and no reason for existence. The certificate as issued, like the certificate of Midnite which preceded it, must speak for itself and must be taken at face value. Clearly, we cannot as the complaining carriers would have us do, go back of the certificate and cut it down by construction on the theory that it grants too much. Compare Campbell Sixty-Six Exp., Inc., v. Frisco Transp. Co., 46 M. C. C. 222. A certificate granting certain rights including those described above, is outstanding and has been since December 30, 1946, and there is no evidence that the issuance thereof was through fraud or inadvertence.

Except to the extent it seeks an interpretation of the consolidated certificate, the considered petition will be denied. An appropriate order will be entered.

49 M. C. C.

OMAHA & COUNCIL BLUFFS RAILWAY & BRIDGE COMPANY COMMON CARRIER APPLICATION

Submitted June 28, 1949. Decided July 8, 1949

1. In No. MC-57037 (Sub-No. 2) public convenience and necessity found to require operation by applicant as a common carrier by motor vehicle of passengers and their baggage and of mail in the same vehicle with passengers between Omaha, Nebr., and Council Bluffs, Iowa, over regular routes. Issuance of certificate approved upon compliance by applicant with certain conditions, and application in all other respects denied.

2. In Nos. MC-110304 (Sub-No. 1) and MC-110238 (Sub-No. 1) public convenience and necessity found not to require operation by applicants, respectively, as common carriers by motor vehicle of passengers (and in respect of the former of baggage and mail in the same vehicle with passengers), between Omaha and Council Bluffs over regular routes. Applications denied.

Addison G. Kistle for applicant in No. MC-110304 (Sub-No. 1). Oscar E. Johnson and Ralph E. Svoboda for applicant in No. MC57037 (Sub-No. 2).

James G. Wilson, Edward J. Shoemaker, and Donald C. Baird for applicant in No. MC-110238 (SubNo. 1) and for intervener in opposition to applications Nos. MC-57037 (Sub-No. 2) and MC-110304 (Sub-No. 1).

Oscar E. Johnson, Ralph E. Svoboda, and Addison G. Kistle for protestants in No. MC-110238 (Sub-No. 1).

REPORT OF THE COMMISSION

DIVISION 5, COMMISSIONERS LEE, ROGERS, AND CROSS

BY DIVISION 5:

The three applications embraced herein were heard on a consolidated record and were the subject of a single report and recommended order, the parties agreeing that the evidence offered by them severally should be considered as pertaining to each application. Since related issues are involved, the applications will be disposed of in one report. Exceptions to the order recommended by the joint board were filed by applicant in No. MC-110238 (Sub-No. 1), to which a protestant

1 This report also embraces No. MC-57037 (Sub-No. 2) Omaha & Council Bluffs Street Railway Company Common Carrier Application, and No. MC-110238 (Sub-No. 1) Council Bluffs Transit Co. Common Carrier Application.

replied, and by applicant in No. MC-57037 (Sub-No. 2), to which intervener replied. Our conclusions differ from those recommended.

By application No. MC-110304 (Sub-No. 1), filed August 20, 1948, Omaha & Council Bluffs Railway and Bridge Company, a corporation, hereinafter called the Bridge Company, of Council Bluffs, Iowa, seeks a certificate of public convenience and necessity authorizing operation, in interstate or foreign commerce, as a common carrier by motor vehicle of passengers and their baggage, and of newspapers and mail in the same vehicle with passengers, between Omaha, Nebr., and Council Bluffs, over the routes set forth in the appendix hereto.

By application No. MC-57037 (Sub-No. 2), filed August 19, 1948, Omaha & Council Bluffs Street Railway Company, a corporation, hereinafter called the Street Car Company, of Omaha, seeks a certificate of public convenience and necessity authorizing operation, in interstate or foreign commerce, as a common carrier by motor vehicle of passengers and their baggage, and of newspapers and mail in the same vehicle with passengers, between Omaha and Council Bluffs, over the routes set forth in the appendix hereto.

By application No. MC-110238 (Sub-No. 1), filed August 20, 1948, Council Bluffs Transit Co., a corporation, hereinafter called Transit, of Council Bluffs, seeks a certificate of public convenience and necessity authorizing operation, in interstate or foreign commerce, as a common carrier by motor vehicle of passengers between Omaha and Council Bluffs, over the Douglas Street Bridge and unspecified city

streets.

Transit opposes the applications of the Bridge Company and Street Car Company, and the latter in turn oppose the application of Transit.

GENERAL

Applicants herein each seek authority to engage in intercity operations between Omaha and Council Bluffs in the performance of a socalled mass transportation service. Omaha and Council Bluffs are continguous municipalities separated by the Missouri River. The two cities are in a single commercial zone. They are physically connected by the Douglas Street Bridge, known also as the Aksarben Bridge. However, since it is conceded that none of the applicants holds intrastate authority to operate over the entire length of the routes here sought, the proposed operations do not fall within the purview of section 203 (b) (8)2 of the Interstate Commerce Act, and certificates

Section 203 (b) (8) provides that except for the provisions relative to qualifications, maximum hours of service of employees, and safety of operation or standards of equipment, the provisions of part II of the Interstate Commerce Act shall not be construed to include "the transportation of passengers or property in interstate or foreign commerce wholly

from this Commission are therefore required for the performance of the proposed interstate services.

