operation, making at least one trip to Brooklyn in July 1935, and four or five trips in each of the succeeding months up to February 17, 1936. On March 11, 1936, Blair Jacobs entered into a contract to sell the partnership's State and Federal operating rights to Hoover, which at that time was operating as a common carrier by motor vehicle of general commodities between Knoxville and New York over the routes. operated by the partners.

The purchase by Hoover of the partners' State rights was approved by the Tennessee commission on March 31, 1936. Not until June 1936, however, did Hoover file its application with us under section 213 of the act for authority to purchase the operating rights, if any, of the partners. No explanation has been offered for the delay in filing this application. In Hoover Lines, Inc.-Purchase-Jacobs, 5 M. C. C. 97, Hoover abandoned all claim to the partners' claimed "grandfather" rights between Knoxville and New York, and division 5, by its order of June 11, 1937, in that proceeding, approved and authorized the purchase by Hoover of the partners' claimed rights between Nashville and Knoxville only. Shortly thereafter, Hoover commenced operating over that route. The documentary evidence discloses that the first shipment transported thereafter was in July 1937. Early in 1938, Hoover became bankrupt and its operating rights were purchased by applicant. Subsequent to the hearing herein, in Associated Transport, Ine-Control and Consolidation, 38 M. C. C. 137, we approved the control and consolidation into Associated Transport, Inc., hereinafter called Associated, of a number of motor carriers, including Southeastern Motor Lines, Inc.

Although one of the partners testified that operations were conducted until the date of the sale to Hoover, there is no documentary evidence of any operation by the partners after February 17, 1936. In any event, there was an interruption in service which may have begun as early as February 17, 1936, the date of the last movement shown by the documentary evidence, or it may have been on March 11, 1936, the date of the sale to Hoover and extending to sometime subsequent to June 11, 1937, the date the purchase was approved. The described substitutions, in accordance with the practice in such cases, was approved without passing on the rights, if any, which might ultimately be granted, and without a determination whether operation over the routes had been continuous since the statutory date. In order for a person to acquire "grandfather" rights from his predecessor, it must be established not only that the predecessor was in "bona fide operation" on the statutory date, but also that his operations were continuous thereafter until the date of transfer, except for interruptions over which he had no control; and there must be no lapse or discon

tinuance of operation between the date of transfer and the commencement of such operations by the transferee. Unless both of these requirements are met, the purchaser acquires no rights. See Crouch Transp. System, Inc., Common Carrier Application, 26 M. C. C. 433.

Applicant contends that the partners could not continue to operate because of the transfer of their State authority to Hoover, and that the latter could not commence operating until such time as we authorized the transfer of the operating rights. There is a conflict of testimony as to the exact date the partners ceased operating between Nashville and New York. It is clear, however, that the partners did not operate over the considered routes after March 11, 1936, although their State authority was not transferred to Hoover until March 31, 1936. No explanation is given concerning the failure to conduct operations between March 11 and 31, 1936, or to apply for authority to purchase the partners operation until June 1936. Considering all the circumstances, we are of the opinion that the considered interruption of service was one over which applicant's predecessors had control. Therefore, Associated, as successor in interest to the partners Hoover, and Southeastern Motor Lines, Inc., is entitled to no rights under the "grandfather" clause of section 206 (a) of the act. The prior findings of the division accordingly will be affirmed.

Extension applications.—By application in No. MC-76037 (Sub-No. 1), filed July 16, 1938, applicant seeks a certificate of public convenience and necessity authorizing operation, in interstate or foreign commerce, as a common carrier by motor vehicle, of general commodities, between Nashville and New York and certain other eastern points, over U. S. Highways 70N and 70S between Nashville and Crossville, Tenn., and U. S. Highway 70 between Crossville and Knoxville, and between Knoxville and New York and various other points over the same routes and serving the same territory as is now being served by applicant under its application in No. MC-60451.

In No. MC-60451 (Sub-No. 1), filed July 16, 1938, applicant seeks the same authority as that sought by it in No. MC-76037 (Sub-No. 1). In view thereof, these applications will be considered together. Since applicant's operation between Knoxville and New York has been authorized under a separate proceeding not involved herein, it follows that these applications should be considered as seeking authority to extend its operation between Knoxville and Nashville.

At the time of the hearing applicant owned some 40 vehicles and was operating from 1 to 3 tractor-trailer units daily to and from Nashville. Although it transports some interstate shipments between Nashville and Knoxville, certain of which are interchanged with other motor carriers at those points, the bulk of its Nashville traffic origi

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nates at or is destined to eastern points, principally New York. No service has been rendered or is proposed at any intermediate point between Knoxville and Nashville. While some of applicant's Nashville-New York traffic is transferred from one vehicle to another at its Bristol terminal, a large portion of such traffic is transported direct with only an interchange of tractors at Bristol.

