The opinion of the court was delivered by: MADDEN
Plaintiffs each sue to enjoin, set aside, annul and suspend certain portions of an order of the Interstate Commerce Commission granting to Keansburg Steamboat Company, hereinafter called applicant, a certificate of public convenience and necessity to operate two different types of service as a common carrier by motor vehicle of passengers and their baggage over certain prescribed routes between New York, New York and Long Branch, New Jersey, also servicing certain intermediate points.
Since 1910 applicant had been running vessels between New York City and Keansburg, New Jersey. Under the Commissions' decision herein, travellers on these vessels would be carried by steamboat from the Battery in New York City to Keansburg, New Jersey, and there transferred to its proposed bus line and carried by busses to Long Branch, New Jersey, and certain intermediate points. This would be a coordinated boat-bus service and permission was for an all year round authority but operation would be seasonal most likely from May or early June to late September or October.
The other service granted to applicant is a direct all bus line service from midtown New York City through the Lincoln Tunnel, thence over various highways to Keansburg, New Jersey and thence to Long Branch, serving Keansburg and Long Branch, and the communities between those two points. This direct all bus service would be an all year round operation.
Before discussing the matter it might be well to describe the locality involved. On the south shore of Raritan Bay the New Jersey shore line runs almost east and west. At the easterly end a peninsula like shore protrudes northwardly between Raritan Bay and the Atlantic Ocean, and is Sandy Hook. The mainland's shore turns at almost right angles at this point and runs generally north and south and is washed on the east by the Atlantic Ocean. The town at the corner so made is Highlands. The east-west portion is about 15 miles long with the municipality of Keyport at the westerly end and Highlands at the easterly end. The distance southerly from Highlands to Long Branch is approximately 6 miles. Keansburg (where the pier of applicant is located) is on the south shore of Raritan Bay or as hereinbefore described, is a part of the east-west shore line and lies about 5 miles easterly from Keyport and 10 miles westerly from Highlands.
The application for the certificate of convenience and necessity was filed September 4, 1945, and was referred to a joint board pursuant to section 205 of the Interstate Commerce Act, as amended, 49 U.S.C.A. § 305, composed of representatives of the Utility Boards of New York and New Jersey.
Hearings were conducted by the joint board with an Interstate Commerce Commission Examiner present on June 5, 6, 7, 10, 12, 13 and 14, 1946, during which 1,349 pages of testimony was recorded. The plaintiffs were present, together with others, notably the Pennsylvania Railroad and The Central Railroad of New Jersey, and participated in such hearings together with certain intervenors.
The joint board recommended that the application be granted to the following extent; that upon the coordinated boat-bus service that applicant's busses be permitted to pick up passengers at its pier in Keansburg and serve a named route between the pier and its terminal in Long Branch; that upon the direct all bus service from New York to Long Branch it must maintain closed doors until its pier in Keansburg was reached and then could serve between the pier and its terminal in Long Branch.
The joint board found that there was no need for the proposed service in the towns of Keyport (which is located at the westerly end of the aforementioned 15 mile east-west shore) and Union Beach which adjoins Keyport and is easterly thereof, and recommended that this portion of the application be denied.
Exceptions were taken to this report and referred to Division 5 of the Commission, which, on February 16, 1948, filed its report herein under attack.
The plaintiffs herein applied to the Interstate Commerce Commission for a reopening of the matter and a further hearing, and such application was refused.
The present suits were instituted in this court, the first No. 11460 by the Hudson Bus Transportation Co., Inc., hereinafter called Hudson, on July 1, 1948, and the other by Asbury Park-New York Transit Corp., Coastal Cities Coach Company, and Rollo Transit Corp., hereinafter jointly referred to as Asbury-Coastal, on August 2, 1948. By order properly entered on October 11, 1948 the two matters were consolidated for trial.
Plaintiffs in each instance seek to enjoin, set aside, annul and suspend certain portions of the order of the Commission.
Hudson's attack upon the Commission's decision is against the grant to applicant the right to serve Keansburg which is the terminus of a presently existing bus line by Hudson between New York City and Keansburg.
Asbury-Coastal's attack is against the grant to applicant to serve Long Branch which is the terminus of a presently existing bus line by Asbury Park-New York Transit Corp., together with other intermediate points which are not on Asbury Park-New York Transit Corporation's route, together with attack by Coastal and Rollo its subsidiaries upon the grant to applicant to serve intermediate points between Keansburg and Long Branch served by either of them in intrastate carriage.
It might be well to point out at this juncture the three grounds upon which, generally speaking, a reviewing court, as here, may inquire into the action or ruling of the Interstate Commerce Commission are:
1. Did the Commission have authority in the law for its actions? This is elementary.
2. Was there substantial evidence to support the action of the Commission or to the contrary was its action arbitrary and capricious? See U.S. 344, 352, 60 S. Ct. 931, 84 L. Ed. 1243; The Los Angeles Switching case (Interstate Commerce Commission v. Atchison, T. & S.F.R. Co.,) 234 U.S. 294, 34 S. Ct. 814, 58 L. Ed. 1319; Board of Trade of Kansas City et al. v. U.S. et al., 314 U.S. 534, 62 S. Ct. 366, 86 L. ...