we were without jurisdiction to consider requests to abandon a 'ferry', or to permit abandonment of only passenger operations if the applicant also transported freight between the same points and would continue to do so after abandonment of the ferry. * * * The record supports the conclusion that the equivalent of the situation there exists here.' (Emphasis supplied.)
We add very briefly that the Erie passenger and freight rail services come into its Jersey City terminus for water transportation across New York Harbor to the end, or rather the beginning, of the line, New York City. The Commission found, much as in its New York Central opinion, that:
'The record clearly shows that the ferry terminals, vessels and other passenger facilities and services of Erie are maintained physically separate from the car float and lighterage equipment and other facilities used in the transporting freight across the Hudson River and that the routes of the water freight service are entirely different from teh route of Erie's Chamber Street ferry line.'
As in the Central litigation there is nothing substantial in the record before us to justify the Commission holding that there is such a distinction between the passenger and freight ferry services of the one line coming into Jersey City after these services are water-bound for the railroad's terminus, New York, City, as to turn them from one railroad line into two or more.
The passenger and freight ferries have the one general superintendent; they have the one set of repair facilities. The freight trains of the line do not unload or load in the passenger terminal at Jersey City. That would be extraordinary practice of which there may be an isolated instance, though none has been brought to our attention. The freight depot is adjacent to the passenger station. The freight ferries are immediately north of the Erie Jersey City passenger ferry slips. On the Manhattan side, the freight carfloats and lighters of course do not land in the passenger ferry slips. As we pointed out in the New York Central opinion, for the speedy and comfortable water transportation of human beings, special passenger boats are furnished, and the freight is delivered on its own special water conveyances, on its own convenient schedules, to adjoining piers or where trackage is available for the freight cars on the floats.
Common sense governs the methods of passenger and property water transportation by the Erie Railroad line to and from its final destination, New York City. But common sense does not support the proposition that the mere dropping of the harbor passenger service from its passenger and freight carrying railroad into New York City brings the Erie within Section 1(18) of the Act and empowers the Commission to permit the discontinuance.
As in our New York Central decision, because we are satisfied that in this matter also the Commission is without jurisdiction to permit the defendant railroad to abandon its passenger ferry service, we will not, at this time, pass upon the other questions raised by the plaintiffs.
Such findings of fact and conclusions of law as are necessary to our decision are expressed in this opinion.
The order of the Commission dated August 14, 1957, affirming its jurisdiction and sustaining its Report and Certificate of June 26, 1957, is in excess of the statutory powers of the Commission and will be set aside and for nothing holden. Decree to be submitted.