No. MC-1470 COLUMBUS AND CHICAGO MOTOR FREIGHT, INC., COMMON CARRIER APPLICATION Decided March 19, 1941 On reconsideration, applicant found to have failed to establish the right to a certificate as a common carrier, or to a permit as a contract carrier, by motor vehicle, of general commodities, between Columbus, Ohio, and Chicago, Ill., over regular routes, and between certain points in Ohio and certain points in Illinois, over irregular routes, under the "grandfather" clauses of sections 206 (a) and 209 (a) of the Interstate Commerce Act. Findings in prior report, 26 M. C. C. 768, denying application, affirmed. Appearances same as in prior report. REPORT OF THE COMMISSION ON RECONSIDERATION BY DIVISION 5: By application filed January 9, 1936, as amended, under the "grandfather" clauses of sections 206 (a) and 209 (a) of the Interstate Commerce Act, the Columbus and Chicago Motor Freight, Inc., of Columbus, Ohio, sought a certificate of public convenience and necessity or a permit authorizing continuance of operation as a common or contract carrier by motor vehicle of general commodities, with certain exceptions, in interstate or foreign commerce, between Columbus, and Chicago, Ill., over four specified regular routes, through Indiana, serving all intermediate points, and between points on such regular routes, on the one hand, and points in Illinois within a radius of 75 miles of Chicago and in Ohio within a radius of 160 miles of Columbus, on the other, over irregular routes. In the prior report, 26 M. C. C. 768, we found that applicant had failed to establish that its operation had been that of either a common or a contract carrier by motor vehicle under the provisions of the act, and that, therefore, the application should be denied. An order was entered which, as subsequently modified, denies the application effective May 8, 1941. Applicant has filed a petition for reconsideration or further hearing, and, pursuant to such petition, we have reopened the matter for reconsideration on the present record. The facts concerning the operatio t forth in the prior report and will not be repeated in detai 28 M. C port. On June 1, 1935, applicant did not transport in its own vehicles any shipments in line-haul service between cities. It relied entirely upon the equipment of others for such transportation. It had no written agreement with any of the owners of the vehicles, and settlement was made on the basis of each particular trip, although several of the owners carried shipments exclusively for applicant for an extended period of time. We found that the direction and control of the vehicles, or responsibility to the general public, on the part of applicant on June 1, 1935, was not sufficient to establish that applicant was a common carrier by motor vehicle as defined in section 203 (a) (14) of the act. The words "direction," "control," and "responsibility" are conclusions dependent on the facts presented in each individual case. Considering all the facts in the instant case, we conclude that the transportation service performed on June 1, 1935, in vehicles not owned by applicant was not performed by applicant, and that as to such transportation applicant was not a common carrier by motor vehicle as defined in section 203 (a) (14) of the act. Even if it be assumed that applicant was a motor carrier on June 1, 1935, there is a further ground on which this application must be denied. In August 1934 applicant filed with the Public Service Commission of Indiana an application for a certificate as a common carrier, in interstate commerce, between the Ohio-Indiana State line and the Indiana-Illinois State line. The application was denied in October 1934 on the grounds of congestion and safety on the highways. On rehearing and reconsideration the application was again denied on similar grounds in December 1934. Another application was filed on January 17, 1935, and denied on April 8, 1935, on the grounds that it contemplated the use of equipment leased from others and that traffic which applicant would transport was being moved by motortrucks employed by other common carriers. A petition for reconsideration was filed by applicant and denied by the Indiana commission on April 26, 1935. Thereafter applicant continued to accomplish transportation through Indiana without a certificate of authority from the Indiana commission, by the use of owner-operators who were operating for Motor Way Forwarding Company. Applicant contends that at no time has it attempted to conceal operations through Indiana, that it has operated since 1934 openly and without resort to subterfuge of any kind, and that the Indiana commission has acted in an arbitrary and discriminating manner in denying it a certificate to conduct operations over the highways of Indiana. Yet, at the hearing before the Indiana commission on April 8, 1935, applicant's vice president testified that it had not operated in violation of any law or of any rule of the Indiana commission, that it handled freight through Indiana by means of an arrangement with another carrier, and that this carrier was the Motor Way Forwarding Company. He testified that applicant was not then operating in Indiana, that it would require four units of leased equipment to commence operations, and that this equipment would be secured from owner-operators employed by other licensed carriers. After having been denied the right to operate in Indiana and following the arrest of certain operators transporting for applicant without an Indiana certificate, applicant applied to the District Court of the United States for the Northern District of Indiana for a temporary restraining order against the Indiana