been held. The Missouri Pacific Transportation Company opposed the application. On June 1, 1935, applicant was, and continuously since that time has been, engaged in the transportation of passengers and their baggage over all of the routes hereinbefore indicated, serving all intermediate points except those between De Soto and St. Louis. Applicant has also transported mail under contract with the United States Government between Ironton, Mo., and Ellington, serving intermediate points. No off-route points have been served. Applicant occasionally carries newspapers but no express. The transportation is performed for the general public and not on special contract. Applicant owns and operates two 12-passenger busses and two 5-passenger sedans, which are covered by insurance. The Missouri Public Service Commission on March 30, 1928, granted applicant an intrastate certificate to operate between St. Louis and Ironton. The authority on August 25, 1932, was extended to include operation between Ironton and Ellington, and on October 21, 1933, it was amended to include all of the present operations. This authority applies only to the transportation of passengers in intrastate commerce. In performing this operation applicant has not crossed any State boundary, has no arrangements with other carriers for through transportation, and does not at any time transport passengers who are traveling under a joint arrangement between carriers for continuous transportation in interstate or foreign commerce. Tariffs filed by applicant are local and do not cover interchange of passengers with other carriers. It is clear that the transportation service performed by applicant is in intrastate commerce and that, therefore, it is not subject to the Commission's jurisdiction. The joint board finds that applicant has not shown that on June 1, 1935, and continuously since, he has conducted an operation as a common carrier by motor vehicle of passengers, baggage, and mail, in interstate or foreign commerce, for which the Motor Carrier Act, 1935, requires a certificate from this Commission. The application should accordingly be denied. It is recommended that the appended order be entered. 9 M. C. C. No. MC-6394 DAN ROGERS COMMON CARRIER APPLICATION Decided July 15, 1938 Applicant found entitled to continue operation as a common carrier by motor vehicle, of household goods, over irregular routes, between points in the District of Columbia, on the one hand, and points in Virginia, Maryland, Pennsylvania, New Jersey, and New York, on the other, by reason of having been engaged in such operation on June 1, 1935, and continuously since that time. Certificate granted, and application denied in all other respects. E. B. Ussery for applicant; Harry C. Ames for applicants in Nos. MC-2161, MC-2162, MC-11322, and MC-30875; Joseph A. Solem and Charles V. Guthrie for applicant in No. MC-3002. J. D. Lawson, E. S. Brashears, G. B. Holman, Harold S. Shertz, James W. Oram, and B. F. Batts for protestants. REPORT OF THE COMMISSION DIVISION 5, COMMISSIONERS EASTMAN, CASKIE, AND ROGERS BY DIVISION 5: On June 14, 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 July 5, 1938, we postponed to July 15, 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 application 2 filed February 12, 1936, as amended, Dan Rogers, of Washington, D. C., seeks a certificate of public convenience and necessity authorizing continuance of operation as a common carrier by motor vehicle, in interstate or foreign commerce, of general com 1 Eight other cases were heard on a consolidated record, together with the case here in issue, but they were disposed of in two other reports. They are as follows: No. MC-2161, National Delivery Association, Incorporated, Common Carrier Application; No. MC-2162, National Delivery Association, Incorporated, Contract Carrier Application; No. MC-11322, National Delivery Association, Incorporated, Broker Application; No. MC-30875, Maurice Kressin Contract Carrier Application; No. MC-3002, William B. Boyer Common Carrier Application; No. MC-30874, Maurice E. Gettier Contract Carrier Application; No. MC60899, William Johnson Contract Carrier Application; No. MC-61489, Allan Weiss Common Carrier Application. Under the "grandfather" clause of section 206 (a) of the Motor Carrier Act, 1935. modities and household goods, between points in Virginia, West Virginia, Maryland, Delaware, Pennsylvania, New Jersey, New York, and the District of Columbia, 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. This case was heard on a consolidated record with other cases but will be disposed of in this separate report. Certain rail and motor carriers protested the granting of the applications. At the hearing, applicant further amended his application by withdrawing the State of West Virginia from the territory sought. The amendment does not broaden the issues and should be allowed. Applicant's operation was begun in 1919, and has been continuous throughout the period to the present time. He has at all times held himself out to the general public to transport household goods, in interstate or foreign commerce, for hire or compensation. This holding out has been accomplished by means of advertisements inserted in the telephone directory since 1930 and in the Washington city directory since 1928, and by direct solicitation. On June 1, 1935, applicant owned five trucks, three of which were equipped with van bodies and two with stake bodies. He still has the same number in operation but all have been replaced with newer models. Applicant has filed a tariff with the Commission and he has complied with its insurance requirements. Applicant's original application was filed for him by the president of National Delivery