The interstate operating rights acquired by Herrin in the Coleman case had been confirmed under the "grandfather" clause in No. MC-8035, Coleman Bros. Transfer Co. Common Carrier Application, 10 M. C. C. 97, decided October 20, 1938, and a certificate was issued to Herrin covering such rights on January 7, 1941, in No. MC-1184 (Sub-No. 3). Thereafter, in Herrin Transp. Co. Common Carrier Application, 28 M. C. C. 445, decided April 14, 1941, division 5, on reconsideration, reversed the findings in 10 M. C. C. 97,* and found that the operating rights granted to Coleman in the prior report were not based on bona fide "grandfather" operations, and that Herrin, as successor in interest to Coleman, was not entitled to a certificate under the "grandfather" clause covering those operations. At the same time, April 14, 1941, the division entered an order denying the application in No. MC-8035, which order became effective November 5, 1941, and, on August 6, 1941, it entered an order revoking the certificate which had been issued to Herrin January 7, 1941, in No. MC-1124 (Sub-No. 3), to cover the "grandfather" operating rights which Herrin had purchased from Coleman under authority granted in the Coleman case. By an order entered on November 6, 1945, the Commission, on its own motion, vacated and set aside the report and order of division 5 of April 14, 1941, and in a report on reconsideration in Herrin Transp. Co. Common Carrier Application, 46 M. C. C. 281, decided May 3, 1946, found that a new certificate should be issued to Herrin embracing all of its operating rights, including those acquired under authority granted in the Coleman case and the Wald case, with duplications eliminated. On April 10, 1947, in Civil Action No. 1785, Herrin Transportation Company v. United States of America, et al., the District Court of the United States for the Southern District of Texas, upon complaint filed by Herrin on June 13, 1945, set aside and canceled all orders of the Commission in Nos. MC-8035 and MC-1124 (Sub-No. 3) entered subsequent to the issuance to Herrin of the certificate in No. MC-1124 (Sub-No. 3), on January 7, 1941. No appeal has been taken from that decision.

The pertinent portion of the court's final decree is as follows: NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED:

(1) That all purported orders of the Interstate Commerce Commission, in Commission Dockets MC-8035 and MC-1124, Sub No. 3, following issuance of the certificate of public convenience and necessity dated January 7, 1941, in Docket MC-1124, Sub No. 3, and which purport to cancel or annul or to substantially alter or amend said certificate, be and they are hereby set aside, cancelled, annulled and held void and of no force nor effect whatever.

This reversal was based upon the decision of the United States Supreme Court in McDonald v. Thompson, 305 U. S. 263, decided December 5, 1988.

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(2) Defendants are hereby permanently and perpetually enjoined from enforcing or attempting to enforce, giving any effect to or attempting to give any effect to any of such orders or any part or parts thereof or taking any other action inconsistent with this decree, the Findings of Fact, Conclusions of Law and the Opinion of the Court on file herein.

Herrin asserts that the Commission's order of August 6, 1941, canceling the certificate issued to it in No. MC-1124 (Sub-No. 3), was the reason for, and made necessary, the purchase by it of the Wald rights in order to retain the business which it had built up in conducting its Dallas-Houston operations under the rights purchased in the Coleman case. It interprets the aforesaid order of the district court as holding that it may sell the operating rights acquired from Coleman and, at the same time, retain the duplicating rights acquired from Wald; and it argues that it should be permitted to do so in order to recoup a portion of the loss sustained by it in purchasing both the Coleman and Wald rights. There is no question that the decree of the district court holds that the certificate issued to Herrin on January 7, 1941, in No. MC-1124 (Sub-No. 3), is a valid certificate issued pursuant to the findings of the report of division 5, of October 20, 1938, in 10 M. C. C. 97, and further, that all subsequent orders entered in that proceeding had been entered in error. The immediate effect of the decree is to leave Herrin in possession of two certificates, one issued January 7, 1941, in No. MC-1124 (Sub-No. 3), covering the rights acquired from Coleman, and the other issued September 18, 1942, in No. MC-1124, covering the rights acquired from Wald.

