"This is an action under sections 1336, 1398, 2284 and 2321-2325 of the United States Code, Title 28, to set aside a report and orders of the Interstate Commerce Commission entered in the proceeding entitled Southern Pacific Company Abandonment, Cochise County, Ariz., and Hidalgo, Grant, Luna and Dona Ana Counties, N. Mex., Finance Docket No. 20737, decided by the Commission's Division 3 on November 15, 1961. In that proceeding the Commission authorized the defendant Southern Pacific Company1 to abandon a line of railroad between Douglas, Arizona, and Anapra, New Mexico, which roughly parallels a line to be wholly retained between Tucson, Arizona, and El Paso, Texas, via Lordsburg and Deming, New Mexico. The retained line comprises the so-called `North Line' between Tucson and El Paso, and the line to be abandoned comprises a part of the so-called `South Line' between those points.
"PROCEEDINGS BEFORE THE COMMISSION
"On July 28, 1959, the Southern Pacific filed with the Commission an application to abandon a portion of the South Line, and on September 22, 1959, filed its Return to Questionnaire, pursuant to the regulations of the Commission, 49 C.F.R. Part 42. The application was protested by several groups. The proceeding was set for hearing before a duly qualified hearing examiner of the Commission; the hearing was held on March 22, 23, 24 and 25, 1960, in Douglas, Arizona, and on September 21, 1960, in Washington, D.C.
"On March 22, 1961, the examiner served his recommended report and order, which would have permitted the proposed abandonment, subject to certain conditions. These conditions included financial protection to employees affected by the abandonment, and that the carrier take necessary steps to implement its assurances that freight rates to and from the Douglas-Bisbee area will not be affected by the abandonment of the Douglas-Anapra segment and that the area not be treated as a branch line at which arbitraries are assessed over the rates to main-line points. Various protestants filed exceptions and the applicant Southern Pacific filed both exceptions and a reply to the exceptions of the protestants. Oral argument was heard by Division 3 on July 28, 1961. On November 15, 1961, the Commission by its Division 3 entered a report and order authorizing the proposed abandonment, subject to the conditions recommended by the examiner.
"On July 3, 1961, prior to the oral argument before Division 3, several protestants, including many of the plaintiffs herein, filed a petition requesting (1) the entire Commission hear oral argument, and (2) that the entire Commission determine and announce that the proceeding involves issues of general transportation importance. The entire Commission entered an order of July 25, 1961, denying the request for oral argument before the entire eleven-member Commission, and deferring decision on the remainder of the petition until oral argument be heard as scheduled before the three Commissioners of Division 3. The order of July 25 is attached to the complaint herein as Exhibit C. On October 11, 1961, the entire Commission entered a further order denying the request of the protestants that the proceeding involves issues of general transportation importance. The order of October 11 is attached to the complaint as Exhibit B. Protestants thereafter filed a petition for reconsideration of the orders of July 25 and October 11, which was denied by order of the entire Commission on March 27, 1962.
"The present suit was filed by plaintiffs in this court on December 18, 1961. Simultaneously, plaintiffs attempted to file a petition for reconsideration with the Commission of the decision of Division 3. The petition was received at the Commission on December 18. The copies of the petition were returned to counsel for plaintiffs by the Secretary of the Commission who stated that the decision of Division 3 had become administratively final pursuant to Rule 1.101 of the Commission's General Rules of Practice. The Secretary further explained his action in a letter to Mr. Daniel Moore, counsel for plaintiffs, of January 10, 1962, stating in pertinent part:
"`As you know, the Commission declined to declare this proceeding as one of general transportation importance, and the initial decision herein was made by a hearing examiner rather than by the Division. As you will also note, by comparing the report and recommended certificate of the hearing examiner with the report and certificate of the Division, there were no reversals, changes, or modifications of any of the hearing examiner's conclusions, or of his ultimate decision, by the Division. Such changes or modifications as were made by the Division were only minor in nature and were actually made only to the hearing examiner's statements of fact. They were of such nature as to have no material affect upon his decision, which was concurred in without modification by the Division.
"`Inasmuch as the General Rules of Practice provide for the administrative finality of the Division's decisions, there is no necessity for the Division to announce such fact in each individual decision.
"`In view of the facts that the proceeding has not been declared to be of general transportation importance, there was no reversal, change, or modification of the hearing examiner's decision, and the initial decision was not made by the Division, the Division's decision is administratively final, as provided for by the Commission's General Rules of Practice and I am without authority to accept the petition for reconsideration. Accordingly, I had no alternative to returning the petition to Mr. Blaine as an enclosure to my letter to him of December 20, 1961.'
"PROCEEDINGS IN COURT
"As noted above, the present action was filed in this court on December 18, 1961. On the following day, hearing was held before United States District Judge Arthur M. Davis, on plaintiffs' application for a temporary restraining order. Southern Pacific waived objection to entry of an order requiring it to maintain the physical facilities on the line in question pending a hearing before the full court of three judges. On December 19, the court entered an order restraining Southern Pacific from removing its tracks or disturbing the present physical facilities over the line proposed to be abandoned. The court issued the following restraining order:
"`The Court finds that the diversion of all trains over the north line of Southern Pacific will not result in irreparable damage pending a hearing before the Court of three judges.
"`The Court further finds that any action by the Southern Pacific Company to remove its tracks or otherwise change its physical facilities on the lines in controversy would result in irreparable injury should the three-judge court later uphold the contentions of the plaintiffs.
"`The Court finds that the proceedings before the Interstate Commerce Commission under 49 U.S.C.A. § 1(18) is adequate to support an order resulting in the discontinuance of passenger service without raising a question of irreparable damage.' The order was expressly entered `without prejudice to the rights of any of the parties to these proceedings.'
"STATUTE INVOLVED
"The statutory authority of the Commission to authorize an abandonment of a line of railroad is found in sections 1(18), 1(19), 1(20), and 1(22) of the Interstate Commerce Act, 49 U.S.C. §§ 1(18), 1(19), 1(20), and 1(22).
"The present case involves section 1 (18), which provides, in relevant part:
"`no carrier by railroad subject to this part shall abandon all or any portion of a line of railroad, or the operation thereof, unless and until there shall first have
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