and one-half million pounds was shipped to that point. From that portion of California listed in part 2 of the application, it receives, twice yearly, from five to eight carloads of redwood and white pine. This lumber is used in the production of its merchandise. These inbound shipments are presently moving by rail. This arrangement is not satisfactory because of the fact that the shipper's plant is not located on a rail siding. Consequently the lumber has to be loaded onto trucks and hauled to the shipper's plant site. This extra handling causes inconvenience and frequent damage to the lading. Rail service is also undesirable in outbound shipments for much the same reason together with the fact that from 14 to 21 days is required to effect delivery. The time in transit can be cut to about 6 days through use of the proposed service. The shipper has been conducting private carriage operations in equipment leased from James C. La Bar, but it prefers the use of for-hire service to points west of the Mississippi River.

Berwick Fabricating Company of Berwick, Pa., supports parts 3 and 4 of the application. This company produces Pure-Pack milk cartons which it sells and delivers to small dairies. In 1962 it shipped about 800 truckloads, the aggregate weight of which amounted to about one million six hundred thousand pounds. The vast majority was transported via its private carriage operations. The shipper has shown a present need for outbound service to most points in the destination territory with a few exceptions hereafter noted and a future need into Ohio to which it is in the process of expanding its marketing area. It requires multiple delivery service because most of its customers cannot accommodate truckload shipments. It also needs the inbound transportation of the raw materials necessary to its operation. This consists mostly of virgin paper products and Kraft paper. It estimates that from 10 to 12 loads per month will be required. It is presently receiving raw material only from Ohio so far as this application is concerned, but service from all destination points listed in part 3 of the application would be convenient to it.

While operation without proper authority is by no means to be condoned, we are not prepared to conclude that the unlawful operations involved in this case render applicant unfit, within the meaning of section 207 of the act, to conduct the proposed service. La Bar insists that his violations were innocent and the fact that his prosecution grew out of unlawful leasing arrangements, a refinement of Commission policy that laymen might

not understand, suggests that this might be the case. In any event we think his cooperative attitude reflected by his compliance to Commission policy since his prosecution entitles him to a finding of fitness.

Nor does the fact that Mr. La Bar is the principal owner of a contract carrier holding authority to offer service to part of the territory involved here, stand in the way of our granting such authority as is shown to be needed. This is true because the same shippers will not be served by both a common and a contract carrier. What is contemplated by part 3 of the instant application is the transportation of empty milk containers to dairies whereas the permit presently held by Posse Trucking, Inc., authorizes the transportation of equipment, materials, and supplies used in storing and transporting such merchandise as is dealt in by wholesale, retail, and chain grocery stores and food business houses, but only in connection with the conduct of such businesses. The distinct nature of the two transportation services thus does not create the mischievous situation against which section 210 of the act was directed.

The service proposed by parts 1 and 2 of the application would greatly expedite DeLuxe's outbound shipments and facilitate its inbound shipments. These two parts should be granted in full. The testimony of the Berwick Company establishes a present or definite future need for service to all territories sought in the application with the exceptions of Virginia and West Virginia. With respect to the latter there is no concrete evidence of a need except to Morgantown. In Virginia the shipper has been marketing to such points as Norfolk, Hampton, Newport News, and no farther west than Richmond. Accordingly, a grant of authority to points in Virginia on or east of Interstate Highway 95 should be sufficient to meet the present and foreseeable needs. The prospect of future need of service to points other than those described in Virginia and West Virginia is so vague and speculative that it does not form the basis for a grant of operating rights. On the other hand the shipper is active in the process of expanding its market area into Ohio and for this reason we think a grant of authority to that State, to the extent such authority is sought, is warranted. Finally as regards part 4 of the application, the evidence establishes a need for inbound service only from Ohio. A shipper's mere desire for more authority than it has definite plans to use is not sufficient grounds to grant such additional authority.

