By application, in No. MC-54449, as amended, filed February 12, 1936, under the "grandfather" clauses of sections 206 (a) and 209 (a) of the Motor Carrier Act, 1935, Martin Motor Lines, Inc.,2 of Belmont, N. C., seeks a certificate of public convenience and necessity or a permit authorizing continuance of operation, in interstate or foreign commerce, as a common or contract carrier by motor vehicle, of general commodities, between points in North Carolina, South Carolina, Georgia, Florida, Virginia, Maryland, Pennsylvania, New Jersey, Delaware, New York, Connecticut, Massachusetts, Rhode Island, and the District of Columbia, over irregular routes. Horton Motor Lines, Inc., Mundy Motor Lines, Inc., Barnwell Bros., Inc., Mountain Truckers, Inc., Rutherford Freight Lines, Inc., Roadway Express, Inc., Overland Transportation Company, ET & WNC Transportation Company, and rail carriers in southern and trunk-line territory opposed the application.

By another application, in No. MC-30704, as amended, filed February 11, 1936, under the "grandfather" clauses of sections 206 (a) and 209 (a) of the Motor Carrier Act, 1935, the same applicant seeks 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, between points in Georgia, South Carolina, North Carolina, Virginia, West Virginia, Maryland, Delaware, Pennsylvania, New York, New Jersey, Ohio, Tennessee, Kentucky, Indiana, Michigan, Illinois, and the District of Columbia, over irregular routes, and between Atlanta, Ga., and Elberton, Ga., over a regular route, as follows: From Atlanta over U. S. Highway 29 to the junction of that highway with Georgia Highway 82, thence over Georgia Highway 82 to Comer, Ga., and thence over Georgia Highway 36 to Elberton. It is not clear from the application whether or not authority is specifically sought to serve all intermediate points on this route, but, since no substantial broadening of the issues is involved, authority will be granted according to the proof submitted. Carolina Motor Express Lines and Huber & Huber Motor Express Transportation, Inc., in addition to the protesting carriers named above, opposed this application.

On June 1, 1935, and for some time prior to that date, J. P. Martin, doing business as Martin's Transfer Company, applicant's predecessor

3 Substitution of C. R. Trembath, doing business as Martin Motor Line, of Belmont, N. C., as applicant in lieu of J. P. Martin, doing business as Martin's Transfer Co., was approved April 14, 1937, in No. MC-FC-1527; and substitution of Martin Motor Lines, Inc., as applicant in lieu of C. R. Trembath, doing business as Martin Motor Line, was approved June 9, 1937, in No. MC-FC-1906.

Substitution of Penn-Ohio Southern Motor Lines, Inc., of Belmont, N. C., as applicant in lieu of Horace Weldon Fleming, doing business as Fleming Truck Lines, of Elberton, Ga., was approved April 27, 1937, in No. MC-FC-1220; and substitution of Martin Motor Lines, Inc., of Belmont, as applicant in lieu of Penn-Ohio Southern Motor Lines, Inc., was approved June 9, 1937, in No. MC-FC-1907.

in interest in No. MC-54449, was engaged in operation, in interstate or foreign commerce, as a common carrier by motor vehicle, over irregular routes, transporting a wide variety of commodities between various points in the States covered by the application. On and prior to June 1, 1935, Horace Weldon Fleming, doing business as Fleming Truck Lines, the original applicant in No. MC-30704, conducted operations by motor vehicles, over irregular routes, between points in the States named in the amended application, transporting various commodities but principally finished and rough stone, steel shot, abrasives, groceries, canned goods, and candy. In addition, Fleming also operated over a regular route between Elberton and Atlanta, transporting general commodities in interstate or foreign commerce. This latter operation will be discussed more fully hereinafter. These operations, with the exception of the regular-route operation between Elberton and Atlanta, were continued by successive parties in interest substantially to the same extent as performed by the initial applicants until March 1938.

As above stated, Martin Motor Lines, Inc., succeeded to the operations of both J. P. Martin and Fleming in June 1937. From the date of its succession it merged the two operations and continued them until about February 28, 1938. It is said to have operated substantially to the same extent as its predecessors had operated separately and individually. On the latter date, upon petition by a creditor, a receiver for all its property was appointed by the superior court of Gaston County, N. C. On March 3, 1938, upon his own petition the receiver was authorized to operate the motor equipment of applicant and to exercise its franchises or operating rights. Thereafter he used some of the equipment in the transportation of property in interstate or foreign commerce, on one or two trips, but upon advice that such operation might subject the physical property of applicant to attachment in other States, he definitely discontinued all interstate operations. The record shows that the receiver elected to preserve the physical property even though such action might result in the forfeiture of whatever "grandfather" rights might be involved.

On March 30, 1938, the State receiver was appointed temporary receiver in bankruptcy by the United States District Court for the Western District of North Carolina. He continued so to act until April 15, 1938, when the court confirmed the election of another as trustee in bankruptcy. On August 3, 1938, the trustee sold all right, title, and interest of applicant in and to whatever interstate operating rights that it might have in Nos. MC-54449 and MC-30704 to David Cohn, doing business as Elberton Motor Express, of Elberton. This sale was duly confirmed by the court.

To establish any rights under the "grandfather" clause of section 206 (a) or 209 (a) of the act, not only must bona fide operations as of June 1, 1935, if a common carrier, or July 1, 1935, if a contract carrier, be shown, but it must also be shown that such operations have been conducted continuously since, except for interruptions over which applicant had no control. In Gregg Cartage & Storage Co. Common Carrier Application, 10 M. C. C. 255 and 21 M. C. C. 17, the Commission found that "voluntary and involuntary bankruptcy are within the control of the bankrupt and that he is responsible for the legal consequences that flow from adjudication." What was said there would seem to be controlling here. Furthermore, in the instant proceedings there appears to have been no disability whatever to prevent operation on the part of the receiver or trustee but rather a complete and voluntary discontinuance of operations. There is nothing in the record which would warrant a conclusion that such interruption or discontinuance of operations by the receiver and the trustee was caused by conditions beyond their control.

