Sludden v. United States

• Decision Date: 29 November 1962
• Docket Number: Civ. A. No. 7680.
• Citation: 211 F. Supp. 150
• Parties: C. J. SLUDDEN and Co-operative Legislative Committee, Railroad Brotherhoods in the State of Pennsylvania, Plaintiffs, v. UNITED STATES of America, Interstate Commerce Commission and The Pennsylvania Railroad Company, Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

211 F. Supp. 150

C. J. SLUDDEN and Co-operative Legislative Committee, Railroad Brotherhoods in the State of Pennsylvania, Plaintiffs, v. UNITED STATES of America, Interstate Commerce Commission and The Pennsylvania Railroad Company, Defendants.

Civ. A. No. 7680.

United States District Court M. D. Pennsylvania

November 29, 1962.

Brandon & Shearer, Pittsburgh, Pa., Charles E. Friedman, Harrisburg, Pa., for plaintiffs.

Lee Loevinger, Asst. Atty. Gen., John H. S. Wigger, Atty., Dept. of Justice, Washington, D. C., Bernard J. Brown, U. S. Atty., Scranton, Pa., for defendant United States.

Robert W. Ginnane, Gen. Counsel, H. Neil Garson, Associate Gen. Counsel, I. C. C., Washington, D. C., for defendant, Interstate Commerce Commission.

Nauman, Smith, Shissler & Hall, Harrisburg, Pa., for defendant Pennsylvania R. Co.

Before KALODNER, Circuit Judge, and SHERIDAN and FOLLMER, District Judges.

FOLLMER, District Judge.

This suit is brought to set aside alleged actions of the Interstate Commerce Commission taken on February 8, 1962, and March 23, 1962, respectively.

This Court has jurisdiction by virtue of the provisions under 28 U.S.C. §§ 2282 and 2284.

The case had its inception on November 29, 1960, when the defendant, The Pennsylvania Railroad Company (hereinafter called Pennsylvania) filed before the Pennsylvania Public Utility Commission (hereinafter called P.U.C.) its application to abandon the intrastate portion of its runs of trains Nos. 638 and 645 operating daily between Harrisburg, Pennsylvania, and Hagerstown, Maryland. The application called for abandonment of all passenger train service on its Cumberland Valley Branch between the City of Harrisburg and the Pennsylvania-Maryland line. After hearings and the filing of briefs, on August 7, 1961, the P.U.C. denied the application. No appeal was taken from that Order.

On January 25, 1962, Pennsylvania filed a Notice under Section 13a(1) of the Interstate Commerce Act as amended in 1958, 49 U.S.C. § 13a(1), and the regulations of the Commission, 49 C.F.R. § 43.1, et seq., proposing to discontinue the operation of the above-designated trains effective February 25, 1962. The Notice provides in part "Persons desiring to object to the proposed discontinuance should promptly notify the Interstate Commerce Commission at Washington, D. C., of such objection and the reasons therefor before February 11, 1962."

Several protests were filed with the Interstate Commerce Commission (hereinafter called I. C. C.) including one filed by the Railway Labor Executives' Association on January 31, 1962. On February 8, 1962, I. C. C., Division 3, concluded not to enter upon an investigation of the proposed train discontinuance, and a notice to that effect was served on February 12, 1962. The notice of the I. C. C. states that the action was taken "Upon consideration of a notice and supporting data filed January 24, (sic) 1962, * * * and of protests received in opposition thereto, * * *"

In accordance with I. C. C.'s notice of February 8, 1962, Pennsylvania discontinued the two trains on February 25, 1962.

Upon receiving a number of protests the I. C. C. on March 23, 1962 dismissed requests for reconsideration of its decision not to enter upon an investigation of the proposed train discontinuance, stating:

"* * * That section 13a(1) of the Interstate Commerce Act authorizes this Commission to institute an investigation of a proposed discontinuance thereunder only within the 30 days' notice period prior to the proposed effective date;

"* * * that the requests for reconsideration of the aforementioned decision were received after expiration of the 30 days' notice period, that the subject trains have been discontinued, and that this Commission is, therefore, without authority to grant the requested relief:"¹

On April 30, 1962, the Complaint in the instant action was filed seeking to set aside the action of the I. C. C. in concluding not to enter upon an investigation of the proposed discontinuance of trains as heretofore described in the proceedings initiated by Pennsylvania before the I. C. C. under the provisions of Section 13a(1) of the Interstate Commerce Act as amended. The Complaint alleged that the original action of February 8, 1962, under which Pennsylvania ceased operating the trains was void as having been entered without due process of law, without adequate notice, without permitting the interested parties an opportunity to be heard, and in violation of the due process clause of both the Fifth and Fourteenth Amendments of the Constitution of the United States; that the action of February 8, 1962, without any finding that the trains in question were a burden on interstate commerce, was an invasion of the power of the State of Pennsylvania to regulate its own intrastate train movements and hence is unconstitutional and void; and further, that a failure of I. C. C. to grant a hearing in proceedings of this character is in violation of the Full Faith and Credit Clause of the Constitution of the United States.

