City of Chicago v. United States, 68 C 956.

• Decision Date: 08 January 1969
• Docket Number: No. 68 C 956.,68 C 956.
• Citation: 294 F. Supp. 1103
• Parties: CITY OF CHICAGO, the Metropolitan Government of Nashville and Davidson County, Tennessee, Village of Milford, City of Watseka, City of Hoopeston, City of Danville, City of Terre Haute, City of Vincennes and Maurice F. Radrizzi, Plaintiffs, v. UNITED STATES of America, Interstate Commerce Commission and Chicago and Eastern Illinois Railroad Company, Defendants.
• Court: U.S. District Court — Northern District of Illinois

294 F. Supp. 1103

CITY OF CHICAGO, the Metropolitan Government of Nashville and Davidson County, Tennessee, Village of Milford, City of Watseka, City of Hoopeston, City of Danville, City of Terre Haute, City of Vincennes and Maurice F. Radrizzi, Plaintiffs, v. UNITED STATES of America, Interstate Commerce Commission and Chicago and Eastern Illinois Railroad Company, Defendants.

No. 68 C 956.

United States District Court N. D. Illinois, E. D.

January 8, 1969.

Raymond F. Simon, Corp. Counsel, Bernard Rane and Matthias Mattern, Asst. Corporation Counsels, City of Chicago, Chicago, Ill., Gordon P. MacDougall, Washington, D. C., Neill S. Brown and Robert E. Kendrick, Nashville, Tenn., Anthony Haswell, Chicago, Ill., Robert P. Doolittle, Jr., Vincennes, Ind., Harold N. Hill, Jr., Atlanta, Ga., Eugene W. Ward, Nashville, Tenn., William F. Black, Montgomery, Ala., Robert S. Matthews, Evansville, Ind., Wendell W. Wright and Marion E. Wright, Danville, Ill., William E. Nelson, Hoopeston, Ill., Keith E. Roberts, Chicago, Ill., George B. Tofaute, Terre Haute, Ind., David O. Benson, Atlanta, Ga., for certain plaintiffs.

Edwin M. Zimmerman, Asst. Atty. Gen., and John H. D. Wigger, Atty., Dept. of Justice, Washington, D. C., Thomas A. Foran, U. S. Atty., and M. P. Siavelis, Asst. U. S. Atty., Chicago, Ill., for the United States.

Robert W. Ginnane, Gen. Counsel, and Barry Roberts, Atty., Washington, D. C., for the I.C.C.

Albert E. Jenner, Thomas P. Sullivan, Keith F. Bode and David C. Roston of Raymond, Mayer, Jenner & Block, Chicago, Ill., Patrick C. Mullen and James H. Durkin, Chicago Heights, Ill., for Chicago and Eastern Illinois Railroad Co.

Before KNOCH, Senior Circuit Judge, and ROBSON and PERRY, District Judges.

MEMORANDUM AND ORDER

ROBSON, District Judge:

This is a suit to review certain findings and conclusions of the Interstate Commerce Commission. The defendant railroad has moved to dismiss. This court is of the opinion that the motion should be granted.

On August 31, 1967, the Chicago & Eastern Illinois Railroad Company ("Eastern") gave notice under 49 U.S.C. § 13a(1) that, effective October 1, 1967, its trains numbered 93 and 54 between Chicago, Illinois, and Evansville, Indiana, would be discontinued. On September 18, 1967, the Interstate Commerce Commission ("Commission") entered an order requiring Eastern to continue operating trains 93 and 54 pending an investigation by the Commission. After hearings and briefs, Division 3 of the Commission on January 25, 1968 (served January 31, 1968), decided to terminate its investigation, and filed a report outlining its reasons. A petition for reconsideration was denied on May 8, 1968. This suit was filed shortly thereafter. A three-judge court was convened and a joint hearing (with Tennessee Public Service Comm. v. United States, D.C., 294 F.Supp. 1106) was held on November 4, 1968.

The statute under which Eastern posted its notices to discontinue is a unique statute passed in 1958 to deal with serious financial problems faced by this nation's railroads. It allows the railroads to discontinue certain interstate trains without seeking prior approval of the Interstate Commerce Commission or any state commissions. If the Commission does nothing to stop the railroad, the discontinuance follows automatically by statute, with no need whatsoever for a Commission order to authorize the discontinuance. 49 U.S.C. § 13a(1). The Commission has a short period (30 days) in which to decide whether an investigation is necessary, and, after an investigation (if, of course, the Commission determines it is necessary), the Commission may order the continuance of part or all of the trains involved. This period of continuance is restricted to only one year, after which time the railroad may post further notices and go through the entire process again.

It has been conceded by both sides that when the Commission decides not to enter into an investigation, there is no judicial review, even though there may be cities and states which might be "aggrieved" by the discontinuances. State of New Jersey v. United States, 168 F. Supp. 324 (D.N.J.1958), affirmed per curiam 359 U.S. 27, 79 S.Ct. 603, 3 L.Ed. 2d 625 (1959); Sludden v. United States, 211 F.Supp. 150 (M.D.Pa.1962). In the New Jersey case, supra, at 329, the court said that the Commission's order foreclosing an investigation was

"nothing other than an announcement that the Commission intended to take no action with respect to the railroad's notice of intention to discontinue the ferries. Section 13a(1) clearly leaves to the absolute discretion of the Commission the determination of whether or not it * * * shall make any investigation of the matter or avail itself of its temporary veto power by way of suspension within the limitations of the Act."

The instant case, contend the plaintiffs, has a crucially different element: The Commission here entered into an investigation, held hearings, made findings, and issued an order terminating the investigation. Even though the plaintiffs concede, as they must, that the statute § 13a(1) was the source for the authority to discontinue, and not any order or action of the Commission, they argue that judicial review exists as to the order terminating the investigation under 28 U.S.C. § 1336, which provides for review of Commission "orders." The question whether such a Commission order does fall under § 1336 has been discussed at length in several prior decisions.

In State of Minnesota v. United States, 238 F.Supp. 107, 112 (D.Minn.1965), the court determined that the report and findings filed after the investigation was terminated were both "gratuitous" acts. The reasoning behind the Commission's decision to terminate, the court continued, even though it showed that the Commission "decided" that the discontinuances were proper, is part of the power to terminate and within the "sole discretion" of the Commission, and not subject to judicial review. The court reasoned that the primary purpose of an investigation and the hearings was to give the Commission enough information so that it would be able to reach a sound judgment as to whether it should interfere with the proposed cutbacks in rail service. Two situations were posed: (1) Where the Commission knows enough about the situation, as in the New Jersey case, supra, at 328, it will hold...