Although shipper contends that loss of stopoff and reconsignment privileges, problem of controlling inbound routing, and forced use of respondent's routes having allegedly poor service would be unduly prejudicial to its interests if proposed cancellation were to take effect, evidence fails to specify how others would be unduly preferred. I & S 6732, Reciprocal Switching-Richmond, Va., ... I. C. C. ...., 7-3-58, Div. 2. 74.1 Competition Between the Preferred & the Prejudiced 74.10 Generally 74.10 Because of much greater volume of traffic moving under rates alleged to be preferred than under assailed rates, it is to be expected and to its interests if proposed cancellation were to take effect, evidence fails record establishes, that there is much more severe carrier competition at Kansas City than at Atchison-Leavenworth. This substantial dissimilarity in transportation conditions, in addition to lack of certainty on part of shipper witnesses that assailed rates are a prime factor in their competitive difficulties, precludes finding of undue prejudice and preference. MC-C2022, Atchison Chamber of Commerce v. A & B Transfer, Inc., I. C. C. 5-22-58, Div. 2. 74.30 Generally 80.01 74.3 Injury to Complainant 74.30 No. 32193, Factory Tile, Inc. v. South Bend Freight Line, Inc., I. C. C. ...., 6-23-58, Div. 3. (Please See 71.50, Same Title) Generally 8. UNIFICATIONS 80. Generally 80.0 Jurisdiction 80.01 In numerous proceedings where dormancy was an issue, it has been found that where no service, or only limited service had been rendered over substantial period of time, approval of transaction with resulting reinstitution of service may properly be found to be consistent with public interest only upon clear evidence of need for service. Such findings have been made in connection with transactions where, as here, control authority is sought as well as in purchases, leases, consolidations, and mergers. See 65 M. C. C. 17; 65 M. C. C. 701; 70 M. C. C. 135. MC-F-6380, Roy Barsh-ControlShippers Service, Inc., 6-13-58, Div. 4. 80.03 Entire Transaction 80.03 Commission's jurisdiction over this transaction under sec. 5 of Act extends to all of properties, including intrastate operating rights. 56 M. C. C. 415, 433; and 65 M. C. C. 347, 358. MC-F-6368, Glendenning Motorways, Inc.-Pur.-Superior Service Co., Inc., M. C. C. 5-16-58, Div. 4. 80.04 Number of Vehicles 80.04 Question of common control under sec. 5 of Act is not involved because both applicants together operate less than 20 units of equipment. MC-82944, Sub 4, F. A. Bethke Ext.-Colo., 5-28-58, Div. 1. 80.07 Holding Companies or Persons 80.07 Commission has not ordinarily subjected noncarrier individuals to carrier status pursuant to sec. 5(3) of Act, and no apparent reason therefor is here shown. MC-F-6635, Colonial Coach Lines Ltd.-Pur.-Cornwall -Massena Coach Lines Ltd., 6-24-58, Div. 4. 80.07 Primary function of Equipment Corp., which is not a carrier, is to hold stock of motor carrier to which it leases facilities. In authorizing Equipment Corp. to acquire control of considered operating rights and property through merger, Commission may, under sec. 5(3) of Act, pro vide that it shall be considered a motor carrier subject to provisions of secs. 204(a)(1) and (2), 214 and 220 of Act. Order will provide that, if authority granted is exercised, Equipment Corp. shall be subject to those provisions of Act. 50 M. C. C. 336. MC-F-6411, Frigidways, Inc.-Control & Merger-Hilton Truck Lines, Inc., 6-27-58, Div. 4. 80.07 Pittston Co. subjected to specific provisions of part II of Act. MC-F-6544, Pittston Co.-Control-Brink's Inc., M. C. C. 7-11-58, Div. 4. 