The reservations in the deed and the leases are intended to assure continuing rights to use and occupy such portions of the building as, on the one hand, will enable Terminal Corporation to operate its terminal facilities and to discharge its obligations under the operating agreement (as proposed to be amended) and, on the other, will enable the New Haven and the New York Central to provide railroad service as at present.

In addition to amendment of the operating agreement, the transaction also contemplates that the first-mortgage deed will be amended. The details of the proposed changes in the existing contractual arrangements, insofar as pertinent, will be mentioned below in connection with our discussion of the respective applications.

The Commonwealth of Massachusetts and the city of Boston have been permitted to intervene in the title proceeding. No pleadings were filed by them in Finance Docket No. 21199, although it appears that they are equally interested in the subject embraced therein. In response to a letter from the Director of our Bureau of Finance requesting a statement of its position, the city of Boston, in a letter dated September 14, 1960, merely stated that it is opposed to the sale of the building and expressed its opinion that "this is a step in the direction of the abandonment of service to South Station" and will adversely affect "the economic conditions in the city." The Commonwealth of Massachusetts, in response to a similar request, filed a statement of opposition on September 15, 1960, broadly stating "its opposition to the applications presently pending," and assigning as reasons therefor allegations that "the savings contemplated by the said transaction *** are wholly illusory and fictitious"; that the sale is not bona fide, being intended for the purpose of establishing evidence in support of a pending petition for abatement of real estate taxes; that the record contains no evidence of the buyer's financial ability to meet its obligations for debt service, taxes, and maintenance; and that the transaction "could result in an abandonment of the terminal facilities by the New Haven and New York Central," with attendant adverse economic consequences.

In essence, both statements oppose only the sale. By its nature, therefore, this opposition is directed only against the relief sought under section 1(18) for abandonment, and is not aimed at any of the other pleadings.

Application for abandonment.-Terminal Corporation's application under section 1(18) for authority to abandon its building known as South Station was filed at the request of the holder of the first mortgage in order to determine the question of this Commission's jurisdiction. The motion to dismiss the application for lack of jurisdiction is not opposed; for the statements of opposition filed by the city of

Boston and by the Commonwealth of Massachusetts, make no contentions, pro or con, with respect to the jurisdictional question raised by the motion.

Applicant's motion challenges our jurisdiction on the ground that the proposed sale does not involve an abandonment of "a line of railroad or the operation thereof" within the meaning of section 1(18). To hold that the proposed transaction is subject to the provisions of that section, it is necessary to find that the property to be sold constitutes part of such "a line of railroad" and that consummation of the proposed sale would be tantamount to abandonment of such line or of its operation. Meyers v. Famous Realty, Inc., 271 F. (2d) 811, 814. In support of its motion, Terminal Corporation points out that in Kansas City Southern Ry. Co. Application, 94 I.C.C. 691 (1925), we specifically denied jurisdiction over "the abandonment of a passenger and freight depot," and calls to our attention the discussion of this principle in Order of Railroad Telegraphers v. Chicago & N.W. Ry. Co., 362 U.S. 330, 353 (1960). Factually, applicants urge that, under the terms of the transaction, operations at the terminal will continue substantially as at present since (1) the proposed sale will embrace only the station building; (2) the transaction will not effect any change "in the present use or ownership of the property, tracks, signals, or other facilities located outside of the building"; and (3) Terminal Corporation will reserve, and all three applicants will lease, estates in the premises which will assure the New Haven and the New York Central of "continuing rights to use and occupy such portions of South Station building as are necessary to enable them to provide railroad service substantially as at present."

There is no contention or showing that the station building under consideration is similar to the one involved in 94 I.C.C. 691 and, were the term "station" sufficiently definitive in meaning we could summarily dispose of the jurisdictional question on the basis suggested in Terminal Corporation's motion. It is not necessary here to attempt a definition of this term since the basic question is not whether the property to be sold constitutes a station but rather whether the sale, if carried out under the conditions and with the reservations described, would constitute abandonment of "all or any portion of a line of railroad or the operation thereof." Suffice it merely to point out that our determination in 94 I.C.C. 691 that we lacked jurisdiction under section 1(18) over that particular freight and passenger depot was not a categorical holding that all stations, whatever their character and relation to transportation, are outside the authority granted by section 1(18); for "a line of railroad" does not cease to be such merely because it is called, or embraced within, a "station."

Section 1(18) which was enacted as part of the Transportation Act of 1920, provides in pertinent part:

no carrier by railroad subject to this part shall abandon all or any portion of a line of railroad, or the operation thereof, unless and until there shall first have been obtained from the Commission a certificate that the present or future public convenience and necessity permit such abandonment.

The quoted language was intended to "provide that there shall be some Federal control over the matter of abandonment," (58 Cong. Rec. 8316-8318) and was designed to protect industries or homeowners who had located in reliance on the availability of the railroad line. (“Return of Railroads to Private Ownership, Hearings Before the Committee on Interstate and Foreign Commerce of the House of Representatives, 66th Cong. on H.R. 4378," Sept. 25, 1919, p. 2872.) While some extension of Federal authority was sought, the emphasis was on coordination and cooperation between the Federal and State authorities, and where to draw the line separating Federal jurisdiction from that left to the States was regarded as being a matter of secondary importance. (id. p. 2958).

It is well settled that under this provision we have no jurisdiction where mere curtailment of service is sought (Colorado v. United States, 271 U.S. 153; Palmer v. Massachusetts, 308 U.S. 79, 85; Alabama v. Southern Ry. Co., 341 U.S. 341, 346) such as the elimination of express service (Express Service at Borden, Campbellsburg, and Pekin, Ind., 286 I.C.C. 303, 305), or the discontinuance of passenger service while retaining freight service (Norfolk & W. Ry. Co. Abandonment, 187 I.C.C. 66).

