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Sub-No. 4 certificate. Philipp is guilty also of unlawful operations but only as an aide or abettor. It is not a respondent.

Only a few of the cases cited by parties are really in point. Most significant is one which neither side seemed to realize was only printed because an appeal was pending in court, and neither side mentioned the court's affirmation. That is Aetna Frt. Lines, Inc.-Invest. and Revoc., 120 M.C.C. 477; affirmed in Aetna Freight Lines, Inc. v. United States, 381 F. Supp. 711 (1974). There a carrier (A.) had authority to transport many commodities nonradially between points in Alabama and five other States, subject to a restriction “against transportation of iron *** and steel articles, which originated at Birmingham, *** Ala., or points within 10 miles thereof." Respondents A. and V. interlined shipments out of Birmingham to attempt evasion of the restriction. V. moved them under its unrestricted authority from Birmingham and nearby origins to Alabama cities just beyond the 10-mile radius, whence they moved onward by A. Holding that any transportation of iron and steel articles which originated at Birmingham (plus 10 miles) was prohibited under the restricted authority, the Commission found the arrangement unlawful. The Commission held that such shipments are prohibited whether moved directly by A. from origin, received by A. in interline beyond the 10-miles radius, or whatever. Like the instant case the traffic is what is prohibited. Yet the Commission noted that a third carrier C. could originate a shipment in another place, say in Georgia, take it to Birmingham, and give it to A. for onward transportation because that shipment did not originate at Birmingham. To that extent there is a difference here, because this prohibition is to traffic moving between named areas, and origin makes no difference. The court found the restriction plain and clear on its face, and not ambiguous. See also Klipsch Hauling Co.-Investigation and Revocation, 119 M.C.C. 580; affirmed Slay Transportation Co., Inc. v. United States, 381 F. Supp. 1174 (1974). A restriction is obviously put in for a purpose. It cannot be a nullity but must be read to give it meaning, as in Klipsch. When its meaning and purpose are unclear or at odds, one may go to the proceeding in which the restriction originated for guidance, but all parties agree and the Administrative Law Judge finds that there is no justification for that here as the restriction is clear and has a logical purpose. Compare Crouch Bros., Inc. v. Byers Transportation Co., Inc., 110 M.C.C. 127; affirmed Byers Transportation Company v. United States, 310 F. Supp. 1121 (1970).

Respondent's argument that the restriction is void because it prohibits tacking and interlining without specifically referring to such acts and because it may be a sort of restriction not currently in vogue with the Commission, is not persuasive. Respondent's Sub-No. 4 does not prohibit interline or tacking, as such. The time and place to question the imposition was when and where it was imposed in Sub-No. 4, an issue belied by Howard's testimony that it was suggested by a protestant in that application proceeding, where it is equally evident that respondent did not object to it. Nor is it relevant or true, as argued, that respondent could formerly perform the same operation under its Sub-No. 2 until this restriction came along. Presumably this argument means that respondent could operate between St. Louis and St. Clair under Sub-No. 2 in the movement of traffic moving between Memphis and St. Louis, and that somehow this is now forbidden because such authority is revoked by Sub-No. 4. No. respondent could previously and may now participate in moving traffic from St. Louis to Memphis by moving it solely under Sub-No. 2 to St. Clair, and interlining with another for the Memphis leg of the trip. What it may not do is use Sub-No. 4 to move such traffic between any two authorized points whatever. Sub-No. 2 stands unassailed, but Sub-No. 2 does not permit direct service at Memphis.

Respondent contends that Anniston Motor Exp., Inc., Investigation of Operations, 63 M.C.C. 637, is limited and not applicable because the restriction there at issue did not come within the ambit of the Commission's policy that a restriction against tacking or interlining must be evident and specific. First, as noted, the instant restriction is not against tacking or interlining but against transportation of a certain kind of traffic. Second, that decision involved a “moving between" restriction very similar to this and reached a similar result. Anniston held a restricted certificate between Atlanta and Talladega, Ala. (east of Birmingham), providing that it "shall not transport any shipment moving between Atlanta, Ga., and Birmingham, Ala." It had transported shipments between those points which moved on beyond both, e.g., from Columbia, S.C., to New Orleans, La., via Atlanta and Birmingham. The Commission said, and that finding could be precisely applied here, "We think it is clear that such shipments were 'moving between' the named points, within the meaning of the restriction in question, and are thus beyond the scope of respondent's authority." The majority of the shipments in question there were interlined at Atlanta and Birmingham, and Commission found that fact did not alter the situation (page 640). Another group were moved by Anniston only between Pell City, Ala., and Birmingham and interlined (arranged by Anniston with the other carrier) for the other half of the trip, but those were found unlawful for other reasons and did not employ the restricted certificate at all.

