service was designed to meet a new transportation requirement of the supporting shipper, the protestants are unable to provide this service, and without such service the shipper may be forced to institute private carriage operation, the findings of the Administrative Law Judge should have been affirmed and adopted in a short form decision and order. It is not and should not be the business of this Commission to tell businessmen to conform their distribution systems to existing transportation services if the services are unsuited to the economical and efficient operation of either shipper or carrier. The idea that a shipper should have to demonstrate an adverse effect on its operations before a new and improved service is authorized has no place in a sound regulatory policy.

APPENDIX

Applicant's proposed "Limitation of Proof" and the service recommended by the Administrative Law Judge

(A)(1) Paper tags and labels, from the facilities of Monarch Marking Systems, at Miamisburg, Ohio, to Evansville, Ind., Memphis, Tenn., Mobile, Ala., East St. Louis, Ill., and the District of Columbia, and points in Florida, Georgia, South Carolina, North Carolina, Virginia, Maryland, those in that part of New York on and west of a line beginning at Oswego and extending along New York Highway 57 to Syracuse, and thence along U.S. Highway 11 to the New York-Pennsylvania border, those in that portion of Alabama on and north of U.S. Highway 78, those in Mississippi on and north of U.S. Highway 80, and those in Illinois on and south of U.S. Highway 460; (2) Returned shipments of the commodities described in (A)(1) above, and materials and supplies used in the manufacture and distribution of said commodities, from the destinations described in (A)(1) above to the facilities of Monarch Marking Systems at Miamisburg, Ohio;

(B)(1)(a) Machines and nonpaper materials used in connection with paper tags and labels, and (b) parts for the machines described in (a) above, from the facilities of Monarch Marking Systems at Miamisburg, Ohio, to points in the United States (except Alaska and Hawaii);

(2) Returned shipments of the commodities described in (B)(1) above, and materials and supplies used in the manufacture and distribution of the commodities described in (B)(1) above, from the destinations in (B)(1) above to the facilities of Monarch Marking Systems at Miamisburg, Ohio;

(C) Materials and supplies used in the manufacture and distribution of the paper tags and labels, machines and materials used in connection with paper tags and labels, and parts for said machines. from the facilities of Monarch Marking Systems at Miamisburg, Ohio, to the facilities of Monarch Marking Systems at Garden Grove. Calif., and to ports of entry in Michigan and New York on the international boundary line between the United States and Canada.

Restriction: All of the above-described authority is restricted to traffic originating at and destined to the named facilities and points, except that the authority in (B)(1) and (C) to ports of entry in Michigan and New York on the international boundary line between the United States and Canada is restricted to traffic destined to the facilities of Monarch Systems at Toronto, Ontario, Canada.

No. MC-34156 (SUB-NO. 5)

NIEDERT MOTOR SERVICE, INC., CONVERSION
(ILLINOIS) AND EXTENSION (INDIANA)

Decided July 28, 1976

as a

Public convenience and necessity found not shown to require operation by applicant common carrier by motor vehicle, over irregular routes, of general commodities, with exceptions, between certain points in Illinois and Indiana. Application denied.

Daniel C. Sullivan for applicant.

R. W. Burgess, Eugene L. Cohn, Bernard G. Colby, Thomas A. Graham, Kermit M. Green, Wentworth Gifffin, Paul J. Maton, Thomas F. McFarland, Alki E. Scopelitis, Joel H. Steiner, and Elmer J. Wery for protestants.

REPORT OF THE COMMISSION

DIVISION 1, COMMISSIONERS MURPHY, GRESHAM, AND CHRISTIAN

GRESHAM, Commissioner:

Exceptions to the order recommended by the Administrative Law Judge were filed by applicant and certain protestants,' and applicant and protestants replied to each other's exceptions. Our conclusions differ from those recommended.

By application filed January 15, 1973, Niedert Motor Service, Inc., of Des Plaines, Ill., seeks a certificate of public convenience.

'La Porte Transit Co., Inc., filed exceptions. Exceptions were also filed on behalf of joint protestants Artim Transportation System, Inc., Burren Transfer Company, C.P.T. Freight, Inc., Landgrebe Motor Transport, Inc., Liberty Trucking Co., Peet Frate Line, Inc., Rudolf Express Co., South Bend Freight Line, Inc., Tucker Freight Lines, Inc., and Welsh Bros. Motor Service, Inc. Applicant contends that since Peet Frate Lines, Inc., did not appear at the hearing and testify, the joint exceptions' inclusion of references to this carrier's operations as set forth in another proceeding are improper. References in the joint exceptions to matters outside the record will not be considered, cf. Floyd & Beasley Transfer Co., Inc., Extension, 112 M.C.C. 124, 127 (1970).

In addition, protestants Knox Motor Service, Inc., and Churchill Truck Lines, Inc., separately filed replies to applicant's exceptions.

and necessity authorizing operation, in interstate or foreign commerce, as a common carrier by motor vehicle, over irregular routes, of general commodities, except classes A and B explosives, household goods as defined by the Commission, commodities in bulk, and those requiring special equipment, (1) between Chicago, Ill., and points in Lake, McHenry, Boone, Cook, Du Page, Kane, De Kalb, Will, Kendall, and La Salle Counties, Ill., (2) between the points named in (1) above, on the one hand, and, on the other, points in Illinois, and (3) between points in Lake and Porter Counties, Ind., on the one hand, and, on the other, points in Illinois. Parts (1) and (2) essentially seek a conversion of applicant's certificate of registration, which would be voidable if applicant becomes a multi-State carrier as a result of receiving authority sought in part (3).