The applications were supported by a number of witnesses representing shipping interests at Nashville, Manchester, and Winchester, Tenn., Newark and Milltown, N. J., and New York, and by two motor carriers operating between Nashville and points in the Southeast. The shippers now use applicant's service and desire the continuance thereof. The carriers want to continue to interchange with applicant. For the most part the shippers are interested in service between the two termini (Nashville-New York), but some desire service between Nashville and certain eastern points on applicant's presently authorized routes. Their preference for applicant's service is based primarily upon the fact that it operates a fast single-line service with no interchange of traffic enroute. Many of the shippers foresee the possibility of damage to their shipments if they are transferred from one carrier to another.

Over protestants' objections, abstracts listing several thousand shipments, covering a wide variety of commodities, transported since July 1937, were submitted in evidence to show the scope of the actual operations conducted and a need for the continuation of the service. In D. A. Beard Truck Lines Co. Com. Car. Applic.-New Operation, 34 M. C. C. 395, in considering similar evidence, we said:

The facts of past operations are closely interrelated with the testimony of interested shipper- or receiver-witnesses dealing with the convenience of, and the need for, the proposed service. Where, as here, the past operations have been conducted under claims of "grandfather" rights, openly and without subterfuge, we conclude that they should be given consideration in determining the issue of public convenience and necessity. The weight to be accorded such operations, however, must be determined upon the basis of their relation to the other evidence of public convenience and necessity, and cannot be considered controlling of such matter.

Protestant rail and motor carriers submitted evidence as to the scope of their operations and several shipper witnesses appeared who had used their services and found them satisfactory. There are a number of substantial motor common carriers providing service between Nashville and New York, although their service involves one or more interchanges between carriers en route. Generally, however, there appears to be no substantial difference in time between applicant's service and that provided by protestant motor carriers as respects the through movement.

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It is clear that applicant and its predecessor, Hoover, have rendered a substantial service between Nashville and eastern points through Knoxville. This service has been used by many satisfied shippers who are strongly opposed to the termination of a proven service of such long standing. Such user is indicative of a public need for the continuance of the service. We have carefully considered the record and do not subscribe to the contentions of protestants that the existing service is adequate or that applicant's service to the extent hereinafter authorized is not required by the public convenience and necessity. In this connection, we cannot overlook the fact that applicant is not a new operator; that it has built up a substantial business in a manner highly satisfactory to its customers; and that such customers have expressed a desire and need for the continuance of the service. In view of the fact that applicant and its predecessors, under color of "grandfather" rights, have been in active competition with protestants for many years, we do not believe that the latter will be materially affected by the grant of authority here made.

As noted, Associated, pursuant to the findings in Associated Transport, Inc.-Control and Consolidation, supra, purchased among other things, all of the operating rights claimed herein. There is no evidence in this record to establish that Associated is fit, willing, and able to conduct the proposed service. However, we have no hesitancy in concluding that it is fit, willing, and able to conduct any extended operations which may be authorized herein. With a view to avoiding a further hearing in these proceedings with the accompanying inconvenience to the parties, we shall grant the authority found warranted herein to Associated.

Although the applications seek authority to transport general commodities without exceptions, no need has been shown for the proposed services in the transportation of articles of unusual value, dangerous explosives, commodities in bulk, commodities requiring special equipment, and household goods as defined in Practices of Motor Common Carriers of Household Goods, 17 M. C. C. 467; therefore, the authority granted herein to transport general commodities will be accordingly restricted.

Findings. Upon reconsideration, we find, in No. MC-76037, that Associated Transport, Inc., as successor in interest to applicant, has failed to establish that it is entitled to a certificate under the "grandfather" clause of section 206 (a) of the act because of the described interruption of service found to be within the control of applicant's predecessor, and that this application should be denied.

We find, in Nos. MC-76037 (Sub-No. 1) and MC-60451 (SubNo. 1), that the present and future public convenience and necessity

require operation by Associated Transport, Inc., in interstate or foreign commerce, as a common carrier by motor vehicle, of general commodities, except articles of unusual value, dangerous explosives, commodities in bulk, commodities requiring special equipment, and household goods as defined in Practices of Motor Common Carriers of Household Goods, 17 M. C. C. 467, between Nashville, Tenn., and Knoxville, Tenn., over U. S. Highways 70N and 70S between Nashville and Crossville, Tenn., and U. S. Highway 70 between Crossville and Knoxville, with service at no intermediate points; that Associated Transport, Inc., is fit, willing, and able properly to perform the described operations and to conform to the requirements of the act and our rules and regulations thereunder; that a certificate authorizing such operations should be granted; and that the applications should be denied in all other respects.

Upon compliance by Associated Transport, Inc., with the requirements of sections 215 and 217 of the act and our rules and regulations thereunder, an appropriate certificate will be issued. An appropriate order will be entered.

COMMISSIONER LEE concurs in the result.

COMMISSIONERS MAHAFFIE, MILLER, ROGERS, and PATTERSON dissent.

43 M. C. C.

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