In Mercury Freight Lines, Inc.-Pur.-Choctaw Transport, Inc., 65 M.C.C. 590, the certificate said that "carrier shall not transport traffic moving over the abovedescribed routes between Mobile, Ala., on the one hand, and, on the other, Meridian, Miss." The Commission made a finding similar to that made herein by the Administrative Law Judge, namely (page 596) that the certificate does not permit rendition of through service on any traffic moving between Meridian and Mobile, whether originating at either point and destined to the other, or received in interline at one and destined to or through the other. The effectiveness of such restriction is not different here just because St. Louis and St. Louis County are points beyond the scope of the particular certificate. See Anniston, supra, in which the restricted certificate did not embrace Birmingham but the restriction did apply nonetheless. In Marcell-Interpretation of Certificate, 62 M.C.C. 694, cited by no party here, the carrier held certificates authorizing movements between certain Vermont points and others in New York and New Jersey, herein referred to as the NY-NJ areas. They were restricted as to service in Vermont to traffic moving to or from the NY-NJ area and as to NY-NJ points to traffic moving to or from Vermont. The Commission said at page 697:

In view of the foregoing, it is clear that the phrase "restricted to traffic moving to and from" *** authorizes the carrier to handle, between the points authorized, traffic which originates at, or is destined to, points beyond New Jersey, New York, or Vermont. ***

In other words, the use of language concerning traffic moving between, or from and to, named points or areas is descriptive of the kind of traffic which may (or may not) be handled. It is not the same as a reference to traffic originating at or destined to some area or points. Nor is it a restriction intended to preclude tacking or interlining. It is a restriction upon the service over the route in question.

This is not the proceeding in which the questioned restriction was issued, and, therefore, it is not the place to consider either the propriety or need for the

restriction, nor the place to consider whether it should be modified or removed. This is not a criminal proceeding or a fitness case, hence one need not be concerned with the effects of the unlawful operations. All that can be done here is to terminate the violation and the appropriate way is by an order to cease and desist. The operations of record, which involve movements admitted by respondent to have been made, were in violation of the restriction and, therefore, were without authority. Movements of freight for hire as a motor common carrier in interstate commerce without possession of appropriate authority are in violation of section 206(a).

Finally, it is inconceivable that the findings herein, no matter how they went, could result in any effect upon the environment. No party offered evidence on this point. There is no suggestion that there are no carriers possessing proper authority to handle traffic between St. Louis and Memphis. Indeed, just for one, Superior has such authority. Specifically, it has a route or routes between St. Louis and West Memphis, Ark., and Memphis, Tenn., is in the commercial zone of West Memphis. Even assuming, as respondent urges, that discontinuance of the unlawful operations would cut off a major source of its revenues and impair its ability to survive, there appears no basis to infer that it could not sell off the equipment made excess by reduced operations and successfully continue lawful but smaller services to the public.

FINDINGS AND ORDER

Upon consideration of all evidence of record, the Administrative Law Judge finds that respondent, Main Line Hauling Co., Inc., has been and is engaged in the transportation of nonexempt commodities for hire as a common carrier in interstate commerce without appropriate authority and in violation of section 206(a) of the Interstate Commerce Act, and that such unauthorized transportation should be terminated. He further finds that this decision is not a major Federal action significantly affecting the quality of the human environment within the meaning of the National Environmental Policy Act of 1969.

