Appendix — United States v. City of Chicago

' Court of the United States and the mandate issued there’ “of,

é and being fully advised i in the premises,

BF ENDL Mea RNC

7 .

' APPENDIX A

UNITED STATES DISTRICE COURT

7 for the ges

Northern Distriet of Mlinois

Mastern. Division ee .

=. iz ; a ee 4 ;

Crry or Ciicaco, et al., | es eee.

: Es Plaintiffs, ) rae :

* VS - )* No, 68 © 956

Usirep STATES OF Awmuntca, et al, es go ieee

. ar - : Defenthants. )

TENNESSEE Purse Se RVICE.C cates )

et al., ; 3 . : 2 GaP )

ey Mlaintiffs, ja, ir M

Vs. ) No, 68 © 1666 °~ |

Unxirep Staves, oF America, et al., et Sires .

Defe mdants, a

FH OER gee AE

° ; r é |

This cause is before this three-judge ‘court’ on the motion | . 4

of plaintiffs and’ ‘intervening plaintiffs, on mandaté of the .

‘Supreme Court of the U nited States, issued January Ds

1970 in_Nos, 101 & 102, Oct. Term 1969, City of Chicago v.

United. States, (1) to reinstate the. te ‘mporary, resiraining ~——— : :

order in-case No. 68 C 1666 and (2) tov¥emand cause No.

68 ( 1666 to the Interstate C omnmerce Cénmmission, upon.

grant of plaintiffs’ motion for summary judgme nt in No.

68 C 956. ‘

°

The court: has Shanidored: the opinion. of the Supreme }

It is ordered that both causes numbered 68 C 956 and

68°C 1666 be remanded to the Interstate Commerce Com- °°

mission for further hearings. ;

“It is further ordered that the motion made. herein to *

reinstate the’ restraining order in said cause No. 68 C 1666

be held undér advisement until the Interstate Commerce

Commission concludes its hearings and makes its report

and enters a final order therein. =

/s/ Win G.Knoch

Z United States ‘Circuit Judge

/s/ J. Sam Perry’ x

: re United States District Judge .

~ — -/s/ Edwin A; Robson '

pace" _ United States District Judge -

*: Dated:* Chicago,-Illinois ° | \

7 . Fébruary 5, 1970 \

4

“Crry or Cuicaso, et al.,

),

Usirep Sian or Amenica, et al., )

| )

3a

° o ; ‘ .

APPENDIX B ;

. UNITED STATES DISTRICT COURT

. for the. ‘

Northern District of Ilinoi«

Eastern Division

‘

)

p Paintifs, )

vs. ) No. 68 C 956

Usitrep States ov Amenica, et al, - )

Defendants. )

“‘Pexxe NESSEE Punic Service Commission, )

et al., , » ~)

. Plaintiffs, )

vs. No. 68 .C 1666

Defendants.

ORDER

Following the filing of a eopy of the mandate of the

Supreme Court of the United States herein with the Clerk

of the District Court, this three-judge court on February

d, 1970 entered an order wherein it, (1) remanded both

causes nutnbered 68 C 956 and 68 C 1666 to the Interstate

Commerce Commission (**LC.C.’’) for further proceedings

and (2) held under-advisement the motion made by plain-

tiffs and intervening plaintiffs to- reinetate the temporary

restraining order in case 68 (4666 until the conclusion

of the proceedings before the LC.C.

Thereafter the various parties filed various motions and

the three-judge court now has before i# (1) motion of

' defendant Chieago & Eastern Illinois Railroad Company

(**C&EI"') for rehearing or amendment of said order of

et ee eee

.

’

al :

’

/ February 5, 1970;.(2) motion of defendant Louisville and

eo A. da .

Nashville Railroad Company (**LAN**) for rehearing and

amendment of said order; (3) motion of defendants United

States of America and LOC, for a new trial in both cases

with memorindum in support thereof; (4) motion of plain-

tiffs and intervening -plaintiff« for reconsideration and

amendment of said February 5 order with memorandum

in support’ thereof; (5) response af plaintiffs and inter- -

vening plaintiff to the aforemid motions of defendants;

(6) response of defendant C&L to plaintiffs’ and inter-

vening plaintiffs" motion, and (7) response of defendant

: LEN to plainti fs’ and intervening plaintiffs’ motion.

