drugs, and pallets of electric motors. The issues are (1) exactly what is meant by the quoted commodity description in the Bos certificate, and (2) do the transported commodities fit into that meaning? The Administrative Law Judge found that the Bureau had failed to carry its burden of proof, and limited the finding of unlawful operation to those ccmmodities stipulated by the parties to be outside Bos Lines' authority. He found that, viewed in the aspect most favorable to the Bureau's position, the evidence of record suggested only that no more than eight grocery organizations (and in some instances fewer) do not deal in the commodities being examined, which he held was far from proof "that no store does so.” He also found that the Bureau's evidence, already weak because it was purely subjective, was cast into further doubt because there was clear and convincing evidence that there are stores which do deal in some of the commodities. The Bureau, on exceptions, argues that the commodity description "such commodities as are dealt in by wholesale, retail, or chain grocery stores" does not include obscure items dealt in by only a few stores, but only those commodities commonly or ordinarily dealt in by such stores. It contends that the stores represented (1) had not handled the commodities at all, or (2) if so, they had (a) not "dealt" in them for resale, or (b) handled them subject to special circumstances and conditions, e.g., special enclosures or partitioned-off areas. Respondent in its reply argues (1) that the evidence shows that the questioned commodities are handled by substantial numbers of such stores, and (2) that the nature of the operations conducted by wholesale, retail, and chain grocery stores is changing and warrants inclusion of the disputed commodities in the considered description. The evidence adduced, the Administrative Law Judge's recommendations, the exceptions, and the reply there to have been considered. We find the statement of facts in the Administrative Law Judge's report to be accurate in all material respects and as hereinafter modified, we adopt such statements as our own. We disagree, however, in part with the Administrative Law Judge's conclusions, and feel that certain of the issues involved in this proceeding require further discussion. Eleven witnesses representing stores or chains of stores adduced evidence at the hearing. They indicated that crates, skids, and pallets of glass, drums of insecticides, cleaning compounds, chemicals, compressed gases, and electric motors are handled only for internal use in maintenance of the establishments themselves. No instance was reported of a store handling glass fiber rovings. Radios and phonographs, and 50-pound bags of feed supplements were handled in each instance by a single store. Of the witnesses who indicated that their concern handled drugs or liquor, in each instance this operation was physically segregated from the rest of the store's sales area. Several witnesses indicated that the sales of these commodities were rung up at separate cash registers, and that distribution of these commodities to the individual stores was often from channels separate from its other operations. Red Owl Stores' and Target Foods' witnesses indicated that the drug sales conducted in the store buildings where they operated were made by separate corporations, and, in the latter case, a corporation unrelated to witness' concern. The witness from Wegman Food Market indicated that the drug department was significantly incorporated into the rest of its store operation, but that drugs were sold in only 5 of its 30 stores. Other witnesses appeared represnting concerns other than retail, wholesale, and chain grocery stores. Gene A. German, of Cornell University, appeared as an expert witness on matters of food distribution. German's testimony emphasized the changing nature of retail food stores. He states that grocery stores are adding prescription centers, and where permitted by law, are dealing in hard liquors. He testified that knitting yarns were sold in grocery stores; however, he could not state whether grocery stores handled glass fiber yarns. He stated that cleaning compounds would only be sold in so-called consumer sizes (i.e., pints, quarts, sometimes halfgallons or gallons) and that a typical grocery store would not handle larger units of cleaning compounds except for internal use. Mr. German indicated that the low markup on food items has caused many supermarkets to commence handling commodities which they have not handled before. Larry W. Smith testified as manager of traffic of Upjohn and Company, a manufacturer and distributor of pharmaceuticals. Smith testified that Upjohn distributes their commodities to a number of chain grocery organizations. DISCUSSION AND CONCLUSIONS For a commodity to be transported under the commodity description in issue here it (1) must be such a commodity as is commonly or ordinarily dealt in by wholesale, retail, or chain grocery stores, see Houff Transfer, Inc.-Revocation of Certificates, 78 M.C.C. 275, 282, and Wiley and Sons, Inc.-Investigation and Revocation, 106 M.C.C. 686, and (2) must be in the form of or quantity "dealt in" (i.e., sold), by such concern, see Peterson— Interpretation of Certificate, 73 M.C.C. 389, Quality Carriers, Inc., Extension-Corn Products in Bulk, 83 M.C.C. 253, and Interstate Grocery Distribution System Ext.