State of North Carolina v. United States, Civ. No. 302.
| Decision Date | 29 September 1954 |
| Docket Number | Civ. No. 302. |
| Citation | 124 F. Supp. 529 |
| Court | U.S. District Court — Middle District of North Carolina |
| Parties | STATE of NORTH CAROLINA, North Carolina Utilities Commission, County Commissioners of Richmond County, Town of Ellerbe, Harris M. McRae, North Carolina Farm Bureau Federation, Incorporated, Robert E. Swann, North Carolina Pulp Company, Commonwealth Hosiery Mills, and R. L. Bennett, Plaintiffs, v. UNITED STATES of America, Interstate Commerce Commission and Norfolk Southern Railway Company, Defendants. |
Harry McMullan, Atty. Gen., North Carolina, John Hill Paylor, Asst. Atty. Gen., North Carolina, Pittman & Webb, Rockingham, N. C., Broughton & Broughton, Raleigh, N. C., Jones & Jones, Rockingham, N. C., for plaintiffs.
Arthur J. Winder, Cadwallader J. Collins, Norfolk, Va., Simms & Simms, Raleigh, N. C., for defendant Norfolk Southern Railway Co.
Edward M. Reidy, Gen. Counsel, I. K. Hay, Asst. Gen. Counsel, Washington, D. C., James E. Kilday, Willard R. Memlar, Special Assts. to the Atty. Gen., Stanley N. Barnes, Asst. Atty. Gen., and Edwin M. Stanley, U. S. Atty., Greensboro, N. C., for defendants United States and Interstate Commerce Commission.
Before PARKER, Circuit Judge, and HAYES and WARLICK, District Judges.
This is an action to enjoin and set aside that portion of an order of the Interstate Commerce Commission which authorizes the Norfolk Southern Railway Company to abandon a portion of one of its branch lines. A court of three judges has been constituted under 28 U.S.C. § 2284, as required by 28 U.S.C. § 2325, and the case has been submitted for final decree upon the record made before the Commission and the briefs and oral arguments of counsel. It is admitted that the primary findings of fact made by the Commission are supported by the evidence, but the contention of plaintiffs is that those findings do not support the ultimate finding of the Commission and that its order is arbitrary and unreasonable.
The proceeding before the Commission was begun on March 7, 1951, when the railway company filed an application in which it asked leave to abandon its branch line, 17.508 miles in length, between Candor, North Carolina and Ellerbe, North Carolina. An examiner of the Commission heard evidence and a report was submitted recommending that the petition be denied except as to the southern portion of the line, 6.22 miles in length, between Plainview and Ellerbe, and that as to this portion of the line the requested leave to abandon be granted. In April 1953 the proceeding was heard before Division 4 of the Commission and order was entered in accordance with the recommendations of the examiner. Upon petition for reconsideration of that part of the order relating to the southern portion of the line, the proceeding was heard before the full Commission, which on November 17, 1952 entered an order revoking the order of Division 4 and denying in toto the application for leave to abandon. The railway company filed an application for reconsideration of this order and the proceeding was reopened for further hearing and referred to the examiner who had prepared the proposed report on the original hearing. He heard evidence and filed a report to the effect that no additional evidence had been introduced at the further hearing to warrant a change in the order of the Commission. The Commission, however, upon the coming in of this report went fully into all the facts of the case and on May 17, 1954 filed its report and order which, in effect, sustained the position originally taken by the examiner and Division 4, granting leave to the railway company to abandon the southern portion of the line but denying leave to abandon the northern portion.
The facts are fully set forth in the reports of the Commission and the trial examiner and need not be repeated in detail here. The Commission found upon ample supporting evidence that the southern portion of the line was being operated at a loss and that the cost of its upkeep and the burden which this would impose upon interstate commerce was not justified by the greater convenience which would be afforded some shippers by its...
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...And in a more recent case involving the abandonment of an unprofitable branch of a railroad, State of North Carolina v. United States, D.C.M.D.N.C.1954, 124 F.Supp. 529, 532, Chief Judge Parker of the Fourth Circuit, sitting as a member of a three-judge court, reiterated the applicability o......
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