ICC v. Hudson Transportation Company, Civ. A. No. 354-59.

• Decision Date: 11 June 1959
• Docket Number: Civ. A. No. 354-59.
• Citation: 174 F. Supp. 373
• Parties: INTERSTATE COMMERCE COMMISSION, Plaintiff, v. HUDSON TRANSPORTATION COMPANY, Defendant.
• Court: U.S. District Court — District of New Jersey

174 F. Supp. 373

INTERSTATE COMMERCE COMMISSION, Plaintiff, v. HUDSON TRANSPORTATION COMPANY, Defendant.

Civ. A. No. 354-59.

United States District Court D. New Jersey.

June 11, 1959.

Chester A. Weidenburner, U. S. Atty., Newark, N. J., by Larsh B. Mewhinney, New York City, for plaintiff.

August W. Heckman, Jersey City, N. J., for defendant.

WORTENDYKE, District Judge.

In this proceeding invoking jurisdiction under 49 U.S.C.A. § 322(b), the Interstate Commerce Commission seeks a preliminary and final injunction against further allegedly unauthorized operations by Hudson Transportation Company, a New Jersey corporation, engaged in the transportation of property for the general public in interstate commerce over and upon public highways between points in New Jersey and points in other States, as a common carrier by motor vehicle under Certificate of Public Convenience and Necessity No. MC-113933, issued by the Commission to the carrier. More specifically, the verified complaint alleges that since August 4, 1958, on numerous occasions including those enumerated in "Exhibit `A'" annexed to the complaint, the carrier served, respectively, Carbondale, Ransom and Shavertown in the State of Pennsylvania, and White Plains and Mt. Kisco in the State of New York, without there being in force a certificate of public convenience and necessity authorizing transportation by the carrier to and from the stated points. The Commission charges that these transportations were in violation of 49 U.S.C.A. § 306(a), and that the carrier intends to continue to operate to and from those points unless restrained from so doing.

Upon the verified complaint, and the affidavits respectively of the District Supervisor and the Secretary of the Commission, plaintiff moved for temporary injunctive relief for the causes therein alleged. No answering affidavit has been presented in behalf of the carrier, but in its answer to the complaint the carrier admits the acts which plaintiff charges, but defendant denies they constitute violations of the limitations prescribed in the certificate under which the carrier is authorized to operate. Defendant also concedes that, unless restrained, it will continue to conduct its operations to and from the points which the Commission alleges are prohibited by the limitations prescribed in the carrier's certificate.

On June 9, 1953, Division 5 of the Commission granted to the defendant a Certificate of Public Convenience and Necessity, No. MC-113933, by the terms of which the carrier was authorized to engage in the transportation of stated categories of commodities in interstate or foreign commerce as a common carrier by motor vehicle "Between Stroudsburg, Pa., and points in Pennsylvania within 40 miles of Stroudsburg, on the one hand, and, on the other, New York, N. Y." and "Between New York, N. Y. and Stroudsburg, Pa., and points in Pennsylvania within 40 miles of Stroudsburg, on the one hand, and, on the other, points in" certain named Counties of New Jersey.

At hearings held, respectively, on May 11 and 13, 1959, upon plaintiff's motion for preliminary injunction, evidence was presented, and thereafter briefs were submitted in behalf of each of the parties. The sole issue presented upon the motion is to be found in the question whether Carbondale or Ransom or Shavertown, Pa. is a point "within 40 miles of Stroudsburg" in that State. If that question is answered in the affirmative, the motion of the plaintiff must be denied, but if answered in the negative, the motion should be granted.

Not only does the defendant admit that it serves Carbondale, Ransom and Shavertown, as well as Kutztown, Pa. and White Plains and Mt. Kisco, New York, but defendant expresses its intention to continue serving Carbondale, despite the Commission's warning and directive of February 2, 1955 to cease such operations, which directive has since been disregarded. Moreover, defendant admits that Kutztown, Pa. and White Plains and Mt. Kisco, New York are respectively points beyond the limits prescribed in the carrier's certificate.

Upon the hearing of May 11, 1959 on the motion for preliminary injunction, there was received in evidence, over defendant's objection, for the purpose of showing the respective air-line distances between Stroudsburg, Pa. on the one hand and Carbondale, Ransom and Shavertown, Pa. on the other, a cardboard sheet measuring approximately nine feet by six feet, upon...