Opposition Brief — Adirondack Transit Lines, Inc. v. United States

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Text

Octoser Term, 1944

No. 913

ADIRONDACK TRANSIT LINES, INC.

Appellant,

THE UNITED STATES OF AMERICA,

INTERSTATE COMMERCE COMMISSION, er at.

MEMORANDUM IN OPPOSITION TO MOTIONS

TO AFFIRM JUDGMENT OF DISTRICT COURT

AND IN OPPOSITION TO STATEMENTS AGAINST

JURISDICTION

Martin J. KE.ty, Jr.,

Counsel for Appellant.

SLARENCE E. Horn, JR.,

Of Counsel.

lupro1aL PRINTING Co., INC., 82 BEEKMAN St., N. Y.—BARCLAY 7—3648-9 <q 182

INDEX

PAGE

Memorandum In Opposition to Motions to Affirm and

In Opposition to Statements against Jurisdiction... 1

Appellant in opposition to the Motion to Affirm filed

by the United States of America and Interstate Com-

merce Commission respectfully states, the following

ee Sr OE i wevedevedtecrceveceees 2

In reply in respect to Defendants-Appellees, United

States of America and Interstate Commerce Com-

Mission second issue..........-seeeeeees ad ag eins 11

In reply with respect to Defendants-Appellees, United

States of America and Interstate Commerce Com-

I napesvaenéeee 17

Conclusion with respect to the Motion to Affirm by

Appellees, United States of America and Interstate

COD SID nhc ccecdcorcccectcssoecess 21

Reply with respect to Motions to Affirm and State-

ments against Jurisdiction filed by Defendants-Inter-

venors-Appellees, Hudson & Manhattan Railroad

Company and Manhattan Coach Line, Inc., et al.... 22

Conclusion with respect to the Motions to Affirm and

Statements against Jurisdiction filed by Defendants-

Intervenors-Appellees, Hudson & Manhattan Rail-

road Company and Manhattan Coach Line, Inc., et al. 24

RC Ga Ge TG en dt gee ededaseeenases 25

rr eee hensdedeeeeereus 26

ii INDEX

TasLe or Cases CITED

PAGE

Alton Railroad Company v. United States, 315 U. 8S.

DD. ncvcccasccdceuncevddeasdatecsdbncetassatenenes 23

Cincinnati, Newport and Covington Rwy. Co., Common

Carrier Application, 30 MCC 423 .........-.+-++5 15

Crescent Express Lines v. The United States, 320 U. S.

GE. condiccedetnedecaeeeeseerdeeeetssedeseeioess 23

Lincoln Tunnel Applications, 12 MCC 184..... 14, 15, 16, 25

Nevin Midland Lines, Common Carrier Application

(MC18975), 4 MCC 547 2.0... .. ee eee eee cece eeees 13, 14

Noble v. United States, 319 U. S. 88 ..........-006-- 23

Pennsylvania Greyhound Lines, Inc., Lincoln Tunnel

‘Route, 30 MCC SEB ....ccccccccccscccccccccevess 23

Union Stockyard v. U. S., 308 U. S. 213 ........... 21

United States v. Maher, 307 U. S. 148 .............- 23

U. S. v. Carolina Freight Carriers Corporation, 315

Oy Bs OE ance 6050 dads dear enensecenaxvesevevenses 23

White Horse Pike Bus Company, Incorporated, Com-

mon Carrier Application (No. MC1973), 2 Motor

Caster Gaeen GP occccacccsevscesessesesvcseoss 12,14

Orner AvTHorITiIES CITED

Interstate Commerce Act (Part II),

Bestia SERS) cccccsccvevesceseveesevecvesse 3, 5, 11

Motor Carrier Act,

| PPOTTTITIETIIT TTT 8,9

United States Code,

I on ic cece ds beuaeesees bneubeaceus 9, 10

SEL GEE bic row snonnscnedévawccensseseceennn 23

I Eg ane when eedihesenshedaenl 23, 24

Supreme Court of the United States

Octoser Term, 1944

No. 913

ADIRONDACK TRANSIT LINES, INC.

Appellant,

vs.

THE UNITED STATES OF AMERICA,

INTERSTATE COMMERCE COMMISSION, er at.

