Louisville & NR Co. v. ALABAMA PUBLIC SERVICE COM'N

• Decision Date: 31 October 1950
• Docket Number: Civ. No. 698.
• Citation: 93 F. Supp. 544
• Court: U.S. District Court — Middle District of Alabama
• Parties: LOUISVILLE & N. R. CO. v. ALABAMA PUBLIC SERVICE COMMISSION et al.

93 F. Supp. 544

LOUISVILLE & N. R. CO. v. ALABAMA PUBLIC SERVICE COMMISSION et al.

Civ. No. 698.

United States District Court, M. D. Alabama, N. D.

October 31, 1950.

W. A. Northcutt, Louisville, Ky., and Steiner, Crum & Baker, Montgomery, Ala., for plaintiff.

A. A. Carmichael, Atty. Gen. of Alabama, and Wallace L. Johnson, Asst. Atty. Gen., for defendants.

Before McCORD, Circuit Judge, and CHARLES B. KENNAMER and MIZE, District Judges.

CHARLES B. KENNAMER, District Judge.

Statement of the Case

This is the fourth in a series of cases recently before this court involving similar facts and presenting the same points of law. Southern Railway Company, a corporation, v. Alabama Public Service Commission et al., D.C., 88 F.Supp. 441; Southern Railway Company, a corporation, v. Alabama Public Service Commission et al., D.C., 91 F.Supp. 980; Atlantic Coast Line Railroad Company, a corporation, v. Alabama Public Service Commission et al., D C., 92 F.Supp. 579.

Plaintiff, a citizen of the State of Kentucky, petitions this court for injunctive relief against the defendants from proceeding to enforce sanctions provided under the laws of the State of Alabama for failure or refusal of plaintiff to continue the daily, except Sunday, operation of local passenger trains Numbers 27 and 28 between Georgiana, Alabama, and the Alabama-Florida State Line, in violation of an order of the defendant Commission; and that said order be declared unlawful, null, void and of no effect.

This court, at the outset of the hearing, announced that the motions filed by the defendants: (a) to stay the call for a three judge court, (b) to stay the proceedings in this court, and (c) to dismiss the cause of action, would be overruled and denied without further argument, unless counsel for the defendants desired to cite any later decisions to the court, which counsel stated they were unable to do; therefore, the court continues to adhere to the rulings previously made, and reaffirms the following principles of law.

As the bill challenges the validity under the Federal Constitution of an order of an administrative board of the State, acting under a State statute upon which no attack is made as to the validity of the statute itself, and praying for injunctive relief against the enforcement, operation or execution of such order, a District Court, composed of three judges, under Title 28, U.S.C.A. § 2284, has jurisdiction. Herkness v. Irion, 278 U.S. 92, 49 S.Ct. 40, 73 L.Ed. 198; Oklahoma Gas Co. v. Russell, 261 U.S. 290, 43 S.Ct. 353, 67 L.Ed. 659.

Plaintiff has exhausted all administrative remedies, and the administrative processes having been terminated, plaintiff has a choice of forums, it could have prosecuted an appeal to the circuit court of Montgomery County, Alabama, Title 48, Section 79, Code of Alabama 1940, or it could have invoked the jurisdiction of this court in a plenary suit. Avery Freight Lines, Inc. v. Persons, 250 Ala. 40, 32 So.2d 886; St. Louis-San Francisco R. R. v. Ala. Pub. Ser. Comm., 279 U.S. 560, 49 S.Ct. 383, 73 L.Ed. 893; Railroad & Warehouse Comm. v. Duluth St. Ry. Co., 273 U.S. 625, 47 S.Ct. 489, 71 L.Ed. 807.

Since no suit is pending at this time in any of the courts of the State of Alabama between the parties to, or involving the subject matter of, this litigation, the rules of comity are inapplicable. Southern Railway Co. v. Ala. Pub. Ser. Comm., D.C., 88 F.Supp. 441, Id., D.C., 91 F.Supp. 980.

The doctrine of discretionary abstention does not here apply. There is no ambiguous, novel or undecided State law involved herein. The authority of the Commission to issue the order is not questioned. The statute under which it acted is not attacked. The Alabama law requires no definitive construction or authoritative interpretation. Southern Railway Co. v. Ala. Pub. Serv. Comm., D.C., 91 F. Supp. 980.

