Section 206. (b). [Sec. 306 (b) U. S. Code.] Application for certificate; form and contents.-Application for certificates shall be made in writing to the commission, be verified under oath, and shall be in such form and contain such information and be accompanied by proof of service upon such interested parties as the commission shall, by regulation, require. Any person, not included within the provisions of paragraph (a) of this section, who or which is engaged in transportation in interstate or foreign commerce as a common carrier by motor vehicle when this section takes effect may continue such operation for a period of one hundred and twenty days thereafter without a certificate and, if application for such certificate is made to the commission within such period, the carrier may, under such regulations as the commission shall prescribe, continue such operation until otherwise ordered by the commission. (Part II, sec. 206, Aug. 9, 1935, c. 498, sec. 1, 49 Stat. 551.) Notes of Decisions Modification of certificate upon abandonment of portion of line, see sec. 212 (a), n. 20. Application filed by employee of operator, unauthorized to file or verify it, although regular on its face, cannot be considered that of the operator; presents no issue for consideration by the joint board or the commission.-Jackson, 1 M. C. C. 139. An applicant cannot be authorized to conduct any operations except those for which he assumes full responsibility in his own name.-Grady, 9 M. C. C. 511. See also sec. 206 (a), n. 50a, Operation not conducted by applicant. A partner may obtain in his own name rights for the benefit of the partnership.-Farr Bros., Inc., 7 M. C. C. 780. No certificate can be issued until proper arrangements have been made to effect approval of substitution of pur chaser from original applicant.-Bramlet, 16 M. C. C. 84. Evidence in support of the three applications will be considered together, as the three corporations have been engaged in substantially one operation or in integral parts of the same operation, and one certificate issued.-Sterling Exp., Inc., 17 M. C. C. 379 (380). Technical defect of non-existence of applicant may be overlooked, but applicant partners should notify the commission promptly after receipt of favorable order, under oath, indicating whether they wish to be substituted as applicant in lieu of the corporation.— Alco Exp. Co., Inc., 8 M. C. C. 443 (444); corporation succeeded partnership, former substituted for latter.-CincinnatiS. Motor Exp., Inc., 4 M. C. C. 286 (288); certificate granted partnership composed of husband and wife.-Loving, 12 M. C. C. 571 (575)*. Application for permit to operate as a contract carrier denied when it was shown applicant's operations are those of a common carrier. Discontinuance of operations M. C. C. 325. ordered.-Caswell, 1 Although applicant has transported only for those with whom he had contracts, as he has held himself out to accept all shipments, application will be treated as one to institute a new common carrier operation.-Bowles, M. C. C. 589 (590). 1 sidered as filed under sec. 207.---La Grosa, 3 M. C. C. 401. If applicant was engaged in the operation on June 1, 1935, he was entitled to continue after tardy filing of the application, pending its determination, but, thereby became subject to necessity of showing need therefor under sec. 207 As it is frequently difficult to determine whether application should be for certificate or permit, notices of hearings will hereafter contain statement that the commission will award the au- | (a).—Carroll, 3 M. C. C. 393. thority which the evidence shows applicants may be entitled to receive, irrespective of form of application or prayer therein.-Tucker, 2 M. C. C. 335 (338); Darnell, 2 M. C. C. 656 (657); Coast Line Exp., Inc., 9 M. C. C. 427 (430). Amendments that proper authority may be granted, n. 16, this paragraph A certificate to operate as a common carrier may be granted on application for a permit. To preserve rights of interested parties, satisfy requirements as to notice, service upon interested parties, service of copy of report on all parties will be made, issuance of certificate withheld 30 days, to permit filing of petition for further hearing.-I. O. N. Freight Line, 2 M. C. C. 520 (521); Merit Dress Delivery, 2 M. C. C. 553 (555). Although application is not in the form prescribed for use in seeking authority under sec. 207, it was filed within the time prescribed; considered as having been filed on the proper form.Boston & M. Transp. Co., 3 M. C. C. 98 (101). When transportation sought to be continued under the "grandfather" clause was not commenced before the statutory date, public convenience and necessity must be shown, under sec. 207 (a).