Hudson tubes, upon their completion.

By means of this route the applicant claims that he will be enabled to render a quicker, safer, and generally more satisfactory service without depriving any of the communities presently served of any of the transportation facilities which they now enjoy. The proposed authorized route is presently under construction and will enable the applicant's busses to enter and leave the city within approximately two blocks of their present 42nd Street terminal. [Emphasis supplied.]

After a further informal proceeding, in which complaints herein participated as protestants, the certificate previously described herein was issued on June 4, 1937, and in accordance with its terms became effective July 5, 1937.

It appears that the segment of defendant's route between Fairview and New York, over which it operated on the statutory date and thereafter until the departure which will be described below, either was inaccurately described in its application or that the designations of certain of the highways used on the statutory date have been changed. In any event, the description in the application is incomplete, and it is undisputed that at the time of the hearing in the instant proceeding the correct description of that portion of defendant's route was as follows:

From Fairview over Fairview Avenue to North Bergen; thence over Park Avenue; thence over Boulevard East to its intersection with Pershing Road (in Weehawken); thence over Pershing Road to the 42nd Street ferry of the West Shore Railroad (in Weehawken); thence by ferry to New York.

Almost 6 months after the effective date of defendant's certificate, namely, on or about December 22, 1937, the facility designated in the quoted statement as the "proposed Mid-Town Hudson tubes," was opened to traffic as the Lincoln Tunnel, hereinafter, sometimes, designated as the Tunnel. It passes under the Hudson River, connecting Weehawken, N. J., with New York City. Defendant immediately began to operate to and from New York through the Tunnel in lieu of using the ferry. Such change entailed a cessation of operation over Pershing Road, abandonment of use of the ferry, and the inauguration of operation over an additional portion (not previously traversed by defendant) of Boulevard East, extending south from its intersection with Pershing Road to the Tunnel entrance, serving intermediate points, and through the Tunnel to New York.

In their petition complainants contend (1) that the authorization in defendant's certificate for operation over "unnumbered roads" between Fairview and Weehawken is ambiguous and indefinite and that the term as there used should be interpreted to mean certain highways; (2) that the term "unnumbered roads to Weehawken, N. J., and thence across the Hudson River to New York *" in defendant's certificate, does not authorize operation over Boulevard

East from its intersection with Pershing Road to the Tunnel, nor operation through the Tunnel, and that such operation should be found to be unauthorized under its certificate; (3) that defendant's operating authority should be so defined that it may not at any future time institute a type of service which complainant alleges it has never rendered in the past, namely, short-haul mass transportation of passengers between New York and intermediate points on its route in New Jersey as far north as Hackensack, N. J. These contentions are to some extent a reiteration of complainants' original position.

un

We are not here concerned with the question of revoking or changing defendant's certificate, a matter discussed at length in the prior report. The question raised by complainants' first and second contentions is whether the operations complained of are authorized by that certificate. Complainants insist that the portion of the description of defendant's routes in the certificate reading: "* numbered roads to Weehawken, N. J., and thence across the Hudson River to New York, authorizes operation only over the highways, and the ferry, over which the operation was conducted on the critical date and thereafter until December 1937; and that operation by defendant over other highways and through the Tunnel is not authorized by such certificate.

In the prior report, division 5 concluded that the term "unnumbered roads" is indefinite but that it clearly implies the term or condition "over reasonably direct unnumbered roads," and that it does not appear that defendant is now operating over "unnumbered roads" that are questionable under that interpretation. That interpretation, in effect, may be understood as meaning that the term "unnumbered roads" is the equivalent of "irregular routes."

We know of no instance where we have authorized a common carrier of passengers by motor vehicle to operate in any manner other than over specified regular routes, except where we have authorized special or charter operations. In this connection, it is pertinent to note that section 207 of the act requires that we limit certificates issued to such carriers to regular routes between fixed termini. The interpretation of the disputed term in the prior report would permit defendant to change at will, within certain undefined limits of circuity, the route traversed on the statutory date and thus to traverse highways and serve intermediate points thereon not then traveled nor served.

An examination of numerous reports in "grandfather" application proceedings wherein we have granted authority for operation over unnumbered roads discloses, without question, that the term has been

generally used to mean specific unnumbered roads or highways over which the applicants concerned operated on the statutory date and continuously thereafter to the time of determination of the respective proceedings. Such highways are detailed in the applications and in the evidence, but no number or designation had been assigned to them by the governmental authorities under whose jurisdiction they fall. For examples of such usage see Blue Way Trailways, Inc., Common Carrier Application, 21 M. C. C. 421, 427; and Interstate Transit Lines Common Carrier Application, 9 M. C. C. 758, 764.

Complainants rely, to some extent, on Lincoln Tunnel Applications, 12 M. C. C. 184, wherein division 5 authorized them to operate between New York, N. Y., and certain nearby points in New Jersey over Hudson Boulevard East in Weehawken, N. J., from Pershing Road to the Lincoln Tunnel and through the Tunnel, as an extension of their "grandfather" authorities which applied over Hudson Boluevard East to its junction with Pershing Road, thence over Pershing Road and Forty-second Street ferry to New York. The same change in operation by defendant is the subject of the instant complaint. In that proceeding, division 5 rejected complainants' contention:

that the change to the tunnel was merely a change (a) in routing which did not involve a change in, or extension of, the services previously rendered, [on the statutory date] and (b) over city streets within municipalities, with which routes the Commission is not concerned. [Interpolation supplied.]

