off-route points named herein or which he may receive from other carriers at such points. Accordingly, any authority herein granted will carry with it the right to transport the chartered parties for which authority is here sought.

For a period of 14 years applicant and his predecessors in interest have conducted operations in response to a public demand for such services. Had the application been filed on or prior to February 12, 1936, applicant would have been entitled to a certificate authorizing the continuance of such services, without further proof. The fact that the operations have been conducted over a long period of years is strong evidence that their continuation is required by the present and future public convenience and necessity. Applicant's fitness and ability, financial and other, to conduct the operations are not questioned.

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, of passengers and their baggage, between Portsmouth and Dover, on the one hand, and Cape Neddick, on the other, over the following routes: From Portsmouth over U. S. Highway 1 to York Corner, and thence over U. S. Highway 1A to Cape Neddick; and from Dover over U. S. Highway 4 to South Berwick, Maine, thence over an unnumbered highway to York Corner, and thence over U. S. Highway 1A to Cape Neddick; serving the intermediate points of York Corner, York Village, York Harbor, and York Beach, and the off-route points of Seabury, Beech Ridge, and Brixham.

We further find that applicant is fit, willing, and able properly to perform such service and to conform to the provisions of the act and our requirements, rules, and regulations thereunder; and that a certificate therefor should be granted.

We further find that applicant may transport in interstate or foreign commerce, to any place within the United States, special or chartered parties which originate at the terminal, intermediate, and off-route points named herein or which he may receive from other carriers at such points, subject to the provisions of the act and the rules and regulations promulgated by us thereunder applicable to such operation. This finding is deemed to be a special rule, prescribed for the purpose of this proceeding and is subject to appropriate modifications upon the promulgation of general rules and regulations governing special or chartered party service.

Upon compliance by applicant with the requirements of sections 215 and 217 of the act and our requirements, rules, and regulations thereunder, an appropriate certificate will be issued.

No. MC-23485

EDWARD M. FALLON BROKER APPLICATION

Submitted June 17, 1939. Decided September 9, 1940

Operation by applicant as a broker in arranging transportation of general commodities by motor vehicle found not consistent with the public interest and with the policy declared in section 202 (a) of the Motor Carrier Act, 1935. Application denied.

Edward M. Fallon for applicant.

James W. Oram and Victor I. Cook for protestants.

REPORT OF THE COMMISSION

DIVISION 5, COMMISSIONERS LEE, ROGERS, AND PATTERSON

BY DIVISION 5:

Exceptions were filed by applicant to the recommended order of the examiner, to which protestant rail carriers replied.

By application filed January 15, 1936, as amended, Edward M. Fallon, doing business as Independent Freight Exchange, of Baltimore, Md., seeks a license authorizing operation as a broker in arranging transportation by motor vehicle of general commodities, in interstate or foreign commerce, between points in Maryland, Delaware, Pennsylvania, Virginia, West Virginia, North Carolina, New York, New Jersey, Ohio, District of Columbia, Florida, Georgia, South Carolina, Tennessee, Kentucky, Indiana, Illinois, Michigan, Rhode Island, Connecticut, and Massachusetts. Trunk-line rail carriers and Interstate Common Carrier Council of Maryland Motor Truck Association opposed the application.

Applicant has been engaged in business as a broker arranging transportation by motor vehicle in interstate or foreign commerce since 1934. In connection with his brokerage operations applicant also sold coal, but he discontinued that part of his business on October 12, 1938. Although applicant seeks a brokerage license to arrange for the transportation of general commodities, the evidence relates almost entirely to the movements of fertilizer and canned goods.

Applicant maintains an office in Baltimore and secures his business through personal solicitation and other forms of advertising. He has established contacts with various manufacturers of fertilizer in Baltimore for whom he obtains truck service for the moving of their products to points, including farms, in the States above named. The

Although the exact points to which shipments of fertilizer have been transported under arrangements made by applicant are not definitely shown of record, it appears reasonably certain that such points as were served are included in the territory which applicant may now serve as a common carrier. common carrier. Therefore, dual authority as a common carrier and as a broker of the same commodity from and to the same points would lead to confusion whether a shipment is received by applicant as a carrier or as a broker. Opportunity for rate descriminations among patrons would ensue by his furnishing common-carrier service to some and brokerage service to others. Such a situation would clearly be inconsistent with the public interest.

Although, under the operating rights purchased by applicant, he has no authority to transport canned goods, in our opinion applicant has also failed to establish the need for his services as a broker of such commodity. As previously stated, only one shipper of canned goods testified in support of the application. His testimony clearly indicates that applicant's service would be used only in the event that the rates quoted by applicant were lower than those of other carriers. He also testified that although his company handled more than 5,000,000 cases of canned vegetables a year, it shipped only approximately 50 truckloads, which were transported by a number of carriers, and that of the 50 truckloads he could not tell how many were transported under arrangements made by applicant. It should also be pointed out that no motor carriers appeared in support of the application.

