No. MC-94010

GEORGE FREDERICK WEAVER COMMON CARRIER APPLICATION

Submitted April 24, 1939. Decided June 18, 1940

Public convenience and necessity found to require operation by applicant as a common carrier by motor vehicle, of special commodities, from and to specified points in Pennsylvania, Maryland, New Jersey, and New York, over irregular routes. Issuance of a certificate approved upon compliance by applicant with certain conditions, and application in all other respects denied.

David S. Kohn for applicant.

Harry Z. Maxwell for protestants.

REPORT OF THE COMMISSION

DIVISION 5, COMMISSIONERS LEE, ROGERS, AND PATTERSON BY DIVISION 5:

Exceptions were filed to the recommended order of the examiner by protestant rail carriers. Our conclusions differ somewhat from those recommended.

By application filed April 2, 1937, as amended, George Frederick Weaver, of Millersburg, Pa., seeks a certificate of public convenience and necessity authorizing operation, in interstate or foreign commerce, as a common carrier by motor vehicle (1) of grain, feed, flour, and fertilizer between points in Dauphin, Mifflin, and Centre Counties, Pa., on the one hand, and points in Maryland, New Jersey, and New York, on the other, (2) of lumber between points in the abovespecified counties, on the one hand, and Baltimore, Md., and points within 10 miles thereof, on the other, and (3) of feed and fertilizer from Harrison, N. J., to all points in Pennsylvania east of Bedford, all over irregular routes. Rail carriers in trunk-line association territory opposed the application.

Applicant has been in the transportation business since 1932. He has two trucks, only one of which is used in interstate service. He testified that on June 1, 1935, he was engaged in transporting flour from Millersburg and Belleville, Pa., to Baltimore, lumber and fertilizer from Baltimore to Millersburg and Belleville, and feed from Harrison to Millersburg and Belleville. This service was rendered as a contract carrier by motor vehicle. By the instant application

he seeks authority to continue such service as a common carrier by motor vehicle and also to extend the territorial scope thereof. Since he failed to file an application under the "grandfather" clauses of the Motor Carrier Act, 1935, within the time provided for such filing, he must establish that all of the operations covered by the application are required by the present and future public convenience and necessity.

Nine persons residing in Millersburg and Elizabethville, Pa., and points in the vicinity thereof appeared in support of the application. Some have used the applicant's service in the past and have found it highly satisfactory. Most of them are provided with rail service but find it inadequate to meet many of their transportation needs. In addition to the requests of these witnesses, applicant has received requests for service from other persons residing in the same general territory, which includes points in Dauphin County within 10 miles of Elizabethville. A representative of a Baltimore lumber company also appeared in support of the application. His company has never used applicant's service but is urgently in need of a reliable motorcarrier service for the transportation of lumber from Baltimore to points in Dauphin, Mifflin, and Centre Counties.

Except for the Baltimore lumber dealer, all of the witnesses reside and do business in a limited area in Dauphin County, and their testimony cannot be said to establish a need for service to points outside that area. It definitely appears, therefore, that applicant has failed to establish that public convenience and necessity require his operation to the extent for which authority is sought.

At the time of the hearing, applicant was also transporting coal from the mines in Pennsylvania to Baltimore for one regular customer. He purchases the coal at the mine, pursuant to the customer's order, and charges the customer an amount in excess of the cost which presumably compensates him for the transportation performed. This service is not included in the instant application, and applicant apparently believes that the operation is that of a private carrier by motor vehicle as defined in section 203 (a) (17) of the act. It is clear, however, that applicant is not in the coal business, as such, and that in performing such a transportation service he is in reality engaged in transporting coal for compensation as a common or contract carrier by motor vehicle and is subject to the act accordingly. Carpenter Common Carrier Application, 2 M. C. C. 85. This operation should immediately be discontinued until such time as appropriate authority has been obtained for the resumption thereof.

Applicant's fitness and ability properly to conduct the services hereinafter authorized is unquestioned.

We find that the present and future public convenience and necessity require operation by applicant, in interstate or foreign commerce, as a common carrier by motor vehicle of lumber from Baltimore to all points in Dauphin, Mifflin, and Centre Counties, of feed, fertilizer, and fertilizer materials from Harrison and Baltimore to Elizabethville and points within 10 miles thereof, and of flour from Elizabethville and points within 10 miles thereof to New York and Baltimore, 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; that a certificate authorizing such operation should be issued; and that the application in all other respects should be denied.

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 indicated.

LEE, Commissioner, concurring in part:

I favor additional authority so as to permit applicant to transport flour, feed, and fertilizer between points in Dauphin, Mifflin, and Centre Counties, Pa., on the one hand, and Baltimore, Md., and points within 10 miles thereof, New York, N. Y., and Harrison, N. J., on the other. This would accord with the view of the examiner who heard the evidence.

23 M. C. C.

No. MC-95483

LESTER E. BECK AND D. G. BENEDICT CONTRACT CARRIER APPLICATION

Decided June 18, 1940

On reconsideration, findings in prior report, 12 M. C. C. 271, modified so as to authorize applicants to transport explosives and blasting supplies in lieu of the commodities specified in the prior report.

Appearances shown in prior report.

REPORT AND ORDER OF THE COMMISSION ON RECONSIDERATION

DIVISION 5, COMMISSIONERS LEE, ROGERS, AND PATTERSON

BY DIVISION 5:

In the prior report and order herein, 12 M. C. C. 271, we authorized the issuance of a permit to applicants to operate as a contract carrier by motor vehicle of explosives, caps, and fuses, between Waynesboro, Pa., on the one hand, and, on the other, points in Delaware, Maryland, Pennsylvania, Virginia, and West Virginia within 150 miles of Waynesboro, over irregular routes. Since 1933, applicants have been engaged in performing contract-carrier operations for the Hercules Powder Company, transporting explosives and all types of blasting supplies between Waynesboro, on the one hand, and points in the States specified above, on the other. This shipper often requires applicants to transport various commodities not embraced in the commodity description contained in the application filed by applicants; and applicants have therefore amended the application by enlarging the commodity description so as to include all types of blasting supplies rather than having it restricted to explosives, caps, and fuses.

There has been no change in the scope of applicants' operations since they began transporting explosives and blasting supplies for the above-named shipper. Since the operations covered by the instant application have always consisted of the transportation of explosives and blasting supplies, and since the operations never have been restricted to merely the transportation of explosives, caps, and fuses, applicants request that we modify our findings in our prior report and order by enlarging the commodity description contained therein to include all types of blasting supplies.

The proceeding is hereby reopened on our own motion for the purpose of properly describing the commodities which applicants should be authorized to transport.

On reconsideration, we find that the prior report and order should be, and they are hereby, amended and corrected so as to authorize operation by applicants, as a contract carrier by motor vehicle, in interstate or foreign commerce, of explosives and blasting supplies, between Waynesboro, Pa., on the one hand, and, on the other, points in Delaware, Maryland, Pennsylvania, Virginia, and West Virginia within 150 miles of Waynesboro, over irregular routes, in lieu of the authorization in the prior report and order; and it is so ordered. 23 M. C. C.