Paul, general commodities, with certain exceptions, from Minneapolis, St. Paul, and South St. Paul to Baldwin, and tile and sewer pipe from Red Wing to Baldwin, continuously since that time. The record contains no evidence with respect to operations to or from Newport. He owns two stock-rack trucks, one of which is used in interstate commerce. He is financially and otherwise able to conduct the proposed operation. Under section 206 (a) of the Motor Carrier Act, 1935, we are required to issue a certificate to a common carrier by motor vehicle who was in operation on June 1, 1935, and has so operated continuously since, provided that such carrier filed an application for a certificate within 120 days after section 206 became effective. Applicant failed to file his application, to preserve his "grandfather" rights, within the prescribed 120 days subsequent to the effective date of the act. Applicant is not entitled to a certificate by virtue of his past operations on June 1, 1935, but the carrying on of such operations for such a long period prior to June 1, 1935, and continuously thereafter, is evidence that public convenience and necessity require continuance of such operations. Two witnesses who operate farms near Baldwin testified that applicant has transported livestock from their farms to South St. Paul since 1931. They have found such service satisfactory and desire that authority be granted for its continuance. A representative of a motor-carrier protestant testified that his company serves the Minnesota and Wisconsin points involved in this application and that it has ample equipment to adequately handle any increase in traffic. He stated that other motor carriers and a rail carrier also serve this territory. We find that the present and future public convenience and necessity require operation by applicant as a common carrier by motor vehicle, in interstate or foreign commerce, of livestock, between points in Baldwin, Hammond, Eau Galle, Emerald, Erin, Springfield, Pleasant Valley, Stanton, New Richmond, Warren, and Glenwood Townships, on the one hand, and South St. Paul, on the other, of empty oil and natural-gas containers from Baldwin to Minneapolis and St. Paul, of general commodities, except livestock, articles of unusual value, explosives, commodities requiring special equipment, those injurious or contaminating to other lading, and household goods as defined in Practices of Motor Common Carriers of Household Goods, 17 M. C. C. 467, from Minneapolis, St. Paul, and South St. Paul to Baldwin, and of tile and sewer pipe from Red Wing to Baldwin, over irregular routes; that applicant is fit, willing, and able properly to perform such service and to conform to the pro visions of the act, and our rules and regulations thereunder; that a certificate authorizing such operation should be issued; and that the application should be denied in all other respects. 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. An order will be entered denying the application except to the extent granted herein. No. MC-35684 (SUB-No. 2) COLE'S TRUCKING SERVICE EXTENSION OF OPERATIONS-PETROLEUM, PETROLEUM PRODUCTS, AND ROOFING MATERIALS Decided May 18, 1940 On reconsideration, findings in prior report, 21 M. C. C. 815, authorizing applicant to operate as a common carrier by motor vehicle, of petroleum and petroleum products, from Wellsville, N. Y., to a described territory in Pennsylvania, and from Wellsville to Baltimore, Md., modified so as to authorize the transportation of such commodities in containers. Appearances as in prior report. REPORT AND ORDER OF THE COMMISSION ON RECONSIDERATION BY DIVISION 5: In the prior report and order herein, 21 M. C. C. 815, we authorized the issuance to applicant of a certificate to operate as a common carrier by motor vehicle, in interstate or foreign commerce, over irregular routes, of petroleum and petroleum products (1) from Wellsville, N. Y., to certain points in Pennsylvania, and (2) from Wellsville to Baltimore, Md., and of empty containers on return trips. Applicant was not specifically authorized to transport petroleum and petroleum products in containers, although it was intended to make such a restriction. The proceeding is hereby reopened on our own motion for the purpose of correcting this matter. On reconsideration, we find that the prior report and order should be, and they are hereby, amended and corrected by inserting in the findings of said report the words "in containers", immediately following the words "petroleum and petroleum products", where used in such findings; and it is so ordered. No. MC-7805 (SUB-No. 1) O. M. LATTAVO EXTENSION OF OPERATIONS- Submitted September 8, 1939. Decided May 22, 1940 Operation by applicant as a contract carrier by motor vehicle, of malt beverages, from Carnegie, Jeannette, Sharpsburg, and Pittsburgh, Pa., to points in Ohio and West Virginia, returning with empty containers, 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. John M. Walker, Philip S. Peyser, and H. D. Driscoll for appli cant. G. H. Dilla, Paul J. Coughlin, and A. M. Donnan for protestants. REPORT OF THE COMMISSION DIVISION 5, COMMISSIONERS LEE, ROGERS, AND ALLDREDGE BY DIVISION 5: Exceptions to the order recommended by the joint board were filed by a motor-carrier protestant, and applicant replied. By application filed September 3, 1938, O. M. Lattavo, of Canton, Ohio, seeks a permit authorizing operation, in interstate or foreign commerce, as a contract carrier by motor vehicle of malt beverages, from Carnegie, Jeannette, Sharpsburg, and