I wholeheartedly agree that trains Nos. 5, 6, 8, 11-7, 12, 17, 33, and 35 were of an intercity nature. But I believe train No. 34 clearly fell within the statutory category of commuter or other short-haul service in metropolitan and suburban areas which is usually characterized by “reduced fare, multiple-ride and commutation tickets, and by morning and evening peak period operations.”
Where the report here misses the mark, I respectfully submit, is in apparently confusing this statutory language with the six criteria we laid down in Penn Central Transp. Co. Discon, or Change in Serv., 338 I.C.C. 318, 326 (1971) (hereinafter called the “criteria case”). Ignored is the fact that in the “criteria case” we said that commuter and other short-haul service would “likely” include “some” or all of the features in the six criteria. One might go so far as to say that logically implicit in the two quoted words is that it might even be possible for a train to be of a commuter or other short-haul nature and have none of these features. Thus, these criteria a fortiori are extremely flexible and elastic, not rigidly binding. And, while I believe — contrary to the decision of this Commission in Penn Central Transp. Co. — Status of Passenger-Service, 338 I.C.C. 660 (1971) (the New York City — Chatham, N. Y. case) — that the service involved there was probably of the nature of commuter or other short-haul service, I do agree with the statements in that report that these criteria are merely “to assist in the definition of ‘commuter and other short-haul service’ ” but that “[o]ur first recourse, however, must to be to the language of the statute itself.” 338 I.C.C. at 667.
The statute does not say commuter and other short-haul service is that “used on a regular basis within a single metropolitan area or between a single metropolitan area and its suburbs, or between two metropolitan areas.” I surely agree with the majority that service between two metropolitan areas is not involved here. Yet by adhering so literally to every crossed “t” and dotted “i” of our original unexpanded first criterion the report would otherwise twist the statutory language in the manner indicated in the first portion of the language set forth in quotation marks above.
In going further, the majority says that train No. 34 satisfied the third criterion but not the second. Of the six criteria, only the second and third (with a minor exception in the third) flow forth from the cool, clear waters of the language of the statute itself. But the interpretation in the report of the “peak period operations” portion of the statute and the application there of the other criteria have muddied those waters. It is beyond my comprehension why a prerequisite to a finding that train No. 34 was of a commuter or other short-haul nature is that it must have had a clear counterpart operating in the peak evening period. Train No. 34, as the majority indicates, operated at a peak morning hour. And that is good enough for me to find that it fitted this statutory phase of commuter service.
The minor exception in our third criterion to which I have referred above as not being in the statute is that a majority of the riders should do so on commutation or multiple ride tickets. This is, of course, no more than icing on the cake of the statute. But it is a characteristic which everyone, including even the defendant and the majority, agrees *50was part of the trappings of train No. 34. And this entire Commission, with one member not participating, unanimously stated in the “criteria case” at 338 I.C.C. 325:
* * * it is our opinion that, for trains obviously to fall within the commuter and short-haul exclusion, they not only would honor multiple-ride tickets but that, moreover, the majority of those riding the train would do so on that reduced fare basis. [emphasis mine]
The remaining criteria with which the report here partially attempts to scrap the commuter and other short-haul nature of train No. 34 do not emanate from the precise statutory language. The statute says nothing about such service entailing several stops at short intervals (criterion 4). It says nothing about the type of equipment that should be used (criterion 5). And it says nothing about a mileage limitation (criterion 6). Indeed, it would seem that this last is avoided.
The Congressional description of "commuter and other short-haul service” is identically the same as our definition of “suburban passenger service” in our Intercity Rail Study with the all-important deletion of our 75-mile limitation and with no replacement of it with any mileage limitation at all. (Please see the discussion at 342 I.C.C. 26). Congress must have done this deliberately. I believe that Congress did not want this type of service to be considered by any means only suburban service, as essentially would be required by our sixth criterion and by our original first criterion. And I believe this Commission must perforce agree with this conclusion since it found in essence in the “criteria case,” 338 I.C.C. 318 (where the service was between Boston, Mass., and Providence, R. I.), in a Penn Central case at 338 I.C.C. 621 (where the involved train service was between Harrisburg, Pa., and Philadelphia, Pa.), and in another Penn Central case at 338 I.C.C. 690 (where the involved train service was between Philadelphia, Pa., and New York, N. Y.) that the involved services were of the nature of “commuter and other short-haul service.” Apropos of this, I am, regretfully, completely unable to embrace warmly the rather unique position of this Commission — as evolved from this and other cases cited in the report — which seems to be that to fit the description of commuter and other short-haul service a train in practicality should always operate (1) between a single metropolitan area and its suburbs or (2) between two metropolitan areas. I assume what this means is that any service which falls “between” these two ends of the pole of statutory interpretation must virtually willy-nilly be intercity service!
Finally, regarding the arguments raised respectively by the complainants and the majority here as to segmentation of service and as to the essential question being whether the total service is intercity or commuter is not whether a single train is intercity or commuter, I emphasize that what we are dealing with is the type of service provided by a particular train. (In this connection please compare the quotation in the majority’s footnote 7 where Senator Prouty spoke of a single train, not of the overall service between points.) We cannot segment a train or the service it'provides in determining its nature. But if the total service of a particular train meets more of the points in the statutory description of commuter and/or other short-haul service rather than of intercity service —as did that of train No. 34 — then that, of course, is what it is.
ORDER
At a General Session of the INTERSTATE COMMERCE COMMISSION, held at its office in Washington, D. C., on the 25th day of June, 1973.
Finance Docket No. 26689
MAVIS KENNEDY v. THE BALTIMORE AND OHIO RAILROAD COMPANY
Upon consideration of the record in the above-entitled proceeding, the report of the Commission appearing at 342 I. *51C.C. 19, the order of The United States District Court for the District of Columbia dated April 25, 1973, referring to this Commission the issue as to whether certain trains of The Baltimore and Ohio Railroad Company provide “intercity” or “commuter or other short-haul” service, the order of the Commission, dated April 27, 1973, vacating the order of the Commission dated January 26, 1972, and reopening the proceeding, and the briefs submitted by Mavis Kennedy, Potomac Passengers Association and The Baltimore and Ohio Railroad Company; and the Commission, on the date hereof, having made and filed a report containing its findings of fact and conclusion thereon, which report is hereby referred to and made a part hereof:
It is ordered, That the proceeding be, and it is hereby, dismissed, for lack of jurisdiction.
By the Commission.
ROBERT L. OSWALD (SEAL) Secretary
NOTE: This decision is not a major Federal action significantly affecting the quality of the human environment within the meaning of the National Environmental Policy Act of 1969.