Cincinnati, New Orleans & Texas Pac. Ry. Co. v. United States

• Decision Date: 21 August 1963
• Docket Number: Civ. A. No. 5393.
• Parties: The CINCINNATI, NEW ORLEANS & TEXAS PACIFIC RAILWAY COMPANY et al., Plaintiffs, v. UNITED STATES of America and Interstate Commerce Commission et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

220 F. Supp. 46

The CINCINNATI, NEW ORLEANS & TEXAS PACIFIC RAILWAY COMPANY et al., Plaintiffs, v. UNITED STATES of America and Interstate Commerce Commission et al., Defendants.

Civ. A. No. 5393.

United States District Court S. D. Ohio, W. D.

August 21, 1963.

James G. Headley, Cincinnati, Ohio, John F. Donelan, William D. McLean, and James L. Tapley, Washington, D. C., James W. Hoeland and Elbert R. Leigh, Louisville, Ky., Thomas S. Calder, James W. Farrell, Jr., James O. Coates, and Dinsmore, Shohl, Barrett, Coates and Dupree, Cincinnati, Ohio, James W. Hoeland and Elbert R. Leigh, Louisville, Ky., for plaintiffs.

Joseph P. Kinneary, U. S. Atty., Cincinnati, Ohio, Robert W. Ginnane, General Counsel, Interstate Commerce Commission, and I. K. Hay, Interstate Commerce Commission, Washington, D. C., Robert H. Marquis, Tennessee Valley Authority, Knoxville, Tenn., Philip J. Schneider, Waite, Schindel, Bayless and Schneider, Cincinnati, Ohio, John C. Lovett, Benton, Ky., Donald Macleay, Macleay, Lynch, Channing & Bernhard, Washington, D. C., Joe Starnes, Jr., City Atty., Guntersville, Ala., W. G. Burnette, Lynchburg, Va., Nuel D. Belnap, Chicago, Ill., Leonard D. Slutz, Robert F. Reckman, Cincinnati, Ohio, James D. Knudson, Washington, D. C., for defendants.

PECK, District Judge.

In this action seeking relief from an order of the Interstate Commerce Commission, a three-judge Court has been designated by the Chief Judge of this Circuit, and the panel so created will make ultimate disposition of the action on its merits. Pending such disposition, plaintiffs have filed a motion seeking to temporarily restrain the operation of the order of the Commission complained of, and two similar motions have been filed by intervening plaintiffs. These motions have been presented and submitted to the writer as the District Judge to whom the application has been made under the provisions of Title 28 U.S.C. § 2284(3) and it is to these motions that our attention is presently directed.

Two threshold contentions of the defendants and intervening defendants (hereinafter collectively referred to as the defendants) as to the applicable law have caused concern. The first is their claim that a temporary restraining order may not issue unless it is made to appear "with reasonable probability" that plaintiffs will prevail when the case is submitted to the three-judge Court on its merits. This proposition has support in Acme Fast Freight v. United States, 135 F.Supp. 823 (D.Del.1955); North Carolina Natural Gas Corp. v. United States, 200 F.Supp. 740 (D.Del.1961); Briggs Manufacturing Company v. Crane Company, 185 F.Supp. 177 (E.D.Mich.1960), affirmed with approval, 280 F.2d 747 (6th Cir. 1960); and Sam Goldfarb Plymouth, Inc. v. Chrysler Corp., 214 F.Supp. 600 (E.D.Mich.1962). If under these cases relief cannot be granted unless plaintiffs have demonstrated the reasonable probability of their success on the merits, it would be necessary to summarily deny the motions because of the virtual impossibility of determining such "reasonable probabilities" prior to the effective date of the order sought to be stayed. The record before the Interstate Commerce Commission, we are told, consists of 15,815 pages of testimony and 766 exhibits. Approximately 150 witnesses were called in 139 days of proceedings, and the Commission in its brief says that the record is "perhaps the most voluminous" ever made before it. In sharp contrast, we will have had a total of not more than four days to consider the entire matter, and while extensive affidavits and memoranda have been submitted and have been studied, we have had the benefit of hearing only three hours of oral argument. Manifestly, it is impossible for this Court to find that plaintiffs have a reasonable probability of success upon the review of a record not presently available, and which could not in any event be comprehensively studied within the three days remaining prior to the effective date of the order under scrutiny. While we are thus precluded from dealing intelligently in probabilities, the record before us makes a determination of possibilities feasible, and in the circumstances here existing we deem it within the contemplation of the law and of the authorities cited to consider the granting of relief if it be shown that plaintiffs have a reasonable possibility of success on the merits. Such a reasonable possibility is here found to...