of, which includes a part of New Jersey it renders (respondent) applicant a multipleState carrier; and since it is not advisable to impede his interchange operations by limiting the authority to the part of that commercial zone within Pennsylvania, authority granted is conditioned on cancellation of applicant's Form BMC-75 statement.-Id., pp. 176, 179.

Respondents' operations to and from Mexico under their certificates of registration issued pursuant to §206(a)(7) of the Act are unauthorized since such certificates are valid only as long as the holder is a carrier in operation solely within a single state; the phrase “in operation solely with a single state" must be generally construed to preclude operations in interstate or foreign commerce at any point outside of a single state or the United States by motor carriers operating under this section.-Imperial Truck Lines, Inc.-Common Carrier Application, 106 M.C.C. 741 (746-48).

50. "Grandfather" clause; bona fide operation. [Vols. 10-15, 18, 19, 21].-See also Barton Truck Lines, Inc., Eligibility-Utah, at §207(a), n. 25 past operations; Beaufort Transfer Co. v. United States, at §212(a), n. 1; and Tarantola Trucking Co., Inc., Modification of Certificate, at §212(a), n. 30.

Petition for reopening of "grandfather" proceeding and modification of "truckload lots" restriction therein is denied when it was not filed until after investigation was instituted and reasons advanced therefor are not convincing. Commission policy is that "grandfather" clause rights which were determined many years ago should not be modified except where there is definite and positive evidence that a miscarriage of justice has occurred. Petitioner's predecessor did not object to the restriction but had sought its inclusion in the resulting certificate and its existence was a factor in the Commission's approval of the purchase thereof by petitioner. Moreover, documentary evidence relating to nature of the operations conducted by the predecessor having been destroyed, petitioner seeks to establish its position through the recollection of witnesses formerly connected with or familiar with operations of the "grandfather" applicant; such evidence has been found insufficient to establish the bona fides of a claimed

operation.-Southwest Freight Lines Ext.Removal of Restriction, 95 M.C.C. 269 (2778)*.

Evidence as to carriers' claims to grandfather authority deemed convincing, despite failure to show by documentary evidence that their predecessors were providing charter service on or before June 1, 1935, the critical date. Both seek to explain this by reference to mishaps which reasonably account for their inability to locate such documentary evidence. As a result both applicants produced witnesses, whose testimony established the requisite charter operations. In addition, Greyhound's discontinuation of service after challenge by the Commission was clearly an "interruption of service over which [it]***had no control". Granted in part. Greyhound Corp. Extension, 98 M.C.C. 712 (727-28)*.

If evidence shows that there are matters not previously brought to Commission's attention which establish that petitioner and its predecessors have transported, on and continuously since the "grandfather" date, palletized or bundled commodities which in their palletized or bundled form require the use of special equipment but which considered individually do not require such equipment, there would be substantial equity in favor of modifying the involved certificate. However, evidence presented by Dillner fails to establish specific dates of shipments, description of commodities transported, and whether or in what form commodities were packaged, bundled or palletized; carrier has furnished, therefore, no cogent basis for a determination that it is entitled to additional "grandfather" rights under the Motor Carrier Act of 1935.-W. J. Dillner Transfer Co., 99 M.C.C. 485 (488-489).

In a consolidated proceeding, relief was granted to one applicant for modification of his authority derived from a grandfather certificate, on the basis of documentary evidence of operations and expressions of shipper support; similar applicants' petitions were denied in the absence of shipper support. In the latter circumstance, modification must be shown to be warranted on two bases: that the specifice authority under consideration was intended at the time of issuance to authorize a broader service than that encompassed in the terminology used under

present day interpretation, and that the authority has been continuously used to perform the broader service. The Commission acknowledged some former confusion as to evidentiary standards, however, and denied the petitions without prejudice to each of the petitioners filing an appropriate pleading for further hearing within a specified time period.-North Penn Transfer, Inc.

Petition for Modification, 115 M.C.C. 208 (216-218).

