holding out to serve the public was the ultimate and final test as between a common and contract carrier, the fact, or not, of a past holding out could not be determined simply on the basis of an applicant's oral admission or disclaimer, but rather must be determined by an examination of an applicant's actual past conduct and such secondary or subordinate tests as the number of contracts held, the frequency of their change, the commodities transported, the character of the physical operations performed, the use or not of regular routes, the giving or not of scheduled service, the observance or not of uniform charges, et cetera, all of which when collated either establish or negative specialization on the part of the operator, either as respects the physical operations performed, or as respects the shippers served, and to the same degree establish or negative common carriage. In other words, it was concluded that the commonly accepted secondary tests of a holding out, collectively and in the final analysis, speak in terms of specialization or not as the ultimate test of a public holding out which, in turn, fixed the common or contract character of a given service. In the light of the foregoing, we shall reexamine the facts in the instant proceeding to the extent necessary to dispose of the question presented herein. Since 1931, applicant has been transporting certain classes of commodities under contracts with individual shippers. On June or July 1, 1935, written contracts were in effect with two shippers of paper products, four shippers of iron and steel wire products, five shippers of canned goods, and four shippers of animal or poultry feeds. Three of the four shippers of iron and steel wire products were affiliated companies. Since that time, contracts with one shipper of paper products and one shipper of iron and steel wire products have expired and were not renewed. Although a witness for applicant claimed that no contracts with additional shippers have been entered into since February 1936, it appears that several additional contracts have been entered into and subsequently canceled with shippers of feeds and canned goods. With these exceptions, applicant has continued to transport for substantially the same shippers, although at the time of the further hearing herein, transportation was being performed for only seven shippers under contract. Prior to the original hearing herein, applicant transported a number of shipments wherein the consignees paid the freight charges. The services performed, however, were under the contract with the consignor and at the request of the latter, and the transportation charges collected were based on that contract. That practice has now ceased. • Applicant is the successor in interest to certain motor carriers as specifically described in the prior reports herein. The term "applicant" as used herein will mean any or all depending on the facts stated. Applicant has never interchanged traffic with other motor carriers. It employs no solicitors and has never solicited contracts from shippers. In fact applicant has, in at least two instances, refused to negotiate contracts with shippers who have requested it to handle their traffic. On June or July 1, 1935, applicant operated approximately the same number of units of equipment as it did at the time of the further hearing herein, and its business both in size and volume is substantially the same as it was on and prior to the statutory date. While applicant claims that its equipment differs from that used by motor carriers of general commodities, it does not appear to be unusual in any respect. Its open-top trailers average about 2 inches more in width than the average trailer. Some common carriers, however, also use this same type of trailer. We are convinced that although there is nothing unusual about its physical operations, applicant has never held itself out to serve the general public or even all shippers of the few classes of commodities it transports. At no time has applicant had effective contracts with more than 15 shippers, and the majority of such contracts were with shippers of canned goods. At the further hearing, however, the application was amended by eliminating therefrom authority to transport canned goods. Applicant has performed service for most of its present shippers since prior to 1935, supplying a service designed to meet their particular needs. We believe, having in mind the principles of the Craig case, that the number of shippers is not too great to authorize contract-carrier authority even though there is nothing in the physical services rendered by applicant to give it a stamp of specialization. We conclude, therefore, that the operation has been and is that of a contract carrier. In the original report herein, 28 M. C. C. 233, which also embraced No. MC-49126 (Sub-No. 2) Lucy F. Zimmerman, Administratrix, Extension of Operation-Michigan, division 5 found that the present and future public convenience and necessity required operation by applicant as a common carrier by motor vehicle of specified commodities to and from certain points or territories. The authority there sought was for an extension of applicant's operation. In its petition for reconsideration in the instant proceeding, applicant states that it does not and has not sought dual authority and, in effect, that it should be granted the same type of authority for all operations conducted or proposed to be conducted by it. Accordingly, and in view of our conclusions herein that applicant's operations are and have been those of a contract carrier, appropriate consideration will be given to what changes, if any, should be made in the authority granted applicant under No. MC-49126 (Sub-No. 2). Upon reconsideration, we find that the operations of applicant and its predecessors are and have been those of a contract carrier by motor vehicle; that on and continuously since July 1, 1935, applicant or its predecessors have been in bona fide operation, in interstate or foreign commerce, as a contract carrier by motor vehicle of the commodities, from and to points or territory, and in the manner described in the attached appendix; that applicant is entitled to a permit authorizing 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 appropriate order will be entered. PATTERSON, Commissioner, dissenting: The majority find that on July 1, 1935, and continuously since, applicant has been in bona fide operation as a contract carrier of numerous commodities. In 2 prior reports herein, 28 M. C. C. 233, and a report on further hearing, decided March 1, 