Salt Lake City as an express company under part I of the Interstate Commerce Act, and that all interstate shipments involved have either an immediately prior or an immediately subsequent movement by rail.

The examiner found that the defendant, an express company, had attempted to extend its intraterminal motor carrier activities at Salt Lake City, by the filing of appropriate tariffs, to an area which exceeded the permissible limits of a "single homogeneous community, identifiable as such by the factors of commercial and industrial integrity, population and business density, and the existence of some reasonably compact limit to the geographical scope of community affairs and influence* * *", Central Truck Lines, Inc. v. Pan-Atlantic S. S. Corp., 82 M.C.C. 395, 404.

On exceptions, defendant states that its defense is not limited to section 202(c)(1), but upon the status of an express company under the act as a whole; that the town of Tooele and the Tooele Ordnance Depot were not served by a single interstate terminal, but that the former was served by defendant's office at Tooele located on the Tooele Valley Railroad, 3 miles east of Tooele, and the latter by its office at Warner located in the railroad station of the Union Pacific Railroad; that the examiner's determination of the extent of defendant's terminal area operations of express traffic in reliance on the limited facts of the Auburn1 decision was premature and improper in view of the reasons given for the Commission's denial of its petition for determination and announcement that that proceeding involved an issue of general transportation importance; that the facts prove, from the standpoint of adequate, efficient, and expeditious express operations and express service, the area involved is wholly within a single, logical, terminal area of the defendant at Salt Lake City; and that, contrary to the examiner's conclusion, the principal issue in this proceeding is the determination of the terminal area of an express company, not the definition of a rail terminal area. It argues that the motor service involved is a bona fide collection and delivery service within the Express Company's published tariff of free collection and delivery limits of Salt Lake City, subject to part I of the act, and that such operations were not an attempt to avoid

Railway Exp. Agency, Inc., Extension-Aubum, Mass., 92 M.C.C. 657. The petition requesting a finding of general transportation importance was denied because of the limited facts of record involving New England type towns, and because a rulemaking proceeding was being developed to determine on an adequate record the broad problems of terminal operations of express companies.

the statutory requirements of the Commission inasmuch as no motor operating authority is required. It urges that the cases relied upon by the examiner are inapplicable to the issue in this proceeding as they pertain to terminal areas of rail, water, or motor carriers, and are not authority for determination of the terminal area of an express company. Defendant also excepts to the examiner's finding that its petition for permission to file a reply to the response of complainant was improper under the Commission's General Rules of Practice. It contends that rule 1.51 provides for this procedure and asks that its tendered reply to the response be accepted and given full consideration. We shall accept defendant's tendered reply.

Complainant replies that the findings and conclusions of the examiner are proper and should be approved by the Commission and that the evidence shows that the operations conducted by the defendant exceed and surpass those contemplated by the Commission in its rules and regulations and are outside the test and rules promulgated by the Commission to determine the extent of a bona fide collection and delivery service.

The evidence adduced, the examiner's recommendations, the exceptions, and the reply thereto have been considered. We shall restate the facts so far as necessary for a determination of the issues involved.

Tooele Ordnance Depot is located approximately 36 miles southwest of Salt Lake City and about 3 miles from the town of Tooele which has a population of around 10,000. Defendant had previously served the depot from its office in the railroad station of the Union Pacific Railroad at Warner, Utah. Because of the heavy type traffic received and forwarded by the depot, considerable difficulty was encountered in loading and unloading the cars, subjecting the Union Pacific trains to delays. Attempts to solve the situation were unsuccessful, and the depot began operating its own motor equipment to and from Salt Lake City. The present operations of defendant are a result of its effort to regain the depot's express traffic and to render adequate service using Salt Lake City, where more frequent train service is available, as a terminal. All traffic received or delivered to the depot by defendant has had either an immediately prior or an immediately subsequent rail movement.

The Oquirrh mountain range separates Salt Lake City from Tooele Ordnance Depot. Motor, as well as rail carriers, operate over routes between the northern tip of the mountain range and the

Great Salt Lake. A few communities lie along the two highways westward from Salt Lake City, U. S. Highway 40 and U. S. Alternate Highway 50, which merge at certain points. The Salt Lake City airport lies on U. S. Alternate 50, about 18 miles from the city, on the eastern side of the mountains. The plants of the Hercules Powder Co. and the Kennecott Copper Company are also located on the eastern side of the mountains. The complainant provides substituted motor for rail service between Salt Lake City and Tooele Ordnance Depot under agreement with the Union Pacific Railroad.