— Barhite, 9 M. C. C. 248 (249). Applicant having no "grandfather" rights was properly denied the privilege of introducing evidence to show public convenience and necessity. As a practical matter applicant could only take steps which would be equivalent to those appropriate to a new application.-Gable Transport Co., Inc., 11 M. C. C. 247 (251). Application naming firms for whom transportation will be performed, but containing "and other slate shippers" and "and other granite producers and shippers," will be considered as one for certificate, not for permit, as sought.-9 M. C. C. 614 (616). Lake Champlin Transport Lines, 4 M. C. C. 125 (126). Filing of tariffs cannot be substituted for the showing required of an applicant by sec. 207 (a) with respect to public convenience and necessity.-Warner, Though application was for authority under the "grandfather" clause, and the evidence was insufficient to support granting such authority, the service was necessary; application granted under sec. 207.-Moultrie and Jones, 8 M. C. C. 87. To compel filing of new application covering portion of route under which "grandfather" rights do not apply, but which should be authorized, would be taking too technical a view of the matter.-Rio Grande Motor Way, Inc., 3 M. C. C. 9 (12). A carrier entitled to "grandfather" rights but who filed his application after Though applicant was in bona fide the date required, may operate lawfully operation on June 1, 1935, as he failed to from the date of filing until the applifile application on or before Feb. 12, cation is passed upon.-Butcher, 1 1936, he lost the right to certificate with- M. C. C. 485; Gariffo and Rinkis, 13 out proof of convenience and necessity M. C. C. 354; Bigsby, 13 M. C. C. 677. under sec. 207.-Robinson, 3 M. C. C. Applicant's operations since the filing 305; Hudson Moving & Storage Co., 4 of application with the commission has M. C. C. 397; Jones, 7 M. C. C. 385; con- | been legal.-National Storage & Fur niture Co., 3 M. C. C. 404 (405); Bigsby, | ized to operate will be limited accord13 M. C. C. 677. ingly.-Sasser, 4 M. C. C. 381 (382)*. Application is not to be considered as all inclusive in its description of the operation, but merely as an outline of its principal features. It is on the whole record that a determination of "grandfather" rights must be made.-Highway Exp., Inc., 6 M. C. C. 418 (420); Puffer, 3 M. C. C. 487. Resumption of operation discontinued through error may be granted, but issuance of certificate will be withheld 30 days to afford interested parties opportunity to file petition for rehearing or reconsideration.-Howard, 2 M. C. C. 680 (681). As extent of defendant's operating right cannot be properly determined in a complaint case, cease and desist order entered as to tariff violations and as to service not covered by tariff, pending determination of scope of operations.Lang Transp. Corp. v. Bakersfield Contract Carriers, Inc., 3 M. C. C. 225. 16. Amendment of application.-Contention that amendment should be denied as both "grandfather" and sec. 207 application seek identical authority, by submitting evidence in support of the former applicant waived its right to be heard on the latter, is not impressive. But the commission does not view with favor failure to complete presentation of evidence at the appointed time of hearing.-Ill. Transit Lines, Inc., 8 M. C. C. 45 (49). Permitting amendment prior to or at hearings held on "grandfather" applications to allow introduction of evidence under sec. 207 (a) is essential to preserve the rights of carriers to continue operations lawfully commenced prior to effective date of the act, pending determination of their rights. Where no rights under sec. 206 are involved, there is no reason for relaxing the requirement that proper forms of application be filed.-Fisher, 20 M. C. C. 561*. Points, routes: If the commission per When applicant has been denied "grandfather" rights because of failure of proof, he cannot continue without ap-mitted amendments which extend the plying for and obtaining authority by territory, in effect it would be waiving filing of proper application. Petition the requirement that applications under for further proceedings does not fill this the "grandfather" clause be filed on or requirement or eliminate its necessity.