as ingredients or parts of the finished structure or product. The term "supplies" has a very broad meaning and should not be confused with "materials" or "ingredients." It embraces those things furnished for the purpose of operation as distinguished from "materials," which are furnished for original construction.--Hilt Truck Line, Inc.--Investigation of Operations, 117 M.C.C. 9 (14). Meats, packinghouse products: "Scrap materials" is a term which is The word "scrap" denotes such item as small trimmings or wastematerial being discarded because they are not suitable for the use (i.e., as human food) to which they normally would be put. The items included by that description would not be junk or trash of no value, but rather a commodity which is fit only for other uses than the human consump tion for which the basic cut of meat or offal involved is ordinarily suitable. However, authority to transport "scrap materials" does not include the right to handle every commodity classified as "inedible meat" and "offal." Some items that are classified as offal--such, for example, as beef hearts and edible livers--have substantial nutritional value as human food and thus clearly could not be considered as "scrap meats."--Hilt Truck Line, Inc.Investigation of Operations, 117 M.C.C. 9 (20-21). sufficiently broad to include scrap meats. Stock-in-trade of drugstores, etc.: By applying the intended use test [96 M.C.C. 522], the Commission determined that under its authority to transport "stock in trade of drugstores," respondent may handle shipments where the consignee is a drugstore or the drug department of another store. In order to qualify as a drugstore or drug department, the consignee must be actually engaged in dispensing drugs. If the shipment is merely consigned to an intermediary or to a storage facility, then it must be earmarked for eventual delivery to and sale in a drugstore or the drug department of another store. On the other hand, a shipment not consigned to a drugstore or drug department, and consisting of commodities not peculiar to, or predominantly a part of, the stock in trade of such consignee (such as alcoholic beverages or candy), could not be transported under the authority in question unless the ultimate consignee can be identified at the time the shipment is tendered to respondent for movement.--North Central Truck Lines, Inc., Invest. & Revoca. 117 M.C.C. 180 (194). Respondent's refusal to operate within the limits of its authority to transport "stock in trade of drugstores," despite Supreme Court ruling that the commodity description is not ambiguous [355 U.S. 554], resulted in cease and desist order, and an acknowledgment that continued violation may result in suspension or revocation of the authority.--Id., pp. 184, 195. Supplies: Citing 61 M.C.C. 329 (333) and 53 M.C.C. 530 (533), the Commission reaffirmed its distinction between the terms "supplies" and "materials.' The term "supplies" means those things consumed in, or necessary to, the maintenance and operation of a plant, factory, or business other than the raw materials or ingredients which go into the finished product or structure, whereas "materials" means those things used as ingredients or parts of the finished structure or product. The term "supplies" has a very broad meaning and should not be confused with "materials" or "ingredients. It embraces those things furnished for the purpose of operation as distinguished from "materials," which are furnished for original construction.--Hilt Truck Line, Inc.--Investigation of Operations, 117 M.C.C. 9 (14). If it had been the Commission's intent, when the considered rights first were issued, to grant to respondent's predecessor authority to transport the full range of commodities dealt in by grocery stores, appropriate language was readily available and in current usage at the time. Hilt argues that "grocery store supplies" must be regarded as such terminology, but the gap between the terms "supplies" and "commodities dealt in by retail grocery stores," the meaning of which when used in Commission certificates and permits is well established, is far too great. The only interpretation which validly may be accorded that commodity description ("grocery store supplies") limits the carrier to the transportation of those items which are used by grocery stores in the performance of such functions as the maintenance of their premises, recordkeeping, and accounting, and does not permit the movement of commodities to be offered for resale.--Id., pp. 16, 17. $204a. REPARATIONS; LIMITATIONS OF ACTIONS 20. Complaint seeking reparation.-Under $204a, as amended by Public Law 89-170, shippers are accorded a remedy at law to recover reparations. See Informal Procedure, 335 I.C.C. 403. Therefore, to extent the complainant seeks to recover damages for unlawful charges on past shipments by motor carriers, Commission is without jurisdiction to award reparations. Neither can Commission negate terms of the Act by tolling the statute of limitations with respect to claims on past shipments. Complainant must file a timely court suit.--Mammoth Plastics v. National Classification Board, 341 I.C.C. 15 (17-18). $206 (a) (1). CERTIFICATE OF CONVENIENCE AND NECESSITY; NECESSITY FOR; CARRIERS 2. Construction and interpretation.