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operating in the territory involved opposed the granting of the authority sought.
On October 10, 1935, W. R. Hicks secured a permit from the Corporation Commission of Kansas to operate as a contract carrier. This permit authorized hauling of commodities under contracts for the Ramona Tractor & Implement Company and the Ramona Cooperative Grain Company, with no restriction as to territory, and the hauling under contracts of livestock and farm products originating within a 15-mile radius of Ramona to Wichita, Kans., and Kansas City, and of mill feeds on return trips. No authority to operate in Missouri was obtained. On October 3, 1935, said Hicks purchased a new tractor and semitrailer, and on October 14 made a trip from Ramona to Kansas City with a load of livestock. On a return trip, on October 16, he transported a load of machinery. Similar operations between Ramona and vicinity and Kansas City were continued by him until his death on February 7, 1936. Applicant thereafter carried on similar operations with the help of a manager, and was so operating at the time of the hearing.
In view of the type of application filed by applicant on February 12, 1936, of the fact that she later filed another type of application, and of the further fact that it is not clearly shown that she alone inherited her husband's estate, protestants question whether applicant's operations have been and are lawful. In any event, even assuming that her operations have been and are unlawful, such fact, under the circumstances disclosed, is not an absolute bar to the granting of the permit sought.
Applicant has continued to transport for farmers and merchants for whom her deceased husband carried under oral and written agreements. She does not hold herself out to serve the general public, and the record indicates that she now has secured written contracts with all those whom she intends to serve. While it appears that these contracts do not meet the requirements of Contracts of Contract Carriers, 1 M. C. C. 628, the authority granted herein will necessitate that all such contracts be made to conform to those requirements.
A round trip is made by applicant about every five days, and her equipment, which is that above described, is maintained in good operating condition. Shippers at Ramona and at several points located within a 15-mile radius thereof have been served. Movements have been limited to the carriage of livestock and agricultural products to Kansas City, and of feeds, machinery, farm implements, hardware, and binder twine from Kansas City to Ramona. Irregular routes over county and State highways have been and are used in order to maintain the most convenient operating schedules.
One of applicant's contracts is with the Ramona Tractor & Implement Company. A part owner of that concern appeared in support of the application. He testified to the use of and the need for applicant's service, pointing out that such service was desired in the interest of quick delivery of merchandise and as a convenience to the business.
Protestant rail carriers contend that adequate rail service is available between the points under consideration, and showed the existence of convenient rail schedules and facilities for the carriage of both carload and less-than-carload traffic. They also offered in evidence a list of contract carriers alleged to be serving the territory herein involved; but the evidence is that no contract carrier other than applicant serves Ramona directly, and that the nearest one is located at Herington, Kans., 11 miles from Ramona.
Protestants question the financial ability of applicant to continue her operations. The evidence indicates, however, that her past operations have been profitable, and we are not warranted on this record in denying the authority sought on the ground of financial inability. Contrary to protestants' contention, it is clear that there is a need for the proposed service. As seen, it has been used for some time by shippers under agreements with applicant and her deceased husband, and this plainly shows that there is a demand for such service. In addition, no motor carrier is here protesting, and the fact that a community has adequate rail service is no sufficient reason to deny it the benefits of motor-carrier service. Compare Charles R. Murphy & Son Contract Carrier Application, 3 M. C. C. 493.
We find that applicant is fit, willing, and able properly to perform the service of a contract carrier by motor vehicle, in interstate or foreign commerce, (1) of livestock and agricultural products from Ramona, and points within 15 miles thereof, to Kansas City, and (2) of mill feeds, machinery, farm implements, hardware, and binder twine, from Kansas City to Ramona, over irregular routes, and to conform to the provisions of the act and our rules and regulations thereunder; that such operations will be consistent with the public interest and with the policy declared in section 202 (a) of the act; that a permit therefor should be granted; and that the application in all other respects should be denied.
An appropriate permit will be issued upon compliance by applicant with the requirements of sections 215 and 218 of the act, with our rules and regulations thereunder, and with the requirements established in Contracts of Contract Carriers, supra. An order will be entered denying the application except to the extent granted by the findings herein.
GEORGE REES COMMON CARRIER APPLICATION
Submitted August 27, 1938.