By stipulation of the parties, the court heard the case on both the application for a temporary and permanent injunction.

Proceeding to the merits of the case, the court took evidence and heard counsel for the respective parties, and now makes the following findings of fact and conclusions of law.

Findings of Fact

1. Plaintiff, a corporation organized and existing under the laws of the State of Kentucky, is engaged as a common carrier by railroad of persons and property in intrastate commerce between points within the State of Alabama on the one hand, and in interstate commerce between points within the State of Alabama and points in other states on the other hand, and as such common carrier is subject to the jurisdiction of the Alabama Public Service Commission and the Interstate Commerce Commission, respectively.

2. The defendant Alabama Public Service Commission, consisting of a President and two Associate Commissioners, is a Commission created under the laws of the State of Alabama, Title 48, Section 1, Code of Alabama 1940, and authorized under the laws of the State of Alabama to exercise certain regulatory powers over the plaintiff and other common carriers by railroad, Title 48, Section 106, Code of Alabama 1940. The principal office and official domicile of said Commission and each of its Commissioners is located in the City and County of Montgomery, and within the middle district of Alabama. The defendant A. A. Carmichael is Attorney General of the State of Alabama, with his official office in, and residing in, the City and County of Montgomery, and is by the statutes and laws of the State of Alabama charged with the supervision and control of legal proceedings in behalf of the State of Alabama, and is attorney for the Alabama Public Service Commission, Title 48, Sections 50, 51, Code of Alabama 1940.

3. This is a suit of a civil nature between citizens of different states, and exceeds, exclusive of interest and costs, the sum of three thousand dollars, and arises under the 14th Amendment to the Constitution of the United States.

4. The plaintiff, as required by Alabama Law, Title 48, Sections 35 and 106, Code of Alabama 1940, petitioned the defendant Commission for authority to discontinue the daily operation of passenger trains numbers 27 and 28 between Georgiana, Alabama, and the Alabama-Florida State Line, due to the continued heavy financial loss occasioned by the daily operation of these two trains, losses which indicate that such daily service is not substantially used or needed by the public.

5. Plaintiff's petition to discontinue the operation of trains 27 and 28 was filed with the Alabama Public Service Commission on November 6, 1947. This petition, as in the previous cases before this court, was, after an unwarranted, unreasonable and unexplained delay, heard by the Commission at a final hearing begun on January 11, 1950, and disposed of by the Commission denying the petition in an order dated July 28, 1950.

6. Plaintiff seeks a temporary and permanent injunction against the defendants, separately and severally, from proceeding to enforce sanctions provided under the laws of the State of Alabama for the failure or refusal of plaintiff to continue the operation of local passenger trains Nos. 27 and 28, within the State of Alabama, in violation of order No. 11641, entered by the Commission July 28, 1950, and that said order be declared unlawful, null, void and of no effect.

7. In lieu of the present service by train, plaintiff proposes, if proper authority can be secured from the defendant commission, to substitute bus service between Georgiana, Alabama, and Graceville, Florida, over paved highway which runs practically parallel to the railroad tracks of the plaintiff between Georgiana, Alabama, and the Alabama-Florida State Line. Plaintiff proposes such service either by arrangement with existing certified motor carriers of passengers, namely Capital Motor Lines and Alaga Coach Lines or, if necessary and proper authority can be secured under the Alabama Motor Carrier Act of 1939, Code 1940, Tit. 48, § 301(1) et seq., to operate such bus service itself.

8. Plaintiff is not a common carrier of the United States Mail. The collection and delivery of all mail is the function of the United States Government, exclusively.

9. Plaintiff's trains Nos. 27 and 28 operate daily, except Sunday, between Georgiana, Alabama, and Graceville, Florida, carrying passengers, mail, and express; train No. 27 leaves Georgiana at 7:15 A.M., scheduled to arrive at Graceville at 10:40 A.M., and train No. 28 leaves Graceville at 11:05 A.M., and is scheduled to arrive at Georgiana at 2:35 P.M....