--Applicant's proposed operation between Indianapolis and Lafayette, Ind., over indicated highways and including Crawfordsville, Ind., as an "intermediate point" of service, may not be performed under the "superhighway rule of construction" stated in 49 CFR 1042.3, as such service is not conducted between a point of departure and a point of return on the applicant's authorized route as required by the "superhighway" regulations.--Commercial Motor Frt., Inc., Ext.--Crawfordsville, Ind., 114 M.C.C. 500 (519-21)*. 25. Injunctions; operation without certificate.--Respondent found to have been engaging in certain operations as a common carrier without appropriate certificates authorizing such operations, and therefore to have been in violation of $206 (a); cease and desist order entered.-Hilt Truck Line, Inc.--Investigation of Operations, 117 M.C.C. 9 (26). 50. "Grandfather" clause; bona fide operation.--Respondent's refusal to operate within the limits of its authority to transport "stock in trade of drugstores," despite Supreme Court ruling that the commodity description is not ambiguous [355 U.S. 554], resulted in cease and desist order, and an acknowledgment that continued violation may result in suspension or revocation of the authority.--North Central Truck Lines, Inc., Invest. & Revoca., 117 M.C.C. 180 (184, 195). $206 (b). APPLICATION FOR CERTIFICATE; FORM AND CONTENTS 15. Filing and verifying application; parties; notice.--When verified application of plaintiff (applicant) for irregular-route authority denied that extension authority sought could or would be joined with any authority then held for performance of a through service, and published notice of the application was consistent with assurances therein, other carriers were not given proper notice of actual authority sought and nature of proposed operations. Failure adequately to warn competing carriers of the authority actuall sought and intended to be used, albeit by tacking, has an injurious impact on the integrity of administrative process. Also, as expressed in 206 F. Supp. 835, the Commission must be able to rely on representations of the parties; and when carrier made its application, it became bound to the representations contained therein. Complaint dismissed.--Eagle Motor Lines, Inc. v. United States, 331 F. Supp. 80 (81-82)*. See also Blue Bird Coach Lines, Inc. v. United States, $208 (c), n. 1. 18. Burden of proof.--An applicant for a motor carrier certificate has the burden of proving that the proposed service is required by the public convenience and necessity; and that burden cannot be met simply by a showing that applicant will be able to obtain traffic if the authority is granted. Thus, it was incumbent on plaintiff (applicant) to establish, by a preponderance of the evidence, that the unrestricted household goods service which it seeks authority to render was in fact needed by the shipping public. And a basic factor in that proof is a demonstration of the extent to which needs of the shipping public cannot adequately be met by existing service already available.--Towne Services Household Goods Transp. Co. v. United States, 329 F. Supp. 815 (820-21)*. Plaintiff (applicant) failed to prove need for proposed unrestricted household goods service between Texas points when testimony of supporting freight forwarders was limited to need for service that could be provided under the "Kingpak" certificate granted; shipper witnesses were merely "trying to help out" plaintiff with no genuine need for service which could not readily be met by existing carriers; and support of five household goods carriers who are authorized to render complete service between all points in Texas is based on a desire to avoid handling traffic they consider "undesirable." While the household goods carriers indicate desire for proposed service in the accumulation and distribution of small shipments, in effect, they would use applicant to avoid their statutory common carrier duty to render continuous and adequate service to the shipping public under their certificates; that falls far short of establishing a public need for the additional service which plaintiff seeks authority to provide. Considered Commission orders, sustained.--Id., pp. 817-18, 822. រ E E E Admissibility: In denying motions by both parties to strike certain statements of specified witnesses, Commission noted that as a Federal administrative agency it is not bound by technical rules for the exclusion of evidence which are applicable in jury trials at law. Generally. Commission favors a more lenient policy respecting admissibility of evidence, including hearsay testimony, than pertains in jury trials.--Commercial Motor Frt., Inc., Ext.--Crawfordsville, Ind., 114 M.C.C. 500 (516-19)*. Most of the witnesses who supported application for authority to transport used automobiles between Hawaii and the mainland did not themselves propose to use applicant's service. In a situation such as this in which the need for service by individual customers is sporadic and nonrecurring, this type of evidence is appropriate.--American International Driveaway Ext.