substantial volume of such traffic originates are Follansbee and Weirton. Vendor commenced operations on December 21, 1945, under the rights acquired from Fast Freight, but he has conducted no operations in Brooke and Hancock Counties. Vendor has no open-top, flatbottom vehicles suitable for the transportation of steel, but only closedtop semitrailers adequate for the transportation of miscellaneous freight. Lacking funds to purchase open-top equipment, and having no experience in the handling of steel, he has been unable to offer shippers in Follansbee, Weirton, and other points in those counties the service they need. Vendor decided, therefore, that it would be to his best interest, and that of the public, to dispose of the considered operating rights. He would use the $15,000 to pay the balance of $6,200 due Fast Freight for the purchase of his rights and to reduce other outstanding obligations. He would devote his time and attention to securing general freight, which he is better equipped to handle, in the remaining areas. As previously indicated, vendor would retain rights to operate between points in his West Virginia territory below the southern boundary of Brooke County, on the one hand, and, on the other, points in the Ohio territory.

Under the unified rights, vendee would provide a single-line through service in the transportation of steel from points in Brooke and Hancock Counties to those in northeastern Ohio, thereby meeting the demands of shippers located on his regular routes, as well as of others. Of the traffic transported by vendee, approximately 80 percent is steel and 20 percent miscellaneous commodities. He has ample equipment on hand and an order to handle a larger volume of steel and other freight. The present flow of his traffic is preponderantly out-bound from points on the regular routes in Brooke and Hancock Counties, but he is confident of narrowing this disparity with the return transportation of miscellaneous commodities from points in northeastern Ohio and would actively solicit this type of traffic. At Follansbee, he maintains an office, terminal, and repair shop. He expects to increase his yearly gross revenues by $40,000 or $50,000. Vendor would have use for his present employees in his retained operations. Other motor common carriers compete in the considered area.

The Follansbee Steel Corporation, a manufacturer of steel, with its main plant in Follansbee, offered evidence in support of the application through its representative. It is producing an increasing volume of steel, but lacks storage facilities to accommodate the additional tonnage. It has many customers at points in northeastern Ohio, such as Cleveland, Akron, and Warren, and would offer vendee approximately 25 tons a day for movement from Follansbee to those points. Other motor common carriers are available to perform this service, but

it takes them from 10 to 24 hours to pick up the shipments. In contrast, as indicated, vendee's home office is in Follansbee and he is in a position to provide the prompt service which is required by the manufacturer to avoid the cost of enlarging its storage space and to meet the demand for expeditious deliveries. The company has been patronizing vendee since he commenced operations and has found his service highly satisfactory.

Protestants, in their exceptions, argue (1) that the proposed division of vendor's irregular-route rights is not along clear-cut geographical lines, and our approval would open the way for the filing of numerous additional applications covering the sale of his remaining rights in 33 West Virginia counties to as many different carriers, citing Howard Motor Lines, Inc.-Purchase-Smith Dray Line, 45 M. C. C. 525, Houff-Pur.-Baltimore-New York Exp., Inc., and Elliott, 45 M. C. C. 561, and G. & M. Motor Transfer Co., Inc.-Pur.-Jocie Motor Lines, 45 M. C. C. 161; (2) that vendor has not conducted any operations under the considered rights, citing Joseph F. Whelan Co.Purchase-O-W Co., Inc., 45 M. C. C. 156, and Crichton-PurchaseC. Lewis Lavine, Inc., 35 M. C. C. 661, and is merely trafficking in certificated rights; and (3) that the irregular-route rights would overlap vendee's regular-route rights, contrary to the principle enunciated in Shoe City Exp. Co., Inc.-Purchase-Marshall, 45 M. C. C. 778.

Applicants, in their reply, contend that the facts herein are distinguishable from those in the cited cases; that the proposed division of vendor's rights is definitely along clear-cut geographical lines; that it would be unjust to deny the instant application on the basis of speculative future sales of his remaining rights, since we would have an opportunity to consider each transaction on its merits; that vendor's failure to operate, under the unfavorable conditions prevailing after the war, does not constitute an abandonment; that there is a public demand for the proposed service which vendee is willing and able to provide; that the afore-mentioned overlapping of the regular and irregular-route rights is of limited territorial scope; that vendee would maintain the distinction between the regular and irregularroute rights; and that protestants have failed to show that they would be adversely affected by vendee's operations under the unified rights. Brooke and Hancock Counties are the 2 northernmost counties in the panhandle of West Virginia, between Ohio and Pennsylvania. The principal business activity therein is the manufacture of steel. In these two respects, these counties differ from the other 33 in which vendor now operates. The geographical line between the rights, as proposed to be divided, is entirely clear.

The cases cited by protestants do not support the view that our policy has been to withhold approval of all transactions where a division of irregular-route rights was proposed. No. MC-F-3484, Borush Motor Exp., Inc.-Purchase-John Vogel, Inc., 50 M. C. C. 408. In relatively few instances have applications been denied for this reason alone.' Each case must be considered on the basis of the evidence submitted. In the Howard case, where the application was first denied because of the manner in which division of the irregular-route rights was proposed, on reconsideration and after a hearing, a slightly amended form of division of the rights was approved in a report (unprinted) 50 M. C. C. 827, decided February 13, 1948. The reports in the other two cases cited by protestants, in support of their contention that the proposed division of the rights is objectionable, clearly show that the circumstances causing denial of those applications where wholly dif ferent from those here present.

