operates as a broker, it is difficult to perceive how a shipper would be able to recognize applicant as a carrier and deal with him as such. Applicant also testified that he contacts the public through personal solicitation and by mail, telephone, and telegraph. However, the nature of that solicitation is not shown, nor is it indicated in what manner it differed from his solicitation as a broker, a business which he has been conducting since sometime prior to the commencement of the alleged carrier operations. The burden of proof with respect to authority sought under the "grandfather" clause of section 206 (a) of the act rests with applicant both as to the character and scope of his operations on and since the statutory date. On this record, we conclude that it has not been established that the vehicles of others, used by applicant on, prior to, and since June 1, 1935, were and are operated under applicant's direction and control and under his responsibility to the shippers and the general public. In the circumstances, there is no basis for a finding that the operations conducted by these vehicles were in fact those of applicant. Broker application.-At the hearing on this application, on the assumption that he would receive authority to operate as a carrier, applicant indicated that he was only interested in procuring a brokerage license covering operations to points beyond the five States included in his carrier application. In view of the denial herein of the carrier application, we will treat this application as of the scope as originally filed. Applicant's brokerage business is obtained principally from food brokers with whom he has dealt for a number of years. These food brokers are agents or representatives of purchasers of food at distant points, and they have used applicant's services since 1933. Preferring to deal with someone familiar with transportation matters, they wish applicant to locate carriers for them. In performing these operations, applicant uses only authorized motor carriers and receives from those carriers a commission usually amounting to 10 percent of the freight charges. He is fit and able, financially and otherwise, to conduct the proposed brokerage operation. Texas is the only State mentioned by applicant beyond those in which he claimed operating rights as a carrier. All circumstances considered, we conclude that he should be granted a broker's license of the scope set out in our finding. -- Findings. We find, in No. MC-70380, that applicant has failed to establish that his operations were, on June 1 or July 1, 1935, and continuously since have been, those of a common or contract carrier by motor vehicle as claimed; and that the application should be denied. We further find, in No. MC-68913, that applicant is fit, willing, and able properly to perform, at Oklahoma City, the service of a broker in arranging for the transportation by motor vehicle of food products in interstate or foreign commerce between points in Missouri, Iowa, Illinois, Kansas, and Texas, on the one hand, and points in Oklahoma, on the other, and to conform to the provisions of the act and our rules and regulations thereunder; that such service will be consistent with the public interest and the national transportation policy; that a license therefor should be granted; and that in all other respects the application should be denied. An appropriate license will be issued upon compliance by applicant with the requirements of section 211 of the act and with our rules and regulations thereunder. An order denying the applications except to the extent granted herein will be entered. 28 M. C. C. No. MC-59239 (SUB-NO. 1) W. F. COUCH EXTENSION OF OPERATIONS-LOUISIANA Submitted September 19, 1940. Decided March 3, 1941 Operation by applicant as a contract carrier by motor vehicle, of (1) meats, packing-house products, canned goods, salad dressing and relishes, dairy products, containers and packages for these commodities, stationery, wrapping paper, and advertising matter, from St. Louis, Mo., and East St. Louis, Ill., to certain points in Louisiana on specified routes and (2) fresh and cured meats from Lake Charles, La., to El Dorado and Little Rock, Ark., over specified routes, found to be consistent with the public interest and the national transportation policy. Issuance of a permit approved upon compliance by applicant with certain conditions, and application in all other respects denied. Arthur J. Frankel, Jr., for applicant. Reagan Sayers, Rollo E. Kidwell, H. C. Holt, Charles H. Hudson, Jr., B. C. Brile, Theo. R. Schneider, B. C. Rotenberry, V. H. Livingston, and H. C. Smiley for protestants. REPORT OF THE COMMISSION DIVISION 5, COMMISSIONERS LEE, ROGERS, AND PATTERSON BY DIVISION 5: Exceptions were filed by certain protestant motor carriers to the order recommended by the examiner. Our conclusions differ slightly from those recommended. By application filed April 30, 1940, as amended, W. F. Couch, of Junction City, Ark., seeks a permit authorizing operation, in interstate or foreign commerce, as a contract carrier by motor vehicle of (1) meats, packing-house products, canned goods, salad dressings and relishes, dairy products and containers and packages therefor, eggs, stationery, wrapping paper, and advertising matter from St. Louis, Mo., and East St. Louis, Ill., to all points in Louisiana on routes 1,3, and 4 described in the appendix hereto, (2) fresh and cured meats from Lake Charles, La., to El Dorado and Little Rock, Ark., and (3) eggs from Monroe, La., to St. Louis and East St. Louis, over the routes described in the appendix. Applicant also seeks authority to operate over route 2 as an alternate route in serving points previously authorized. Certain rail