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moved to that point from Chicago. Petitioner now has specific authority to handle such traffic in its Certificate No. MC-124211 (Sub-No. 205), issued May 1, 1973. Virtually all of the other liquor traffic listed moved from Chicago to various points in North and South Dakota, Kansas, and Missouri. Nine of those loads moved to Sioux Falls and Rapid City, S. Dak. Hilt now has other authority that covers that service in Certificate No. MC-124211 (Sub-No. 238), issued February 4, 1975. Most of the petroleum products traffic was from Whiting, Ind. (which is in the Chicago commercial zone), to Lincoln. Omaha was the destination point for some of that traffic and a few loads originated at other points within the Chicago commercial zone. Twenty-eight of the loads of fiberboard boxes were from Montgomery, Ill., to Lincoln.

Certain evidence from shipper witnesses and connecting carriers was introduced. Salem Oil Company, of Lincoln, is a Standard Oil Company jobber which has been using Hilt's service out of Whiting and Chicago for the transportation of motor oil and a gas tank additive. Shipper sells its products to "anybody connected to the marketing of automotive products." At least some of those sales are to wholesale grocery distributors. Shipper seeks continuation of that service.

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McKesson Chemical Company is a distributor of such items as industrial and cleaning chemicals, swimming pool chemicals, compounding chemicals, detergents, and reagent acids. They are transported in packages and used primarily by meatpacking plants, compounders, and grocery store outlets. Hilt's service has been used "2 to 3 years possibly." Shipper has other service available. It expressed a need for multiple-stop service involving pickups at Chicago and outlying points such as Joliet, Ill.

Evidence from National Foods, Inc., is in the record in the form of a verified statement. Its Midwestern Beef Division operates a slaughtering plant at Norfolk, Nebr., from which its ships about 1.8 million pounds weekly of meats, meat products, meat byproducts, and articles distributed by meat packinghouses. Hilt has been transporting a substantial volume of traffic from Norfolk. During a 1-year period petitioner handled 3.1 million pounds to points in Illinois, 993,342 pounds to Indiana destinations, and 644,579 and 359,206 pounds, respectively, to points in Wisconsin and Ohio. Smaller quantities moved to six other States. National Foods also

"The only evidence on this point, though, is the witness' reply to a question as to whether Salem's products are sold to or through wholesale grocery stores where he merely stated: "Skaggs is mainly our wholesale grocery distributor."

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has a Nebraskaland Division at Norfolk that ships meats and is expanding. Shipper relied heavily upon another carrier until early 1970 when its service was disrupted by financial problems of the carrier. That carrier no longer maintains facilities at Norfolk. Problems with rail service are also outlined. Hilt is willing to dispatch empty vehicles from its headquarters to serve shipper. Petitioner also has some equipment unloading in the vicinity of shipper's plants through service for a beverage distributor at Norfolk.

The principal revenue to Hilt from its use of the Sub-No. 121 authority has come from the transportation of fresh meats.

DISCUSSION AND CONCLUSIONS

Petitioner presented evidence that covers a very wide field, and it continues, in its exceptions, to rely on evidence that is not pertinent to the matter at issue. The Brinkman "grandfather" application covered several routes and service for a number of shippers. The only portion of that application pertinent here is the grant of westbound regular-route authority to transport "groceries, and grocery store supplies," principally from Chicago to Lincoln. Petitioner complains "that the discussion by the Administrative Law Judge deals only with the H. P. Lau Company and fails to consider the other evidence of the shippers initially supporting the Brinkman application." In the same vein petitioner also notes that the original shipper affidavits in the "grandfather" proceeding "revealed that Mr. Brinkman had transported such items as flour, canned pumpkin, empty beer cases, beer, cocoa and syrup, canned corn, canned peas, eggs, egg case fillers, shellac, wallpaper, white lead, glass, implements, twine, compound, repairs, and merchandise." Such sweeping references have only served to confuse the issue because, except for the cocoa, those items, even the ones handled for H. P. Lau, related to parts of the "grandfather" certificate that are separate and distinct from the "groceries, and grocery store supplies" authority now at issue. There are other parts of the evidence relied on by petitioner that relate to irrelevent material. Hilt's main contention, however, has some merit. Petitioner's argument that the commodity description employed, as presently interpreted, is narrower than was intended at the time of the "grandfather" rights grant will be considered, but since only the regular-route "groceries and grocery store supplies" authority

involved "grandfather" operations, consideration of petitioner's "grandfather" rights approach will be limited to that authority.

It is clear that the only foundation for the grant of the "groceries, and grocery store supplies" "grandfather" grant is the August 9, 1940, letter to the Commission from Brinkman as supported by the October 17, 1940, affidavit from the traffic manager of H. P. Lau Company. As a result of those efforts by Brinkman the compliance order was modified by adding to it the regular-route rights now under consideration. Brinkman's letter states that one of his principal shippers was a wholesale grocery house for whom he had been transporting all grocery items normally handled by such businesses. While he did not refer to it expressly by name, it is clear that he was referring to the Lau firm. The Chicago area identified as the origin of this traffic and the letter covers the issue of continuous operat: ns since early 1934, a period of time that preceded the "grandfather" application cutoff date.

