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BOARD OF PUB. UTIL. COMMRS. OF NEW JERSEY v. UNITE

June 18, 1955

BOARD OF PUBLIC UTILITY COMMISSIONERS OF the State of NEW JERSEY and the State of New Jersey, Plaintiffs,
v.
UNITED STATES of America, Interstate Commerce Commission, Defendants



The opinion of the court was delivered by: BEGGS

The Interstate Commerce Commission, Division 4, on November 10, 1954, issued a certificate of public convenience and necessity in the Delaware, Lackawanna & Western Railroad Company et al. Ferry Abandonment, Finance Docket No. 18324, permitting the 'abandonment by The Hoboken Ferry Company, and abandonment of operation by The Delaware, Lackawanna and Western Railroad Company, of the ferry line between Hoboken, Hudson County, N.J., and Christopher Street, Borough of Manhattan, City and County of New York, N.Y.' On March 15, 1955, the State of New Jersey and the Board of Public Utility Commissioners of that State brought this action against the United States and the Interstate Commerce Commission under 28 U.S.C. § 2321 et seq., to suspend, enjoin, annul, and set aside the Commission order. As required by 28 U.S.C. § 2325, the action was heard by a three-judge district court constituted according to 28 U.S.C. § 2284. An individual, Lee L. Glezen, and a Citizens Transit Committee sought leave to intervene as plaintiffs, and The Delaware, Lackawanna and Western Railroad Company and The Hoboken Ferry Company asked to be allowed to intervene as defendants.

 I. Prior Proceedings.

 On November 12, 1953, the Railroad and Hoboken filed a joint application with the Interstate Commerce Commission for authority to abandon ferry service on the Christopher Street line. A hearing was held before an examiner of the Interstate Commerce Commission on April 5th through the 8th, 1954, and the New Jersey Board of Public Utility Commissioners, the Citizens Transit Committee, and others who have not sought to intervene in this suit appeared in opposition to the application. The examiner issued a proposed report recommending that abandonment be allowed, and exceptions and replies to this report were filed. On November 10, 1954, Division 4 of the Interstate Commerce Commission issued its report and order, finding that 'the present and future public convenience and necessity permit abandonment' and allowing ferry operations to cease forty days from the date of the order.

 Petitions for reconsideration were then addressed to the full Commission and on December 10th the Commission stayed the effective date of the order until further disposition of the matter. On January 17, 1955, the petitions were denied and March 15, 1955, was fixed as the effective date of the order allowing discontinuance of the ferry. At the request of a Judge of this court, the Commission voluntarily extended this date to March 30, 1955. After hearing the State of New Jersey and the Board of Public Utility Commissioners (the only parties then appearing to oppose the abandonment), this court on March 28, 1955, refused to issue a temporary injunction prohibiting abandonment pending a final disposition of the controversy because the State and the Board stated that they were unable to give bond as required. See Rule 65(c), Fed.Rules Civ.Proc. 28 U.S.C.A. On April 12, 1955, the court heard arguments on the merits from all parties who desired to make them, decision on the right of the Railroad, Hoboken, Glezen and the Transit Committee to intervene being then reserved.

 II. Standing to Sue.

 The requirement that Commission approval of the abandonment of these ferry facilities be obtained is derived from the Interstate Commerce Act, Chapter 1 of 49 U.S.C.A. Section 1(18) provides in part that 'no carrier by railroad subject to this chapter shall abandon all or any portion of a line of railroad, or the operation thereof, unless and until there shall first have been obtained from the commission a certificate that the present or future public convenience and necessity permit of such abandonment.' Section 1(3) defines 'The term 'railroad' as used in * * * (the chapter to) include all bridges, car floats, lighters, and ferries used by or operated in connection with any railroad.' Since Hoboken is a ferry owned by the Railroad carrier and operated in conjunction with it for continuous carriage, it was necessary and proper for application to be made to the Commission under 49 U.S.C.A. § 1(18) for a certificate authorizing abandonment of ferry operations.

 It is contended here that New Jersey and its Board of Public Utility Commissioners have no standing to maintain a suit attacking the action of the Commission on the application properly made to it.