MEMORANDUM IN OPPOSITION TO MOTIONS

TO AFFIRM JUDGMENT OF DISTRICT COURT

AND IN OPPOSITION TO STATEMENTS AGAINST

JURISDICTION

The Plaintiff-Appellant files this brief pursuant to

Rule XII, paragraph ‘‘3’’ and Rule VII, paragraph ‘‘3”’

of the General Rules of this Court.

The United States of America and the Interstate Com-

merce Commission, Defendants-Appellees, filed a joint mo-

tion to affirm the decree of the District Court.

The Defendant-Intervenor-Appellee, Hudson & Man-

hattan Railroad Company has filed a motion to affirm the

order and judgment of the District Court and a Statement

against Jurisdiction.

The Defendants-Intervenors- Appellees, Manhattan

Coach Lines, Inc., Manhattan Transit Company, West-

wood Transportation Co., Inc., Westwood Transportation

Lines, Inc., Intercity Transportation Co., Inc., Jersey City

& Lyndhurst Bus Co., Inc. and Mountain Transit Corpora-

tion, have filed a motion to affirm the decree and judgment

of the District Court and a Statement against Jurisdiction.

Appellant in Opposition to the Motion to Affirm Filed

by the United States of America and the Interstate

Commerce Commission States the Following in

Respect to the First Issue:

The facts of the instant case are not disputed. Only

issues of law are involved.

It is the contention of the Appellant, a common carrier

of passengers by motor vehicle, that its use of the Lincoln

Tunnel, a vehicular tube between and connecting New York

City, N. Y., with Weehawken, N. J., as a route between the

aforesaid municipalities, is not in violation of the certifi-

cate of convenience and necessity issued to it by the Inter-

state Commerce Commission.

The Appellant contends as a matter of law, which con-

tentions are the sole issues herein, that such right or au-

thority to use the tunnel crossing accrued to it by virtue

of the express provisions of its certificate of convenience

and necessity. It also claims such right by virtue of its

filing an application for a change of route with the Inter-

state Commerce Commission, which application specifically

designated the Lincoln Tunnel and adjoining streets as the

route of travel between Weehawken, N. J., and New York

City, N. Y., and the resulting acts of omission and com-

mission of the Interstate Commerce Commission on said

application.

The Appellant’s said certificate designates the Appel-

lant’s route between Saranac Lake, N. Y., and New York

City, N. Y., via routes specified therein from Saranac Lake,

N. Y., to the intervening point of New Jersey Highway S5.

Said certificate continues as follows:

‘«* * * Thence over New Jersey Highway S 5, New

Jersey Highway 1, and unnumbered roads to Wee-

hawken, N. J., and thence across the Hudson River

to New York and return over the same route.”’

Appellant’s certificate was issued pursuant to Section

206(a) of the Interstate Commerce Act (Part II), col-

loquially known as the ‘‘ grandfather clause.’’ Said ‘‘ grand-

father clause’’ empowered the Interstate Commerce Coin-

mission to grant certificates of convenience and necessity

to interstate motor carriers who were engaged in service

on June 1, 1935, and had continuously thereafter remained

so engaged, subject to certain exceptions or provisions not

pertinent herein.

Appellant’s application for said certificate was made

January 31, 1936, and said certificate was issued by said

Commission, June 4, 1937, effective July 5, 1937. Prior

to the issuance thereof and on January 18, 1937, at an

informal hearing before an Interstate Commerce Commis-

sion representative authorized to conduct the same, an

amendment to the Appellant’s ‘‘grandfather’’ application

was accepted by and filed with the Interstate Commerce

Commission. The record discloses such filing and the Inter-

state Commerce Commission admits it. Almost five months

later said Commission issued said certificate of convenience

and necessity, the portion of which heretofore set forth,

is now in question.

The description of that portion of said certificate, ‘‘ Wee-

hawken, N. J., and thence across the Hudson River to

New York, * * *’’ is admittedly broad in scope. Broad

not in respect to designation of the termini points, but

broad only as to the designation of the manner of traversing

the Hudson River between Weehawken, N. J., and New

York City, N. Y. The Appellees contend and the District

Court held that this portion of said certificate is ambiguous,

and that it therefore follows that if said certificate is am-

biguous, then the said Commission has the right and the

power to interpret and construe its own order and cer-

tificate unless such interpretation or construction is erro-

neous or arbitrary. The Appellant agrees that the Com-

mission does have the power to interpret and construe its

own orders and certificates where the same are ambiguous,

and that its interpretation and construction is entitled to

great weight.

