East, serving intermediate points, and through the Lincoln Tunnel is unauthorized; and that such unauthorized operation is unlawful in violation of section 206 (a) of the act.

An order will be entered requiring defendant to cease and desist from the operation found unlawful, and dismissing the complaint otherwise.

SPLAWN, Commissioner, concurring:

To the extent that these findings will have the effect of reopening the question of defendant's right to engage in short-haul mass transportation between Manhattan and the nearby New Jersey territory, I concur in the result.

PATTERSON, Chairman, dissenting in part:

In my opinion the conclusions reached in the prior report should here be approved without modification.

COMMISSIONER MAHAFFIE joins in this dissenting in part expression. COMMISSIONER ALLDREDGE dissents.

43 M. C. C.

No. MC-C-380

CRUDE TALC FROM CALIFORNIA MINES TO DUNN, CALIF.

Submitted May 19, 1944. Decided June 23, 1944

Upon investigation, shipments of crude talc by motor common carrier from Callfornia mines to Dunn, Calif., found to be moving in intrastate commerce and not subject to the Interstate Commerce Act. Proceeding discontinued.

Reuben G. Hunt for respondent.

M. L. Harker for the Office of Price Administration.

REPORT OF THE COMMISSION

DIVISION 2, COMMISSIONERS AITCHISON, LEE, AND ALLDREDGE LEE, Commissioner:

Paulsen and March, a motor common carrier of mineral products and ore concentrates in California and Nevada, proposed increased commodity rates on crude talc, minimum 40,000 pounds, from seven mines in the Death Valley District of California to Dunn, Calif. The Office of Price Administration filed a protest requesting the suspension of the proposed rates. The proposed rates were not suspended, but this investigation was instituted into their reasonableness and lawfulness otherwise.

Upon consideration of the evidence, we are of the opinion that the traffic on which the rates apply is in intrastate commerce and not subject to the provisions of part II of the Interstate Commerce Act.

Crude talc is mined in Inyo and San Bernardino Counties, Calif., at mines owned by certain talc companies, and shipped by the talc companies over Paulsen and March's line to Dunn. The movement is over routes lying wholly within California, and the bills of lading show Dunn as the destination. At Dunn, the crude talc is delivered by Paulsen and March into bins owned by the talc companies. The bins are next to tracks of the Union Pacific Railroad, and the crude tale is emptied from the bins into railroad cars for transportation by rail to other California points, principally to Los Angeles, where crude tale is pulverized and processed for market by the talc companies. The talc companies are the shippers and consignees of the shipments over the lines of Paulsen and March and the railroad.

Although some of the finished product, talc, is shipped from Los Angeles to points outside of California, most of it is sold and used in the State. When the crude talc is shipped, and during its transportation, neither the talc companies nor the carriers have any knowledge of the ultimate destination of any particular portion of the shipment after processing.

Paulsen and March do not participate in joint rates with the railroad and have no arrangements with it for through transportation. Under the circumstances described, it is clear that the transportation by Paulsen and March is in intrastate commerce, and that this Commission has no jurisdiction under the Interstate Commerce Act over the rates under investigation. In view of our lack of jurisdiction, it is unnnecessary to consider the evidence of the parties respecting the reasonableness of the rates.

We find that the transportation services performed by the respondent in the Transportation of crude talc from the California mines to the shipper's bins at Dunn, over intrastate routes, are not operations in interstate or foreign commerce within the meaning of the Interstate Commerce Act; that the rates for the transportation are not subject to our jurisdiction; and that the proceeding should be discontinued. An order discontinuing the proceeding will be entered.

43 M. C. C.

No. MC-C-371

JOINT NORTHEASTERN MOTOR CARRIER ASSOCIATION, INC., v. JACK ROSE AND M. WELLOFF, DOING BUSINESS AS ROSE TRANSPORTATION COMPANY

Submitted November 20, 1943. Decided June 16, 1944

Complaint alleging cessation of operations and looking to revocation of defendants' certificate, dismissed.

Isadore H. Schwartz for complainant.

Harry C. Maxwell for intervener.

No appearance for defendants.

REPORT OF THE COMMISSION

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

Exceptions were filed by the intervener to the order recommended by the examiner, and the defendants replied.

By complaint filed July 2, 1943, Joint Northeastern Motor Carrier Association, Inc., alleges that the defendants, Jack Rose and M. Welloff, doing business as Rose Transportation Company, on or about December 31, 1940, discontinued all motor-carrier operations authorized by their certificate in No. MC-323 consisting of the transportation (1) of general commodities, with certain exceptions, between Philadelphia, Pa., and Atlantic City, N. J., over a specified route, with service at all intermediate points and at designated off-route points, and (2) of household goods between Philadelphia and points in Pennsylvania within 15 miles of Philadelphia, on the one hand, and points in New Jersey, on the other, over irregular routes; and that defendants have not since on or about the date mentioned complied with the requirements of section 217 (a) of the Interstate Commerce Act respecting the filing and posting of tariffs. Complainant asks that defendants' certificate be revoked. Needham's Motor Service, Inc., intervened in support of the complaint.

Defendants in an answer to the complaint denied that they have discontinued operations or that they have failed to comply with the requirements of section 217 (a) of the act as alleged. Defendants did not appear at the hearing.

Complainant at the hearing offered no evidence in support of the allegations contained in its complaint. Instead it moved that because

of defendants' failure to appear that the certificate of public convenience and necessity issued to them be revoked, and that they be required to cease and desist from any further motor-carrier operations.

We were without authority to revoke defendants' certificate other than in the manner prescribed in section 212 (a) of the act. As provided therein, we may revoke a certificate only for willful failure to comply with any provision of the act, or with any lawful order, rule, or regulation, promulgated by us thereunder, or with any term, condition, or limitation of such certificate, and then only if the holder thereof willfully fails to comply, within a reasonable time, not less than 30 days, to be fixed by the Commission, with a lawful order made as provided in section 204 (c), commanding obedience to the provisions of the act, or to the rule or regulation of the Commission thereunder, or to the term, condition, or limitation of such certificate found by the Commission to have been violated by such holder.

No evidence was offered at the hearing by complainant or intervener in substantiation of the allegations in the complaint. Obviously, in the absence of such evidence, we are without any basis for proceeding under either section 204 (c) or 212 (a) of the act. In the instant proceeding, the burden of proof clearly was upon complainant, and the failure of defendants to appear in no wise relieved it of the obligation of proving its allegations.

We find that it has not been shown that the defendants have discontinued operations or that they have failed to comply with the provisions of section 217 (a) of the act.

An order dismissing the complaint will be entered.

1 Section 204 (c) reads in part as follows: "Upon complaint in writing to the Commission by any person, State board, organization, or body politic, or upon its own initiative without complaint, the Commission may investigate whether any motor carrier

has

failed to comply with any provision of this part, or with any requirement established pursuant thereto. If the Commission after notice and hearing, finds upon any such investigation, that the motor carrier has failed to comply with any such provision or requirement, the Commission shall issue an appropriate order to compel the car· to comply therewith."

rier

43 M. C. C.