No. MC-C-164 MANHATTAN COACH LINES, INC., ET AL., v. ADIRONDACK TRANSIT LINES, INC. Decided June 6, 1944 On reconsideration, findings in prior report, 42 M. C. C. 123, modified. Operation by defendant over a certain portion of Hudson Boulevard East in New Jersey and through the Lincoln Tunnel to New York, N. Y.,' and return over same route, serving intermediate points, found to be unlawful. Cease and desist order entered against defendant as to operations found unlawful and complaint otherwise dismissed. Appearances as shown in prior report. REPORT OF THE COMMISSION ON RECONSIDERATION BY THE COMMISSION: By complaint, Manhattan Coach Lines, Inc., Manhattan Transit Company, Westwood Transportation Lines, Inc., and Westwood Transportation Company, herein collectively referred to as complainants, alleged that defendant, Adirondack Transit Lines, Inc., of Kingston, N. Y., is operating between Paramus, N. J., and New York, N. Y., in violation of the terms of its certificate, using certain streets and highways not specifically authorized, and performing unauthorized transportation of passengers between New York City and certain points in New Jersey; and that as a result of such alleged violations complainants have suffered irreparable damage. The prayer is that defendant be ordered to discontinue the alleged violations, and, that upon failure to do so, its certificate be revoked. In the prior report, 42 M. C. C. 123, division 5 found that defendant had failed to comply with the terms of its certificate with respect to its operation between Paramus and Little Ferry, N. J., and that between such points it was operating over routes not authorized. The complaint in all other respects was dismissed. No order was entered requiring defendant to cease and desist from the operation found unauthorized, but it was directed to comply, within a specified time, with all terms of its certificate affecting the operations found unauthorized, and to inform the Commission by affidavit that it had done so. Defendant has complied. Upon consideration of the record and of a petition filed by complainants, we reopened the matter for reconsideration. The petition is not directed to the finding that defendant was operating over unauthorized routes between Paramus and Little Ferry, and upon consideration of the facts of record, which are fully set forth in the prior report, we affirm the former finding that such operation was unauthorized. Inasmuch as defendant has brought its operation into conformity therewith, no further action by us is necessary with respect to this matter. Facts set forth in the prior report will be restated only so far as is necessary to a clear understanding of the issues. The complaint under consideration concerns alleged unauthorized operation by defendant under the terms of a certificate issued to it on June 4, 1937, in No. MC-2835, pursuant to the provisions of the "grandfather" clause of section 206 (a) of the Interstate Commerce Act, after an informal determination of its application. The portions of the certificate here pertinent read as follows: CERTIFICATE After due investigation: * that the said applicant was in bona fide operation over said routes on June 1, 1935, and has so operated since that time; and the Com mission so finding; therefore, It is hereby certified, operate) * *, as a common carrier by motor vehicle of passengers over the regular routes, between the fixed termini, and to or from the intermediate points, specified below: Between Saranac Lake, N. Y., and New York, N. Y. * thence over New Jersey highway S 5, New Jersey highway 1, and (from Fairview, N. J.) unnumbered roads to Weehawken, N. J., and thence across the Hudson River to New York, and return over the same route. [Emphasis and interpolation supplied.] Defendant's "grandfather" application, filed January 31, 1936. described that portion of its route extending between Fairview and New York, which is the segment in controversy,' as follows: From Fairview to Weehawken Ferry via Hudson County Boulevard and East Boulevard. Then by ferry to New York City. The return route to be the same. In a written statement made by the president of defendant in the the informal proceeding on its application, and filed with us on January 18, 1937, and properly placed in evidence in this proceeding, the portion of its route between Fairview and New York is described in the same manner as shown in the application. However, this statement contains the following paragraph: It is the desire of the applicant that the certificate shall authorized an alternate operation from New York City to New Jersey via the proposed Mid-Town 1 See underlined portion of route description in last paragraph of above-shown excerpts from certificate. 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. 66* 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 |