New Jersey v. New York, Susquehanna & Western Railroad Company

PETITIONER:New Jersey
RESPONDENT:New York, Susquehanna & Western Railroad Company
LOCATION:James Wah Toy’s Laundry

DOCKET NO.: 104
DECIDED BY: Warren Court (1962-1965)
LOWER COURT:

CITATION: 372 US 1 (1963)
ARGUED: Dec 11, 1962
DECIDED: Feb 18, 1963

Facts of the case

Question

Audio Transcription for Oral Argument – December 11, 1962 in New Jersey v. New York, Susquehanna & Western Railroad Company

Earl Warren:

Number 104, New Jersey et al., Appellants, versus New York, Susquehanna and Western Railroad Company.

Mr. Gural, you may proceed.

William Gural:

Your Honor, Mr. Chief Justice, Associate Justice, may it please the Court.

This case comes here on appeal from a judgment of a three-judge statutory court, which reversed a determination by the Interstate Commerce Commission, that determination would be the lack of jurisdiction to permit a discontinuance of the trains which were operated by this railroad has one judge dissenting.

This railroad operates three trains in each direction between Butler, New Jersey and Susquehanna Transfer in North Bergen, New Jersey.

Thereafter, passengers are transported by a bus to the Port of New York Authority Bus Terminal.

This carrier sought to discontinue its trains under the provisions of Section 13a (1) of the 1958 Transportation Act which is concerned with interstate trains.

And the Interstate Commerce Commission and its determination says — said that these were intrastate trains and the fact that they’re connected with a bus carrying them on to New York, did not make it an interstate train, so that the provisions of 13a (1) did not apply.

Prior to the enactment of the Transportation Act of 1958, the jurisdiction over the discontinuance of trains and ferries, both interstate and intrastate was — were in the states.

The federal or the Interstate Commerce Commission had no jurisdiction over the discontinuance of a train or ferry.

Its jurisdiction was over the discontinuance or the abandonment of a line of railroad.

Now, 13 — Section 13a is divided into two parts, there’s a subsection 13a (1) which deals with a discontinuance of interstate trains and a procedure is outlined in this section where in the carrier post its notices and the Interstate Commerce Commission may or may not act to require those trains to continue.

And on the other hand, subsection 13a (2) deals with intrastate trains and there, the Interstate Commerce Commission may not act unless and until the state first has had an opportunity to exercise its jurisdiction over those intrastate trains.

The procedure under 13a (2) is different too because if a state fails to act within a period of a 120 days or denies the relief that the carrier request with respect to discontinuance, the Intrastate Commerce Commission must hold a full hearing.

I must make specific findings with respect to the — or the effect that present and future can — public convenience and necessity, permit the discontinuance of the service and also that the continued operation of these intrastate trains would be a burden on the carriers’ interstate operations or on interstate commerce itself.

Now, I believe that the statute itself is quite clear.

It limits its terms to the vehicles of transportation, trains or ferries, buses are not mentioned, terminals are not mentioned and terminal transfers are not mentioned.

And even though the bus here is a vehicle which is incidental to railroad transportation, the word “railroad” and the word “transportation” are larger terms than the words “trains or ferries”.

The bus is not incidental to a train or to a ferry; it’s incidental to railroad transportation.

Now, I think the court below permitted its attention to be diverted to where the passengers were going, where the tickets — the destination on the tickets and from that reason a — an interstate train and I submit that that was incorrect.

It misapplied the word “transportation”.

Transportation again is a larger term than the word “train”.

The test in this case, should’ve been “where do the trains go?”

Do they travel from a point in one state to a point in the same state or do those trains go from a point in one state to a point in another state?

Not where the passengers going, not where the bus goes or not where the entertainment — enter — terminal transport takes them.

The —

Arthur J. Goldberg:

(Inaudible)

William Gural:

As far as I know, the Interstate Commerce Commission has authority over the bus, their intrastate bus, by a provision in the carrier’s tariff.

There’s a provision that these buses will be carried across to the Port of New York Authority Terminal.

Arthur J. Goldberg:

(Inaudible)

William Gural:

The Interstate Commerce Commission could approve abandonment of the buses if this carrier should file amendment to its tariff and discontinue.

In other words, omit the provision for the buses and if there was no objection, I presumably, the bus could be discontinued, but I dare say in this situation, there probably would be objections because the New York passengers would have no way of getting over and they would probably ask the Interstate Commerce Commission to conduct an investigation and request a hearing on the subject of amendments to the tariff that would curtail this bus services.

Arthur J. Goldberg:

(Inaudible)

William Gural:

Oh, if the train was authorized to be discontinued, all the carrier would have to do is amend this tariff and I’m sure nobody would complain then once the train was discontinued.

Arthur J. Goldberg:

(Inaudible)

William Gural:

Well, no I disagree because this carrier operates these buses by virtue of a provision that has this tariff, filed with the Interstate Commerce Commission, and if this carrier wanted to discontinue these buses, it could file and amend the tariff and if there were no objections to the amendment, I would assume that the Interstate Commerce Commission would permit the filing and that would be the end of the bus.

Arthur J. Goldberg:

They’re not an interstate —

William Gural:

It is an interstate bus, yes sir.

Is there any event that the (Inaudible)

William Gural:

Under part 2?

I’m not familiar, Your Honor.

This is a part 2, you mean a motor carrier operating under certificate of convenience and necessity.

I’m sorry.

I’m not prepared on that but this, I concede, is not a part 2 operation.

I concede that it’s a railroad operation under 30 — under the exceptions in Section 49 U.S. Code 302.

William J. Brennan, Jr.:

Mr. Gural —

William Gural:

Yes, sir.

William J. Brennan, Jr.:

— would you be making the same argument if these buses were owned by Susquehanna rather than —

William Gural:

It’s — it would be immaterial of the ownership because I don’t think that that’s the test.

We are looking at the vehicle that the statute spells out —

William J. Brennan, Jr.:

Well, your point as I gather that —

William Gural:

— trains or ferries.

William J. Brennan, Jr.:

— the statute applies only to an actual train that physically crosses from New Jersey to New York?

William Gural:

Yes sir, Your Honor.

Or ferry that crosses —

William J. Brennan, Jr.:

Alright, I get it(Voice Overlap)

William Gural:

Yes and because it uses those two vehicles, train or ferry and excluded all other vehicles, I don’t see how you can spell —

Byron R. White:

But then you included — it includes services —

William Gural:

The words?

Yes, service of —

Byron R. White:

(Voice Overlap)

William Gural:

Yes, and then I pose the question to myself, service of what?

Service of a train or a ferry and not service of a bus.

Byron R. White:

Yes, but you just don’t — you just think that a bus ride in connection with an intrastate train, the continuation of an intrastate train like bus arranged by the railroad company not the train.

Isn’t that there —

William Gural:

Yes.

This — yes, the bus is a — is an incidental service to the railroad facility.

Byron R. White:

Like (Voice Overlap) —

William Gural:

The other —

Byron R. White:

–bus was certificated by —

William Gural:

As a certificate of convenience and necessity.

