As the Commission has pointed out, such a ruling does not mean that a carrier holding a radial or territorial tour certificate may not under certain circumstances operate primarily between two points. But when such service is undertaken, it must involve something more than bare expeditious transportation. The Commission explained this clearly at sheet 24 of its report, saying: 'When, however, a carrier holding tour authority on a radial or territorial basis undertakes to set up a tour of one day or less between two specific points it then becomes important that something extra and something substantial be added to the bare transportation involved. If regularity, frequency, and expeditious service are introduced as additional factors in such point-to-point operation, then progressively it becomes even more important that these characteristics of an ordinary passenger operation not predominate in the service which is offered and provided to its patrons.'
The nature of this distinction is illustrated by the decision of Division 5 of the Commission in Red Star Sightseeing Line, Inc., Common Carrier Application, 1 M.C.C. 521, 522 (1937), discussed at length in Bingler's brief. Red Star, which operated all-expense trips of several days duration through various states, also conducted one-day trips to Asbury Park and to Lake Hopatcong, New Jersey. On the basis of all of these operations Red Star was granted a territorial tour certificate. But the opinion in the Red Star case reveals that 'something extra and something substantial' was added to bare transportation to Asbury Park and Lake Hopatcong. The Commission states: 'Tickets are sold individually in advance for reserved seats for specific round-trip tours, with no pick-up or discharge of passengers en route. Stops are made at various points of interest, with the driver acting as a guide in instances where no guides are on duty.' Thus, where something more than bare expeditious transportation characterizes the service, point-to-point operations may be conducted under a territorial tour certificate. See e.g., Blue & Grey Sight Seeing Tours, Inc., Common Carrier Application, 8 M.C.C. 124 (1938), and Resler v. Hunter Clarkson, Inc., 41 M.C.C. 665 (1943).
Since Bingler must rely upon the language of its certificate in making its plans and investments, it is important that the language be clear and definite. As we have said, we think that the Bingler certificate is clear and that the Commission's interpretation of the certificate is the proper and reasonable one. The action of the Commission in prior cases indicates the pattern followed by the Commission in this case in distinguishing between point-to-point tour certificates and territorial tour certificates and between allowable and prohibited point-to-point service under a territorial certificate. Moreover, by classifying special operational certificates along these lines, the Commission is acting within its powers in furtherance of a legitimate purpose. In certain situations, certification for expeditious point-to-point tour service may be warranted either because there is no ordinary regular-route service or because there is a need to supplement the regular service. In other situations, where there is adequate expeditious point-to-point service, it may be necessary to allow only territorial tour operations. 'Otherwise,' as the Commission has said at sheet 25 of its report in the instant case, 'a carrier holding such authority, without any fixed responsibility to the public, could concentrate at will on practically and points of its choosing within its authorized territory in direct and destructive competition with the ordinary regular-route carrier upon which the public must depend for its day-to-day basic transportation, in violation of the purport of its certificate and contrary to the public interest and the national transportation policy.'
It is our conclusion that Bingler's territorial tour certificate did not authorize it to conduct the bare expeditious service which it operated between New York City, on the one hand, and Monmouth, Garden State, and Asbury Park, on the other. Although the most direct route was not used by Bingler on the out-bound trip to Asbury Park, we do not think this was sufficiently significant to change the expeditious nature of that service. The order of the Commission prohibiting these operations must therefore be sustained.
Bingler argues that by prohibiting it from performing 'any transportation, in interstate or foreign commerce, of the character found in said report on oral argument to be beyond the scope of the authority heretofore granted to it,' the Commission has gone beyond the scope of this case and placed Bingler in the dilemma of assessing the legality of its order carrier operations at the risk of contempt proceedings. But the hardship on Bingler seems slight for the Commission explained the criteria of proper territorial tour service clearly and adequately in its report. Moreover, the repetition of similar prohibited conduct in like situations may be anticipated and enjoined along with the particular operations in issue in this case. See Brady Transfer & Storage Co. v. United States, D.C.S.D.Iowa 1948, 80 F.Supp. 110, 118, affirmed 1948, 335 U.S. 875, 69 S. Ct. 239, 93 L. Ed. 418. Cf. Consolidated Flower Shipments, Inc., -- Bay Area v. Civil Aeronautics Board, 9 Cir., 1954, 213 F.2d 814, 818, and Schauffler v. United Association of Journeymen & Apprentices of Plumbing & Pipe Fitting Industry, 3 Cir., 1955, 218 F.2d 476, 480.
Bingler also complains of the denial of its petition to the Commission to reopen the case or to institute a general investigation but these were matters which rested within the discretion of the Commission. See Interstate Commerce Commission v. Jersey City, 1944, 322 U.S. 503, 514-519, 64 S. Ct. 1129, 88 L. Ed. 1420, and United States v. Pierce Auto Freight Lines, 1946, 327 U.S. 515, 535, 66 S. Ct. 687, 90 L. Ed. 821. We cannot say that the Commission abused its discretion in denying the relief sought.
Findings of fact were filed by this court on June 9, 1955, as were conclusions of law. What we have said in this opinion supplements those findings and conclusions. Bingler's complaint was dismissed by an appropriate order on June 9, 1955.
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