However, it logically follows that if said certificate is

not ambiguous, no interpretation or construction by the

Commission is necessary or proper. Appellant contends

said certificate is not ambiguous, and the same is not subject

to interpretation.

The only color of ambiguity that can be attached to

Appellant’s certificate is that it is broad in scope, and a

finding of ambiguity predicated on the ground that no par-

ticular manner or route of traversing the Hudson River

between Weehawken, N. J., and New York City, N. Y.,

has been designated, is unwarranted and illogical.

It is this interpretation of the Court that the Appellant

contends is arbitrary and erroneous. In issuing the cer-

tificate tec the Appellants, the route of the Appellants as

indicated in their original application over several hundred

miles of highway in the States of New York and New

Jersey was meticulously followed. The Commission being

cognizant of the proposed modification in the Appellant’s

routing between Weehawken, N. J., and New York City,

N. Y., issued a certificate which, in this area only, did not

meticulously follow the route specified in the Appellant’s

original ‘‘grandfather’’ application. In this immediate

area only did its certificate broaden the authority granted

to the Appellant. The purpose and intent of such grant

would appear to be obvious and not ambiguous.

However, although the Appellant denies that its cer-

tificate is ambiguous and thereby subject to the Commis-

sion’s interpretation, Appellant will assume for purpose of

argument that the certificate is ambiguous. Would then

the construction heretofore applied by the District Court

and the Commission be correct. Appellant submits that

such construction is arbitrary and erroneous. Overt acts

and actual conduct of the Commission are such as to compel

the Commission to interpret said certificate as authorizing

the use of the tunnel.

The record shows that when the original application

for a certificate of convenience and necessity was made

by the Appellant, pursuant to Section 206(a) of the Inter-

state Commerce Act (Part II), the Appellant’s route across

the Hudson River between Weehawken, N. J., and New

York City, N. Y., on June 1, 1935 was the West Shore

Railroad Ferry, and such route was so specified in the ap-

plication. Almost five months before the issuance of the

certificate, the Appellant filed with the Commission at the

aforementioned informal hearing, an amended ‘‘grand-

father’’ application requesting the use of the tunnel cross-

ing between New York City, N. Y., and Weehawken, N. J.,

on the opening thereof. Prior to the issuance of the cer-

tificate, the Commission had before it the Appellant’s origi-

nal ‘‘grandfather’’ application for a certificate and the

said amended application. The certificate so issued did

not specify the route as set forth in the original applica-

tion, but was couched in the broad language. ‘‘ Weehawken,

N. J. thence across the Hudson River to New York * * *.”’

That such broad description of route was given cannot

be attributed to mistake. The report of Division 5 of the

Interstate Commerce Commission said in respect to the

issuance of the certificate ‘‘Here, there is no question of

fraud, misrepresentation, or a certificate issued in error.’’

At no time has it been contended or held by the Court, the

Commission or the Appellees that there was fraud, mis-

representation or mistake in the issuance of Appellant’s

certificate.

The intent of the Commission is further evidenced by

the fact that one day subsequent to the opening of the

tunnel to public and commercial vehicular use, Appellant

filed with the Interstate Commerce Commission on forms

prescribed by the Commission for such purpose an applica-

tion for change of route. The printed matter on said forms

advised that if application was not granted, applicant would

be sent proper forms in order to apply for a certificate

or a permit to extend operations. It is undisputed that

the Commission never forwarded any forms to Appellant.

The form on which application was made was prepared

by the Commission and furnished to applicants by virtue

of the Commission’s order dated May 17, 1937. Appended

to said form and printed thereon is an explanation. This

explanation contains the following words:

‘If the application is not granted the applicant will

be sent proper forms in order to apply for a cer-

tificate or permit to extend operations.”’

This explanation was, as appears from the record, a part

of the order of the Commission itself approved on the

aforementioned date.

What intent is disclosed by such action or non-action

on the Commission’s part? If the original intent had not

been te authorize the use of the tunnel crossing by the

Appellant’s certificate, the Commission would be obligated

to notify the Appellant to apply for a certificate or permit

to extend operations, particularly when by the wording of

their forms, they charged themselves with the duty of

giving uotice in event said application for change of route

was denied. On December 22, 1937, the day the Lincoln

Tunnel was opened for use, Appellant herein discontinued

its operations between New York City, N. Y., and Wee-

hawken, N. J., via the ferry and routed its operations be-

tween the aforesaid municipalities via the tunnel route, and

has operated daily and continuously through the tunnel

since the opening thereof.