Respondent's refusal to operate within the limits of its authority to transport "stock in trade of drugstores", despite Supreme Court ruling that the commodity description is not ambiguous [355 US 554], resulted in cease and desist order, and an acknowledgment that continued violation may result in suspension or revocation of the authority.— North Central Truck Lines, Inc., Invest. & Revoca., 117 M.C.C. 180 (184, 195).

53. Intrastate operation; State requirements. [Vols. 10-12].-Complainants allege that defendant, an irregular route carrier, is conducting operations in interstate or foreign commerce in violation of §206(a). Defendant is authorized to operate solely within the State of Missouri, pursuant to a grandfather certificate of registration for which it holds corresponding interstate authority. The state authority prohibits irregular-route operations between points on the regular route of an authorized motor carrier. The record shows that the defendant interlined interstate shipments originating in another state for delivery to points in Missouri. Both the interline point and the named destination points are served by regular route carriers. Such operations clearly contravene defendant's registered authority. Cease and desist order entered.-Orscheln Bros. Truck Lines, Inc. v Knaus Truck Lines, Inc., 108 M.C.C. 301 (303, 305).

55. In foreign commerce.-[Vols. 1012]. Defendant holds authority to serve Buffalo and New York City. It also holds appropriate Canadian authority to operate from the international boundary line to var

ious points in Canada. In connection with the Canadian line-haul service, defendant has transported traffic originating at Buffalo or interlined with other carriers in Buffalo to Canadian points. It is well established that a point in the United States located on the international boundary line embraces the port of entry at such point and, thus, a carrier specifically authorized to serve such points may serve the international boundary in foreign commerce. Therefore, the service authorized must in some way be incident to a line-haul movement between points the carrier holds authority to serve. Since defendant does not have specific authority to serve both Buffalo and the port of entry at Buffalo, its traffic originated at or interlined at Buffalo for continued movement in foreign commerce to Canadian points cannot properly be performed as there is no effective line-haul authorized between two separate service points on defendant's regular route. No such line-haul movement is part of defendant's local operations and, accordingly, this local service cannot be properly performed without separate, specific authority. Red Star Express Lines of Auburn, Inc. v. Maislin, 110 M.C.C. 23 (25, 26, 27).

57. Off-route points. Vols. 10-12, 14]. Inasmuch as defendant was serving certain off-route points which operations were found not to be permitted under the Superhighway Rules [49 CFR 1042.3, 117 MCC 119], defendant was in violation of §§203(c) and 206(a)(1) of the Act, and was required to cease and desist from the performance of such unlawful transportation. The defendant was specifically reminded of its obligation, as directed in the order entered, to comply with the provisions of rule 99 of the General Rules of Practice [49 CFR 1100.99] describing the manner of its compliance with such order requiring it to cease and desist from the performance of the operations found in this report to be unlawful.-Burggrabe Truck Lines, Inc. v. Beaufort Transfer, 117 M.C.C. 567 (579).

sions; "grandfather"

12190-12191.]

Historical Note, see vol. 17, p. 13532.

Volume 18-p. 14342.

Volume 21-p. 17199.

Volume 21-p. 17210.

2. Construction and interpretation.—[Vol. 21]. See also Braddock Motor Freight, Inc., Petition, at §216(c), n. 10; and Home Transp. Co., Inc.-Purchase-Fuchshuber, at §5(2), n. 110 certificate under $207.

By the 1962 amendments to §206(a) repealing second proviso of paragraph (1) and adding paragraphs (6) and (7), Congress terminated all rights to engage in interstate and foreign commerce under the second proviso and, in addition, provided for "grandfather" certificates of registration for single-State carriers that were engaged in second-proviso operations on October 15, 1962, or would have been so engaged but for the pendency of litigation concerning validity of the carrier's operations. The "pendency of litigation" clause should be construed in keeping with the purpose of the "grandfather" provision which, by specific language, can have application only to those operations which the carrier had actually been conducting on October 15, 1962; thus, an application for new intrastate authority

does not come within the meaning of the "pendency of litigation" clause.—A-OK Motor Lines, Inc. v. United States 287 F. Supp. 828 (830)*.

