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proposed to take over the equipment and personnel of the delivery departments of these stores. In McGugan Contract Carrier Application, 10 M. C. C. 793, the applicant was given a permit for "department store merchandise", but here again the arrangement was for the store to turn over to the carrier its truck and entire delivery service. In these two instances, the service unquestionably is specialized, since it includes a complete delivery service, which could not so efficiently be performed by a common carrier. In the instant case, applicant has served a large variety of stores, but will enter into a contract for continuous retail delivery only when the store will provide a fair volume of packages which do not weigh in excess of 60 pounds. Applicant's service is much broader than that of either of the above-named carriers. When his service is viewed as a whole, it is obvious that the distinction which he makes between the parcel delivery service and the admitted common-carrier service is not founded on any factual difference in the character of the transportation. Applicant has no particular desire to be a contract carrier, but merely wants the type of authority that will permit him to continue successfully the parcel delivery service. Because of the detail of preparing a bill lading for each parcel and the publishing of a tariff, he believes he will not be able, as a common carrier, to compete with contract carriers for this business. In order to be attractive to the retail stores, the service must be highly flexible, and exactly as though the stores themselves were conducting their own delivery service. Were it not for the operations conducted under the certificate which applicant holds, it would be a simple matter for applicant to restrict his parcel delivery service to contract carriage similar to the type considered in United Parcel Service of Pa., Inc., Contr. Car. Application, supra.
Assuming that, as he claims, applicant has actually conducted two types of service, one as a common carrier and the other as a contract carrier, it would be necessary to determine the question of dual operations, since in each instance, the same territory and commodities are involved. If the certificate which applicant now holds were, as he suggests, limited to shipments in excess of 60 pounds, that would not remove the possibility of discrimination between shippers, and where such possibilities exist, dual operations may not be allowed, even though it is quite evident that the carrier intends no discrimination. Because of our finding herein, however, we are not called upon to determine that question. We merely point out that the circumstances would seem not to justify a finding permitting dual operations, even if we were able to find that the parcel delivery service is contract carriage.
Applicant, admittedly, will render a common-carrier parcel dolivery service for anyone whose volume of packages available for shipment is not, in his opinion, sufficient to justify a special contracte Volume of traffic does not, therefore, form a sound basis for determining whether the service is common or contract in character. Likewise, the weight of the package or shipment is not controlling. Hence, the fact that applicant will accept packages in excess of 60 pounds in his admitted common-carrier service is of no importance here. The fact is that applicant will accept any kind of shipment from any person for movement into the general territory which he serves. Con. sidering the intermingling of shipments and all the other circumstances surrounding operations by applicant, we have no alternative but to find his status to be that of a common carrier and that, in fact, he has not been rendering two separate and distinct services as claimed.
Such a conclusion leaves applicant in a position where he must issue bills of lading, and otherwise assume the obligations and practices of a common carrier, thus affording him no relief from the tariff and other requirements applicable to common carriers which he urges make it impractical to conduct parcel delivery service as a common carrier. This does not mean, however, that applicant has no remedy. As hereinbefore noted, there is some similarity between applicant's operations and those considered in United Parcel Delivery Service of Pa., Inc., Contr. Car. Application, supra, and found to be contract carriage. The principal difference in such operations is applicant's broader holding out to the public. As heretofore noted, however, were it not for his mixed operations, it would not be difficult for us to find, on this record, that applicant's strict parcel delivery service is in fact contract carriage. Therefore, if he wants to discontinue all operations as a common carrier, to apply for revocation of the certificate now held by him, and to restrict his future operation to strict parcel delivery service, we shall give consideration to an appropriate petition by him asking, in the light of such circumstances, that a permit authorizing such parcel delivery service as a contract carrier be issued. We shall hold the proceeding open for 60 days to allow applicant to file such a petition, if he so desires.
As stated, applicant now has a certificate authorizing the transportation of general commodities between Philadelphia and Camden, on the one hand, and, on the other, Lambertville and Asbury Park, N. J., and points and places in New Jersey south of a line beginning at Lambertville and extending in an easterly direction to Asbury Park. The territory sought in the instant application duplicates that territory in New Jersey south of the line between Lam. bertville and Asbury Park, and no additional authority is necessary to enable continuation of operations in that area.
Finding8.-We find that applicant's operations are those of a common carrier.
We further find that on and continuously since June 1, 1935, applicant has been in bona fide operation in interstate or foreign commerce as a common carrier by motor vehicle, of general commodities, except commodities in bulk, livestock, household goods as defined in Practices of Motor Common Carriers of Household Goods, 17 M. C. C. 467, dangerous explosives, commodities of unusual value, commodities requiring special equipment, and those injurious or contaminating to other lading, between Philadelphia, Pa., on the one hand, and on the other, all points, except Lambertville and Asbury Park, N. J., in Hunterdon, Mercer, Middlesex, and Monmouth Counties, N. J., on and north of a line beginning at Lambertville, N. J., and extending in an easterly direction to Asbury Park, N. J., over irregular routes; that applicant is entitled to a certificate authorizing the continuance of such operations; and that in all other respects the application should be denied. This finding, however, is subject to the condition that applicant may, within 60 days, request that the certificate issued to him in No. MC-59721 be revoked, and that a permit be issued authorizing operations by him in the performance of a strict parcel delivery service, as a contract carrier, between the points sought in the instant application. We will hold this proceeding open for a period of 60 days from the date hereof to afford ample opportunity for the filing by applicant of such a petition.
At the expiration of 60 days from the date hereof, in the absence of the filing of such a petition by applicant, and upon compliance by applicant with the requirements of sections 215 and 217 of the act and with our rules and regulations thereunder, an appropriate certificate will be issued.