As long ago as 1925, we found that we lacked jurisdiction over the proposed retirement of a freight and passenger depot (94 I.C.C. 691). More recently we made it clear that the construction of a new yard and the consolidation of terminal facilities are not within themselves subject to our jurisdiction and may be accomplished without our approval (Oregon-W.R. & Nav. Co. Construction, 275 I.C.C. 591, 598). Where, however, a line of railroad is involved, our jurisdiction under section 1(18) is invoked and, hence, our approval is necessary for the establishment, construction, and operation of a joint terminal by interstate carriers (Atchison, T. & S.F. Ry. Co. v. Railroad Comm. of Calif., 283 U.S. 380, 390 (1930); Railroad Comm. of Calif. v. Southern Pac. Co. 264 U.S. 331 (1924); Pittsburgh & W.V. Ry. Co. v. United States, 41 F. (2d) 806, 811). Likewise, where tracks were also involved we have exercised jurisdiction under section 1(18) with respect to land, wharfs, or piers, and grain elevators (Norfolk & W. Ry. Co. Acquisition and Operation, 154 I.C.C. 371, 375).

The Congress has been fully aware that the abandonment of stations is ordinarily a matter wholly within the jurisdiction of the State regulatory bodies. Indeed, as recently as 1958, the Congress made it

clear that it did not wish to transfer such jurisdiction to this Commission (H. Rept. No. 1922 85th Cong. 2d sess. p. 12), and the additional jurisdiction conferred in that year by the enactment of section 13a (i.e. over the discontinuance or change of certain operations or services) did not include jurisdiction over "discontinuance or change of the operation or service of stations, depots or other facilities," as was provided in an earlier version of the bill which later was enacted as the Transportation Act of 1958.

The decisions of this Commission and of the courts indicate that the term "line of railroad" in section 1(18) is used in its primary and ordinary sense, and denotes "a permanent road or way having rails providing a track for freight and passenger cars and other rolling stock" (Webster's New Collegiate Dictionary) or the equivalent of such a road (e.g., ferries operated in connection with such a track). We conclude, therefore, that, unless the abandonment of a station embraces property which constitutes such a line of railroad or a portion of such line, section 1(18) does not apply. In the situation before us, the sale embraces only the station building and does not include any of the tracks or other terminal facilities. Also, all three carriers will continue to carry on their operations substantially as at present, and there will be no change in service. We find that the sale of the station building in question under the terms, conditions, and circumstances of the above-described transaction does not constitute an abandonment either of a line (or portion of a line) of railroad or of its operation within the meaning of section 1(18). In our opinion section 1(18) does not confer jurisdiction, and our approval is not required where, as here, there is involved no abandonment of a line of railroad physically or operationally. Accordingly, the application under section 1(18) will be dismissed.

Amendment of operating agreement.—Of the 21 paragraphs which make up the existing operating agreement, the proposed amendment would change only 6 of them. It would delete paragraph 3 and modify paragraphs 1, 2, 4, 6, and 19. The amendment would effect the following changes:

(1) Paragraph 3 grants to the New York Central and to the New Haven, respectively, the exclusive use of designated space in the station building. As a result of its deletion, the agreement would no longer grant any rights for exclusive use. Correspondingly, paragraph 4 of the amended operating agreement would omit reference to space "devoted to the exclusive use of any party hereto."

(2) In scope the amended operating agreement would be limited to providing for the joint use of Terminal Corporation's remaining facilities and property. Instead of broadly referring to an embracing "all of its facilities and property," as paragraphs 1 and 2 of the

existing agreement do, the amended agreement would be restricted to cover only: (a) the property unaffected by the sale (i.e., the land and facilities thereon located outside of the South Station building), (b) those portions of the station building and the facilities and rights embraced by the reservations in the proposed deed, and (c) reasonable access and egress to and from the foregoing property and facilities, including access and egress to and from railroad trains.

(3) The term of the agreement would be changed. Presently, paragraph 19 designates a term coextensive with the corporate existence of Terminal Corporation subject, however, to the right of either the New Haven or the New York Central to terminate after a period of 25 years from December 9, 1952 (the effective date of the agreement). The revised paragraph 19 makes virtually the identical provision with respect to property of Terminal Corporation which is unaffected by the sale. With respect to the estate reserved in the station building, however, the amended agreement would continue until, whichever is later, (a) the date the first-mortgage deed is discharged or (b) December 8, 1977, unless extended for one or two successive 20-year periods.

Under the terms of the proposed sale Terminal Corporation will reserve an estate in the building which will enable it to use facilities and exercise rights for a period coextensive with its use of the concourse, and, in addition, it will have the right, if it renews the lease, to use designated space in the building (including certain other facilities and rights) for the next 57 years. In the circumstances, the proposed change in the term of the operating agreement is neither material nor inconsistent with the provisions of the existing operating agreement. We think it is compatible with the public interest.

(4) The only other provision which the amended operating agreement would change is paragraph 6(b) (i), which presently requires the New Haven and the New York Central to advance 70 percent and 30 percent, respectively, of the amounts needed by Terminal Corporation from time to time to make the payments "according to the provisions of its Mortgage Note dated December 9, 1952, for $3,500,000 and of the First Mortgage Deed, dated December 9, 1952, securing said Note." The only change in this provision would be the addition of "as amended by the Agreement and Supplemental Mortgage dated 1960." This phrase is intended to make clear that the obligation to make such advances is to remain in effect even though the first-mortgage deed is amended and even if, as would be provided by the supplemental mortgage, the note thereby secured may, if requested by the mortgagee, have stamped on it a legend stating that the note is subject to the supplemental mortgage.