The original complaint proceeding out of which the

issues herein arose, was not brought on the motion of the

Commission, but was instituted by some of the intervenors

herein by complaint dated January 15, 1940. While such

inaction on the part of the Commission might ordinarily

not reflect any tangible evidence of intention, viewed in the

light of the open and constant use of the tunnel by the

Appellant accompanied by the foregoing application for

change of route and ‘‘grandfather’’ amendment filed with

the Commission, creating the additional notice of record,

the ostensible acquiescence of the Commission to such opera-

tion, must constitute to a great degree a recognition of

lawful operation.

Further and strong evidence of intention is disclosed

by the following excerpt from the report of Division 5

wherein the following statement appears:

*‘On January 18, defendant (Appellant herein)

filed an amendment to its ‘grandfather’ application

and sought authority to operate through the tunnel

on its completion. On December 23, 1937, after its

certificate was effective, defendant filed a change-of-

route application 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 con-

sidered a violation of the terms of the certificate and

no action was taken on the application.’’ (Parentheses

and italics supplied.)

The Appellant contends the interpretation and construc-

tion of the Appellant’s certificate by the full Commission

in its opinion of June 6, 1944, which construction and inter-

pretation was affirmed by the District Court, is so violently

opposed to each and every overt act of the Commission, as

heretofore mentioned, that such construction and inter-

pretation is erroneous and arbitrary. The Appellant is not

alone in contending that the interpretation which it has

put on the certificate issued to it and the subsequent action

of the Commission with respect to the amendment of route

authorized its service via the tunnel is the proper one. It

should be significant at this point to call the Court’s atten-

tion to the fact that the Examiner before whom the matter

was tried considered the operation justified under the facts

and that he was supported in this conclusion by Division 5

of the Commission to which Division the matter was sub-

mitted on exceptions to the report and that on the full

Commission’s decision, four Commissioners dissented from

the Commission’s order overruling Division 5.

The Appellees contend that this is not a proceeding to

suspend, change or revoke a certificate as contemplated by

Section 212(a) of the Motor Carrier Act. But of what

moment is this argument when the effect of the order is

tantamount to a partial revocation, modification and

suspension of the authority granted to the Appellant by

the Commission’s certificate. The order of the Commission

construing the section of the certificate under consideration

here has stated that they will construe it to mean ‘‘from

Fairview over Fairview Avenue to North Bergen; thence

over Park Avenue; thence over Boulevard East to its inter-

section 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.’’

This is certainly not the route specified in the certificate;

it is not the route specified in the application; it is not the

route specified in the amendment to the application. It is

in effect an attempt to restrict the Appellant’s routing in

an area where the Appellant enjoys a broader certificated

authority. It is not contended that the certificate issued by

the Commission to the Appellant was procured by fraud

or misrepresentation or issued by mistake. In the absence

of these faets the certificate itself should constitute the

Appellant’s authority. That which the Appellant is author-

ized by the certificate to do it should be able to do. That

which it may not do pursuant to the terms of the certificate

it is precluded from doing. The only authority for suspen-

sion, termination, revocation or amendment of a certificate

issued by the Interstate Commerce Commission is contained

in Section 312 of the United States Code (Section 212 of

the Motor Carrier Act):

**In the case of Smith Brothers, John C. Sandidge,

Receiver, Revocation of Certificate (MC 16670),

Vol. 33 Motor Carrier Cases 465, at page 472, the

Commission states as follows:

‘In our opinion, the language of the foregoing

section (Section 212 of the Motor Carrier Act) is

clear and definite and unmistakably shows that Con-

gress intended that a certificate, once effective, may

be terminated by us only on the conditions, and

according to the procedure, therein specifically pro-

vided. 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 cer-

tificate, duly and regularly issued, becomes effective,

our authority to terminate it is expressly marked off

and limited. Al! 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 a final judgment or decree marks the end of a

court proceeding.’’ (Parentheses supplied.)