An order will be entered denying the application except to the extent indicated.
CHAIRMAN PATTERSON dissents.
43 M. C. C.
No. MC-17481 1
ERNEST E. MOORE COMMON CARRIER APPLICATION
submitted January 28, 1948. Decided January 29, 1944
1 Upon further hearing, in Nos. MC-17481, 19693, 21231, and 24967, applicant
found to have failed to establish that he was on June 1, 1935, or July 1, 1935, and continuously since has been, in bona fide operation as a common or contract carrier by motor vehicle, of property, between any points whatsoever, and in No. MC-80532, applicant found to have failed to establish that his operation as a broker of transportation by motor vehicle of property would be consistent with the public interest and the national transportation policy.
Applications denied. Prior report 28 M. C. C. 187. 2. In No. MC-17481 (Sub-No. 1), application for a grant of certain authority as
common carrier by motor vehicle of property under section 207 of the Interstate Commerce Act denied, because identical authority is included in grant
made under No. MC-17481 (Sub-No. 2). 3. In No. MC-17481 (Sub-No.2), public convenience and necessity found to require
operation by applicant as a common carrier by motor vehicle, in interstate or foreign commerce, over irregular routes (1) of general commodities, with exceptions, from Minneapolis and St. Paul, Minn., and certain adjacent points to points in Wisconsin, Iowa, also between sucb points in Minnesota, on the one hand, and specified points in Illinois, on the other, (2) of canned goods between points in Minnesota, on the one hand, and, on the other, points in Wisconsin and specified points in Illinois, and from points in Iowa to the Twin Cities, (3) of cocoa and chocolate coating from Milwaukee, Wis., to the Twin Cities area, (4) of iron and steel articles from Sterling and Rock Falls, Ill., to points in Minnesota, (5) of soap and washing compounds from the Twin Cities area to specified points in Nebraska, South Dakota, and North Dakota, and (6) of canned goods from Nebraska City, Nebr., to the Twin Cities area. Issuance of a certificate approved upon compliance by applicant with certain conditions, and application in all
other respects denied. Appearances as shown in prior report, also:
P.H. Kroeger, Harry M. Walsh, Irving Gotlieb, A. R. Fowler, and W.N. Gage for applicant.
B. C. Brile, Fred W. Putnam, Edward J. Konkol, F. R. Overmyer, A. L. Murphy, George E. Wiard, Henry C. Stiening, Victor J. Grice, Richard Musenbrock, E. L. Murphy, Jr., K. G. Heimbach, Maurice 8. Bush, G. M. Springer, Louis A. Hunter, Robert J. Babcock, Peter 1. Dorcers, J. A. Roswick, Erling Eikaas, S. W. Jensch, B. 8. Overton, Edward C. Mogren, A. O. Erdall, J. A. Madden, and G. A. Henke for protestants.
* This report also embraces No. MC-19693, Ernest E. Moore Common Carrier Application ; No. MC-21231, Ernest E. Moore Common Carrier Application ; No. MC-24697, Ernest E. Moore Contract Carrier Application ; No. MC-80332, Ernest E. Moore Broker Application ; No. MC-17481 (Sub-No. 1), Ernest E. Moore Extension-Twin Cities Area ; submitted May 28, 1942; and No. MC-17481 (Sub-No. 2), Ernest E. Moore-Extension-New Operation. 43 M C.C.
Otto A. Radke, Frank B. Townsend, and C. R. Smith for interveners.
DIVISION 5, COMISSIONERS LEE, ROGERS, AND ALLDREDGE
BY DIVISION 5:
Exceptions were filed by applicant to the order recommended by the examiner in the title proceeding and in the first four proceedings listed in footnote 1. It also filed exceptions to the order recommended by the joint board in No. MC-17481 (Sub-No. 1) and to the order recommended by the examiner in No. MC-17481 (Sub-No. 2). One protestant replied to the last-mentioned exceptions. Our conclusions differ from those recommended in No. MC-17481 (Sub-No. 2).
No. MC-17481 and the first four proceedings mentioned in footnote 1 have been twice heard on consolidated records. Nos. MC-17481 (Sub-No. 1) and MC-17481 (Sub-No. 2) were separately heard. All of these proceedings relate to the operations of one person and for convenience they will be disposed of in a single report.
By application No. MC-17481, as amended, filed February 12, 1936,* Ernest E. Moore, of St. Paul, Minn., doing business as Moore Motor Freight Lines, seeks a certificate of public convenience and necessity or a permit, authorizing continuance of operation as a common or contract carrier by motor vehicle, in interstate or foreign commerce, (1) of general commodities, between Minneapolis and St. Paul, Minn., hereinafter called the Twin Cities, on the one hand, and Chicago, Ill., on the other, over two regular routes, one through Madison, Wis., and the other through Rochester, Minn., Waterloo, Cedar Rapids, and Clinton, Iowa, and (2) of meat, dairy products, canned goods, cleaning compound, mill feeds, vegetables, and cereals, between points in Minnesota, Iowa, Wisconsin, and Illinois, over numerous specified routes. In view of our findings herein, it is not necessary to set forth in detail either these routes or the routes described in the other "grandfather” clause applications hereinafter discussed.
By application No. MC-21231, filed February 12, 1936,8 applicant seeks a certificate of public convenience and necessity or a permit, authorizing continuance of operation as a common or contract carrier by motor vehicle, in interstate or foreign commerce, of general commodities, between points in Minnesota on the one hand, and points
*On further hearing except in Nos. MC-17481 (Sub-No. 1) and MC-17481 (Sub-No. 2).
• Under the "grandfather" clause of section 206 (a) or 209 (a) of the Interstate Com. merce Act.