commission, which was issued on November 15, 1937. On June 29, 1939, the court set aside and dissolved the temporary restraining order. The court found that applicant "was not in bona fide operation by motor carrier over the route claimed by him across the State of Indiana, either on June 1, 1935, or at the time he made application to the Interstate Commerce Commission." In McDonald v. Thompson, 305 U. S. 263, the Supreme Court said: The expression, "in bona fide operation", suggests absence of evasion, excludes the idea that mere ability to serve as a common carrier is enough, includes actual, rather than potential or simulated service, and in context implies recognition of the power of the state to withhold or condition the use of its highways in the business of transportation for hire. Plainly the proviso does not extend to one operating as a common carrier on public highways in a state in defiance of its laws. It is clear that applicant's operations in Indiana have not been bona fide but were characterized by evasion and conducted in defiance of the State law, under circumstances where the underlying right to engage in the business of common carriage over the highways of Indiana had never been obtained from that State. See A. E. McDonald Motor Freight Lines Com. Car. Application, 22 M. C. C. 559. All of applicant's operations, in interstate or foreign commerce, with the possible exception of a few interchanged shipments to and from points in Ohio, have involved operation over highways in Indiana. On reconsideration, we find that applicant has failed to establish the right to a certificate as a common carrier or to a permit as a contract carrier by motor vehicle of general commodities, between the points and over the routes for which authority is sought, and that the application should be denied. Since the order entered herein on December 9, 1940, has not been vacated or set aside no further der is necessary. M.C EASTMAN, Chairman, concurring: In order to remove possible misunderstandings, I take this opportunity to say that in joining in the conclusions of the prior report, to the effect that the "direction and control of the vehicles, or responsibility to the general public, on the part of applicant on June 1, 1935, was not sufficient to establish that applicant was a common carrier by motor vehicle as defined in section 203 (a) (14) of the act," I was not influenced by the fact that applicant did not transport any shipments in vehicles which it owned, nor by the fact that it had only oral arrangements with the so-called owner-operators. In my opinion, neither of those facts is material in the application of the doctrine of the Dixie Ohio case (17 M. C. C. 735). The essential questions are whether the vehicles used were operated under the direction and control of the applicant and whether it assumed full responsibility for such operation to the public. As to this matter, this is a close case. I was principally influenced, in joining in the conclusions of the prior report, by the testimony of applicant's president that the owner-operators "more or less considered that they had control of their own truck," by the evidence that applicant bore only part of the cost of public-liability and property-damage insurance, and by the further evidence that applicant used in its operations the services of operators admitted to be motor carriers in their own right, as well as the owner-operators. 28 M. C. C. EX PARTE No. MC-21 CENTRAL TERRITORY MOTOR CARRIER RATES Decided March 19, 1941 Upon further hearing, findings and order in the original report herein, 8 M. C. C. 233, as subsequently modified, prescribing minimum rates, charges, classification ratings, rules, and regulations, for common carriers by motor vehicle between points in central territory, further modified. Additional appearances: J. H. Pieper and H. A. Rau for respondents; John P. Bauer and C. Pascarella for shippers; and George F. Dyche for rail carriers. TWENTY-SEVENTH SUPPLEMENTAL REPORT OF THE COMMISSION DIVISION 5, COMMISSIONERS EASTMAN, LEE, AND ROGERS BY DIVISION 5: In our original report herein, 8 M. C. C. 233, as subsequently modified, we prescribed minimum rates, charges, classifications, rules, and regulations for the transportation of property, with certain exceptions, by common carriers by motor vehicle between points in central territory. By petitions filed by the Central States Motor Freight Bureau, Inc., hereinafter referred to as the bureau or petitioner, on behalf of its members who are respondents herein, modification of our findings and prior orders are sought. Rates will be stated in cents per 100 pounds except as otherwise indicated. Automobile-headlamp lenses.-Petitioner proposes to establish a commodity rate of 25 cents, minimum 20,000 pounds, on lenses for automobile lamps made of cast or moulded glass, not ground, from Dunkirk, Ind., to Cincinnati, Ohio. This rate is intended to meet in part the existing rail rate of 23 cents, minimum 24,000 pounds. On ground lenses, we originally prescribed a commodity rate of 29 cents, minimum 15,000 pounds, and on lenses not ground, minimum 16,000 pounds, we prescribed a fourth-class rate of 33 cents. It appears that the principal movement of the commodity is of lenses not ground which do not exceed $20 per 100 pounds in value. It is proposed to cancel the commodity rate of 29 cents, minimum 15,000 110 M. C. C. 67; 12 M. C. C. 153 and 567; 17 M. C. C. 541 and 543; 19 M. C. C. 36 and 545; 20 M. C. C. 663 and 725; 21 M. C. C. 473 and 677; 22 M. C. C. 311 and 729; 23 M. C. C. 93 and 435; 24 M. C. C. 69, 301, and 785; 26 M. C. C. 43, 67, 115, 285, 287, and 751; and 28 M. C. C. 173 and 199. |