Village of Hubbard Ohio, v. United States

Citation278 F. 754
Decision Date13 March 1922
Docket Number680.
PartiesVILLAGE OF HUBBARD, OHIO, v. UNITED STATES et al.
CourtU.S. District Court — Northern District of Ohio

John J Boyle and Moore, Barnum & Hammond, all of Youngstown, Ohio for village of Hubbard.

Blackburn Esterline, Sp. Asst. Atty. Gen., for the United States.

Walter McFarland, of Washington, D.C., for Interstate Commerce Commission.

Douglass D. Storey (of Hause, Evans & Baker), of Harrisburg, Pa., and Union C. De Ford (of Harrington, De Ford, Huxley & Smith), of Youngstown, Ohio, for Pennsylvania-Ohio Power & Light Co.

Before DONAHUE, Circuit Judge, and KILLITS and WESTENHAVER, District judges.

WESTENHAVER District Judge.

This suit is brought under the terms of the Act of October 22 1913 (U.S. Comp. Stat. Sec. 998). Plaintiff seeks a preliminary injunction restraining the Pennsylvania-Ohio Power & Light Company from putting into effect an order of the Interstate Commerce Commission made November 7, 1921. This order requires that company to cease and desist from practicing a certain undue prejudice, preference, advantage, and unjust discrimination found by the Commission to exist in the relation of intrastate and interstate passenger fares, and to establish, put in force, and maintain a certain schedule of passenger fares for the transportation of passengers in intrastate commerce between Hubbard, in the state of Ohio, and Youngstown, in the state of Ohio.

This cause has been heard, argued, and submitted upon plaintiff's application for a preliminary injunction, upon the motion of the defendants the United States and the Pennsylvania-Ohio Power & Light Company to dismiss plaintiff's bill, and upon the merits as affecting plaintiff's right to relief, as they arise upon an answer filed by the Interstate Commerce Commission. The motion to dismiss is on two grounds: (1) That plaintiff is without interest in the controversy and has no standing in this court to maintain its bill; (2) that the bill is without equity on its face and does not state a cause of action. The answer of the Interstate Commerce Commission sets up its findings of fact and its order, and contends that, inasmuch as these findings are supported by substantial evidence, they are conclusive upon the court, and hence that the plaintiff is not entitled to any relief. On this hearing the full transcript of the proceedings and testimony taken by the Interstate Commerce Commission, in addition to its report and order, were introduced in evidence, and are considered in disposing of the several matters presented for consideration.

Plaintiff assails the validity of the Interstate Commerce Commission's order on several grounds, which, stated in our own language, reduce themselves to two: (1) That Congress has not conferred jurisdiction on the Commission over an electric interurban railway company of the kind which the record shows the Pennsylvania-Ohio Power & Light Company to be, particularly over its purely intrastate transportation of passengers, conducted under state and municipal franchises which are in legal effect binding contracts; (2) that the franchise granted by the village of Hubbard to the predecessor in title of the Pennsylvania-Ohio Power & Light Company, and duly accepted by it and binding as a contract on the present defendant, requires the transportation of passengers between Hubbard, Ohio, and Youngstown, Ohio, at a fixed rate of fares, which franchise contract cannot be impaired by an order of the Interstate Commerce Commission, and is, indeed, beyond the constitutional power of Congress itself to annul and impair. Such, in brief, are the respective contentions.

The situation is fully and correctly set forth in the Interstate Commerce Commission's report, and, inasmuch as this has been published (64 I.C.C. 498), it will not be repeated here, except so far as is necessary to show clearly the questions to be decided and the basis of our decision. In 1901 a franchise ordinance was passed by the village of Hubbard and accepted by the Youngstown & Sharon Railway Company, a corporation chartered as a street railway under the statutes of Ohio, to operate between Youngstown, Ohio, and Sharon, Pa. In 1917 this company was merged with four other Ohio corporations and one Pennsylvania corporation, under the name of the Mahoning & Shenango Railway & Light Company. This name was subsequently, in 1920, changed to the Pennsylvania-Ohio Electric Company. On November 21, 1920, a new corporation, the present defendant, the Pennsylvania-Ohio Power & Light Company, was organized to take over and operate the Youngstown-Sharon line. The line thus acquired by defendant, and now operated by it, extends from Youngstown, Ohio, only to the Ohio-Pennsylvania state line, and the defendant operates its cars from the state line into Sharon, Pa., a fractional part of a mile, over the tracks of the Shenango Valley Traction Company.

