Bingler Vacation Tours v. United States

• Decision Date: 14 July 1955
• Docket Number: Civ. A. No. 111-55.
• Citation: 132 F. Supp. 793
• Parties: BINGLER VACATION TOURS, Inc., Plaintiff, v. UNITED STATES of America and Interstate Commerce Commission, Defendants.
• Court: U.S. District Court — District of New Jersey

132 F. Supp. 793

BINGLER VACATION TOURS, Inc., Plaintiff, v. UNITED STATES of America and Interstate Commerce Commission, Defendants.

Civ. A. No. 111-55.

United States District Court D. New Jersey.

July 14, 1955.

Edward G. Weiss, Paterson, N. J., for Bingler Vacation Tours, Inc.

Raymond Del Tufo, Jr., U. S. Atty., Newark, N. J., for the United States and Interstate Commerce Commission.

Edward W. Currie, Matawan, N. J., for intervenors.

James F. X. O'Brien, Newark, N. J., for Hudson Transit Lines, Inc., and Somerset Bus Co. Inc.

Benjamin L. Bendit, Newark, N. J., for Riverside Tours, Inc.

Before BIGGS, Circuit Judge, and MODARELLI and HARTSHORNE, District Judges.

BIGGS, Circuit Judge.

The plaintiff, Bingler Vacation Tours, Inc., is a New Jersey corporation and holds Certificate of Public Convenience and Necessity No. MC 599 issued by the Interstate Commerce Commission on March 3, 1948. The certificate authorizes Bingler to engage in transportation in interstate and foreign commerce as a common carrier by motor vehicle subject to the following specifications: "Irregular Routes: Passengers and their baggage, in special operation restricted to traffic originating at the points indicated in round-trip sightseeing or pleasure tours, from points and places in Passaic, Bergen and Essex Counties, N. J., and New York, N. Y., to points and places in Connecticut, Delaware, Maine, Maryland, Massachusetts, North Carolina, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia, and the District of Columbia, and return. Restriction: The service authorized above is subject to the following conditions: No passenger shall be picked up at any point not within the above-described base territory who has not purchased a round-trip tour ticket. Except in the case of a bona fide stop-over from one tour to a succeeding tour, no passenger shall be discharged at any point outside the described base territory other than the point of origin of that particular passenger." Section 207(a) of the Interstate Commerce Act, 49 U.S.C.A. § 307(a), authorizing the issuance of the necessary certificate to engage in interstate transportation whenever the present or future public convenience and necessity so requires, contemplates the type of certificate issued to Bingler by providing "That no such certificate shall be issued to any common carrier of passengers by motor vehicle for operations over other than a regular route or routes, and between fixed termini, except as such carriers may be authorized to engage in special or charter operations."

Among the operations conducted by Bingler under this certificate were bus services between New York City and three locations in New Jersey. Bingler offered one of these services between New York City and the horse racing track of the Monmouth Park Jockey Club, Oceanport, New Jersey, during the racing season of 1948 and 1949. A similar service was offered between New York City and the Garden State Race Track during the season of 1949. Bingler published tariffs which listed these operations as "Sightseeing Tours" and advertised the services as "Special Direct Buses." The tickets for the trips which were sold at the New York bus terminal whose facilities were used by Bingler were marked "1 day excursion," "good only on special excursion motor coaches," and "sightseeing and pleasure trip." The price of the tickets included only the transportation service. Bingler buses left the New York City terminal in time to reach the tracks before the first race. Direct routes were used; no guides were employed; and only short rest stops were made. The passengers were discharged at the entrance to the tracks and shortly after the last race the buses returned in the same manner to New York City.

Bingler also operated a bus service between New York City and Asbury Park, New Jersey, a beach resort, during the summer months of 1948 and 1949. The service was substantially similar to that operated to the race tracks except that in going to Asbury Park an indirect route along the sea coast was used. The trip was advertised as a "scenic tour of the North Jersey coast that provides the tourist with long-remembered vistas of seascape and landscape, along with a five hour stop at Asbury Park." On arrival at Asbury Park, passengers were discharged at a point along the beach, left to their own pursuits, and then returned directly to New York City in the evening.

In 1949, Asbury Park-New York Transit Corporation, a common carrier authorized to operate regular service between New York City and Asbury Park and the Monmouth track, filed a complaint with the Interstate Commerce Commission alleging that the Asbury Park and Monmouth operations of Bingler were unauthorized and were therefore in violation of Section 206(a) of the Interstate Commerce Act, 49 U.S.C.A. § 306(a), requiring authorization by certificate for interstate common carriage. I.C.C. No. MC-C-1047. In 1949, Quaker City Bus Company, certified to conduct regular service between New York City and the Garden State track, also filed a complaint charging that Bingler's Garden State service was unauthorized and violative of the Act. I.C.C. No. MC-C-1070. A number of common carriers of passengers and the National Bus Traffic Association intervened in support of the complaints. The cases were consolidated and heard by an examiner of the Commission who recommended that Bingler be ordered to cease and desist from the operations in issue. Division 5 of the Commission then considered the case and found that Bingler's race track services were unauthorized but that the Asbury Park operations were within the scope of its certificate. After petitions for reconsideration, the entire Commission heard argument and on October 4, 1954 issued its report and order. 62 M.C.C. 731.

In answer to the argument of the complainants that Bingler's earlier operations upon which its certificate was granted under the "grandfather" provisions of Section 206(a) of the Interstate Commerce Act, 49 U.S.C.A. § 306(a) (3), should be considered in construing the scope of the Bingler certificate, the Commission stated at sheets 15 and 16 of its report: "In view of the conclusion that the meaning of the term `special operations in round-trip sightseeing or pleasure tours' is established and that there is no ambiguity in defendant's certificate it follows that we are not warranted in going behind defendant's certificate and considering the operations upon which it was granted."

In construing Bingler's grant of authority, the Commission said at sheet 17 of the report: "We conclude that the operations complained of, both those to and from the race tracks and those to and from Asbury Park, might fall within the term `special operations,' but in view of the other more important restrictive language in defendant's certificate we do not believe this conclusion to be especially significant." After considering the restrictive language of "round-trip sightseeing or pleasure tours" contained in Bingler's certificate, the Commission concluded at sheet 24 that "round-trip sightseeing or pleasure tours, in special operations, which involve radial or territorial grants of authority, must include something substantial in addition to, or different from, bare expeditious transportation between two points which factor is the fundamental characteristic of ordinary regular-route passenger-carrier service."

The Commission then held Bingler's race track and Asbury Park operations to be no more than "bare expeditious transportation between two points." An order was entered "That defendant Bingler Vacation Tours, Inc., be, and it is hereby notified and required, on or before November 22, 1954, to cease and desist, and unless and until appropriate authority therefor is obtained, thereafter to refrain and abstain, from the performance of any transportation, in interstate or foreign commerce, of the character found in said report on oral argument to be beyond the scope of the authority heretofore granted to it."

A subsequent petition of Bingler for reconsideration or, in the alternative, for further hearing incident to a general investigation was denied by the Commission. The effective date of the cease and desist order was subsequently postponed by the Commission until June 10, 1955. In the meantime, Bingler filed its complaint in this case under 28 U.S.C. § 2321 et seq....