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or prior to June 1, 1935, would amount, not to an authorization of the continuance of such operation as it was engaged in on that date, but to an authorization of an extension of the scope of its operation both as to the commodities transported and the territorial extent of such operation.
In its exceptions to the examiner's report, applicant contends that the finding should also include points within a radius of 25 miles of the commercial zones of New York and Philadelphia. The omission excepted to relates only to the territory contiguous to Philadelphia in Pennsylvania and New York in New York State. There is no evidence of operation to or from points other than those within the commercial zones of Philadelphia and New York on or subsequent to June 1, 1935.
All of applicant's operations have clearly been those of a common carrier over irregular routes. The record will not warrant a finding that applicant has in the past operated as a contract carrier, nor does it indicate a future intention so to operate. In instances, such as here, where applicant's operations are found to be those of a common carrier, we have granted a certificate although a permit was sought by the application. See Tucker Contract Carrier Application, 2 M. C. C. 335, and Merit Dress Delivery Contract Carrier Application, 2 M. C. C. 553. We are of the opinion, therefore, that applicant is entitled to, and should receive, a certificate for such operations under the "grandfather” clause.
We find that on June 1, 1935, applicant was, and since that date has been, in bona fide operation as a common carrier by motor vehicle, of general commodities, over irregular routes, between points within the territory bounded as follows: On the north and east by the commercial zone of New York, N. Y., thence following a theoretical line from the Hudson River east to Englewood, N. J., thence south to Ridgefield, N. J., thence south and west to Somerville, N. J., through Brookdale, Glen Ridge, and Summit, N. J., thence south through Raritan, Blawenburg and Ewingville, N. J., to Wilburtha, N. J., thence south to Yardley, Pa., thence over Pennsylvania Highway 432 to Philadelphia, Pa., including its commercial zone and Ardmore, Lansdowne, and Darby, Pa., thence southeast to Paulsboro, N. J., thence east through Mount Royal, Fairview, and Tansboro, N. J., to Atsion, N. J., thence north to Tabernacle, N. J., thence northeast through Lebanon State Forest and Buckingham, N. J., to Whiting, N. J., thence east to the Atlantic Coast through Keswich Grove and Bayville, N. J., thence north along the coast to New York, N. Y.; that similarly applicant was and has been in bona fide operation as a common carrier by motor vehicle, of coal in truckloads from mines in Pennsylvania to points in New Jersey over irregular routes; of petroleum products in truckloads from Marcus Hook, Pa., to points in New Jersey over irregular routes, of returned empty petroleumproducts containers, any quantity, from points in New Jersey to Marcus Hook, over irregular routes, of clothing and dry goods in truckloads, between points in New Jersey and Cambridge, Md., over irregular routes, and of household goods and furniture in truckloads, between points in New Jersey, on the one hand, and points in New York and Pennsylvania, within a radius of 50 miles of New York, N. Y., and Philadelphia, Pa., respectively, over irregular routes; and that it is entitled to a certificate authorizing the continuance of such operations.
Upon compliance by applicant with sections 215 and 217 of the act and with our rules and regulations thereunder, an appropriate certificate will be issued. An order denying the application, except to the extent granted herein, will be issued.
9 M. C.C.
No. MC-66808 1 POWELL BROTHERS TRUCK LINES, INCORPORATED,
COMMON CARRIER APPLICATION
Submitted September 30, 1937. Decided October 8, 1938
1. Applicant found entitled to continue operation as a common carrier by motor
vehicle, of general commodities, over specified routes, in Illinois, Missouri, Arkansas, Kansas, and Oklahoma, by reason of having been engaged in such operation on June 1, 1935, and continuously since. Certificate
granted. Application denied in all other respects. 2. Public convenience and necessity found to require operation by applicant, in
interstate or foreign commerce, as a common carrier by motor vehicle, of general commodities, between Harrison and Little Rock, Ark., over U. S. Highway 65, serving all intermediate points. Certificate granted. Appli
cation for extension denied in all other respects. D. D. McDonald and J. D. McMurray for applicant.
0. B. Day, George W. Holmes, F. H. Towner, William E. Davis, Harry E. Boe, Carl S. Burg, James G. Blaine, Joseph H. Miller, P.F. Gault, J. G. Quisenberry, Orville Bullington, M. G. Roberts, William W. Dalton, Stanley P. Clay, William E. Brinker, J. M. Dunne, A. J. Cannan, C. R. Morrow, June R. Rose, A. Arning, Roy B. Chipps, E. D. Wilson, A. B. Squier, David Axelrod, A. F. Versen, B. W. LaTourette, and R. T. Williams for protestants.
REPORT OF THE COMMISSION
The applications were heard separately and separate reports and orders were recommended by the examiner and joint board No. 215 in the “grandfather" and extension applications, respectively. Exceptions were filed by applicant and certain motor-carrier protestants to the order recommended by the examiner, and rail protestants and other motor-carrier protestants replied thereto. Exceptions were filed by Gordons Transports, Incorporated, to the order recommended by joint board No. 215. Our conclusions differ somewhat from those recommended by the examiner and by the joint board.