Thi Vourt hax considered all the foregoing motions, the

responses “and memoranda of the parties herefo and the

opinion of the Supreme Court hereiti and ix of the opinion

that it shopld reconsider its order of February 5, 1970,

and should. modify and amend said order as hereinafter

set forth in view of the additional facts and law presented

to the Court, 9

It_ is, therefore, ORDERED, that the order of this

Court entered herein ‘on February », 197 0 be and the

sume is hereby vacated. - + - «.* @ ;

The Court pA has before it a motion by plaintiff* to

consolidate “cause No, 68 C 1666 with cause No. 68 C 956 |

cn the ground that the two actions involve a common

question of law and fact. Said motion was filed Septem. - -

ler 6, 1968, briefed and argued before the three-judge

court on November 4, 1968. The Court reserved its ruling

on same. The Supreme Court of the United States con-

solidated these eases for hearing and it is the opinion

of this Court that the ansumast ‘motion to consolidate

should now be granted.

i 4 a Plas

;

If ix, there fore, ORDERED that cause No. 68 € 956 and

cause No, 68 Mitts Ine cetel Chey % hereby consolidated.

The Court ix of the opinion tint it is equitable and in

‘the best interest of the general publiesto maintain the

statins que which exixted on September 6, 1968 until further

determination of these cause %, as was originally done’ hy .

entry of a restraining. vider in case No, 68 © 1666 by”

Judge Udwin A. Robson on that date, immediately after

the filing of this suit, and whieh restraining order against

discontinuance of the ** Witnaningbird’ trains by the LAN

wax continued in full force and effect on September 12,

1S by Salyer Joxeph Sam Ve ry. The temporary re-

straiming order was heretofore dissolved by the Court in

itx order of January %, 1969 Kranting tie motion of LAN

‘to Listnsins,

Plaintiffs and iitervening plaintiffs allege in their

memorandum, filed February 16, 1970, that. the LAN prom-*

ine”l ** restoration of -the train service to the Cireuit: Jus.

tice’? anel that allegation hax not been ‘denied,

The Court finds that the LAN, in its Memorandum in

opposition to application to stay, represented to the Cir-

cuit Justiee on January 10, 1969 the following:

“*.., petitioners will have full right to-pursue their

statutory appeal to this Court, and if this Court

‘should determine, upon full consideration, that the

question of the operation of the trains should be ex-

amined by the Court below, the respondent railroad.

company will be fully answerable. In other words,

the. respondent railroad company’ will promptly re-

sume the operation of the.traiys if required-to do so

hy lawful order.”” (LAN Memorandum in ‘Opposition

to the Application to Stay, p.°8) -

‘September 12, 1968 hearing an affidavit stating:

The L&N also submitted, to this three-judge court at the

‘

‘Trains Nos. 6 and 7 can be put back in operation

within a matter of less than twenty-four hours upon’

the dissolution of the court’s order, since none of the

equipment that is used in operating these trains, will

now be disposed of, and it will be kept in operating

condition.’’ (Affidavit of Jack Small, 9/10/68, pp. 1-2)

Defendants United States of America and LC.C. have

not interposed any objection to the motion of plaintiffs

and intervening plaintiffs for reinstatement of: the afore-

said restraining order against the L&N. ~ .

The Court finds that in’a recent (Recember 3, 1969)

decision of the LC.C., 336 LC.C. at 85, the Comnrission

states:

‘In Missouri Pac. BR. Co.Control-Chicago & E.LR.

Co., 327 LCO.C. 279 (1965), sustained sub nom, Illinois.

* Central Railroad Company v. United States, 263 F.-

Supp. 421, affirmed pér curiam 385 U.S. 457- (1967),

C&EI's Chicago-Evansville line was awarded to L&N

rather than Illinois’ Central, one of the important con-

siderations in the Commission’s determination being

the anticipated maintenance and improvement of .

