State of Georgia v. United States, 44.

• Decision Date: 08 August 1939
• Docket Number: No. 44.,44.
• Citation: 28 F. Supp. 749
• Court: U.S. District Court — Eastern District of Virginia
• Parties: STATE OF GEORGIA et al. v. UNITED STATES et al.

28 F. Supp. 749

STATE OF GEORGIA et al. v. UNITED STATES et al.

No. 44.

District Court, E. D. Virginia.

August 8, 1939.

Marshall L. Allison and B. D. Murphy, Asst. Attys. Gen., for State of Georgia.

Elmer B. Collins, Sp. Asst. to Atty. Gen. (Thurman Arnold, Asst. Atty. Gen., and Sterling Hutcheson, U. S. Atty., of Richmond, Va., of counsel), for the United States.

Thomas M. Ross, of Washington, D. C. (Daniel W. Knowlton, of Washington, D. C., of counsel), for Interstate Commerce Commission.

Sidney S. Alderman, of Washington, D. C., and Rembert Marshall, of Atlanta, Ga. (Thomas B. Gay, of Richmond, Va., of counsel), for Southern Railway Company.

Before PARKER, Circuit Judge, and POLLARD and DOBIE, District Judges.

PARKER, Circuit Judge.

This is a suit to enjoin the enforcement of an order of the Interstate Commerce Commission permitting the abandonment by the Southern Railway Company of 40.1 miles of its Atlanta-Fort Valley line in the State of Georgia. The suit is brought by the State of Georgia, its Public Service Commission and one of its Counties, as plaintiffs, against the United States, the Interstate Commerce Commission and the Southern Railway Company, as defendants. Interlocutory injunction is asked and a special court of three judges has been convened pursuant to statute. 28 U. S.C.A. § 47. At the hearing upon the application for interlocutory injunction, it has been agreed that the case be submitted for final decree on the pleadings, the reports of the Commission and the affidavit filed by defendant Southern Railway Company's vice president.

The Southern Railway Company is a Virginia corporation engaged in the operation in interstate commerce of a large interstate system of steam railroads running into and through the States of Virginia, North Carolina, South Carolina, Georgia, Alabama, Mississippi, Tennessee, Kentucky, Indiana and Illinois. One of the lines that it operates in connection with this interstate system is the Atlanta-Fort Valley line, which it acquired under a foreclosure decree in the year 1895. This line was constructed by the Atlanta & Florida Railway Company in 1887-1888 between Atlanta and Fort Valley, Ga., a distance of a little over 100 miles, under a franchise granted by the legislature of Georgia. The entire line lies within the State of Georgia; and since its construction it has been operated throughout its entire length.

In 1935 the Southern Railway Company petitioned the Interstate Commerce Commission to be allowed to abandon that portion of the line extending from a point about 1.5 miles south of Roseland to Williamson, where the line connects with and crosses the company's McDonough-Columbus line. The portion of the line proposed to be abandoned is paralleled by the company's line from Atlanta to Columbus by way of McDonough; and abandonment was asked on the ground that the maintenance and operation of the two lines between Williamson and Atlanta constituted an unnecessary burden upon interstate commerce. Abandonment was opposed by the Georgia Public Service Commission, and report was entered on May 29, 1936, finding that a further test of operation for one year should be made. This was done and, supplemental petition again asking the right to abandon having been filed in 1937, the Commission on April 23, 1938, made a report finding that "the present and future public convenience and necessity permit the abandonment" of the portion of the line proposed to be abandoned and entered an order accordingly.

The report and the supplemental report of the Commission find fully the primary facts upon which the finding of public convenience and necessity is based; and plaintiffs do not contend that the evidence before the Commission does not sustain these primary findings. Their contention is that the company, as the result of the method under which it acquired the Atlanta-Fort Valley line, assumed the burden of the franchise granted the Atlanta & Florida Railway Company to operate the entire line between Atlanta and Fort Valley, and that, in the absence of a showing that the operation of that line is burdensome on interstate commerce, the Commission is without power to permit the abandonment of any portion thereof. The company declined to submit data relating to traffic originating on the portion of the line which it was not proposed to abandon; and the Commission held that "the traffic handled on the Atlanta-Fort Valley line, or which might have been handled thereon, beyond the portion proposed to be abandoned, and the revenue therefrom which might have been credited to the line sought to be abandoned if such traffic had been transported thereover, are not relevant." There is but one question in the case, therefore, i. e. whether the Commission may permit the abandonment by an interstate carrier of a portion of a line of railroad chartered by a state without a showing that the operation of the entire line, and not merely the portion sought to be abandoned, constitutes a burden upon interstate commerce. We think that the question must be answered in the affirmative.

The transportation act of 1920 introduced into federal legislation a new railroad policy, seeking to insure an adequate transportation service. A primary aim of that policy is to secure the avoidance of waste. Texas v. United States, 292 U.S. 522, 532, 54 S.Ct. 819, 78 L.Ed. 1402. As a means of avoiding the waste incident to the maintenance of transportation facilities, a certificate of public convenience and necessity from the Commission is required before a carrier by railroad engaged in interstate commerce may extend any of its lines; and carriers are permitted to abandon "all or any portion of a line" upon obtaining such...