and motor carriers oppose the application. On February 21, 1938, in No. MC-59239 (also embracing No. MC-59239-BMC-10), division 5 issued W. F. Couch a permit as a contract carrier of meats, packing-house products, canned goods, salad dressings and relishes, dairy products, containers and packages for these commodities, stationery, wrapping paper, and advertising matter, from St. Louis and East St. Louis to Haynesville, Monroe, Ruston, Arcadia, Gibsland, Minden, and Homer, La., and Little Rock, Pine Bluff, Camden, Louann, Smackover, Norphlet, El Dorado, and Junction City, Ark., as well as to certain off-route points not here pertinent, and from Monroe and Ruston to Alexandria and Lake Charles, over routes 1, 3, and 4 described in the appendix. Applicant was also authorized to transport the same commodities from Memphis, Tenn., to Monroe and from Fort Smith, Ark., to Little Rock, over routes not here pertinent. In the instant proceeding, applicant seeks authority to extend his operations (1) to serve, from St. Louis and East St. Louis, all intermediate points in Louisiana on the routes at present authorized, (2) to serve El Dorado and Little Rock from Lake Charles, and (3) to operate over an additional route between St. Louis and Little Rock without serving any intermediate points on that route. Although it is stated above that applicant seeks authority to transport eggs from Monroe to St. Louis and East St. Louis, there is some doubt as to whether or not applicant intended to withdraw his request for such authority. However, the traffic manager for the shippers for whom such service would be performed testified that he was not familiar with the transportation of eggs and that he did not know of any need for such service. No other witnesses, except applicant, testified in support of this part of the application. There are no cold-storage facilities for storing eggs at Monroe, the expected volume of traffic is small, and a protestant motor carrier is able to transport in unrefrigerated equipment eggs which have not been in cold storage from Monroe to St. Louis and East St. Louis. Applicant has failed to establish any need for additional facilities in the transportation of eggs from Monroe to St. Louis and East St. Louis or between any other points. The traffic manager for the shippers of the commodities which applicant has previously been authorized to transport from St. Louis and East St. Louis to certain points in Arkansas and Louisiana testified that they have branch plants at certain of those points, including El Dorado, Monroe, Alexandria, and Lake Charles. In the past, shipments destined to intermediate points in Louisiana on applicant's routes which he is not at present authorized to serve were transported by him in refrigerated vehicles to branch plants, from which they were transported on the shipper's own vehicles to final destinations. The witness testified that they intended to continue to handle small shipments through branch plants but that it would be advantageous to them to have applicant deliver their products in truckloads, or shipments of sufficient quantity to justify direct deliveries, to intermediate points in Louisiana on his routes. Such arrangement would effect savings in time and handling and would provide a more efficient and economical service. The record fails to show that any other carrier serves these points directly with refrigerator trucks. Since the shippers now serve these points with their own vehicles, the granting of authority to applicant to serve such points would not adversely affect any other carrier. We conclude that authority to operate from St. Louis and East St. Louis to points in Louisiana on applicant's present routes, except Haynesville, Monroe, Ruston, Arcadia, Gibsland, Minden, and Homer, to which points service has previously been authorized, should be granted. One of the shippers also operates a slaughtering plant at Lake Charles. This plant is not able to dispose of all of its fresh and cured meats locally, and the shipper desires applicant's service in the transportation of these commodities from Lake Charles to its branch plants at El Dorado and Little Rock. The traffic manager of the shipper testified that less-than-truckload quantities are usually transported to these plants from Lake Charles and that railroad service has not proven satisfactory for this transportation. Authority to perform this service will be granted. Applicant also desires authority to operate over an additional route, which is route 2 in the appendix, between St. Louis and Little Rock. He testified that certain highway improvements have been made on route 2 since the previous authority was granted to him; that there is less traffic on this route; and that he can perform a more expeditious service when operating over route 2. Applicant admits that he has traveled over route 2 in the past without authority from us, but claims that State authorities have advised him that he may operate over any route which he chooses. Certain protestants contend that applicant should be denied authority to operate over this additional route because of his past unlawful operation. Although it appears that applicant knowingly violated the provisions of the Interstate Commerce Act by such unauthorized operation, since service to intermediate points is not involved, we are of the opinion that such unauthorized operation is not of such gravity as would warrant withholding the desired authority. By such unauthorized operation, however, applicant rendered himself liable to prosecution under the provisions of the act. Since it is shown that applicant can operate more efficiently by the use of the additional route, which would be to the advantage of the shipper, |