The opinion of the court was delivered by: MCLAUGHLIN
This action, under 28 U.S.C. §§ 1336, 1398, 2284, 2321-2325 and 5 U.S.C.A. § 1009, is brought by the New Jersey agency administering that state's regulatory powers over public utilities and by the state itself. It arises from the Order of the Interstate Commerce Commission of May 15, 1957 which on petition for reconsideration filed by these plaintiffs and others, affirmed the jurisdiction of the Commission and sustained the report, order and certificate of its Division 4, permitting abandonment by the New York Central Railroad of its ferry service across the Hudson River between Weehawken N.J., and New York City, N.Y. The New York Central Railroad has been allowed to intervene as a defendant. The Counties of Rockland, New York, and Bergen, New Jersey; the New Jersey municipalities of Bergenfield, Bogota, Dumont, Harrington Park, Haworth, Norwood, Ridgefield Park, Teaneck and Weehawken, the Citizens United Transit Committee, an unincorporated association of West Shore commuters; the Brotherhoods of Railroad Trainmen and of Locomotive Engineers; and Robert J. Kilpatrick are plaintiff-intervenors. The Public Service Commission of the State of New York has been permitted to appear as amicus curiae.
The New York Central Railroad or its predecessors since 1883 have furnished railroad passenger and freight service on the West Shore line (now known as the River Division) along the west bank of the Hudson River between Albany, New York and New York City, by way of Weehawken, New Jersey. The final portion of the line is a passenger and freight water service across New York Harbor from Weehawken to Manhattan. The application to the Commission for leave to abandon the passenger ferry service is part of an overall effort by the railroad to put an end to its West Shore passenger service, because of alleged serious financial losses in connection therewith though at the same time retaining its profitable freight operation on that line.
The dispositive question here is one of jurisdiction. Has the Commission the power to permit this railroad to discontinue its passenger ferry service across the Hudson River between Weehawken, New Jersey and New York City? The sole source of authority claimed by the Commission and urged by the carrier is Section 1, Paragraph (18) of the Interstate Commerce Act, inserted by 41 Stat. 477 (1920), as amended 49 U.S.C.A. § 1(18). That reads:
'No carrier by railroad subject to this chapter shall undertake the extension of its line of railroad, or the construction of a new line of railroad, or shall acquire or operate any line of railroad, or extension thereof, or shall engage in transportation under this chapter over or by means of such additional or extended line of railroad, unless and until there shall first have been obtained from the commission a certificate that the present or future public convenience and necessity require or will require the construction, or operation, or construction and operation, of such additional or extended line of railroad, and 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. * * *'
It is to the italicized portion that the Commission and railroad point. There can be no possible doubt about the validity of the applicable principal derived from that language. It is that the Commission has no right to permit only a partial discontinuance of the operations over a particular railroad line. Plainly Section 1(18) above bestows no such right. What the Commission and railroad insist upon is that the present situation involves the complete abandonment of a portion of a line of railroad and not simply discontinuance of the passenger service of that portion of the line; therefore, that it is within the province of the statute.
That ferries are included within the definition of 'railroad' is evidenced by Section 1(3) of the Act which provides that 'The term 'railroad' as used in this part shall include all * * * ferries used by or operated in connection with any railroad.' The Commission has jurisdiction over the establishment of rates payable including those payable by passengers riding on railroad-operated ferries who do not, concomitant with their ferry travel, also ride on trains. New York Central & Hudson River R. Co. v. Board of Chosen Freeholders of Hudson County, 1913, 227 U.S. 248, 33 S. Ct. 269, 57 L. Ed. 499. It is equally sound that the Commission possesses the right to allow complete abandonment of a railroad branch line though the latter be located wholly within a state. State of Colorado v. United States, 1926, 271 U.S. 153, 46 S. Ct. 452, 70 L. Ed. 878. Under that opinion if the contemplated stoppage of the Weehawken passenger ferry effects the complete abandonment of a line of railroad or portion of a line of railroad, the Commission's action was proper. If it is merely the elimination of part of the service of that line, the Commission has no justification for assuming control of the proceeding.
The problem is one of first impression as far as the courts are concerned. It is asserted that the so called Lackawanna case
is squarely against the jurisdictional arguments of the plaintiffs. Actually, the Commission's jurisdiction was not challenged in that litigation, was never before the court and not passed upon by that court. Some reference is made to an unpublished memorandum opinion in West 23rd Street Ferry Association v. The Hoboken Ferry Co., (S.D.N.Y. Dec. 31, 1946 C.A. 39-370). That was on motion for a stay. There is not the slightest indication from the extremely short opinion that the plaintiff had raised the question at all and the indications from the Commission hearing are to the contrary.