In view of the above, we are of the opinion that applicant's operations as a broker will not be consistent with the public interest and the policy declared in section 202 (a) of the Motor Carrier Act, 1935; and that the application should be denied. In view of our conclusions herein, it is not necessary to consider applicant's fitness to conduct the operations.

We find that applicant's operations as a broker will not be consistent with the public interest and the policy declared in section 202 (a) of the act; and that the application should be denied. An appropriate order will be entered.

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On exceptions, applicants contend that testimony of record conclusively proves that 80 percent of the individual applicants' hauling was performed for the general public, and that they held themselves out to the general public as common carriers. The only evidence in support of this contention is a statement by Micale that 20 percent of his hauling was for Syracuse and other carriers and the remaining 80 percent "for himself." Micale has been engaged in the wholesale produce business for a number of years and operates several trucks, one of which is used exclusively in private carriage in connection with his produce business. The record does not indicate whether the hauling "for himself" consisted of private carriage, independent for-hire operations, or both. He testified that he has no documents available to substantiate his hauling for hire, because in 1936 his office was broken into and a portion of his records burned. As he testified that he issued no bills of his own, these records were apparently bills of lading issued by other carriers. His testimony with respect to his past operations consisted of a recital of the names of certain shippers in Syracuse and vicinity whose goods he has transported. It is not clear whether these shippers were served by him in connection with his private produce business, in behalf of another carrier, or as a carrier in his own right. Similarly, it is not dsclosed whether these shippers were served prior to or subsequent to the statutory date, or during both periods. While Micale stated that he published an individual tariff, our records indicate that his only filing with us is a contract-carrier schedule of minimum rates effective April 1, 1936, which is limited by its terms to apply only to "all such commodities, goods, wares, and equipment as are solicited, transported, and handled by the Syracuse Freight Forwarding Co., Inc., and/or its officials and employees." Identical schedules, which were subsequently adopted and canceled by Chief, were filed by Craner and Ferguson.

Syracuse filed an application under the "grandfather clause of section 206 (a) of the act, in No. MC-22334, seeking rights duplicating those here claimed. It was subsequently succeeded by Onondaga Freight Corporation, which has been granted a certificate therefor in Onondaga Freight Corp. Common Carrier Application, 21 M. C. C. 810 and 24 M. C. C. 161.

On these facts, we conclude that all operations performed by the three individuals for Syracuse were performed under its complete direction and control and responsibility to the general public and that the status of each was that of an owner-operator rather than of a carrier in its own right. Under such circumstances no "grandfather" rights by virtue of such operations accrue to Micale, Craner, or Ferguson, or to their successors. The evidence shows that when

however, as applicant's predecessor did not file his application with the Commission on or before February 12, 1936, he is not entitled to "grandfather" rights under section 206 (a) of the Motor Carrier Act, 1935, to continue his operation, and it is necessary to show that such operation is or will be required by the public convenience and necessity.

Applicant has been transporting the commodities named at least twice weekly between St. Louis and the area described. One witness testified that applicant had hauled for him between St. Louis and Grantfork for the past 10 or 12 years. The record shows that several other witnesses were present at the hearing and that if they had been called upon to testify their testimony would have been substantially the same as that of the one who did testify. The territory served by applicant in the vicinity of Grantfork is rural in nature and is located off the main highways. No motor carrier appeared in opposition. The evidence indicates that there exists a public need for continuance of the operations and that applicant is fit, willing, and able to continue them.

We find that public convenience and necessity require operation, in interstate or foreign commerce, by applicant, as a common carrier by motor vehicle, of livestock, grain, live poultry, logs, eggs, and furs, from Grantfork, Ill., and points within a radius of 10 miles thereof, excepting Alhambra, Highland, Marine, Pierron, and Pocahontas, Ill., to St. Louis, Mo., and of general commodities from St. Louis, Mo., to Grantfork, Ill., and points within a radius of 10 miles thereof, excepting Alhambra, Highland, Marine, Pierron, and Pocahontas, Ill., over irregular routes; that applicant is fit, willing, and able properly to perform such service and to conform to the provisions of the act and our rules and regulations thereunder; and that a certificate authorizing such operation should be granted.

Upon compliance by applicant with the requirements of sections 215 and 217 of the act and our rules and regulations thereunder, an appropriate certificate will be issued.

PATTERSON, Commissioner, dissenting:

In my judgment, the record does not sustain the findings of the majority that public convenience and necessity require the proposed operations. The joint board which heard the evidence, and which is familiar with the existing transportation conditions in this territory, was also of the opinion that public convenience and necessity did not require the proposed operations, and it so recommended.

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