Then the problem would — I see no difference in the problem because it would be a — instead of a bus meeting this train, it would on a catch-as-catch-can basis.

The certificate bus would operate its own schedule which may not necessarily —

Byron R. White:

But nevertheless, the bus finds — it’s operating the bus that’s certificated with the form of service.

William Gural:

No, sir.

This — again, this is not a part 2 certificated operation.

This operation was held by the Interstate Commerce Commission to be incidental —

Byron R. White:

(Voice Overlap)

William Gural:

No, no.

Byron R. White:

Incidental to the rail (Voice Overlap) —

William Gural:

Incidental to the rail transportation but I submit when they said incidental to rail transportation, they did not mean incidental to a train.Rail operation or rail services are much broader term than the term train.

William J. Brennan, Jr.:

Well, is the question for our decision is narrow as this then, what is a train?

William Gural:

Yes sir.

I would say that the —

Byron R. White:

For a service.

For a service —

William J. Brennan, Jr.:

What does it mean?

William Gural:

Well, I would qualify that service of a train because as soon as you start using — stressing this word “service”, you fall into a pitfall.

Service becomes a subject and ‘train becomes a modifier.

In other words, you’re saying train service rather than the service of a train or a ferry.

Byron R. White:

You don’t think then that the word “service” includes a depot?

That isn’t the service of the train —

William Gural:

No.

Byron R. White:

— that’s the service for the railroad company.

William Gural:

That’s right.

A service in the railroad again is larger but —

Byron R. White:

To all intrastate depot are what?

Under 13a or 13a (1) or —

William Gural:

13 (a) intrastate or under 13a (2).

Intrastate depot, stations — the discontinuance of a station would be, although a station of course is not in the Act and I respectfully would like to call your attention to the brief of amicus National Association of Railroad and Utilities Commissioners at page 11 where he spells out the Act as it was first introduced over the top of the page.

William J. Brennan, Jr.:

What page?

William Gural:

Page 11 of the amicus National Association of Railroad and Utilities Commissioners.

He talks and this is Senate Bill 3778 as introduced by sponsors.

The discontinuance are changed in whole or in part of the operation or service of any train or ferry engaged in the transportation of passengers or property in interstate foreign and intrastate commerce or any of them or the operation or service of any station, depot or other facility where passengers or property are received for transportation in interstate foreign and intrastate commerce or any of them.

Now, note how broad this statute was when it was introduced.

And reading it today, you see that they withdrawn all of that borderline which — and only intended to have these provisions applied to a train or a ferry, a service of a train or a ferry.

William J. Brennan, Jr.:

Well, if I correctly understand you, Mr. Gural.

William Gural:

Yes, sir.

William J. Brennan, Jr.:

So far as the state is concerned, the state loses if we conclude that this is a train.

William Gural:

Oh, yes, if you affirm the decision below, we are — and I might say that we are in out — effectively ousted from the jurisdiction in other carriers because the court below I feel has effectively —

William J. Brennan, Jr.:

I’m not making any suggestion —

William Gural:

No.

William J. Brennan, Jr.:

— I just want to find out —

William Gural:

Yes.

William J. Brennan, Jr.:

— what the issue was that he sought.

William Gural:

Yes, sir.

I feel that the court below has effectively repealed 13a (2) so far as New Jersey is concerned because all of the trains in New Jersey as you know terminated a river.

And then there are other vehicles for crossing the river.

It could be a taxi, it could be a subway, it could be a tube.

Arthur J. Goldberg:

(Inaudible)

William Gural:

No, sir.

The definition — a line of railroad does not necessarily have to apply to train.

But again, a line of railroad is something greater than a train.

Arthur J. Goldberg:

(Inaudible)

William Gural:

Yes, sir.

Arthur J. Goldberg:

(Inaudible)

William Gural:

Yes, sir.

Arthur J. Goldberg:

(Inaudible)

William Gural:

I think the Interstate Commerce Commission has so held that there was a case cited in my brief.

The Arlington — Arlington and FNAR Company page 18 of my brief, down about the middle of the page.

The ICC in Arlington and FNAR Company stated that an auto rail cars operating within one state as rail cars but converting it to auto cars and then crossing the state line into another state.

We’re not an extension of a line of railroad.

And I might say that case that this appellee relies upon.

The motor carrier, New York Susquehanna motor carrier application also so held.

I can refer you to the record at page 77, down one, two, three, four, five lines from the bottom where the Commission says, we conclude for the reason there stated — stated in this case that I just quoted from that applicants subscribe more operation is not an extension of railroad as contemplated by Section 118.

Arthur J. Goldberg:

(Inaudible)

William Gural:

The same section that applied to this carrier now.

The — I would assume that this kind of vehicle would probably have a tariff provision to continue the service across the same as this — the carrier does have a tariff provision allowing the bus service or providing for the bus service from New Jersey to New York.

Arthur J. Goldberg:

(Inaudible)

William Gural:

Yes, sir.

The train as described by this Court in — at page 18 of my brief, United States versus Erie, 237 U.S. 402.

This Court stated that a train consist of an engine of cars which have been assembled and coupled together ran a — ran or for a trip along the road.

From the legislative history too, it will be found that a bus was never mentioned.

There was a discussion of the terminals.

There was discussion of transfers, depots, and — but none of these specific items appear in the statute here, the only vehicles that we have here to deal with are the train or ferry.

Now, the appellee —

Byron R. White:

What does the passenger buy when he — does he buy bus ticket along with the train —

William Gural:

Yes, sir.

The train — the passenger obtains a ticket to New York and in that ticket it concludes a ride to — from a point in New Jersey to the Port Authority Terminal and it shows that —

Byron R. White:

On a bus?

William Gural:

Yes, on a bus or on the other hand, he can buy his ticket on the train and then pay a quarter to the bus driver and continue his journey to New York and he has that choice.

Byron R. White:

But no one would find that train passengers ride on a bus?

William Gural:

Railroad passengers only.

I did raise —

Byron R. White:

Or from other train.

William Gural:

Yes, sir.

I did raise that in my motion in our position to affirm wherein we found that this bus service was also available to Erie-Lackawanna Railroad train passenger using the eastbound morning train number 1202 and the westbound evening, number train 1203 from Hoboken to Nyack, New York.

Byron R. White:

So what are other railroads — other railroads that use bus?

William Gural:

Yes sir but I understand now as a controversy, these railroads since this has been called to their attention have been prohibiting the Lackawanna passengers from using this bus.

When was 13a (1) and (2) — when were they passed?

William Gural:

August of 1958, Your Honor.

Were the Susquehanna operating in this fashion at that time?

William Gural:

Yes, sir.

Now, that brings me to point one of the appellee’s arguments where he makes a distinction between procedure and jurisdiction saying that this is a simple matter of procedure.