Following the 1920 bestowal upon the Commission of authority to allow abandonment of a line or portion of a line of railroad, that body in a series of opinions sharply distinguishing between partal discontinuance of servce and complete abandonment of a line or of a portion thereof, held that discontinuance of passenger service where the freight operation was being maintained was not the complete abandonment of a line of railroad called for by Section 1(18) and consequently was beyond the power of the Commission to grant. In Kansas City Southern Ry. Co. Application 94 I.C.C. 691, 692 (1925) there was a proposed discontinuance of regular passenger and freight service with the lines involved continuing to operate intermittent freight service. The Commission held that the application 'is not an abandonment within the meaning of that term as used in paragraph 18 of Section 1 of the Act and that we are, therefore without jurisdiction under that section to authorize such partial discontinuance of service.' In Morris and Essex Railroad Co. Abandonment, 174 I.C.C. 49, 52 (1931) the application asked for total abandonment, both freight and passenger, of a portion of a railroad line and of just the passenger service of the balance. The New Jersey Board of Public Utility Commissioners had denied a similar petition. The Commission recognized its jurisdiction over the first part of the application but, holding it had no authority over the second and that the latter was an essential constituent of the application, denied the entire request.
Within a year there was a third major Commission ruling on this same subject in Norfolk & W. Ry. Co. Abandonment, 187 I.C.C. 66 (1932). One branch of the petition in that case asked for 'abandonment of service, with the exception of daily freight service * * *.' This was dismissed 'as curtailment of service is not within the purview of section 1(18) of the act.' Other Commission opinions forcibly reiterating the doctrine are: Chicago N.S. & M. Ry. Abandonment, 290 I.C.C. 765, 766 (1955); Express Service at Borden, Campbellsburg, and Pekin, Inc., 285 I.C.C. 303, 305 (1952); Chicago, B. & Q.R. Co. Control, 271 I.C.C. 63, 67 (1948); New York Central R. Co. Abandonment, 254 I.C.C. 745, 765 (1944); Boston & M.B. Abandonment, 249 I.C.C. 507, 508 (1941); Old Colony R. Co. Trustees, Abandonment, 244 I.C.C. 303, 334 (1941); New York, N.H. & H.R. Co. Reorganization 239 I.C.C. 337, 381 (1940); Gulf, T. & W. Ry. Co. Abandonment, 233 I.C.C. 321, 331 (1939); Maine Central R. Co. Abandonment, 207 I.C.C. 97, 100 (1935).
The Supreme Court of the United States in Palmer v. Commonwealth of Massachusetts, 1939, 308 U.S. 79, 60 S. Ct. 34, 37, 84 L. Ed. 93, upheld the view of the Commission in refusing to permit the discontinuance of passenger service because of lack of Commission jurisdiction 'over curtailments of service and partial discontinuance.' Again, in Alabama Public Service Commission v. Southern R. Co., 1951, 341 U.S. 341, 346, 71 S. Ct. 762, 766, 95 L. Ed. 1002, note 7, where the dispute centered around the discontinuance of passenger service, the court commented 'This is a proposed partial discontinuance and not an abandonment over which the Interstate Commerce Commission is given exclusive authority under 49 U.S.C. § 1(18-20), 49 U.S.C.A. § 1(18-20).' The statutory court in Gulf, M. & O.R. Co. v. Louisiana Public Service Commission, D.C.E.D.La.1954, 120 F.Supp. 250 at page 251, ruling specifically on the discontinuance of passenger service by virtue of Section 1(18) held, 'Where, however, the railroad is merely discontinuing a portion of its service, whether it be passenger or freight, there is no abandonment under Section 1(18-20), State of Colorado v. United States, supra * * *.'
The single franchise under which the West Shore Railroad (predecessor of the New York Central) operated across the Hudson River called for a unified passenger and freight service. The evidence is that '* * * they were an indivisible contract. They could not be separated.' It is further established by the record that the New York Central intends to maintain its freight service under the above franchise, simply discontinuing its passenger ferries.
Commenting on the very proposals of the New York Central to the State Utility Commissions for authority to discontinue West Shore passenger service, the Interstate Commerce Commission Examiner in his report to the Commission said, 'As the discontinuance of passenger train service over trackage also used for freight service is not an abandonment of 'all or any portion of a line of railroad', jurisdiction to approve such proposals is not vested in the Commission.'
The defendants admit that in discontinuing the passenger ferries, it is solely passenger and vehicular traffic which the railroad is stopping. They admit that the freight originating on the West Shore line, as do the passengers, and carried to the same Weehawken terminal will be brought to Weehawken as before and transported across New York Harbor by the same freight ferries as always. New York Central's petition to the New Jersey Utilities Board to drop West Shore passenger service coming into the Weehawken terminal is acknowledgement that its request is not under Section 1(18). Despite all this, defendants urge that the freight carriage bears no ...