-Paper, 98 M.C.C. 546. Application of these criteria to the facts of this case makes it clear that of the commodities in issue only prescription drugs and hard liquors require further discussion. Testimony of the witnesses indicates that the remaining commodities are not generally dealt in by the concern represented, at least not in the form in which they are transported by respondent. As for hard liquors and prescription drugs, the evidence of record shows that some of the concerns represented are beginning to market these commodities. The question here, however, is not whether one or a few chain grocery stores deal in these items, but whether they do so generally. In resolving this question we bear in mind that chain grocery stores are to be distinguished from other retail businesses, e.g., hardware stores, drug stores, and liquor stores, and that though a grocer may carry a line of merchandise which is not generally sold by similarly situated businesses or is not functionally related to the standard operation of chain grocery stores, in such circumstances that merchant is operating as something more than a grocer and the sale of these commodities constitutes a side line business, see Russell Transfer, Petition for Declaratory Order, 118 M.C.C. 862, at 866. The evidence of record here indicates that hard liquor and prescription drugs are not generally sold by the concerns appearing at the hearing. To the extent they are, it is not done so in the manner in which their other merchandise is marketed (e.g., these sales areas are physically segregated, sales are made apart, separate corporations may exist, and these functions are supplied in a manner different from the rest of the store's operations), but rather, such sales are conducted as sideline operations more akin to prescription drug and liquor stores than to the grocery business. FINDINGS We find that the commodity description "such commodities as are dealt in by wholesale, retail, or chain grocery stores," as is found in the involved certificate, does not authorize the transportation of titanium dioxide, synthetic or plastic materials powder, printing paper, bags of acid, drums of chemicals, crates of skids and pallets of glass, hard liquors, bags of feed supplement, drums of insecticides, cartons of radio receiving sets and phonograph players, packages of glass fiber rovings or yarn, cleaning compounds, chemicals, compressed gas (dangerous), prescription drugs, and pallets of electrical motors. We further find that respondent has been engaged in the transportation of property in interstate or foreign commerce for compensation without appropriate authority, between the points specified in the involved authority, in violation of sections 203(c), 206(a)(1), or 209(a)(1) of the Interstate Commerce Act. An order will be entered requiring respondent to cease and desist and hereafter to refrain and abstain from all operations in interstate or foreign commerce of the character found in this report to be unlawful, unless and until there is in force with respect to such carriage appropriate authority therefor. 125 M.C.C. EX PARTE No. 55 (SUB-NO. 14) REVISION OF APPLICATION FORMS OP-OR-9, OP-OR-11, OPWC-10, OP-WC-20, AND OP-FF-10 FOR OPERATING AUTHORITY AND AMENDMENTS TO RULES 22, 49, 51, 57, 74, AND Decided November 16, 1976 Upon investigation and consideration of views, arguments, and representations of the parties, amendments to rules 57 and 247 of the General Rules of Practice (in regard to discovery procedures in modified procedure cases, extensions of time to file, format requirements for verified statements submitted under Special Rule 247, and a requirement that applicant prepare the Federal Register caption) designed to improve and expedite the processing of specified proceedings found to be in the public interest. Requirement that applicant submit with its application all of the evidence upon which it intends to rely found not to be in the public interest. New rules concerning specified time filing dates proposed. Interested persons are invited to file further statements of facts, views, and arguments respecting the proposed rules. Appropriate order entered. John L. Alfano, Paul D. Angenend, Marshall D. Becker, Bates Block, Robert E. Born, William J. Boyd, Fred F. Bradley, A. O. Buck, Andrew R. Clark, Herbert Dubin, Kenneth F. Dudley, Charles Ephraim, Dan Felts, Gerald K. Gimmel, Robert D. Gisvold, Robert E. Goldstein, J. Max Harding, James C. Hardman, George H. Hart, Harold G. Hernly, Jr., Val M. Higgins, Gene P. Johnson, Morton E. Kiel, Thomas R. Kingsley, William J. Lavelle, Robert S. Lee, Timothy Mashburn, Jr., Michael May, Bruce E. Mitchell, Warren C. Moberly, William J. Monheim, Donald A. Morken, James W. Muldoon, Wallace H. Nations, Louis C. Parker III, Arthur J. Piken, Theodore Polydoroff, S. Michael Richards, Bruce J. Robbins, Phillip Robinson, George H. Rosen, Alan E. Serly, Lawrence V. Smart, Jr., Mert Starnes, Donald L. Stern, Paul F. Sullivan, William P. Sullivan, Richard M. Tettelbaum, Edward G. Villalon, Earle V. White, and R. Connor Wiggins, Jr., expressing individual and carrier legal representatives interests. |