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November 1, 1951

BALTIMORE & O. R. CO. et al.

The opinion of the court was delivered by: DIMOCK

This action was brought under 28 U.S.C. §§ 1336, and 2321-2325 providing for actions to enjoin, set aside, annul or suspend in whole or in part orders of the Interstate Commerce Commission. It has been heard before a three-judge court pursuant to 28 U.S.C. §§ 2284 and 2321-2325. The complaint prays judgment permanently suspending, enjoining, setting aside and annulling an order of the Interstate Commerce Commission dated January 15, 1951 and its order of June 22, 1951, modifying the previous order by postponing its effective date. The previous order granted the relief sought in a proceeding before it. Docket No. 29891, Borough of Edgewater, N.J. v. Arcade & Attica Railroad Corporation, 280 I.C.C. 121.

On December 18, 1947, the Borough of Edgewater, New Jersey, and the County of Bergen, New Jersey, instituted proceedings before the Commission. Their complaint alleged in part that the full use and development of piers at Edgewater, New Jersey, was hampered by the lack of through routes and joint rates on all classes and commodities, between Edgewater Docks Station *fn1" on the New York, Susquehanna & Western Railroad Co. *fn2" and numerous points in the interior, on a parity with rates maintained for such traffic by various railroads, including the plaintiffs in this case, between the same points and piers in Hoboken, New Jersey, served by the Hoboken Manufacturers' Railroad Co. *fn3"

 Hearings in connection with the complaint were held on May 3, 4, 6, and 7, 1948 before an Examiner of the Commission at New York. Following the issuance of a proposed report by the examiner, exceptions thereto were filed by the plaintiffs herein, and, on February 16, 1949, oral argument was held before Division 3 of the Commission. Division 3 issued a report and order on March 23, 1949. After numerous extensions and postponements, the Commission reopened the proceedings for reconsideration and issued, on January 15, 1951, its report on reconsideration, vacated the order issued by Division 3 dated March 23, 1949 and issued a new order. That order is the one attacked in this action.

 By the order under review various railroads, defendants in the proceeding before the Commission, were required to establish on or before April 26, 1951 and thereafter 'to maintain and apply to the transportation of coastwise, inter-coastal, export, and import freight, over all-rail routes * * * between interior points in official territory *fn4" and the Edgewater Docks station of the New York, Susquehanna & Western Railroad Company at Edgewater, N.J. rates no higher than those contemporaneously applicable on similar traffic between the same interior points and piers served by the Hoboken Manufacturers' Railroad Company at Hoboken, N.J. * * *'.

 Subsequent orders of the Commission extended the date of taking effect of the order of January 15, 1951. The order of June 22, 1951, attacked in this action, is one of these.

 Thereafter the plaintiffs herein sought further reopening and further hearing and consideration of additional evidence. Their petition was dated April 25, 1951. The specified additional evidence was a Marine Terminal Survey of the New Jersey Waterfront prepared by the Port of New York Authority dated February 10, 1949. By order dated May 21, 1951, the Commission denied their petition.

 The complaint in this court was filed on July 13, 1951 and a temporary restraining order was granted by Judge Gregory F. Noonan on August 16, 1951 enjoining the enforcement of the Commission's order dated January 15, and those of June 22 and July 19, 1951 postponing its effective date.

 The object of the original proceeding brought by the Borough of Edgewater and the County of Bergen before the Commission was to require the plaintiff railroads, which then carried coastwise, intercoastal, export and import traffic over through routes at joint rates in railroad cars through Hoboken by means of the Hoboken Railroad, to offer the same service through Edgewater Docks by means of the Susquehanna. The plaintiff railroads were carrying such traffic on through routes at joint rates through Edgewater Docks by means of lighters and over through routes and at joint rates to Edgewater Station in railroad cars but what the Borough and County wanted was service through Edgewater Docks in railroad cars.

 The primary point decided by the Commission was that the lack of these routes and rates caused undue prejudice to Edgewater. That decision, if correct, gave it power under certain statutory provisions, 49 U.S.C. § 3(1), quoted in footnote 8, and Sec 15(1) which authorizes the Commission to eliminate undue prejudice, to order that Edgewater be furnished the service that it sought.

 The Commission also decided that, irrespective of prejudice to Edgewater, the public interest required that the Commission direct the establishment of these routes and rates under power given it by another statutory provision, 49 U.S.C. § 15(3) quoted in part in footnote 9.

 In support of this attack on the Commission's order plaintiffs contend: contend:

 1. That Edgewater was already receiving the service that it sought.

 2. That the finding of undue prejudice to Edgewater is unsupported by the evidence.

 3. That the order unlawfully 'short-hauls' the plaintiffs in that

 a. Undue Prejudice cases brought under Sec 3(1) are subject to the prohibition against 'short-hauling' in Sec 15(4) quoted in footnote 7.

 b. The Commission failed to make the findings necessary to justify short-hauling under Sec. 15(4).

 c. The evidence was insufficient to support any such findings.

 4. That the Commission's decision is contrary to its established policy for New York Harbor area.

 5. That the Commission erred in refusing to reopen the proceeding to take further evidence.

 6. That the announced intention of the Susquehanna to move for a modification of the order renders its ...

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