- before Feb. 12, 1936, as such amendFisher, 17 M. C. C. 565*; D. A. Beardments are actually new applications. Truck Co., 21 M. C. C. 703 (707). The question of priority in filing an application is of minor importance, and unless other things are equal, should be given little consideration in determining whether public convenience and necessity require a proposed operation.-Oregon Motor Stages Extension, 18 M. C. C. 732 (736); Smart's Auto Freight Co., Inc., 10 M. C. C. 7. No authority to operate to or from points in Tennessee should be granted, as such territory is not covered by the application, and copy of application is not shown to have been served upon proper officials of that State.-Gordon, 9 M. C. C. 547. Since applicant served his application only upon the officials of certain States, the territory in which he may be author Commission is without authority to waive that requirement. Heyser's Nickle Plate Line, 1 M. C. C. 572*; Huey, 2 M. C. C. 62; Denver-L. A. Trucking Co., 3 M. C. C. 85 (86). Application treated as amended to apply for extension of operations as to portion of route over which applicant did not commence operations until after date obtaining in the "grandfather" clause.-Tri-State Transit Co. of La., Inc., 1 M. C. C. 215 (216). Amendments allowed to include points over connecting links over objection that it unduly broadens the issue, applicant claiming it has operated thereover whenever it resulted in greater convenience and economy, since prior to June 1, 1935.-Union Transfer Co., 11 M. C. C. 194. Proper party substituted, following | ered the substance of the amendmerger. Amendment enlarges the ter- ments.-Hargleroad Extension, 11 M. C. ritory, but no additional routes are in- C. 562. volved within the United States; all parties were duly notified. Inclusion of Detroit ferry and tunnel as additional routes allowed.-Western Freight Lines, 3 M. C. C. 333 (334). Considering the fact the first amendment omitted three points in order to hasten informal disposition, and that these points are only slightly distant from the regular routes, amendment allowed; points considered as off-route.Ziffrin Truck Lines, Inc., 6 M. C. C. 722 (733). Amendment to add an alternate route does not unnecessarily broaden the issues. Clemans Truck Line, Inc., Extension, 16 M. C. C. 235. Amendment to seek territorial certificate in lieu of specific routes, allowed.-Arrow Transp. of Dela. Extension, 4 M. C. C. 787 (795)*. Commodities: Amendment limiting operation to perishable commodities requiring refrigeration and eliminating interchange with any other carrier, allowed.-Campbell, 6 M. C. C. 277. Application does not specify empty reels and lagging, but as return movement is necessarily incidental to transport of wire rope and cables, on reels, in absence of objection, application deemed amended to include these commodities.-United States District Exp. & Trucking Corp., 11 M. C. C. 303 (305). Amendment permitted to include pianos and electric refrigerators only when they are a part of the household goods of shippers.-Reliable Van & Warehouse Co., 9 M. C. C. 141 (142). Amendment allowed to incorporate prayer for authority to transport mail, express, newspapers, omitted by error. It does not enlarge scope of proceeding and no objection was offered. Its receipt is justified on the ground of ex Amendment to permit applicant to substitute truck service for rail whenever more economical not allowed, as such substitution would constitute ex-pediency, as otherwise a rehearing tension as to points not covered by the "grandfather" application; proper application under sec. 207 (a) must be filed.-New England Transp. Co., 12 M. C. C. 461 (465). would be necessary.-Dayton Bros. Bus Line, Inc., Extension, 3 M. C. C. 419 (420). Certificate; permit: "Grandfather" applications seasonably filed may be amended in keeping with the commission's rules of practice, and an appro Granting of permission at hearings to amend applications so as to unduly broaden their scope denies to protes-priate certificate or permit issued, as tants due notice of the issues they must meet.-E. E. Mills Trucking Co., Inc., 17 M. C. C. 317. Amendment to include "on-call" irregular-route service from or to all points within a radius of 50 miles of applicant's terminal points was properly denied, as an undue broadening of the application without prior notice to interested parties.