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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 Grey. hound 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.
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 certifi, cate, 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 Hacken. sack.
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 East, serving intermediate points, and through the Lincoln Tunnel is unauthorized; and that such unauthorized operation is unlawful in violation of section 206 (a) of the act.
An order will be entered requiring defendant to cease and desist from the operation found unlawful, and dismissing the complaint otherwise.
SPLAWN, Commissioner, concurring:
To the extent that these findings will have the effect of reopening the question of defendant's right to engage in short-haul mass transportation between Manhattan and the nearby New Jersey territory, I concur in the result.
PATTERSON, Chairman, dissenting in part:
In my opinion the conclusions reached in the prior report should here be approved without modification.
COMMISSIONER MAHAFFIE joins in this dissenting in part expression.
COMMISSIONER ALLDREDGE dissents.
13 M. C..
CRUDE TALC FROM CALIFORNIA MINES TO DUNN, CALIF.
Submitted May 19, 1944. Decided June 23, 1944
Upon investigation, shipments of crude talc by motor common carrier from Calle
fornia mines to Dunn, Calif., found to be moving in intrastate commerce and not subject to the Interstate Commerce Act. Proceeding discontinued. Reuben G. Hunt for respondent. M. L. Harker for the Office of Price Administration.
REPORT OF THE COMMISSION
Paulsen and March, a motor common carrier of mineral products and ore concentrates in California and Nevada, proposed increased commodity rates on crude talc, minimum 40,000 pounds, from seven mines in the Death Valley District of California to Dunn, Calif. The Office of Price Administration filed a protest requesting the suspension of the proposed rates. The proposed rates were not suspended, but this investigation was instituted into their reasonableness and lawfulness otherwise.
Upon consideration of the evidence, we are of the opinion that the traffic on which the rates apply is in intrastate commerce and not subject to the provisions of part II of the Interstate Commerce Act.
Crude talc is mined in Inyo and San Bernardino Counties, Calif., at mines owned by certain talc companies, and shipped by the tale companies over Paulsen and March's line to Dunn. The movement is over routes lying wholly within California, and the bills of lading show Dunn as the destination. At Dunn, the crude talc is delivered by Paulsen and March into bins owned by the talc companies. The bins are next to tracks of the Union Pacific Railroad, and the crude tale is emptied from the bins into railroad cars for transportation by rail to other California points, principally to Los Angeles, where crude talc is pulverized and processed for market by the talc companies. The talc companies are the shippers and consignees of the shipments over the lines of Paulsen and March and the railroad.
Although some of the finished product, talc, is shipped from Los Angeles to points outside of California, most of it is sold and used in the State. When the crude talc is shipped, and during its transportation, neither the talc companies for the carriers have any knowledge of the ultimate destination of any particular portion of the shipment after processing.
Paulsen and March do not participate in joint rates with the railroad and have no arrangements with it for through transportation. Under the circumstances described, it is clear that the transportation by Paulsen and March is in intrastate commerce, and that this Commission has no jurisdiction under the Interstate Commerce Act over the rates under investigation. In view of our lack of jurisdiction, it is unnnecessary to consider the evidence of the parties respecting the reasonableness of the rates.
We find that the transportation services performed by the respondent in the Transportation of crude talc from the California mines to the shipper's bins at Dunn, over intrastate routes, are not operations in interstate or foreign commerce within the meaning of the Interstate Commerce Act; that the rates for the transportation are not subject to our jurisdiction; and that the proceeding should be discontinued. An order discontinuing the proceeding will be entered.
43 M. C. a