shipments from 1 consignor to the same consignee at 10 destinations would require approximately the same type of less-thantruckload service as 10 aggregated shipments from 1 consignor to different consignees at 10 destinations. The principle upon which the division concluded in the last-cited [Barbour] proceeding that the service was without the scope of authority to transport truckloads is that the consignor would receive 'less-than-truckload service in respect of each of the separate consignments."" 51 M.C.C. 112, 116.

Division 2 also had occasion to consider the restriction in SWF's authority in Various Commodities, Southwest Freight Lines, 51 M.C.C. 205. There SWF proposed so-called pool truckload rates whereby one consignor would ship from 1 loading point on 1 day on 1 bill of lading freight consigned to 4 or more, but not to exceed 10 consignees at the same destination, city, or town. It will be noticed that SWF's present practice is but a slight modification of this former proposal which was then viewed as a specious attempt to characterize an aggregation of shipments billed to between 4 and 10 consignees as a single shipment. Granting that such an aggregation would be a single shipment, so far as the carrier is concerned, if the entire load were moved from one consignor to one consignee, the division stated:

But where, as here, the component parts of the shipment are consigned to different consignees, as plainly contemplated by the respondent's item, the theory or fiction of a single shipment is violated. The shipment is not a consolidated truckload shipment, but is in fact an aggregation of less-thantruckload shipments, just as much as if separate bills of lading were issued for each consignee. We need not here decide whether the respondent, under its authority to perform transportation in truckload lots, may perform splitdelivery or distribution services at destination on truckload shipments consigned from one consignor to one consignee. The only question here is whether the respondent's pool-truckload rule, permitting consignments for as many as 10 separate consignees to be aggregated and shipped at the truckload rate plus an additional charge, is the performance of transportation other than in truckload lots, in violation of the respondent's restricted operating rights. We conclude that it is.

Faced with this clear advice that its method of operation was not authorized by its certificate, SWF sought to change not the operation itself but the form under which the identical service could be offered. Noting that division 2 in the Various Commodities. case supra, did not decide the lawfulness of split-delivery or distri

bution services at destination on truckload shipments consigned from one consignor to one consignee, SWF contends that this novel question is now presented by the facts in this proceeding. To the contrary, however, the evidence establishes beyond question the parity among recipients of the involved freight. Thus the designation of only one recipient as consignee cannot convert the others into agents who receive split shipments for that consignee. Similarly, when more than one customer of the consignor receives freight within a single destination city or town, the second delivery cannot properly be termed a distribution service for the named consignee. In each instance each individual customer has received "less-than-truckload service in respect of each of the separate consignments." The preparation of only one bill of lading for the entire movement cannot affect the lawfulness of the service performed under a "truckload lots" restriction, and we so hold. The service performed by SWF, therefore, is outside the scope of its certificate and is unlawful. In view of the prior exhaustive consideration which SWF's authority has received, and of the specific holdings made in those proceedings, we conclude that the service under consideration here was not performed under color of right, and, in view of our further conclusions below, that SWF should be ordered to cease and desist from its perform

ance.

In the Various Commodities, case supra, wherein SWF's authority was interpreted at length in 1949, division 2 remarked:

If the respondent believes the restriction is incorrectly imposed, it has recourse to other appropriate proceedings for modification of its certificate.

Nevertheless, a petition for such modification was not filed until after the institution of the investigation proceeding in 1960. The reasons advanced for reopening of the "grandfather" proceeding and modification of the restriction imposed therein are not convincing. SWF's predecessor did not object to the restriction and, in fact, appears from the record in that proceeding to have sought its inclusion in his resulting certificate. Its existence, moreover, was a factor in the Commission's approval of the purchase proceeding whereby the authority was acquired by SWF.5 SWF offers here no documentary evidence relating to the nature of the operations conducted by its predecessor, such documents having been

5 See the report in No. MC-F-3551, Southwest Freight Lines, Inc.-Purchase

Brooks 50 M.C.C. 808 (not printed in full), decided April 21, 1948.

destroyed. Instead, it seeks to establish its position through the recollection of witnesses formerly connected with or familiar with operations of the "grandfather" applicant. Such evidence has been found insufficient to establish the bona fides of a claimed operation. See Traveler's M. Freight, Inc.-Def. of Truckloads Only, 83 M.C.C. 613, and Niagara Frontier Transit System, Inc., Com. Car. Applic., 61 M.C.C. 15. The Commission's policy was stated in Newsom Trucking Co., Inc., Common Carrier Application, 71 M.C.C. 663, that "grandfather" clause rights which were determined many years ago should not be modified except where there is definite and positive evidence that a miscarriage of justice has occurred. Accordingly, sufficient reason not having been presented, the petition for reopening and modification of certificate should be denied.

