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May 13, 1960

DELAWARE, LACKAWANNA & WESTERN RAILROAD COMPANY, Lehigh Valley Railroad Company, Erie Railroad Company and New York, Chicago & St. Louis Railroad Company, Defendants

The opinion of the court was delivered by: BYERS

This cause has been pending since June 15, 1956 when the complaint was filed; it has been explained in the opinion reported in 143 F.Supp. 363 in connection with a plaintiff's motion for a temporary injunction, and defendants' cross-motion to dismiss, both of which were denied.

Since the date of that decision (July 2, 1956), the I.C.C. has passed upon the matters presented in the plaintiff's asserted 'Second Cause of Action' namely, that 'the afore-described piggyback service will be transportation by motor vehicle without a certificate of public convenience and necessity as required by the Interstate Commerce Act Sec. 206(1) (49 U.S.C.A. § 306(1)).'

 The Commission action is reported in Long Island Rail Road Company v. D.L. & W., et al., No. 31,979 (302 I.C.C. 577) as announced in a decision dated January 22, 1958. That is the so-called Section 13 proceeding referred to in the case of Long Island Rail Road Company v. United States, D.C., 140 F.Supp. 823, at page 830.

 That I.C.C. complaint attacked the schedules filed by the defendant railroads as unlawful upon the same grounds as are alleged in the complaint in this cause. The decision thus states those allegations:

 '* * * that the service proposed is not transportation by motor vehicle incident to rail transportation in the performance within terminal areas of transfer, collection, or delivery service within the meaning of section 202(c) of the Interstate Commerce Act, but constitutes an extension of the defendants' lines of railroad without the certificates of convenience and necessity required by section 1(18) of the act; or that the operation being line-haul in nature, it is unlawful without the certificates of convenience and necessity for motor service required by section 206(a).'

 As to the substance of the plaintiff's first cause as here pleaded, the decision says:

 'In Texas & P. Ry. Co. v. Gulf, C. & S.F. Ry. Co., 270 U.S. 266, 273 (46 S. Ct. 263, 70 L. Ed. 578), and Powell v. United States, 300 U.S. 276, 287 (57 S. Ct. 470, 81 L. Ed. 643), both cited by the district court, the Supreme Court held that the ultimate determination of whether certain facilities constitute an extension of a line of railroad subject to section 1(18) is within the exclusive jurisdiction of the courts, either in a suit to set aside an order granting a certificate or in a suit under section 1(20) to enjoin a violation of section 1(18).'

 In conformity thereto, the further discussion in the said decision was confined to the terminal area dispute (namely, the bearing of the exemption of section 202(c)(1) as to the piggy-back service of the defendants).

 The decision proceeds to analyze the service as rendered by all railroads involved, and by the intervenor, and also the financial results during the years 1954 and 1955, and for the first five months of 1956; also the effects upon traffic and the evident diversion of a portion of it from motor carriers to railroads as the result of the institution of the rail-trailer service.

 Reference is made to prior proceedings before the Commission in the matters of Trailers on Flatcars, Eastern Territory, 296 I.C.C. 219 and Pickup and Delivery Limits at Los Angeles, Calif., 299 I.C.C. 347, and the similarity therein to the instant issues.

 The decision concludes with this language:

 'We find that the motor transportation of freight in truck trailers by the defendant railroads over the public highways between their respective rail terminals in New Jersey and the premises of consignors and consignees in the Borough of Queens, New York City, incident to the line-haul movement of such freight in trailer-on-flatcar service, is bona fide terminal-area collection-and-delivery service incidental to transportation by railroad within the meaning of section 202(c) of the act, and lawfully man be performed without certificates issued under part II of the act; and that the tariffs of the defendants providing for such services are not shown to be unlawful. The complaint will be dismissed.'

 Part II of the Act has to do with the regulation of motor carriers as such, and not with railroads.

 It is requisite to an understanding of the legal arguments now addressed to this court, to be clear as to the precise decision of the I.C.C. which was denied reconsideration on August 5, 1958.

