directed solely to this finding. It argues, in effect, that in other cases, we have stated that our primary interest in these proceedings is to see that no new rights are created as a result of the transaction without proof of public convenience and necessity, or, stated differently, that the sum of the parts after the division will not exceed the whole of the rights existing before the division; that no additional rights will be created as a result of the instant proposal; that it is not necessary to determine absolutely in every case whether an alternate route is, or is not, appurtenant to any particular route; that, considered by itself, the Los Angeles-Mojave segment is not an alternate route between two points on either the Barstow-San Francisco route proposed to be leased, or on the Los Angeles-Barstow-Boulder City route proposed to be retained; and that, therefore, it would be just as logical to find that the Los Angeles-Mojave segment is an alternate to the route proposed to be leased as to find, as the examiner does, that it is an alternate only to the route proposed to be retained. Although lessee urgently requests the authority to lease and to operate over the alternate route, it nevertheless would consummate the transaction without that route and pay the same rental as at present provided. Protestants contend that lessee would not be authorized to lease the Los AngelesMojave alternate route for use in connection with its proposed operations into and out of San Francisco. The Pacific Southwest Railroad Association opposes the application on an additional ground hereinafter discussed. The lessor's alternate route authority between Los Angeles and Mojave is one of two alternate routes granted to it pursuant to the findings in Nevada Consolidated Fast Freight-Extension—Mojave, 43 M. C. C. 879, herein called the Extension case. At the time that proceeding was under consideration, lessor already possessed operating rights, later consolidated in the single certificate previously mentioned, to operate between Los Angeles and Boulder City via San Bernardino, Barstow, and Las Vegas, and between Barstow and San Francisco via Mojave. The segment of the first route between Los Angeles and Barstow, and the segment of the second between Barstow and Mojave, roughly form three sides of a rectangle, with Los Angeles, San Bernardino, Barstow, and Mojave at the corners. The alternate route between Los Angeles and Mojave comprises the fourth side of the rectangle on the northwest. At the hearing in the Extension case, lessor herein represented that there was a need for its operations over the alternate route in order to improve its existing service between Los Angeles, Las Vegas, and Boulder City, and specifically requested that any certificate which might be issued authorizing operations between Los Angeles and Mojave over U. S. Highway 6, be restricted to the rendition of service between those points. As seen, the authority subsequently granted restricts use of the alternate route to the handling of traffic "originating at, or destined to Barstow, Calif., or points east of Barstow." Therefore, the Los Angeles-Mojave segment was clearly granted as an "alternate" route to be used "for operating convenience only" in transporting shipments between Los Angeles, Barstow, Las Vegas, and Boulder City, appurtenant to the existing principal route between the same termini, via San Bernardino. Authority was not granted for its use in transporting shipments between Los Angeles and San Francisco. As indicated, lessor does not propose to lease to lessee any part of its principal route between Los Angeles and Barstow via San Bernardino, to which the Los Angeles-Mojave segment is an alternate route. The principle that an "alternate" route is not separable from its principal route is well established. See Consolidated Forwarding Co., Inc.-Purchase-Lett & Co., 38 M. C. C. 125, Olney-PurchaseDalby Motor Freight Lines, Inc., 40 M. C. C. 309, and Alamo Motor Lines-Purchase-Inter-City Motor Exp., Inc., 45 M. C. C. 495. In Hall-Purchase-Magee Truck Lines, Inc., 38 M. C. C. 529, division 4 discussed the question of the sale of one route and the retention of another between the same points and, in connection with "alternate" routes, stated at page 536: In the Lett case, supra the operating rights as granted by division 5 clearly designated the route attempted to be segregated as an "alternate" route subordinate to the principal route between the same points, intended for use for operating convenience only, and no intermediate points were authorized to be served on that "alternate" route. Where all of these factors are present, it is our view that such an "alternate" route is not severable from the principal route; that the grant of such an "alternate" route is because of the grant of the principal route; and that the situation as to the nonseverability of such an "alternate" route is not essentially different from the situation as to off-route points authorized in respect of a principal route. Lessor proposes to separate the alternate route from its principal route in the same manner as was proposed in the three cases first cited. As the alternate route is not separable from its principal route between Los Angeles and Barstow via San Bernardino, our findings herein will not include authority for lease by lessee of the rights to operate over the alternate route between Los Angeles and Mojave. As previously indicated, in operating over the alternate route, lessor is only authorized to utilize that route in connection with its route to and from Barstow and points east thereof. This can be done only through use of the segment of the Barstow-San Francisco route, between Mojave and Barstow, 72 miles, which the lessee proposes to lease. The proposal thus involves a "split" of operating authority, between Mojave and Barstow. We have disapproved numerous simi lar proposals following the report in H. P. Welch Co.