And, I respectfully submit that the way you invoke the jurisdiction of any agency of court is through proper procedure and I can only — in his argument of course, he supposes that if he came to the Public Utility Commission, he would be denied the relief, but I think that from the period 1956 down to July of 1960 when this carrier has been coming to the port although, I must admit, there was some very testy litigation in the interim but they — we’ve — the Board has permitted them to cut down — cut back almost 90% or approximately 90% of their train service.

So it’s not as though the Board has — is going to deny them really.

I can only speculate that the reason he — the appellee chose 13a (1) because the procedure there is a — is shortcutted, it’s a chance that there might not even be a hearing.

Whereas, under 13a (2), a full hearing is guaranteed.

The findings are somewhat different in — under 13a (2).

After the state denies relief, the petitioner has a burden because he must file a petition with Interstate Commerce Commission and then must show that or the Commission must find that the present and future public convenience and necessity permit discontinuance.

That word “future” does not appear on — in 13a (1).

What effect do the findings of state administrative agency under a 13a (2) proceeding have upon the Commission if the state agency denied the application for abandonment?

William Gural:

Well, under 13a (2), the Interstate Commerce Commission holds a hearing de novo —

De novo?

William Gural:

However, the record made in the case below is usually considered by the Commission at least we’ve always — when we participate in those hearings, we’ve always offered the complete record made below in evidencing the Commission.

(Voice Overlap) is bound by the state determination or (Voice Overlap) —

William Gural:

Oh no, no —

— no particular weights given to its finance, they give it simply with respectful consideration.

William Gural:

Yes, I think that’s about the size sir.

They make independent findings and are not bound by what the state commission has said in the decision.

William Gural:

Now, in point two, the appellee makes a — or points to the intra-terminal transfer of — that this bus amounts to an aid to its rail service.

Now, I submit that the rail service is not a train.

In common — in a common carrier application that the appellee relies upon here, the Interstate Commerce Commission made a finding that this bus and I’m reading from page 50 of the appellee’s brief where Section 49 U.S. Code 302 is set forth.

This bus was transportation by motor vehicle by any person for a common carrier by railroad subject to part 1 etcetera and I’m skipping now to page 51.

And then the last four lines there, as part of and shall be regulated in the same manner as transportation by railroad, express, motor vehicle or water or to be freight forwarder, transportation or service to which such services are incidental.

Now, you see these are incidental to railroad, incidental to express not incidental to a train.

Now, in the certain point, the appellee makes a great stress on the word “service” and expresses some apprehension that if the trains were discontinued, he would be forced to continue a bus and I submit that this is not the case.

I think that if these trains were allowed to be discontinued, there would be simple filing of an amendment to its tariffs and if the trains were off there, nobody in the world would try to continue a bus service from Susquehanna transferred to New York because there would be no one to use it.

And the ICC would accept that tariff and entered the filling and that would finish the bus service.

There’d be no need to continue it.

I believe also that the court below considered matters beyond the jurisdictional question and perhaps permitted its sympathy to be carried away but I submit that all of the material on the financial condition of this carrier, the loss of passengers and all are all based upon self-serving statements which were submitted with its application to the ICC for the discontinuance.

These have never been tested at a hearing and I think that although the court below has learned in law, I think that the administrative agency with its experts is the correct body to explore these financial losses and find out why or whether or not they are valid and — or the loss of passengers to determine whether that’s valid.

I say that if the court below is — the judgment below is affirmed then for all the country perhaps New Jersey hasn’t lost its regulatory jurisdiction over all of the train service in or — all of the intrastate train service because all of our trains connected one way or another with some other type of vehicle for a trip across the river either on — at the New York’s terminal or in South Jersey at Camden and Philadelphia terminal.

William J. Brennan, Jr.:

You mean — you mean for example all the Lackawanna trains now go into Hoboken?

William Gural:

Yes, sir.

And —

William J. Brennan, Jr.:

You go on to Manhattan —

William Gural:

Either by —

William J. Brennan, Jr.:

— by a subway.

William Gural:

By sub — by Hudson Tubes or by —

William J. Brennan, Jr.:

Do you suggest that the premise here would mean that New Jersey Commission has ousted it, is that it?

William Gural:

They would be, yes sir because the railroads would then point to the — to this decision and say, you don’t look at where the train is going any more, you look at where the passenger is going, you look at the tickets, this trip takes him across the river now.

William J. Brennan, Jr.:

There were ferries operating on it?

William Gural:

Yes sir.

There are — the Lackawanna operates some ferries and the Central Railroad of New Jersey also operates ferries from Jersey City.

I respectfully call the attention of the Court to the dissenting opinion which I think expresses correctly the application of the law in this case.

That’s all I have.

Earl Warren:

Mr. Biunno.

Vincent P. Biunno:

Mr. Chief Justice, may it please the Court.

Whatever the eventual determination of this case may be, it is a symbolic coincidence that it should’ve been reached for argument today, December 11, 1962.

Vincent P. Biunno:

The coincidence there that some time today in one of the 85 assembly plants to United States, they will be built a 200 million automobile manufactured in the United States since 1896.

It took 52 years to build the first 100 million and only 14 years was needed to build the second 100 million.

The coincidence is symbolic because this vast achievement of what has become the nation’s largest industry is an undeniable reflection of a tremendous change in the travel habits of our public.

And this is itself, the massive force underlying the very difficult problems of the nation’s railroads.

Part of this problem is before the Court today in the form of this disagreement about procedure in which procedure should be followed to discontinue an operation used to transport passengers between New Jersey and New York.

Now, before launching into our own affirmative argument, I do want to call attention to several basic factors which will perhaps help answer incidental questions that might otherwise come up.

The appellant has noted that the facts relating to the financial results of operation both with respect to the passenger service and the overall passenger and freight operations are merely self-serving declarations not tested at a hearing.

The facts we have pointed out in our statement if the Court please are set out in the statement required to be filed with the Interstate Commerce Commission in a 13a (1) proceeding.

And I refer the Court — I refer the Court to Section 1.19 of the rules of the Interstate Commerce Commission, 49 Code of Federal Regulations at page 52 of appellee’s brief.

It states that recitals of materials and relevant facts in a pleading filed prior oral hearing in any proceeding unless specifically denied in the counterpleading shall constitute evidence and shall be a part of the record without special admission on corporation.

But if request was reasonably made, a competent witness must be made available for cross-examination on the evidence so included in the record.

Now, the appellants here have the opportunity, have they followed a better practice to file an answer on the merits including the issue of jurisdiction.

I’m sure that the concept of waiving jurisdictional issues by filing an answer is no longer true in the proceedings before administrative agencies that is in courts that used to be years ago that if you wanted to challenge the method of service of the summons, you had to make a special appearance.

And if you so much have asked from an extension of time, you found that you were in court and no longer have the opportunity to challenge service.

In recent years, this has all have been changed, the traps of the technicalities have been erased and the attitude is to encourage.

In fact, required that all matters of defense whether they go to the merits or whether they go to jurisdiction or method of service.

So all be raised in the answer.

This would give an opportunity if there were a dispute on the facts for the state to have said what that dispute is, having chosen to limit their objection to what they call an issue of jurisdiction.

