motor vehicle, in interstate or foreign commerce, over irregular routes, of wrecked, disabled, and repossessed motor vehicles, by use of wrecker equipment only, (1) between Glen Dale, W. Va., on the one hand, and, on the other, points in that part of Ohio lying on, east, and south of a line beginning at the Ohio-West Virginia State line at Pomeroy, Ohio, and extending over U. S. Highway 33 to its junction with Ohio Highway 13 at or near Chauncey, Ohio, thence over Ohio Highway 13 to its junction with Ohio Highway 93 approximately 3 miles south of Milligan, Ohio, thence over Ohio Highway 93 to Zanesville, Ohio, thence over Ohio Highway 60 to its junction with Ohio Highway 16 near Trinway, Ohio, thence over Ohio Highway 16 to Coshocton, Ohio, thence over Ohio Highway 76 to Wooster, Ohio, thence over Ohio Highway 3 to Medina, Ohio, thence over Ohio Highway 18 to Youngstown, Ohio, and thence over U. S. Highway 422 to the Ohio-Pennsylvania State line, and (2) between Glen Dale, W. Va., on the one hand, and, on the other, points in that part of Pennsylvania lying on, west, and south of a line beginnning at the Pennsylvania-Maryland State line approximately 5 miles south of Salisbury, Pa., and extending over U. S. Highway 219 to Johnstown, Pa., thence over Pennsylvania Highway 56 to Homer City, Pa., thence over U. S. Highway 119 to Indiana, Pa., and thence over U. S. Highway 422 to the Ohio-Pennsylvania State line; that applicant is fit, willing, and able properly to perform such service and to conform to the requirements of the Interstate Commerce Act and to the Commission's rules and regulations thereunder; that a certificate authorizing such operations should be granted; and that the application in all other respects be denied.

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.

1. That issuance of a declaratory order is authorized under section 5(d) of the Administrative Procedure Act;

2. That petitioner's permit which authorizes service to certain counties in Virginia embraces authority to serve independent cities located the rein.

J. K. Murphy for petitioner-applicant.

REPORT OF THE COMMISSION

DIVISION 1, COMMISSIONERS HUTCHINSON, WEBB, AND TIERNEY

WEBB, Vice Chairman:

By petition dated March 8, 1963, published in the Federal Register June 5, 1963, Carolina-Virginia Courier, Inc., of Charlotte, N. C., seeks a declaratory order under section 5(d) of the Administrative Procedure Act respecting its right to engage in the transportation of property, in interstate or foreign commerce, to independent cities located within the boundaries of Virginia counties to which service is authorized and to independent cities which have common boundaries with said Virginia counties. Alternatively, petitioner seeks an order modifying its permit No. MC-123486 (Sub-No. 3), which would authorize such service. No replies were filed.

A brief summary of the matters which prompted the filing of this petition will be helpful to a full understanding of the issues involved. On August 10, 1963, petitioner was issued a permit in an unopposed application proceeding which authorized it to engage in operations as a motor contract carrier over irregular routes in the transportation of

95 M.C.C.

Exposed and processed film and prints, complimentary replacement film, incidental dealer handling supplies and advertising literature moved therewith, (excluding motion picture film used primarily for commercial theater and television exhibition), between Washington, D. C., and Richmond, Va., on the one hand, and, on the other, points in Bedford, Nottoway, Montgomery, Pittsylvania, Southampton, Rockbridge, Campbell, Henry, Dinwiddie, Pulaski, Roanoke, Augusta, and James City Counties, Va.

RESTRICTION: The operations authorized herein are limited to a transportation service to be performed, under a continuing contract, or contracts, with Eastman Kodak Company, of Rochester, N. Y.

Following issuance of the permit, petitioner provided service for Eastman Kodak Company to points in all of the counties authorized, including all independent cities encircled by the boundaries of those counties and some independent cities having common boundaries with those counties. In January 1963, however, petitioner became aware of the fact that certain Virginia cities are legally independent of the counties which surround them or to which they are contiguous. This fact was verified by petitioner's communications with the city clerks of Danville, Lynchburg, Petersburg, Radford, Staunton, and Williamsburg.

This petition was then filed under section 5(d) of the Administrative Procedure Act to clarify and to remove any uncertainty with regard to the involved permit. Section 5(d) provides that an agency "is authorized in its sound discretion, with like effect as in the case of other orders, to issue a declaratory order to terminate a controversy or remove uncertainty." The Commission's power to issue declaratory orders in proceedings of this nature is well established. 1 Davis, Administrative Law Treatise, sec. 4.10 (Supp. 1963). Independently of the power conferred by section 5(d) of the Administrative Procedure Act, however, the Commission is authorized to entertain petitions seeking an interpretation of certificates or permits. Atlantic Frt. Lines, Inc.-Petition for Declaratory Order, 51 M.C.C. 175, 185.