Pittsburgh, Pa., to all points in Ohio and West Virginia, and of empty malt-beverage containers in the reverse direction, over irregular routes. Certain rail and motor carriers opposed the application. Applicant has been engaged in the interstate transportation of malt beverages and empty containers since 1933. On his "grandfather" clause application, in No. MC-7805, by order of August 11, 1938, he was granted a permit authorizing the transportation of malt beverages from New Castle, Pa., to points in Ohio and West Virginia, and of empty containers in the reverse direction. The instant application was filed for the purpose of securing authority to serve origin points claimed but not granted in the "grandfather" clause proceeding, and also other origin points from which service was instituted after July 1, 1935, but prior to October 15, 1935. Applicant has contracts with several breweries located in Pennsylvania and with a distributor of malt beverages at Canton, Ohio. He testified that he began hauling malt beverages from breweries at Pittsburgh, Johnstown, Jeannette, Sharpsburg, Carnegie, Erie, and New Castle for the distributor at Canton in 1933. Service is no longer rendered, however, from Johnstown and Erie because the distributor is not buying from those points. During the interim period applicant also arranged contracts directly with certain of the breweries from whose plants he was already hauling for the distributor. These companies maintain plants at Pittsburgh, Jeannette, and Carnegie. In 1936 and 1937 he also contracted with two other brewing companies operating plants at Pittsburgh, Sharpsburg, and Jeannette for the transportation of their products to points in Ohio and West Virginia. At the time of hearing he was still operating under all these contracts except one. Protestant contends that applicant is not fit to conduct the proposed operation because, after the above-mentioned order entered in the "grandfather" application limited his origin points on malt beverages to New Castle, applicant nevertheless continued transporting such products from the other Pennsylvania points named above. In his "grandfather" application, applicant claimed service from New Castle, Pittsburgh, and Jeannette. His failure to file exceptions to the so-called compliance order is said to have been due to advice of our district supervisor that he file instead the instant application. He was subsequently advised by a letter from our Bureau of Motor Carriers that operations commenced during the interim period could be continued pending the determination of this application. Under these circumstances such unlawful operation, if any, as may have existed does not justify denial of the instant application. It should be explained that the advice of our Bureau was not based on the pendency of the instant application filed after February 12, 1936, but rather on the seasonable filing of the "grandfather" application which embraced certain services commenced during the interim period. Compare Fisher Common Carrier Application, 17 M. C. C. 565 and 20 M. C. C. 561. The traffic manager of the Fort Pitt Brewing Company testified to having used applicant's service for approximately a year and to having found it completely satisfactory. He stated that other carriers in the territory had been slow and undependable. The manager of the Canton distributor testified that his company had used applicant's service since 1933 from breweries at Johnstown, Jeannette, Pittsburgh, Sharpsburg, and Erie and that it was not only satisfactory but needed because he too had found the service of other carriers occasionally used unreliable and slow. Both of these witnesses explained that expeditious service is necessary to avoid damage to beverages in transit from extreme hot or cold weather or from extra handling. On November 15, 1939, applicant filed a motion to amend the application by changing the description of the territory in Pennsylvania from the specific points sought to points in Allegheny and Westmoreland Counties, including Pittsburgh. It is applicant's contention that since he has served a number of breweries located at different Pennsylvania points and since there are other breweries in the vicinity he should be granted territorial authority. In a space of over 5 years prior to the hearing, applicant served only 6 or 7 Pennsylvania points and at present apparently is not rendering service to all of these. There are undoubtedly other authorized carriers whose rights would be affected by such an enlargement of the origin territory. The requested amendment is hereby denied. Applicant owns suitable equipment with which to perform the proposed service. He employs five experienced drivers, all of whom are said to be acquainted with our safety regulations. His ability, financial and otherwise, to conduct the proposed operation is not questioned. We find that operation by applicant, in interstate or foreign commerce, as a contract carrier by motor vehicle of malt beverages from Carnegie, Jeannette, Sharpsburg, and Pittsburgh, Pa., to points in Ohio and West Virginia, and of empty malt-beverage containers on return trips, 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 requirements, rules, and regulations thereunder; and that a permit authorizing such service should be granted. Upon compliance by applicant with the requirements of sections 215 and 218 of the act, with our rules and regulations thereunder; and with the requirements established in Contracts of Contract Carriers, 1 M. C. C. 628, a permit will be issued. 23 M. C. C. |