fertilizer ingredients, paper bags, and cases, from Baltimore to Milton. This permit embraces the operating rights purchased by applicant from John A. James of Danville, Va., Docket No. MC-1106. No. MC-81353.-Applicant started in the trucking business in 1924, but did not operate in interstate or foreign commerce until 1930. He was registered under the code of fair competition for the trucking industry in 1934. He holds a license granted by the Pennsylvania Liquor Control Board for operation as a transporter of malt beverages, between points in that State. At the time of the further hearing, applicant owned and operated 58 pieces of equipment consisting of 22 tractors, 24 trailers, and 12 straight trucks. Since 1930, applicant has conducted 3 types of operations, (1) local operations within Milton, (2) the transportation of malt beverages, and (3) the transportation of milk and milk products. Each operation will be separately discussed. LOCAL OPERATIONS The local operations performed by applicant involve the collection. and delivery of shipments between the railroad terminal and the place of business of the Dairymen's League Cooperative Association, Inc., at Milton, hereinafter called the League. Some of the traffic transported is destined to or originates at points outside of Pennsylvania. Applicant provides such service under arrangements with the League and is compensated by that organization for the transportation performed. Applicant does not participate in any common-carrier tariffs, and there is no common control, management, or arrangement for a continuous carriage or shipment to or from a point beyond Milton. Since such service is rendered solely within Milton, and since it is not performed under a common control, management, or arrangement with other carriers for a continuous carriage or shipment from or to points beyond Milton, the operations when in interstate or foreign commerce are exempt from the certificate or permit requirements of the act by virtue of section 203 (b) (8) thereof, and no authority is needed by applicant to continue such operations. MALT BEVERAGES Since prior to 1935, applicant has transported malt beverages and advertising material, as well as empty returned containers, under contract for a brewery at Shamokin. He has the name of the brewery painted on two tractor-trailer units that are fully insulated and carry equipment to facilitate loading and unloading. He intends to paint the name of the brewery on some of his other equipment which is occasionally used to transport malt beverages. He has entered into a bilateral contract with the brewery and has filed copies of such con ! tract and a schedule of minimum rates with this Commission. He has served only one shipper of malt beverages since prior to 1935. He has certain equipment dedicated to the use of that shipper and intends to dedicate more vehicles. He does not hold himself out to transport such commodities for the general public. Applicant is subject to call at any time of the day or night, and he and the brewery consider that applicant's operations are those of a contract carrier. We are of the opinion that these operations of applicant have been and are those of a contract carrier. There remains for determination the territorial grant to which applicant is entitled under his "grandfather" application. The brewery sells only to distributors and attempts to market its product in Connecticut, Maryland, New Jersey, New York, Pennsylvania, and the District of Columbia. Approximately 75 percent of its products are sold in Pennsylvania, and of the remainder, most is sold in New York and Maryland. The location of distributors changes from time to time as distributors are acquired at new points or lost in points already served. Exhibits of record show that since prior to July 1, 1935, applicant has transported shipments from Shamokin to various points in New York, including Binghamton, New Rochelle, New York City, and Port Jervis, points in New Jersey, including Alpha, Bridgeton, Hackensack, Paterson, and Whitehouse, points in Maryland, including Frederick, Hagerstown, Havre de Grace, and Westminster, points in Connecticut, including New Haven, points in Delaware, including Wilmington, and the District of Columbia. No shipments have been transported to Massachusetts, Virginia, and West Virginia. Naturally the demands of the brewery fluctuate and may be expected to fluctuate. Some destinations have been served prior to July 1, 1935, but not since that time, and points not served prior to July 1, 1935, have been served since. Others have been served both prior and subsequent to July 1. In view of the nature of these operations, we are of the opinion that some latitude with respect to the scope of the operations should be allowed. Since applicant has served points in Connecticut, Delaware, Maryland, New Jersey, New York, and the District of Columbia, we are of the opinion that he is entitled to "grandfather" authority to continue such operations. MILK Applicant began the transportation of raw and processed milk, milk products, and dairy supplies for the League sometime prior to 1935. The League is composed of approximately 200 plants and subsidiary dealers located throughout Connecticut, Massachusetts, New Jersey, New York, Pennsylvania, and Vermont. In addition to its members, the association sells to nonmembers. When transportation by appli cant is desired, a request therefor issues from the headquarters of the association in New York City and is transmitted to applicant through the manager of the League's plant at Milton. Each month the association remits to applicant the transportation charges for the preceding month. However, each association member is debited on his account for the amount of the transportation charges on the products received. Although applicant has solicited others, he has transported milk and milk products only for the League. In the circumstances, it would seem that the association is the agent of its members and that the transportation performed by applicant was actually performed for the numerous members. Both applicant and the League consider these operations as those of a common carrier. For the transportation of raw milk applicant uses two tank trucks and six tank trailers exclusively. The tractors used in pulling the tank trailers are also used as motive power in the transportation of other commodities in van-type trailers. Milk, cream, and processed milk, in cans and bottles, and milk products are transported by applicant in other vehicles, usually refrigerator trucks, from and to the same points as raw milk in tank trucks is transported, but the vehicles used in transporting such commodities are used in carrying other commodities for compensation. Before considering the territory in which applicant is entitled to continue operations, we must first determine