I submit they can hardly complain here of the effect of the rule of the Commission which makes those statements evidence.

The other question that I would like to mention very briefly is in relation with the one asked by Mr. Justice Harlan as to what would happen with the state court — state agency record.

The rules on 13a (2) proceeding which we have also printed at page 56 of appellee’s brief, 43.6 subsection (d) to be filed only with the original of the petition to the Commission, copy of the record made before the state authority including copies of the application or petition to a transcript of any of our hearing and decision and order, if any.

So, the Interstate Commerce Commission itself requires that the record before the agency be in substance to starting point so that all particular data need not be again repeated in the hearing before the Commission.

Now, turning to the substance of the issue on this matter, we submit the judgment of the trial court is undoubtedly correct for the number of independent reasons each of which lead to the conclusion that Section 13a (1) applies here.

The first reason is that by force of law, case law and statute, this transfer operation between North Bergen, New Jersey and Manhattan, New York is to be regarded and handled in the same way as though the trains themselves went into New York.

I say by force its case law because prior the enactment of the Motor Carrier Law in 1935, it had already been ruled by this Court in the Central Transfer case that intra-terminal transfers by motor truck paying within the exclusive jurisdiction of the Interstate Commerce Commission, it was recognized there and I mentioned this because the rationale is always of more interest than the specific result.

The rationale was that if you’re going to regulate the railroad transportation effectively you must regulate all aspects of it and where the transfer is essential to the railroad operation, it would be hopelessly ineffective to allow local agencies to regulate the truck operation and have the Interstate Commerce Commission regulate the trains.

There will be a division of authority here that would undercut the very purpose of the act itself.

Would your situation have been different, if instead of having a contractual arrangement with the buses where your railroad line stopped, you’ve simply deposited the passengers and let them take a regular bus service running to New York, issuing however, yourselves through ticket?

Vincent P. Biunno:

You are assuming now, I take it, a physical arrangement in which our passengers would be free to leave our facilities and walk out on the street and either go to New York or not go to New York —

I don’t say —

Vincent P. Biunno:

We didn’t say which to —

— who didn’t want to go to New York, or should go to New York but those who did, do you sell them through ticket which would be honored.

Vincent P. Biunno:

On a situation it might be different.

Might be different?

Vincent P. Biunno:

It might be different.

This is the situation obtaining at Jersey City for example where trains terminate their run and where a passenger may, if he wishes to go to New York, change to H&M 2, PATH as it’s called now or he can do this at Newark but he may not and there is no integration in the sense we have here —

Byron R. White:

Well, isn’t that the same —

Vincent P. Biunno:

— between the two.

Byron R. White:

— here in the sense that everybody who — everybody who gets on this train doesn’t go on to New York that was the thing, that if it’s so, was it?

Vincent P. Biunno:

We have some intrastate passengers, yes.

Byron R. White:

Yes, we will get off the train and don’t take the bus.

Vincent P. Biunno:

But not at Susquehanna Transfer, Your Honor.

Byron R. White:

There’s nothing there.

Vincent P. Biunno:

There’s nothing there but to get on the bus.

Byron R. White:

Except — but the other part of it applies if perhaps if he can get off the train if he wants to and leave and also he doesn’t buy through ticket all the time?

Vincent P. Biunno:

That’s right.

Byron R. White:

He may — he may buy just the train ticket on the train and pay — and then get on the bus and pay an additional sum for his bus ride.

Vincent P. Biunno:

That’s not correct.

Byron R. White:

After that (Voice Overlap) —

Vincent P. Biunno:

I understand that.

This is not — unfortunately — explicitly in the record but the arrangement with Public Service Transportation Company who runs the buses is that they are to carry only rail passengers holding tickets to and from points on the Susquehanna Line and that the railroads shall designate or shall instruct public services to the method of identification.

And since this problem was specifically pointed up in the appellants’ vagrant opposition to our motion to affirm, we checked and found that there have been a small handful of people who ride the Erie-Lackawanna who have been using the bus by paying a quarter.

This had been done without our approval.

It’s unlawful so far as we’re concerned and we promptly instructed public service to accept nobody, except with a bus ticket and with a Susquehanna ticket.

Now, there used to be an arrangement with the Erie-Lackawanna whereby, their passengers could also use this bus on a like arrangement.

But that contract was terminated back in 1959 and we suppose that there are a couple of passengers who have the habit of riding it and who still do and for all we know and maybe still doing it in some fashion that we get in effect.

William J. Brennan, Jr.:

Mr. Biunno, are there any Susquehanna stops after the transfer before you get to New York?

Vincent P. Biunno:

Not anymore.

They used to run to Jersey City and then take the passengers across on the Erie ferry but the ferry service was terminated at the same time that Erie ferry was terminated and thereafter there was a 118 proceeding for abandonment of the remaining portion of the Erie truckage which had been under lease down at Jersey City.

William J. Brennan, Jr.:

I gather your answer to Mr. Gural’s suggestion that affirmance here means that even Lackawanna could terminate under 13a (2) is that when you get into the station in Jersey City, you are free to go by subway, is that it?

William J. Brennan, Jr.:

It’s not integrated in that sense?

Vincent P. Biunno:

No.

William J. Brennan, Jr.:

It’s still a ferry (Voice Overlap) —

Vincent P. Biunno:

It doesn’t — this case doesn’t necessarily mean that for this — for several reasons.

In the first place, I do not understand that the ferries run on schedules that are tied in with the trains in the sense these buses are.

They are general ferries and I can get on that with an automobile, I think even today.

I haven’t tried it but I’m pretty sure I can.

I can certainly walk in off the street and ride without ever being a real passenger.

Now, if those ferries will run on the basis that these buses were so that Lackawanna will be in a position to say, “We are discontinuing train 111 consisting of the run to Jersey City and the corresponding ferry crossing to New York then this principle might well apply but then it wouldn’t be because of this case.

13a (1) in the state’s own argument says train or ferry that’s all it would be involved.

So, even without the question of whether you mean by train, if this were the form of Lackawanna’s operation, they could have 13a (1) applied without regard to this case at all.

Now, of course after the Central Transfer case rule at intra-terminal incidental motor truck services were to be regulated in the same fashion as the trains were by the ICC, the same principle was explicitly enacted in 1940 as an amendment to the Motor Carrier Act.

That’s Section 12 (2) (c) which we referred to which it should be noted not only excludes those operations from part 2 does not treat them as motor carrier operations but affirmatively commands that they be regulated in the same fashion as the transportation by rail to which they are incidental.

Next, you say the judgment of the trial court is correct by force of res judicata.

In the proceedings of which excerpts appear at the record page 46, the Interstate Commerce Commission has made determinations a fact.

One, that Susquehanna’s terminal is at New York.

Two, if the transfer of point in North Bergen is within the terminal area of that terminal.

Three, that the service is an intra-terminal transfer.

Now, in this respect, our factual and legal background differs considerably from that in the Arlington and Fairfax case.

