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Maine, and Boston, Mass., via Bangor, Newport, Waterville, Augusta, Brunswick, and Portland, Maine, and Portsmouth and Smithtown, N. H., and between Bangor and Portland via Unity, South China, Augusta, Winthrop, and Lewiston, Maine, serving all intermediate points and off-route points in Aroostook County, Maine and (b) of household goods, office furniture and equipment, and store fixtures, over irregular routes, between points in the northern part of Aroostook County, on the one hand, and, on the other, points in Maine, New Hampshire, Vermont, Massachusetts, Connecticut, and Rhode Island. Vendor operates in interstate or foreign commerce, pursuant to a certificate issued June 4, 1941, in No. MC-2127, as a motor common carrier of general commodities, with exceptions, (a) over regular routes, between Sanford, Maine, and Providence, R. I., serving the intermediate points of Newburyport, Mass., and Boston, and between Smithtown and South Barre, Mass., serving specified intermediate points in Massachusetts, and (b) over irregular routes, between points within 20 miles of Boston, Providence, and Sanford, except those in New Hampshire, and Lebanon, Berwick, and South Berwick, Maine, and points in Maine on and east of U. S. Highway 1. As successor in interest to the Holt Transportation Co., Inc., vendor also conducts similar operations, transporting principally general commodities, with exceptions, over regular routes, between Bangor and Boston via Newport, Waterville, Augusta, Brunswick, Portland, Smithtown, and Portsmouth, and between Augusta and Portland via Winthrop and Lewiston, serving all intermediate points and the offroute points of Skowhegan, Madison, Bath, Wiscasset, Damariscotta, Rockland, Camden, Belfast, Lisbon, and Lisbon Falls, Maine, those within 20 miles of Bangor, and those within 15 miles of Boston.

Under agreement dated July 25, 1946, vendee would purchase for $1,000 that portion of vendor's operating rights in No. MC-2127 (Sub-No. 9) authorizing operations between Waterville and Bangor, 58 miles, serving all intermediate points and the off-route points of Belfast, Camden, and Rockland, and those within 20 miles of Bangor. The purchase price would be payable by vendee from its current cash upon approval herein.

Vendee's balance sheet as of September 30, 1947, shows assets aggregating $115,228, consisting of: Current assets $24,632 principally cash $1,700, accounts receivable $18,133, and material and supplies $4,125; carrier operating property, less depreciation, $66,369; noncarrier operating property $361; investments and advances, other $402;

2 By order entered August 1, 1946, in No. MC-FC-23694, the transfer to vendor of the operating rights of Holt Transportation Co., Inc., under its certificate in No. MC-66843, issued July 11, 1944, was approved, and No. MC-2127 (Sub-No. 9) was assigned thereto.

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prepayments $9,134; and discount on capital stock $14,330. Its liabilities were: Current liabilities $38,996, chiefly notes payable $6,250 and accounts payable $25,251; advances payable, other $14,710; equipment obligations $33,417; other long-term obligations $14,408; deferred credits $26; capital stock $30,000; 3 and surplus (debit balance) $16,329. Its income statements for 1945, 1946, and the first 9 months of 1947, show deficits of $3,669, $6,311, and $10,147, respectively. It would prefer to amortize over a period of 2 years the amount assigned to its "Other Intangible Property" account as result of the purchase. Considering the debit balance in its surplus account, our findings will be conditioned accordingly.

No financial statements were furnished for vendor, but he testified that his operations have been profitable.

The Waterville-Bangor route proposed to be acquired by vendee duplicates its own route between those points, and, as previously indicated, both are authorized to serve all intermediate points on that route. Vendee, however, is not authorized to serve the off-route points of Belfast, Camden, and Rockland, and those within 20 miles of Bangor, which are not on its regular routes through that area. It has had many requests for service from shippers at points in the Bangor area not now served by it. At present, it interchanges with a local carrier at Bangor shipments originating at or destined to those points. The interchange causes delays averaging 12 days, and retards the payment of c. o. d. charges. As an example, on traffic moving from Boston to East Holden, a point within 10 miles of Bangor, vendee transports the shipment to Bangor, 235 miles, and the local carrier completes the movement to East Holden. The unification would enable vendee to render faster service and would permit it to reimburse shippers immediately following delivery of c. o. d. shipments. As a result of the purchase, vendee expects to increase the average load of its vehicles from the present 50-percent to 75-percent capacity. Vendee's employees, terminal facilities, and equipment are adequate for the combined operations. Employees of vendee and vendor would not be affected by the transaction. Two other motor carriers serve most of the points involved in the considered territory.

Vendor claims that in entering into the afore-mentioned agreement, he intended to sell only the right to serve the off-route points of Belfast, Camden, and Rockland and those within 20 miles of Bangor.

It is not possible from data of record to reconcile this amount which indicates that 300 shares, par value $100 each, were actually outstanding as of September 30, 1947. Data included in supplemental application herein, filed November 10, and December 18, 1947, and other data of record, show 263 shares actually outstanding. Vendee's annual report for 1947 to this Commission also shows 263 shares actually outstanding, and owned as indicated in footnote 1 hereof.

