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5, and of paper, manufactured paper products, towel cabinets, fiber boxes and paper-manufacturing equipment, including sheet lead and copper nails, between Oregon City, Oreg., and Seattle, Wash., including intermediate points and the off-route point of Longview, Wash., between Portland and Seattle over U. S. Highway 99 and over U. S. Highway 99E between Oregon City and Portland; and that applicant is entitled to a certificate authorizing continuance of such operations.

Upon compliance with sections 215 and 217 of the act and with our rules and regulations thereunder, an appropriate certificate will be issued.

9 M. C. C.

No. MC-86355 MUNYAN'S MOTOR FREIGHT, INCORPORATED, CON

TRACT CARRIER APPLICATION

Decided August 29, 1938

Operation by applicant as a contract carrier by motor vehicle, in interstate or

foreign commerce, of fertilizer from Paulsboro, N. J., to points in defined areas in Pennsylvania and New York, and of fertilizer materials from Philadelphia, Pa., to Paulsboro, over irregular routes, found consistent with the public interest and with the policy declared in section 202 (a) of the Motor Carrier Act, 1935. Permit granted and application denied in all other respects. Henry G. Elwell for applicant. John B. Gest and Harold A. Horwitz for protestants.

REPORT OF THE COMMISSION DIVISION 5, COMMISSIONERS MCMANAMY, MILLER, AND ROGERS BY DIVISION 5:

On July 30, 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 19, 1938, we postponed to August 29, 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 supplemental application filed February 24, 1938, Munyan's Motor Freight, Incorporated, of Gibbstown, N. J., seeks a permit authorizing operation as a contract carrier by motor vehicle, in interstate or foreign commerce, of fertilizer and fertilizer materials, between Paulsboro, N. J., on the one hand, and Kingston, N. Y., all points on Long Island, N. Y., and points in New York, New Jersey, Pennsylvania, Delaware, and Maryland within 150 miles of Paulsboro, on the other, over irregular routes.

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 trunk-line territory and the South Jersey Truck Owners' Association opposed the application.

Applicant, in addition to being engaged in the trucking business, conducts a retail coal yard at Gibbstown. It has three trucks, two tractors, and two semitrailers. Since its incorporation in December 1934 applicant has transported its own coal from mines in Pennsyl. vania to its yard at Gibbstown where it is sold and distributed to consumers. This operation is that of a private carrier and need not be authorized by the Commission. Shafer Common Carrier Application, 3 M. C. C. 347. Since September 1935 it has been transporting fertilizer and fertilizer materials in interstate or foreign commerce exclusively for a fertilizer manufacturer at Paulsboro. Prior to applicant's incorporation its president conducted both these operations as an individual. The fertilizer operation is now carried on under a written contract. This contract and applicant's schedule of minimum rates have been filed with the Commission. Applicant's rates are practically the same as the common-carrier rates applicable on fertilizer in the territory here considered.

Some of this fertilizer is carried to warehouses but the most of it is transported directly to farms. The bulk of it moves during the spring and fall but occasional shipments are made throughout the year. In 1937 applicant handled 1,254 tons. A representative of the fertilizer manufacturer testified that because the heaviest movement of this commodity is crowded into a few months it is often necessary to secure the services of 15 to 20 trucks for the daily transportation of 125 to 150 tons of fertilizer; that it is frequently called upon to make emergency shipments; and that, although some common carriers are used, the services of contract carriers are more satisfactory because they can be secured whenever needed.

The record shows that, with the exception of intrastate hauls to points in New Jersey, and three trips to Denton, Md., one to Stanton, Del., and one to Highland, N. Y., applicant's operation has been confined to movements of fertilizer from Paulsboro to points in Pennsylvania within 150 miles thereof, to points on Long Island, and to other points in New York within 25 miles of New York, N. Y., and of fertilizer materials from Philadelphia, Pa., to Paulsboro.

Applicant's operation since 1935 shows that there is a demand for this service, at least to the territory it regularly served. As this operation has been carried on for this length of time its continuance will not create additional competition in this territory but will simply maintain the same competitive situation that has existed therein for some time. Applicant has conducted this operation satisfactorily and appears able financially and otherwise to continue it.

As applicant instituted this service in September 1935 and the application was not filed until subsequent to Feberuary 12, 1936, this operation has been unlawful. It is apparent, however, that this un.

lawful operation was due to applicant's unfamiliarity with the act and was not a wilful violation thereof.

The examiner finds that applicant is fit, willing, and able properly to perform the duties of a contract carrier by motor vehicle and to conform to the provisions of the act, and the Commission's rules, regulations, and requirements thereunder; that continuance of operation by applicant as a contract carrier by motor vehicle, in interstate or foreign commerce, of fertilizer, from Paulsboro to points in Pennsylvania within 150 miles thereof, to points on Long Island, and to other points in New York within 25 miles of the limits of the municipality of New York, and of fertilizer materials, from Philadelphia to Paulsboro, over irregular routes, will be consistent with the public interest and the policy declared in section 202 (a) of the act; that upon compliance by applicant with sections 215 and 218 of the act, with the rules and regulations thereunder, and with the requirements established in Contracts of Contract Carriers, 1 M. C. C. 628, a permit authorizing such operation should be granted; and that in all other respects the application should be denied.

It is recommended that the appended order be entered. 9 M. C. C.

No. MC-25783 MRS. W. R. HICKS CONTRACT CARRIER APPLICATION

Submitted September 16, 1937. Decided October 8, 1938

Operation by applicant as a contract carrier, of livestock and agricultural prod

ucts, from Ramona, Kans., and points within 15 miles thereof, to Kansas City, Mo., and of feeds, machinery, farm implements, hardware, and binder twine, from Kansas City to Ramona, over irregular routes, found consistent with the public interest and with the policy declared in section 202 (a) of the Motor Carrier Act, 1935. Permit granted, and application in all other respects denied. William H. Alward for applicant.

Harry E. Boe, H. C. Barron, and George W. Holmes for protestants.

REPORT OF THE COMMISSION
DIVISION 5, COMMISSIONERS EASTMAN, LEE, AND ROGERS
BY DIVISION 5:

Exceptions were filed by the protesting rail carriers to the order recommended by joint board No. 36.

On February 12, 1936, Mrs. W. R. Hicks, of Marion, Kans., filed an application on form BMC-A under the "grandfather" clauses of sections 206 (a) and 209 (a) of the Motor Carrier Act, 1935. She therein stated that she is the widow of W. R. Hicks, deceased, who began operations prior to October 15, 1935, and that she hauls livestock and farm products from Ramona, Kans., and vicinity to Kansas City and St. Joseph, Mo., and returns with “feed, machinery, etc.”

On April 27, 1936, applicant filed another application on form BMC-10, in which she seeks a permit to operate under the trade name of W. R. Hicks as a contract carrier by motor vehicle, in interstate or foreign commerce, of livestock and agricultural commodities from Ramona and vicinity to Kansas City and St. Joseph, and of feeds, machinery, farm implements, hardware, and merchandise in return movements, over irregular routes.

Hearing disclosed that applicant seeks authority to continue the operations instituted by her deceased husband in October 1935. Specifically she seeks a permit authorizing the transportation of livestock and agricultural products from Ramona, and points within 15 miles thereof, to Kansas City, and of feeds, machinery, farm imple. ments, and hardware in the reverse direction. Several rail carriers

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