No. MC-94069 1 LOUIS J. KLOPPSTEIN CONTRACT CARRIER APPLICATION Submitted January 16, 1940. Decided May 18, 1940 1. Applicant's operation in part found to be that of a common carrier. 2. Public convenience and necessity found to require operation by applicant as a common carrier by motor vehicle, of livestock, from points in Wisconsin south of U. S. Highway 10 to Chicago, Ill., over irregular routes. Issuance of a certificate approved upon compliance by applicant with certain conditions. 3. Operation by applicant as a contract carrier by motor vehicle, of feed and fertilizer from Chicago to points in Wisconsin south of U. S. Highway 8, of pickles, cabbage, and cucumbers from Waterford, Wis., to Chicago, of pickles, cabbage, cucumbers, and sauerkraut from Trevor, Wis., to Chicago, and of wire, wire products, and fencing supplies from Sterling, Ill., to points in Wisconsin south of U. S. Highway 8, over irregular routes, found consistent with the public interest and the policy declared in section 202 (a) of the Motor Carrier Act, 1935. Issuance of a permit approved upon compliance by applicant with certain conditions. 4. Dual operations by applicant as a common carrier and a contract carrier by motor vehicle found to be consistent with the public interest and the policy declared in section 202 (a) of the act. 5. Applications in all other respects denied. C. R. Dineen for applicant. Edward J. Konkol, Glenn W. Stephens, J. F. McGrath, J. E. Edell, Weldon A. Dayton, B. H. Overton, L. Cole, S. E. Gregory, and Norbert J. Christman for protestants. REPORT OF THE COMMISSION DIVISION 5, COMMISSIONERS LEE, ROGERS, AND ALLDREDGE BY DIVISION 5: These applications were heard together and made the subject of a single recommended report and order. No exceptions were filed to the order recommended by the joint board, but it was stayed by us. Our conclusions differ somewhat from those recommended. By application filed April 19, 1937, as amended, Louis J. Kloppstein, of Genoa City, Wis., doing business as State Line Transfer Supply Company, seeks a permit authorizing operation as a contract 1 This report also embraces No. MC-94069 (Sub-No. 1), Louis J. Kloppstein Extension of Operations-Sterling, Ill. carrier by motor vehicle, in interstate or foreign commerce, of livestock from points in Wisconsin south of U. S. Highway 10 to Chicago, Ill., of feeds and fertilizer from Chicago to points in Wisconsin, and of pickles, cucumbers, cabbage, and sauerkraut from Waterford and Trevor, Wis., to Chicago, over irregular routes. By another application filed June 22, 1939, the same applicant seeks a permit authorizing operation as a contract carrier by motor vehicle of wire and wire products and iron and steel articles between Sterling, Ill., on the one hand, and points in Wisconsin, on the other, over irregular routes. Certain rail and motor carriers operating in the territory opposed the applications but offered no evidence. Applicant operates one truck, two tractors, and two semitrailers, and maintains a warehouse at Genoa City. He has been engaged in motor-carrier operations since about 1931. Applicant is financially and otherwise fit and able to conduct the operations under consideration. Applicant has been hauling livestock for the general public from points in Wisconsin south of U. S. Highway 10 to Chicago continuously since prior to June 1, 1935. However, the record is not entirely clear as to when he instituted the other operations involved. The record indicates that for several years he has been hauling feeds and fertilizer from Chicago to points in Wisconsin south of U. S. Highway 8 and pickles from Waterford, and pickles and sauerkraut from Trevor, to Chicago. The record indicates that applicant also has carried cabbage and cucumbers from Waterford and Trevor to Chicago. A feed and fertilizer company in Chicago desires applicant to transport its products from that point to points in Wisconsin south of U. S. Highway 8. A representative of this company testified that it has about 200 customers, principally farmers and dealers, in the described Wisconsin territory and that it requires the services of a contract carrier, such as applicant, in order to assure prompt deliveries direct to its customers. It ships by rail and is also using the services of a motor carrier; however, the latter is not able to meet all of the shipper's transportation requirements. This witness stated that the motor common carriers operating in the territory involved do not want to handle fertilizer. The Volger Schillo Company desires applicant to transport pickles from Waterford, and pickles and sauerkraut from Trevor, to Chicago. It has used applicant's service to some extent in the past and found it satisfactory. The discontinuance of rail service at Waterford in May 1938 has handicapped this company materially. It utilizes rail service at Trevor but desires applicant to haul less-thancarload shipments of pickles and sauerkraut from that point because these products are perishable and require expeditious handling in order to prevent deterioration. The representative of this company testified that he had no knowledge of any other motor carrier having suitable equipment to handle its products. A representative of the Northwestern Steel & Wire Company of Sterling testified that his company is in urgent need of applicant's proposed service in the transportation of its products to points in Wisconsin south of U. S. Highway 8. The record indicates that it ships principally wire, wire products, and fencing supplies to the Wisconsin territory. It is utilizing rail facilities on carload shipments and the services of a motor carrier on less than carloads; however, the latter has refused to add to its equipment and is therefore unable to take care of the company's transportation needs. It is clear that applicant's transportation of livestock is performed in the capacity of a common carrier. As seen, he has been conducting this operation since prior to June 1, 1935, and would have been entitled to a certificate under the "grandfather" clause of section. 