ized outbound movement, and this portion of the application will also be denied. Interpretation, Operating Rights-Returned Containers, 82 M.C.C. 677.

To the extent the authority granted herein duplicates any authority held by applicant it is to be construed as conferring but one operating right.

On reconsideration, we find that the present and future public convenience and necessity require operation by applicant as a common carrier by motor vehicle, in interstate or foreign commerce, over irregular routes, of (1) meats, meat products, and meat byproducts, and articles distributed by meat packinghouses as described in sections A and C of appendix I to the report in Descriptions in Motor Carrier Certificates, 61 M.C.C. 209 and 766, from Broadway, Va., and points within 5 miles thereof to points in Alabama, Connecticut, Delaware, Florida, Georgia, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Nebraska, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Rhode Island, South Carolina, Tennessee, West Virginia, Wisconsin, and the District of Columbia, (2) of frozen foods and dressed poultry from Staunton and Winchester, Va., and points in Rockingham County, Va., to points in the destination States named in paragraph (1) above, except that no shipment shall be transported to a point in Florida that is not a portion of a truckload which has been partially unloaded at some point north of Florida, (3) of poultry plant and packinghouse waste products, (a) from Linville, Harrisonburg, and Winchester, Va., to points in Connecticut, Delaware, Florida, Georgia, Illinois, Indiana, Iowa, Kentucky, Maryland, New Jersey, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Wisconsin, and the District of Columbia, and (b) from points in Delaware, Illinois, Maryland, New Jersey, New York, North Carolina, Pennsylvania, West Virginia, and the District of Columbia to Linville, Harrisonburg, and Winchester, Va.; that applicant is fit, willing, and able properly to perform such service and to conform to the requirements of the Interstate Commerce Act and our rules and regulations thereunder; that a certificate authorizing such operation should be granted, and that the application in all other respects should be denied.

Upon compliance by applicant with the requirements of sections 215, 217, and 221 (c) of the act and with the rules and regulations thereunder, an appropriate certificate will be issued. An order will be entered denying the application except to the extent granted herein.

COMMISSIONER MURPHY, whom COMMISSIONERS FREAS and HERRING join, dissenting in part:

The majority concedes that the evidence is vague and general in some respects and then proceeds to grant the application practically

in its entirety because the supporting shippers desire a single-line service to all destinations, present and future. The evidence does not indicate that a single-line service is required to the extensive territory granted by the majority. In my opinion, the record does not support any grant of authority greater than that authorized by division 1. The act requires a finding that a proposed operation be required by the public convenience and necessity before a certificate is issued. The burden rests upon applicant to show that these prerequisites exist by clear and convincing evidence. Applicant has not established a need for the proposed service to the wide area authorized.

84 M.C.C.

No. MC-118187

PANTHER OIL AND GREASE MANUFACTURING COMPANY, INC., CONTRACT CARRIER "GRANDFATHER" APPLICATION

Decided February 9, 1961

On reconsideration, findings in prior report, decided June 24, 1960, reversed. Applicant found to have failed to establish a right to a permit as a contract carrier by motor vehicle under the "grandfather" provisions of section 7(c) of the Transportation Act of 1958. Application denied.

John W. Mackin for applicant.

Edgar O. Weller, C. D. Johnston, Tom Farmer, Walter Caven, W. Wallace Wilhite, R. L. Moore, James W. Nisbet, Lloyd R. Guerra, Rollo E. Kidwell, Ralph W. Pulley, Jr., and Hugh T. Matthews for protestants.

REPORT OF THE COMMISSION ON RECONSIDERATION

BY THE COMMISSION:

In the prior report herein, decided June 24, 1960, division 1 found applicant, of Fort Worth, Tex., entitled to "grandfather" authority 2 to continue operations as a contract carrier by motor vehicle, over irregular routes, (1) of frozen fruit and frozen vegetables from Sunnyvale, Calif., to El Paso and Forth Worth, Tex., and (2) of frozen fruit from Salinas, Calif., to Forth Worth, limited to service to be performed under a continuing contract with a named shipper and subject to certain conditions requiring applicant to conduct its for-hire

a The change of corporate name of the applicant to Texas Refinery Corp. was allowed by order of division 1, dated February 9, 1960.