The question now presented is whether Herrin may sell the Coleman rights apart from the Wald rights. On this point the district court's decision is silent. However, paragraph (2) of the court's decree enjoins this Commission from taking any action inconsistent with the decree. Among the orders set aside by paragraph (1) of the decree is the order of the Commission attached to its report on reconsideration, 46 M. C. C. 281, dated May 3, 1946. The ultimate effect of the findings and order, had the court not set the order aside, was to authorize the issuance of a new single certificate to Herrin covering the sum of the Coleman and Wald rights. The Commission's findings, at page 283, read, in part, as follows:

Thus Herrin acquired operating rights from Wald which, among other things, authorize operations over the same routes between Houston, Dallas, and Fort Worth over which it previously acquired operating authority from Coleman but which authorize service only at certain intermediate points while the operating rights previously acquired from Coleman authorize service at all intermediate points on these routes. To the extent which the rights so acquired are mere duplication of the rights here sought this application has become moot and there is left for us only the adjudication of Herrin's "grandfather" rights to serve the

intermediate points not included in the Wald certificate. Under this posture of the case a determination of the bona fides of the operations of applicant's predecessor under the doctrine of McDonald v. Thompson, 305 U. S. 263, become inconsequential. Accordingly, we find that the applicant is entitled to a certificate of public convenience and necessity to the extent that the operating rights herein sought do not duplicate those now held by it, and that a new certificate embracing Herrin's present operating rights, including those acquired from Coleman and Wald, with duplications eliminated, should be issued to Herrin.

To the extent the Commission purported to eliminate duplications in the two certificates, and found that but one operating right exists where duplicating rights under separate certificates are combined in one carrier, the Commission was following its consistent policy extending over a 12-year period, which has been recognized and approved by the courts. Elliott Bros. Trucking Co. v. United States, 59 Fed. Supp. 328. In early cases, arising under the Motor Carrier Act, 1935, long before certificates were actually issued, the contention that a single carrier could maintain more than one operating right over a highway between the same points was rejected; and the reports in those early cases clearly show that the unification of two or more duplicating "grandfather" rights in one carrier resulted in but one operating authority in that carrier. See Hunt-Purchase-Central Truck Lines, Inc., 5. M. C. C. 584; Miller-Purchase-Shattuck Trucking Corp., 5 M. C. C. 623; Riley-Purchase-Mangold, 5 M. C. C. 613, and Russell-Purchase Calhoun, 5 M. C. C. 617. The same principle has since consistently been applied regardless of the number of separate certificates which a single carrier may hold describing the same right, or the number of times the same right may be described in one certificate. See Atlantic Greyhound Corp.-Purchase-Pan-American Bus, 25 M. C. C. 551, H. P. Welch Co.-Purchase-E. J. Scannell, Inc., 25 M. C. C. 558, and Southwestern Transp. Co.-Purchase-Johnson, 35 M. C. C. 437. The views expressed in those reports we believe to be sound and that we should continue to follow them.

The instant case, however, presents an unusual situation, arising under a set of facts differing in many respects from those in the other proceedings. Here, Herrin purchased from Coleman what it considered, and division 5 of the Commission had duly found, were valid operating rights. When those findings were reversed by division 5 (because of the Supreme Court action in McDonald v. Thompson, 305 U. S. 263) Herrin proceeded to purchase the Wald rights so as to continue its Dallas-Houston service. Herrin asserts that this was done because it was handling considerable traffic over the routes involved which it wished to continue. Because many counsel were in the military service or had more business than they could take care of at the time, litigation culminating in the decision of the district court quoted

above was not commenced until 1945. In our opinion the court's decree had the effect of reinstating the Coleman rights as separate rights in Herrin's name. We are also constrained to the view that the court action further requires us to recognize that Herrin holds the Coleman rights separate and apart from the Wald rights, and therefore one may be sold by Herrin without affecting its right to continue the identical operation. Unless this view of the decree is correct, it appears that the setting aside of the Commission's orders by the Court would have been unnecessary and without any real significance.

