No. MC-2480 G. OSCAR GORDY COMMON CARRIER APPLICATION Submitted October 10, 1940. Decided February 19, 1941 Applicant found entitled to continue operation as a common carrier by motor vehicle, in interstate or foreign commerce, of specified commodities from and to certain points in Delaware, Maryland, New York, Connecticut, Massachusetts, Rhode Island, Pennsylvania, Virginia, New Jersey, and the District of Columbia, over irregular routes, by reason of his having been engaged in such operation on June 1, 1935, and continuously since. Issuance of a certificate approved upon compliance by applicant with certain conditions. G. Oscar Gordy for himself. C. H. Noah, Everett B. Lackie, Ward B. Coe, I. M. Schwartz, Glenn F. Morgan, Spencer T. Money, John R. Norris, James W. Oram, J. D. Lawson, and W. T. Gardner for protestants. J. H. Hoffman for intervener. REPORT OF THE COMMISSION DIVISION 5, COMMISSIONERS LEE, ROGERS, AND PATTERSON BY DIVISION 5: By application filed January 29, 1936, G. Oscar Gordy, of Seaford, Del., sought a certificate of public convenience and necessity under the "grandfather" provisions of section 206 (a) of the Interstate Commerce Act authorizing continuance of operation as a common carrier by motor vehicle, of general commodities, between points in Delaware, Maryland, Pennsylvania, New Jersey, New York, Connecticut, Rhode Island, Massachusetts, Virginia, and the District of Columbia, over irregular routes. Following informal investigations, the Commission, division 5, entered an order October 25, 1938, authorizing the issuance of a certificate to applicant, upon compliance with certain conditions, covering the transportation of limited commodities within portions of the territory originally claimed. This order later was vacated and set aside and the application referred to an examiner for hearing, which has been held. At the hearing, applicant amended his application to cover only those operations shown in the order of October 25, 1938. It appears, however, that through inadvertence this order limited the transportation of canned goods in New Jersey to points on and south of New Jersey Highways 40 and 37, whereas it should have limited such transportation to points on and north of said highways. Under the circumstances, the application, as amended at the hearing, will be considered as further amended to correct this error. The operations requested under the application as so amended are set forth in the appendix hereto. While several parties appeared at the hearing in opposition to the application as originally filed, all withdrew following the amendment thereof. Applicant has been engaged in operation as a common carrier by motor vehicle since 1934. He was registered under a code of fair competition for the trucking industry, carries public-liability, property-damage, and cargo insurance, and has a tariff on file with this Commission. On June 1, 1935, he owned and operated one truck. At the time of hearing he owned three tractor-trailer combinations, two of which were leased to Preston Trucking Company, Inc. Applicant has always operated one unit of equipment as a common carrier by motor vehicle in his own right, and none of the operations applicant seeks authority to continue under the application, as amended, relate to traffic which moved in his equipment for Preston or any other motor carrier. Applicant submitted in evidence schedules and shipping documents showing representative shipments transported by him from January 1935 to the time of hearing. These, together with other evidence before us, show that applicant on June 1, 1935, was, and continuously since has been, engaged in bona fide operation to the extent shown in the appendix. We, accordingly, find that applicant on June 1, 1935, was, and continuously since has been, engaged in bona fide operation as a common carrier by motor vehicle, in interstate or foreign commerce, of the commodities and to the extent shown in the appendix hereto, over irregular routes; and that he is entitled to a certificate authorizing continuance of such operation. Upon compliance by applicant with the requirements of sections 215 and 217 of the act and our rules and regulations thereunder, an appropriate certificate will be issued. PATTERSON, Commissioner, dissenting: The record in this proceeding consists of the testimony of applicant and his tariff-publishing agent and a list of approximately 350 shipments transported by applicant since January 1, 1935, which he testifies are representative of those transported by him. Substantially all of the 350 shipments consisted of canned goods and pickles from Seaford, Del. The only other commodities transported were 6 shipments of chicken feed, 1 from Long Island City, 407283m 41-vol. 28 N. Y., in 1935, 1 from Philadelphia, Pa., in 1938, and 4 from Philadelphia in 1939; 3 of salt, 1 from Philadelphia in 1936, 1 from Baltimore, Md., in 1938, and 1 from Philadelphia in 1939; 1 of vinegar from Philadelphia in 1938; 2 of salad dressing from Jersey City, N. J., in 1937 and 1938; 6 of sugar from Philadelphia in 1938 and 1939; and 1 of oysters in January 1935, 1 of soybeans in February 1935, and 1 of holly wreaths in December 1935 from Seaford. Manifestly this record will not support the broad grant of authority which the majority approves. APPENDIX Operations authorized Canned goods, from points and places in Sussex County, Del., to New York, N. Y., Stamford, Bridgeport, New Haven, and Hartford, Conn., Springfield and Fall River, Mass., Providence, R. I., Norfolk, Richmond, Lynchburg, and Fort Myer, Va., points in the District of Columbia, those in Pennsylvania east of U. S. Highway 219, those in Maryland east of U. S. Highway 1, and those in New Jersey north of a line beginning