Evening star., 1939-01-05
Appeal Likely on Rule
Barring Auto-Rai|er
From District Streets
Permanent Injunction
Is Granted to
Capital Transit Co.

With an appeal in prospect by
the Arlington g. Fairfax Auto Rail-
road Co., Justice Daniel w. ODono-
ghue in District Court yesterday
granted permanent injunction to
the Capital Transit Co. denying
the Virginia carrier the right to
bring its vehicles into downtown
washington to Fourth street and
Constitution avenue NV. from its
present terminal at Rosslyn, Va.
The jurist sustained the Capital
Transit Co.'S position, which was
that the bringing of the buses of
the Virginia carrier into the down.
town area would be obstructive
competition" would deprive the
company of some 800 passengers
both ways daily, resulting in a loss
of $4,000 annually net, and jeop-
ardize. a $l20,O0O investment in
CURED when an electrician under
ground system was contructed at
Key Bridge to Rosslyn.
Essentially" Bus Line.
Justice O'Donoghue ruled that the
Arlington & Fairfax Auto Railroad
Co. is not railroad, is not an elec-
trio road, and it is essentially bus
line. Referring to pickup and de-
livery service" which the Virginia
carrier likened to the Baltimore &
Ohio Railroad Co.'S facilities into
New York City and similar to that
utilized by many of the Nations
railroads regarding freight, the jur-
ist said that this term does not
apply usually to buses, save when
large buses haul people to terni-
nal and there the passengers are
taken in small buses and taxicabs
to near their homes.
When the buses of the Virginia
carrier come into Washington they
| have extended the terminal into
Washington, and Rosslyn becomes a
station along the line, said Justice
O'Donoghue. Part II of the Inter-
state Commerce Commission Act
does apply in this case, pertaining
to motor carriers, said the jurist,
and likewise the Merger Act, under
which the street railway companies
here were unified, also applies. This
indicates that certificate of con-
venience and necessity is required.
The Public Utilities Commission,
said Justice ODonoghue, should not
have passed any order providing for
a route for the vehicles of the Vir-
ginia carrier through the District,
as it was putting the cart before
the horse. He likened it to the
building inspectors Office telling an
applicant about the height of a
building, the required air space, the
thickness of the walls and the size
girders to go into the projected con-
struction before real authorization
had been granted for the edifice.
Justice ODonoghue said that the
Public Utilities Commission has
done futile thing" if the certifi-
cate of convenience and necessity
is not to issue.
Commissions View Stated.
In his closing argument Lloyd B
Harrison, lawyer for the Public
Utilities Commission, said that that
body felt valid order had beer
issued, that the commission as
sumed the auto railroad would COM
ply with the law, but he declared the
Arlington & Fairfax Auto Railroad
Co. had never inquired of the In
terstate Commerce Commission il
it required a certificate of conven.
fence and necessity under the Motor
Vehicle Act. Further, he argued
that the Virginia carrier had never
secured decision from the Inter.
state Commerce Commission as tt
whether Washington is within it.
terminal area, and that carrier hae
told the Public Utilities Commission
that it could not decide it. as il
lacks authority. If the Nationa
Capital is part of the terminal ares
Of the Arlington e. Fairfax Aute
Railroad Co., Mr.. Harrison arguee
that any carrier may come into ths
city without a certificate of conven.
ience and necessity if the Virgins
carriers position be correct.
Representing the Capital Transi
Co. were its attorneys, G. Thoma!
Dunlop and S. r. Bowen.
The Virginia carrier argued tha'
it is not required by law to obtair
a certificate of convenience ane
necessity from either the Interstat.
Commerce Commission or the Pub.
lie Utilities Commission of the Dis.
trict as condition prerequisite tt
its engaging in the interstate "pick.
up and delivery service within tht
District and subject only to tn,
police powers of the local commits.
sion that are conferred by law.