growth is demonstrated, comprise large areas which are not tributary to the routes involved, and that it is common knowledge that large developments have sprung up in these two townships which are not in any way contiguous to the routes in question. Furthermore, it contended that there was no allegation that Somerset, itself, is incapable of handling this increase and that if such a charge is to be made, it should have been alleged in the then pending application of PSCT MC-3647 (Sub-No. 328) to be a second carrier over one of the routes herein involved.
Insofar as the Lehigh Valley Railroad's abandonment of its Oak Tree, Potters Crossing, and South Plainfield commuter service to New York City, Somerset makes several points. First, the Lehigh Valley only had one daily commuter train from South Plainfield, and ran none at all from Oak Tree or Potters Crossing. Second, the temporary authority granted to Suburban never served Oak Tree or Potters Crossing. Third, only the routes granted in the permanent authority will serve those two localities.
Suburban's desire to demonstrate the need for continuance of the Spur Route, granted in the temporary authority, is characterized by Somerset as absurd and illogical. It points out that the Spur Route is a tortuously twisting route which, in fact, leads away from New York City, rather than toward it.
Somerset also questions the substantiality of Suburban's alleged investment undertaken under its temporary authority. It notes that Suburban's passengers on the Spur Route are really serving to cut down Suburban's costs in taking its vehicles from the termination point of its existing New York to Metuchen route, to its garages in Plainfield.
Suburban's final point, that it is related to, or affiliated with Plainfield Transit, allegedly the primary local carrier, is met by Somerset with two arguments. First, it submits that if this is true, proof thereof was available at the hearings and is merely an omission which does not constitute grounds to reopen the record. Second, the Commission could take notice of its consolidated proceedings in MC-F-7568, Sidney Kuchin and Lee Jacobs -- Control -- Tiger Bus Lines, Inc., and MC-F-7602, Morris Lipshitz, Sidney Kuchin, and Lee Jacobs -- Investigation of Control -- Suburban Transit Corp. and Tiger Bus Lines, Inc., wherein Suburban attempted to make it appear that no such affiliation with Plainfield Transit existed.
Suburban insists that it now has the right to offer proof, among other things, that since the grant of temporary authority it has established the necessity and convenience of the Spur Route and that it has made substantial expenditures to carry on the service between South Plainfield and New York City. While it concedes that operations under temporary authority create no presumption that permanent authority will be granted
it argues that the Commission has accepted such evidence and has made grants based upon it. It urges that in this case where a difficult choice is required to the made, testimony concerning its investment and operations under the temporary authority is especially important and could well be the determining factor influencing the Commission to grant its application as against the other petitioners. In effect, Suburban maintains that it was obligatory upon the Commission to reopen the record and provide for the further hearing of these matters. It cites a number of decisions of the Commission which it claims support its contention.
Evidence of its investment, details of its operations between South Plainfield and New York City and acceptance by the public only came into existence after the close of the record, so, Suburban submits that it could only effectively demonstrate it on a reopening. Suburban urges that the denial of the opportunity to offer its proposed proofs was detrimental to it as well as to the riding and general public. Some of the decisions of the Commission, cited by Suburban,
do show that evidence of operations by a carrier under temporary authority, offered during the course of hearings, has been admitted for various reasons, among which have been the purposes of determining the issue of public convenience and necessity and to establish the fitness or ability of the applicant. But we are not confronted with the refusal of the Commission to admit such testimony during the course of its hearing. The issue presented by Suburban is a narrow one, namely, did the Commission arbitrarily and capriciously refused to grant Suburban's petition to reopen the record before it for the purpose of hearing the evidence it then sought to offer.
We are not persuaded that Suburban has shown that the Commission's denial of its petition to reopen and to hear its proffered evidence can be so characterized. It was clearly within the competence of the Commission to weigh the allegations of Suburban as to changes in conditions and circumstances since the hearing closed and during the period of its operation under the temporary authority, against the matters alleged in the answer filed by Somerset. It must be presumed that the Commission gave these factors such consideration
and concluded that Suburban's charges did not require a reopening of the record and further hearing. An examination of the petition of Suburban nd Somerset's answer thereto fails to disclose any reason which compels a finding that the Commission ruled arbitrarily and capriciously.
Granted that the Commission acted upon evidence that was two and a half years old and that its decision was the 'third on a row of different decisions on the same record,' such considerations, in themselves, would give rise to no right to a reopening of the record and to rehearing.
As Suburban realized, it acted at its peril in undertaking the obligations of performing under the temporary authority granted to it at its own instance. Indeed, Somerset has put into question the assertion that Suburban made any consequential outlay in this respect, for which it was not more than compensated by income which it obtained only by force of the temporary authority. The alleged necessity and convenience of the Spur Route is likewise questioned.
It is apparent from the report of the Commission that it was fully aware of the abandonment by the Lehigh Valley Railroad of its South Plainfield, Oak Tree and Potters Crossing stations as well as of increases in the population in the area and that it weighed the impact of those facts. Neither the relationship of Plainfield Transit to Suburban, whatever that may be, nor the character of the operation of the routes during the temporary authority are considerations which can be said to be conditions and circumstances of such extraordinary proportions as to bind the Commission to grant the reopening of the record and the further hearing sought by Suburban. Viewing them individually or as a whole the changed conditions and circumstances asserted by Suburban fail to rise to the level of importance that would deprive the Commission of the exercise of its discretion in its conclusion to deny Suburban's petition to reopen the record.
Furthermore, it is to be recalled that Suburban had its order for temporary authority from the Temporary Authorities Board of the Commission on February 10, 1961. Division One of the Commission filed its report and order granting authority to PSCT on June 2, 1961. Suburban acted to review the report of Division One on August 8, 1961. At that time it had been operating under its temporary authority for nearly six months. The Lehigh Valley abandonment had been authorized in the previous January. Suburban had ample opportunity to gain experience as to its costs of operation under the temporary authority. The alleged population changes were known and it was certainly aware of its relationship to Plainfield Transit. Notwithstanding, it did not then petition for a reopening of the record but rather for reconsideration and oral argument.
In a somewhat analogous situation in United States v. Northern Pacific Ry., 288 U.S. 490, 494, 53 S. Ct. 406, 407, 77 L. Ed. 914 (1933) the Court said:
'* * * We think the carriers' lack of diligence in bringing this matter to the Commission's attention deprived them of any equity to complain of the refusal of their petition. They sat silent and took the chance of a favorable decision on the record as made. They should not be permitted to reopen the case for the introduction of evidence long available and susceptible of production months before the Commission acted. The denial of a rehearing, in view of this delay, was not such an abuse of discretion as would warrant setting aside the order.'
Similarly, in the light of Suburban's petition of August 8, 1961 for nothing more than reconsideration and oral argument, it cannot complain now of the exercise of discretion by the Commission leading to a denial of Suburban's petition of May 18, 1962 to reopen the record.
Therefore judgment will be entered in favor of the defendants, United States of America and Interstate Commerce Commission and the intervening defendant, Somerset Bus Co., Inc., and the complaint of the Suburban Transit Corp. will be dismissed. An order in conformity herewith should be submitted.