provisions of part II of the act, we have duty, under §204(c) of the act, to issue an appropriate order to compel the carrier to comply therewith. Inasmuch as the entry of a cease and desist order herein against the unauthorized transportation of new store fixtures under household goods authority will not preclude respondent from lawful operations under any temporary authority and its certificates, the effect of the order will not, as recommended by the examiner, be contingent or conditioned upon the ultimate disposition of any other proceedings.--Cease and desist order entered.--American Red Ball Transit Co., Inc.--Investigation and Revocation of Certificates, 108 M.C.C. 774(775,777).

§206(a)(1). CERTIFICATE; NECESSITY FOR

2. Construction and interpretation.--Where the holder of a certificate of registration or its affiliate holds a contract with the Post Office Department to transport mail allegedly in more than one state, this does not act to void the certificate because (1) only operations as a carrier outside the basic state will act to void such certificate and (2) the transportation of mail is not an operation as a carrier. cited herein.--Howard's Exp., Inc.--Purchase--Exchange Trucking Corp., 97 M.C.C. 341(346-47).

53. Intrastate operation; state requirements.--Complainants allege that defendant, an irregular route carrier, is conducting operations in interstate or foreign commerce in violation of §206(a) of the act. Defendant is authorized to operate solely within the State of Missouri, pursuant to a grandfather certificate of registration for which it holds corresponding interstate authority. The state authority prohibits irregular-route operations between points on the regular route of an authorized motor carrier. The record shows that the defendant interlines interstate shipments originating in another state for delivery to points in Missouri. Both the interline point and the named destination points are served by regular route carriers. Such operations clearly contravene defendant's registered authority. Cease and desist order entered.--Orscheln Bros. Truck Lines, Inc. v. Knaus, 108 M.C.C. 301 (302,305).

§206(a)(6),(7). INTRASTATE CERTIFICATE; REGISTRATION; "GRANDFATHER" PROVISIONS

50. "Grandfather" clause.--Applicant filed its application under the grandfather provisions of §206(a)(7) of the act for a grandfather certificate of registration as evidence of its right to operate as a common carrier, by motor vehicle, within a single state (Massachusetts). The review board found that Edmund C. Merritt, president and holder of onehalf of applicant corporation stock, is in a position to control or direct applicant's operations in a common interest with those of Viola M. Merritt, doing business as E. C. Merritt Express Company, a multiple-state carrier engaged in interstate commerce, and also with a third motor carrier conducting intrastate operations within a state other than Massachusetts, namely Rhode Island, in his own name. Applicant admits its affiliation wit

a multi-state carrier, and therefore, it is not entitled to the benefits of the registration provisions of §206(a)(7) of the act because of its common control with a multi-state carrier on the statutory date of the enactment on October 15, 1962. Application denied.--Merritt Corporation Common Carrier Application, 108 M.C.C. 865 (866,869,871)*.

$206(b). APPLICATION FOR CERTIFICATE; FORM AND CONTENTS

18. Burden of proof.--Under the provisions of §206 of the Interstate Commerce Act, an applicant has the burden of demonstrating the existence of a public need for the proposed operation before a grant of common carrier authority may be authorized. An important requirement in this regard is whether the existing carriers are unable or unwilling to provide reasonably adequate service; because applicant formerly held temporary authority raises no presumotion that corresponding permanent authority will be granted. Proof of past operations conducted under temporary authority may be established by showing the volume and pattern of traffic handled within the scope of its past operations. In such circumstance, evidence of such operations under temporary authority is clearly desirable to slow movements within the scope of the application and the competitive effect of such operation on existing carriers.-Chicago & Eastern Illinois R. Co. Com. Car. Applic., 108 M.C.C. 53(60,61).

22. Evidence.--The commission cannot presume, in the absence of proof, that a carrier is performing adequate and satisfactory service to points it is authorized to serve when shippers' evidence is to the contrary. While certain protestants assert that they hold adequate authority to provide the service.proposed by applicant, they do not affirmatively state a willingness to pick up supporting shippers' l.t.l. shipments; also, if they desire a local carrier to bring such 1.t.l. traffic to their terminals, it is necessary that they show the existence and willingness of local carriers to originate the movement to their terminals.--Belford Trucking Co., Inc.-Extension, 108 M.C.C. 5(15)*.