The Rolfsmeyer affidavit, however, is really the key item. There is no dispute with respect to commodities that fall within the term "groceries" as defined by the Commission in Bird Trucking Co.-Modification of Certificate, 61 M.C.C. 311 (1952). It is also clear, however, that grocers deal in many items that are not encompassed by the Bird definition of "groceries." Lau was no exception in that regard. As shown in the Hilt investigation proceeding, supra, under present interpretation the grant of rights to transport "grocery store supplies" covers a quite limited range of commodities. We now have the issue properly before us in this proceeding of whether that commodity description together with the term "groceries" authorizes the full range of service supported by the evidence in the "grandfather" proceeding and intended to be authorized. We conclude that it does not.

The Rolfsmeyer affidavit establishes that besides groceries Lau dealt in "many other articles handled in grocery stores." References are made (a) to the purchase of "supplies" at many points in the Chicago area, (b) to the use of Brinkman as early as 1934 in handling not only groceries, but also "general store supplies" and "practically any and all commodities that Lau desired to have transported" from Chicago, and (c) to purchases from "producers and suppliers" in the Chicago area. Those descriptions are quite general. Specific commodities were not named because the records were no longer available. The word "supplies," however, is usable in a much more general sense than reflected in the interpretation in the investigation proceeding. The commodity description used in the

modified compliance order parallels the terms used by Rolfsmeyer with the exception that in the phrase "groceries, and general store supplies" a substitution of "grocery store" for "general store" was made. Rolfsmeyer's testimony that besides groceries Lau dealt in many other articles "handled in"' grocery stores, the context of the era, and the generality with which the evidentiary matters regarding the commodity description was handled in the "grandfather proceeding," suggests a broad and general use of the word "supplies." The supplemental order that modified the earlier compliance order contains only ordering paragraphs without subsidiary findings of fact or a discussion. There is no indication that the Commission intended to assign a meaning different from Rolfsmeyer's. Finally, a sworn statement by a former salesman for Lau indicates that during 1934 and 1935 Lau dealt in such nongrocery items as canning supplies, clothing, drugs and sundries, glassware, household utensils, matches, meats, notions, paper and paper articles, school supplies, and toys. We conclude that "grocery store supplies" fails to describe the operations intended to be authorized in the "grandfather" proceeding and that modification of the certificate is warranted.

Use of the description "such commodities as are dealt in by" grocers is not warranted, however. It would not place a limitation on the class of shippers or consignees that could be served and is the type of description that has been described as one that would "border on a grant to transport general commodities." Interstate Grocery Distribution System Ext.-Paper, 98 M.C.C. 546 at 548-549 (1965). Authority in that form would permit operations much broader in scope than those supported by the evidence in the "grandfather" proceeding and reflected in the authority granted. The particular authority under consideration here resulted from the support of only one shipper, H. P. Lau Company. We see no justification for deleting the "intended use" feature incorporated into the "grocery store supplies" description. Hilt's argument in its brief that the authority sought to be modified is not governed by the "intended use" test is not applicable to "grocery store supplies" authority. Petitioner relies on a Commission decision involving only interpretation of authority to transport "packaged groceries." In order to avoid partially revoking the "groceries" portion of the authority by subjecting it to an "intended use" description, only

In contrast to a connotation of "used by

*For reference to cases holding that such rights are subject to an "intended use" test see the Hilt investigation proceeding, supra, at page 16 (footnote 16).

"grocery store supplies" in the present regular-route "groceries, and grocery store supplies" authority will be modified. "Commodities dealt in by grocery stores" will be substituted.

We turn now to consideration of those aspects of this proceeding involving current shipper testimony, support by connecting carriers, and reliance by petitioner upon past operations under a claimed "color of right." The major type of service involved here is the transportation of fresh meats and packinghouse products between points in Nebraska. Protestants, who were mainly concerned with meat traffic, found that petitioner's proposal was no longer of concern when when they analyzed tacking possibilities. Hilt has transported under "color of right" substantial quantities of meat between various points in Nebraska for further movement to points in other States, either through joinder with other authorities it holds. or in interline operations. Although Norfolk and Omaha have been the primary origin points, there have been at least nine others. We conclude that petitioner's Sub-No. 121 certificate should be modified by adding to it authority to transport the meat items defined more fully below between points in Nebraska.

None of the other commodities warrant similar treatment. In many instances one cannot tell how the authority sought to be modified was used in handling the shipments listed. If any of the evidence is connected with the Washington County off-route point rights that fact is not apparent on this record. Use of the rights covering operations "between points in Nebraska" can be ascertained with reasonable clarity only with respect to meat traffic. Substantially all of the operations from Chicago will be covered by our modification of that "grandfather" authority. Some of Hilt's past operations are covered by subsequently issued specific authority in other proceedings. In any event, operations beyond the scope of the regular-route authority here in modified would be those in which the "intended use" test was not observed, and the applicability of that test both before and after this modification is clear enough to invalidate any claim to "color of right" operations in such instances. Accordingly, except as otherwise indicated above the petition must be denied.

FINDINGS

We find that the phrase "groceries, and grocery store supplies" as it appears near the bottom of sheet No. 2 of Certificate No. MC124211 (Sub-No. 121), issued January 8, 1969, should be modified

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