We have already observed that a "truckload lots" restriction is seldom imposed, and then only with reluctance. But where such a restriction already exists, the Commission has declined to remove it without proof of a real need for the resulting service. Traveler's M. Freight, Inc.-Def. of Truckloads Only, supra; compare Film Transport Co. Ext.-Elimination of Restriction, 71 M.C.C. 734.

In the application proceeding now before us 28 substantial shippers of a wide variety of commodities from and to the points involved require stopoff or split-delivery service on a portion of their traffic. Most ship to points throughout the five States involved, and they wish to have single-line service available to each destination. They have made use of the service afforded by SWF for a number of years under the single bill of lading arrangement described above, have found it to be satisfactory, and desire its continuance. One shipper, Morton Frozen Food Division of Continental Baking Company, of Webster City, Iowa, complains generally that other carriers have not provided service when requested, but the record does not disclose the nature of any specific complaints from this or any other shipper.

Protestants include both regular- and irregular-route common carriers, and, though no single protestant is authorized to serve every point in the six States involved, their operations taken together encompass the entire territory. A few protestants do not handle shipments under refrigeration, and certain other carriers, particularly CF and Campbell Sixty-Six Express, Inc., attempt to limit their service as to a number of points in one or more of the States involved. Collectively, however, protestants

operate sufficient equipment, maintain terminals throughout the territory, and have shown their willingness and ability to handle additional traffic.

Shippers require, essentially, a less-than-truckload service, and they desire the continuance of the satisfactory service heretofore rendered unlawfully by SWF. The record, however, is devoid of specific complaints respecting the services offered by the 45 protestants whose operations blanket the territory; and in the absence of such deficiencies in available service, a new grant of authority would not be warranted.

A restriction similar to that involved herein was removed in a section 206 proceeding in Bowman Transp., Inc., ExtensionFive Point Authority, 92 M.C.C. 651, upon remand from a district court decision,6 which held that that applicant's prior unlawful operations were conducted in good faith and should be considered as evidence of need for the proposed service. The facts in the instant proceeding preclude such a finding. In the Bowman case two examiners and a division of the Commission disagreed as to the meaning of the restriction contained in Bowman's authority. Here the prior decisions involving the operations of SWF itself were consistent and unequivocal, were emphasized by the subsequent decision in the Traveler's case, supra and must be approved herein. The transportation performed by SWF, not being performed in good faith under color of right, is not admissible as evidence of a need for service. Even if it should be held to constitute such evidence, it could not, in our opinion, outweigh the unquestioned availability of 45 existing carriers who offer the same service without complaint from the shipping public. We conclude, therefore, that SWF has not satisfied its burden of proving that public convenience and necessity require the proposed service, and that the application must be denied.

In No. MC-C-3119, we find that respondent Southwest Freight Lines, Inc., of Kansas City, Kans., has been engaged in the transportation of property for compensation, in interstate or foreign commerce, in less-than-truckload lots; that such service is beyond the scope of respondent's certificates of public convenience and necessity and in violation of section 206(a) of the Interstate Commerce Act; and that an order should be entered requiring it to cease and desist from all such operations. 6Bowman Transp., Inc., v. United States, 211 F. Supp. 354 (N. D. Ala. M.D. 1962).

In No. MC-29566, we find that the evidence fails to establish a basis for reopening of the "grandfather" proceeding in No. MC-29566, or to establish that the certificate of public convenience and necessity issued pursuant thereto should be modified in any way; and that the petition therefor should be denied. In No. MC-29566 (Sub-No. 67), we find that applicant has failed to establish that the present or future public convenience and necessity require the proposed operations; and that the application should be denied.

An appropriate order will be entered requiring respondent to cease and desist forthwith, and hereafter to refrain and abstain from engaging in operations, in interstate or foreign commerce, of the character found in this report to be unlawful; and denying the petition and the application.

COMMISSIONER HERRING did not participate.

95 M.C.C.