The application was referred to Joint Board Number 21 for hearing. Such hearing took place before an Illinois joint board member, the State of Indiana having waived participation by reason of failure to appear and participate at such hearing. On October 29, 1974, the Illinois Commerce Commission advised that the joint board member was no longer employed by it, that he had not prepared or signed an initial decision, and that the State of Illinois waived further participation in the proceeding.

The proceeding was thereupon assigned to an Administrative Law Judge for preparation of an initial decision. After an independent review of the record, the Administrative Law Judge, in his initial decision, concluded that the evidence of record warranted a partial grant of the authority sought. The Administrative Law Judge characterized applicant's existing service within 50 miles of Des Plaines under its certificate of registration as "an unusual and substantial service." He further indicated that since the two involved Indiana counties are sufficiently a part of the Greater Chicago area that traffic to points in these counties from production and distribution sources in the Chicago area should be handled like traffic to Illinois points within the 50-mile radius. He considered it unreasonable to expect shippers to tender the Indiana traffic to a carrier other than the one handling the Illinois traffic, and found that few carriers were willing to perform a service similar to applicant's and that those carriers having authority into Indiana lacked the capacity or facilities for the large volume involved. While the Administrative Law Judge indicated applicant could interline the rather small volume moving to Indiana, in actual practice there

did not appear to be carriers which would accept such traffic on an interline basis, duly recompense applicant for its work of sorting and sequencing traffic, and make deliveries without unreasonable delays and circuity. With respect to part (3) the Administrative Law Judge recommended granting authority only into the Indiana counties from Cook and Du Page Counties, since the evidence of record did not warrant a larger origin territory or two-way authority. With respect to parts (1) and (2), he recommended only a partial conversion of the certificate of registration because the evidence of past operations and shipper support indicated a need only within. the northern counties of Illinois and that the present restriction should be rephrased to avoid confusion.'

On exceptions, protestant La Porte argues that the Administrative Law Judge erroneously concluded that Niedert is performing an unusual transportation service and that Lake and Porter Counties should necessarily be included in the geographical scope of that service. It further contends that the initial decision does not consider the adverse effect on existing carriers. In their exceptions, the joint protestants contend that the Administrative Law Judge erred in the interpretation of applicant's certificate of registration which refers to shippers within a 50-mile area: (a) in finding that a consignor outside the 50-mile base area may tender traffic to applicant in Des Plaines without having its own office in said base area, and (b) in finding that a consignor outside of the 50-mile base area may ship merchandise consigned to applicant at Des Plaines for movement to intended ultimate destinations beyond said base area.* It is further argued that the Administrative Law Judge erred (a) in his recommendation granting authority from points in Cook and Du Page Counties to points in Lake and Porter Counties, and (b) in granting authority between points in the nine-county base area in

The authority recommended by the Administrative Law Judge was for the transportation of general commodities. except classes A and B explosives. commodities of unusual value. household goods as defined by the Commission, commodities in bulk, and commodities requiring special equipment. (1) between points in Lake, McHenry, Boone, Cook, Du Page, Kane. De Kalb. Will and Kendall Counties. III. (2) between points in the counties listed immediately above, on the one hand, and, on the other. points in Winnebago, Ogle. Lee. La Salle. Grundy, and Kankakee Counties H. restricted to transportation of shipments originating at or destined to points in Lake. McHenry. Boone. Cook. Du Page, Kane. De Kalb, Will, and Kendall Counties, Ill., and (3) from points in Cook and Du Page Counties. Ill. to points in Lake and Porter Counties. Ind.. restricted against tacking or joinder of the authority in part (3) to that in parts (1) or (2) for purposes of through movement of traffic.

The Administrative Law Judge reasoned that applicant acted as an agent for shippers outside the 50-mile radius

Illinois, on the one hand, and, on the other, points in the six specified Illinois counties. In its exceptions, applicant argues that the Administrative Law Judge erred in concluding that what little evidence exists for return traffic from the Indiana counties is much too scant to support a grant of such authority. Applicant further contends that the Commission should affirmatively concur with the Administrative Law Judge that no ambiguity exists in the law with regard to the interline restriction imposed, or the Commission should render a formal interpretation if it is not in accord with the Administrative Law Judge.5

In the joint reply, protestants contend they are competing for the traffic of those shippers which applicant asserts have a need for service from points in the Indiana counties and that there is no basis for granting applicant authority from any points in Indiana. With respect to part (2), these protestants argue that the recommended restriction should be retained to prevent applicant from providing service broader than that authorized under the certificate of registration. In its reply to applicant's exceptions, Knox asserts that the restriction placed in part (2) of the application should be retained to protect the interests of Knox and other protestants and that the Commission should further clarify that Niedert, under that restriction, cannot handle traffic of freight forwarders, trailer-onflatcar (TOFC) trailers, pool trucks, or contract carriers which does not originate at or is destined to points in the counties included in the recommended territorial description. Applicant in reply emphasizes that shippers in the Chicago area can receive the full benefits of its services only if it is able to handle all traffic moving through its service area, including that traffic moving to or from points in Lake or Porter Counties in direct service and to further distant points in interline service.

The evidence, the initial decision and recommendation of the Administrative Law Judge, and the pleadings have been considered. Although we disagree in large part with his discussion and conclusions, we find the Administrative Law Judge's statement of facts to be correct in all material respects; and we adopt that statement, as modified or supplemented herein, as our own. The pertinent facts will be restated here only to the extent necessary for clarity of discussion.

The usual purpose of a restriction of the type recommended, which is stated in terms of shipments "originating at or destined to" is to preclude tacking and interlining, but such restrictions have been modified in situations involving prior or subsequent movement by modes other than motor carriage. Daily Exp., Inc., Ext.-Power Cranes. 124 M.C.C. 87, 96 (1975), and the cases there cited.