Association, Incorporated, during the rush before the expiration of the last filing date on February 12, 1936. Through error an exhibit was attached to the application which states that applicant had a lease agreement with the above corporation. This error is admitted by both parties. Applicant has from time to time, however, moved household goods locally in Washington, D. C., and to nearby points in Virginia and Maryland for the National Delivery Association, Incorporated. He made one trip from Washington to New York, N. Y., in 1937. Such movements have been very infrequent and were in the nature of overflow business received when the corporation's facilities were temporarily taxed to capacity because of abnormal demands of shippers. In these movements, applicant was responsible for such shipments from the time they came into his custody until they were safely delivered. Applicant and the National Delivery Association concur in the same tariff. Prior to June 1, 1935, applicant did not issue bills of lading, but he kept a day book in which all movements of household goods were recorded. The record therein discloses the following shipments: 32 shipments between Washington and points in Maryland during the period from May 22, 1928, to September 9, 1937; 22 shipments between Washington and points in Pennsylvania during the period from November 19, 1932, to November 2, 1937; 20 shipments between Washington and points in Virginia during the period from April 15, 1933, to December 8, 1937; 10 shipments between Washington and points in New York during the period from April 18, 1928, to January 31, 1938; 2 shipments between Washington and points in New Jersey, one on August 8, 1927, and the other on January 21, 1937; 1 shipment from Rehoboth, Del., to Annapolis, Md., on June 9, 1934; and 1 shipment from Wilmington, Del., to Washington, D. C., on January 21, 1938. Applicant stated that the above representative movements do not include all shipments that he handled prior to June 1, 1935, and that he has at all times held himself out to the general public to transport household goods to points in these States. Applicant further states that on returns from points in New York he endeavors to obtain shipments to be transported back to points in Delaware, New Jersey, Pennsylvania, Maryland, and the District of Columbia. The record contains reference to only one shipment in interstate commerce handled by applicant prior to June 1, 1935, which did not move to or from Washington, where his headquarters are located. This shipment was transported from Rehoboth, Del., to Annapolis, Md., on June 9, 1934. There is no evidence that applicant has made similar movements between points in these two States since that time. Applicant made one movement from Wilmington, Del., to Washington, D. C., on January 21, 1938, but there is no evidence of bona fide operation to or from points in Delaware prior to June 1, 1935, other than the one mentioned above. Applicant, therefore, has failed to establish by evidence that as a household mover, on June 1, 1935, he performed irregular-route nonradial service. A mere desire or holding out by applicant to perform such service is not sufficient to establish that his operation was so conducted. Upon the record, the examiner finds that applicant was on June 1, 1935, and continuously since that time has been, in bona fide operation as a common carrier by motor vehicle, in interstate or foreign commerce, of household goods, over irregular routes, between points in the District of Columbia, on the one hand, and points in Virginia, Maryland, Pennsylvania, New Jersey, and New York, on the other; and that applicant is entitled to a certificate of public convenience and necessity authorizing continuance of such operation. The application should in all other respects be denied. It is recommended that the appended order be entered. No. MC-102981 CAPITOL MOTOR LINES, INCORPORATED, COMMON CARRIER APPLICATION Decided July 15, 1938 1. Applicant found entitled to a certificate to continue operations as a common carrier by motor vehicle, in interstate or foreign commerce, of general commodities with certain exceptions, between Baltimore, Md., and Richmond, Va., in regular-route nonscheduled service, by reason of having been engaged in such operations on June 1, 1935, and continuously since that time. Certificate granted. 2. Operation by applicant as a contract carrier by motor vehicle, of general commodities, between Baltimore, Md., and Richmond, Va., found not consistent with the public interest and with the policy declared in section 202 (a) of the Motor Carrier Act, 1935. Permit denied. Everett B. Lackey for applicant. A. P. Donadio for protestants. REPORT OF THE COMMISSION DIVISION 5, COMMISSIONERS EASTMAN, CASKIE, AND ROGERS BY DIVISION 5: On June 14, 1938, the following recommended report and a recommended order appended thereto, filed with us by joint board No. 68, were served on the parties. No exceptions to the order were filed, but on July 5, 1938, we postponed to July 15, 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 JOINT BOARD NO. 68, COMPOSED OF JAMES W. LAUDERDALE OF THE DISTRICT OF COLUMBIA, HAROLD E. WEST OF MARYLAND, AND H. LESTER HOOKER OF VIRGINIA 2 By applications filed February 6, 1936, as amended, Capitol Motor Lines, Incorporated, of Baltimore, Md., seeks a certificate of public convenience and necessity authorizing continuance of operation as a common carrier by motor vehicle and a permit authorizing operation as a contract carrier by motor vehicle, of general 1 This report also embraces No. MC-10299, Capitol Motor Lines, Incorporated, Contract Carrier Application. Under "grandfather" clauses of the Motor Carrier Act, 1935. |