applications. This alternate form called for but meager information, and was to be later supplemented by the filing of either form BMC-A-1 or form BMC-A-2. These supplemental forms, when filed, have been treated by us as in the nature of amendments to the form BMC-A applications seasonably filed. This procedure is in keeping with rule VII of our rules of practice, which provides that amendments to any pleading will be allowed or refused by the Commission in its discretion, such amendments to be subscribed and verified when the original pleading is required to be so subscribed and verified. The new application, No. MC-32779 (Sub-No. 1), filed in accordance with our instructions, will accordingly be treated as an amendment to the "grandfather” clause application, and the hearing held thereon as a further hearing on that application as amended. At the hearing applicant withdrew pulp and cement from the commodities sought in the amendment to the application and also withdrew U. S. Highway 99 as an alternate route between Oregon City and Portland.
Applicant has hauled traffic between Oregon City and Seattle and intermediate points, and served the off-route point of Longview, since prior to June 1, 1935, for the Hawley Pulp & Paper Company, which operates a paper mill at Oregon City. Numerous copies of representative billings showing such operations on June 1, 1935, and continuously since, were submitted in evidence. They show that on movements from Oregon City the traffic consisted of paper, manufactured paper products, towel cabinets, and paper-manufacturing equipment parts, principally press rolls for repairs, and on return movements, wax paper, fiber boxes, paper-manufacturing equipment parts such as press rolls, lead pipe, regulator valves, boiler tubes, and cylinders, and also sheet lead and copper nails used in the manufacture of paper. It is clear that applicant was engaged in bona fide operation as a common carrier by motor vehicle of the commodities named on June 1, 1935, and has been continuously since, between Oregon City and Seattle over the route applied for, including intermediate points and the off-route point of Longview.
We find that applicant was on June 1, 1935, and continuously since has been, in bona fide operation as a common carrier by motor vehicle of general commodities, except used household goods and office furniture, uncrated, between Portland, Oreg., and Seattle, Wash., and all intermediate points, over U. S. Highway 99 and also over the alternate route of U. S. Highways 99 and 410 and Washington Highway