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DECAMP BUS LINES v. UNITED STATES

September 9, 1963

DeCAMP BUS LINES, a corporation of the State of New Jersey, Plaintiff,
v.
UNITED STATES of America, and Interstate Commerce Commission, Defendants



The opinion of the court was delivered by: MADDEN

This is an action instituted by the plaintiff, DeCamp Bus Lines, to enjoin, set aside, annul and suspend an order of the Interstate Commerce Commission, dated May 4, 1961, in two separate dockets which were consolidated in the Commission's order, namely, DeCamp Bus Lines Extension -- Parkway (Docket MC 109312, Sub No. 29) and Lakeland Bus Lines, Inc. and North Jersey Transit v. DeCamp Bus Lines (Docket MC-C-2175).

 Jurisdiction under Sections 1336, 1398 and 2321 through 2325, inclusive, of Title 28 U.S.C., and under Section 1009 of Title 5 U.S.C., having been invoked, this district court of three judges was constituted and convened in accordance with Section 2284 of Title 28 U.S.C., to hear and determine the matter.

 DeCamp Bus Lines (hereinafter referred to as DeCamp) is a corporation of the State of New Jersey engaged in the interstate transportation of passengers, baggage, mail and express, as a common carrier by motor vehicle, between New York City, New York and certain points in northern New Jersey under Interstate Commerce Commission certificates bearing Docket No. MC 109312 and various sub numbers issued thereunder. DeCamp served between the aforesaid points for a number of years prior to 1935, and certain of its operations are so-called Grandfather operations certificated to it by the Interstate Commerce Commission in a re-issued certificate, dated May 18, 1956, under Docket MC 109312. From time to time, in order to serve the traveling public, DeCamp extended its operations. To avail itself of such new and expeditious routings as the New Jersey Turnpike, the New Jersey Express Highway S-3, the Garden State Parkway and other improved routes between New York City and its authorized points of service in northern New Jersey, DeCamp rerouted certain of its services and instituted others. *fn1" In instances where authority for the rerouting and institution of its services could not be derived from its Grandfather operations or from the terms of prior issued and operated certificates, DeCamp applied for and was issued certificates augmenting and supplementing its operating authority. The present controversy circumvolves one such rerouting and DeCamp's authorization therefor.

 On August 22, 1957, DeCamp inaugurated its so-called Route 77 service between the Port of New York Authority Bus Terminal in the Borough of Manhattan, New York City, New York, over New Jersey Express Highway S-3, the Garden State Parkway, and certain streets and highways in the City of East Orange, the City of Orange, the Town of West Orange, the Town of Livingston, the Township of Hanover, the Township of Parsippany Troy-Hills, and the Town of Morristown, all of which are located in the State of New Jersey.

 On February 21, 1958, Lakeland Bus Lines, Inc. and North Jersey Transit by joint complaint charged that DeCamp had undertaken interstate passenger operations unauthorized by its certificates of public convenience and necessity in violation, inter alia, of Section 206 of the Interstate Commerce Act, 49 U.S.C. § 306. The complainants specifically alleged that in operating the Route 77 service DeCamp traversed portions of the Garden State Parkway in East Orange and Bloomfield, New Jersey, which were unauthorized. The complaint was filed with the Interstate Commerce Commission and given docket designation MC-C-2175. A hearing thereon was held before an examiner on September 23, 1958, as a result of which, the examiner filed his report and recommended order wherein he concluded that DeCamp's Route 77 service was being operated over the Garden State Parkway in East Orange and Bloomfield without the appropriate authority and that the operations thereover should be immediately discontinued. The report and recommended order required DeCamp 'to cease and desist forthwith and hereafter from such unauthorized operations unless and until appropriate authority therefor is obtained from the Commission.' On March 26, 1959, DeCamp excepted to the examiner's report and recommended order, and the two complainants replied on April 30, 1959.

 In the interim, apparently acting upon the examiner's recommended order, DeCamp, on March 17, 1959, filed a precautionary application for a certificate of public convenience and necessity in order to obtain specific authorization from the Interstate Commerce Commission to operate over the Garden State Parkway in East Orange, Bloomfield and Nutley, New Jersey. This application was filed with the Commission and given the docket designation Docket MC 109312, Sub No. 29. The application was heard by a joint board on October 19 and December 7, 1959, and was protested by Public Service Coordinated Transport and Lakeland Bus Lines, Inc. The report and recommended order of the joint board was served on April 29, 1960. Although the joint board did not expressly determine the issue of DeCamp's authorization to traverse the Garden State Parkway in East Orange and Bloomfield, it did find that a certificate of public convenience and necessity should be issued to DeCamp, granting the authority sought in the application. On May 25, 1960, Lakeland Bus Lines, Inc. excepted to the report and recommended order, and DeCamp replied on June 17, 1960.