In issuing its cease and desist order here on appeal the

Commission has disregarded the express authority granted

by it to the Appellant. It has by such order attempted to

amend its pre-existing certificate. In effect, the theory

followed by the Commission has been to take the position

that the authority granted should not have been granted

and to take the position that despite the wording of the

authority contained in the certificate, the Commission would

effectively amend the same by its cease and desist order

and require the Appellant to return to the route followed

by it in its service on June 1, 1935. The cease and desist

order is an attempt to effect an amendment of the Appel-

lant’s certificate without fulfilling the requirements of Sec-

tion 312 of the United States Code. With what security

ean the public deal thereafter with a certificate. The

Appellant’s certificate plainly does not specify the ferry

and does not require the reversion by the Appellant to the

ferry as a means of crossing the Hudson River between

Weehawken and New York. Such a crossing is not speci- —

fied in the certificate. A stranger to the former service of

the Appellant upon reading the certificate could not realize

that any such limitation of street routings in Weehawken

as proposed by the Commission in its cease and desist order

was applicable to the Appellant’s certificate. If the de-

cision of the Commission is sustained, then the wording of

a certificate is of no moment since the determination of the

rights therein contained cannot be gleaned from the word-

ing thereof. Recourse must be had to history although the

certificate puts nobody on notice that it is not self-contained

and self-descriptive.

The Appellant’s certificate is most certainly not re-

stricted by its words to the highway and river crossing

used by the Appellant on June 1, 1935. This, however,

would be the effect of the enforcement of the cease and

desist order.

The Court’s decision in upholding the Commission’s

action which in this manner amends, suspends, terminates

and revokes in part the authority contained in the Appel-

lant’s certificate is inequitable and erroneous.

In Reply With Respect to Defendants-Appellees, United

States of America and Interstate Commerce Commis-

sion, Second Issue:

The Appellees urge that the Commission by virtue of

Section 206(a) of the Interstate Commerce Act is em-

powered to issue a certificate under that clause to a carrier

only if ‘‘any such carrier or predecessor in interest was

in bona fide operation as a common carrier on June 1,

1935, over the route or routes or within the territory for

which application is made and has so operated since that

time’’; and that since Appellant did not and could not

operate via the Lincoln Tunnel during the grandfather

period the Commission was not authorized under the

‘*erandfather’’ clause to grant operating rights over such

route.

However, the Commission does not subscribe to the

theory that the ‘‘grandfather’’ clause froze all activities

of interstate carriers to the exact route the carrier was

operating on the crucial day, June 1, 1935. The Appellant

strongly urges that the Commission has recognized the

distinction between an actual change in route and a devi-

ation or modification wholly within municipalities.

In making its change from the Ferry crossing to the

Lincoln Tunnel crossing of the Hudson River, the plain-

tiff was required to extend its route approximately seven-

tenths of a mile. This extension was wholly within the

Town of Weehawken, N. J. into which town the plaintiff

had received authority to operate.

The Commission’s general rule with respect to devia-

tions of routes by a carrier within a municipality is that

it is not concerned with such deviations. Only in excep-

tional cases where the deviations of routes within a munic-

ipality goes to the essence of the operation itself are they

concerned. In issuing the certificate to the Appellant they

did so without foreknowledge that approximately two years

thereafter they would make a determination that excep-

tional circumstances prevailed in the New Jersey area

adjacent to the Lincoln Tunnel. The Appellant’s certifi-

cate, therefore, should be considered as having been granted

under the provisions of the Commission’s general rule. It

is the Appellant’s contention that this is exactly what hap-

pened. No question of convenience and necessity in the

use of the Lincoln Tunnel was involved at the time of the

issuance of the certificate to the Appellant nor at the time

of the commencement of service by the Appellant through

the Lincoln Tunnel at the opening thereof. No specified

authority was required by the Appellant to make this

change from the ferry crossing to the tunnel crossing be-

tween Weehawken, New Jersey and New York City, New

York. As long as the Appellant had the authority to

cross the Hudson River from Weehawken, N. J. to New

York City, N. Y., it could use any river crossing which

travelled between said two points.

In White Horse Pike Bus Company, Incorporated, Com-

mon Carrier Application (No, MC 1973) 2 Motor Carrier

Cases 79 at page 80, Division 5 in granting a certificate to

an interstate bus line, stated as follows:

‘*Various streets within Philadelphia, Camden,

Absecon, Pleasantville, and Atlantic City are in-

cluded in the description of regular routes in the

application. We are not concerned here with the

routes traversed within municipalities or with the

routes over which applicant operates between ad-

joining municipalities. Camden adjoins Philadel-

phia, Absecon adjoins Pleasantville, and Pleasant-

ville adjoins Atlantic City. The routes between

Camden and Philadelphia, Absecon and Pleasant-

ville and Pleasantville and Atlantic City need not

be specified in any certificate granted herein.’’

