City of Alexandria, La. v. Chicago, Rock Island & Pacific R. Co.

• Decision Date: 30 November 1962
• Docket Number: No. 19675.,19675.
• Citation: 311 F.2d 7
• Parties: CITY OF ALEXANDRIA, LOUISIANA, Appellant, v. CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

311 F.2d 7 (1962)

CITY OF ALEXANDRIA, LOUISIANA, Appellant, v. CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, Appellees.

No. 19675.

United States Court of Appeals Fifth Circuit.

November 30, 1962.

Frank H. Peterman, George B. Hall, Alexandria, La., for appellant.

Nauman S. Scott, Provosty, McSween, Sadler & Scott, Alexandria, La., Wright, Lindsey, Jennings, Lester & Shults, Little Rock, Ark., for plaintiff-appellees.

Before HUTCHESON, WISDOM and GEWIN, Circuit Judges.

WISDOM, Circuit Judge.

The unusual posture of the parties to this appeal relates to the enforcement of a city's paving lien when the property subject to the lien includes a portion of a railroad roadbed. The validity of the lien is not at issue. The question for decision is whether the city's enforcement of its lien by execution proceedings through seizure and sale of the property is tantamount to the railroad's "abandonment" of the line within the meaning of the Interstate Commerce Act, 49 U.S.C.A. § 1(18), prohibiting abandonments of line without the authority of the Interstate Commerce Commission.

The facts are not disputed. The Chicago, Rock Island & Pacific Railroad Company is an interstate common carrier. Its main line in Louisiana extends through the City of Alexandria. In 1958 the City levied a $38,530.85 paving assessment against Rock Island, one of 133 property owners abutting a newly paved avenue. For various reasons, Rock Island refused to pay the assessment.¹ The City sued the railroad company and obtained a judgment for the amount of the assessment; the Louisiana Supreme Court upheld the validity of the assessment and the lien. City of Alexandria v. Chicago, Rock Island & Pacific R. R., 1961, 240 La. 1025, 126 So.2d 351. After the judgment became final the City, following the usual Louisiana procedure, obtained a writ of fiere facias to the Sheriff of Rapides Parish; the Sheriff seized the two tracts of railroad property subject to the paving lien and gave notice that the property would be sold at public auction.² Rock Island admits that the lien covered the entire tracts, including the roadbed. June 23, 1961, Rock Island obtained a temporary restraining order from the United States District Court. Subsequently, after a hearing largely devoted to showing the interstate character of Rock Island's operations, the District Court held that "the sale of property upon which these tracks run would in effect constitute an abandonment". The court permanently enjoined the City of Alexandria from selling a twenty-foot strip of land, described as the right-of-way on which the railroad tracks are located, without first obtaining permission from the Interstate Commerce Commission for an "abandonment" of that part of the Rock Island's line. The court left the City free to sell the railroad company's other land, extending about sixty-five feet to the west and forty feet to the east of the twenty-foot strip. The City appeals from this order.

Subsection 18 of Section 1 of the Interstate Commerce Act (49 U.S.C.A. § 1 (18)) provides that

"* * * 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 that the present or future public convenience and necessity permit of such abandonment."

Subsection 20 (49 U.S.C.A. § 1(20)) provides that "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 * * *." These provisions of the Act vest the Interstate Commerce Commission with jurisdiction over abandonments and impose on carriers the duty of obtaining a certificate of convenience and necessity whenever there is an abandonment. Smith v. Hoboken Railroad, Warehouse & Steamship Connecting Co., 1946, 328 U.S. 123, 66 S.Ct. 947, 90 L.Ed. 1123; Thompson v. Texas Mexican R. R., 1946, 328 U.S. 134, 66 S.Ct. 937, 90 L.Ed. 1132. This jurisdiction attaches whenever there is present "any question, necessary to a judicial disposition, relating to change in railroad line or operation, on which there is room for colorable doubt or controversy as to whether public convenience and necessity is involved or is affected, and in which it therefore may be possible for an abandonment to be present in a transportational sense, even though not by general legal criterion." City of Des Moines v. Chicago & North Western R. R., 8 Cir., 1959, 264 F.2d 454, 458. Since, argues Rock Island, the sale of its roadbed would constitute the abandonment of a portion of its line, this cannot be accomplished without a certificate from the Interstate Commerce Commission, for there is at least a "colorable doubt" as to its effect on public convenience and necessity.

The Interstate Commerce Commission requires an intention to abandon. Thus, the Commission has defined "abandonment" as used in Section 1(18) as requiring "cessation of service * * * or long disuse of the line, coupled with the intention not to resume such service or use." Akron & Barberton Belt R. R. Abandonment of Operation, 239 I.C.C. 250, 254. In Williams v. Atlantic Coast Line R. Co., 4 Cir., 1927, 17 F.2d 17, 22, the Court said: "Abandonment involves more than mere non-user. There must be an intention on the part of the company to abandon." See also Wheeling & Lake Erie Ry. Co. v. Pittsburgh & West Virginia Ry. Co., 6 Cir., 33 F.2d 390, 392; City of Flint v. Grand Trunk Western R. R. Co., 6 Cir., 69 F.2d 604, 606; Myers v. Arkansas & Ozarks Ry. Corp., 1960, D.C., 185 F.Supp. 36, 41.

Not every change in ownership or mode of operation constitutes an abandonment. No Commission approval is necessary where the cessation of operations results not from the volition of the railroad but as a result of conditions over which the railroad has no control. Zirn v. Hanover Bank, 2 Cir., 1954, 215 F.2d 63. See Myers v. Arkansas and Ozarks Ry. Corp., 1960, D.C., 185 F.Supp. 36.

The short answer to Rock Island's contention is that the record shows no evidence whatever of any intention to abandon or that there will be any abandonment. There has been no interruption or discontinuance of services in the operation of the railroad in Alexandria, and the City has no intention to interfere with the operation of the company's line. The attorneys for Rock Island assert that Rock Island intends not to abandon operations or to abandon any portion of its line in Alexandria. This is an extraordinary situation, one that causes the Court to wonder what all the shouting is about. If Rock Island intends not to abandon any portion of its line or any operation in Alexandria, there is an obvious solution: Rock Island should pay the judgment against it. If Rock Island intends to refrain from doing what comes naturally, that is, paying the assessment in order to avoid any interruption of operations, then it might be said that the sale constituted an abandonment — but that would be Rock Island's deliberate decision. In such case, Rock Island is under a duty to apply to the Interstate Commerce Commission for a certificate permitting abandonment of part of its line. The duty is on the carrier to initiate such action; there is no reason to impose responsibility for initiating action on a lien-holder or judgment creditor who should be able to assume that a railroad company will honor its legal obligations and not force a sale at public auction. And, even...