-Consolidated Freight Lines, Inc., 11 M. C. C. 131. Objection to consideration of points named in amendments overruled; protestants were served with notice of hearing advising the application had been amended. By exercise of reasonable diligence they could have discov the case may be, on a showing of bona fide operation.-Heyser's Nickle Plate Line 9 M. C. C. 745 (746)*; Lundstrom, 13 M. C. C. 491 (496). Request that application be amended so certificate might be granted instead of permit, in absence of opposition by protestants and in view of the fact there are no other rail or motor carriers serving the same territory who might be detrimentally affected, granted.-Darnell, 2 M. C. C. 656 (657). When the original application was not on the form approved for common carriers of passengers, the commission may properly consider the BMC-A-2 form as amending the application orig inally filed.-Burbridge, 14 M. C. C. 412. | clause.-Gulf Amendment of broker application to provide for operating authority as a carrier, allowed.-B. & E. Transp. Co., Inc., 12 M. C. C. 531 (535). Parties: Amendment to allow individuals doing business under two corporate names for substitution of the latter as applicant, granted.-Steinla Motor & Transp. Co., Inc., 4 M. C. C. 97. Since the corporation has succeeded to operating rights and property of the partnership, the former is substituted in lieu of the latter as applicant.-Cincinnati-Southern Motor Exp., Inc., 4 M. C. C. 286 (288). Amendment to permit partners to show they filed applications in their individual capacities denied, although the partnership has been dissolved, as the partnership existed on June 1, 1935, and if amendment were allowed, it would result in one of the parties having no application on file for operation in three States.-H. & H. Trucking Co., 7 M. C. C. 421. Joint board: Amendment denied when in addition to unduly broadening the issues, it would make the proceeding one which would have to be referred to a different referee.-Chautauqua Storage & Transfer Co., 14 M. C. C. 227. Narrowing the issues, by proposal to eliminate all routes in Minnesota, denied, because if granted it would make the matter one which properly should be referred to a different joint board.— Bernd Trux, Inc., 8 M. C. C. 346 (347); Whitehead, 10 M. C. C. 27 (28). 17. Withdrawal of application; continuance. It is the duty of each party to present his case at the proper time, which ordinarily is at the time of the original hearing. The commission looks with disfavor upon continued and adjourned hearings.-Shapiro, 20 M. C. C. 481. Motion that proceeding under second proviso of sec. 206(a) be submitted without taking of testimony or submission of further evidence denied, as applicant did not wholly abandon its application under the "grandfather" Coast Motor Freight Lines, Inc., 3 M. C. C. 497.* When no evidence of actual operation over certain highway is introduced, claim to certificate over that route between points named will be considered abandoned.-Denver-Los Angeles Trucking Co., 3 M. C. C. 85 (86). 18. Burden of proof.-The burden of proof is upon applicant to show that other carriers are not rendering a type or character of service which satisfies the public need and convenience, and that proposed service would tend to correct or substantially to improve that condition.-Coffman, 3 M. C. C. 93; Richards Extension, 6 M. C. C. 80; Parsons Extension, 20 M. C. C. 226. That burden is not sustained when applicant, sole witness on his behalf, did not show any active demand for a better service than is now provided.— Polydys, 3 M. C. C. 284 (286). It cannot be assumed, in absence of proof, that facilities of the rail carriers are adequate to meet the needs of the shipper.-Palmer, 11 M. C. C. 734. Burden of proof of establishing public convenience and necessity rests on applicant. No showing of such need apart from applicant's very general and somewhat conflicting statements, and his discontinuance of operations due to decision by shippers to utilize rail service, fails to meet requirements of the act.-Colistro Extension, 12 M. C. C. 415. The burden of proof is on applicant to show that the service it desires to initiate is required by public convenience and necessity.-Georgia Motor Exp., Inc., 10 M. C. C. 159 (164); more than applicant's desire, to justify extension.-Capitol Motor Transp. Co., Inc., 11 M. C. C. 535. Burden of proof is upon applicants to establish the character and scope of their operations and the truth of every essential allegation in their application.-Cossitt Bros., 6 M. C. C. 147; Bahr Trucking Corp., 11 M. C. C. 511; Coast Transit, Inc., 16 M. C. C. 566. |