- through passenger service between re and the

South via the C&EI and LN route... .”’ (Emphasis

supplied )

The Illinois Central Railroad eatiotes to run trains to

and from the South and so shonld the L&N continue to -

operate the **Hummingbird’’ trains pending final deter-

mination herein.

The Court finds that the 1.C.€. is Xithout jurisdiction

‘ to order interim relief beyond a four menth period in

a

connection with the ‘‘Hummingbird’” trains pending the

-s

da-°

* Commission’s further proceedings herein: The Court itself

does have jurisdiction to reinstate »peration of the “Hum-

mingbird’’ trains pending the ¢ ‘ommission’s further pro-

ceedings herein. ° 8

It is, therefore, ORDERED that the restraining order

entered herein on September 6, 1968, and continued Sép-

tember 12, 1968, be and the same is hereby reinstated to

become effective within sa (10) days of the date of this

order.

The three-judge "vourt also is of the opinion that. the °

LC.C, should also reopen its investigations in the matter

of the “Georgian”? frains , (Chicago-Evansville ) involved

in case No, 68 © 956, with due and proper hotice to all

parties in interest, and that the matters involved in cases

68 956 and 68 C 1666 should be congolidated. by the LC.C.

in further proceedings.

The Court finds that in the proceedings before the LC.C. .

relating to the discontinuance of the C&EI’s ‘“Georgian”’

trains the public did ‘not receive adequate notice from’ the

railroads qr of the LC.C. proceedings; and, further, al-

though the residents of the States of Kentucky, Tennessee

uid Georgia were vitally interested in continued qthrough

passenger service by the railroads and the respective gov-

ernors of those States were entitled to notice of the pro-

ceedings before the Le. C., no notice was givén them

‘ beforehand.

The Court is of the view that through passenger service

from Chicago to and throughout the Southeastern part of °

the United States might or could be vital to the general

' - publi¢ interest and that such service is so interwoven and

citwined between the various railroads that only in a con-

solidated proceeding can a just. and fair decision be

’ reached,

Sa.

It is, therefore, ORDERED that the orders of thé

LC.C. in its Finance Docket Nos. 24725 and 25047, in so

far ax such orders discontinue the respective investiga-

tions, be and they hereby are vacated and that both causes

. numbered 68 C 956 and 68 C 1666 be and théy hereby are

+ remanded to the LC.C, and consolidated for further pro-

ceedings in aceordancé with. the statutes so made and

provided. / 7 :

The Court enters the above orders in conformity with

ite the opinion of the Supreme Court of the United States

and for the purpose of carrying out the Supreme Court’s —

mandate. ; OS

: _ /8/ Win G. Knoch

Cireuit Judge

/3/ J. Sam Perry

; District Judge .

CS - Ce /s/ Edwin A, Robson

Cee oe District Judge

Dated: Chieago, Illinois, °

March 19, 1970.

Ya ;

APPENDIX C_

INTERSTATE COMMERCE COMMISSION

Finance Docket No. 24725 --

‘CHICAGO & KASTERN ILL INOIS. RAILROAD CO.—

DISCONTINUANC KS OF TRAINS NOS. 93 AND 54

BETWEEN CHICAGO, ILL. AND EVANSVILLE;

IND. : |

Decided January “25, 1968,

Upon investigation, found that operation by the Chicago &

Kastern Illinois Railroad Company of passenger. trains

Nos: 93 and 54 between Chicago, Ill, and Evansville,

Ind., is not required by public convenience and necessity, ~

and .that the continued operation thereof will unduly ~

burden interstate commerce, Investigation discontinued.

“2° James H. Durkin and Edwin Richardson for rail carrier.

J. Fred Parker for Georgia Public ‘Service Commission,

protestant. r

William H,.Wilson tor Public Service Commission of

Indiana, protestant.

4 In-

Mary Louise ‘Wolford for the = of the State

diana, protestant.

Edward G. Fuinegan, Leon J. Ie dgen and James A.-

. Parker for Illinois Commerce Commission, protestant. -

Harold Cowen and Bernard Rane for city of a IL.,

——

| organizations.

