The opinion of the court was delivered by: FAKE
We have a very voluminous record before us in this case covering petitions, orders, certificates of public necessity and convenience, and also, correspondence, reports of investigations and decisions of the Interstate Commerce Commission bearing on the issues now raised.
It is urged by the plaintiff that the Commission was without authority to enter a certain order, and a superseding certificate thereunder, dated September 24, 1943, wherein and whereby the defendant, Hudson Bus Transportation Co., became vested with certain prior existing rights so modified and changed as to vest in Hudson Bus Transportation Co. a continuous right to operate bus service between West New York and Keansburg, and between Manhattan, N.Y. and Keansburg without a seasonal limitation. A careful study of the preceding rights, commencing with a grandfather right in 1935, shows that originally only a limited or seasonal right from May 15th to September 15rh was involved. However, thereafter on the purchase of the original right and the acquisition of two other rights, Hudson, on the date of the order now complained of, was, by the language of that order, as well as by the language of an earlier order, dated June 11, 1942, vested with an unlimited right to operate the year round. Plaintiff urges that this extended right is in competition with its rights and was permitted by the Commission through 'inadvertence.' This raises a question of fact. Did the Commission function through inadvertence? The record discloses that it did not. That it at all times functioned with actual knowledge of the original limitation, and that it struck out the seasonal limitation by the order complained of and the compliance order of 1940 on which the certificate of June 11, 1942 was based, in the exercise of its discretionary power and in the interest of public necessity and convenience. There can be no doubt of the Commission's authority to enlarge the scope of Hudson's authority. This right, in the Commission, is emphasized in Chicago, St. Paul, Minneapolis & Omaha Railway Co. v. United States, 322 U.S. 1, 64 S. Ct. 842, 843, 88 L. Ed.1093, wherein the court held that the Commission 'had power to include in the authorization provision for service greater than the carrier had asked.' Moreover the best answer to the charge of 'inadvertence' is the ruling by the Commission itself on that point, found in its opinion dated December 10, 1945, wherein it is said 'The description of operating authority therein duplicates exactly the description contained in the Hudson order of July 20, 1940.' We therefore conclude that there was no inadvertence by the Commission on the point raised.
plaintiff further urges that the action of the Commission is invalid because in its order of June 11, 1942 the route is defined as being partially 'over city streets.' It is argued that this description is bad for uncertainty. Under date of December 10, 1945 the Commission filed an opinion covering the use of the phrase, 'over city streets' reciting, among other things, that it had been the practice of the Commission, in issuing certificates to long haul carriers, to designate the highways composing the authorized routes but not to specify the streets that might be used in terminal or intermediate points along the route, citing the Lincoln Tunnel application, 12 M.C.C. 184. The Commission concludes by saying: 'At the time the Hudson order was issued, there was no apparent reason why the city streets should be specified therein. The omission from the certificate issued to Hudson, pursuant to that order of the designation of the streets over which it was authorized to operate, does not establish that the certificate was inadvertently issued.' We agree.
It is interesting to note that the certificate, under which plaintiff, Boulevard, now operates, is subject to the same criticism it directs toward the defendant Hudson's certificate. Boulevard is authorized to operate partially 'over city street' and its certificate contains no specification as to that street.
It appears from the record here that Hudson's right to operate over the year, and without seasonal limitation and 'over city streets,' ripened in the certificate dated June 11, 1942. This certificate was final and the Commission could not revoke or amend it save under the provisions of 49 U.S.C.A. § 312(a), nor can we make a ruling controlling the Commission on this point. Nothing here indicates the presence of the conditions under which that section may be invoked. See United States v. Seatrain Lines, Inc., 329 U.S. 424. 67 S. Ct. 435, 91 L. Ed. 396.
The ultimate or relevant facts are found as follows:
1. Louis Binetti, doing business as West New York-Keansburg Bus Line, filed an application for an operating certificate, as a common carrier, by motor vehicle of passengers and their baggage, between West New York and Keansburg, on February 8, 1936.
2. The application of Binetti was filed pursuant to Section 206(a) of the Interstate Commerce Act, 49 U.S.C.A. § 306(a), under the 'grandfather' clause.
3. Jersey City-Keansburg Transit Lines, Inc., filed an application for an operating certificate as a common carrier, by motor vehicle of passengers and their baggage, between Jersey City and Keansburg, on January 30, 1936.
4. The application of Jersey City-Keansburg was filed pursuant to Section 206(a) of the Interstate Commerce Act, under the 'grandfather' clause.
5. On May 9, 1938, a compliance order was granted to Binetti authorizing him to operate between West New York and Keansburg during the season extending from May 15 to September 15, inclusive. 'From West New York over City Streets via Union City, Jersey City and Bayonne, N.J., Staten Island, N.Y., Perth Amboy, South Amboy, Morgan, Lawrence Harbor, Clifford Beach,
Keyport and Union Beach, N.J., to Keansburg and return over the same route.'
6. On May 17, 1938, a compliance order issued to Jersey City-Keansburg Transit Lines, Inc., authorizing it to operate between Jersey City and Keansburg over a route similar to that of the Binetti route from Jersey City to Keansburg via Bayonne and Staten Island.
7. The compliance order of May 17, 1938 to Jersey City-Keansburg Transit Lines, Inc., contained no seasonal limitation but did specify the city streets ...