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MC-48602, subnumbers 2 to 5, inclusive, the order of November 12, 1938, in the two extension applications numbered MC-61438, and the order of March 16, 1940, in No. MC-88370, and denying all of the applications herein considered except to the extent that certificates are granted in the prior reports as herein modified.

Certificates, subject to such further specific conditions as we may find it necessary to impose in order to restrict the operation therein authorized to those which are in fact auxiliary to, or supplemental of, rail service, have already been issued in the two extension applications numbered MC-61438 and in No. MC-86687, and subnumbers 1 to 10, inclusive, and subnumbers 15 and 18. Applicants in these cases will be expected, as of the effective date of the order, herein to surrender such certificates, whereupon amended certificates conforming with the conclusions herein will be issued.

MAHAFFIE, Commissioner, concurring in part:

In general I concur. I do not agree, however, that the imposition of condition 3 is warranted. Having found that the public convenience and necessity requires these truck operations, we should not impose conditions, in the nature of petty restrictions, which make them somewhat more expensive to the carriers and somewhat less convenient to the public.

LEE, Commissioner, dissenting in part:

In the prior report in the title case, 10 M. C. C. 221, division 5 found that there are plenty of authorized motor carriers in operation throughout the territory in which the Kansas City Southern Transport Company proposes to operate; that, with the possible exception of some small stations, the present facilities for the movement of freight wholly by motor vehicle between the points which it proposes to serve are adequate; that the record fails to establish that there is any need whatever for it to provide a service such as the existing motor carriers are furnishing; and that public convenience and necessity require only the establishment by it of a motor-carrier service which will be auxiliary to, or supplemental of, rail service of its parent railroad company and which will not duplicate motor-carrier service now adequately provided by existing authorized motor carriers. Similar findings were made in the other reopened cases embraced in the instant report, and the record in No. MC-89811 will not support findings more favorable to that applicant.

The conditions imposed in the prior reports in the title case and the other reopened cases, and discussed in the instant report, were designed to restrict the authority granted to the operations which were

found to be required by the present and future public convenience and necessity. For this purpose condition 3 was and is vital. On the records in these cases we could have, as urged by the existing independent motor carriers, granted less authority than this condition provides, but I insist that the evidence will not justify more.

The instant report, however, without disturbing the findings of fact in the prior reports in the reopened cases with respect to the adequacy of existing motor-carrier service and without making materially different findings in No. MC-89811 with respect to such service, apparently recognizing that the records will not support any different findings, arrives at the conclusion that between all but "certain larger points," referred to as key points (and they, it is indicated, may be rather easily changed and shifted) on the lines of the interested railroads public convenience and necessity require the "substitution" for present rail service of trucks operated by these railroads or their subsidiaries. To give effect to this conclusion, condition 3 is eliminated and a new condition is prescribed which merely prohibits the movement by motor vehicle by any of these railroads or their subsidiaries of shipments from one designated key point to another designated key point on their respective routes. The result is that they are granted authority to engage in motor-carrier operations and to furnish motor-carrier service which are not coordinated with or in any wise tied into rail operations or rail service but which, on the contrary, will duplicate the operations and the service provided by existing motor carriers and found to be adequate to fill the public need. In making this statement I have not overlooked the fact that the instant report retains condition 1 without change in text. It is clear, however, from the views expressed therein that the meaning intended to be accorded to that condition nullifies its restrictive effect to such an extent that the result stated above correctly describes the authority granted. As indicated, with this conclusion and the resulting elimination of condition 3 I cannot agree.

The act does not authorize us to grant a certificate or permit, authorizing motor-carrier operations by a railroad or its subsidiary, on any less proof of public need therefor than is required of other applicants for such operating authority. It may be, as stated in the report, that "one competitive carrier [a motor carrier] has no vested right in the continuation by another [a railroad] of an inefficient method of operation." Neither does a railroad or its subsidiary have a "vested right" to inaugurate new motor-carrier operations in competition with existing authorized motor carriers without establishing public convenience and necessity therefor. I favor issuing certificates to all of the applicants subject to the conditions prescribed in the prior report in the title case.