We find that the present and future public convenience and necessity require operation by applicant, in interstate or foreign commerce, as a common carrier by motor vehicle, over irregular routes, of (1) games and toys, playground apparatus, and equipment from Wilkes-Barre, Pa., to Los Angeles, Calif.; (2) materials and supplies used in the manufacture of games and toys, playground apparatus, equipment, and paraphernalia from Oakland and San Francisco, Calif., and points in Alameda, Contra Costa, Marin, San Mateo, and Santa Clara Counties, Calif., to WilkesBarre, 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, points on, south and east of New York Highway 30, and points in Chemung, Tompkins, Cortland, and Broome Counties, N. Y.), New Jersey except points on and north of U. S. Highway 30, Delaware, except points in the Wilmington commercial zone, Maryland, except points in Washington, Frederick, Carroll, and Baltimore Counties, and the Baltimore commercial zone; Ohio, except points in the Cleveland commercial zone; Morgantown, W. Va., and points in Virginia on and east of Interstate Highway 95; and (4) materials or supplies used in the manufacture of fiberboard, paper, paperboard, or plastic milk or food containers from points in Ohio (except the Cleveland commercial zone), to Berwick, Pa., that applicant is fit, willing, and able properly to perform such service and to conform to the requirements of the Interstate Commerce Act and the Commission's rules and regulations thereunder; that a certificate authorizing such operation should be issued conditioned upon the filing of an application within 60 days for approval of the common control by the same person or persons of La Bar's, Inc., and Posse Trucking, Inc., under the provisions of section 5 of the act or within such additional time as may be authorized by the Commission, and the subsequent grant of such approval by the Commission; that unless such an application is filed within the time specified above the grant of authority made in this report shall be considered as null and void and the application shall stand denied in its entirety effective upon the expiration of said compliance time; and that the application in all other respects should be denied.

We further find that the holding by applicant of a certificate herein, and the holding by Posse Trucking, Inc., in No. MC-119238,

of permits heretofore granted will be consistent with the public interest and the national transportation policy, subject to the right of the Commission, which is hereby expressly reserved, to impose such terms, conditions, or limitations in the future as it may find necessary in order to insure that applicant's operations shall conform to the provisions of section 210 of the act. 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, and with the added condition imposed in this report, 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-110563 (SUB-NO. 16)1

COLDWAY FOOD EXPRESS, INC., EXTENSION-FOODSTUFFS

Decided September 2, 1964

1. Upon reconsideration, findings in prior report, decided February 28, 1964, reversed in part. In No. MC-110563 (Sub-No. 16), public convenience and necessity found to require operation by applicant as a common carrier by motor vehicle, over irregular routes, of foodstuffs, with exceptions, and specified items when shipped therewith, from Philadelphia, Pa., Hightstown, N. J., and points in a described area of New Jersey, to points in seven States. Issuance of a certificate approved upon compliance by applicant with certain conditions.

2. In No. MC-C-2266 (Sub-No. 1), respondent found to be engaged in certain unauthorized operations in violation of section 206(a)(3) of the Interstate Commerce Act. Cease and desist order entered.

Joseph M. Scanlan for applicant and defendant.

Eugene M. Malkin, Dale C. Dillon, Clarence D. Todd, James I. Collier, Jr., and James J. Cain, Jr., for protestant and complainant.

Conrad A. Amend, Loren G. Windom, and Ellis V. Gregory for Bureau of Inquiry and Compliance, Interstate Commerce Commission.

REPORT OF THE COMMISSION ON RECONSIDERATION

DIVISION 1, ACTING AS AN APPELLATE DIVISION, COMMISSIONERS HUTCHINSON, BUSH, AND BROWN

BUSH, Commissioner:

By application filed February 12, 1962, as amended, Coldway Food Express, Inc. (Coldway), of Sidney, Ohio, seeks a certificate of public convenience and necessity authorizing operation, over irregular routes, in interstate or foreign commerce, as a common carrier by motor vehicle of foodstuffs (other than fresh, frozen, This report also embraces docket No. MC-C-2266 (Sub-No. 1), Midwest Emery Freight System, Inc., v. Coldway Food Express, Inc.