80.07 Wells Fargo & Co. subjected to provisions of secs. 204(a)(1) and 2, 214 and 220 of part II of Act, relating to reports and accounts of motor carriers and issuance of securities and assumption of liability in respect of securities of others, because it appears that its principal source of income would be from carriers engaged in transportation subject to Act. On other hand, at least 90 percent of American's consolidated gross assets represent funds acquired by it and its subsidiaries in connection with its foreign banking operations and sales of travelers checks and letters of credit. As its control of motor carriers would represent only small portion of its total business, most of which is unrelated to transportation, public interest does not require that it be subjected to those provisions of Act. MC-F6796, Wells Fargo Armored Service Corp.-Control-Armored Motor Service, Inc. (Miss. & Tenn. Corporations), M. C. C. .... 6-18-58, Div. 4. .... 80.1 Administrative Policies 80.13 Corporate Simplification 80.13 Termination of joint control of Bekins-Texas by several companies, each of which holds only a minority interest therein, and vesting of majority control in a single company are in accord with Commission's longestablished policy of encouraging corporate simplifications. MC-F-6876, Bekins Van & Storage Co. (Calif.)-Control-Bekins Van & Storage Co., Inc. (Texas), 6-27-58, Div. 4. 80.4 Registered Intrastate Rights 80.43 Vendee has established that public convenience and necessity require its continuance of operations conducted by vendor under second proviso of sec. 206 (a) of Act. MC-F-6854, Germann Bros. Motor Transp., Inc., -Pur.-J. D. Ross, 7-3-58, Div. 4. 81. Control of Two or More Carriers 81.10 Generally 81.1 Facts Constituting Control 81.10 Broad interpretation given term "control" includes existence of power to control operations of carrier regardless of whether or not power is exercised. Compare 44 M. C. C. 83 and 70 M. C. C. 421, 427. Fact that principal stockholder is no longer active in management and holds no official position with company does not alter fact that by reason of ownership of 47.6 percent of shares, especially since ownership of remainder is widely diffused, she has power to control operations of corporation. Compare 58 M. C. C. 439; and 55 M. C. C. 649 at pages 668 and 669; and 38 M. C. C. 95. MC-30867, Sub 69, Central Freight Lines, Inc. Eligibility-Second Proviso, M. C. C. 6-25-58, Div. 1. 81.11 Stock Ownership .... 81.11 Control can be accomplished with actual ownership of a majority of stock of both common carrier corporations. If such control is in fact centered in a person, then approval of such common control must be obtained under sec. 5(a) of Act. MC-116770, Active Cartage Ltd. Com. Car. App., 6-30-58, Div. 1. 81.16 Family Relation 81.16 Family relationship between stockholders and officers of Buckeye, on one hand, and on other, president and sole stockholder of Dieckbrader Exp. establishes fact that there is close affiliation between two carriers. It is clear that said president is in position to exercise control and management over affairs of Buckeye by reason of his position as head of family and his power of purse. MC-99411, Buckeye Exp., Inc.-Operations under Second Proviso of Sec. 206(a) (1), M. C. C. 5-28-58, Div. 1. 81.7 Disposition of Control Applications 81.71 Railroad ..... 81.71 Control of One or More Railroads by Another Authorized by Div. 4: Louisiana & N. W. R. Co. Control, F. D. 20177, 6-5-58. 81.73 Motor Truck—Authorized 81.73 Control of Two or More Motor Carriers of Property in a Common Interest Authorized by Div. 4: Barsh, Roy-Control-Shippers Service, Inc., MC-F-6380, 6-13-58. M. C. C. Bekins Van & Storage Co. (Calif.)-Control-Bekins Van & Storage Co., Inc. (Texas), MC-F-6876, 6-27-58. Best Way Motor Freight, Inc.-Control-Johnson Freight Lines, Inc., MC-F-6531, 6-5-58. Cooke, Philander-Control-Hercules 6-20-58. Trucking Co., Inc., MC-F-6500, Maislin Bros. Transport, Ltd.-Control-Maislin Transport, Inc., MC-F6-20-58. .... ....? 6452, M. C. C. Pittston Co.-Control-Brink's Inc., MC-F-6544, .... M. C. C. . . . 