ORDER At a General Session of the INTERSTATE COMMERCE COMMISSION, held at its office in Washington, D. C., on the 1st day of September A. D. 1964. No. MC-C-1994 FRAERING BROKERAGE COMPANY, INC., INVESTIGATION OF OPERATIONS No. MC-C-2055 EMMA SHANNON ET AL. INVESTIGATION OF OPERATIONS It appearing, That the above-entitled proceedings were reopened for further consideration by the Commission, by order entered June 18, 1964, following the decision of the Supreme Court of the United States in No. 421, October term, 1963, United States v. Emma Shannon et al. 377 U. S. 311, which affirmed the judgment of the United States District Court for the Western District of Texas, San Antonio Division, in Shannon v. United States, 219 F. Supp. 781 (May 1, 1963), which had set aside the report, 81 M.C.C. 337, and orders of the Commission, entered August 3, 1959, and April 5, 1960, in the second of the above-entitled proceedings; And it further appearing, That the decision of the Supreme Court of the United States referred to in the appearing paragraph next above leaves no alternative to the conclusion that the considered transportation of sugar by the respondents in each proceeding has not been shown to be other than that of private carriers by motor vehicle, for which transportation no authority is required under the Interstate Commerce Act, as amended; and that no useful purpose would be served by the issuance of a Commission report on further consideration discussing the evidence in the light of the applicable law; and good cause appearing therefor: 95 M.C.C. It is ordered, That the investigations in the above-entitled proceedings be, and they are hereby, discontinued. 95 M.C.C. No. MC-1249201 LA BAR'S, INC., COMMON CARRIER APPLICATION Decided August 31, 1964 Public convenience and necessity found to require operation by applicant as a common carrier by motor vehicle, over irregular routes, of specified commodities (1) from Wilkes-Barre, Pa., to Los Angeles, Calif., (2) from designated points in California to WilkesBarre, (3) from Berwick, Pa., to designated points in New York, New Jersey, Delaware, Maryland, Virginia, West Virginia, and Ohio, and (4) from points in Ohio, except points in the Cleveland commercial zone, to Berwick. Issuance of a certificate approved upon compliance by applicant with certain conditions, and application in all other respects denied. John W. Frame for applicant. Francis E. Barrett, Robert H. Griswold, and Daniel W. Rohrbough for protestants. REPORT OF THE COMMISSION DIVISION 1, COMMISSIONERS HUTCHINSON, BUSH, AND BROWN HUTCHINSON, Commissioner: Exceptions to the order recommended by the examiner were filed by applicant. Our conclusions differ from those recommended. By application filed November 14, 1962, as amended at the hearing, La Bar's, Inc., Berwick, Pa., seeks a certificate of public convenience and necessity authorizing operation, in interstate or foreign commerce, as a common carrier by motor vehicle, over irregular routes, of (1) games and toys, playground apparatus, equipment, and paraphernalia from Wilkes-Barre, Pa., to Los Angeles, Calif., (2) materials and supplies used in or useful to the manufacture of games and toys, playground apparatus, equipment, and paraphernalia from Oakland and San Francisco, 1At the hearing, La Bar's, Inc., was substituted as applicant in lieu of James C. La Bar in whose name the application was originally filed. Calif., and points in Alameda, Contra Costa, Marin, San Mateo, and Santa Clara Counties, Calif., to Wilkes-Barre, Pa., (3) fiberboard, paper, paperboard, or plastic milk or food containers, and plastic wax from Berwick, Pa., to points in New York (except points in New York on and north of U. S. Highway 20 and west of New York Highway 13; except points on, south, and east of New York Highway 30, and except points in Chemung, Tompkins, Cortland, and Broome Counties, N. Y.), New Jersey (except points on and north of U. S. Highway 30), Delaware (except the Wilmington, Del., commercial zone), Maryland (except points in Washington, Frederick, Carroll, and Baltimore Counties, and the Baltimore, Md., commercial zone), Virginia, West Virginia, Ohio (except points in the Cleveland commercial zone), and (4) materials or supplies used in or useful to the manufacture of fiberboard, paper, paperboard, or plastic milk or food containers, and plastic wax from the destination territory described in part (3) above to Berwick, Pa. Boston and Rockland Transportation Co., Inc., Boston and Taunton Transportation Company, Capitol Motor Transportation Co., Inc., Cole's Express, Hunnewell Trucking, Inc., M & M Transportation Company, Old Colony Transportation Co., Inc., O'Donnell's Express, St. Johnsbury Trucking Co., Inc., Alvin R. Holmes, doing business as Holmes Transportation Service and/or Jones Express, Gay's Express, Inc., Newburgh Transfer, Inc., Taylor's Express Co., Johnson Motor Lines, P. S. Dubrey Trucking Co., Inc., Hall's Motor Transit Company, and Arrow Carrier Corporation originally opposed the application but withdrew their opposition upon amendment to its present form. The examiner recommended that the application be denied on the grounds of fitness. This conclusion was based on the fact that applicant has recently pleaded guilty to eight counts of operating as a for-hire carrier in interstate commerce without authority therefor. On exceptions, applicant admits its infractions but claims they were innocent, argues that the Commission may at its discretion approve the application, and urges that it do so. The evidence, the examiner's recommendation, and the exceptions have been considered. We find the examiner's statement of facts to be substantially correct in all material respects and adopt it as our own. The application was originally filed in the name of James C. La Bar. Between the time of filing and the hearing, the Pennsyl vania Public Utilities Commission issued a certificate of incorporation creating La Bar's, Inc. At the hearing the examiner granted Mr. La Bar's motion to substitute the corporation as applicant. La Bar proposes to transfer to applicant $9,746.50 in cash and 11 tractors and 17 trailers valued at $116,300 if the application is granted. It will be liable for more than $76,000 in outstanding notes which represent the remainder of the indebtedness for the equipment. La Bar owns a garage located on 4 acres of land in Berwick, Pa. The proposed operation will be conducted from this point. Including the equipment which will be transferred to applicant, La Bar owns 32 trailers, 22 tractors, and 12 trucks. La Bar also owns 90 percent of the stock of Posse Trucking, Inc., a contract carrier authorized to transport (1) such merchandise as is dealt in by wholesale, retail, and chain grocery stores and food business houses and in connection therewith, equipment, materials, and supplies used in the conduct of such business between certain areas in New Jersey, Delaware, and Pennsylvania, and (2) fruits, vegetables, farm products, poultry, and seafood from all points in New Jersey, Pennsylvania, and Delaware to certain areas in the described States. If the authority sought herein is granted, James C. La Bar will control both a contract and a common carrier holding authority from this Commission. Such common control must be approved by the Commission and therefore any grant of authority will be made subject to the filing of an appropriate application under section 5 of the act and subsequent Commission approval thereof. On May 13, 1963, shortly after the hearing herein, La Bar pleaded guilty to eight counts of an information charging that during the period between October 1961 and May 1962 he operated as a for-hire carrier in interstate commerce without there being in force a certificate or permit authorizing such operation. He was fined $100 on each count, a total of $800, which he was required by the court to pay. The basis of this prosecution was a series of transactions which purported to be leases of equipment but which in fact amounted to the performance by La Bar of a complete transportation service without proper authority. There is no evidence that these violations have recurred since that time. DeLuxe Game Corporation supports parts 1 and 2 of the application. At its plant in Wilkes-Barre, Pa., it manufactures small toys and playground equipment, a part of which it ships to a warehouse in Los Angeles for local distribution. In 1962 one |