Motion — Adirondack Transit Lines, Inc. v. United States

In the District Court of the United States

for the Southern District of New York

Crvm. No. 26-508

AptrRoNDACK TRANSIT Lines, INC.,

PLAINTIFF-APPELLANT

Vv.

Unitep StTaTes OF AMERICA AND INTERSTATE

COMMERCE COMMISSION, DEFENDANTS-APPELLEES

MOTION TO AFFIRM

Appellees, pursuant to Rule 12, paragraph 3,

of the Rules of the Supreme Court of the United

States, move that the decree of the District Court

be affirmed.

This is a direct appeal from the final judg-

ment,’ dated November 3, 1944, of a specially con-

stituted district court of three judges established

pursuant to the Urgent Deficiencies Act of Octo-

ber 22, 1913, dismissing plaintiff’s complaint to

- set aside an order of the Interstate Commerce

Commission. The Commission’s report and order,

dated June 6, 1944, required plaintiff to desist and

abstain from certain motor-bus operations found

by the Commission to be unlawful, unless and

1 The Court also on October 16, 1944, rendered a per curiam

opinion and made findings of fact and conclusions of law.

(1)

620288—45

2

until plaintiff shall have received an appropriate

certificate of public convenience and necessity

authorizing such operations. The operations thus

prohibited consisted of transportation between

Weehawken, New Jersey, and New York City

through the Lincoln Tunnel instead of by ferry.

An appeal was allowed on December 2, 1944, and

appellees were served with the appeal papers on

December 8, 1944.

There is no controversy as to the facts. The

Commission’s report and order were entered on

the complaint of certain bus lines, intervening de-

fendants here, which are engaged in short-haul

mass transportation between New York City and

urban territory in New Jersey. In this complaint

they charged that plaintiff was engaging in cer-

tain transportation not authorized under a cer-

tificate of public convenience and necessity, which

it held, and prayed that plaintiff be ordered to

discontinue such operations. From the Commis-

sion’s report of, June 6, 1944, it appears that

plaintiff holds a certificate, issued by the Commis-

sion on June 4, 1937, under the ‘‘grandfather

clause’ of Section 206 of the Interstate Com-

merece Act (49 U. 8S. C. 306), authorizing, inter

alia, service between Saranac Lake, New York,

and New York City over certain highways speci-

field, and ‘thence over * * * unnumbered

roads to Weehawken, N. J., and thence across

the Hudson River to New York, and return over

3

the same route.’’ This certificate became effective

on July 5, 1937. On or about December 22, 1937,

the Lincoln Tunnel was opened to traffic. It

passes under the Hudson River, connecting Wee-

hawken and New York. Plaintiff immediately

began to operate through the Tunnel instead of

using the ferry, which it had formerly employed

between Weehawken and New York. Pilaintiff’s

new method of operation resulted in cessation of

operations not only over the ferry, but also over

Pershing Road, which leads to the ferry in Wee-

hawken, and the inauguration of operations in

Weehawken over that portion of Boulevard East

extending south from its intersection with Per-

shing Road to the Tunnel entrance, serving inter-

mediate points through the Tunnel to New York.

From an earlier report of Division 5 of the Com-

mission in this same case (42 M. ©. C. 123) it

appears that on December 23, 1937, plaintiff filed

a change-of-route application * in which it sought

the right to use the Tunnel rather than the ferry,

? This application and the Commission’s general order of

May 17, 1937, under which it was filed, are both attached as

exhibits to the complaint. As indicated by this order, such

applications were to be used only where the proposed change

did not involve any substantial change in service between the

terminal points or to and from intermediate and off-route

points, and where there was no question of public convenience

and necessity under Section 207 presented. This procedure

was designed to permit such minor changes without a formal

hearing and without compliance with Section 207, which

ordinarily forbids the institution of new operations without

proof that they are required by the public convenience and

necessity.

4 .

and that no action was ever taken by the Oom-

mission on this application.

The Commission decided that plaintiff’s certi-

ficate did not authorize operation through the

Tunnel and that the new method of operation was

therefore unlawful. The basis of its decision is

indicated in the following excerpt from its report:

With respect to operation through the

Tunnel, defendant contends, on reply, that

while we could not certify that public con-

vience and necessity required operation

through a nonexistent facility, we could and

did grant to defendant, by the use of the

term: “* * * and 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 authoriza-

tion of such bona fide operations as were

engaged in on June 1, 1935, and continu-

ously since, over the route or routes (inso-

far as is here pertinent) for which applica-

tion is made. Whatever the intention may

have been in incorporating the previously

described description in defendant’s

“‘grandfather”’ certificate, plainly such cer-

tificate 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

5

or prior thereto. It will be noted, more-

over, that the authority set forth in de-

fendant’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 sooperatedsince * * *.”’

