360 F.2d 44 (6th Cir. 1966), 16466, I. C. C. v. Memphis Union Station Co.

Docket Nº:16466-16471.
Citation:360 F.2d 44
Party Name:INTERSTATE COMMERCE COMMISSION, Plaintiff-Appellee, and City of Memphis, Tennessee, and Railway Labor Executives' Association, Intervenor-Plaintiffs-Appellees, v. MEMPHIS UNION STATION COMPANY, Missouri Pacific Railroad Company, Union Railway Company, Louisville and Nashville Railroad Company, Illinois Central Railroad Company, St. Louis Southweste
Case Date:March 31, 1966
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 44

360 F.2d 44 (6th Cir. 1966)

INTERSTATE COMMERCE COMMISSION, Plaintiff-Appellee, and City of Memphis, Tennessee, and Railway Labor Executives' Association, Intervenor-Plaintiffs-Appellees,

v.

MEMPHIS UNION STATION COMPANY, Missouri Pacific Railroad Company, Union Railway Company, Louisville and Nashville Railroad Company, Illinois Central Railroad Company, St. Louis Southwestern Railway Company, Southern Railway Company, Defendants-Appellants.

Nos. 16466-16471.

United States Court of Appeals, Sixth Circuit.

March 31, 1966

Page 45

Francis M. Shea, Washington, D.C., for Louisville & Nashville R. Co., Southern Railway Co., Missouri Pacific Railway Co., Memphis Union Station Co. and Union Railway Co., Jesse E. Johnson, Jr., Memphis, Tenn., Joseph L. Lenihan, James W. Holland, Louisville, Ky., John B. Mack, Memphis, Tenn., on the brief, for Louisville & N.R. Co. and Illinois Cent. R. Co. and Burch, Porter & Johnson and Clifton, Mack & Kirkpatrick, Memphis, Tenn., of counsel; William D. McLean, Peter S. Craig, Washington, D.C., Harry W. Laughlin, Jr., Memphis, Tenn., on the brief, for Southern Ry. Co., and Laughlin, Watson, Creson, Garthright & Halle, Memphis, Tenn., of counsel; Mark M. Hennelly, Gilbert P. Strelinger, St. Louis, Mo., Edward P. Russell, Memphis, Tenn., on the brief, for Missouri Pac. R. Co., Canada, Russell & Turner, memphis, Tenn., of counsel; Edward P. Russell, Memphis, Tenn., on the brief for Memphis Union Station Co., on the brief, Canada, Russell & Turner, Memphis, Tenn., of counsel.

James W. Hoeland, Louisville, ky., for Louisville & N.R. Co., and Illinois Cent. R. Co., Jesse E. Johnson, Jr., Memphis, Tenn., Joseph L. Lenihan, Louisville, Ky., John B. Mack, Memphis, Tenn., on the brief, Burch, Porter & Johnson and Clifton, Mack & Kirkpatrick, Memphis Tenn., of counsel.

Edward P. Russell, Memphis, Tenn., for St. Louis Southwestern Ry. Co., Clyde W. Fiddes, Tyler, Tex., on the brief, Canada, Russell & Turner, Memphis, Tenn., of counsel.

Harvey Gobetz, Washington, D.C., for Interstate Commerce Commission, Marcus L. Meyer, Interstate Commerce Commission, Washington, D.C., Thomas L. Robinson, U.S. Atty., Memphis, Tenn., on the brief.

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William J. Hickey, Washington, D.C., for Railway Labor Executives' Assn., William F. Kirsch, Jr., Memphis, Tenn., James L. Highsaw, Jr., William G. Mahoney, William J. Hickey, Jr., Washington, D.C., on the brief, Heiskell, Donelson, Adams, Williams & Wall, Memphis, Tenn., Mulholland, Hickey & Lyman, Washington, D.C., of counsel.

Patrick Johnson, Sr., City Atty., Memphis, Tenn., for City of Memphis, Arthur J. Shea, S. A. Wilbun, Asst. City Attys., Memphis, Tenn., on the brief.

Before EDWARDS and CELEBREZZE, Circuit Judges, and KENT, District judge. [*]

EDWARDS, Circuit Judge.