10a

Robert 8. Matthews and Ronald Warrum for city: of

Evansville, Ind., protestant.

Keith E. Roberts for village of Milford, IL, and city of

W atseka, protestants. | ?

William E, Nelson for city of Gaspieién: iil. is protestant.

"Marion E. Wright for city of Danville, LL; - protestant.

‘Robert F. Doolittle, Jr. for city of Vincennes, Ind., pro-

testaint, nls

Frederick T. Bauer for city of Terre Haute, Ind., pro-

‘testant. : aon |

Raymond J. Kearns for Sisters of Piaaliaan. St. iis

of the Woods, Ind., protestant.

William P. Byroad, Gordon - E. Dam B. L. Dresbach, .

‘Thomas J. Duggan, George B.. Lee, J. Thomas McNeal,

William E. Nelson, Earl G: Quinn, Keith E. Roberts, J. H.

Smith, and George P. Sheahan. for various railway labor

Revort oF THE Com MISSION

Division 3, Commissioners TuGGLe, Busi, anp Srarrorp ,

TUGGLE, Commissioner :

Pursuant to the prov ‘isions of section 13a(1) of the Inter-

state Conimerce Act as ameniled, the Chicago & Eastern.

Illinois Railroad Company (C&EI), a common carrier by

‘and supporting state-

ments in whic} it proposed to discontinue, effective Oc-

_tober 1,- 1967, service by its interstate’ passenger trains

Nos. 93°and 54 between Chicago, III, and Evansville,

Ind., a distance of 287 miles.’ Copies of the notices‘ were

duly served and posted in the manner required, by séc-

tion 13a(1) and our rules and regulations thereunder.

. railroad subject to. the provisions of part I of the act, .

‘on August 31, 1967, filed notices

i |

ne Le ate ee

e

“la

By petition filed concurrently in Finance. Docket No.

24726, C&EI secks authority under section 13a(2) to dis-

continue service by its intrastate passenger trains Nos.

3 and 4 between Chicago and Danville, Ul. That proceed-

ing is the subject of a report and recommended order’ of

‘the hearing examiner served separately, C&EI’s- appli-’

cation filed with the Hlineis Commerce Commission for

authority to discontinue trains Nos. 3 and 4 was denied by”

that hody on September 20, 1967. Appropriate notice of

the petition filed herein Finance Docket No. 24726. was

served on the Governor of: the State of IMlinois.

Protests: to C&EI’s proposal in the titled proceeding

were filed by communities along the line and State, civic,

business, and railway labor. interests, as well as users of

the trains. - By order of September, 18, 1967, we instituted

an investigation and required continued operation of trains

Nos. 93 and 54 pending a hearing and decision (up to the

statutory maximum of four months). Because of the

Statutory limitation on the: time_avaitable” Tor investiga-

tion and decision, orf order provided for omission in the

titled proceeding of a teport and récommendéd order by

the examiner as part of the decigional process and for

certification of the record to us for initial decision. *. ~

Public hearings were held in ‘Chicago, Momence, Wat-

seka, Hoopeston and Danville, Ll.,-and- Evansville, Vin-

cennes, and Terre Haute, Ind., on@a consolidated récord

- ~with the section 13a(2) proceeding in linance Docket No.

: % 3 7 3

1 By petition filed December 14. 1967, C&EI sought omission of

the examiner’s report and recommended order in Finange Docket

No. 24726 and consolidation of that matter with .this proceeding. -

_- Replies thereto were filed -by certain protestants, and by order

entered January 8, 1965 the petition was denied.

® ©

¢ ct

.

.

.

. 5 on as een a ® Sedat casos Sue aesrapes pine > aM 5 Bie a Ne er ne ne ton

. .

.

2a

* e.

a

24726.. Briefs were “filed- by C&ET, the Illinois Commeree

Commission, and jointly by ‘the village of Milford, the’

- cities of Watseka, Danville and {loopeston, IH., and the

Brotherhood of Railroad Trainmen. ‘ 4

“At the hedring protestants mov ed for disauiassl of the

. proceedings on several grounds, principally that since

~ Missouri Pacific Railroad ‘Company (MoPac) eontrols C&

El, use of financial data. relating only: to C&EI and ex-’

cluding MoPae is grossly: misleading and contrary to the

‘provisions of the act. Other relief sought included sus-

pension or términation ofthe pr oceedings and oral argu-

lent on the motion. C&EI replied in opposition, and the

motion w AOR under advisement, ~The protestants pure

. sue the argfiment on‘brief.