Decided October 8, 1938
Applicant found to have failed to establish the right to a certificate as a common
carrier by motor vehicle, of general commodities, between points in Ohio, on the one hand, and points in West Virginia and Kentucky, on the other,
under the "grandfather" clause of the Motor Carrier Act, 1935. Edward Moeller for applicant.
Herbert Baker, Ralph M. Buzek, R. A. Ellison, and Harry E. Solsman for protestants.
REPORT OF THE COMMISSION
The recommended order of joint board No. 62, to which no exceptions were filed, was stayed by our order of August 27, 1938.
By application filed February 10, 1936, under the "grandfather” clause of section 206 (a) of the Motor Carrier Act, 1935, George Rees, doing business as Beck Motor Express, of Norwood, Ohio, seeks a certificate of public convenience and necessity authorizing continuance of his operation as a common carrier by motor vehicle, of general commodities, in interstate or foreign commerce, between points in Ohio, West Virginia, and Kentucky, over regular routes, as follows:
Route 1, between Indiana-Obio State line and Charleston, W. Va.: U. S. Highway 52 from Indiana-Ohio State line to Huntington, W. Va.; U. S. Highway 60 from Huntington to Charleston.
Route 2, between Dayton, Ohio, and Charleston, W. Va.: U. S. Highway 25 from Dayton to Cincinnati, Ohio; same as route 1 from Cincinnati to Charleston. Serving all intermediate points, and off-route service to Ashland, Catlettsburg, Covington, and Newport, Ky., and Kenova, W. Va.
Several motor carriers and rail carriers operating in central and southern territories opposed the application.
Applicant began operation as a motor carrier in 1934 by acquiring the business and equipment of Walter Beck. Prior to June 1, 1935, he was granted authority by the Public Utilities Commission of Ohio to operate as a common carrier in interstate commerce over the highways in Ohio embraced by the above routes, and by the State
Road Commission of West Virginia to operate over irregular routes in that State. There is evidence of actual shipments handled by applicant between March 29 and October 15, 1935, as follows:
Applicant continued to transport food products, and possibly one or two other commodities, between Cincinnati and Ashland, Catlettsburg, and Huntington, until on or about November 27, 1936. There is no convincing evidence that applicant ever transported any commodity between the Indiana-Ohio State line or Dayton, on the one hand, and points in West Virginia or Kentucky, on the other. The only operation by applicant of which there is adequate proof was the transportation by him of a few specific commodities between Cincinnati and several points on the route thence to Charleston, but not including Charleston.
On November 26, 1936, applicant entered into an agreement with Howe Brothers, Incorporated, of Cincinnati, whereby he agreed to sell the latter his operating rights. He thereupon discontinued his service, and there is no satisfactory evidence that applicant's alleged successor in interest has in fact or in law continued the operation since that time.
Howe Brothers, Incorporated, filed an application under the “grandfather” clause of section 206 (a) of the act, alleging operation as a common carrier of general commodities over certain specified routes, among which is the route claimed by applicant herein between Cincinnati and Charleston. It also filed a request jointly with applicant asking that it be substituted for Rees as the applicant herein. Since Howe Brothers, Incorporated, operated more than 20 vehicles, our approval is necessary before the two operations lairfully may be merged. The application for substitution is pending
1 No. MC-401, filed December 2, 1935.
in Docket No. MC-F-281. A representative of Howe Brothers, Incorporated, admitted that the latter had conducted no operations as applicant's successor in interest except to and from Dayton and that the main object of the purchase agreement was to gain access to points on the route to and from Dayton and Cincinnati. He also admitted that operations to and from Dayton were not commenced until January 1937 or later and that they do not "correspond at all” to the operations alleged to have been conducted by Rees.
Upon the record before us a conclusion is warranted that the only operation proved by applicant to have been conducted on or before June 1, 1935, was abandoned on or about November 27, 1936. Therefore, we are without authority to grant a certificate under the "grandfather" clause of the act.
We find that applicant has failed to show that he was on June 1, 1935, and continuously since has been, in bona fide operation as a common carrier, of general commodities, over the routes and between the points set forth in his application; and that the application should be denied. An appropriate order will be entered.
9 M. C. C.