 In different types of cases involving plaintiffs other than state authorities, the criteria of standing to attack an order of the Commission have not been clearly revealed. Compare City of New York v. United States, D.C.E.D.N.Y.1921, 272 F. 768, with Jersey City v. United States, D.C.N.J.1950, 101 F.Supp. 702. Section 2323, 28 U.S.C., does provide that 'any party or parties in interest to the proceeding before the Commission, in which an order or requirement is made, may appear as parties of their own motion and as of right, and be represented by their counsel, in any action involving the validity of such order or requirement or any part thereof, and the interest of such party.' This provision, however, has been interpreted not to confer automatically a right on any party before the Commission to institute and maintain a suit attacking Commission action. See Alexander Sprunt & Son, Inc., v. United States, 1930, 281 U.S. 249, 50 S. Ct. 315, 74 L. Ed. 832, and Pittsburgh & West Virginia Railway Company v. United States, 1930, 281 U.S. 479, 50 S. Ct. 378, 74 L. Ed. 980. But see Baltimore & Ohio Railroad Co. v. United States, 1924, 264 U.S. 258, 44 S. Ct. 317, 68 L. Ed. 667.

 Nevertheless, in this case there is pertinent statutory authority, 49 U.S.C.A. § 1(20), expressly allowing the maintenance of this action. See Goldman, Standing to Challenge Orders of the I.C.C., 9 Geo. Wash. L.Rev. 648, 679(1941). It provides: 'Any construction, operation, or abandonment contrary to the provisions of this paragraph or of paragraph (18) or (19) of this section may be enjoined by any court of competent jurisdiction at the suit of the United States, the commission, any commission or regulating body of the State or States affected, or any party in interest; * * *' Although this provision could have been interpreted to be applicable only when there was a construction or abandonment without the authority of a Commission certificate, the statute was held in Claiborne-Annapolis Ferry Co. v. United States, 1932, 285 U.S. 382, 52 S. Ct. 440, 76 L. Ed. 808, to allow suit when a certificate has been granted by the Commission. At page 392 of 285 U.S., at page 443 of 52 S. Ct. of its opinion, the Supreme Court said: 'The inhibition applies where there is no certificate in fact, or where the commission lacked power to grant the outstanding one because of insufficient evidence to support its findings or other reason. An invalid certificate would leave the situation as though none had issued.' Thus, the Board of Public Utility Commissioners, which is a 'commission or regulating body of the State * * * affected' within the terms of the statute and which participated in the proceedings before the Commission, clearly has standing to maintain this action. See Transit Commission v. United States, 1932, 284 U.S. 360, 52 S. Ct. 157, 76 L. Ed. 342. And since the State controls the Board and ultimately, as parens patriae, is as interested in the proceedings as the Board, the State has the necessary status as a 'party in interest' to participate in this action along with its Board of Public Utility Commissioners. See State of Colorado v. United States, 1926, 271 U.S. 153, 46 S. Ct. 452, 70 L. Ed. 878.

 No challenge has been made to the right of the Transit Committee and Glezen to intervene as plaintiffs and the right of Hoboken and the Railroad to intervene as defendants. Section 2323, 28 U.S.C., provides that '* * * any party or parties in interest to the proceeding before the Commission, in which an order or requirement is made, may appear as parties of their own motion and as of right, * * * in any action involving the validity of such order * * * and the interest of such party' and that 'Communities, associations, corporations, firms, and individuals interested in the controversy or question before the Commission, or in any action commenced under the aforesaid sections may intervene in said action at any time after commencement thereof.' Consequently, the applications to intervene must be allowed.

 III. Fact Findings by the Commission.

 On the merits, the contentions of these plaintiffs are primarily three. They argue that Division 4 of the Commission made unwarranted and insufficient findings of fact, that it applied inappropriate standards in reaching its conclusion, and that it failed to rule on certain contentions of the parties opposing the abandonment. We find no merit in any of these arguments.

 The report of Division 4 contains complete, detailed findings of fact which the plaintiffs have not in any way shown to be unsupported by substantial evidence on the record considered as a whole. In summary, the Division found that the Christopher Street ferry has sustained substantial losses during recent years. With total revenues for the years 1948-1953 respectively of $ 356,000, $ 324,000, $ 295,000, $ 295,000, $ 293,000, and $ 238,000, the ferry incurred net deficits in these respective years of $ 371,000, $ 206,000, $ 311,000, $ 357,000, $ 448,000, and $ 252,000. On the other hand, the Division found that a substantial segment of the ferry's passengers would by its abandonment be put to a greater expenditure of money and time for transportation. Although there are alternative routes such as the Hudson and Manhattan ...


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