7-11-58. Wells Fargo Armored Service Corp.-Control-Armored Service Co., Inc. (Tenn. & Miss. Corporations), MC-F-6796, M. C. C. 6-18-58. 81.74 Motor Truck-Denied .... 81.74 Authority for Motor Carrier of Property to Control One or More Other Such Carriers Denied by Div. 4: Black, J. F.-Control-Colony Motor Transp. & Parksville Trucking Co., Inc., MC-F-6509, ... M. C. C. 6-24-58 (embraced in MC-F 6471) 81.93 As only Black and Maryland-New Jersey Trucking Co. were named as respondents, divestiture orders to be entered herein will be directed to them. MC-F-6471, J. F. Black-Investigation of Control-Colony Motor Transp., M. C. C. 6-24-58, Div. 4. 82.10 Although not a large carrier, Best Way has been prosperous, is acquainted with general territory served by Johnson Freight Lines and would bring to that carrier urgently needed finances and more efficient management, including use of modern and efficient equipment, all of which would result in rendition of an improved and more efficient service in public interest. MC-F-6513, Best Way Motor Freight, Inc.-ControlJohnson Freight Lines, Inc., 6-5-58, Div. 4. 82.30 As under findings herein vendee will be authorized to purchase and retain less authority than originally contemplated, parties may, if they so desire, adjust purchase price downward without further authority from Commission. MC-F-6732, Pic-Walsh Freight Co.-Pur.-Hunter Cartage Co., .... M. C. C. . . . ., 6-17-58, Div. 4. 82.30 In light of financial conditions of Miss. and Tenn. Armored companies, their past earnings record and anticipated future earnings, purchase price is not excessive. MC-F-6796, Wells Fargo Armored Service Corp.-Control-Armored Motor Service Co., Inc. (Tenn. & Miss. CorporaM. C. C. 6-18-58, Div. 4. .... tions), 82.31 Considering savings anticipated through reduction of empty miles operated, purchase price to be paid for stock appears to be reasonable. In view of required cancellation, however, parties may adjust purchase price downward, if they so desire, without further authority from Commission. MC-F-6411, Frigidways, Inc.-Control & Merger-Hilton Truck Lines, Inc., 6-27-58, Div. 4. 82.33 Intangibles 82.33 Amounts paid for intangibles are not properly capitalizable. Amortization, under accounting method provided in Commission's accounting rules, gives interested persons a correct history of account, reflecting original costs, accumulated reserve for amortization, and net amount carried as an asset. See 40 M. C. C. 318. As requested, condition imposed will allow 20 years within which to amortize amount in question. MC-F6796, Wells Fargo Armored Service Corp.-Control-Armored Motor Service Co., Inc., (Tenn. & Miss. Corporations), M. C. C. . . .., 6-18-58, Div. 4. 82.35 Employment Contracts .... 82.35 As Maislin Ltd. would be entitled to expect full time use of their (Abraham and Bernard Maislin) services during period of their employment, it does not appear that such employment would be device used for indirectly increasing purchase price. Compare 58 M. C. C. 583. MC-F6452, Maislin Bros. Transport, Ltd.-Control-Maislin Transport, Inc., M. C. C. ...., 6-20-58, Div. 4. 82.35 With respect to employment contracts, it may reasonably be concluded on evidence presented that they are true employment contracts providing for rendition of services for compensation received and are not devices to increase amount payable to Reeves group for their stock. MC-F6544, Pittston Co.-Control-Brink's Inc., M. C. C. 7-11-58, Div. 4. .... ..... 82.35 Employment agreements, if they are true employment contracts and are not merely a means of indirectly increasing consideration, are not, as such, subject to Commission jurisdiction. 59 M. C. C. 459. Compensation to be paid chief executive officer here would be for services actually rendered and not a means of increasing purchase price of stock of two companies. MC-F-6796, Wells Fargo Armored Service Corp.