Plaintiffs, in action to enjoin and set aside Commission order denying their petition for amendment of their certificates of registration to include additional newly acquired State authority under the "grandfather" provisions, were not conducting the expanded operations under the second proviso when the statute was amended; and their application proceedings pending before the State commission do not come within the "pendency of litigation" clause of $206(a)(7). Accordingly, the Commission did not err in denying plaintiffs the requested "grandfather" certificates of registration which would permit them to begin additional interstate operations. Plaintiffs are not entitled to relief sought; action dismissed.-Id., p. 831.

Requirements of §206(a)(6) are fully satisfied when (1) interested persons have been

accorded reasonable opportunity to be heard with respect to both the intrastate and interstate aspects of an application filed thereunder and (2) the State commission has considered both questions and found, on an adequate record, that public convenience and necessity require continuation, or initiation, of the intrastate operations and the initiation of proposed interstate service. The statute does not specify the kind of proof or type of hearing that a state commission must follow; and, since neither the legislative history nor the law require an initial application for intrastate authority before applicant can qualify for a certificate of registration under §206(a)(6) it is irrelevant whether the corresponding intrastate authority is original or was granted previously.-Ray Price, Inc. v. United States, 297 F. Supp. 55 (59-60)*.

The statute requires the State commission to make dual findings of public convenience and necessity as to both the intra- and interstate operations involved. However, the commission's argument that considered state proceedings related solely to transfer of existing rights and, under Nebraska law, intrastate need was not an issue in "transfer" proceedings, is not persuasive. The carriers applied for State commission approval of transfer of intrastate certificates from third parties and, simultaneously, sought concurrent authority for operations in interstate or foreign commerce under §206(a)(6), the State commission approved the transfers and found a corresponding need for operations in interstate and foreign commerce, and subsequently issued nunc pro tunc orders finding need for the intrastate operations. Thus, more than mere "transfer" of existing intrastate rights was being litigated: applicants' rights under $206(a)(6). Therefore, simply to categorize the state proceedings as relating solely to "transfer" rights is misleading; the applications and statutory notice make it clear that more was involved. Id., pp. 60-61.

The Commission's denial of certificates of registration, on the ground that a nunc pro tunc refinding of need for an intrastate operation is not sufficient, misconstrues the use of such procedure, since the Nebraska commission has inherent power to correct its orders by a nunc pro tunc proceeding. State commission's order reflects orderly

and proper consideration of prior records and sets forth a finding made then but inadvertently omitted; and, since it orders for now a finding made then, it properly recites a finding of public convenience and necessity for intrastate as well as interstate operations. The mere fact that this is accomplished by a nunc pro tunc order being immaterial, it is not a fatal defect. Accordingly, the Commission's orders in issue are vacated; proceedings remanded to the Commission for further consideration consistent with the court's opinion.-Id., pp. 61-3.

Whether or not applicant's State "permit," authorizing operations for which authority is sought, is a certificate of public convenience and necessity within meaning of §206(a)(7) and thus acceptable for registration, is as yet an unresolved question; and, while its right to register the State permit has been challenged, its $207 proceeding is not the proper forum to determine its eligibility for registration. However, since the registration provisions of former second proviso of §206(a)(1) and of $206(a)(7) are only applicable to carriers operating solely within a State, and applicant's purpose in instant application is to obtain authority between points in Idaho over highways passing through adjacent States, performance of such operations would render applicant ineligible to continue registration of its intrastate authority under former second proviso or to receive a certificate of registration under the "grandfather" provisions of §206(a)(7).—Statewide Transport, Inc., Extension, 96 M.C.C. 57 (59, 64-5).

