shipments were transported by motor vehicle to Somerville in 1938; that shipments by motor vehicle to Hartford are infrequent, and that he had a list naming about 40 to 80 motor carriers who might be able to serve his company, but that he did not know whether they were all active. The witness, however, further stated that in view of the possibility of future shipments to Hartford and Somerville, his company desired to use the corporation's service to those points. Representatives of 4 competing motor carriers located in Bridgeton and vicinity, who operate a total of approximately 140 units of equipment, appeared and testified at the hearing in opposition to the granting of the application. They testified that they have "grandfather" rights under pending applications, to serve at least a large part of the territory, if not the entire territory, in which service is required by the shippers for whom the corporation intends to perform the proposed service. One of the witnesses testified that he had been operating approximately 30 units of equipment during 1937, at the time the corporation began operating in the territory; that he had transported about 4,000,000 pounds of freight for the glass company in the spring of 1937; that when the corporation began operations he lost practically all of that business and his equipment was reduced to 8 units; and that since then he has again built up his fleet to 22 units. All of the witnesses who appeared in opposition to the granting of the application testified that they desired to transport the traffic, and some of them testified that they usually have idle equipment available for service; that they are willing and able to obtain additional equipment, if necessary, to handle traffic offered to them; and that there was no need for additional service in the territory. On cross-examination, one of the protestant motor carriers admitted that he had never solicited the glass company because his company had gotten along without that work and that it was not the practice of one operator to go and try to get business away from another. Several of protestant motor-carrier witnesses admitted that it was not unusual to have idle equipment. Another admitted that he did not serve Glassboro, and that under a compliance order which became effective he had no authority to transport caps and closures or tin plate. Protestants contend that the corporation has failed to establish that public convenience and necessity require the proposed operation. Certain of them refer to C. & D. Oil Co. Contract Carrier Application, 1 M. C. C. 329, and smilar cases. In the case referred to, division 5 considered the question whether the desire of a shipper to engage as a contract carrier the services of a particular person, who had never been engaged in for-hire trucking service, standing alone constituted a sufficient ground for the granting to that person of the right to enter the trucking field even though the traffic proposed to be transported was handled satisfactorily by existing carriers. The division found that the granting of the permit sought on this ground alone would not be consistent with the public interest or with the policy declared in section 202 (a) of the act. The facts herein are not similar to those considered in the cited case. In the instant case the corporation has been engaged in the trucking field for many years and, as has been found herein, is entitled to "grandfather" rights to continue certain operations by reason of bona fide operations conducted since prior to June 1, 1935, by it and its predecessor in interest, collectively. Certain commodities which the corporation seeks to transport and certain points which it seeks authority to serve were transported and served prior to June 1, 1935, and in some instances since that date, but with insufficient regularity to warrant granting "grandfather" rights to continue such operation. To other points, such as Relay, operations were instituted immediately after the act became effective and have been continuous since. Furthermore, not one shipper but several shippers have expressed a desire to use applicant's service and have indicated that the existing transportation facilities are not in all respects adequate and convenient. It should also be noted that one of the protestant motor carriers admitted that he had never solicited the glass company because his company had gotten along without that work, and another admitted that he did not serve one of the shipping points and that under a compliance order he had no authority to transport the commodities which the corporation seeks to transport. Considering all the evidence, we are of the opinion that the authority herein sought should be granted. As previously stated herein, Cross, applicant in No. MC-40428, is also the president of and controls the corporation through stock ownership. He was the principal witness for applicant in No. MC-40428 and for the corporation. Both corporation and Cross maintained their principal office at the same address in New York City. Both originally filed applications seeking authority to transport general commodities in the same general territory. The evidence offered in support of each application in many instances relates to shipments of the same commodities, between the same points, and even for the same shippers. Apparently, from the standpoint of the service which was actually offered to the public, no distinction was made as between Cross, as an individual, or the corporation; and the evidence itself affords no means of establishing the separability, if any, of the operations. In view of the above we are of the opinion that Cross and the corporation have been engaged in substantially one operation, or in integral parts of the same operation, and that following Boro Buses Co. Common Carrier Application, 18 