is entitled to a permit authorizing the continuance of such operations; and that in all other respects the application should be denied. 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, an appropriate permit will be issued. An order will be entered denying the application except to the extent indicated. 23 M. C. C. No. MC-21993 T. W. CROOKS COMMON CARRIER APPLICATION Submitted October 28, 1939. Decided May 31, 1940 Applicant found to have failed to establish a right to a certificate as a common carrier by motor vehicle, of passengers and their baggage, over a specified route, between Chicago, Ill., and New York, N. Y. Application denied. Dan. W. Duffy and John W. Gleason for applicant. Leo P. Day, D. H. Armstrong, C. S. Woods, and W. C. Blackmore for protestants. REPORT OF THE COMMISSION DIVISION 5, COMMISSIONERS LEE, ROGERS, AND ALLDREDGE BY DIVISION 5: Exceptions were filed by applicant to the recommended report of the examiner. By application under the "grandfather" clause of section 206 (a) of the Motor Carrier Act, 1935, filed February 12, 1936, T. W. Crooks, doing business as Sedan Stages, of Cleveland, Ohio, seeks a certificate of public convenience and necessity authorizing operation as a common carrier by motor vehicle, of passengers and their baggage, in interstate or foreign commerce, between Chicago, Ill., and New York, N. Y., over a regular route, which need not be described in view of the conclusions herein, serving only Cleveland as an intermediate point. Certain rail and motor carriers operating in the affected territory opposed the application. Applicant began operating sedans between Chicago and New York via Cleveland in 1933. On July 1, 1933, he was issued a certificate of public convenience and necessity by the Public Utilities Commission of Ohio authorizing operation over that portion of the route sought between Cleveland and the Ohio-Pennsylvania State line, via Youngstown, Ohio. On October 21, 1933, the same commission granted him an amended certificate which substituted a different route via Akron, Ohio, east of Cleveland, terminating at the Ohio-West Virginia State line, and authorized a new service between Cleveland and the Ohio-Indiana State line. On February 16, 1934, he secured authority from the Public Service Commission of Indiana authorizing similar service through that State. Applicant was also registered under the code of fair competition for the trucking industry. 248723m-vol. 23- -34 Early in 1934 he decided to sell his Ohio rights west of Cleveland to the Frank Martz Coach Company, Inc. At that time he was advised by the Ohio commission that the two companies could not operate under the same certificate. To obviate this difficulty, he transferred his Ohio certificate to that carrier, and the latter, under an agreement approved by the Ohio commission, granted him a license to operate over the route east of Cleveland covered by this "certificate or any subsequent certificate issued thereunder or by reason thereof." In February 1935 the Frank Martz Coach Company, Inc., sought a revocation of the Ohio commission's order approving this agreement, on the ground that the certificate in question had been canceled and that another had been issued to it granting identical rights. This matter was set for hearing on June 14, 1935. In the meantime, i. e., on April 15, 1935, applicant was ordered to cease operations by an inspector of the Ohio commission, and shortly thereafter, under threat of arrest, he suspended service. At the hearing before the State commission, a stipulation was agreed upon whereby an order terminating approval of the operating agreement would be entered upon the issuance of a new certificate to applicant. Applicant thereupon filed application and resumed operations. A new certificate was issued to him on July 17, 1935, but it authorized a route through Ohio different from the route described in the certificate on which the operating agreement had been based, except that under both certificates applicant was permitted to serve Cleveland as an intermediate point. Applicant continued his operations until December 10, 1935, when the State of New Jersey refused to permit the use of sedans in this type of operation. Applicant several times attempted to have the matter assigned for formal hearing, but was unsuccessful. On February 7, 1936, he was advised by the secretary of the Board of Public Utilities Commissioners of the State of New Jersey that it was impossible to relax its specifications forbidding the use of sedans, but that "if the Motor Carrier Bureau of the Interstate Commerce Commission entertains your application for a certificate of public convenience and necessity as a bus carrier, your operation will then be entirely under the jurisdiction of that federal agency." Applicant testified, however, that they would not permit the continuance of sedan service pending disposition of that application. Applicant thereupon had a 16-passenger bus constructed to meet the New Jersey specifications, which he proposed to use in shuttle service between Easton, Pa., and New York City. The New Jersey authorities, however, after inspecting the vehicle, refused to permit its use without certain structural modifications. The manufacturer declined to make the changes required at the original cost price, and applicant, under the sales agreement providing for the construction of a bus to meet the New Jersey specifications, rescinded the agreement. After securing several temporary suspensions of his Ohio certificate, it was formally canceled on or about April 3, 1937. Approximately a year later, in April 1938, applicant decided to resume operations, but desisted because a supervisor of the Bureau of Motor Carriers advised him that in his opinion "grandfather" rights no longer existed. During 1935, applicant operated 13 sedans. Of these, 3 were owned by him and the others were leased from the drivers. This sedan equipment was disposed of 8 or 9 months after the discontinuance of the operation. Applicant contends that he was in bona fide operation on June 1, 1935, within the meaning of the "grandfather" clause of section 206 (a) of the Motor Carrier Act, 1935, and that the suspension of operations on December 10, 1935, was an interruption in service over which he had no control. He states that, following the difficulties encountered in securing a satisfactory bus, and the receipt of the letter of February 7, 1936, from the New Jersey commission, he decided not to institute an injunction suit, which he feared would further antagonize the New Jersey authorities, and to await formal adjudication of his rights by this Commission. Protestants contend (1) that applicant did not operate between Chicago and New York City on June 1, 1935, (2) that his operations on June 1, 1935, between Cleveland and New York were without State authority and therefore not bona fide, (3) that operations subsequent to July 17, 1935, over different routes from those prior to that date, constitute an abandonment of the "grandfather" operation and the inauguration of a new service, and (4) that the interruption in service beginning December 10, 1935, was within applicant's control and invalidates any "grandfather" rights that might otherwise have existed. Applicant admitted that he was not operating west of Cleveland on June 1, 1935, because he did not then have an Indiana certificate. Moreover, the evidence is clear that these rights had been disposed of by an agreement, which he was at that time endeavoring to uphold in a proceeding before the Ohio commission. As to the operation east of Cleveland, we are unable to agree with applicant's contention that the interruption of service occasioned by his noncompliance with New Jersey equipment requirements was one beyond his control. Applicant relies upon Cochran Common Carrier Application, 3 M. C. C. 717, wherein it was concluded that an interruption in service was beyond applicant's control. However, the facts in that case and those here considered are quite different. While the applicant in that case did discontinue for the time being the transportation of shipments over the route in question, he did not discontinue operations. He continued to operate empty trucks over the route every 10 days. He accepted shipments tendered him for transportation and arranged for their transportation by another carrier. Throughout the period of the interruption, he continued to contest informally the ruling of the State authorities which had occasioned the interruption, and he finally was successful in having the ruling withdrawn. Here applicant might have continued his operation by complying with the New Jersey requirements. He did not see fit to do so; nor did he take any legal steps to challenge the validity of those requirements after failing in his efforts to persuade the New Jersey authorities to relax them. Instead, he discontinued all operations, disposed of his equipment, and has not operated since. Under the circumstances, we are of the opinion that the interruption was not one beyond applicant's control within the meaning of the "grandfather" clause of section 206 (a). We find that applicant has failed to establish that he was in bona fide operation as a common carrier by motor vehicle of passengers and their baggage between any points whatsoever on and continuously since June 1, 1935; and that the application should be denied. An appropriate order will be entered. 23 M. C. C. |