-PurchaseE. J. Scannell, Inc., 25 M. C. C. 558. In the circumstances, and as the alternate route would be of no use to the lessor upon consummation of the proposed lease, our findings will be conditioned so as to suspend lessor's rights to operate over the alternate route between Los Angeles and Mojave, over U. S. Highway 6, for the period that the lease is in effect. As previously stated, lessee's operations now extend from Denver, Amarillo, and Roswell, on the east, to Los Angeles via Barstow, on the west. The lease of lessor's rights between Barstow, a point authorized to be served in common by both carriers, and San Francisco, approximately 425 miles, would enable lessee to provide a single-line through service, not now available, between a number of points on the eastern end of its operations, on the one hand, and San Francisco and authorized points intermediate to Barstow and San Francisco, on the other, and thus expedite shipments in most instances 24 hours. At present, lessee has interchange arrangements with other carriers at Los Angeles, which are not satisfactory. It has satisfactory interchange arrangements at its eastern termini of Denver and Amarillo with numerous motor carriers which serve points in central, eastern, and southern States, and the extension of its operations to the San Francisco Bay area under the leased rights, would permit of the establishment of a two-line in lieu of present three-line service between that area and points served by the connecting carriers. Lessee expects to institute daily operations, using a minimum of three tractor-trailer units, now available, and would lease terminal facilities at San Francisco and provide call stations at the authorized intermediate points. Should traffic conditions later warrant, additional terminals would be established. Lessee has made a study of traffic potentialities in the considered territory and is convinced that an efficient and reliable service will produce sufficient traffic to permit a profitable two-way operation. The lease of the rights in question would permit lessee to use its existing extensive facilities more economically and efficiently. No employees of lessor would be adversely affected by the transaction. The increase in lessee's fixed charges resulting from payment of the lease rental would not be contrary to the public interest. All motorcarrier protestants have common-carrier general-commodity authority to operate between San Francisco and Los Angeles, and the operations of one, Western Truck Lines, Ltd., extend to El Paso, Tex., via Phoenix and Tucson, Ariz. On exceptions protestant Pacific Southwest Railroad Association urges that the application should be denied because the Barstow-San Francisco route was initially granted for the movement of war traffic; that when such traffic disappeared early in 1945, lessor ceased all operations between those points; and that, to authorize lessee to utilize the operating rights in rendering an unrestricted service to and from points in Arizona and New Mexico would result in the conversion of the authority for a purpose never intended. It is true that lessor utilized the operating authority principally in the transportation of manganese ore from a plant near Las Vegas to the San Francisco Bay area and that, when shipments of this commodity ceased in March 1945, it discontinued all operations between Barstow and San Francisco. Although lessor actually has not operated over the route since March 1945, it has retained in full force and effect appropriate insurance and tariffs, and, within the recent past, quoted rates to prospective shippers but did not receive any traffic. The protestant itself is not a carrier and there is no evidence of record to show to what extent, if any, its members would be adversely affected by the transaction. In our opinion, on the basis of the evidence of record, a finding that the transaction, as modified, would be consistent with the public interest is warranted. We find that lease by Navajo Freight Lines, Inc., of the previously described portion of the operating rights of Nevada Consolidated Fast Freight between Barstow and San Francisco, Calif., and acquisition of control of the operating rights by M. B. Howe, through the lease, upon the terms and conditions above set forth, which terms and conditions are found to be just and reasonable, constitute a transaction within the scope of section 5 (2) (a), and will be consistent with the public interest; provided, however, that if the authority herein granted is exercised, and concurrently therewith, the portion of the operating rights granted to Nevada Consolidated Fast Freight, in No. MC-565, covering the transportation of general commodities, with exceptions, over alternate regular routes, for operating convenience only, between Los Angeles and Mojave, Calif., over U. S. Highway 6, shall be suspended for the period that the lease shall remain in effect; and provided further, that the parties shall advise this Commission in advance of any intended cancellation of the lease, prior to expiration of the term herein authorized. An appropriate order will be entered. 50 M. C. C. No. MC-F-3559 EDWARD J. DONOHUE ET AL.-CONTROL-CHARLTON BROS. TRANSPORTATION COMPANY, INC. Submitted October 21, 1947. Decided December 24, 1947 Acquisition by Edward J. Donohue, Daniel F. Theurer, Arthur Rosen, and Samuel L. Abrams of joint control of Charlton Bros. Transportation Company, Inc., through purchase of its capital stock, approved and authorized. Spencer T. Money and Gilbert Nurick for applicants. REPORT OF THE COMMISSION DIVISION 4, COMMISSIONERS MAHAFFIE, MILLER, AND MITCHELL BY DIVISION 4: Edward J. Donohue, of Danville, Pa., and Daniel F. Theurer, Arthur Rosen, and Samuel L. Abrams, of Harrisburg, Pa., by an application filed August 5, 1947, seek authority under section 5 of the Interstate Commerce Act to acquire control of Charlton Bros. Transportation Company, Inc., of Hagerstown, Md., hereinafter called Transportation, through purchase of its capital stock for $60,000. A hearing has been held, at which O'Boyle & Sons, Inc., and Coastal Tank Line, Inc., motor common carriers of bulk petroleum products, opposed the application to the extent hereinafter indicated, but introduced no evidence, and with applicants, agreed to the omission of an examiner's proposed report. Applicants, individually or collectively, do not perform any transportation service, but Rosen is president, director, general manager, and the sole stockholder in control of Follmer Trucking Company, of Danville, herein called Follmer, which conducts motor common carrier operations in interstate or foreign commerce as hereinafter described. Donohue is employed by Follmer as its treasurer and assists Rosen in the management. Theurer also is employed by Follmer as its assistant traffic manager in Harrisburg. Donohue and Theurer have no stock interest in Follmer but have been employees thereof for some years, the former since 1936, and the latter since 1942. Abrams owns no stock interest in, and is not employed by, any motor carrier, and devotes his entire time to his own business, not connected 776209-49-vol. 50-20 |