issuance of the second report. In such circumstances, I would dismiss the complaint, but without prejudice to the filing of a petition for further hearing in the event that complainant finds itself willing and able to supply the deficiencies in the record. Concurrent with dismissal of the complaint, I would institute a rulemaking proceeding with a view toward developing a record adequately depicting the interrelated nature of the problem under consideration, and also with a view toward establishing some degree of understanding and cooperation between the different classes of carriers. The questions to be considered could well include a determination as to when, if at all, the Commission may depart from the literal meaning of the certificates of the carriers of general freight with the usual exceptions, carriers of motor vehicles, and heavy haulers. As a result of such a proceeding, complainant and other carriers of motor vehicles might come to realize that if they are to insist on a wholly literal interpretation of the certificates of heavy haulers, they will find it difficult to maintain a different position in respect of the certificates of general freight carriers with the usual restrictions. 95 M.C.C.

No. MC-C-3302

ASBURY PARK-NEW YORK TRANSIT CORP.v. NEW YORK, KEANSBURG, LONG BRANCH BUS LINE, INC.

Decided June 30, 1964

Defendant, New York, Keansburg, Long Branch Bus Lines, Inc., found not to be engaged in the transportation of passengers and their baggage beyond the city limits of Long Branch, N. J., in violation of the Interstate Commerce Act. Complaint dismissed.

Wilmer A. Hill for complainant.

Edward W. Currie for defendant.

REPORT OF THE COMMISSION

DIVISION 1, COMMISSIONERS HUTCHINSON, BUSH, AND BROWN

BUSH, Commissioner:

Exceptions to the order recommended by the examiner were filed by the complainant, and the defendant replied.

By complaint filed March 20, 1961, Asbury Park-New York Transit Corporation, Keyport, N. J., a motor common carrier of passengers, alleges that the New York, Keansburg, Long Branch Bus Line, Inc., Keansburg, N. J., has been transporting without authority, passengers and their baggage on an individual fare basis, by motorbus, in interstate commerce, between New York, N. Y., and the racetrack of the Monmouth County Jockey Club in Oceanport Borough, Monmouth County, N. J., during described racing seasons of 1959 and 1960, in violation of the Interstate Commerce Act.

Defendant admits conducting the alleged motor carrier operations during the described periods, but claims that it has appropriate authority to perform such operations; that it intends to continue performing such operations during future racing seasons; and that such operations are not illegal in any respect.

Basically, the facts underlying this proceeding are not in dispute. The complainant's exceptions which claim to be directed to the facts, are actually directed to the conclusions drawn from such facts by the examiner. Except as supplemented or modified

herein, we find the examiner's statement of facts to be correct in all material respects, and adopt them as our own. Certain facts will be restated for clarity of discussion.

Defendant is authorized to transport passengers and their baggage over specified highways which partially parallel those of complainant, between New York City and Long Branch, serving all intermediate points between Keansburg and Long Branch. The Borough of Oceanport lies to the north of Long Branch and the two municipalities have a common boundary line, the center of Turtle Mill Brook at the point where Myrtle Avenue crosses this stream. With the exception of a very small area in Long Branch, the described racetrack property lies in the Borough of Oceanport. Respondent provides service to this track by entering Oceanport over the Myrtle Avenue Bridge, but the parties disagree as to whether or not that portion of the road from the common boundary line to the private property of the track is public or private. We do not believe it is necessary to determine this issue as our findings below will not be based on the public or private nature of the property contiguous to the city of Long Branch. However, we have set out below a summary of the facts.2

This area appears to be approximately 40 feet extending from east to west and north from the stream to include about half of the second stable. The common boundary line was originally the center of Turtle Mill Brook, but prior to 1959 the course of the stream was pushed further south by the owners of the track. The change in the boundary line and the stream begins immediately west of the Myrtle Avenue Bridge.

2Myrtle Avenue runs in a north-south direction from within the city of Long Branch over a bridge spanning Turtle Mill Brook into the Borough of Oceanport to Port au Beck Avenue. During the racing seasons, defendant operates, as pertinent, over this avenue. The boundary line between these two contiguous communities is at the center of the stream at the point where the bridge is located, and it would follow that the boundary line would be an east-west line at the center of the bridge.