WHEREFORE, it is the ORDER of the Administrative Law Judge that: Respondent, Main Line Hauling Co., Inc., be, and it is hereby, notified and required to cease and desist forthwith, and thereafter to refrain and abstain from, all operations in interstate and foreign commerce of the character found in the foregoing initial decision to be unauthorized and unlawful, until and unless appropriate authority therefor has first been obtained and is in force;

Respondent shall comply with rule 99 of the Commission's Rules of Practice (49 CFR 1100.99) on or before the date stated next below, inform the Commission of such compliance by affidavit, and concurrently serve copies of said affidavit upon all other parties;

The statutory and effective compliance date after which respondent will be held to be in willful violation of the terms of this order (see section 212(a) of the act) shall be 30 days from the effective date of this order; and

In the absence of a stay or postponement of the effective date of this order, or the timely filing of exceptions, this order shall be effective 30 days from the date it is served.

125 M.C.C.

No. MC-136006 (Sub-No. 1)

WALLKILL AIR FREIGHT CORPORATION COMMON
CARRIER APPLICATION

Application seeking a certificate of public convenience and necessity, denied.

John J. Brady, Jr., and Theodore Polydoroff for applicant. William D. Traub, Morris Honig, and Bruce J. Robbins for protestants.

DECISION AND ORDER

At a Sesssion of the INTERSTATE COMMERCE COMMISSION, Division 1, (Commissioners Murphy, Gresham, and MacFarland, held at its office in Washington, D.C., on the 20th day of March 1975.

Upon consideration of the application, as amended, and the record in the above-entitled proceeding, including the initial decision and recommended order of the Administrative Law Judge, the exceptions filed by applicant, including a request to reopen the proceeding for the receipt of additional evidence, embracing such tendered evidence; the reply there to filed by applicant's former representative; and the replies thereto filed individually by Van's Auto & Air Express, Inc., and jointly by Rupp-Southern Tier Freight Lines, Inc., et al; both embracing motions to strike portions or all of applicant's exceptions; and

It appearing, That the Administrative Law Judge recommended that the application be denied;

It further appearing, That in its exceptions, applicant requests that this proceeding be reopened for the receipt of certain additional evidence in the form of verified statements of certain shippers on the ground that it was inadequately represented at the hearing; that there is no support for the contention that applicant was inadequately represented or that the quality of its representation was responsible for the outcome of this proceeding; that while one of these shippers was "denied the right to appear to present evidence in this matter," the dismissal action was based on the fact that the shipper in question had failed to file a certification of support for the application and was, therefore, a proper ruling; that the statements tendered for incorporation into the present record and sought to be adduced on further proceedings are merely

cumulative of the evidence adduced in this proceeding; that no proper explanation is given why such evidence was not originally adduced; that such evidence would not change the result reached in the initial decision inasmuch as the additional statements of shipper support fail to adduce the quantum of evidence necessary to prove that the public convenience and necessity require the proposed service; and that, therefore, the request for reopening should be denied and the tendered evidence rejected;

It further appearing, That in their replies protestants move to strike either portions of applicant's exceptions, or applicant's entire pleading on the ground that applicant relies upon the additional evidence it proposes to introduce as if such evidence has been accepted herein; that applicant's numerous references to the tendered additional material are mere argument in support of its contention that the public convenience and necessity require the proposed operation; that inasmuch as the tendered material will be rejected, protestant's motions are now moot; and that, therefore, protestants' motions to strike should be overruled;

And it further appearing, That the pleadings raise no new or material matters of fact or law not adequately considered and properly disposed of by the Administrative Law Judge in his initial decision, and are not of such nature as to require the issuance of a report discussing the evidence in light of the pleadings;

Wherefore, and good cause appearing therefor:

We find, That the evidence considered in the light of the pleadings does not warrant a result different from that reached by the Administrative Law Judge; that the statements of fact, the conclusions, and the findings of the Administrative Law Judge, being proper and correct in all material respects, should be, and they are hereby, affirmed and adopted as our own; and that this decision is not a major Federal action significantly affecting the quality of the human environment within the meaning of the National Environmental Policy Act of 1969; and

It is ordered, That the request by applicant for the reopening of this proceeding for the receipt of additional evidence be, and it is hereby, denied; and the tendered evidence be, and it is hereby, rejected.

It is further ordered, That the motion of protestant Van's Auto & Air Express, Inc., to strike portions of applicant's exceptions, and the motion of protestants Rupp-Southern Tier Freight Lines, Inc., et al., to strike applicants exceptions be, and they are hereby, overruled.

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