The Complaint and the Motions to Dismiss pose the following questions:

(1) Is the discretionary action of the I. C. C. concluding not to institute an investigation subject to judicial review?

(2) Has the Court jurisdiction to require the Commission to institute an investigation into the proposed discontinuance of train service?

(3) Is Section 13a(1) of the Interstate Commerce Act as amended in 1958 unconstitutional as the P. U. C. has held it to be?

Prior to August 12, 1958, the Commission had no jurisdiction over the changes or curtailment of train service as distinguished from total abandonment of a line of railroad. Board of Public Utility Commissioners of New Jersey et al. v. United States et al., D.C.N.J., 158 F.Supp. 98, 104 (1957).

Section 13a(1) of the Interstate Commerce Act as amended merely permits railroads at their option to have the Interstate Commerce Commission rather than State commissions, pass upon discontinuance or change in the operation of any train or ferry not located wholly within the same State. The purpose of, and the reason for, this legislation is clearly set forth in the Committee Report which is included in the legislative history of the Act (see U.S.Congressional and Legislative News, 1958, Vol. 2, pp. 3457 and 3468):

"2. Sections 3 and 4 (amending sec. 1 and adding a new sec. 13a to the act) permit railroads, at their option, to have the Interstate Commerce Commission, rather than State commissions, pass upon discontinuance or change in the operation of any train or ferry, where such are operated on a line of railroad not located wholly within a single State." Vol. 2, p. 3457.

"Because of this delay By State Commissions in authorizing, or absolute refusal to authorize, discontinuance of little-used services, it is proposed to add a new section 13a to the act, whereby the railroads, at their option, may have the Interstate Commerce Commission, rather than State commissions, pass upon the discontinuance or change in the operation or service of any train or ferry. This option is limited, however, to the operation or service of a train or ferry on a line of railroad not located wholly within a single State. * * *" Vol. 2, p. 3468.

Section 13a(1) of the Act as amended makes the following provision for the discontinuance or change of trains or ferries operated across a State line:

(1) the carrier may file with the Commission (and mail to the Governors of States and post in the facilities to be affected) a notice of such proposed discontinuance or change at least 30 days in advance of its effective date;

(2) unless the Commission acts, the carrier may discontinue or change the service in accordance with the notice, "the laws or constitution of any State, or the decision or order of, or the pendency of any proceeding before, any court or State authority to the contrary notwithstanding";

(3) during this 30-day notice period, "the Commission shall have authority * * *, either upon complaint or upon its own initiative without complaint, to enter upon an investigation of the proposed discontinuance or change";

(4) if the Commission institutes such an investigation, it may also, by order served upon the carrier at least 10 days prior to the effective date of the proposed discontinuance or change, require continuance of the service pending hearing and decision "but not for a longer period than four months"; at the end of four months, the carrier may put into effect the change or discontinuance even if the Commission's investigation is not concluded;

(5) after a hearing, if "the Commission finds that the operation or service of such train or ferry is required by public convenience and necessity and will not unduly burden interstate or foreign commerce, the Commission may by order require the continuance or restoration of operation or service of such train or ferry, in whole or in part, for a period not to exceed one year from the date of such order."

It will be noted that under the said section the Commission is limited to thirty days within which it is empowered to institute an investigation and thereby acquire jurisdiction over a carrier's proposal to discontinue a train or ferry service operated across a State line.

In view of the fact that the opinion of the Court in State of New Jersey et al. v. United States et al., D.C.N.J., 168 F. Supp. 324 (1958), aff. per curiam 359 U.S. 27, 79 S.Ct. 607, 3 L.Ed.2d 625 (1959), covered practically all of the allegations in the instant Complaint, and that that opinion of the three-judge court received the unanimous approval of the Supreme Court, it would seem to be mere supererogation to further elaborate on them here. Suffice it to say that in the New Jersey case the Court held, inter alia:

(1) The action of the Commission concluding not to institute an investigation into a proposed discontinuance of train service is committed to the exclusive discretion of the Commission and...