DISCUSSION AND CONCLUSIONS

Our concern in this proceeding is limited by the complaint to motor carrier express service performed by the defendant between Salt Lake City rail terminals and the Tooele Ordnance Depot. The primary issue to be resolved is the extent to which we may control the boundaries of the terminal areas of express companies in the performance of collection and delivery terminal services which are wholly incidental to rail operations. The defendant's contentions are, in effect, that in its performance of terminal operations it is not subject to the motor carrier regulations under part II nor bound by terminals established by the rail carriers under part I, but that it occupies a unique position. It claims it has acquired a status under part I whereby it is entitled to establish its own terminal areas merely by filing tariffs stating the boundaries of the area it desires to serve. Defendant claims the depot falls within the reasonable boundaries of its terminal area. In the Nashua2 case, the Commission discussed at great length the background and history of the enactment of various sections of the Interstate Commerce Act as it pertains to express companies. Therein, the Commission concluded that, prior to the enactment, in 1935, of the Motor Carrier Act (part II of the Interstate Commerce Act), the motor vehicle terminal operations of an express company on shipments having a prior or subsequent rail movement, were subject to part I within the meaning of section 1(3). With the passage of the Motor Carrier Act, all for-hire motor carrier transportation became subject to regulation under part II unless excepted therefrom. Section 203(a)(14) excluded,

2Railway Exp. Agency, Inc., Extension-Nashua, N. H., 91 M.C.C. 311.

by its definition of common carrier by motor vehicle, the interstate operations of an express company to the extent such operations had "heretofore been subject" to part I. We established our part I jurisdiction over express company terminal services performed as an incident to rail service in Express Rates, 1922, 83 I.C.C. 606, and we accepted for filing express tariffs covering terminal services.

Under part I, section 1(6), common carriers are charged with the duty of establishing, observing, and enforcing just and reasonable classifications, regulations, and practices concerning all matters relating to or connected with the receiving, handling, transporting, storing, and delivery of property, and every unjust, and unreasonable classification, regulation, and practice is prohibited and declared unlawful. Corresponding with this duty and prohibition placed on carriers subject to part I, the Commission impliedly received authority to determine the reasonableness of the classifications, regulations, and practices of these carriers. Thus, we must determine whether or not the terminal area as designated by the defendant is reasonable.

We are aware that there is a difference of opinion among those who read the various sections of part I as to whether or not Congress intended to give express companies an independent status permitting them to establish a terminal area separate and apart from that of the railroads. The issue of whether an express company itself may establish the terminal area points or limits at or within which it will provide terminal service for all of its traffic regardless of what type or mode of line-haul transportation is utilized, is one of the matters currently under consideration in Ex Parte No. 242, Express Company Terminal Areas. However, in the instant proceeding we need only decide, using established precedents, whether or not the extension of the Salt Lake City terminal area by defendant to include Tooele Ordnance Depot, is reasonable. Our decision herein should not be construed as any predetermination of the issues in Ex Parte No. 242.

The reasonableness of a terminal area, either of a rail or express company, must be determined by use of substantially the same criteria that we use in establishing motor and water carrier terminal areas so as to regulate fairly and impartially the different modes of surface transportation. The density of the population, the industrial development of the area, as well as the geographical location of boundaries and the distance involved, are all factors to be considered in ascertaining the

reasonableness of a terminal area. The quality of the service rendered is also a factor to be considered. See Collection and Delivery Limits at Harrisburg, Pa., 2811.C.C. 379. Here, there is no dispute that the increased limits of defendant's terminal area have enabled it to render a better service. Nevertheless, the other factors must also be given due consideration. A wide expanse of undeveloped wasteland separates the ordnance depot from Salt Lake City and there does not exist a sufficient homogeneity between the two communities, in terms of geography, population density, or commercial development to justify defendant's action. Accordingly, we conclude that defendant's extension of the Salt Lake City terminal area to include the ordnance depot is unreasonable and the motor carrier operations conducted by defendant between Salt Lake City and Tooele Ordnance Depot constitute unlawful operations in violation of section 206(a)(1) of the act.

FINDINGS

We find that defendant, Railway Express Agency, Inc., of New York, N. Y., has been conducting operations as a motor common carrier in the transportation of property between Salt Lake City, Utah, and Tooele Ordnance Depot, Utah, without appropriate authority and in violation of section 206(a)(1) of the Interstate Commerce Act; and, that an order should be entered requiring defendant to cease and desist and thereafter abstain from such unlawful

operations.

An appropriate order will be entered.

95 M.C.C.