The motion is denied.. Oral argument is not war-

these proceedings, protestants ignore the plain language

of section 13a of the act, which confers upon this Commis-"

sion jurisdiction over propesed passerger train discon-

tinuances by ‘‘a carrier-or carriers subjeet to. this. chiap-

ter.’”’ Clearly, C&EI falls within the term ‘‘a carrier’? sub-

ject to part I of the act. Whether or not the @atutory.

standards for ordering a continuance of service are met

is a matter which, in this case,’does not dépend (as will

later be made clear) upon’ the corporate relationship” of

MoPac and C&T. Piercing the corporate veil may be

watrantéd in some situations, as for example, where false

and misleading representations are made or here some.

unlawfulness’ ntwy be involved, ani perhaps ig other cir-

--eumstances, but h¥re no such question is rai d and no-

‘substantial reason is advanced to pursue that. course.’ The

record indicates that C&EI is the proper party in interest

and that it has fully cooperated i in presenting the data re-

-

quired for our action. : eee

‘

he

ranted. By contending “MoPac-is a necessary party to.

, \. & ’ *

/ a bend toenenamenescen coon

: ‘ p

| oY) Wa a ate

Train Nos. 93 and 54 operate onthe following: schedules: -

Train No. 93 Miles - \. Stations * < - Train No. 54

‘ daily i. . Gere : POT: — daily~ ,°

é “ oS et ee ae es 7

ae i: tei Le, a RS ta

a 8x5, 00 LW.” Chieako, I. ......20cAr. - - 10:86 3

Pie 3:59 6.6 Chicago (6: bra ‘St. ) ee - 10:21'

A4:30 28.8 ° MINE” ike aes,

eee ee nc -'s G@ 8:49 .

ie Te 3 eee 7:55.

7:15... 1977.5 _ “Terre Haute, Ind. .....0..... 640 ;

Bi45 * 208.7" - Sullivan -G 6:11 ,

+ 8:18- © 234.7 Vincennes kes cunshiais . 5:40

' D8 250 259.0 Primectoh 0.5 , 5305

"G55 987.2 Ar. ace ies tec av. 4:80

A—Stops to. receive passengers,

* B—Stops tosdischarge revenue ‘passengers from Chicago anid’ .

Steger... . ;

F “D—Stops to discharge or .reecive revenue passengers.

oe ‘E—Stops to discharge passengers.

. G—Stops to’ receive revenue passengers for Chicago. hod

a Their operation’ is in conjunction with trains of the.

‘Louisville & Nasliville. Railroad (L&N) similarly desig- me

. nated, which operité between Evansville and Atlanta, Ga., '

_ - arid Montgomery, Ala. The interchange is at Evansville. ©

. The L&N splits its southbound No. 93 at Nashville, Tenn., ©

. with one section terminating at Atlanta and the other at

. Montgomery. L&N originates one section ‘of’ its north-

bound: ‘train No. 54 at “Atlanta. and the other at Mont-

gomery, and consolidates the two at N ashville. p

The trains, designated ‘ 4The Georgia—Hummingbird, es

carry passengers and baggage. They are powered with

e2 ‘three diesel locomotives, and have a consist of 10 regularly ‘

—

ytreg: 0 9 Ct APS el “oe. % ’ we Py

; > ie . | 4 j Ida’

. f . ° ‘

’ ° “4

assigned cars daily with 11 cars on Friday, Saturday, and

. Sunday. Train No. 93 leave# Chiéago with a baggage- mail

car, a dormitory, diner; lounge, sleeper and two coaches:

destined to Atlanta daily; a*%each destined to Evansville

on Friday, Saturday and Sunday; twe coaches destined*to —

" Montgomery daily; and a ¢leeper destined ‘to Mobile daily.