And on to the Fairfax, and this is a history which are little difficult to piece together from the three opinions starting with U.S. against Elgin.

There had been a rail operation into the district with a railroad station in the district across 14th Street Bridge.

The terminal building was taken by the federal government for government buildings and while the opinions are silent, there must have been some proceeding to abandon that portion of the line of railroad which led from Virginia and to the district because that service stops and the new terminal was in Virginia.

Then came the use of this convertible auto car and it’s amazing to see how far back that goes.

Run on rails and by lowering rubber tired wheels could ride on the city streets and this is where the litigation came up and it’s quite a bit of litigation.

The first case was as the result of a refusal of the District Commission to fix a route and the carrier sought mandamus.

This was denied and the Court of Appeals affirmed on the ground that the determination of what was a terminal area and whether the Virginia terminals was within that terminal area.

There’s a question of fact requiring expert knowledge of transportation and should be made a determination made by the ICC, the Court would not make it.

They went back to the Interstate Commerce Commission and they applied for a certificate under 118 to extend their line of railroads.

And this is what it implies if they must have applied for a certificate to abandon the corresponding portion.

Strangely enough, the Interstate Commerce Commission while holding that this would not be an extension of a line of railroad distinguishing the New York Dock case, expressly said that it did not decide whether it was within the terminal area.

Vincent P. Biunno:

If they had made that determination and if they had been that it wasn’t within the terminal area, it would have been no further disputing the question about whether a certificate was needed and what kind of certificate but they passed the question and didn’t decide it.

The carrier went back to the District Commission, did get a route designation but the District Commission refused to say whether or not an ICC certificate was needed so they began operations.

A competitor took that into courts on a proceeding for injunction, succeeded in getting the injunction, the appeals was taken, it was argued, the Court was ready to file its opinion when the carrier reported that its financial condition obliged to drop the project entirely and will never find out what the Appellate Court had decided to do with it.

So, I say we learned very little so far as the law is concerned from that one.

But —

William J. Brennan, Jr.:

Mr. Biunno, may I just ask you a question?

Vincent P. Biunno:

Yes.

William J. Brennan, Jr.:

I’m looking at this exhibit, proposed discontinued to service at page 74 of the record and all the way from Butler to North Bergen there were a whole lot of stations, Oakland, (Inaudible), Wyckoff, I never heard of some of these.

Now, are these the stations on the Susquehanna service between Butler and North Bergen before you get to the Susquehanna Transfer?

Vincent P. Biunno:

This is 74?

William J. Brennan, Jr.:

74.

Vincent P. Biunno:

This is a notice of discontinuance.

William J. Brennan, Jr.:

Yes.

Vincent P. Biunno:

They — or between Butler and Susquehanna Transfer the actual station stops.

I suggest you will find what’s easier to look at.

William J. Brennan, Jr.:

Yes.

Vincent P. Biunno:

On page 45, 46 which is a timetable.

William J. Brennan, Jr.:

45 and 46?

Vincent P. Biunno:

45, 46 is an exhibit.

William J. Brennan, Jr.:

Well, my question — oh, yes, I see and my question is this, I take it the notice of abandonment is also to abandon the intrastate service between and among those several New Jersey stops before you get to Susquehanna Transfer, isn’t it?

Aren’t they?

Vincent P. Biunno:

This proceeding will be to discontinue the entire operation which would include both.

William J. Brennan, Jr.:

Well, what if — I should’ve — it must have an answer to this but to that extent there is an abandonment of an intrastate service here, isn’t there?

Vincent P. Biunno:

Discontinuance?

William J. Brennan, Jr.:

Discontinuance rather.

Vincent P. Biunno:

Yes, sure.

William J. Brennan, Jr.:

But that’s nevertheless ICC and not state?

Vincent P. Biunno:

Oh yes.

William J. Brennan, Jr.:

Commission jurisdiction?

Vincent P. Biunno:

No question about that and there’s no question about this either.

Byron R. White:

Well, why is that?

The argument that the state is making here, why it’s even more forcefully to the abandonment of a service between North Bergen and some point between North Bergen and Susquehanna Transfer?

Vincent P. Biunno:

Well, the fact that the matter comes under 13a (1) doesn’t mean you better get the relief what you ask for if the local service —

Byron R. White:

I would say that the argument in its faith would apply more forcefully that this comes under — the best part of it anyway comes under 13a (2) —

Vincent P. Biunno:

Well —

Byron R. White:

— it’s the only part that if you come under 13a (1) is between Susquehanna Transfer or the last stop —

Vincent P. Biunno:

In New York?

Byron R. White:

— in New York.

Vincent P. Biunno:

That’s a different question, if Your Honor please, we’ve pointed out on page 38 of our brief that we do not contend that by virtue of the application of 13a (1), the State of New Jersey has no jurisdiction whatever over intrastate commerce.

We recognize fully that if the state that you see, feels that there should be a train operator between let’s say Butler and Paterson both within the State of New Jersey for intrastate service, they have the full power to require us to do it.

But that’s a different train, the train we are running now.

Do you follow me on that?

In other words, we —

William J. Brennan, Jr.:

Well, I hear you.

Vincent P. Biunno:

— we proposed the discontinuance of train 108, Butler to New York.

Proceedings are taken under 13a (1) is discontinuance.

This is no bar, the State of New Jersey saying, “Intrastate requirements have a need for a train between Butler and Paterson you run it and if they can show a case for it, we have to run it.”

Byron R. White:

Well, don’t you then —

Vincent P. Biunno:

And that —

Byron R. White:

— but you are saying don’t you — aren’t you that 13a (1) permits you to abandon the full train, the North Bergen on —

Vincent P. Biunno:

Right.

Byron R. White:

— without filing anything with the state authority?

Vincent P. Biunno:

That’s right.

The accesso.

Byron R. White:

Well, I know the accesso that only applies to an interstate train.

I’m talking about an intrastate train that goes to North Bergen at some point to Susquehanna Transfer and you’re saying —

Vincent P. Biunno:

Only — are you speaking only of a train that carries only intrastate?

Byron R. White:

No, I suppose the train is still a train between two intrastate points even though it goes beyond that.

Vincent P. Biunno:

Well, I think that’s a question that was answered a good many years ago when 118 was first construed.

It’s the same problem.

Vincent P. Biunno:

A complete abandonment —

Byron R. White:

Train number so and so is — you will see on the sign, this is a train that runs from North Bergen to New York?

Vincent P. Biunno:

I know.

That came up — that kind of problem was considered in Colorado against U.S., which I think is probably the most instructive opinion that I’ve come across in the research for this argument which relates to 118.

I think it’s been a — as a result of a misconception of the law on 118 that led to the enactment of 13 (a) in the first place.

I don’t think they needed it but this Court pointed out in Colorado against United States, every projected abandonment of any part of a railroad engaged in both interstate and intrastate commerce may conceivably involve a conflict between state and national interests.

Now, you’re not — the Congress nonetheless exercised as to 118 its interstate commerce power and place that power solely and exclusively in the Commission.