He represents that he is willing to consummate the transaction on that basis, but that he does not desire to do so in the event he would not retain authority to serve Bangor. The agreement, however, specifically provides for the sale of his rights over the WatervilleBangor regular route and the off-route points indicated. The right to serve off-route points is not susceptible of purchase apart from the regular route to which they are appurtenant. Norfolk Southern Bus Corp.-Purchase-Virginia-Carolina, 36 M. C. C. 490 and Central Motor Frt. Co.-Purchase-Michicago Motor Exp., 40 M. C. C. 271. As to vendor's desire to withdraw from the transaction, we have repeatedly found that authority granted under former section 213 and present section 5 is permissive only, and may, or may not, be exercised by the parties, and that all matters involving the interpretation and enforcement of the terms of contracts must be left for settlement between the parties themselves or by the courts. Raymond Bros. Motor Transp. Inc.-Purchase-Berzel, 15 M. C. C. 477 and Modern Transfer Co., Inc.-Purchase-Clarke, 45 M. C. C. 611.

Belfast, Camden, and Rockland are located on U. S. Highway 1, and are 35, 55, and 63 miles, respectively, south of Bangor. Vendor has served those points on an average of once a month. Some of the shipments moved via Waterville, some via Augusta, and others were transferred to connecting carriers at Portland for delivery to destination. Vendee has a terminal at South Brewer, just across the Penobscot River from Bangor. It proposes to serve Belfast, Camden, and Rockland in connection with its pick-up and delivery service in the Bangor area. Belfast is closer to Bangor than it is to Waterville, the northern terminus of vendor's retained regular-route operations. Camden and Rockland are somewhat nearer to Augusta, which vendor would continue to serve, than to Bangor, but the highways connecting Augusta with Camden and Rockland are inferior to U. S. Highway 1, which is an all weather highway. Under the circumstances, we conclude that the right to serve these three points as off-route points is properly appurtenant to the segment to be acquired by vendee and not to the routes to be retained by vendor. If the transaction is consummated, vendor will have disposed of all rights between Waterville and Bangor, serving all intermediate points, and the off-route points of Belfast, Camden, and Rockland, and those within 20 miles of Bangor. We find that purchase by McGary Transportation Co., Inc., of the previously described operating rights of Albert J. Demelle, doing business as Curley's Transportation Company, and acquisition of control of the operating rights by Bernard F., Floyd C., and Percy E. McGary and Robert F. Douglas through the purchase, upon the terms

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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, McGary Tranpsortation Co., Inc., will be entitled to a certificate covering a portion of the rights granted in No. MC-2127 (Sub-No. 9), which rights are herein authorized to be unified with rights otherwise confirmed in it, with duplications eliminated; provided, however, that, if the authority herein granted is exercised, McGary Transportation Co., Inc., shall amortize in equal monthly amounts, over a maximum period of 2 years, commencing with the date of consummation of the purchase, the amount assigned to its "Other Intangible Property" account as a result of the transaction, or, in lieu of amortization in any month of the 2-year period, it may write off the unamortized balance of the amount so assigned, such amortization or write-off to be accomplished in the manner to be determined upon submission of the related journal entries proposed to record the purchase, as required by our order herein.

An appropriate order will be entered.

50 M. C. C.

No. MC-F-2596

RALPH MARCUCCILLI ET AL.-CONTROL; MARION TRUCKING COMPANY, INC.-PURCHASE-HARWOOD TRUCKING, INC., AND JAQUA TRANSIT LINES, INC.

Submitted March 22, 1948. Decided July 15, 1948

Upon further hearing, findings in prior report on further hearing approving purchase by Marion Trucking Company, Inc., of certain operating rights of Harwood Trucking, Inc., and of the operating rights of Jaqua Transit Lines, Inc.; and acquisition of control of the operating rights by Ralph Marcuccilli, Thomas Marcuccilli, and S. G. Wright through the purchases, subject to conditions, affirmed. Prior reports 40 M. C. C. 107 and 45 M. C. C. 377. Additional appearances: William A. Roberts, James E. Wilson, and Warren Woods, for vendee, its stockholders, and an interested party. Wilmer A. Hill for Harwood Trucking, Inc., and certain interveners in opposition.

SECOND REPORT OF THE COMMISSION ON FURTHER HEARING

DIVISION 4, COMMISSIONERS MAHAFFIE, MILLER, AND ROGERS BY DIVISION 4:

Exceptions were filed by Harwood Trucking, Inc., and certain interveners to the examiner's proposed report on further hearing, and Marion Trucking Company, Inc., and its stockholders, replied.

In the first report herein, 40 M. C. C. 107, decided March 10, 1945, the Commission, division 4, after hearing, withheld authority for purchase by Marion Trucking Company, Inc., of Marion, Ind., herein called vendee, then exclusively a motor contract carrier1 of property, of certain motor common carrier operating rights of Harwood Trucking, Inc., also of Marion, and of similar operating rights of Jaqua Transit Lines, Inc., of Muncie, Ind., herein called Harwood and Jaqua, respectively, and for acquisition by Ralph Marcuccilli, Thomas Marcuccilli, and S. G. Wright, who control vendee through ownership of its stock, of control of the operating rights through the proposed purchases. The authority was withheld primarily because the record did not warrant approval of the transaction in view of the dual opera

1 Shortly after the date of the above decision, vendee was granted authority to operate temporarily under section 210a (a), in No. MC-103746 (Sub-No. 2-TA), as a motor common carrier of certain specified commodities, over irregular routes, from and to points in certain midwestern States. That authority expired March 18, 1948.

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