Authority to serve Philadelphia, Pa., because it carries with it implicit authority to serve points in the commercial zone thereof, which includes a part of New Jersey, would render applicant (a single-State operator) a multiple-State carrier, thus making him ineligible to receive the certificate of registration he seeks under §206(a)(7) in another proceeding. However, his intrastate authority is restricted against interchange and the certificate of registration would be similarly restricted; and since, in the light of the evidence, it is not advisable to impede applicant's interchange operations by limiting authority granted to serving only that part of

the Philadelphia commercial zone within Pennsylvania, grant is conditioned on dismissal of his application for a "grandfather" certificate of registration.—BowserInvestigation of Operations, 98 M.C.C. 170 (172, 179).

Although it has been held that the doctrine in 53 MCC 672, was by its terms limited to operations under the former second proviso of $206(a), that case nevertheless reflects the Commission's long-established policy of not issuing authority for operations which may be performed by a carrier under existing laws and regulations without additional authority; furthermore, the Commission has held repeatedly that the scope of registered operations, both as to commodities and territory, is governed by the interpretation and construction placed upon the intrastate authority by the issuing agency. In this light applicant must establish that under its existing authority it is not authorized to perform the proposed service. Sidney has failed in this burden; application denied. -Sidney Truck & Storage, Inc., Extension, 99 M.C.C. 134 (138).

The conclusion that there has been an exercise of unlawful control and management by Livek, applicant's father and her husband's former employer is demanded by the following uncontested facts: that she has performed substantial office work for Livek, a motor common carrier with irregular-route interstate authority; that she maintains no terminal facilities but stations her one vehicle at Livek's terminal and uses his vehicles and drivers as needed; and that she has no advertisement nor phone listing in her business name nor does she solicit any of the involved traffic, for which shippers call on Livek and show him as the originating carrier, although the actual intrastate transportation is performed under applicant's authority.-Norquist "Grandfather" Registration Application, 99 M.C.C. 501 (503-504).

Commission review herein must be based solely on the record made before the State commission whose findings are to be given great weight and may not be modified unless they are inconsistent with those public convenience and necessity standards normally applied under the Act; this precludes the substitution of the Commission's judgement for that of a duly authorized State body

based on substantial evidence and conforming to the requirements of the act. Therefore, since the underlying findings of the Kansas commission, except as to two points named, are supported by substantial evidence of record, they are affirmed; however, since there is no public support for service at excepted points, certificate of registration issued will not include these points.-Dugan Extension Certificate of Registration, 99 M.C.C. 557 (566-68).

Service which may be authorized under §206(a)(7)(A) is necessarily dependent upon the construction and interpretation of the phrase "in operation solely within a single state". This phrase is in substantial conformity with the original terms of the former second proviso of §6(a) which read “in operation solely within any state", and therefore it is reasonable to assume that Congress, absent any legislative history to the contrary, did not intend to alter the interpretation of that phrase as enunciated in previous decisions of the Commission. In these circumstances, former decisions concerning the permissible range of service under the second proviso are likewise pertinent in determining the meaning of the present §206(a)(7)(A). Accordingly, the phrase "in operation solely within a single state" must be generally construed to preclude operations in interstate or foreign commerce by motor carriers operating under §206(a)(7) at any point outside of a single state or the United States. Imperial Truck Lines, Inc., Common Carrier Application, 106 M.C.C. 741 (747-48).

When §§206(a)(7)(A) and 206(a)(7)(B) are considered conjunctively, it is clear that Congress did not intend to say that mere possession by applicant of an effective intrastate certificate on October 15, 1962, would constitute conclusive proof that applicant was lawfully engaged in interstate and foreign operations. Section 206(a)(7)(B) also provides that such certificates must have been filed with the Commission as evidence of authority to operate in interstate or foreign commerce under the former second proviso of §206(a)(1); since applicant's prior second proviso filing was declared to be of no force and effect on July 13, 1962, for failure to comply with the Commission's insurance requirements, he did not have