Upon compliance by applicant with the requirements of sections 215, 217, and 221(c) of the act, and with the Commission's rules and regulations thereunder; within the time specified in the order entered concurrently herein an appropriate certificate will be issued. An appropriate order will be entered. 95 M.C.C. NO. MC-119641 (SUB-NO. 43) RINGLE EXPRESS, INC., EXTENSION-PORTS OF ENTRY Decided August 3, 1964 Public convenience and necessity found to require operation by applicant as a common carrier by motor vehicle, over irregular routes, of specified commodities from Kankakee and Bloomington, Ill., to designated ports of entry on the international boundary line between the United States and Canada, subject to a restriction. Issuance of a certificate approved upon compliance by applicant with certain conditions. Robert C. Smith for applicant. Robert D. Schuler for other carriers. REPORT OF THE COMMISSION OPERATING RIGHTS REVIEW BOARD NUMBER 1, MEMBERS BY THE BOARD: Joint exceptions to the order recommended by the examiner were filed by several carriers, 1 whose status will hereafter be discussed, and applicant replied. Our ultimate conclusions do not differ from those recommended. By application filed September 20, 1963, Ringle Express, Inc., of Fowler, Ind., seeks a certificate of public convenience and necessity authorizing operation, in interstate or foreign commerce, 1R. L. Jeffries Trucking Co., Inc., and U.S.A.C. Transport, Inc., hereinafter referred to as Jeffries and U.S.A.C., respectively, Dealers Transit, Inc., Red Top Trucking, Inc., Shea-Matson Trucking Co., and Watson Brothers Van Lines & Heavy Hauling Co., hereinafter referred to, collectively, as exceptants. as a common carrier by motor vehicle, over irregular routes, (1) of silos, knocked down, from Kankakee, Ill., to the ports of entry on the international boundary line between the United States and Canada located at or near Detroit and Port Huron, Mich., restricted to traffic moving to Canadian destinations; and (2) of agricultural machinery and agricultural implements from Bloomington, Ill., to the ports of entry on the international boundary line between the United States and Canada located at or near Detroit and Port Huron, Mich., restricted to traffic moving to Canadian destinations. Morgan Drive-Away, Inc., hereinafter called Morgan, opposes the application. The examiner recommended that the application be granted. Before discussing the contentions of the parties it is deemed advisable to set forth, as background, certain events that occurred at the hearing. The exceptants were not permitted to enter an appearance at the hearing on the grounds that they failed to file timely notice of intention to protest, and the examiner denied their Petition for Leave to Intervene as they had not shown substantial reasons to warrant granting them leave to intervene. The examiner also refused to receive and consider evidence from exceptants as witnesses for Morgan, nor would he consider evidence of McKinley Transport, a Canadian motor carrier, hereinafter called McKinley. However, in an effort to preclude a further hearing in this proceeding, the examiner permitted Morgan by its counsel to develop evidence for the record through exceptants' and McKinley's witnesses for consideration in the event the Commission should determine that the examiner erroneously refused to consider such evidence. Whereupon, counsel for exceptants waived, in the circumstances, any right they might have to a further hearing. On exceptions, the exceptants contend that the examiner erred (1) in rejecting their appearances as protestants pursuant to their notice of intention to protest or as interveners under their petition for intervention and (2) in refusing to admit their testimony in support of Morgan and permit them to develop it through their own counsel. Additionally, they urge several exceptions with regard to the examiner's finding that a public need exists for the proposed service. In reply, applicant asserts that the examiner correctly refused to permit exceptants to appear as parties, that their testimony was in their own behalf and not in support of Morgan and accordingly should be disregarded, and that the examiner's findings are adequately supported by the evidence and should be approved. The evidence adduced, the examiner's recommendation, the exceptions, and the replies have been considered. We find the examiner's statement of facts to be correct in all material respects and we adopt it as our own. Certain facts will be re stated for clarity of discussion. Notice of the filing of this application and assignment of same for hearing on December 6, 1963, was published in the Federal Register on October 23, 1963. On November 27, 1963, 9 days before