The point the Court makes in Colorado against United States is that while the Commission has exclusive authority, this does not mean that local institute disregard it.

This is now a subject to be taken up in the course of considering whether the application should be granted or not.

And in that regard, Colorado against U.S. strongly urges that the local interest be accommodated as fully as possible consistent with the intrastate interest.

William J. Brennan, Jr.:

Well, let’s say Mr. Biunno, before — before this new statute —

Vincent P. Biunno:

Yes.

William J. Brennan, Jr.:

— there is no doubt that the State Commission would’ve been involved before you could have made this — discontinue this train even though the ICC may have had the last word, is that right?

Vincent P. Biunno:

The understanding before the statute was that the ICC had nothing to say about it.

William J. Brennan, Jr.:

Nothing at all?

Vincent P. Biunno:

This, I think, was wrong and that came up the only time that was decided, if Your Honor please, was in first ferry cases.

It was raised over in the first ferry cases.

Those cases were taken here but the appeal was dismissed because it became moot to the enactment of the statute.

I think the first ferry cases are wrong.

Now, one reason for that is the question asked by Mr. Justice Goldberg about the buses.

If we got these trains off under 13a (2), how would we get the buses off?

It has been suggested that we do that merely by filing a change of tariff.

Well, if it that’s so, why do they have all the trouble that they didn’t get in the ferries off?

Why didn’t they just file a change of tariffs?

Well, we know very well it couldn’t do any such thing.

Byron R. White:

Because they were certificated.

Vincent P. Biunno:

Because what?

Byron R. White:

Because they were certificated.

Vincent P. Biunno:

And so are we.

Our line is to New York City.

Byron R. White:

No, but the bus line is.

Vincent P. Biunno:

Our line is to New York City, you see —

Byron R. White:

The bus line is.

Vincent P. Biunno:

The bus line is.

Here’s what the first ferry case has held.

Now, this is interesting because it’s the rule of the whole trouble here.

Susquehanna has a line to New York City.

At the time that this bus service was inaugurated, that service was executed by trains to Jersey City and ferries across the river just like the Erie, just like the New York Central and just like all the others.

When this bus service began, we still serve New York by the ferries.

Susquehanna Transfer bus operation was an ultimate group and we went to the Interstate Commerce Commission, someone had raised the question, “Don’t you need a certificate to run the bus?”

An application was made and the Interstate Commerce Commission said, “No, you don’t.”

Your terminal is New York.

When you reach North Bergen you are within your terminal area.

The bus operation is intra-terminal transfer.

It is not “an extension” of a line of railroad not for the reason in Arlington Fairfax but for the reason that our line of railroad already ran to New York and this was simply an ultimate branch.

Now, if you read the opinion in the first ferry cases, you will find that the source of the whole difficulty declared to the enactment of 13 (a) was that 118 in the abandonment section had been read to that time and the general understanding was that abandonment necessarily involved a complete termination of service on some serial segment of a railroad and not a parallel segment, if I can make that distinction.

In other words, I might have several ways of going to point A or point B.

If I am to come under 118, the understanding was that everything between point A and B had to be terminated.

I think this was a misreading of the Act.

It says abandonment in whole or in part and there is nothing I know of that says that a part has to be between point A and B and not one of the routes but anyway that’s what they held.

Now, in the first ferry cases —

William J. Brennan, Jr.:

When you say they, you mean the Commission?

Vincent P. Biunno:

The Commission I believe has a long line of rulings to that effect on what we call curtailment or discontinuance or possible discontinuance of service.

Now, in the ferry cases, this came up because the railroads pointed out that they ran a passenger ferry from let us say we walk in to 33rd Street and this was a different route than the route used to carry freight across the Hudson River that the — the ferry service while starting at one point either we walk at the Jersey City fan out like the fingers of a hand to multiple points of the New York side which were different points for a degree than the freight routes were.

This would have been an abandonment of a part of the line of railroad taking part to meet a parallel alternate route.

The first ferry cases said, “No.”

In line of railroad is a single entity.

It is the whole cord and no single strand of that cord may be separated from it and its service terminated unless you abandon operation on the cord as a whole and of that, I think, is the route — I’m sorry, difficulty as to route of the enactment of 13 (a) I think is wrong.

There’s no occasion decided here, I can see, but it is a value in understanding the context in which 13 (a) was passed.

Now, of course as to the idea that a train is a train as the appellant say, this must be said, “A train has any number of varied meanings.”

Vincent P. Biunno:

One meaning could be as suggested by the appellant of this Court had held in the Erie Railroad against United States, a locomotive of cars coupled together from running along the track.

Of course, that case didn’t hold if that’s what a train means.

It held that such an operation was a line haul and not a switching operation, entirely different question.

But any event, it could mean a specific locomotive and a specific car or set of cars or it can mean the particular run at a certain time of the day between two different points regardless of whether it’s the same locomotive or different locomotive, that sort of thing that in railroad pods is called, train 99.

That train 99 here, if you look at the timetable, is the whole service from Butler to New York and back again, part of which is executed by motor coach, a part of which is executed by anyone of a number of different locomotives, and number of different cars, not the same locomotive and not the same car day in, day out.

Now, of course, it doesn’t even mean — it can’t mean the vehicle that runs on steel wheels on tracks.

The interstate commerce itself — Interstate Commerce Act itself today, made this 1962 in Section 19 (a), still uses the term “steam railroad.”

We all know very well that the (Inaudible) electric motor power but we wouldn’t hesitate to say the railroad that used to use steam is the one that’s covered by the Section even though it no longer uses steam.

There was a proposal perhaps six or seven years ago for this very North Jersey and New York area to build a loop service to which the key idea was that the vehicles would run on rubber tires in a concrete channel.

They would be automatic like that kind of horizontal elevator.

I’m sure that would be a train for the purpose of 13a (1) but it wouldn’t look like the train in the old sense.

The engineers are suppose to be working on things like levicar that ride on a cushion of air, no wheels at all, would this be a train for the purpose of this section?

I’m sure it would.

So, I don’t think it makes much difference that a bus in one sense is not the same thing as a train in that sense.

Arthur J. Goldberg:

Did you require a new certificate for appellees to take with what you’re describing?

Vincent P. Biunno:

I’m sorry.

Arthur J. Goldberg:

Would you require — if you require to obtain a new certificate under Legislative Commerce Act to operate a track of vehicles which you now describe?

Vincent P. Biunno:

My understanding, if Your Honor please, is that the method of execution is up to the railroad.

Arthur J. Goldberg:

In other words, —

Vincent P. Biunno:

— I would say not.

Arthur J. Goldberg:

— you discontinued to operate with the certificate?

Vincent P. Biunno:

Yes.

Of course the view of safety would have a good deal to say about mechanical changes of this kind.The Interstate Commerce Commission would be intimately involved in any such drastic change from a safety standpoint but not from a certificate standpoint.

Arthur J. Goldberg:

It seem your argument is simply this that you are operating the same (Inaudible)

Vincent P. Biunno:

Yes.