In the foregoing case a certificate not limited as to street

routings within large cities such as Philadelphia, Pa.,

Camden, N. J. and Atlantie City, N. J. was granted for a

bus operation under a ‘‘grandfather’’ application. This

case was submitted March 6, 1937 and decided May 26,

1937.

It is significant to note that even though the applicant

here specified in the description in its application streets

within Philadelphia, Pa., and Camden, N. J., two very

large communities, one of which is the third largest city

in the United States, the Commission as of the date of

this petition between such points did not concern itself

with the street routings.

In Nevin Midland Lines, Common Carrier Application

(MC 18975), 4 MCC 547, Division 5 in issuing a certificate

on the ‘‘grandfather’’ application for an omnibus carrier,

stated:

‘*We have considered the record and find that

the examiner adequately stated that facts in the

following report which accompanied his recommended

order, although we take occasion to add that his

statement of the doctrine that the Commission is

not concerned with routes traversed within munici-

palities must be read in the light of the routes here

considered and is therefore not to be accepted as a

precedent for use in any case in which the routes

within municipalities constitute the very essence of

the operation or at least assume greater importance

than here. We express no opinion as to what our

decision might be in those circumstances.’’

The statement of the Examiner referred to as to the

Commission’s doctrine with respect to routes traversed

within municipalities, 4 MCC 550, is as follows:

‘*Various streets in the cities on the claimed

routes are described in the application, as amended.

The Commission is not concerned with routes tra-

versed within municipalities, and such streets need

not be specified in any certificate granted herein.’’

Some of the cities involved in the application passed

upon were New York, N. Y., Washington, D. C., Jersey

City, N. J., Newark, N. J., Elizabeth, N. J., Trenton, N. J.,

Philadelphia, Pa., Baltimore, Md., New Brunswick, N. J.,

and Pittsburgh, Pa.

The Nevin Midland Lines case was submitted Decem-

ber 24, 1937, decided February 28, 1938, and it is significant

to note that the operations included service between New

York City, N. Y., and Jersey City, N. J., through the

Holland Tunnel. As of such date, therefore, the Commis-

sion did not consider the delineation of streets within a

large New Jersey City connected by tunnel with New York

City, as a necessary part of the certificate.

The certificate of the Appellant was issued June 5,

1937, effective July 5, 1937. We, therefore, see that in

May, 1937, a few months prior to the issuance of the cer-

tificate to the Appellant the delineation of street routes

between the large communities of Philadelphia, Pa., and

Camden, N. J., was not considered of sufficient importance

to be included (White Horse Pike Bus Company, Incor-

porated) and as of a date a year and a half after the cer-

tificate was issued to the Appellant, the Commission was

still of the opinion that the delineation of streets in a cer-

tificate authorizing service between New York City, N. Y.,

and Jersey City, N. J., was not of its concern (Nevin Mid-

land Line).

Even in the case of Lincoln Tunnel Applications, sub-

mitted December 8, 1938, decided March 10, 1939, 12 Motor

Carriers Cases 184, at page 198, in referring to the service

within the Borough of Manhattan, City of New York, in

connection with applications for the use of the Lincoln

Tunnel between New Jersey and New York, Division 5

stated:

**It becomes relatively unimportant, therefore, as

to which routes the operators traverse within the

bE =e

terminal area in Manhattan, and in view of the fact

that there is a measure of control by the city over

the use of its streets, there appears to be no necessity

for designating the routes within Manhattan.”’

The Commission in the Lincoln Tunnel Applications,

however, found it necessary to make a complete designa-

tion of routes within the New Jersey territory involved

therein. It is, therefore, only as a result of a determination

made a year and a half subsequent to the effective date of

the Appellant’s certificate that the Commission made a

determination that street routings in the New Jersey ter-

ritory specified in the Lincoln Tunnel Application case was

a matter with which they were concerned.

It does not appear plausible nor equitable, therefore,

that the Appellant’s certificate which had been in effect

since July 5, 1937, should be subject to the subsequent ex-

ceptional determination requiring street routings in such

New Jersey territory.