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I am authorized to state that COMMISSIONER ROGERS Concurs in this expression.

COMMISSIONER ALLDREDGE, having been necessarily absent, did not participate in the disposition of these proceedings.

APPENDIX A

Routes granted

Route 1, between Elizabethtown and Madisonville, Ky.: U. S. Highway 31W between Elizabethtown and Bowling Green, Ky.; U. S. Highway 68 between Bowling Green and Hopkinsville, Ky.; and U. S. Highway 41 between Hopkinsville and Madisonville, Ky.; serving the intermediate points of Auburn, Bonnieville, Bowling Green, Cave City, Crofton, Dividing Ridge, Earlington, Elkton, Empire, Hopkinsville, Horse Cave, Kelly, Mannington, Morton, Munfordville, Nortonville, Park City, Rowletts, Russellville, and Upton, Ky., and the off-route points of Bristow, Gaithers, Glendale, Homeland, Nolin, Oakland, Rocky Hill, Smith's Grove, Sonora, Sunnyside, and Watrie, Ky.

Route 2, between Nashville, Tenn., and Hopkinsville, Ky.: U. S. Highway 41E; serving the intermediate points of Adams, Tenn., Casky, Ky., Cedar Hill, Goodlettsville, and Greenbrier, Tenn., Guthrie and Pembroke, Ky., Sadlers, Tenn., and Trenton, Ky., and the off-route points of Bakers, Kinney, Ridgetop, and Springfield, Tenn.

APPENDIX B

Conditions 2 and 3, as shown in the prior reports, will be modified to read as shown under the respective docket numbers below:

No. MC-61438 (two extension applications), prior report 10 M. C. C. 221 :

2. Applicant shall not serve any point not a station on a rail line of the railways. 3. No shipments shall be transported by applicant as a common carrier by motor vehicle between any of the following points, or through or to or from more than one of said points: Kansas City, Hume, and Joplin, Mo., Pittsburg, Kans., Shreveport and Lake Charles, La., Beaumont, Tex., Texarkana, Ark.-Tex., and Fort Smith, Ark. Nor shall they be transported from Kansas City, Mo., to Neosho, Mo.

No. MC-86687 and subnumbers 1 to 10, inclusive, and subnumbers 15 and 18, prior report 17 M. C. C. 413:

2. [No change required.]

3. No shipments shall be transported by applicants as a common carrier by motor vehicle from Gaston, S. C., to Swansea, North, Denmark, Fairfax, and Garnett, S. C., nor from Garnett to Estill, Fairfax, Denmark, and Gaston, S. C., nor between any of the following points, or through or to or from more than one of said points: Raleigh, Henderson, Hamlet, Aberdeen, Sanford, Apex, Southern Pines, Laurinburg, Maxton, Pembroke, Lumberton, Bladenboro, Wilmington, Monroe, Charlotte, Lincolnton, Shelby, and Ellenboro, N. C., Richmond and Petersburg, Va., Columbia, Cheraw, McBee, Greenwood, and Clinton, S. C., and River Junction, Quincy, Tallahassee, and Monticello, Fla.

No. MC-88370, prior report 22 M. C. C. 213 :

2. LandA shall not serve any point not a station on the rail line of the Railway. 3. No shipments shall be transported by LandA as a common carrier by motor vehicle from Shreveport, La., to Pittsburg, Winnsboro, Greenville, or Dallas, Tex. No. MC-48602, subnumbers 2 to 5, inclusive, prior report 19 M. C. C. 702: 2. Applicant shall not serve any point not a station on its rail line.

3. No shipments shall be transported by applicant as a common carrier by motor vehicle between any of the following points, or through or to or from more than one of said points: St. Joseph, Mo., and Topeka, Herington, McPherson, and Hutchinson, Kans.

