State of Minnesota v. United States

• Decision Date: 15 February 1965
• Docket Number: No. 3-64-Civ. 147.,3-64-Civ. 147.
• Citation: 238 F. Supp. 107
• Parties: STATE OF MINNESOTA and Railroad and Warehouse Commission of the State of Minnesota, Plaintiffs, v. UNITED STATES of America, Defendant, and Chicago and North Western Railway Company, a Wisconsin corporation, and Interstate Commerce Commission, Intervening Defendants.
• Court: U.S. District Court — District of Minnesota

238 F. Supp. 107

STATE OF MINNESOTA and Railroad and Warehouse Commission of the State of Minnesota, Plaintiffs, v. UNITED STATES of America, Defendant, and Chicago and North Western Railway Company, a Wisconsin corporation, and Interstate Commerce Commission, Intervening Defendants.

No. 3-64-Civ. 147.

United States District Court D. Minnesota, Third Division.

February 15, 1965.

COPYRIGHT MATERIAL OMITTED

Walter F. Mondale, Atty. Gen. of Minnesota, and Richard Musenbrock, Sp. Asst. Atty. Gen., St. Paul, Minn., for plaintiffs.

William H. Orrick, Jr., Asst. Atty. Gen., and John H. D. Wigger, Atty., Dept. of Justice, Washington, D. C., and Miles W. Lord, U. S. Atty., Minneapolis, Minn., for defendant.

Robert W. Ginnane, Gen. Counsel, Interstate Commerce Commission, and H. Neil Garson, Assoc. Gen. Counsel, Interstate Commerce Commission, Washington, D. C., for intervening defendant Interstate Commerce Commission.

Roger S. Bessey and Wickham, Borgelt, Skogstad & Powell, Milwaukee, Wis., Jordan Jay Hillman, Chicago, Ill., and Stringer, Donnelly & Sharood, St. Paul, Minn., for intervening defendant Chicago and North Western Ry. Co.

Before VOGEL, Circuit Judge, and DEVITT and LARSON, District Judges.

LARSON, District Judge.

This action has been brought by the State of Minnesota and its Railroad and Warehouse Commission to appeal a decision of the Interstate Commerce Commission (the Commission). The Chicago and North Western Railway Company (North Western) was granted leave to intervene as a defendant.

In October, 1961, the North Western, acting pursuant to section 13a(1) of the Interstate Commerce Act,¹ announced that it proposed to discontinue several passenger trains. The trains involved were Nos. 400 and 401, which ran between Chicago, Illinois, and Minneapolis, Minnesota, via Milwaukee, Wisconsin, and Nos. 518 and 519 operating between Chicago and Mankato, Minnesota, via Madison, Wisconsin. The trains met at Wyeville, Wisconsin, and their schedules were arranged so as to provide virtually through service between all the stations which the trains served.

The Commission decided to investigate the proposed discontinuances. In March, 1962, it found that the public convenience and necessity required that the operation of the trains should be continued, and it entered an Order requiring this to be done for the statutory period of one year.

Early in 1963 the North Western announced that it intended to discontinue the trains as soon as the statutory period had elapsed. The Commission instituted a second investigation. This time it decided that the value of the service was outweighed by the burden on the carrier of maintaining it. An Order was entered in July, 1963, discontinuing the investigation. Under the provisions of 13a(1) the North Western was then free to discontinue the trains and did so shortly thereafter. The Commission subsequently refused to reopen the hearings to take further evidence.

This action is now brought to set aside the Order discontinuing the investigation and to compel the Commission to hear additional evidence. Jurisdiction is alleged under 28 U.S.C. § 1336 (1958), which provides for appeals from "any order" of the Commission.

The trains discontinued were the last passenger trains operating between many of the points involved, though freight service is still maintained on the lines. The plaintiffs suggest that the fact that the railroad was terminating its passenger service on the routes means that the lines were being "abandoned" within the meaning of 49 U.S.C. § 1(18).² Thus they argue that the railroad could not abandon the service under the terms of section 13a(1) and that the Commission did not have proper jurisdiction of the matter in the first place.

There are three replies to this contention.