Train No. 54 has a baggageé-mail car, a dormitory, diner,

_ lounge,’ sleeper and two coaches originating at ‘Atlanta

. daily; a epach originating at Evansville on Friday, Satnr-

day and Sunday; two coaches originating at Montgomery

daily; and a sleeper originating at Mobile daily; all ears -

having destination to -Chicago- The Passenger-gafrying

equipment is air-conditioned.

Due toa restructuring of mail service by the U. S. Post. —

Office Department, the mail cars were’ diseontinued as:

of June’ 10, 1967, except’ for one storage-mail car from

' Chieago to. Birmitigham, ‘Ala., and in October 1967, ‘the

Post Office Department removed that car.. The mail, han-

- dled in the. baggage-mail car is minimal. Train No. 93

stil/earties express traffie for the account of Railway Ex-

press Agency, ‘Inc., destined to Chattanooga.\Thiese trains

do not handle the express to or from C&EI poinits south. .

‘of Chicago.

Alternate passenger transportation . service to and from

"the communities served by C&EI bet een Chicago and °

' Evansville, and ‘south thereof served by L&N is available’

by bus and by air at, most pownts. There are four flights

daily southbound and three northbound between Chicago

. and ‘Danville;, tw flights daily somthbound, and’ three

northbound between Chicago and Terre Haute; and four

_ flights daily southbound and five northbound between Chi-

cago and Evansville. Numerous flights are scheduled be- | *

tween Chicago, on the one hand, and, on the — Atlanta,

‘

*s : °o

Chattanooga, Birmingham, Nashivijlle, Montgomery,” and

Mobile, and betweex Evansville and Atlanta. Watseka

and Hoopeston,. IIL, Sullivan, Vince nnes ‘and Princeton,

‘Ind., have no air “petviee.

A major. bus line operates three southbound. ‘and four

northbound buses daily between Chicago and Jivansville,

‘ with stops at all intermédiate points served by the subject

trains. Rail transportation is ‘available, though limited,

(a) by°C&EI trains Nos. 3 and 4 between Chicago and

Danville (but thosé are the trains involved in’ Finance Doe-

ket No. 24726, the discontinuance proceeding referred to

-above) and (b) by Illinois Ce ntral Railroad ( LC) between

Chicago and Carbondale, TIL, and points south thereof

(four trains daily in each direction); Highway distances ;

between communities served ‘by C&EfPand those served:

- by IC in Illinois vary from 12 to 3) miles. Bus fares are:

lower‘than rail fares between. Chicago and all points served As

by the subject trains, except Sullivan, Ind, Air fares are

higher than rail or-bus.,

C&EI maintains that it has lost patronage. to the pri-

vate passenger automobilé (as a mode of intercity ttans-

. portation), and, as evidence thereof, introduced statistics

showing the increase in the number of registered automo-

biles in the counties of Mlinois and Indiana traversed by -

the. subject trains. Considering the five Illinois counties-

(Cook, Will, Kankakee, Iroquois, and Vermillion) and the

six Indiana counties. (Park, Vigo, Sullivan, Knox, Gibson,

and Vanderburg) it was shown that in 1960 the’ Illinois

counties had 1,693,520 registrations while the Indiana coun-

ties had 132, 253, and that by 1966, there was an increase of ‘

about 20 percent—to 1,994,751 in the Illinois counties. and

158,186 the Indiana counties.

Pa

*“ «#

BBE: Woah 6 oe

oe

_ a

————— ———--»-

ay * 16a

For the benefit of automobile isers, Illinois Highway 1

between Chicago and Danville and U. 8. Highway 41 be- ¢

tween Danville and Evansville are adjacent to and paral- _

lel the line of G&El, Also U. &. Highway. 41 ‘coRfinues | ©

‘northward in Indiana east of Illinois’ Highway 1 to Chi-

cago.- Both are first ‘class highways and (J. S. Highway 41

has substantia] segments with four lanes. A amt of

witnesses testified to the effect that driving on the high-

ways is dangtrous. . Sotith of C hiecago and its suburbs the

roads traverse sparsely populated ° areas, are generally

straight and the terrain is flat.