We conclude that the term ‘“‘unnumbered

roads to Weehawken”’ in defendant’s ¢er-

tificate, should be construed to mean the

roads, highways, and streets over which de-

fendant 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 en-

trance, 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.

The Commission’s decision was, however made—

* *

* without prejudice to the filing

of an application by defendant, under sec-

tion 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 Sec-

ond War Powers Act, 1942, for such oper-

ation during the pendency of such applica-

tion filed under section 207.’

The District Court, in its per curiam opinion,

concluded that plaintiff’s certificate was am-

biguous, that its construction was for the Com-

mission, and that the courts could not disturb

such an interpretation unless it was clearly ar-

bitrary or erroneous, which was found not to be

the case here. It further concluded that even

if it were free to interpret the certificate de novo,

it would independently have reached the same

result as did the Commission.

As appears from its jurisdictional statement,

plaintiff attacks the court’s decree and the Com-

mission’s action primarily on the following three

grounds: (1) That the Commission’s action

amounts to a partial revocation, suspension, or

change of plaintiff’s certificate in violation of and

without compliance with Section 212 of the Inter-

state Commerce Act (49 U. S. C. 312); (2) that

plaintiff’s certificate did convey the right to op-

erate through the Tunnel; and (3) that plaintiff

* Plaintiff accordingly has since filed with the Commission

an application under Section 207, requiring proof of public

convenience and necessity for permanent authority to conduct

operations through the Tunnel (Docket No. MC-2835, Sub.

10) and also an application for temporary authority to use

the Tunnel (Docket No. MC-2835, Sub. 11 W). Under the

latter application temporary authority to use the Tunnel was

granted to plaintiff on August 1, 1944, and pursuant thereto

it is presently operating in that fashion.

i

7

in any event received such right because of the

Commission’s acts in respect to its change-of-

route application of December 23, 1937. It is

submitted that these contentions present no sub-

stantial question and that the decree of the Dis-

trict Court should therefore be affirmed without

arguinent.

(1) The present proceeding was not one to

suspend, change, or revoke a certificate, as con-

templated by Section 212 of the Act. That sec-

tion provides for the amendment or revocation of

a certificate by the Commission upon application

by the holder, or upon complaint or the Com-

mission’s own initiative, after notice and hearing,

for failure to comply with the Act, the Commis-

sion’s lawful orders or regulations issued there-

under, or any term of the certificate. Here in-

stead the question is one of construing an existing

certificate, which does not specifically mention

operations via the Tunnel to determine whether

such certificate nevertheless, actually contem-

plated and authorized such operations. The Com-

mission clearly has power to construe its orders.

Thus the Supreme Court has held that the Com-

mision possesses authority to construe its general

accounting regulations and_to apply them to par-

ticular situations.‘ Likewise in cases involving

* Kansas City Southern Ry. Co. v. United Siates, 231 U. 8S.

423; Norfolk & Western Ry. Co. v. United States, 287 U. 8.

134, 140; See also Chesapeake & Ohio Ry. Co. v. United

States, 5 F. Supp. 7, 14.

8

rate orders of the Commission the court has made

it plain that if an order is indefinite or ambiguous

application should be made to the Commission for

interpretation and clarification.’

2. Both the Commission and the District Court

have held, contrary to plaintiff’s contentions, that

plaintiff’s certificate did not convey the right to

operate via the Tunnel. The court, while indicat-

ing that it would have reached this result inde-

pendently, nevertheless, concluded that the Com-

mission’s construction of its own certificate was

binding upon it unless it was clearly erroneous or

arbitrary. Plainly the court was correct in thus

ascribing much weight to the Commission’s inter-

pretation. It is well settled that the court which

issues a mandate is normally the best judge of its

content on the general theory that the author of a

document is ordinarily the authoritative inter-

preter of its purposes. Federal Communications

Commission v. Pottsville Broadcasting Co., 309

U. 8. 134, 141. No reason appears why this

should not be equally true of a construction of

its mandate by the Commission, especially in view

of the great weight attached to its interpreta-

* American Express Co. v. Caldwell, 244 U. 8S. 617, 627;

Georgia Commission vy. United States, 283 U. 8. 765, 772; see

also American Tel. & Tel. Co. vy. United States, 299 U. 8.