the date of hearing, a telegram was sent by Associated Heavy Specialized Carriers to applicant's representative advising that Dealers Transit, Inc., et al, would appear at the hearing as protestants, which telegram was delivered on November 29. Applicant's representative also received, on November 29, a letter of protest, dated November 27, from such association, naming exceptants as protestants in this proceeding. Upon the examiner's refusing to permit them to appear, the exceptants filed a written Petition for Leave to Intervene alleging "That during the period immediately preceding November 27, 1963, representatives of said carriers were attending a conference meeting in Miami, Florida, and were not in a position to give full consideration to such things as filing protests to I.C.C. applications" and that "applicant has not indicated any surprise on receiving notice shorter than the ten-day period and would thus not be prejudiced by the right of these parties to intervene.” Exceptants were not permitted by the examiner to participate in any respect as parties in this proceeding. Morgan, the sole qualified protestant at the hearing, opposed part (1) of the application relating to the transportation of silos, and has no interest in the transportation of agricultural machinery and implements under part (2) of the application. It did not have a representative testify but introduced into evidence an exhibit reflecting its certificated motor common carrier authority. It called representatives of Jeffries, U.S.A.C., and McKinley, as witnesses, and offered their testimony and exhibits into evidence in opposition to the entire application, which evidence was rejected by the examiner. Morgan has not interchanged the involved traffic with any of the exceptants. It is noted that Morgan has not filed exceptions herein. In order to dispose of the issues in this proceeding, we will assume, without deciding, that we can consider exceptions filed by persons not parties to this proceeding. Special Rule 1.241(c)(1) of the General Rules of Practice governs the filing of protests to applications such as involved here and states that a person may become a party protestant provided he has notified the applicant and the Commission of his intention to protest by letter or telegram dispatched so as to reach applicant's representative at least 10 days prior to the date of hearing. The considered notices of protest, having been dispatched 9 days prior to the date of hearing, on their face do not comply with the rule, and the examiner properly refused to permit exceptants to appear as protestants in view of their failure to file timely notice of intention to protest. See Carl Subler Trucking Inc., Extension— Citrus Juices, 78 M.C.C. 707, 709. Special Rule 1.241(c)(2) provides that without prior notice of intent to oppose, a person will not be permitted to intervene in the proceeding except upon a showing of substantial reasons. It is our view that attendance at a conference meeting by exceptants' representatives with any resulting interruption in their office procedures is not a good excuse for noncompliance with the rule as to notice. It was in the examiner's discretion to deny the petition of exceptants, and we do not believe such action should be interfered with under the circumstances here present. See Martin Extension-Lincoln County, Tenn., 76 M.C.C. 439, 440. Morgan called, as witnesses, representatives of Jeffries, U.S.A.C., and McKinley, motor common carriers, and through its counsel offered such carriers' testimony and exhibits as to their authority, willingness, and ability to perform the service proposed under parts (1) and (2) of the application. Under the circumstances here, we are of the opinion that such carriers were Morgan's witnesses and testified in Morgan's behalf although such testimony was also in their own interest. Rule 1.241(c) does not apply to persons other than parties and does not limit the type of evidence which a qualified party to the proceeding may present. The fact that such carriers are operating and consider themselves able to fulfill all or a portion of the shipper's transportation requirements is relevant to the issues involved on behalf of Morgan and may be put in evidence by it as a qualified protestant as rebuttal evidence. However, Morgan appeared in opposition only to part (1) of the application involving authority to transport silos, and, accordingly, the evidence offered through Jeffries, U.S.A.C., and McKinley was relevant only to the extent that it supported Morgan in such opposition. The failure of Morgan's own representative to testify has no bearing on the admissibility of the considered evidence as the testimony of carrier witnesses is not limited to 223-631 O-67-40 |