By application ? filed February 8, 1936, as amended, Powell Brothers Truck Lines, Incorporated, of Springfield, Mo., seeks a certificate
1. This report also embraces No. MC-66808, Powell Brothers Truck Lines, Incorporated, Extension of Operations.
2 Under the "grandfather" clause of section 206 (a) of the act.
of public convenience and necessity authorizing the continuance of its operations as a common carrier by motor vehicle, in interstate or foreign commerce, of general commodities, over the regular routes set forth in appendix A hereto, and of general commodities in truckload quantities, over irregular routes, from and to all points in Illinois, Missouri, and Oklahoma, and in Kansas south and east of U. S. Highways 54 and 81.
By another application, filed October 12, 1936, applicant seeks authority to extend its operations to include the transportation of general commodities between Little Rock and Harrison, Ark., over U. S. Highway 65 via Conway, Ark., and between Conway and Fort Smith, Ark., over U. S. Highway 64, serving all intermediate points.
“Grandfather" application. For several years applicant has performed a motor-carrier transportation service from and to numerous points in Illinois, Missouri, Kansas, Arkansas, and Oklahoma. This service was originally instituted by applicant's predecessor, Powell Brothers Truck Line, a partnership. On June 1, 1935, applicant owned and operated 81 pieces of equipment, consisting of trucks, tractors, and trailers, including at least one tank trailer. It also leased 41 tractor and semitrailer units which were under its complete supervision and control and were operated in the same manner as its own equipment over all of its routes except those in Arkansas. On January 1, 1937, applicant owned 135 vehicles and leased 36 tractor and semitrailer units, all of which were used in its operations.
Applicant alleges that it ha's maintained regular service on and subsequent to June 1, 1935, in the transportation of general commodities in both truckload and less-than-truckload quantities, to and from all points on the regular routes set forth in the application, except that U. S. Highways 36 and 24 and Illinois Highway 96 in Illinois, and U. S. Highways 36 and 69 in Missouri have been used only for the transportation of truckload traffic moving between Chicago, Ill., and Kansas City, Mo.
Detailed lists of shipments submitted by applicant indicate that it handled general commodities before and after June 1, 1935, from and to numerous points in the foregoing States. Many shipments shown in the exhibits, however, originated at or were destined to points not served by applicant. Such data, therefore, fail to prove the specific points served by applicant or the routes over which the shipments were transported.
Information taken from manifest or trip sheets showing movements over specific routes indicates that on or prior to June 1, 1935, applicant transported general commodities over the following highways:
U. S. Highway 66 between Chicago and Oklahoma City.
U. S. Highway 6 between Chicago and Depue, Ill.
Kansas Highway 7 and Oklahoma Highway 7 between U. S. Highway 166 and Commerce, Okla.
U. S. Highway 169 between Tulsa, Okla., and Coffeyville, Kans.
The earliest dates on which truck operations are shown over other highways are as follows:
July 1, 1935, Missouri Highway 37 between Monett and Sarcoxie, Mo.; Missouri Highway 38 between Sarcoxie and Joplin.
October 1, 1935, Arkansas Highway 59 between Summers and Siloam Springs, Ark.; Arkansas Highway 12 between Siloam Springs and Gentry, Ark. ; Arkansas Highway 107 between Gentry and Decatur, Ark.; Arkansas Highway 102 between Decatur and Centerton, Ark.
October 2, 1935, U. S. Highway 62 between Fayetteville, Ark., and Muskogee, Okla.
November 1, 1935, Arkansas Highway 16 between Fayetteville and Siloam Springs, Ark.
December 14, 1935, U. S. Highway 65 between Springfield, Mo., and Harrison, Ark.
February 7, 1936, U. S. Highway 64 between Fort Smith and Muskogee. May 1, 1936, U. S. Highway 60 between Neosho, Mo., and Fairland, Okla.
June 16, 1936, Missouri Highway 57, Kansas Highway 57, and U. S. Highway 69 between Joplin and Pittsburg, Kans.
September 1, 1936, U. S. Highway 64 between Muskogee and Tulsa. October 4, 1936, U. S. Highway 69 between Muskogee and Vinita, Okla.
On April 19, 1935, applicant was granted authority by the Arkansas Corporation Commission to operate as a common carrier over U. S. Highway 71 between Fort Smith and the Missouri State line, over U. S. Highway 62 between Harrison and Rogers, over Arkansas Highways 16, 12, 107, and 102 between Fayetteville and the Missouri State line, over Arkansas Highway 100 between Bentonville and the Missouri State line, over U. S. Highway 65 between Harrison and the Missouri State line, and over Arkansas Highways 45, 68, and 21 between Fayetteville and Berryville. This authority, in June 1934, was issued to applicant's predecessor.