 Inasmuch as the Interstate Commerce Commission, Division 1, felt that both of the aforesaid proceedings (Docket MC-C-2175 and Docket MC 109312, Sub No. 29) involved related issues, the two matters were consolidated and disposed of by the Commission in its report dated September 12, 1963, and served September 19, 1960, as follows:

 'In No. MC-109312 (Sub-No. 29), we find that the present and future public convenience and necessity require operation by applicant as a common carrier by motor vehicle, in interstate or foreign commerce, of passengers and their baggage, between East Orange and junction New Jersey Highway 3 Ramp and New Jersey Highway 3 Ramp from East Orange over the Garden State Parkway to Junction New Jersey Highway 3 Ramp, thence over New Jersey Highway 3 Ramp to New Jersey Highway 3 and return over the same route serving no intermediate points; that applicant is fit, willing and able properly to perform such service and to conform to our rules and regulations thereunder; that a certificate authorizing such operations should be granted; and that the application in all other respects should be denied.

 'In No. MC-C-2175, we find that the transportation by defendant of passengers and their baggage between the Port of New York Authority Bus Terminal, Borough of Manhattan, New York, N.Y., and Morristown, N.J., by operating over New Jersey State Route 3, the Garden State Parkway, via Clifton, Bloomfield, Nutley, again through Bloomfield and East Orange to the Parkway exit therein, thence over certain streets and highways in the City of East Orange, the City of Orange, the Town of West Orange, the Town of Livingston, the Township of Hanover, the Township of Parsippany Troy-Hills, and the Town of Morristown, and return over the same routes, has been unauthorized under the terms of its existing certificate; and that in view of the grant of the authority set forth in the preceding paragraph the complaint should be dismissed.' Thereupon, Public Service Coordinated Transport filed a petition for reconsideration In Docket MC 109312, Sub No. 29, and DeCamp filed a petition for reconsideration, or, in the alternative, oral argument or further hearing in Docket MC-C-2175. Both petitions, however, were denied by the Commission on May 4, 1961, and shortly thereafter a certificate of public convenience and necessity No. MC 109312, sub 29, dated June 13, 1961, was issued to DeCamp granting the authority set forth in the Commission's report and order.

 On May 23, 1961, DeCamp received a letter from the Interstate Commerce Commission written by an Assistant Director relative to the proceedings in MC 109312, Sub 29 and MC-C-2175, stating in part:

 '* * * In connection with this action, the Commission has instructed this office to inform you that your other operations should conform to the interpretation contained in the report of Division 1 in the application proceeding MC-109312, Sub 29, decided September 12, 1960, which embraced No. MC-C-2175, Lakeland Bus Lines, Inc. and North Jersey Transit v. DeCamp Bus Lines.

 'If it should be considered necessary, temporary authority may be sought with respect to any particular service for which your line does not hold authority, or which it cannot properly perform under the existing authority under the above decision.'

 Subsequently, on August 2, 1961, this action was commenced by DeCamp to enjoin, set aside, annul and suspend the order of the Commission.

 Upon first impression it would appear DeCamp assumes a unique position in instituting this suit inasmuch as the determinations of the Commission resulted, first, in the dismissal of the complaint against DeCamp in Docket MC-C-2175, and second, in the granting of DeCamp's application in Docket MC 109312, Sub No. 29, both results apparently favorable to DeCamp. However, DeCamp's Position becomes more comprehensible when it is understood that, fundamentally, DeCamp seeks to review the findings and conclusions of the Commission which DeCamp alleges adversely affect its other services and prior issued and operated certificates, as well as those in question in Docket MC-C-2175. *fn2" The argument is advanced that the findings and conclusions of themselves and in conjunction with the Commission's letter have the legal effect of impairing, restricting, nullifying or revoking in part such other services and certificates, thus confiscating its property rights in and to the same in violation and contravention of Section 212 of the Interstate Commerce Act, 49 U.S.C.A. § 312.