1943, mimeographed, on exactly the same evidence it was found that applicant's service on June 1, 1935, and continuously thereafter, was that of a common carrier. Applicant has continuously served from 7 to 25 shippers of numerous diversified commodities, and apparently will haul for anyone who desires its services. Both its equipment and its services are of the usual type employed by common carriers, and neither is designed to meet the particular needs of particular shippers. The findings in the prior reports referred to are sound and should be adhered to. COMMISSIONERS MAHAFFIE, MILLER, and ROGERS have asked me to state that they join in this expression. APPENDIX Operations authorized over irregular routes Authority to which applicant was found entitled by division 5 in its report on further hearing, 42 M. C. C. 826, decided March 1, 1943. Pulpboard, boxboard, chipboard, and strawboard, from Carthage, Ind., to Chicago, Ill., and from Red Bank, Ohio, to Anderson and Marion, Ind. Strawboard, from Circleville, Ohio, to Anderson, Ind. Iron and steel wire products, and fencing materials and supplies, from Sterling and Rock Falls, Ill., to points in Indiana, Ohio, and those in Michigan on and south of U. S. Highway 16. Animal and poultry feeds, from Chicago, Ill., to Indianapolis and New Castle, Ind. No. MC-760371 SOUTHEASTERN MOTOR LINES, INC., COMMON CARRIER APPLICATION Decided November 2, 1943 1 On reconsideration in No. MC-76037, findings in prior report, 41 M. C. C. 671, affirmed, and applicant, as successor in interest, found to have failed to establish the right to a certificate as a common carrier by motor vehicle, of general commodities, between Nashville, Tenn., and New York, N. Y., under the "grandfather" clause of section 206 (a) of the Interstate Commerce Act. Application denied. 2. On reconsideration in Nos. 76037 (Sub-No. 1) and MC-60451 (Sub-No. 1), findings in prior report, 41 M. C. C. 671, reversed, and public convenience and necessity found to require operation by Associated Transport, Inc., as a common carrier by motor vehicle, in interstate or foreign commerce, of general commodities, with exceptions, between Nashville and Knoxville, Tenn., over regular routes. & Issuance of a certificate approved upon compliance by Associated Transport, Inc., with certain conditions and applications in all other respects denied. Appearances as shown in prior report. REPORT OF THE COMMISSION ON RECONSIDERATION BY THE COMMISSION: This proceeding involves three applications which were filed by Southeastern Motor Lines, Inc.,2 of Bristol, Va., one under the "grandfather" clause of section 206 (a) and the other two under section. 207 (a) of the Interstate Commerce Act. In the prior report herein, 41 M. C. C. 671, division 5 found, in No. MC-76037, that applicant had failed to establish the right to a certificate of public convenience and necessity as a common carrier by motor vehicle or general commodities, between Nashville, Tenn., and New York, N. Y., over specified routes, under the "grandfather" clause of section 206 (a) of the act, and that the application should be denied. In Nos. MC-76037 (SubNo. 1) and MC-60451 (Sub-No. 1), the division found that public convenience and necessity did not require operation by applicant as a common carrier by motor vehicle, in interstate or foreign commerce, of general commodities between Nashville and Knoxville, Tenn., over regular routes. This report also embraces Nos. MC-76037 (Sub-No. 1) and MC-60451 (Sub-No. 1). Boutheastern Motor Lines, Inc., Extension of Operations. Successor in interest to Hoover Lines, Inc., and Blair Jacobs, Herbert Jacobs, and Luke Jacobs, copartners doing business as Jacobs Motor Service. Upon consideration of the records in the proceedings and applicant's petition, to which certain motor-carrier protestants replied. we reopened the proceedings for reconsideration upon the record as made, and vacated and set aside the prior order. In its petition, applicant contends that the finding in the prior report that it is not entitled to a "grandfather" certificate because of certain interruptions of service of its predecessors subsequent to June 1, 1935, found to be within the control of such predecessors, is based upon a misinterpretation of the law as applied to the evidence. With respect to its extension applications, applicant contends that the division erred in not considering evidence of past operations. The pertinent facts are stated in the prior report and will be restated here only for the purposes of clarity. "Grandfather" application.-By this application. No. MC-76037, applicant, as successor in interest to Hoover Lines, Inc., hereinafter called Hoover, which in turn was successor in interest to Blair Jacobs, Herbert Jacobs, and Luke Jacobs, copartners, doing business as Jacobs Motor Service, seeks a certificate of public convenience and necessity authorizing continuance of operation, in interstate or foreign commerce, as a common carrier by motor vehicle of general commodities between Nashville and New York, and of fish and oysters from Norfolk, Va., to Nashville, over specified routes through Knoxville, which in view of our conclusions need not be described. In January 1935, Blair Jacobs applied to the Railroad and Public Utilities Commission of Tennessee for a permit authorizing operation in interstate commerce in the transportation of property by motor vehicle between Nashville and the Tennessee-Virginia State line at Bristol, Tenn. After hearing by the Tennessee commission. the application was denied by its order of March 27, 1935. Notwithstanding this action, however, the above-named partners purchased a tractor and semitrailer and, in April 1935, began transporting enameled table tops and similar products of the Tennessee Enamel Manufacturing Company from Nashville to Brooklyn, N. Y. At least five trips were made to Brooklyn, in April 1935, three in May 1935, and one early in June 1935. About the time of the last trip one of the partners was arrested and fined for operating as a motor carrier in Tennessee without appropriate authority. Thereupon the operations were temporarily discontinued and, on July 1, 1935, Blair Jacobs petitioned the Tennessee commission for a rehearing on the application previously submitted. The petition was granted, and a hearing was held on July 24, 1935. On July 26. 1935, an interstate permit was granted to Blair Jacobs authorizing the transportation of "interstate freight only" between Nashville and the Tennessee-Virginia line over U. S. Highways 70S, 70, and 11E. Thereafter the partners resumed their |