232, 242, 244-5; /linois Commerce Commission v. Thomson,

318 U. S. 675.

tions of the statute which it administers * and to

its expert determination under the “‘grandfather”’

clause as to the scope of past operation.’ And

see Illinois Commerce Commission y. Thomson,

supra, 680-1, 685,

Likewise, the court was correct in concluding

that the Commission’s interpretation of its certi-

ficate was not clearly erroneous or arbitrary. The

Commission’s construction of the certificate as

limiting plaintiff to use of the ferry route actually

employed by it during the “grandfather’’ period,

was the only possible one in the light of its powers

under the “grandfather” clause, and the general

purpose of that clause. The Commission is em-

powered to issue a certificate under that clause

to a carrier only if “any such carrier or pre-

decessor in interest was in bona fide operation as

& common carrier by motor vehicle on June 1,

1935, over the route or routes or within the ter-

ritory for which application is made and has so

operated since that time.’’ Since the plaintiff

did not and could not operate via the Tunnel

route during the “grandfather” period, the Com-

mission was not authorized under the “‘grand-

father”’ clause to permit plaintiff to operate over

that route. As has frequently been reiterated,

* United States v. American Trucking Association, 310

U. S. 534, 544.

" United States v. Carolina Carriers Corporation, 315 U. 8.

475, 482-483.

10

that clause contemplates substantial parity be-

tween future operations and prior bana fide opera-

tions. Alton Railroad Co. vy. United States, 315

U. 8S. 15, 22; United States v. Carolina Freight

Carriers Corp., supra, 481; Noble v. United States

319 U. 8S. 88, 92; Crescent Express Lines v.

United States, 320 U. 8. 401, 409. Accordingly,

the Supreme Court has consistently upheld re-

strictions imposed by the Commission upon car-

riers wherein it has sought to limit them with

great precision to the exact type of service per-

formed during the ‘‘grandfather’’ period. United

States v. Maher, 307 U. S. 148; Noble v. United

States, supra; Crescent Express Lines v. United

States, supra.

This construction is also perfectly consistent

with the terms of the language employed in the

certificate. The Commission concluded that the

phrases ‘‘unnumbered roads to Weehawken’’ and

“thence across the Hudson River to New York”’

had reference not to any irregular route or terri-

torial operation, but instead to the regular routes

employed, and the method of crossing the river

used by plaintiff during the ‘“‘grandfather’’ pe-

riod. This construction plausibly follows from

the Commission’s statements that its consistent

practice has been to refuse to authorize passenger

operations except over regular routes,* and that

* The statute in fact requires the Commission in certificates

issued under Section 207 to limit the activities of passenger

carriers to regular route operations between fixed termini.

li

the above authority was predicated upon the find-

ing in the initial paragraph of the certificate “that

the said applicant was in bona fide operations over

said routes on June 1, 1935, and has so operated

since.”’ It is significant, too, as the District Court

observed, that the certificate did not authorize

transportation under but merely “across” tke

river. Furthermore, the Commission’s construc-

tion of this certificate is consistent with its con-

clusions in other cases, one of them relating to

certain of the intervening defendants, that where

carriers, pursuant to pending ‘“‘grandfather’’

clause applications, had been using the Wee-

hawken ferry or the Holland Tunnel, they could

not secure the right to change to the Lincoln

Tunnel without proof that the public convenience

and necessity required such operations. Lincoln

Tunnel Applications, 12 M. C. ©. 184, 195; Penn-

sylvania Greyhound Lines, Inc., Lincoln Tunnel

Route, 30 M. C. ©. 373.

3. Clearly, too, as the District Court held, the

Commission’s action with respect to plaintiff’s

change of route application of December 23, 1937,

conveyed no rights to use the Tunnel. It is un-

disputed that the Commission took no action with

respect to this application, and, as the court

properly held, such inaction was not the equivalent

of a favorable decision upon the application.

Union Stock Yard Co. V. United States, 308 U. 8.

213, 224.

12

For the foregoing reasons it is respectfully sub-

mitted that the judgment of the District Court

should be affirmed.

CHARLES Fany,

Solicitor General.

DanteL KNOWLTON,

Chief Counsel,

Interstate Commerce Commission.

DeceMBER 1944.

U. 5. GOVERNMENT PRINTING OFFICE: Iea8