at Camden, N. J., and extending east along New Jersey Highway 40 to Lakehurst, N. J., thence along New Jersey Highway 37 to Seaside Heights, N. J., including points and places on the indicated portions of the highways specified. Feed, from New York, N. Y., Jersey City, N. J., Baltimore, Md., and Philadelphia, Pa., to points in Sussex County, Del. Salt, sugar, onions, vinegar, mayonnaise, mayonnaise products, salad dressing, and sandwich spreads, from Jersey City, N. J., Baltimore, Md., and Philadelphia, Pa., to Seaford, Del. Agricultural commodities, from points in Cecil, Kent, Queen Annes, Talbot, Caroline, Dorchester, Wicomico, Somerset, and Worcester Counties, Md., and those in Kent and Sussex Counties, Del., to Newark, N. J., Boston, Springfield, and Worcester, Mass., New Haven and Hartford, Conn., Philadelphia, West Chester, and Lewistown, Pa., and points in New York. 28 M. C. C. No. MC-44055 (SUB-No. 1) BOS TRUCK LINES, INCORPORATED, EXTENSION OF OPERATIONS — GROCERIES, CANNED GOODS, AND STORE SUPPLIES Submitted July 15, 1940. Decided February 20, 1941 Public convenience and necessity found not to require operation by applicant as a common carrier by motor vehicle, of groceries, canned goods, and store supplies, between points in Iowa, Illinois, Indiana, Michigan, Wisconsin, Nebraska, Colorado, and Wyoming, over irregular routes. Application denied. Stephen Robinson for applicant. Jerome D. Fenton, L. M. Hartley, George R. Hise, Walter Hitchen, Erwin Larson, W. J. McCarthy, John E. McCullough, J. F. McGrath, D. C. Nolan, Nathan S. Sherman, C. R. Smith, and Cyril H. Wissel for protestants. H. C. Marcusen for Iowa State Commerce Commission. REPORT OF THE COMMISSION DIVISION 5, COMMISSIONERS LEE, ROGERS, AND PATTERSON BY DIVISION 5: Exceptions were filed by applicant to the recommended order of the examiner. By application filed August 23, 1939, as amended, Bos Truck Lines, Incorporated, of Marshalltown, Iowa, seeks a certificate of public convenience and necessity authorizing operations in interstate or foreign commerce as a common carrier by motor vehicle of groceries, canned goods, and store supplies, between points in Iowa, Illinois, Indiana, Michigan, Wisconsin, Nebraska, Colorado, and Wyoming, over irregular routes. Rail lines and motor carriers operating in the affected area oppose the application. By an order of September 18, 1940, in No. MC-44055, applicant was granted a "grandfather" clause certificate as a common carrier by motor vehicle, of general commodities, with certain exceptions, over regular routes, between Chicago, Ill., and Kearney and Hastings, Nebr., Waterloo and Denison, Iowa, Sterling and Silvis, Ill., Ames and Des Moines, Iowa, Carroll and Atlantic, Iowa, and Grand Island and Hastings, Nebr., serving certain intermediate and off-route points, and of heating supplies and equipment from Chicago to Michigan City, Ind.; and of the following commodities, over irregular routes: Fresh meats and packing-house products from Omaha and South Omaha, Nebr., to points in certain counties in Iowa, butter, eggs, dressed poultry, and feathers from points in certain counties in Iowa and from Maryville, Mo., to Chicago and La Grange, Ill., and household goods between Marshalltown and points within 100 miles thereof, on the one hand, and points in Illinois, Kansas, Missouri, Nebraska, and Oklahoma, on the other. Applicant maintains terminals at Marshalltown, Des Moines, Omaha, and Chicago. On the date of hearing, in November 1939, applicant owned and operated 17 tractors, 19 trailers, and 16 straight trucks. It appears that approximately 4 months prior thereto it had purchased some 5 units of motor equipment from the Western Grocer Company, hereinafter referred to as Western, that a down payment had been made on such purchase, and that the remaining payments were to be made out of the revenue derived from the transportation of freight for Western. Western, an Iowa corporation, has its principal place of business at Marshalltown and is engaged in the manufacture and wholesale distribution of groceries, fresh fruits and vegetables, and other grocery sundries and allied commodities, including the roasting of coffee and peanuts and the distribution of byproducts. It operates jobbing or wholesale houses at Cedar Rapids, Clinton, Dubuque, Mason City, Des Moines, Carroll, and Oskaloosa, Iowa, Albert Lea, Owatonna, Faribault, and Minneapolis, Minn., St. Joseph, Mo., Manhattan, Kans., Detroit, Mich., and Chicago, Ill., in its own name, and two in Marshalltown in the names of Western Grocer Mills and LettsFletcher Company, respectively. Canning plants belonging to Western, where fresh and dried vegetables are packed, are located at Roland, Waverly, Ackley, Hampton, Grundy Center, Oskaloosa, and Ames, Iowa, and Matthews, Ind. A similar plant is operated in Marshalltown by the Marshall Canning Company, hereinafter referred to as Marshall, a subsidiary corporation of Western wholly owned and controlled by it, and apparently established for accounting and distributing convenience. Western buys food items and allied commodities at canneries and places of manufacture and production in the States in which operating authority is sought herein. In some instances such commodities are transported to one or more of the jobbing or wholesale houses above named, from which points they are redistributed to stores at various points in the States sought. In other instances the purchased commodities are transported to Marshalltown, where they are processed and from which point redistribution is made. Western's traffic manager testified that canned goods, including canned tomatoes, move from Elwood and Muncie, Ind., and from points within 100 miles of the latter point. It was explained, how |