 DeCamp urges that, in effect, the Commission has issued a declaratory order directing it not to make use of its certificate rights in a manner contrary to the Commission's interpretation of the same. DeCamp then asserts that it has been utilizing such certificate rights in this and its other operations in this now prohibited and unauthorized manner for a period of at least twelve years with the knowledge of the Commission, and that in doing so it relied on the certificates, the interpretation which the Commission has placed on its certificate rights as far back as 1949 and the heretofore uniform interpretation of similar and identical certificates by the Commission and the Courts. DeCamp asserts that it has made considerable and substantial investments in such operations which will now be affected by reason of the Commission's declaratory order. *fn3"

 The first issue with which this Court is confronted is whether the order of the Commission in this case is reviewable at the insistence of the plaintiff DeCamp.

 The order obviously incorporates the Commission's findings of fact and conclusions of law relating to Docket MC-C-2175 wherein it was determined that DeCamp's operation of its Routes 77 services over the Garden State Parkway were unauthorized under its prior issued and operated certificates, and the findings of fact and conclusions of law relating to Docket MC 109312, Sub No. 29, wherein it was determined that DeCamp be issued a certificate of public convenience and necessity, authorizing the operation of the Route 77 services. The letter of May 23, 1961, written by an Assistant Director at the instruction of the Commission unequivocally informs DeCamp that its other operations should conform to the interpretation contained in the Commission's Report relating to Docket MC-C-2175. On the surface, the Commission's determination in Docket MC-C-2175, together with the letter of May 23, 1961, imminently affect DeCamp's property rights in its other operations.

 The Commission's determination in Docket MC-C-2175, apparently favorable to DeCamp, is, in fact, a favorable result for the complainants against DeCamp and an adverse adjudication for DeCamp, preventing it from utilizing its certificates in the manner employed by it, in the operation of its Route 77 services and, through the Commission's letter of May 23, 1961, in its other operations.

 It would be expedient, indeed, to conclude that the application for and the issuance of the requisite authorization to operate the Route 77 services under the now issued certificate of public convenience and necessity (Docket MC 109312, Sub No. 29), renders the issues of DeCamp's unauthorized operation of the Route 77 services in Docket MC-C-2175 moot. To do so, however, would be to patently ignore the right of DeCamp to protect its property rights in regards to the Route 77 services by the filing of a precautionary application for such authority, as was undoubtedly done in this case, and to ignore DeCamp's property rights in its other operations and certificates which are imminently affected. Under such circumstances DeCamp should not be denied the opportunity of a review of the Commission's determination upon the ground that the prime issue is now moot. Expediency at such a price is too costly.

 This Court cannot permit the form of the order in question to control the issue of reviewability, nor can the Court allow such form to obscure the practical effect which the order, together with the Commission's subsequent directive might entail. The order imparts finality of administrative action. The determination is not a general abstract declaration but a specific concrete adjudication. The order and the Commission's letter were directed to DeCamp, requiring it to refrain from a use of its certificates contrary to the Commission's interpretation and requiring it to conform its operations thereto. They certainly speak of the future and are contemplative of future effect. Inasmuch as certain of DeCamp's rights have now been fixed by the Commission's interpretation of its certificates, it would not be speculative, in light of the Commission's letter, to assume further action on the part of the Commission in the event of non-compliance by DeCamp. Disregard of the Commission's adverse action would entail the threat of oppressive civil and criminal penalties. On the other hand, compliance may create an undue burden upon DeCamp. At the very least, the Commission's determination now imposes a cloud upon DeCamp's operating rights in the use of its certificates and endangers DeCamp's business investment therein.

 In the light of the foregoing, and in view of the decisions in Frozen Food Express v. United States, 351 U.S. 40, 76 S. Ct. 569, 100 L. Ed. 910 (1956); Rochester Tele. Corp. v. United States, 307 U.S. 125, 59 S. Ct. 754, 83 L. Ed. 1147 (1939); and Pennsylvania Railroad Co. v. United States, 363 U.S. 202, 80 S. Ct. 1131, 4 .l.Ed.2d 1165 (1960), it is concluded that the findings and conclusions incorporated in the order of the Commission are reviewable herein.

 The fact that this Court has now determined DeCamp is entitled to a review of the Commission's order does not imply that DeCamp should prevail upon the merits. The ultimate legal issues to be determined relate to the validity of the findings and conclusions of the Commission, to which the Court now adverts.

 Generally, DeCamp urges that the Commission's action is unlawful under the terms of the Interstate Commerce Act and in violation of the Constitution; that the findings and conclusions are arbitrary, capricious, discriminatory and confiscatory; that said findings and conclusions are erroneous and unsupported by substantial evidence; and that the proceedings before the Commission were irregular and unlawful in violation of 'Due Process.'

 Before considering the grounds alleged by DeCamp as a basis for setting aside and nullifying the Commission's order, the Court feels constrained to define ...


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