206 (a) of the Motor Carrier Act, 1935, if his application had been seasonably filed. However, the carrying on of such operation for such a long period of time is evidence that public convenience and necessity require the continuance thereof. In respect to the other operations described it is also clear that applicant desires authority to operate as a contract carrier. Since livestock and the other commodities for which authority is granted herein are not competitive, we conclude that the dual operation involved will be consistent with the public interest and the policy declared in section 202 (a) of the Motor Carrier Act, 1935. We find that applicant's operation in the transportation of livestock is that of a common carrier by motor vehicle; that public convenience and necessity require operation by him as a common carrier by motor vehicle, in interstate or foreign commerce, of livestock from points in Wisconsin south of U. S. Highway 10 to Chicago, over irregular routes; that applicant is fit, willing, and able properly to perform such service and to conform to the provisions of the act and our rules and regulations thereunder; and that a certificate authorizing such operations should be granted. We further find that operation by applicant as a contract carrier by motor vehicle, in interstate or foreign commerce, of feed and fertilizer from Chicago to points in Wisconsin south of U. S. Highway 8, of pickles, cabbage, and cucumbers from Waterford, to Chicago, of pickles, cabbage, cucumbers, and sauerkraut from Trevor to Chicago, and of wire, wire products, and fencing supplies from Sterling to points in Wisconsin south of U. S. Highway 8, over irregular routes, will be consistent with the public interest and the policy declared in section 202 (a) of the act; that applicant is fit, willing, and able properly to perform such service and to conform to the provisions of the act and our rules and regulations thereunder; that a permit therefor should be granted; and that the applications in all other respects should be denied. We further find that the holding by applicant of the certificate and permit above described will be consistent with the public interest and the policy declared in section 202 (a) of the act. Upon compliance by applicant with the requirements of section 215 and, respectively, sections 217 and 218 of the act, with our rules and regulations thereunder, and, in respect to the contract-carrier operation, with the requirements established in Contracts of Contract Carriers, 1 M. C. C. 628, an appropriate certificate and permit will be issued. An order will be entered denying the applications in all other respects. 23 M. C. C. No. MC-45868 1 WILLIAM FULLERTON CONTRACT CARRIER APPLICATION Submitted June 5, 1939. Decided May 18, 1940 1. Applicant's operation found to be that of a contract carrier by motor vehicle. 2. Applicant found entitled to continue operation as a contract carrier by motor vehicle, of specified commodities for a certain class of shippers, and of special commodities for other shippers, from Chicago to points in Lake and Porter Counties, Ind., and of rejected or returned shipments from points in the described destination territory to Chicago, over irregular routes, by reason of having been engaged in such operation on July 1, 1935, and continuously since. Issuance of a permit approved upon compliance by applicant with certain conditions. Application in all other respects denied. 3. Operation by applicant as a contract carrier by motor vehicle, of specified commodities for a certain class of shippers, and of special commodities for other shippers, from Chicago to all points in Indiana, Iowa, Michigan, and Wisconsin, and of rejected or returned shipments from the described destination territory to Chicago, over irregular routes, found consistent with the public interest and the policy declared in section 202 (a) of the Motor Carrier Act, 1935. Issuance of a permit approved upon compliance by applicant with certain conditions. Application in all other respects denied. 4. Application for a certificate authorizing continuance of operation as a common carrier by motor vehicle, of general commodities, between points in a territory within 100 miles of Chicago, including Lake and Porter Counties, Ind., over irregular routes, dismissed. L. C. Loughry for applicant. David Axelrod, Oscar Lindstrand, Floyd F. Shields, Earl Girard, and Meyer S. Miller for protestants. REPORT OF THE COMMISSION DIVISION 5, COMMISSIONERS LEE, ROGERS, AND ALLDREDGE BY DIVISION 5: Two separate recommended reports and orders were issued in the three applications here considered, one by an examiner in No. MC45867 (Sub-No. 1) and one by joint board No. 21 in No. MC-45867 and No. MC-45868, which were consolidated and heard on one record. Exceptions were filed by motor-carrier protestants to the order rec 1 This report also embraces No. MC-45867, William Fullerton Common Carrier Application; and No. MC-45867 (Sub-No. 1), William Fullerton Extension of Operations. |