It concluded that the described extensions of complainants' routes, with intermediate service thereover and the use of an entirely new type of facility, result in a substantial increase in service; and that proof that public convenience and necessity require such extension must be shown.

Like complainants in that proceeding, defendant is providing service at intermediate points on the extended segment between Pershing Road and the Tunnel entrance. It contends, however, that the Lincoln Tunnel case is inapplicable, as a precedent, because the applicants under consideration therein had no existing certificates which could be construed as authorizing the use of the extended segment and operation through the Tunnel, whereas it has held such a certificate since July 5, 1937.

It also is argued that the Lincoln Tunnel case does not govern with respect to defendant because applicants therein were engaged in shorthaul mass transportation of passengers, whereas defendant has been serving a relatively extensive route. It is agreed that defendant has transported some passengers in short-haul service between Hackensack and New York and points intermediate thereto, since prior to the statutory date, when space on its busses has been available; and, occasionally, has operated its busses in short-haul service between points

on its routes located between New York City and the New Jersey-New York State line north of Ramsey, N. J.

Defendant's certificate authorizes service at intermediate points without limitation and, although the volume of short-haul traffic carried by defendant is less than that transported by complainants, defendant has no intention of refusing to handle such traffic when it can be accommodated, nor has it done so in the past. It opposed complainants' attempt to denominate it an exclusively long-haul carrier.

The record in this proceeding will not support a conclusion establishing any exact point of divergence between the operations of complainants and those of defendant with respect to short-haul mass transportation, such as would render the principle of the Lincoln Tunnel case inapplicable. It is deemed pertinent to observe, however, that in Pennsylvania Greyhound Lines, Inc., Lincoln Tunnel Route, 30 M. C. C. 373, Pennsylvania Greyhound Lines, Inc., and Central Greyhound Lines, Inc., both long-haul common carriers of passengers, were required by division 5 to show that public convenience and necessity required operation through the Lincoln Tunnel in lieu of the Holland Tunnel, between New York and Jersey City, N. J., over a fully specified route through New Jersey.

and

With respect to operation through the Tunnel, defendant contends, on reply, that while we could not certify that public convenience and necessity required operation through a nonexistent facility, we could and did grant to defendant, by the use of the term: "* thence across the Hudson River * *," a sufficiently broad authority to permit the defendant to change its route and make use of such new facility, if, as, and when the same became available.

Obviously this contention is untenable. The "grandfather" clause of section 206 (a) of the act contemplates only the authorization of such bona fide operations as were engaged in on June 1, 1935, and continuously since, over the route or routes (insofar as is here pertinent) for which application is made. Whatever the intention may have been in incorporating the previously described description in defendant's "grandfather" certificate, plainly such certificate cannot be construed to authorize an operation which was not being conducted at the time the certificate was issued, and could not have been conducted at that time or prior thereto. It will be noted, moreover, that the authority set forth in defendant's certificate is predicated upon the finding in the initial paragraph thereof; "* *: that the said applicant was in bona fide operation over said routes on June 1, 1935, and has so operated since

*

;

We conclude that the term "unnumbered roads to Weehawken," in defendant's certificate, should be construed to mean the roads, high

ways, and streets over which defendant was operating on the statutory date and continuously thereafter until the effective date of its certificate, and that the above-described departure from such routes, including service at intermediate points between Pershing Road and the Tunnel entrance, subsequent to the effective date of its certificate is unauthorized thereunder. We further conclude that the term "thence across the Hudson River to New York," in defendant's certificate, refers to the method of crossing employed by it on the statutory date and on the effective date of its certificate in No. MC-2835, namely, the ferry, and does not authorize operation through the Lincoln Tunnel. Consideration now will be given to complainants' third, and final, contention which as stated seeks a definition of defendant's operating authority in No. MC-2835 which will preclude defendant from engaging in short-haul mass transportation of passengers between New York and intermediate points in New Jersey as far north as Hackensack.

Defendant's certificate authorizes unlimited service at all intermediate points on its routes, including the segment between New York and Hackensack. We have previously concluded herein that any service between Pershing Road and New York, over Boulevard East and through the Lincoln Tunnel, is unauthorized by defendant's "grandfather" certificate. With respect to the remainder of the described segment, the intermediate authority in defendant's certificate is, in the light of our prior conclusions herein, certain and without ambiguity. This is not an appropriate proceeding in which to impose, or to determine the propriety of the imposition of, a limitation in the intermediate authority in defendant's certificate in No. MC-2835.

We are not unmindful of the fact that the disputed provisions of defendant's certificate have been the subject of varying informal interpretations by the Bureau of Motor Carriers. It is, therefore, important that the matter be authoritatively settled here by a determination of the correct interpretation of that certificate.

The findings hereinafter made are without prejudice to the filing of an application by defendant, under section 207 of the act, seeking authority to operate through the Lincoln Tunnel, or seeking temporary authority, under section 210 (a) of the act, as amended by the Second War Powers Act, 1942, for such operation during the pendency of such application filed under section 207.

On reconsideration, we find that, in discontinuing operations over Pershing Road and the ferry, defendant has willfully failed to comply with the terms of its certificate in No. MC-2835; that its operation between the junction of Hudson Boulevard East and Pershing Road, in Weehawken, N. J., and New York, N. Y., over Hudson Boulevard