New York Cent. R. Co. v. Illinois Commerce Commission

• Decision Date: 15 April 1948
• Docket Number: No. 48C161.,48C161.
• Citation: 77 F. Supp. 520
• Parties: NEW YORK CENT. R. CO. v. ILLINOIS COMMERCE COMMISSION et al.
• Court: U.S. District Court — Northern District of Illinois

77 F. Supp. 520

NEW YORK CENT. R. CO. v. ILLINOIS COMMERCE COMMISSION et al.

No. 48C161.

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

April 15, 1948.

Leo P. Day, of Chicago, Ill., for plaintiff.

George F. Barrett, Atty. Gen. of Ill., Winston, Strawn & Shaw and Joseph H. Wright, all of Chicago, Ill., for defendants.

Before KERNER, Circuit Judge, and IGOE and CAMPBELL, District Judges.

PER CURIAM.

Plaintiff by a suit in equity is seeking a temporary restraining order and an interlocutory injunction to enjoin defendants from enforcement of an order of the defendant Illinois Commerce Commission entered on October 2, 1947, and slightly modified on rehearing on December 11, 1947 (hereinafter referred to as the order). Gulf, Mobile and Ohio R. R., sucessor in interest of the Alton R. R., and Illinois Central R. R. have intervened and have joined in a brief in opposition to plaintiff's application for an interlocutory injunction. The remaining defendants are the Illinois Commerce Commission, its individual members, and the Attorney General of the State of Illinois.

In substance, the complaint alleges that by the terms of the order the plaintiff must establish a confiscatory rate for the switching service it renders to the industries located at Bloomington, Illinois; that by the terms of the order which is applicable to intrastate traffic the proportion of the carload revenue received by plaintiff is reduced from $30.50 to $6.81 on an average revenue carload; that the alleged confiscatory rate would subject plaintiff to a minimum annual loss of $12,000; that by the terms of the order it takes property for public use without just compensation; that it violates both the Constitutions of the United States and Illinois; that it is arbitrary and contrary to law; that plaintiff has appealed from the Commission's order which was to take effect February 15, 1948; that the appeal is now pending in the Circuit Court of McLean County; that prior to February 15, 1948, plaintiff moved in the Circuit Court of McLean County to stay and suspend the Commission's order; that said motion was denied; that a petition to the defendant Commissioner to suspend the order pending final determination of the appeal was likewise denied; that plaintiff has exhausted all its State remedies; that if plaintiff fails to comply with the terms of the order the defendants will institute suits and prosecutions against plaintiff which will entail cumulative penalties under the statute for violation of the Commission's orders; that, finally, plaintiff seeks the aforesaid injunction to protect it while it tests the validity of the order in the State courts.

Plaintiff's prayer that a three judge court (of whom one is to be a circuit judge) be convened to hear its motion is well grounded, as it is predicated on the authority of § 266 of the Judicial Code, 28 U.S.C.A. § 380. It is clear from the language of the statute that no interlocutory injunction restraining the execution of an order made by an administrative board pursuant to the statutes of the State, shall be granted upon the ground of the unconstitutionality of the applicable statute unless the application shall be heard and determined by three judges, of whom at least one shall be a justice of the Supreme Court or a circuit judge. Pursuant to the Code a temporary order has been entered by a district judge restraining the enforcement of the Commission's order pending the determination of plaintiff's application for an interlocutory injunction.

The defendants while acceding to the convocation of the court under the authority of § 266 in the instant proceedings assert that the plaintiff's suit does not satisfy the jurisdictional requirements laid down by § 24 of the Code, 28 U.S.C.A. § 41, and that it is upon the provisions of this statute, with one exception to be considered later, that the issues are drawn. The provisions of the statute are as follows:

"* * * no district court shall have jurisdiction of any suit to enjoin, suspend, or restrain the enforcement, operation, or execution of any order of an administrative board or commission of a State, or any rate-making body of any political subdivision thereof, or to enjoin, suspend, or restrain any action in compliance with any such order, where jurisdiction is based solely upon the ground of diversity of citizenship, or the repugnance of such order to the Constitution of the United States, where such order (1) affects rates chargeable by a public utility, (2) does not interfere with interstate commerce, and (3) has been made after reasonable notice and hearing, and where a plain, speedy, and efficient remedy may be had at law or in equity in the courts of such State. * * *"

First. It is clear that the order of the Commission, concerning which the plaintiff is complaining, affects rates chargeable by a public utility, because, among other things, the plaintiff, a public utility, is ordered to enlarge its switching district in the City of Bloomington and to switch cars within...