In

1946, the council of the Borough of Oceanport vacated Myrtle Avenue "as a public street or highway, * * *from the southerly line of Port au Beck DefendAvenue southerly to the boundary line of the City of Long Branch." ant presented evidence that under New Jersey law a street so vacated reverted to the property owners on each side of the street or highway, and concluded that this property thus passed to the racetrack owners as present owner of the property on both sides of Myrtle Avenue from the boundary line of Long Branch to Port au Beck Avenue. Under this claim of reversion, the track authority has placed a fence which completely encloses the track property approximately 8 feet from the north end of the bridge, and gate No. 8 is the gateway joining this fence as it crosses Myrtle Avenue. The 8 feet is actually the approach to the bridge proper where wooden railings extend the metal railings of the bridge. Track officials have given the defendant permission to use this gate as defendant represents it is the only entrance it can use under its operating authority. All other motor carriers of passengers which serve the track are required to enter the track property through gate No. 10 at the northwestern corner of the track. Immediately inside gate No. 8, defendant turns west into that portion of some of the track Long Branch which lies north of Turtle Mill Brook where stables are located. Crossing this 40-foot strip of Long Branch, defendant (footnote continued on next page)

The examiner concluded that defendant's operating authority permits it to provide service to the racetrack when entering the track ground at gate No. 8 over a private roadway from Long Branch, and recommended that the complaint be dismissed. Complainant excepts to the examiner's report and recommended order, contending that it is the only carrier authorized to serve the track from New York City; that both the bridge and its approaches of approximately 8 feet are owned by the county; that Myrtle Avenue is a county road which cannot legally be vacated by the Borough of Oceanport; and that, inasmuch as Turtle Mill Brook is a tidal stream, the State of New Jersey owns the bed of the stream and to the high tide mark on each bank (approximately 12 inches), therefore it is necessary for defendant to traverse public property to gain access to the track property.

In reply, defendant charges misstatements of the evidence by complainant and asserts that the Commission is without authority to construe and apply State laws. It is contended that the Commission should construe the geographical scope of its certificate liberally and that the complaint be dismissed.

The situation here involves two issues: (1) can defendant serve that northern portion of Long Branch which can only be reached by routes outside the northern municipal limits of Long Branch, and, (2) if the answer is in the affirmative, then we must determine whether defendant may go outside the municipal limits of its authorized terminus by means of a private road originating within said municipal limits.

Unlike motor carriers of property whose terminal areas are normally coextensive with the commercial zones of municipalities, the terminal areas of passenger carriers are confined to the corporate limits of points they are authorized to serve. Commercial Zones and Terminal Areas, 54 M.C.C. 615. Therein, we modified former findings construing operating authorities of passenger carriers in respect to service which may be performed at points or in territory immediately adjacent to authorized municipalities in the same manner as we do property carriers. No need was found to exist at that time for determining the limits of the terminal areas of passenger carriers.

(footnote 2 continued)

reenters the Borough of Oceanport, and continues to the clubhouse where the passengers are discharged. Between racing seasons gate No. 8 is closed and locked and no traffic may enter the track property, including that part of Myrtle Avenue lying in Oceanport.

Sometime later, we considered the service which could be performed along the regular route of common carriers of passengers holding such authority. Administrative Ruling No. 102, 82 M.C.C. 581, sustained in Carolina Scenic Stages v. United States, 202 F. Supp. 919 (1962). However, this determination is inapplicable to the instant situation for the reason, inter alia, Monmouth County, N. J., is specifically excepted from these rules as an area in which the routes to, from, and within such county constitute the very essence of the operation.

A grant of authority to serve a particular municipality is predicated on proof of public need for the service authorized, and, as here, this need extends to all portions of the city limits. Defendant's authority to serve Long Branch is without limitation as to specified streets, and, unless otherwise limited by its franchise, it may serve any and all portions of the area within the municipal limits of Long Branch. Prior to the change of the course of Turtle Mill Brook by the racetrack operation in order to provide additional space for its stables, defendant could serve this area lying north of the stream. Forcing the stream southward approximately 40 feet, the Monmouth County Jockey Club extinguished defendant's accessibility to this area except by use of the Myrtle Avenue Bridge, of which only half lies within the municipal limits of Long Branch. Inasmuch as we have never permitted the action of any city or municipality to remove any territory from a carrier which was originally encompassed in a grant of authority by us to a motor carrier, it follows that we cannot permit action by individuals or corporate entities to withdraw from motor carriers that area which we have included within a grant of authority and to which we have found a public need for a transportation service of the type authorized. See Southern Motor Exp., Inc.-Modification of Certificate, 84 M.C.C. 627, 630, and Wright v. Central Freight Lines, Inc., 66 M.C.C. 396. To permit such a result would be tantamount to a partial revocation by the Monmouth County Jockey Club of the certificate which we have issued defendant. Moreover, we have held that authority to serve a point includes, without saying, the right to operate over bridges. See Hudson Bus Transp. Co., Inc., Passenger Service, 46 M.C.C. 377. The Long Branch boundary line is at the center of the bridge, and the distance outside the municipal limits of Long Branch over which defendant would operate through gate No. 8 to a point at which it would reenter Long Branch does not exceed 25 feet. Accordingly, we conclude that a motor common carrier of passen