Arthur J. Goldberg:

(Inaudible)

Vincent P. Biunno:

Correct.

Arthur J. Goldberg:

(Inaudible) Section 13 (a) applied?

Vincent P. Biunno:

Yes.

Now, of course the other reason why the result involved was right is that the overwhelming ratio of passengers are intrastate, 90% or so.

Vincent P. Biunno:

And how this can be an operation which the states must first pass it on, I do not understand.

In any event, the trial court even if you would read the statute as the appellant suggests, the Court could not have refused to enjoin and set aside the order.

First, because the ICC dismissed instead of exercising its undoubted jurisdiction under 13a (2) within appropriate amendment applying the same principles that were stated only a week ago in Forman in this Court that the federal rule of pleading are designed to reach the merits and that’s precisely what we feel should have been done here even if the statute is read and as the state contends.

And second, because the ICC dismissed on the state’s motion not only without a hearing but without an opportunity for a hearing, they dismissed it before the time for reapply under their own rules that had expired.

And this, at least was a denial of due process.

Now, the state insists that 13a (2) applies and that it should have the first opportunity to conduct the hearing.

The difficulty with this argument is that it has admitted to this Court in the course of the papers filed that this case was right for 13a (2) proceeding at the time this statement was filed.

Secondly, it is not required by state law and this is RS-48224 which we cite on page 16 of our brief that the State Commission be on the application of the carrier, the state agency has a general supervisory power just as the federal commission has and it is kept thoroughly aware of conditions through required filing, it may itself initiate and hold a hearing on this question any time it chose to do so.

And two years have gone by without any such step having been taken.

It can’t complain if it hasn’t had its own hearing before its own body if it’s entitled to it.

Thank you.

Earl Warren:

Mr. Gural.

William Gural:

I just wanted to make an observation —

William J. Brennan, Jr.:

What about this question Mr. Gural that Justice White and I were putting to Mr. Biunno about that — this apparently people ride to 908 and leaves at Butler at 626 to Hackensack 721 that was the — they couldn’t care less whether you go on to Susquehanna Transfer but if they’re going to lose that service.

William Gural:

Yes.

Well, that would be the intrastate faith but —

William J. Brennan, Jr.:

But, I haven’t — you haven’t made in the argument based on that or is there no merits —

William Gural:

No, my argument is that the whole operation from Butler to Susquehanna Transfer is an intrastate operation.

That this connecting bus —

William J. Brennan, Jr.:

Well, suppose you’re wrong about that, suppose you are wrong and this is a train in that sense even though it utilizes a bus, what about the state’s interest in the continuance of that intrastate service?

William Gural:

Well, I’m afraid that if the Interstate Commerce Commission had permitted the discontinuance that the Interstate Commerce Commission decides that this is an interstate operation and permitted discontinuance, I’m afraid the state’s ousted from jurisdiction.

The state can no longer —

Byron R. White:

But whether — but the question here is what is — what are the respective scopes of 13a (1) and 13a (2)?

William Gural:

Well, I can only —

Byron R. White:

Congress says that the states may pass — may first pass on the discontinuance of an intrastate train.

William Gural:

Yes, sir.

Byron R. White:

Isn’t it an intrastate train —

William Gural:

That’s our argument.

Byron R. White:

— after the Hackensack?

William Gural:

In that respect although that’s not the entire trip.

Byron R. White:

But you just argued that it is not an interstate claim, it hooks onto bus.

William Gural:

And not only that, Susquehanna Transfer —

Byron R. White:

And I don’t know why you won’t argue that an intrastate train no matter what it has ought to do because if —

William Gural:

Exactly.

Byron R. White:

— because it runs to Hackensack.

William Gural:

Or to Susquehanna Transfer which is also within New Jersey.

It runs — it’s entire run is within the State of New Jersey.

Arthur J. Goldberg:

(Inaudible)

William Gural:

No, that would be an interstate train’s act.

I’ve just —

Arthur J. Goldberg:

First, second and fourth?

William Gural:

Yes sir.

I did want to point out that in page 16 of the record, counsel contradicts me.

He says that there is no provision for tolls, tariffs and fare page 16 in the record I quote from their tariff.

Number two, motor coach fare in each direction between North Bergen, New Jersey and New York is 25 cents.

Tom C. Clark:

Mr. Gural, you can put an intrastate train in Hackensack?

William Gural:

Yes sir, if we found — if the State found public convenience and necessity required such as service, we could order — however —

Tom C. Clark:

This train is — if you lost here, my argue could if you get these findings within Hackensack.

William Gural:

No sir, because the way 13 (a) works if the Interstate Commerce Commission does not choose to investigate, they have to make up their mind within 20 days of debate with these notices to investigate and if they don’t do that, those trains — under the statute, those trains automatically go off.

William J. Brennan, Jr.:

Well, even though.

I understood Mr. Biunno to say that if they go off on this application tomorrow, you can require them to put another train on just for the intrastate points up to the transfer.

William Gural:

I — I —

William J. Brennan, Jr.:

You disagree with them about that?

William Gural:

Yes sir, I must disagree because I think that the Interstate Commerce Commission at this point (Voice Overlap) by fairly —

William J. Brennan, Jr.:

He just had a gift times five.

William Gural:

Well —

Tom C. Clark:

They wouldn’t have anything to do with it.

It’s entirely intra.

William J. Brennan, Jr.:

It’s entirely intrastate that his point was that abandonment or discontinue of this interstate train and then tomorrow you can require them to give another train service between the intrastate point.

Byron R. White:

But aren’t you saying that why abandon and have it that — then you have to set up a new docket and have a new hearing to go on the train and you said abandon meanwhile and then you have to get them to reinstitute a service, is that it?

William Gural:

That’s — that would be the proceeding —

Byron R. White:

And you would like to get (Voice Overlap) before they abandon that train from the Hackensack?

William Gural:

We would like to — we would like to extend the hearing and explore this application before the Interstate Commerce Commission gets it.

Now, I also want to point out one other item in the appellee’s brief wherein page 23 of the appellee’s briefs, he supposedly quotes, the bus service — about eight lines down to beginning, “the bus service is an intra-terminal transfer of passengers in aid of and as an incident of the rail service that when Susquehanna’s trains are at North Bergen, New Jersey or grants the Susquehanna Transfer, they are within the Susquehanna’s” and then in quotes, “terminal area at New York in respect of both rate and passenger service”.

Now, I submit the record doesn’t bear not on that because at page 48 of the record, the quote is, “We concluded that Susquehanna Transfer applicant have entered this terminal area at New York in respect of both freight and passenger traffic.”

The decision that he quotes from — he doesn’t use the word “service” he uses the word “traffic.”

Now, his suggestion that the determination of Susquehanna Transfers terminal area at New York and its res judicata, it is — but in this context, it’s the terminal area and not a train.

And again, I must keep using this term because a train is something else than a terminal area and the statute doesn’t allow to discontinue a terminal area.

It only allows them to discontinue a train.

And I say that the train is something less than a terminal area.

