findings herein to the extent that the applications of the applicants listed in section C of appendix I should be denied.

In respect of those applicants who were granted certain rights in the prior report, it should be noted that the petitioners do not take issue with any part of that report which describes the service rendered. The only issue raised by them is the territorial extent of the authority granted to each of them. Protestants, on the other hand, ask that we modify our prior findings so that any certificate issued applicants will contain limitations fully descriptive of the special service rendered, including the limitation to motor vehicles of the sedan type carrying no more than six passengers. These two issues will be discussed in inverse order, and only such facts as are necessary to a determination of those issues will be restated herein. After discussing the nature of the operations considered in the prior report and the contentions of the various parties with respect thereto, we concluded (page 280):

We are of the opinion that the operations of applicants are special in character within the meaning of section 207 (a) of the act; and we heretofore have found that we may issue a certificate to a common carrier of passengers to engage in special or charter operations over irregular routes.

*

In view of the proviso in section 208 (a) of the act, we are of the opinion that we may not restrict applicants to the use of vehicles of the sedan type. See Sullivan County Highway Line, Inc., Com. Car. Applic., 21 M. C. C. 717. [See footnote 3.3] Limitation of the number of passengers to be carried at one time in any vehicle to six would be merely an indirect restriction of the size of the vehicles to be used.

Upon further consideration we are of the opinion that our prior construction of section 208 (a) was in error. Simply stated, under this section we are directed to specify in any certificate issued under section 206 or 207 of the act, among other things, "the service to be rendered," subject to the proviso that we cannot restrict the right of a carrier "to add to his or its equipment and facilities * as the development of the business and the demands of the public shall require." In other words, we clearly have the power and duty to specify in any certificate the service to be rendered, except that we may not attach maximum limitations to the quantity of the service to be furnished. This construction is in line with our decision in Pittsburgh-Weirton Bus Co., Inc., Com. Car. Application, 10 M. C. C. 266, wherein we discussed the meaning of the proviso in question. In that case, the issue was presented as to whether that applicant had inaugurated a new operation by increasing its service between 2 points from 1 round trip daily to 250 one-way trips daily.

'The application of the Sullivan County Highway Line, Inc., has been reopened for further hearing.

In deciding that question in the negative, we construed the proviso of section 208 (a) to mean (page 270):

This prohibition protects the right of the carrier to expand not only its "equipment" but also its "facilities". The only purpose of such expansion is to enable the carrier to provide more service, and this is very clearly indicated by the words "as the development of the business and the demands of the public shall require." It follows that "terms, conditions, or limitations" in the certificate restricting the service of the carrier would be wholly inconsistent with this proviso. [Emphasis supplied.*]

We did not conclude in that case, however, that we were without power to restrict a carrier to the use of certain types of vehicles for the purpose of describing the service to be rendered. What we found was that we have no power to restrict a carrier by the terms of its certificate from expanding the quantity of its service to meet the demands of the public.

With this exception, our power to specify in any certificate we issue the service to be rendered is complete. For instance, in Schwerling Common Carrier Application, 23 M. C. C. 459, we required the applicant carrier to maintain a schedule of not less than one round trip per hour during certain periods. In other instances we have found it necessary, in order to specify definitely the character of the service to be rendered, to restrict a carrier to the use of certain types of equipment. For example: In Miller Extension of Operations, 21 M. C. C. 401 (prior report, 12 M. C. C. 457), the authority granted therein was restricted to liquid petroleum products in tank trucks; in Myers Common Carrier Application, 23 M. C. C. 451, authority was restricted to drive-away service; in Central Truckaway System, Inc., Com. Car. Application, 19 M. C. C. 713, authority was restricted to truck-away service; in Parcel Delivery Service, Inc., Contract Carrier Application, 8 M. C. C. 275, authority was granted to transport packages and parcels of merchandise by motor vehicle "the equipment being limited to motorcycle traffic cars, with panel bodies"; in Billy Baker Co. Common Carrier Application, 24 M. C. C. 805, authority was granted to transport, among other things, cement in dump trucks; and in Barrows Common Carrier Application, 19 M. C. C. 179, authority was restricted to the transportation of not more than six passengers per trip. Thus, in numerous cases we have specified, or in effect specified, certain types

In this report, wherever quoted words or phrases are italicized, it is to be understood that such emphasis is supplied.

Although this application was later dismissed for reasons not pertinent herein, the same applicant on April 10, 1939, was isued a certificate containing the same restrictions pursuant to Parcel Delivery Service, Inc., Common Carrier Application, 13 M. C. C. 15.

No exceptions to the order recommended by the joint board in this case were filed, and, not having been stayed or postponed by us, it became effective as our order by operation of law.

M

of vehicles in describing the particular service to be rendered under the authority granted.

Because we have the power to restrict a carrier to the use of certain types of vehicles, in specifying the service to be rendered, it does not necessarily follow that we should in all cases impose such a restriction, for the circumstances do not always warrant it. Each case, of course, must be decided on its own merits.

In discussing the operations of the applicants and the question as to whether such operations were required by the public convenience and necessity, in the prior report, we stated:

Motor vehicles having a capacity of seven passengers or less are peculiarly suitable for this type of operation. [Page 278.]

The operations under consideration differ materially from the operations of ordinary bus and rail carriers which operate over regular routes, between fixed termini, and usually on fixed schedules. The service which applicants have been rendering, or which they desire to render, properly may be described as door-to-door, on-call, nonscheduled service which permits a passenger to board a vehicle at his door and be transported direct to the door of his place of sojourn without transfer from one vehicle to another en route. This service is performed in whole or in part over irregular routes, [footnote omitted] and the operations are territorial in scope rather than between fixed termini. [Page 280.]