 No appeal was taken therefrom; therefore it is to be deemed final for present purposes.

 It should be interpolated that Lehigh Valley Railroad Company named as a defendant has taken a neutral position. As to the 'Nickel Plate,' (N.Y.C. & St. L.R. Co.) the Erie and D.L. & W. main brief states:

 'The New York, Chicago & St. Louis Railroad Company is a defendant herein whose right to maintain joint rates to points in Queens will depend solely on the disposition of the causes of action stated in the complaint herein against defendant Lackawanna.'

 This explains why no brief is filed separately by that railroad. References hereinafter to the defendants will designate the Erie and the D.L. & W.

 The Eastern District Terminal has been permitted to intervene as a party to the cause. This was consonant with the procedure in the case of Long Island Rail Road Co. v. United States, 140 F.Supp. 823 (supra), the original proceeding before the I.C.C. The intervenor has briefed its present contentions in great detail, in part to meet the contention of the defendants that it is not a party in interest 'and is not entitled to the relief sought * * * in the absence of evidence that defendants' piggy-back operations serve points in the Borough of Queens, New York City, which are reached by intervenor's rails or facilities or which defendants had not heretofore served in their water-borne service.'

 The parties have in effect stipulated the facts to avoid the taking of testimony; see Pre-trial Order of January 29, 1960 and Appendix A and B thereto. The latter was supplemented on March 7, 1960 as to matters involved affecting the intervenor.

 Appendix C states:

 'Statement of Contested Issues of Fact

 '1. If material as a matter of law, whether or not the Borough of Queens, New York City, is located within the defendants' terminal area.

 '2. Whether or not there is any difference between the pick-up and delivery of trailers in piggy-back service and pick-up and delivery service as defined in New York Dock Railway v. Penn. R. Co. (D.C.), 1 F.Supp. 20, aff'd (3 Cir.) 62 F.2d 1010, pages 1013-14, cert. denied 289 U.S. 750 (53 S. Ct. 694, 77 L. Ed. 1495).'

 It will be seen that the latter deals with the first cause stated in the present complaint, and the former, with the second.

 The contentions advanced by the intervenor are not in all respects the same as those of the plaintiff.

 The several matters which are discussed in the eleven briefs that have been filed, will be considered in order:


 1. As to the first cause, the applicable provision of the Interstate Commerce Act is found in Title 49 U.S.C.A. § 1(18):

 ' § 1, par. (18). Extension or abandonment of lines; certificate required; * * * No carrier by railroad subject to this chapter shall undertake the extension of its line of railroad, or the construction of a new line of railroad, or shall acquire or operate any line of railroad, or extension thereof, or shall engage in transportation under this chapter over or by means of such additional or extended line of railroad, unless and until there shall first have been obtained from the Commission a certificate * * *.'

 The plaintiff and the intervenor seek an injunction against the defendants' operation of a piggy-back service as heretofore explained, because no such certificate has been obtained. It has been stated that the decision of this issue is deemed to be within the exclusive jurisdiction of this court.

 There is an oblique argument that as defendants view the controversy, the plaintiff and the intervenor are opposed to the ruling of the Commission concerning the terminal area subject (the second cause), and that such position is in legal effect the assertion that corrective judicial action as to that is called for; thus the court is required to abandon its announced purpose, because the subject-matter would pertain only to a three judge court (Title 28 U.S.C. §§ 2321 and 2325).

 It is unnecessary to discuss this contention in detail, for the reason that the plaintiff and the intervenor in their final arguments, took the position that they now agree that the said decision is accepted by them as dispositive of the second cause pleaded in the complaint. This seems to mean that they now concede that the piggy-back service as operated by the defendants in the Borough of Queens falls within the exemption of 202(c) of the Act (Title 49 U.S.C.A. § 302(c)(1). So much is clear at least as to the present position of the intervenor.

 As to the plaintiff, it appears also that the I.C.C. decision is not deemed directly brought into question. Thus at the argument of ...

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