whether authority from us is needed to transport raw milk, and the other commodities named. Section 203 (b) (6) of the act reads in part as follows: Nothing in this part, except the provisions of section 204 relative to the qualifications and maximum hours of service of employees and safety of operation or standards of equipment, shall be construed to include * * motor vehicles used in carrying property consisting of agricultural commodities (not including manufactured products thereof), if such motor vehicles are not used in carrying any other property for compensation. Raw milk is an agricultural commodity, and since applicant's two tank trucks carry nothing but that commodity, they come within the partial exemption of section 203 (b) (6), of the act, and therefore no certificate or permit is required for the continuance of such transportation. The further question presented is whether the six tank trailers used by applicant to transport only raw milk also come within the partial exemption. Section 203 (a) (13) of the act reads in part as follows: The term "motor vehicle" means any vehicle, machine, tractor, trailer, or semitrailer propelled or drawn by mechanical power and used upon the highways in the transportation of passengers or property, or any combination thereof determined by the Commission *. [Emphasis supplied.] The emphasized words were added to part II of the act by amendment in 1938. It will be noted that the amendment authorizing a determination of the status of the combination of vehicles by the Commission does not point out the manner in which that combination is to be determined. There appears no reason, however, why the Commission may not make that determination in any particular case that arises. We are of the opinion that in the instant proceeding the combination of the trailers used exclusively for the transportation of milk with tractors used both for such transportation and for other purposes as well, should be deemed to be one vehicle when engaged in the transportation of raw milk exclusively. Such determination is a reasonable one and within the general intent of the act. We are of the opinion, therefore, that the six tank trailers used by applicant to transport only raw milk also fall within the partial exemption, and therefore no certificate or permit is required for the continuance of such transportation. As previously stated, milk, cream, processed milk in cans and bottles, and milk products are transported in vehicles used in transporting other commodities for compensation. In view thereof, such transportation does not fall within the partial exemption of section 203 (b) (6) of the act, and authority to continue such transportation is required. There remains for determination the territory which applicant is entitled to serve in the transportation of milk and milk products other than raw milk. Exhibits were submitted by applicant showing shipments of milk or milk products transported from December 1939, to the date of the hearing. In the recommended order it was proposed to grant applicant authority to continue operations as a common carrier by motor vehicle, (1) of milk and milk products and empty containers, between points in Tioga, Lycoming, Snyder, Union, and Northumberland Counties, Pa., on the one hand, and on the other, points in Steuben, Chemung, Tioga, and Broomes Counties, N. Y., and (2) of milk, from Milton, Mifflinburg, Spring Mills, and Beaver Springs, Pa., to New York, N. Y., and empty containers in the reverse direction, over irregular routes. On exceptions, applicant contends that he should be granted authority to continue operation as a common carrier of milk and milk products and empty containers, between points in Tioga, Lycoming, Snyder, Union, and Northumberland Counties, Pa., and Spring Mills and Beaver Springs, Pa., on the one hand, and, on the other, points in Steuben, Chemung, Tioga, and Broome Counties, N. Y., and New York, N. Y., over irregular routes. Milton, Mifflinburg, Spring Mills, and Beaver Springs are in Northumberland, Union, Centre, and Snyder Counties, respectively. Consideration has been given to the entire record in this proceeding. The facts stated in the examiner's report, upon which he based his recommended findings, and to which no exceptions were filed, need not be restated and to that extent we adopt the findings of the examiner. We shall confine our discussion herein to the operations claimed between those points or territories to which the exceptions are directed. Numerous shipments of milk and milk products are shown from the Pennsylvania territory and the specified points sought by applicant to New York, N. Y., but none since 1937 in the reverse direction. However, in view of the fact that applicant has transported empty containers and also occasional shipments of milk and milk products from New York, we are of the opinion that he should be authorized to continue operations between these points. Summing up, we conclude that applicant has established "grandfather" rights for the transportation of milk and milk products and empty containers, between points in Lycoming, Northumberland, Snyder, Tioga, and Union Counties, Pa., and Spring Mills. Pa., on the one hand, and, on the other, points in Broome, Chemung, Steuben, and Tioga Counties, N. Y., and New York, N. Y. No. MC-81353 (Sub-No. 4).—This application, as previously stated, was filed by applicant as a precautionary measure in the event the claimed "grandfather" authority was denied. Only one shipper witness, who represented the brewery, testified in support of this application. The examiner recommended that applicant be granted a permit as a contract carrier by motor vehicle, of malt beverages and advertising matter, from Shamokin to Middletown, Conn., Ithaca, Elmira, and Hornell, N. Y., and Atlas and Fort Meade, Md., and of empty containers in the reverse direction, and that i all other respects the application should be denied. On excel s, applicant contends that he should be granted authority to transport malt beverages and advertising matter from Shamokin to all points in New York, Maryland, Connecticut, New Jersey, and the District of Columbia, and empty containers in the reverse direction. In view of our findings in the "grandfather" application, applicant is now in a position to handle all the brewery's present contemplated movements, and the record fails to establish a need for additional motor-carrier facilities to other points included in this application. DUAL OPERATIONS Section 210 of the act provides in effect that no person shall at the same time hold a certificate as a common carrier and a permit as a contract carrier authorizing operation for the transportation of property over the same route or within the same territory, unless for good cause shown the Commission shall find that such certificate or permit 581984-45-vol. 43-30 |