The Interstate Commerce Commission filed these complaints in the United States District Court for the Western District of Tennessee. The complaints sought injunctions to restrain five railroads 1 and the Memphis Union Station Company from abandoning operations at the Memphis Union Station without prior ICC approval of both the abandonment and the railroads' alternate arrangements.

Prior to the commencement of these actions, the railroads in question (in the face of an ICC warning) had actually abandoned service to the Union Station and each of the operating railroads had found other passenger terminal facilities.

The cessation of operations was accomplished without application for abandonment of lines of railroad to the ICC and the substituted service was accomplished without application for approval of the agreement for extension of service to the other terminals.

The City of Memphis intervened to argue against the abandonment of the Union Station on behalf of the city and its citizens, and a representative of the Railway Labor Executives' Association intervened to contend that the interests of the jobs of 120 people who had been laid off by the closing of the Union Station should be taken into account likewise, and would be if the ICC were held to have jurisdiction of the matter.

The merits of the abandonment and alternate service issues were not before the District Court and are not before us. Appellees contended simply that neither could be lawfully accomplished without ICC approval under the terms of the Interstate Commerce Act, 49 U.S.C. § 1-27 (1964).

Judge Bailey Brown after full hearing issued a memorandum decision holding that the Interstate Commerce Commission did have jurisdiction in relation to both the abandonment issue and the agreement for extension of services issue, and issued injunctions requiring the defendants to cease and desist from the violations found. ICC v. Memphis Union Station Co., 230 F.Supp. 456 (W.D.Tenn.1964).

The appellants contend that they are exempt from ICC jurisdiction in relation to the current problem because of the exception contained in Section 1(22), 41 Stat. 478 (1920), 49 U.S.C. § 1(22) (1964). The exemption reads:

'The authority of the Commission conferred by paragraphs (18) to (21) of this section, both inclusive, shall not extend to the construction or abandonment of spur, industrial, team, switching, or side tracks, located or to be located wholly within one State * * *.' 41 Stat. 478 (1920), 49 U.S.C. § 1(22) (1964).

Appellants also argue that Congress in 1920 in enacting the ICC legislation, and in 1958 in amending it, gave consideration to the exact problem currently before us and specifically declined to grant the ICC power over union terminals.

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Appellees rely upon the broad language of Sections 1(18) and 1(20), and Section 5 (2 and 4) as follows:

'No carrier by railroad subject to this chapter 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 * * *.' 41 Stat. 477-478 (1920), as amended, 49 U.S.C. § 1(18) (1964).

'Any construction, operation, or abandonment contrary to the provisions of this paragraph or of paragraph (18) or (19) of this section may be enjoined by any court of competent jurisdiction at the suit of the United States, the Commission, any commission or regulating body of the State or States affected, or any party in interest * * *.' 41 Stat. 478 (1920), 49 U.S.C. § 1(20) (1964). 2

'It shall be lawful, with the approval * * * of the Commission * * *

(ii) for a carrier by railroad to acquire trackage rights over, or joint ownership in or joint use of, any railroad line or lines owned or operated by any other such carrier, and terminals incidental thereto. * * *' 54 Stat. 905 (1940), 49 U.S.C. § 5(2) (1964).

Section 5(4) makes unlawful such an agreement without Commission approval.

The ICC also relies upon a number of cases where the ICC has assumed jurisdiction, sometimes without contest from the parties involved, in terminal track situations somewhat comparable to that which we have before us. St. Joseph Union Depot Co., 133 I.C.C. 537 (1927); Atchison, Topeka & Santa Fe Railway Co. Operation, 224 I.C.C. 39 (1937); Fort Worth Union, passenger Station Co., 97 I.C.C. 698 (1925); St. Louis, San Francisco & Texas Railway Co. Trackage Rights, 267 I.C.C. 30 (1946).

Finally, the ICC and the District Judge rely upon Mr. Justice Taft's opinion in Railroad Commission of State of California v. Southern Pacific Company, 264 U.S. 331, 44 S.Ct. 376, 68 L.Ed. 713 (1924), which we shall refer to in more detail later.

The Cotton Belt Railroad (St. Louis Southwestern Railway Co.) appears with an entirely separate argument and asks to be dismissed as an...

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