*

hearing, be suspended, changed, or revoked, in whole or in part, for willful failure to comply * with any term, condition, or limitation of such certificate * * *; Provided, however, That no such certificate * shall be revoked (except upon application of the holder) unless the holder thereof willfully fails to comply, within a reasonable time, not less than thirty days, to be fixed by the Commission, with a lawful order of the Commission, made as provided in section 204 (c), commanding obedience * to the term, condition, or limitation of such certificate violated by such holder:

* found by the Commission to have been [Emphasis supplied.]

Construing this language in Smith Bros. Revocation of Certificate, 33 M. C. C. 465, the Commission said, at page 472:

In our opinion, the language of the foregoing section is clear and definite and unmistakably shows that Congress intended that a certificate, once effective, may be terminated by us only on the conditions, and according to the procedure, therein specifically provided. We may issue decision upon decision, and order upon order, on an application for a certificate so long as sufficient reason therefor appears and until all controversy is determined, but once a certificate, duly and regularly issued, becomes effective, our authority to terminate it is expressly marked off and limited. All the antecedent decisions and orders are essentially procedural in character, and may be set aside, modified, or vacated, but the certificate marks the end of the proceeding, just as the entry of final judgment or decree marks the end of a court proceeding.

In expressing the views stated above, we do not desire to be understood as holding that a certificate obtained by fraud, or misrepresentation, or one issued in error by this Commission, may not be changed or revoked without proceeding under section 212 (a). Here, there is no question of fraud, misrepresentation, or a certificate issued in error.

The principle so announced is controlling here where changes amounting to partial revocation are sought. A decision having been reached in the proceeding on defendant's "grandfather" clause application, and a certificate having been issued and allowed to become final and effective without exception by interested persons, is conclusive, in the absence of fraud, misrepresentation, or mechanical error, as to the "grandfather" rights of defendant as against belated claims of competitors that too much was granted. Any other rule would contribute an intolerable uncertainty to the finality of any right granted. In the light of this conclusion, we shall further consider the remaining contentions of complainants which have been set forth. The first of these is that the certificate in authorizing operation over "unnumbered roads to Weehawken, N. J., and thence across the Hudson River to New York" is ambiguous, and that resort must be had to collateral sources to determine the actual route authorized. In this connection, they show that all highways and streets in the area involved are numbered or named; and, moreover, that defendant's original application described certain highways used in reaching

Weehawken and described the ferry as a means of crossing the Hudson River.

It cannot be denied that the authorized use of "unnumbered roads" is indefinite to some extent, but on the other hand, the term or condition "over reasonably direct, unnumbered roads" is clearly implied. If it should appear that defendant was operating over circuitous and unnatural “unnumbered roads" which were clearly indefensible, we should consider that we had the power, nothwithstanding the provisions of section 212 (a), to so change defendant's certificate as to specify a particular route in lieu of "unnumbered roads." Such a change would not have the effect of revoking in part or restricting in any way the right granted, but would only serve to make specific and certain what was theretofore stated generally only.

It does not appear here, however, that defendant is operating over "unnumbered roads" which are questionable. The "unnumbered roads" which are authorized lie between Fairview, N. J., and Weehawken. In its application, defendant described its route between these points as "over Hudson County Boulevard and Boulevard East." The actual route now used by it between these points is over Fairview Avenue, in Fairview, and Park Avenue in contiguous North Bergen, N. J., and between North Bergen and Weehawken, over Boulevard East. This is a direct route, and in the absence of any showing that defendant is using or proposing to use routes not contemplated by its certificate, no change therein is required.

In changing its means of crossing the Hudson River from the ferry to the Lincoln tunnel on December 22, 1937, the date when the tunnel was opened to vehicular traffic, defendant availed itself of a more convenient means of crossing the river. Ferry service was subject to delays due to weather conditions and traffic congestion. Use of the Lincoln tunnel eliminated such contingencies, not only from defendant's operation, but also from the operations of complainants which also commenced using this new facility on December 22, 1937, although their applications for authority to operate through the Lincoln tunnel had not then been decided.

In Lincoln Tunnel Applications, 12 M. C. C. 184, complainants herein were authorized to operate between New York City and certain nearby points in New Jersey over specified routes, which authority included the designation of city streets and the Lincoln tunnel. In that proceeding, the Commission, division 5, beginning at page 197, stated:

The considered operations involve mass transportation service entirely within a metropolitan area. To a large extent the communities in New Jersey adjoin one another and a substantial part of the territory is served over city streets which extend through two or more communities. If streets were not desig

nated, in many instances the description of the routes would consist merely of a list of points served and it would be possible for an operator to change its routes at will and serve territory which it had not previously served and in which another operator had developed traffic. The result would be unfair and destructive competitive practices and unstable and uncertain service to the public. The public interest requires that authorized routes shall not be changed arbitrarily, and operators are entitled to protection against unauthorized encroachments in their territories. Upon this record there is no showing that this result can be accomplished in the New Jersey territory without a complete designation of each route.

In the same report, division 5 also said, at page 196:

Upon this record, it is clear that the operation of applicants on Boulevard East between the Forty-second Street ferry and the tunnel, over which intermediate service was rendered, is an extension of route resulting in a substantial increase in service. As above indicated, the operation through the tunnel results in a substantial saving in operating time. The benefits therefrom accrue from the use of an entirely new type of public facility and are of such a nature that a radical change in the riding habits of the public will ensue to the detriment of all facilities which do not use the tunnel but cater to the same traffic. Under these circumstances, and in view of our conclusions herein concerning the need for specific designation of streets, we are of the opinion, and so find, that the operation through the tunnel constitutes a new service for which public convenience and necessity must be proved before a certificate may be issued authorizing such operation.

