has incurred deficits, computed on the basis of those methods, must be accepted.
IV. Standards Applied by the Commission.
In making its ultimate decision on the basis of these findings of fact the plaintiffs contend that the Division has applied improper standards. In state of Colorado v. United States, supra, 1926, 271 U.S. at pages 168-169, 46 S. Ct. at page 456, Mr. Justice Brandeis specified the standards applicable to such a determination: 'The sole test prescribed is that abandonment be consistent with public necessity and convenience. In determining whether it is, the Commission must have regard to the needs of both intrastate and interstate commerce; for it was a purpose of Transportation Act 1920 to establish and maintain adequate service for both. * * * The benefit to one of the abandonment must be weighed against the inconvenience and loss to which the other will thereby be subjected. Conversely, the benefits to particular communities and commerce of continued operation must be weighed against the burden thereby imposed upon other commerce. * * * The result of this weighing -- the judgment of the Commission -- is expressed by its order granting or denying the certificate. * * * In that balancing, the fact of demonstrated prejudice to interstate commerce and the absence of earnings adequate to afford reasonable compensation are, of course, relevant and may often be controlling.' And in a more recent case involving the abandonment of an unprofitable branch of a railroad, State of North Carolina v. United States, D.C.M.D.N.C.1954, 124 F.Supp. 529, 532, Chief Judge Parker of the Fourth Circuit, sitting as a member of a three-judge court, reiterated the applicability of this test: 'In view of the losses unquestionably sustained in the operation of the southern portion of the line and the expense which must be incurred to keep that portion in operation, it cannot reasonably be said that the order of the Commission was without support in the findings or in the evidence; and whether the prospective loss to the public and shippers from discontinuance of the line was sufficient to counterbalance the loss to the railway company and the burden on interstate commerce which would result from its continued operation is a matter which Congress has committed to the judgment of the Commission.'
That the Commission, by Division 4, arrived at a decision by this balancing process referred to in the two decisions last cited is clear from its report which reveals the reasons for its conclusions. At sheet 22 of its report, it said:
'It is apparent from the record that abandonment of the applicants' Christopher Street ferry is warranted. Alternate routes are available for crossing the Hudson River between Hoboken and Manhattan, and the terminal of the Barclay Street ferry, which the applicants will continue to operate around the clock, is only about 1.25 miles south of the terminal at Christopher Street. With the opening of the bridge and tunnels across the river, travel between New Jersey and New York City by motor vehicle has risen in increasing volume. Instead of increasing proportionately, or at least holding its own, the Christopher Street ferry participation in this added traffic shows a steady decline. In fact the record clearly indicates that all ferries are rapidly passing out of the trans-Hudson transportation picture.
'Doubtless, the commuters relying regularly on the Christopher Street ferry for transportation to and from their places of employment will be inconvenienced by its abandonment in the form of increased costs and additional travel time via alternative routes, but such public inconvenience is limited to relatively few persons employed or engaged in business in a small area of Manhattan adjacent to the ferry terminal. These persons cannot reasonably expect the ferry service to be continued for their convenience at the expense of large annual losses to the applicants. Such losses have continued for many years, and there is no indication that they will not persist in the future. Nor is it feasible to insist upon applicants further operation of the ferry indefinitely until such time as a general overall substitute means of transportation can be devised. Under all the circumstances, continued operation of the Christopher Street ferry line would impose an undue and unnecessary burden upon the applicants and upon interstate commerce.'
And at sheet 21 of the report it was said: 'We cannot agree that the standard used by the Supreme Court of the United States in the Colorado case is not applicable here. It is under the theory of that case that the abandonment of the Christopher Street ferry should be permitted. When the riders of the ferry can use an alternate route from the same terminal in New Jersey to a terminal in New York only a little more than a mile from the dock of the service sought to be abandoned, the requirements of their convenience and necessity are reasonably satisfied and the applicants should not be forced to subsidize further the operation to Christopher Street.'
V. Rulings by the Commission on the Contentions of the Parties.
The plaintiffs argue nonetheless that the Division failed in its duty to rule on their argument made as an exception to the examiner's report that ferry service be 'continued subject to payment of a supplemental fare of 10 cents per railroad passenger.' A survey conducted by the Transit Committee did reveal that about 80 percent of a fair sample of ferry passengers indicated their willingness to pay up to a ten cents additional fare per trip to keep the ferry running. See sheet 12 of the report. However, the Division found at sheet 18 of its report that 'It is apparent from the record that the present and prospective future volume of traffic available to the Christopher Street ferry cannot support a fare increase sufficiently large to offset the losses to be incurred from continued operation.' In view of the size of the deficit being incurred by the Christopher Street operation, there is ample support for this finding of the Division, and the finding itself is an adequate ruling on the plaintiffs' contention.
Division 4 considered both the interest of the Railroad and that of the traveling public and concluded on a rational basis that the public interest generally will be furthered by an abandonment of the ferry. Since the Commission is the expert in balancing the considerations in this field and since it has not done so arbitrarily, its decision must be upheld.
The findings of fact of Division 4 of the Commission are adopted by this court. Our conclusions of law are expressed in this opinion.
The complaint will be dismissed for want of equity.
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