On exceptions, Cohn contends that the examiner erred in failing to grant authority as for a new operation on the ground that the public convenience and necessity require the operation covered by the applications. In support of this position, he relies upon the decision of the United States district court in Maher v. United States, 23 Fed. Supp. 810, in which it was held that an order of this Commission denying Maher's application for a "grandfather" certificate of public convenience and necessity was invalid. However, in United States v. Maher, 307 U. S. 148, the Supreme Court upheld the order of this Commission denying Maher's application. Compare also Fisher Common Carrier Application, 14 M. C. C. 489, 17 M. C. C. 565, and 20 M. C. C. 561.

As previously stated herein, Fleming also conducted a regularroute operation between Atlanta and Elberton. The record shows that he instituted this operation about October 1934. Although no regularly scheduled service was given on this route until about October 1935, Fleming customarily made approximately four trips a week over it during that period. About October 1935 daily service was inaugurated. Continuous operation up to the time of the hearing in the transportation of general commodities, with certain exceptions, over that route, with service to Comer, Ga., as an intermediate point, is shown. As stated hereinbefore in footnote 3, all rights in No. MC-30704 were transferred from Fleming to PennOhio Southern Motor Lines, Inc., early in 1937. Fleming, the original applicant, testified that the regular-route operation was con

• Exceptions: High explosives, livestock, and uncrated household goods.

ducted by Penn-Ohio Southern Motor Lines, Inc., from about February 1, 1937, until such operation was discontinued by that company on March 18, 1937. On March 19, 1937, Fleming reinstated service over the regular route. In this connection, the president of Georgia Motor Express, Incorporated, of Atlanta, Ga., testified that in March 1937 his company made arrangements with Fleming concerning the Elberton-Atlanta operation, under which his concern, in order to permit continued operation by Fleming, leased him a truck with which to conduct the operation. Freight bills which were issued in this operation carried the following rubber-stamp notation: This shipment is originated and delivered by Fleming Truck Line on truck leased from Georgia Motor Express, Inc. Georgia Motor Express, Incorporated, is acting only as fiscal agent.

As was also stated hereinbefore in footnote 3, Penn-Ohio subsequently transferred all the rights in No. MC-30704 to Martin Motor Lines, Inc. To show further transactions in connection with this regular-route operation, the following is quoted from the report of division 5 in Georgia Motor Exp., Inc.-Purchase-Fleming, 15 M. C. C. 605, 606:

On October 7, 1938, in No. MC-FC-4615, David Cohn was substituted as applicant in lieu of Martin Motor Lines, Incorporated, (Charles E. Hamilton, receiver), with respect to rights between Atlanta and Elberton, and No. MC-52485 was assigned to the resulting application for operating authority. Applicant and Cohn have filed application No. MC-FC-11024 to substitute the former in lieu of the latter. Consideration in addition to that specified under the agreement with Fleming is not involved. In its exceptions applicant requests that said latter application be treated as an application to resubstitute Fleming, as applicant, if such is deemed a prerequisite to an affirmative order herein. No. MC-FC-11024 should be so considered and the substitution of Fleming as applicant in No. MC-52485 for the purposes indicated should be authorized, and we so find. By such substitution Fleming again becomes a "grandfather" applicant and authority under section 213 to transfer such rights as he may have is necessary. The transaction was consummated without our authority, but such violation of the act is not a necessary bar to our approval. Compare Potashnick Truck Serv., Inc.-Control-Bryant Truck Lines, 5 M. C. C. 723.

The following is also quoted from that report:

Penn-Ohio [Penn-Ohio Southern Motor Lines, Inc.] appeared at the hearing as a protestant and, in accordance with commitment there made to subsequently advise us of the position it would take, informed us in writing that it would relinquish to Fleming or applicant such rights as it might have had to operate as a motor carrier between Atlanta and Elberton.

The purchase by Georgia Motor Express, Incorporated, of the Elberton-Atlanta operation from Horace Fleming, doing business as Fleming Truck Lines, was approved and authorized in that proceeding. No. MC-23620 (Sub-No. 6) has been assigned Georgia Motor Express, Incorporated, covering the rights so transferred.

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We find that applicant in Nos. MC-54449 and MC-30704 has not shown that it, or its predecessors in interest, was on June 1, 1935, or July 1, 1935, and continuously since has been, in bona fide operation as either a common or contract carrier by motor vehicle of any commodities whatsoever between any points whatsoever; and that these applications should be denied.

We further find that applicant in No. MC-23620 (Sub-No. 6), or its predecessors in interest, was on June 1, 1935, and continuously since has been, in bona fide operation, in interstate or foreign commerce, as a common carrier by motor vehicle, of general commodities, except high explosives, livestock, and uncrated household goods, between Atlanta, Ga., and Elberton, Ga., over a regular route from Atlanta over U. S. Highway 29 to the junction of that highway with Georgia Highway 82, thence over Georgia Highway 82 to Comer, Ga., and thence over Georgia Highway 36 to Elberton and return over the same route, with service to Comer, Ga., as an intermediate point; and that applicant is entitled to a certificate authorizing continuance of such operation.

Upon compliance by applicant in No. MC-23620 (Sub-No. 6) with the requirements of sections 215 and 217 of the act and our rules and regulations thereunder, an appropriate certificate will be issued. An order will be entered denying the applications in Nos. MC-54449 and MC-30704 in their entirety and denying the application in No. MC-23620 (Sub-No. 6) except to the extent above indicated.

23 M. C. O.