Omaha has a population of about 255,000 and Council Bluffs an estimated population of 42,000. A large percentage of the residents of the latter city are employed in Omaha and, together with others who shop or visit there, commute to and from Omaha daily, the movement to Omaha predominating in the early morning hours and in the reverse direction to Council Bluffs in the late afternoon hours. The Douglas Street Bridge was built by the Bridge Company in 1889. It was subsequently sold to AK-Sar-Ben, an organization having as its purpose the promotion of the growth of Omaha, and title later passed jointly to the States of Iowa and Nebraska. The only public transit service available for many decades within Council Bluffs and between that city and Omaha was street-railway service. This service was initially provided by the Bridge Company and several other transit lines, but by 1897 the latter were absorbed by the Bridge Company which was granted a 50-year franchise by the city council of Council Bluffs and the latter became the sole carrier providing transit service locally within Council Bluffs and across the bridge into Omaha. In January 1903 the Bridge Company entered into a lease agreement with the Street Car Company whereby the latter in consideration of a $60,000 per year rental took over and subsequently conducted the described operations as lessee until December 7, 1947, on which date the lease and the Bridge Company's franchise both expired. In anticipation of the expiration of the franchise, the Bridge Company in August 1947 prepared and submitted a proposed new franchise to the city council and other interested city officials of Council Bluffs. This, however, was rejected by the city authorities and in lieu thereof the city council offered the Bridge Company its own prepared franchise. This the Bridge Company in turn refused to accept because it interpreted the proposal as giving the city council an unappealable right in its discretion to declare the franchise forfeited, to control the rates to be charged, and to prescribe the routes to be traversed. Because of the approaching expiration of the franchise and in order to prevent a cessation of needed service, the Bridge Company, at the city council's

within a municipality or between contiguous municipalities or within a zone adjacent to and commercially a part of any such municipality or municipalities, except when such transportaton is under a common control, management, or arrangement for a continuous carriage or shipment to or from a point without such municipality, municipalities, or zone, and provided that the motor carrier engaged in such transportation of passengers over regular or irregular route or routes in interstate commerce is also lawfully engaged in the intrastate transportation of passengers over the entire length of such interstate route or routes in accordance with the laws of each State having jurisdiction."

The 1948 edition of Rand-McNally Road Atlas gives the population of Council Bluffs as 46,000.

request on November 10, 1947, entered into an interim agreement to continue the existing service beyond the expiration of the franchise and pending negotiation for the issuance of a new franchise. The Street Car Company's lease of the operating right expired as scheduled December 6, 1947, and it thereafter continued the described urban and interurban service as agent of the Bridge Company pursuant to a management contract. Subsequently on May 14, 1948, the city council offered the Bridge Company a new franchise. This was formally rejected by the Bridge Company on June 12, 1948, for reasons substantially similar to those which prompted its rejection of the previous offer and for the additional reason that it would entail a capital outlay of about $550,000 for the acquisition of bus equipment without, in the opinion of the Bridge Company, affording a reasonable opportunity for a profit. Following a further exchange of correspondence, the Bridge Company on July 24, 1948, proposed a new franchise providing for the operation of an all-bus service in lieu of street cars. The city council, presumably rejecting the proposal, instead issued the franchise to Transit. Transit commenced operation under the franchise September 15, 1948, and the Bridge Company and its agent, the Street Car Company, on the same date discontinued their operation in Council Bluffs pursuant to notice to do so from the city council. The legality of the franchise issued Transit was questioned by the Bridge Company, and at the time of the hearing herein was the subject of litigation in a district court of Iowa. That court, in an opinion and decree rendered since the hearing (which was made a part of the record herein upon petition of Transit) has held the franchise valid and the matter is now pending in the State Supreme Court.

4

On September 3, 1948, we granted the Bridge Company and Transit, respectively, temporary authority to operate for 180 days as motor common carriers of passengers, in interstate or foreign commerce, between Omaha and Council Bluffs over U. S. Highway 75 and unspecified city streets. At the same time we denied an application of the Street Car Company, for similar temporary authority, but authorized the Bridge Company to enter into an agency or management agreement with the Street Car Company for the performance by the latter of the temporary operations in the name of the Bridge Company and under its responsibility to the passengers and to the general public. Transit commenced operations under its temporary authority September 15, 1948, the same date it instituted intracity service within Council Bluffs pursuant to the franchise issued by the City Council. The Bridge Company, allegedly in order to avoid a threatened arrest

By subsequent order this authority was extended so as to be effective until final disposition of these proceedings.