The type of service furnished by applicants meets a public need, and it is particularly attractive for persons traveling in family groups with small children or persons who are aged or infirm. [Page 281.]

The evidence shows that the facilities of rail and bus carriers operating between New York City and points in Sullivan and Ulster Counties are sufficient and adequate to meet all reasonable demands of the traveling public which desires to use the type of service furnished by these carriers, and that such carriers are able and willing to add to or supplement their facilities so as to meet future demands for such service. As seen, however, applicants serve many points that are not served by the regular bus or rail carriers, and they perform or desire to perform a service which differs materially from that performed by such carriers. The latter carriers do not furnish a door-to-door service, which is one of the principal distinguishing features of the service provided by applicants. Moreover, while it is a general practice of boarding houses and hotels in Sullivan and Ulster Counties to furnish transportation for their patrons who travel by bus and rail from and to the bus and rail terminals located nearest their establishments, this combined service requires a transfer from one conveyance to another.

Generally speaking, protestants have no objections to applicants' continuing the type of service which they were performing on June 1, 1935, and have performed since that time, but they are fearful that, unless some limitation is placed in any certificate that might be issued in these proceedings, applicants, or some of them, might institute regular scheduled bus operations, which protestants believe would be detrimental to their operations. Under the authority which we shall grant herein, applicants will not have the right to engage in regular scheduled operations. See Sullivan County Highway Line, Inc., Com. Car. Applic., supra. [Pages 282, 283.]

As can be seen from the above, applicants here have predicated their showing of public convenience and necessity primarily on the premise that they have been, and desire to continue, performing a service which is essentially dissimilar to that performed by ordinary bus and rail lines. Obviously, we may only issue a certificate of public convenience and necessity to the extent that the evidence shows a need for the service under consideration. As a general proposition, applicants do not transport more than six passengers, excluding the driver, in any one vehicle, except in instances where small children, who do not occupy seats, are transported along with older persons. Although they heretofore have conducted the operations in automobiles of the sedan type and the record indicates that they desire to conduct the operations with this type of vehicle, we do not agree that they should be limited to the use of such vehicles. Such limitation would prevent them from using open cars or socalled beach and station wagons, although such vehicles might be as well adapted to their particular type of service as automobiles of the sedan type. We believe, however, that, in view of the evidence offered by applicants and the nature and type of the operations under consideration, any authority granted herein should be limited in such a way as to prevent them from instituting a service competitive with those of protestants and other common carriers, and different from that which they have been performing and which the record shows they desire to perform. In the circumstances, we conclude that any authority granted herein shall be restricted to the transportation of passengers and their baggage, in special operations in nonscheduled, door-to-door service, limited to the transportation of not more than six passengers in any one vehicle, but not including the driver thereof and not including children under 10 years of age who do not occupy a seat or seats. This, in effect, limits the service to be rendered to certain types of vehicles and, at the same time, makes possible a more flexible form of authority which specifies as completely as necessary the kind or character of "the service to be rendered."

Territory.-The attached appendix II is a copy of appendix B of the prior report herein and shows the operations that were authorized in that report. As stated, the petitioners request that each of them be authorized to transport between all points in New York and all points in Sullivan and Ulster Counties in lieu of the specific townships or boroughs as specified in the attached appendix II.

In respect of the territorial extent of the operations performed by applicants, we stated in the prior report (page 283):

Applicants serve either (1) Brooklyn or the Borough of the Bronx, or (2) Brooklyn and the Borough of the Bronx, on the one hand, and origins or

destinations in either Sullivan or Ulster Counties or both, on the other. Most of them operate either one or two automobiles, and each has served a portion of these counties within a reasonable distance of the place where he receives telephone calls in the mountains. Some applicants serve larger territories than others, usually because they operate more vehicles, but there is no evidence to show that any applicant has served all of Sullivan and Ulster Counties, and the record indicates that none of them has the equipment and facilities or the desire to serve all points in these counties. Any certificates issued herein, therefore, will authorize service between Brooklyn and the Borough of the Bronx or between either Brooklyn or the Borough of the Bronx, on the one hand, and certain townships in Sullivan and Ulster Counties, on the other.

Petitioners claim that in serving the counties of Sullivan and Ulster they have always regarded them as a unit embracing the summer-resort area; that they served all points in the two counties without restriction as a single territorial unit; and that township lines which cut across such resort area were never considered by them in their business. However, as stated above, there is no evidence to show that any of the applicants herein has served all of Sullivan and Ulster Counties. Further, there is nothing in this record to indicate that there is a lack of adequate service of the type which applicants perform in any portion of the counties in which a particular applicant was denied authority to operate by our prior decision. In the circumstances, we also affirm our previous finding with respect to limiting operations to or from the townships as shown in appendix II attached.

Insofar as New York City is concerned, most of the petitioners have been confined in their operations to the Borough of Brooklyn, and, in some instances, the Bronx. As stated, they ask that they be authorized to serve all of New York City.

The record shows that on trips to and from the mountains there have been numerous instances where passengers have been picked up or discharged at their places of business in New York City, and especially is this true over week ends. Undoubtedly the places of business are not located in any one borough of New York City and therefore our previous findings in restricting operations to certain boroughs of that city will be modified accordingly.

Findings. Upon reconsideration, we affirm our former finding that the operations considered herein are those of a common carrier and are special operations within the meaning of section 207 (a) of the act.

We also affirm our former finding that the present and future public convenience and necessity do not require operation by applicants in Nos. MC-86950, MC-88899, MC-94274, MC-94293, MC-94300, MC-94311, MC-94360, and MC-94367 as common carriers by motor