1. Section 1(18) provides that the Commission must approve the "construction of a new line of railroad" or the plans to "abandon * * * a line of railroad." The use of these terms in the statute implies that the ideas of construction and abandonment are used as coextensive opposites. In other words, to "abandon" a line means to completely cease using it for any service. This interpretation is also consistent with the ordinary meaning of "abandon." Nor is there anything in the legislative history of the provision that would suggest a different conclusion.³

2. All prior decisions have been to the contrary.⁴ The discussions in several recent cases indicate that the Supreme Court has adopted the view that a line is not abandoned as long as the carrier uses it for freight service. Southern Ry. v. North Carolina, 376 U.S. 93, 100-101, 84 S.Ct. 564, 11 L.Ed.2d 541 (1964) and New Jersey v. New York, Susquehanna & Western Railroad Co., 372 U.S. 1, 5-6, 83 S.Ct. 614, 9 L.Ed.2d 541 (1963).

3. Even if the discontinuances put into effect were thought of as abandonments, they plainly came within the terms of section 13a(1). Since that section was enacted almost forty years after section 1(18) and is directed to the specific type of problem presented here, it would only be reasonable to hold that it provided an alternative ground for jurisdiction even if proceedings could have been instituted under section 1(18).

The plaintiffs also urge that the evidence introduced at the hearing was not sufficient to support a finding that the public convenience and necessity did not require the service to be continued — especially in view of the contrary conclusion reached one year earlier. We have concluded that we have no jurisdiction to review this issue because the Order terminating the investigation was not an appealable Order within the meaning of 28 U.S.C. § 1336.

Section 13a(1) grants full authority to discontinue interstate passenger service to the carrier subject only to a discretionary power given the Commission to investigate the proposed service reductions and to order the service continued for one year if the Commission decides it is needed. No specific Commission approval of the service cutbacks is ever required. Whether or not the Commission will even investigate the proposed discontinuances is a matter left to its absolute discretion. State of New Jersey v. United States, 168 F.Supp. 324, 328-330 (D.N.J.1958) aff'd per curiam 359 U.S. 27, 79 S.Ct. 607, 3 L.Ed.2d 625 (1959). This opinion noted that:

"Section 13a(1) clearly leaves to the absolute discretion of the Commission the determination of whether or not it, upon receipt of a complaint directed against a railroad's notice of intention to discontinue service, 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 Act is self-implementing insofar as it affords authorization to a carrier to discontinue service. No provision is made for any action of the Commission to render such authorization effective. The efficacy of the congressional authorization is in no respect dependent upon any action on the part of the Commission."⁵

The only difference in this case is that the Commission undertook an investigation of the proposed discontinuances. The provisions of section 13a(1) give the Commission only two choices after it has conducted an investigation. It may do nothing, in which case the carrier puts the service reductions into effect at the end of the four month period, or it may make appropriate findings and order the service continued. In the present case, the Commission did find that the maintenance of the train was a burden on interstate commerce and was not required by the public convenience and necessity, but both the report and the finding were gratuitous acts on the part of the Commission which were not required by any provision of section 13a (1). Every decision not to investigate a proposed discontinuance or to terminate an investigation being conducted probably shows that the Commission believes that the service may properly be discontinued. This was certainly true in State of New Jersey v. United States, supra. However, the reasoning behind a particular decision on a matter which is within the sole discretion of the Commission is not something which this Court can review.

The primary purpose of a hearing under section 13a(1) is to give the Commission enough information to enable it to reach a sound judgment as to whether it should interfere with the proposed cutbacks. When the Commission is already thoroughly familiar with the problems and knows that it does not want to interfere, as was the case in State of New Jersey v. United States, supra, the Commission does not need to hold hearings. In most other cases it could be expected to conduct an investigation even though that is not required. If the Commission decides not to interfere with the cutbacks in service, then it simply takes no action beyond terminating the investigation. If it decides that the service should be continued, then the hearings must provide a record which adequately supports the required conclusions as to the need for the service and the burden on the carrier of providing it. Those findings would be reviewable by the Courts. The mere decision of the Commission to take no action is not. As was pointed out in United States v. Los Angeles & S. L. R. R., 273 U.S. 299, 309-310, 47 S.Ct. 413, 414, 71 L.Ed. 651 (1927):

"The final report * * * is called an order. But there are many orders of the Commission which are not judicially reviewable * * *.

"The so-called order here complained of is one which does not command the carrier to do, or to refrain from doing, anything; which does not grant or withhold any authority, privilege, or license; which does not extend or abridge any power or facility; which does not subject the carrier to any liability, civil or criminal; which does not change the carrier's existing or future status or condition; which does not determine any right or obligation. This so-called order is merely the formal record of conclusions reached after a

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