It appears to be the position of complainants here that the conclusions reached by division 5, in the report cited, are applicable to defendant, and that, in line with that decision, defendant's certificate should contain a description of city streets covering its operation through New Jersey points, and that it should be required, as they were, to establish, in an appropriate proceeding under section 207 (a), that public convenience and necessity require its service through the Lincoln tunnel.

On January 18, 1937, defendant filed an amendment to its "grandfather" application and sought authority to operate through the tunnel upon its completion. On December 23, 1937, after its certificate was effective, defendant filed a change-of-route application1 in which it sought the right to cross the Hudson River through the tunnel instead of by using the ferry. Since the certificate theretofore granted did not specify the means of crossing the Hudson River, the use of the tunnel was not considered a violation of the terms of the certificate, and no action was taken on the application.

That defendant's certificate, as now framed, permits the use of the tunnel route cannot be questioned. The certificate has been in effect since July 5, 1937. There is no hint of fraud in its procurement, and, accordingly, for the reasons already stated, it must be

The two change-of-route applications referred to herein are filed in No. MC-2835.

accepted as a final determination of defendant's "grandfather" right and cannot now be changed (except at defendant's request) in such a manner as to restrict or diminish the right granted.

In this connection, it may be observed, however, that defendant's certificate was granted and became effective long prior to the decision in the Lincoln Tunnel case. Moreover, defendant's operation is basically different in character from that of complainants. They are concerned with mass transportation in an urban territory, while defendant serves a relatively extensive route. Defendant has never undertaken to perform a service between New York City and nearby New Jersey points similar to that of complainants, nor does it now propose to do so.

The remaining question raised by complainants concerns defendant's right to transport passengers between New York City and intermediate points on its route in New Jersey. They are apparently concerned lest defendant enlarge its present operation by the addition of numerous short-haul schedules and engage in the mass transportation of traffic between New York and adjacent New Jersey towns in competition with them. They urge that defendant is not entitled to a certificate so framed as to permit engagement in such mass transportation and take the position that some limitation should be placed in defendant's certificate to preclude it from so operating.

That such a restriction cannot now be added to defendant's certificate without its consent is clear from our foregoing discussion of section 212 (a). Moreover, it is doubtful whether a restriction could be framed to accomplish complainants' purpose without impairing defendant's unquestionable right to serve all intermediate points on its route as it has since prior to June 1, 1935. Consistently with its past operation, defendant is now authorized to transport passengers between the termini of described routes and "to and from" "all intermediate points."

The volume of traffic which defendant moves between New York and points in New Jersey as far north as Hackensack is negligible. Between November 19, 1939, and October 1940, both months inclusive, the daily average numbers of passengers transported by defendant between New York City and nearby intermediate points in New Jersey, as far north as Hackensack, ranged from a peak of 17.7 in December to a low of 5.2 in August. In this period, defendant operated, through the area involved, 7 trips daily in each direction to and from New York City. The northern termini of these New York City schedules were Kingston, N. Y., 3 trips; Warrensburg, N. Y., 1; and Saranac Lake, N. Y., 3. Kingston and Warrensburg are intermediate points on defendant's route between New York City

and Saranac Lake. In addition to this daily service, defendant operates other trips from Kingston to New York City on each Monday and Friday, and on Sundays and holidays; in the opposite direction a Sunday only trip is made from New York City to Kingston. The service performed by defendant over other routes to and from Oneonta and Ticonderoga, N. Y., is not important here. Contrasted to this service by defendant, complainants, Manhattan Transit Company and Manhattan Coach Lines, Inc., in the year 1940, in their joint operation, transported 2,175,083 passengers in 81,969 trips, and Westwood Transportation Company and Westwood Transportation Lines, Inc., jointly transported 2,212,199 passengers in 87,623 trips. Similar statistics for complainants, in 1937, 1938, and 1939, disclose successive yearly increases. In 1937, including 10 days of operation through the Lincoln tunnel in December, passengers totaling 746,475 were transported in the Manhattan operation, and 506,515 in the Westwood operation. A traffic expert, witness for complainants, conceded that, so long as defendant's operation is maintained as at present, their service would not be affected, but asserted that, if defendant should operate schedules between New York City and some point on its route south of Kingston, as a turn-around point, then defendant would be engaged in a "short-haul" operation and its service would endanger the business of complainants. Defendant has not indicated any intention of competing for a greater share of the short-haul operations. We would not be warranted on this record in passing upon the lawfulness of an operation that is not proposed. On the present record, the only evidence of operation by defendant in violation of the terms of its certificate is its operation over certain highways to and from Hackensack. No finding of unlawful operation can be made with respect to defendant's operation between Fairview and New York City, over "unnumbered roads" or "across the Hudson River," or with respect to defendant's right to serve intermediate points in New Jersey.

We find that defendant has willfully failed to comply with the terms of its certificate with respect to its operation between Paramus and Little Ferry; that between such points it is now operating over routes not authorized; and that the complaint in all other respects should be dismissed.

An order will be entered dismissing the complaint, but defendant is hereby directed within 45 days from the service of this report to comply with all terms of its certificate affecting its operations between Paramus and Little Ferry, N. J., and to inform us by affidavit before the expiration of such period that it has done so, serving a copy of the affidavit on each of the parties to the proceeding. In the event de