As seen, vendor acquired his operating rights from Fast Freight on November 19, 1945, and the following month commenced operations, but he did not operate from and to points in Brooke and Hancock Counties. Service at those points did not fit into the pattern of vendor's other operations because the transportation of steel requires special equipment which he did not have. Regardless of the nonoperation, vendor is a motor carrier, and our jurisdiction to approve or deny the proposed transaction on its merits is clear. Quaker City Bus Co.-Purchase-Blackhawk, Line, Inc., 38 M. C. C. 603. The evidence of record shows convincingly that there has been a demand for service to and from points in Brooke and Hancock Counties, and vendee is ready, able, and willing to provide the service.

The overlapping of the regular- and irregular-route service which would result from consummation of the instant transaction would be relatively insignificant. The only points in vendor's irregular-route radial territory in Ohio which vendee has authority to serve are between Toronto and Bridgeport, over Ohio Highway 7, approximately 32 miles. Vendee is aware that the separate nature of the regular and irregular route rights and services must be preserved. Compare Arrowhead Freight Lines-Purchase-Griffin, 39 M. C. C. 455 and Super Service M. Frt. Co., Inc.-Pur.-Selman and Junkins, 45 M. C. C. 432. In the Shoe City case, cited by protestants, both the

In numerous instances where the transactions, involving divisions of irregular-route rights, have been approved, the reports have not been printed in the bound volumes; while reports denying similar proposals, such as those cited by protestants, have been printed because of the circumstances causing such denials. See the unprinted reports in No. MC-F-3506, Biter's Transfer Co., Inc.-Purchase-Evans, 50 M. C. C. 805, No. MC-F-3455, Burlington Truckers, Inc.-Purchase-Lipe, 45 M. C. C. 802, No. MC-F-3582, Carolina Norfolk Truck Line-Purchase-Southern States, 50 M. C. C. 810, and No. MC-F-3659, W. J. Dillner Transfer Co.-Purchase-Armour, 50 M. C. C. 816.

vendors proposed to retain irregular-route rights and to sell regularroute rights authorizing in part transportation of the same commodities between the same points. There is no such proposal here.

Considering the location of Brooke and Hancock Counties, their contiguity to the Ohio radial territory, the nature of the business activity therein, the specialized type of the available traffic, and the other facts of record, we are of the opinion that the proposed transaction would be consistent with the public interest.

Vendee is willing to write off immediately the amount assigned to his "Other Intangible Property" account as a result of the instant transaction, and our findings will be conditioned accordingly.

We find that purchase by David Jones, doing business as M. & J. Trucking Company, of the previously described portion of the operating rights of H. L. Cook, doing business as Cook Motor Lines, upon the terms and conditions above set forth, which terms and conditions are found to be just and reasonable, is a transaction within the scope of section 5 (2) (a), and will be consistent with the public interest, and that, if the transaction is consummated, David Jones, doing business as M. & J. Trucking Company, will be entitled to a certificate covering the described portion of the operating rights confirmed in No. MC-106451, which rights are herein authorized to be unified with rights otherwise confirmed in him; provided, however, that, if the authority herein granted is exercised, David Jones, doing business as M. & J. Trucking Company, shall immediately write off the amount assigned to his "Other Intangible Property" account as a result of the instant transaction, such write-off to be accomplished in a manner to be determined upon submission of the journal entries proposed to record the purchase, as required by our order herein.

An appropriate order will be entered.

50 M. C. C.

No. MC-F-3615

PERCY E. MCGARY, ET AL.-CONTROL; MCGARY TRANSPORTATION CO., INC.-PURCHASE (PORTION)-ALBERT J. DEMELLE

Submitted April 5, 1948. Decided June 16, 1948

Purchase by McGary Transportation Co., Inc., of certain operating rights of Albert J. Demelle, doing business as Curley's Transportation Company, and acquisition of control of the operating rights by Bernard F., Floyd C., and Percy E. McGary, and Robert F. Douglas through the purchase, approved and authorized, subject to condition.

James F. Harrington for vendee and its stockholders.
Frances E. Nute for vendor.

REPORT OF THE COMMISSION

DIVISION 4, COMMISSIONERS MAHAFFIE, MILLER, AND MITCHELL BY DIVISION 4:

No exceptions were filed to the examiner's proposed report.

McGary Transportation Co., Inc., of Medford, Mass., and Albert J. Demelle, doing business as Curley's Transportation Company, of Sanford, Maine, by a joint application filed November 10, 1947, seek authority under section 5 of the Interstate Commerce Act for the purchase by the former of certain operating rights of the latter for $1,000. By supplemental applications filed November 10, and December 18, 1947, Bernard F., Floyd C., and Percy E. McGary, and Robert F. Douglas, who control vendee through ownership of all its outstanding capital stock,' seek authority under the same section to acquire control of the operating rights through the proposed purchase. A hearing has been held, at which counsel on behalf of vendor stated that vendor did not wish to consummate the transaction for reasons hereinafter explained.

Vendee, a Maine corporation, operates in interstate or foreign commerce, pursuant to certificates issued in Nos. MC-10902 and MC-10902 (Sub-No. 2), as a motor common carrier (a) of general commodities, with exceptions, over regular routes, principally between Fort Kent,

1 Robert F. Douglas and Percy E. and Floyd C. McGary each own 75 shares (28.5 percent) and Bernard F. McGary owns 38 shares (14.5 percent), of vendee's outstanding capital stock.