-Control -Armored Motor Service Co., Inc. (Tenn. & Miss. Corporations), M. C. C. . . .., 6-18-58, Div. 4. 82.38 Minority Holders .... 82.38 All stockholders are entitled to receive equal but not more favorable treatment than that afforded stockholders who have already tendered shares for purchase by Pittston, 59 M. C. C. 735. Purchase price payable for shares of these stockholders should be generally same as provided for in case of personal friends of Reeves group and employees of Brink's. Findings specifically conditioned accordingly. MC-F-6544, Pittston Co.-Control-Brink's Inc., . . . . M. C. C. ... ., 7-11-58, Div. 4. 82.7 82.74 Public Interest Unauthorized Consummation 82.74 It has been found, in other proceedings, that effectuation of prior unlawful control of a carrier is not necessarily bar to approval of a sec. 5 application, where evidence clearly shows that transaction, apart from law violation would be consistent with public interest for future. However, evidence of record herein, considering unlawful control and past limited operations, is wholly inadequate to support such conclusion. MC-F-6471, J. F. Black-Investigation of Control-Colony Motor Transp., 6-24-58, Div. 4. .... M. C. C. 82.74 Control was exercised without Commission's prior approval and in violation of sec. 5 (4) of Act. Law violation is continuing. Under present circumstances, however, denial of application is unwarranted, because transaction has been shown otherwise to be consistent with public interest. MCF-6635, Colonial Coach Lines Ltd.-Pur.-Massena, Coach Lines Ltd., 6-24-58, Div. 4. 83. Prior Utilization of Authority 83.02 Irregular-Route Common Carrier 83.02 As Hilton is irregular-route common carrier, its operations are esentially on call and demand basis; and this factor necessarily has an effect upon frequency of service and commodities transported, and full exploitation of considered rights has been limited by its financial resources. Considering all of these factors, it would seem inequitable to entirely pulverize or atomize this carrier's operation by requiring it to show service in every instance in connection with its certificated rights. MC-F-6411, Frigidways, Inc.-Control & Merger-Hilton Truck Lines, Inc., 6-27-58, Div. 4. 83.02 Limited classes of commodities and irregular character of vendor's authority make it apparent that his operations necessarily would be sporadic and that he could not be expected to operate throughout his authorized territory with same degree of regularity as, for example, carriers engaged in transportation of general commodities. 60 M. C. C. 663; 65 M. C. C. 752. MC-F-6577, Maryland Transp. Co.-Pur.-G. T. Filman (J. D. Gauger, Administrator), 7-3-58, Div. 4. 83.03 Motor Contract Carrier 83.03 Lack of evidence that other commodities have been transported will not in this instance be construed as indicating that rights authorizing transportation of them are dormant. Vendor is contract carrier and in no event would be expected to show consistent movements of all of commodities covered by operating rights. MC-F-6732, Pic-Walsh Freight Co.-Pur.Hunter Cartage Co., ... M. C. C. ...., 6-17-58, Div. 4. 83.2 Degree of Utilization 83.25 Operation to Best of Ability 56 83.25 That Hercules would concentrate on more remunerative part of its business considering difficulties confronted is understandable. M. C. C. 137. MC-F-6500, Philander Cooke-Control-Hercules Trucking Co., Inc., 6-20-58, Div. 4. 83.3 83.35 Proposal by Vendee Reinstitution of Operation 83.35 To approve application and permit revitalization of that portion of Shippers' rights, which are dormant, under control of applicant, and without showing need for service, would not be consistent with public interest. Compare 70 M. C. C. 741. MC-F-6380, Roy Barsh-Control-Shippers Service, Inc., M. C. C. .. 6-13-58, Div. 4. |