No. MC-100778

OLLIN W. ALLEN COMMON CARRIER APPLICATION

Submitted July 18, 1940. Decided February 15, 1941

Public convenience and necessity found to require operation by applicant as a common carrier by motor vehicle of dressed poultry and eggs, from Piqua, Ohio, to New York, N. Y., and Jersey City, N. J., and of fresh and processed fish and shellfish, from Boston and Gloucester, Mass., and New York N. Y., to Springfield and Cincinnati, Ohio, and from Boston to Xenia, Ohio, over regular routes. Issuance of a certificate approved upon compliance by applicant with certain conditions. Application denied in all other respects. J. F. Atwood for applicant.

Ralph M. Buzek, Ferdinand Born, Clarence A. Kelley, H. J. Waples, and Lee Molley for protestants.

REPORT OF THE COMMISSION

DIVISION 5, COMMISSIONERS LEE, ROGERS, AND PATTERSON

BY DIVISION 5:

Exceptions were filed by protestants to the order recommended by the examiner and applicant replied thereto. Our conclusions differ in some respects from those recommended.

By application filed July 17, 1939, as amended, Ollin W. Allen, of Piqua, Ohio, seeks a certificate of public convenience and necessity authorizing operation as a common carrier by motor vehicle, in interstate or foreign commerce, (a) of dressed poultry and fresh and frozen eggs from Piqua to New York, N. Y., and Jersey City, N. J., and (b) of fresh and processed fish (including shellfish) and sea foods, from Boston, Gloucester, New Bedford, Sandwich, Plymouth, North Truro, Provincetown, and Worcester, Mass., to Chicago, Ill., Fort Wayne and Indianapolis, Ind., Toledo, Newcomerstown, Cincinnati, and Portsmouth, Ohio, and Louisville, Ky., over regular routes, serving certain intermediate points. Certain rail and motor carriers oppose the application.

In Allen Common Carrier Application, 8 M. C. C. 743, the "grandfather" clause application filed by the applicant herein, which embraced the operations covered by the instant application, was denied. Applicant continued to transport dressed poultry, eggs, and fish, however, in the belief that no authority was required to transport such

commodities, under the provisions of section 203 (b) (6) of the Interstate Commerce Act, so long as his vehicles were not used in carrying commodities other than those specified in that section for compensation. He filed the instant application upon being advised that a certificate was required in order to continue such operations. Applicant owns and operates three tractors and three refrigeratortype semitrailers and is financially and otherwise able to conduct the operation.

The first question requiring consideration is whether authority is required from us for applicant to conduct the operation here involved in view of the provisions of section 203 (b) (6), which read as follows:

Nothing in this part, except the provisions of section 204 relative to qualifications and maximum hours of service of employees and safety of operation or standards of equipment shall be construed to include *

motor vehicles

used in carrying property consisting of ordinary livestock, fish (including shell fish), or agricultural commodities (not including manufactured products thereof), if such motor vehicles are not used in carrying any other property, or passengers, for compensation;

*

It is clear, therefore, that if applicant's vehicles are used in the transportation of any commodity other than those named in this section of the act, for compensation, his entire operation would be subject to the certificate or permit requirements of the act. In addition to the transportation of dressed poultry and fresh and frozen eggs, applicant transports fresh, frozen, and dressed fish and fillets of fish. Fillets of fish are the sides of fish which have been sliced off, boned, and frozen for preservation until ready for use. Dressed fish are those from which the internal organs, or heads and internal organs, have been removed. As we construe this section of the act, the word "fish" refers to fish in their natural state, which would not include processed fish or manufactured products thereof. While applicant's vehicles are used to some extent in the transportation of fish in their natural state, the use of such vehicles in the transportation of processed fish for compensation subjects all of his for-hire motor-vehicle operations in interstate commerce to the certificate provisions of the act.

Applicant has been transporting dressed poultry and fresh and frozen eggs from Piqua to New York, N. Y., for about 4 years. Some of the consignees in New York also have warehouses in Jersey City, N. J., and he is occasionally required to unload at that point. The movement of these commodities is largely seasonal; however, there are occasional shipments throughout the year. From 5 to 15 cars of eggs are shipped weekly during the egg season and about 4 cars of poultry weekly during the poultry season. While

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