M. C. C. 52, 53, and cases there cited, and Sterling Exp., Inc., Common Carrier Application, 17 M. C. C. 379, 380, only one certificate therefor should be granted. We shall withhold the issuance of the operating authority hereinafter granted until applicants advise us which applicant they select to receive such authority. We find that the interstate operations of applicants, Cross and the corporation, are those of a common carrier conducted as a single business for which only one certificate should be granted. We further find that applicants were on June 1, 1935, and since have been, in bona fide operation as a common carrier by motor vehicle, in interstate or foreign commerce, of fertilizer, fertilizer material, seeds, and insecticides from New York City and Hoboken to Emerson, Hackensack, Union City, Jersey City, Paterson, Bloomfield, Perth Amboy, Westfield, Bernardsville, Bridgeport, Stamford, Spring Valley, and all points on Long Island, of glass containers from New York City and Hoboken to Bridgeport, West Haven, New Haven, New London, Danbury, Torrington, and Hartford, of beer from New York City to Stanhope, Newark, Paterson, Ramsey, Bridgeport, Stamford, and Hartford, and empty beer containers in the reverse direction, of drugs from New York City to Newark, of fresh fruits from Basking Ridge to New York City, of glass containers from Bridgeton to Bridgeport, Philadelphia, Wilmington, Yonkers, New York City, Baltimore, and the District of Columbia, of materials and supplies necessary for the manufacture and packing of glass containers from Philadelphia to Bridgeton, and of boxes from Baltimore to Bridgeton and Salem and from Bridgeton to Philadelphia and Baltimore, over irregular routes; and that either John J. Cross or the Cross Transportation, Inc., is entitled to a certificate authorizing the continuance of such operation. We further find, in No. MC-100391, that public convenience and necessity require operation by applicant as a common carrier by motor vehicle, in interstate or foreign commerce, of canned goods from Bridgeton to Philadelphia, Baltimore, Hartford, and Somerville, and the territory defined in New York, N. Y., Commercial Zone, 1 M. C. C. 655, of glass containers, boxes (with or without partitions), paper, fiberboard, or pulpboard in sheets or rolls, and paper, fiberboard, or pulpboard liners or fillers from Bridgeton to Kingston, Suffern, Albany, Tuckahoe, Port Ivory, Seaford, Boston, Roxbury, and Relay, and of the same commodities except glass containers from Bridgeton to Elmhurst, Long Island City, the Bronx, and Stapleton, of caps and closures for glass containers from Glassboro to the same points that applicant is authorized to serve as destinations in the transportation of glass containers, and of tin plate from Baltimore to Paulsboro, 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 operation should be issued. We further find that the applications in all other respects should be denied. Upon compliance with the requirements of sections 215 and 217 of the act and our rules and regulations thereunder, and upon receipt of advice signed by the parties authorized to act for both of the applicants in Nos. MC-40428 and MC-29695, as to which applicant is to receive the authority herein granted, an appropriate certificate will be issued to either John J. Cross or the Cross Transportation, Inc., authorizing the operations described above. Upon compliance by applicant in No. MC-100391 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 four applications except to the extent that certificates are granted herein. 23 M. C. C. No. MC-59894 1 MYRON EDGAR FOWLER COMMON CARRIER Submitted December 19, 1938. Decided May 31, 1940 1. Applicant found entitled to continue operation as a common carrier by motor vehicle, of general commodities, with certain exceptions, between El Paso, Tex., and Lordsburg, N. Mex., serving specified intermediate points, over U. S. Highway 80, by reason of having been engaged in such operation on June 1, 1935, and because he and his successor in interest have been so engaged continuously since. Issuance of a certificate approved upon compliance by applicant with certain conditions, and application in all other respects denied. 2. Public convenience and necessity found to require operation by applicant as a common carrier by motor vehicle, of general commodities, with certain exceptions, between Lordsburg, N. Mex., and Tucson, Ariz., serving all intermediate points, over a specified regular route. Issuance of a certificate approved upon compliance by applicant with certain conditions, and application in all other respects denied. Lytton R. Taylor and Donovan N. Hoover for applicant. REPORT OF THE COMMISSION DIVISION 5, COMMISSIONERS LEE, ROGERS, AND ALLDREDGE BY DIVISION 5: Exceptions were filed by protestants to the respective orders recommended by the joint boards, and applicant filed replies. By application filed January 29, 1936, as amended, under the "grandfather" clause of section 206 (a) of the Motor Carrier Act, 1935, Myron Edgar Fowler, of Lordsburg, N. Mex., doing business as Fowler Truck Line, seeks a certificate of public convenience and necessity authorizing continuance of operation as a common carrier by motor vehicle, of general commodities, except liquids in bulk, nitroglycerin, highly explosive acids, single pieces the dimensions of which would make transportation by motor vehicle unsafe or impracticable, motion-picture films, new automobiles or automotive vehicles, live animals, live poultry, livestock, and perishable goods 1 This report also embraces No. MC-59894, Myron Edgar Fowler Extension of Operations. 2 Substitution of Claude B. Olney, doing business as Olney Motor Freight, as applicant in lieu of Myron Edgar Fowler, doing business as Fowler Truck Line, was approved February 24, 1937, in No. MC-FC-679. |