Now, I think Justice White also asked the question with respect to whether or not this bus was an extension of railroad under — and that sections — at records page 77, this — the Interstate Commerce Commission made a definite finding after the citation at the bottom of the page.

And we conclude for the reasons there stated that applicants described motor operation is not an extension of railroad, it is contemplated by Section 118.

The certificate requirements of Section 118 therefore are enact — inapplicable.

Whereas, the question Justice White that you have with respect to a ferry, the ferry is regarded as a line of railroad and as it’s these ferry cases that made that determination.

I would like to ask you a question —

William Gural:

Yes, sir.

— about the practicality of this.

William Gural:

Yes, sir.

Assuming you prevail, what is the course and —

William Gural:

Well, I think the appellee has two courses open for him.

He may either come to the state and make his application pursuant to 13a (2) and then if we deny him the relief or do not act within four months on his application, he may then go to the Interstate Commerce Commission who give a full hearing on the merits.

I mean does he have to start — do they have to start all over again in the ICC?

William Gural:

Yes sir, a full hearing exploring —

And the ICC can’t call this application advanced and say in writing out in a piece of paper application?

William Gural:

Not as I read the statute sir but he can’t — I think he also has available to him the procedure that was suggested in our response to his motion to lift the injunction.

That is — we decided back in July of 1960 when his application to discontinue all of the trains, we permit that — to discontinue just one of those trains in these directions so that they are down to three trains now.

There is no reason why under 13a (2), he couldn’t then.

July of 1960 made his application to the Interstate Commerce Commission, as I say it, it’s only speculation.

I feel that perhaps at that time again, and I insist the speculation that maybe he could not approve in the elements that are required under 13a (2) namely that present and future public convenience and necessity permits such discontinuance and that the continuation of this (Voice Overlap) —

I suppose reaffirming into the ICC is one thing and proving it to the local agencies is another?

William Gural:

It’s — they may have different rules of evidence, yes sir and maybe —

They may give a rule and different approach.

William Gural:

Different approach, yes, like the ICC has the national approach and —

How soon — how soon would — if you prevail, how long would it take to get a hearing before the state agency?

William Gural:

We usually allow 20 days from the time of the application for an answer to be filed and then usually within 10 days after that, we put it down for a hearing —

And how long —

William Gural:

— although —

— how long a period is — the period gestation before you get in?

William Gural:

Well, we’ve been furnishing these hearings within a period of fourth months, within 120 days —

From the time issue is joined?

William Gural:

Yes sir, because the statute requires us to do that otherwise if we don’t dispose of it —

Supposing you lose, how long does it take to get a hearing in the ICC?

William Gural:

Well, then he files petition to the ICC and of course —

No, I meant, supposing you lose this case, supposing you lose this case?

William Gural:

Yes, Your Honor.

Then the ICC would be told they did have jurisdiction, how long would –?

William Gural:

Well, then under the statute which operates automatically, these trains go off because the ICC failed to order the continuance as the statute requires it.

William J. Brennan, Jr.:

You mean the 20 days?

You have the 20 days from now?

William Gural:

No, we’re out.

William J. Brennan, Jr.:

They threw it out in the grounds of jurisdiction.

William Gural:

Our jurisdiction —

They took it out, yes.

William Gural:

Let me read you the statute.

The carrier files his notices.

Upon the filing of such notice, the Commission shall have authority during the said 30 days notice period either upon complaint or upon its own initiative without complaint to enter upon an investigation of the proposed discontinuance or change.

Upon the institution of such investigation, the Commission by orders, served upon the carrier or carriers affected thereby at least 10 days prior to the day on which such discontinuance or change would otherwise become effective may require such train or ferry to be continued.

Now, the Interstate Commerce Commission said it had no jurisdiction.

It didn’t issue the order that the statute calls for.

William J. Brennan, Jr.:

I don’t follow you on that —

I don’t understand that at all.

William Gural:

This —

William J. Brennan, Jr.:

They didn’t act because they thought they had no power to act.

William Gural:

Yes, sir.

And — but the Court now has said that they do have jurisdiction and that’s where — where —

William J. Brennan, Jr.:

It’s a surprise if you’re out.

William Gural:

The Interstate Commerce Commission’s decision if they had no jurisdiction was reversed by the court below.

The Court said the ICC did have jurisdiction.

William J. Brennan, Jr.:

Well, if we affirm then why don’t the things start —

Start.

William J. Brennan, Jr.:

— the application or the notice we’ll give them tomorrow.

William Gural:

Because the statute said that the ICC had to — have acted back when these notices were posted and ordered the continuance of this service and conduct an investigation.

It would be ver — it would not revert back.

The trains under this — this is a self — an automatic statute, it permits — if the ICC fails to act, the trains go off.

Earl Warren:

Well, after the pleadings — after the pleadings are stated that goes to interstate commerce jurisdiction.

William Gural:

Yes, sir.

Earl Warren:

They must act to do it or not.

They can’t hold up to the — they can’t hold up to the termination of the service in four months.

William Gural:

If it’s an interstate train, — if it’s an interstate train and they investigate the discontinuance then they must conclude it within four months.

Earl Warren:

Four?

William Gural:

But if it’s a —

Earl Warren:

(Inaudible)

William Gural:

Well, no they have to — if they find that the trains are — operation of the trains are required by public convenience and necessity and will not unduly — burden interstate or foreign commerce, the Commission then may require that they run for one more year.

On the other hand, on the intrastate face of it, the Commission is not bound by such a time limit.

It does not need to adhere to a four-month time limit, if it’s an intrastate.

Byron R. White:

How would you — how would the railroad has gone about terminating only the bus service?

Let’s assume that it dis —

William Gural:

The railroad —

Byron R. White:

— they didn’t want to go into New York and —

William Gural:

Well —

Byron R. White:

— and it wanted to stop at the last stop before Susquehanna Transfer?

William Gural:

There’s a file tariff with the Interstate Commerce Commission wherein the — well —

Byron R. White:

Do you think the interstate aspect of this train could have been terminated by a change in tariff?

William Gural:

That’s all it would take because this is the only obligation.

This is not a certificated operation.

This is an operation incidental to rail service, not incidental to a train but incidental to a rail service which is not the same as a certificated operation.

And the only thing they have to do is file a tariff, amend their tariff and say that the bus service is no longer going to be continued.

However, the fact that they file amendment to the tariff does not mean that the Interstate Commerce Commission will accept it for filing because the Interstate Commerce Commission might say, well look here, where are your New York people — how your New York people going to get over him — they’ll suspend the tariff and may be conduct an investigation and refuse to accept the filing.

There’s a procedure for that.

I think that’s all, Your Honor.

Oh, excuse me, just one other point.

I’m sorry.

I just wanted to point out, the Interstate Commerce Commission determination in this thing — in this case that it lacks jurisdiction is entitled to persuasive weight.

They’ve been administering this law since 1958 and I think that this Court has so held in several of its cases that the administrative body that is charged with the administration of the law, its opinions with respect to that law are entitled to persuasive weight.

Thank you, sir.