In reinstating the Coleman certificate in Herrin, it appears the court believed that, to do otherwise, would be inequitable to Herrin, for, in dismissing the Commission's motion to dismiss the complaint brought by Herrin, the court's opinion reads:

The Commission pressed upon us that the order of May 3, 1946, had fully recognized the validity of the Coleman Brothers certificate and Herrin's purchase of it, and had merely made it conform to the uniform practice of the Commission not to grant duplicate rights. It urged upon us that the complaint should, therefore, be dismissed for want of equity because there was nothing of substance in it entitling plaintiff to equitable relief, the Commission's action in eliminating duplication being fully within its rights and powers.

We do not agree with the Commission. We agree rather with the dissenting Commissioners, and adopt as our own the views set out in the paragraph quoted above. An appropriate decree may be presented for entry.

To the extent we should here conclude that Herrin has only a single operating right which, if sold, would leave it without authority to continue the same operation, it is true that Herrin would not receive the purchase price of $20,000. Under the unique circumstances of this case, and giving full effect to the action of the Court and the views which it expressed, we are of the opinion that we must recognize the existence of two duplicating operating rights in Herrin and authorize the proposed transaction, if otherwise found to be consistent with the public interest under section 5 of the act, without affecting Herrin's right to continue operations over the same route.

As previously shown, those opposing the instant application do so upon two principal grounds. First, that the Coleman rights and the Wald rights do not exist separately, and secondly, that the entrance of Braswell into the highly competitive field of operations between Houston and Dallas would affect their ability to continue their present services between those points and would not be consistent with the public interest. The first contention needs no further comment. With regard to the second, because of Braswell Motor's extensive operations west of Dallas to the Pacific coast, the record shows that the principal traffic which might be diverted from interveners would be

traffic moving between Houston, and the west coast and Arizona points via Dallas, some of which is now interchanged with interveners at Dallas for the Houston-Dallas segment. As previously shown, before the war the preponderance of the traffic over the latter segment was north-bound. Under wartime shipping restrictions and since, the traffic trend has been reversed, and at present there is considerably less north-bound tonnage than south-bound. Under both trends of traffic, however, empty mileage and lightly loaded return hauls have prevailed. Interveners contend that the loss of any traffic to Braswell, as a result of the consummation of the proposed transaction, would endanger profitable operations, and particularly the maintenance of the present intermediate-point service between Houston and Dallas. Interveners' traffic between these points ranges from 50 to 65 percent in intrastate commerce. Braswell would not acquire intrastate rights from Herrin and does not now possess such rights between Houston and Dallas. Thus, the potential traffic loss to interveners would be limited to the interstate traffic which might be attracted to Braswell's service. He testified that certain of the traffic which he hoped to secure was now moving by rail from Waco to Arizona points.

Considering all of the evidence of record, we are not convinced that the effect of approval and consummation of this transaction, and the operation by both Braswell and Herrin between Houston and Dallas, would so adversely affect interveners as to warrant the belief that their present service would be significantly impaired.

We find that purchase by J. V. Braswell of the previously described operating rights of Herrin Transportation Company, upon the terms and conditions above set forth, which terms and conditions are found to be just and reasonable, constitute a transaction within the scope of section 5 (2) (a), and will be consistent with the public interest, and that, if the transaction is consummated, J. V. Braswell will be entitled to a certificate covering the specific operating rights described in the certificate in No. MC-1124 (Sub-No. 3), dated August 7, 1941, being those formerly confirmed in No. MC-8035, Coleman Bros. Transfer Co. Common Carrier Application, 10 M. C. C. 97, which rights are herein authorized to be unified with rights otherwise confirmed in J. V. Braswell, with duplications eliminated, provided, however, that if the authority herein granted is exercised, J. V. Braswell shall immediately write off the amount assigned to his "Other Intangible Prop

As previously indicated, between Fort Worth and Dallas, Braswell already owns operating rights, leased to Braswell Motor, duplicating those of Herrin which Braswell would purchase. The duplication would be eliminated upon consummation of the purchase by Braswell, and only Braswell Motor would be authorized to operate between Fort Worth and Dallas under Braswell rights.