The maximum distance from Youngstown to Hubbard is 8.75 miles, and from Hubbard to Sharon is 7.18 miles. The franchise provides for the maintenance between Hubbard and Youngstown of a cash fare of 12 cents, and between Hubbard and Sharon of a cash fare of 13 cents. Between Hubbard and both cities the franchise requires the sale of round-trip tickets at the rate of 20 cents for a single ticket, special tickets good for 22 rides for $2, and 54-trip commutation tickets for $3.80. Effective February 15, 1920, this Mahoning & Shenango Railway & Light Company, then the owner and operator of defendant's line, by a tariff filed with the Interstate Commerce Commission, increased its one-way fare between Hubbard and Sharon to 20 cents. the price of a 54-trip commutation ticket to $5, and canceled the round trip and special tickets between these points. Subsequently the Pennsylvania-Ohio Electric Company, successor to the Mahoning & Shenango Railway & Light Company, also filed with the Interstate Commerce Commission a tariff, in which it proposed to establish the same rates of fare between Hubbard and Youngstown as those in effect between Hubbard and Sharon, as above stated, and also to increase and establish certain through fares between Sharon and Youngstown, being substantially the sum of the local fares.

A tariff carrying these same fares was presented to, and rejected by, the Public Utilities Commission of Ohio, in so far as it attempted to increase the fares between Hubbard and Youngstown, on the ground that this commission was without jurisdiction to allow and establish rates and charges in excess of those prescribed by franchise contracts. This seems to be the present state of the Ohio law. See Mahoning & Shenango Ry. & Light Co. v. Public Utilities Commission, 98 Ohio St. 303, 120 N.E. 835; Interurban Ry. Co. v. Public Utilities Commission, 98 Ohio St. 267, 120 N.E. 831, 3 A.L.R. 696; Toledo, Bowling Green & Southern Traction Co. v. Public Utilities Commission, 98 Ohio St. 305, 120 N.E. 835. In consequence of these complications the Pennsylvania-Ohio Power & Light Company filed its petition with the Interstate Commerce Commission, complaining of the undue preference and discrimination existing between interstate and intrastate passenger fares, which, after notice and on hearing, resulted in the order above stated, which plaintiff is seeking to enjoin.

The Interstate Commerce Commission's findings of fact, it is settled law, are conclusive upon this court, if supported by substantial evidence. Interstate Commerce Commission v. Louisville & Nashville R.R. Co., 227 U.S. 88, 33 Sup.Ct. 185, 57 L.Ed. 431; Manufacturers' Ry. Co. v. United States, 246 U.S. 457, 481, 38 Sup.Ct. 383, 62 L.Ed. 831; Seaboard Air Line Ry. Co. v. United States, 254 U.S. 57, 62, 41 Sup.Ct. 24, 65 L.Ed. 129. The Commission's findings of fact in this situation are: That the interstate passenger cash and 54-ride commutation fares between Sharon and Hubbard, and also the interstate passenger fares between Sharon and Youngstown, are just and reasonable fares for interstate transportation between those points; that the maintenance of corresponding intrastate fares between Hubbard and Youngstown lower than the just and reasonable interstate fares between Sharon and Hubbard has resulted, and will result, in undue prejudice to persons traveling in interstate commerce over the petitioner's line in the state of Pennsylvania and between points in the state of Ohio and Sharon, Pa., in undue preference and advantage to persons traveling intrastate between points in Ohio, and in unjust discrimination against interstate commerce; also that, whether the passenger fares pertain to transportation in interstate commerce or to transportation in intrastate commerce, the transportation services are performed under substantially similar circumstances and conditions; and that said undue prejudice and preference and unjust discrimination con, and should, be removed by establishing intrastate passenger cash and 54-ride commutation fares between Hubbard and Youngstown not less than the interstate passenger fares found to be reasonable as between Hubbard and Sharon. It is ordered that passenger fares between Hubbard, Ohio, and Youngstown, Ohio, shall be charged which shall not be less than 20 cents when paid in cash and $5 for 54 rides when a commutation ticket is purchased.

Plaintiff's contention, that defendant's railroad is not that kind of a railroad engaged in interstate commerce or transportation which is made subject to the jurisdiction of the Interstate Commerce Commission, requires an inquiry as to whether the facts found in this respect by the Commission support its assumption of jurisdiction. Plaintiff contends that it is not engaged in the general business of transporting freight in addition to its passenger and express business, and that it is...

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