Admissibility; cross-examination: As shipper support had been withdrawn and was not reinstated, no representative of the shipping public appeared and presented support for this application. The hearing examiner, over the objections of the protestants, took official notice of and admitted into evidence a copy of the transcript of record of a prior proceeding;, and granted the application based solely upon the shipper's testimony in that transcript. The prior proceeding embraced eight applications which were supported by the same shipper which had withdrawn its support of this applicant and two others. Official notice may be taken of other commission's proceedings and the findings therein, but no consideration may be given to the evidence contained in the records in those proceedings. Therefore, it was error on the part of the examiner to give official notice to the evidence contained in the transcript of the prior record.--Coastal Tank Lines, Inc., Extension--Neal, West Virginia, 108 M.C.C. 190(193,194).

The examiner's reception of the transcript of the prior proceedings without according protestants the opportunity to cross-examine with respect

to applicant's proposed service, in contravention of rule 75 of the General Rules of Practice, clearly violates the substantial rights of the protestants. The transcript of the record in the prior proceedings should not have been received as evidence in this case. The commission has uniformly required that applications for new motor carrier operating authority be supported by competent shipper testimony. Only the most compelling considerations of equity would justify departure from this standard. Since there is no overriding considerations of fairness present in this case, application is denied.--Id., p. 194, 195.

23. Official notice; res judicata; stare decisis.--In carrying out the national transportation policy, commission may take official notice of its actions in other proceedings bearing materially upon the issues under immediate consideration. Accordingly, commission noted that authority to serve a portion of the area involved herein was recently granted to another carrier, not a party to this proceeding and authority granted herein is restricted against serving that area covered in such other certificates.--West Brothers, Inc.--Extension--Baton Rouge, La., 108 M.C.C. 485(489)*.

$207(a). ISSUANCE (CERTIFICATE) AUTHORIZED TO QUALIFIED APPLICANTS FOR REGULAR ROUTES AND BETWEEN FIXED TERMINI

5. Construction and interpretation.--Section 207(a) of the act provides that an applicant for operating authority must establish that it is fit, willing, and able properly to perform the proposed service and to conform to the provisions of the act and our rules and regulations thereunder. Accordingly, a finding of fitness is a statutory prerequisite to every grant of authority. Applicant in its exceptions maintains that it had been found fit in the prior report and recommended order served May 26, 1967, and, thus, the fitness of applicant has already been fully considered and passed upon and was not and should not have been considered in issue either at the continued hearing on June 13, 1968, or at the present time. The report and recommended order served May 26, 1967, never, by operation of law or otherwise, became the order of the commission. Therefore, the fitness of applicant remains in issue.--Merritt Corporation Common Carrier Application, 108 M.C.C. 865 (871,872)*.

6. Restriction of operation.-On a petition for extension of operating authority by a regular route carrier of general commodities where a need clearly exists for a service similar to that proposed by the applicant, but where doubts exists as to whether applicants' proposed service, if authorized, would be fully responsive to the actual needs of the shippin community, the issuance of the certificate is conditioned upon applicant's acceptance of the following conditions: that the grant of authority will be limited to a term of three years from the date of the certificate; that applicant file an annual performance report with the Commission's Bureau of Economics; and that the commission's jurisdiction be reserved to impose such further terms and conditions to insure that applicant's operations

comport with the type of service the supporting shippers are shown to require on this record.--Campbell Sixty-Six Express, Inc., Extension-Atlanta, 108 M.C.C. 80 (82).

See also Wilson Trucking Corp.--Purchase--Compton Lines, Inc., at §5(2), n. 110 restrictions.

Commodities: Transportation of refrigerated commodities is routinely permitted to carriers of general commodities, with usual exceptions as noted, and commission is reluctant to exclude any specific commodities or class of commodities from such authority merely because of dormancy of prior rights in such limited respect, barring a convincing showing of adverse effect upon others.--Howard's Exp., Inc.--Purchase-Exchange Trucking Corp., 97 M.C.C. 341(350).