The primary issue here is whether the scope of the territorial authority to serve "points in' named Virginia counties embraces the right to serve those independent cities located wholly within the outer geographical boundaries of such counties or contiguous thereto. Under ordinary rules of construction the permit must speak for itself. As the Commission, division 1, said in T. I. McCormack Trucking Co., Inc.-Investigation, 89 M.C.C. 5, 9:

95 M.C.C.

In the absence of patent ambiguity, the Commission refuses to consider extraneous matters, including the record which gave birth to the certificate in question. Sims M. Transport Lines, Inc., Revocation of Certificate, 66 M.C.C. 553. And this rule is followed regardless of whether the practical result is to confer upon the carrier more or less authority than may have been intended to be granted originally. Compare Coastal Tank Lines, Inc., v. Charlton Bros. Transp. Co., Inc., 48 M.C.C. 289, 302, with A.C.E. Transp. Co., Inc., Interpretation of Certificate, 67 M.C.C. 427.

Incorporated communities of Virginia are classified as towns and cities. A town is politically a part of the county in which it is situated. But a city, unlike a town, is a political entity separate and distinct from the county. The interpretive issue in this proceeding is one of first impression.

Essentially, the issue before us is whether a grant of authority to serve "points in" named counties in Virginia refers to points which are within the political jurisdiction of said counties, or whether such a grant should be interpreted in the light of highway maps, atlases, and other generally available references on geographical information. Either interpretation would be consistent with the dictionary meaning of "points in." However, a politically oriented guide to interpretation would produce some absurd results and would be contrary to the common experience of applicants, practitioners, and the Commission in framing grants of motor carrier operating authority.

It is almost beyond belief that a film carrier would seek authority to serve points in Roanoke County, for example, but not Roanoke. The population of Roanoke is considerably larger than that of Roanoke County, the disparity in terms of market importance is even greater.

Furthermore, the exclusion of independent cities from the scope of the petitioner's permit, by logical extension, would result in wholesale atomization of operating authority. For example, all carriers holding authority to serve points in named States or counties would be denied the right to provide service to national parks and military bases. These areas are largely independent of the political control of State and local agencies of government. And finally, interpretation of the petitioner's permit by any political control test would do violence to the fact that applicants, practitioners, supporting shippers, the Commission, and the Commission draftsmen of certificates and permits are not political scientists. All of these parties consult highway maps, atlases, and other standard geographical references in dealing with grants of

operating authority. It would be strange, indeed, if the petitioner, having sought and received authority to serve Henry and Augusta Counties, could not serve the respective county seats, Martinsville and Staunton, because of their independent-city status.

The cities, which petitioner believes it is authorized to serve, fall into two categories. In the first category are the cities of Buena Vista, Danville, Martinsville, Roanoke, and Staunton and Waynesboro, which are within the outer geographical boundaries of the counties of Rockbridge, Pittsylvania, Henry, Roanoke, and Augusta, respectively. In the second category, are the cities of Lynchburg, Petersburg, Radford, and Williamsburg which are surrounded by more than one county, but which, nevertheless, appear in standard geographical references to be located in one of the counties petitioner is authorized to serve: Campbell, Dinwiddie, Montgomery, and James City Counties, respectively. For purposes of practical geographical description all of these cities are considered to be "a city in the county." For example, in 15 Collier's Encyclopedia 603 (1952), Petersburg is described as "a city in Dinwiddie Co. *

We conclude, therefore, that petitioner's operations to the cities within the authorized counties are authorized by its permit. However, we are unable to grant the petition insofar as it seeks a ruling that would interpret the county-wide authority as embracing all cities "having a common corporate boundary with the authorized Virginia counties." Such a broad interpretation would confer a windfall of authority upon the petition which it apparently does not seek. For example, the city of Newport News has a common boundary with James City County, which petitioner is authorized to serve. However, the petitioner has never provided service to Newport News and apparently does not seek to do so. Although Newport News, like the other independent cities involved herein, has a common boundary with an authorized county, reference to a standard geographical reference work would not even remotely suggest that Newport News is a "point in" James City County.

We find that the operations described under which petitioner serves the cities of Buena Vista, Danville, Lynchburg, Martinsville, Petersburg, Radford, Roanoke, Staunton, Waynesboro, and Williamsburg, are authorized within the authority granted to petitioner in permit No. MC-123486 (Sub-No. 3).

The petition for a declaratory order construing or interpreting petitioner's permit is satisfied by the foregoing. No order is necessary.