* See footnote 1 to section 203(b)(6) of the Interstate Commerce Act, as amended August 12, 1958. Section 7 of the Transportation Act of 1958 in amending section 203 (b) (6) includes the "grandfather" provision pursuant to which this application was filed. 84 M.C.C.

operations completely separate from its private-carrier operations. Thereafter, upon consideration of the record and of a joint petition by Gillette Motor Transport, Inc., and Western Truck Lines, Ltd., we reopened the proceeding for reconsideration on the present record. Petitioners contend that applicants' transportation of mixed shipments of frozen fruits and vegetables along with frozen french-fried potatoes and frozen fruit juices prior to and since May 1, 1958, in fact has been "regulated" transportation; that only a small portion of its operations has been transportation of the commodities recently made subject to economic regulation; and that applicant is not entitled to any of the "grandfather" authority granted in the prior report. Applicant did not reply. The pertinent facts are set forth in some detail in the prior report and in the examiner's report, and they will be restated here only to the extent necessary for a determination of the matters now in issue.

Applicant transported a substantial quantity of frozen fruits and frozen vegetables from Sunnyvale and Salinas to El Paso and Fort Worth between May 1957 and August 1959, pursuant to an oral contract with Del Norte Frozen Foods, Inc., of Fort Worth. A total of 52 shipments were handled from and to these points in that period. Upon reexamination of the evidence, it appears that all but five of these shipments were transported in mixed loads with frozen fruit juice and frozen french-fried potatoes. In most instances the frozen fruit juice and frozen french-fried potatoes equaled less than 5 percent of the load handled, but in one instance, on a shipment moving from Sunnyvale to Fort Worth and El Paso on April 17, 1958, those commodities comprised about 17 percent of the load. There is nothing of record which indicates that any of the foregoing commodities were transported by applicant as a private carrier. The only reference in the record to private carriage by applicant relates to outbound movements of its own products from Fort Worth to destinations in California.

It is well established that both frozen fruit juice and frozen frenchfried potatoes are regulated commodities, which may not be transported for compensation without appropriate authority from this Commission. Watkins Motor Lines, Inc., Interpretation of Certificate, 64 M.C.C. 455, and Midwest Coast Transport, Inc., Extension— Montana, 74 M.C.C. 1. It is clear, therefore, that the partial exemption of section 203 (b) (6) of the Interstate Commerce Act was not applicable to any of those shipments of frozen fruits and frozen vegetables transported by applicant in the same vehicle and at the same time with regulated commodities. See Midwest Coast Transport Inc., Extension-Montana, supra. The proportion of regulated com

modities moving along with the exempt commodities is immaterial since the presence of any amount of the former destroys the exemption of the latter. Section 7(c) of the Transportation Act of 1958 provides "grandfather" rights only as to transportation of property made subject to economic regulation by the second proviso of section 7(a) of those 1958 amendments. Inasmuch as applicant's mixed shipments were not made subject to regulation but rather were previously subject to regulation, they cannot now be considered in establishing applicant's claim to "grandfather" rights. Compare Lewis Common Carrier Application, 82 M.C.C. 755.

As seen, all but five of applicant's shipments of frozen fruits and vegetables from and to the points involved contained nonexempt commodities. Details of these five shipments are summarized in the appendix. Only one shipment is shown of exempt commodities that moved prior to the critical date, May 1, 1958, a shipment of frozen fruit of unspecified volume from Salinas to Fort Worth. There are only two other such shipments from Salinas shown after that date. No shipments are shown to have originated at Sunnyvale prior to May 1, 1958, and only two are shown subsequent to that date. These infrequent and sporadic movements obviously do not evidence the requisite continuity of operation essential for issuance of "grandfather" authority. In view of the foregoing, it is our opinion that applicant has failed to establish that it was in bona fide operation. on and continuously since May 1, 1958, and that the application should be denied.

On reconsideration we find that applicant has failed to show that it was, on May 1, 1958, in bona fide operation, in interstate or foreign commerce, as a contract carrier by motor vehicle of the commodities from and to the points described in its application herein, and has so operated since that time; that it has failed to establish its right to a permit under the "grandfather" clause of section 7(c) of the Transportation Act of 1958; and that the application, accordingly, should be denied.

An appropriate order will be entered.

COMMISSIONER WEBB, concurring in the result:

Applicant made no showing whatever that its operations subsequent to August 12, 1958, were conducted in good faith. For this reason alone, the instant application should be denied.

However, the report of the majority deals unnecessarily and, in my opinion, inadequately with an important question of statutory construction. That question is: what is the meaning of the word "property" in section 7(c) of the Transportation Act of 1958? If "property," as there used, means "commodities," the good faith trans

portation of mixed loads would not bar a grant. On the other hand, the report assumes that the word "property" in section 7(c) means "shipments." Since it is not necessary to determine the proper construction in this proceeding, and because of the inadequate record, I express no conclusion on the question of statutory interpretation discussed above.