Prior or subsequent movement by rail: Prior or subsequent movement by rail-haul restriction in lieu of key point restriction imposed in prior report, 103 MCC 164, upon substituted motor-for-rail service found to be inadequate to prevent all-motor service by applicant between Los Angeles, Calif. and Phoenix, Ariz. Therefore, in order to insure that the subsidiary motor carrier's service will be auxiliary to, or supplemental of rail service, the commission modified the certificate by adding to the original key point restriction a clause requiring shipments, transported by applicant to be limited by an immediately prior or subsequent rail movement by the parent railroad to, from, or through Ash Fork, or Flagstaff, Arizona.--Santa Fe Trail Transportation Company--Extension-Phoenix, Arizona, 108 M.C.C. 16(21)

7. Competition.--Commission found that use of vendor's rights in conjunction with those of vendee to perform a through service is not a wholly new service but the substitution of a single-line for previously two-line service as vendee had interlined with another carrier (not a protestant herein) and would not be a new competitive service, approved.-Howard's Exp., Inc.--Purchase--Exchange Trucking Corp., 97 M.C.C. 341 (348-49).

9. Jurisdiction of commission.--See also Garrett Freightlines, Inc. v. United States, §212 (a), n. 30.

25. Necessity, demand for service, in general.-

Commodity description: Authority, as extension, granted to one of four applicants on consolidated record to transport coal tar and creosote oil, based on future need for service as established by sales solicitation. Objections re lack of public notice raised when commodity description "wood preservatives" amended to "coal tar and creosote oil" dismissed; amendation considered restrictive rather than expansive.--Hearin-Miller Transporters Ext.--Point Comfort, Tex., 100 M.C.C. 50(50-57).

Existing carriers: Grant of authority for proposed transportation of mushrooms and mushroom products (including canned mushrooms) in refrig

erated equipment is warranted by applicant specializing in transportation of perishable and frozen foods; when supporting shippers have demonstrated a clear need for less-than-truckload shipments in single-line service because of the highly perishable nature of the commodity; and protestants, although they hold adequate authority to provide the proposed service, have failed to show a willingness to provide service on less-than-truckload shipments.--Belford Trucking Co., Inc., Ext.--Mushrooms, 108 M.C.C. 5 (7, 15)*.

Before this application proceeding, shipper successfully supported 26 motor carriers for authority to transport the involved commodities to points in its destination territory. Each of those applicants was granted authority to transport the involved commodities (chemicals and fertilizers) which commodity description embraces the products involved in this application. Nevertheless, the shipper alleges that it has experienced numerous difficulties in obtaining equipment. Shipper has used the services of only five of these carriers. Shipper does not state that it has requested service from any of the others nor that those others have been unable or unwilling to provide the needed service. Two of the 26 carriers which shipper originally successfully supported oppose this application. They express an interest in moving the traffic, yet have been given limited opportunities by the shipper. Preference for a particular carrier's services is not enough to warrant a grant of authority, and the mere fact that other existing motor carriers do not oppose the application is not, of itself, sufficient to warrant the conclusion that they are unable or unwilling to meet the normal transportation requirements of the shipper; denied.--Umthun Trucking Co., Extension--Colorado, 108 M.C.C. 669(671,674)*.

Existing service adequate: Seventeen public itnesses support this application for authority as a common carrier of passengers and their baggage in charter operations. Of the seventeen public witnesses, four witnesses characterize the services of the protestants as satisfactory. Ten other witnesses indicate that the services of either one or both of the protestants has not been used. A few complaints have been registered against one of the protestants but, where such was the case, the service of the other protestant has not been used. Protestants own equipment suitable for charter operations, employ drivers experienced in transporting charter parties and they both actively solicit charter business in the involved area. The commission does not consider mere preference for a particular carrier sufficient to warrant a grant of authority. record shows that the existing service, as a whole, has not been tested and shown to be inadequate. Protestants have demonstrated that they are able to meet the reasonable transportation requirements of the traveling public. Denied.--Roesch Extension--Eleven Western States, 108 M.C.C. 706(707,713,714).

The

Fitness: Where an applicant's past conduct shows a pattern of continued or serious violations, such applicant has the burden of refuting the import of its past conduct in order to establish its fitness to acquire