--Hawaii, 117 M.C.C. 63 (67). Disclosure: Asserting that the charges against it were not sufficiently definite or specific to enable it to prepare a proper defense, and that if proven in a proper forum the violations could lead to imposition of criminal penalties, respondent requested that it be allowed to utilize various discovery procedures of the Federal Rules of Civil Procedure in any hearing it is required to attend. The petition was denied, because rules 56-57 and 102 of the Commission's General Rules of Practice [49 CFR 1100.5657, 102] provide a comprehensive source of obtaining discovery. There is no reason for establishing whole sets of new and different rules for different proceedings, unless it is established that the existing rules are ineffective or otherwise insufficient to enable respondents to prepare adequate defenses. Should the present rules prove inadequate, a petition under rule 102 for extraordinary relief would be available.--Eagle Motor Lines, Inc., Invest. & Revoca. of Certif., 117 M.C.C. 72 (76-77). $207 (a). ISSUANCE OF CERTIFICATE AUTHORIZED TO QUALIFIED APPLICANTS FOR REGULAR ROUTES AND BETWEEN FIXED TERMINI 6. Restriction of operation.- Points, origins, intermediate, off-route, destination: To resolve an apparent ambiguity between the authority of the granting paragraph and the positively stated restriction imposed ("restricted to the transportation of commodities between points in that part of the Kansas City commercial zone, as defined by the Commission, situated in Kansas, on the one hand, and, on the other, points in Louisiana and a specified portion of Texas"), it was held that the restriction merely limits the destination territory to which shipments of the involved commodities originating in the Kansas portion of the commercial zone may be transported. Thus traffic originating at points in Kansas other than those in the Kansas City zone is unaffected by the restriction.--Little Audrey's Transp. Co., Inc., Ext.-Emporia Meats, 117 M.C.C. 173 (178)*. Tacking: In suit to enjoin and set aside Commission report and orders insofar as the certificate granted plaintiff was restricted against tacking, record shows that, in its verified application for irregular-route authority, plaintiff (applicant) denied that the authority sought could or would be joined with any authority then held in order to perform a through service and that recitals in the published notice of the application were consistent with assurances contained therein; in such circumstances, the Commission acted well within its discretion in declining to require that protestants show the actual adverse effect of tacking through abstracts or specific reference to diversions of traffic. Furthermore, the Commission's action in imposing the no-tacking restriction complained of was not capricious or arbitrary, did not constitute an abuse of discretion, and was not in violation of the law; complaint dismissed.--Eagle Motor Lines, Inc. v. United States, 331 F. Supp. 80 (81-82)*. Since respondent tacked authority restricted against tacking "with carrier's present authority" with authority obtained subsequent to grant of restricted authority, tacking restriction was inapplicable. The terminology utilized in the authorization of operations which are restricted to the transportation of traffic destined to those destination points specifically named in a certificate has the practical effect of negating application of the gener rule that allows joinder of authorities and interline operation. Such a limitation, by corresponding in scope with the grant of authority to which it relates, authorizes only performance of the service specified in the actual grant. Tacking and interlining for movement of shipments to points not so specified are prohibited. Only traffic whose final destination is one of the service points described in a particular grant of authority may be transported pursuant to that authority when a restriction of the type here at issue is imposed.--Hilt Truck Line, Inc.-Investigation of Operations, 117 M.C.C. 9 (24, 26). The restriction that Doylestown, Pa., "shall be served only in connec tion with traffic moving from or to Pittsburgh or points in the Pittsburgh area" does not preclude (1) the transportation of shipments which are destined to or originating at points beyond and are moving in interline service, or (2) the combining of a carrier's authorities at common service points to provide a single-line service from or to points beyond. That limitation merely requir that the Pittsburgh area gateway be observed in connection with the intermedia and off-route point service authorized.--Renner Motor Lines, Inc., ExtensionRichmond, Ind., 117 M.C.C. 218 (221)*. Weight: On reconsideration the Commission determined that a 40,000 pound minimum weight provision in applicant's current tariff, not being related either to its existing authority or to that proposed, constituted a "service embargo" within the meaning of Restrictions on Service by Motor Cammon Carriers, 111 M.C.C. 151 (1970), notwithstanding the fact that applicant indicated that it was willing to handle its shipper's individual LTL shipments but had never been tendered any. Applicant's receipt of authority was conditioned upon its taking whatever steps might be necessary to bring about compli ance with respect to both its present and new tariffs. Applicant was granted a three year term certificate and required to file performance reports.-Midwestern Express, Inc., Extension--Paper Products, 114 M.C.C. 834 (838). See also, dissent. |