The . population? at the points sérved by the subject

trains was shown, as follows: Chicago 3,550,404, ‘Chicago ~

Heights 41,000, Watseka 5,219, Hoopeston 6,606, Danville

41,856, Terre Haute 72,500, Sullivan 4,979, Vincennes 18,-

046, Princeton 7,906, and Ev ansville 141,543. - ° a

‘A number of those points have commercial or’ service

areas extending beyond their corporate limits and .the-»

population’ refleeted by such areas is larger than for the

point involved. -

During «the periods 1965, 1966 and first 6 months of

1967, train No. 93 carried 84,259, 82,213 and 31,913 passen-

gers, respectively, of which 53,344, 56,230, and 20,902 -were

delivered to L&N at Evansville. The daily average num- ,

bers of revenue’ passengers transported by that train for

the same periods were 230, 225, and 176, ‘respectively, of

which 84, 71, and 60, respectively, were local passengers -

- (traveling. between C&EI stations). During the same

-

2 Based on the census taken in 1960. Since that ‘dase. seme. -

of the areas served have had. population increases.

periods, traist-No. 54 carried 76,894, 75, 271, and 28, 186 rev-

enue passengers, respectively, of which 47;983, 60,068 and.

21,682, were received: from L&N at, Evansville. The’ daily

‘ dverage numbers of revenue passengers tran®ported by

that train for the same periods 4 were 210, 205, and’ 153, ol

which 51, 40, and 33, respective ly, were local,..: The forego-

ing data were determined from analysis of records ~ Bes

tickets collected by conductors, cash fares received,. and

tickets honored but not. collected, apportioned to: thé sub-

ject trains ace ording, to the muinber ‘r of niles traveled there-_

on, -

The supporting studies also. show the numbers of pas-

sengers hoarding andedeboarding at each station. Con-

_ sidering the last 6'months of 1967 as representing the pres-

ent level of patronage, of the 176 passengers on train

No. 93, an average of 156: boarded ‘at Chicago;- 12 at Steger,

9 at Danville, 2°at Te rre. Haute and 1 at Vincennes, ’and © ~

1% left. the train at Danville, 2 at Terre Haute, 1 at Sulli-

. van, 7 at Vincennes, 2.at Princeton, 13 at Evansville, and

116 ‘continued on the L&N. Of the 153 Passengers on

. trdin No. 54 an average of 120 were thr ough passengers

from the L&N, 12 boarded at Kyansyille, 2 at Princeton, 6—

at Vincennes, 1 at Sullivan, 11 at Terre Haute, 4 at Dan-

ville, and 1 at Watseka, and 3 left, the fain at Terre Haute,

3 at Danville, 8 at Steger. and 139 at Chicago. Thus, the

-record shows that the C&EL points south of Chicago have |

had few passengers boarding: or leaving the trains.

C&EI’s balance. ‘sheet statement as of July .31, 4967, -—

shows assets aggregating $1 $119,182, 908 including | current.

assets of $10,220,039, special ‘ial funds $484,841, investments

- $10,941, 671, total properties less depreciation and amorti- -

zation $96,182,478," and other assets and deferyeX charges _

~ $1,353,872. Liabilities were: current, liabilities of $9,631,-

117, long-term — of #5) 494,944. eines! $3, 103,470

18a

‘ oN Meas

ene within 1 year), reserves $659, 983, other. ‘abilities - |

and deferred. ¢redits $619, 844, capital stock $29 837,372, 2

‘, capital surplus $112,522, and retained inicome $24,827,119.

Its income statements for 1965, 1966 and first 7 months

of 1967, show railway operating revenues™ “of $40,578,936,

$41,780,952, afd $23,604,275; “net Pailway operating. in- |

come of $3,486,070, 4, O91, 786, and a deficit of $1 3005,300 ;

and net income after fixed charges: and other deductions of -

$1, 736, O86, $2,893, sie and a net t deficit of $1, 757,265, re-

. spectively.

C&EI has incurred annual net aloes operating deficits *_

in its passenger service in amounts in excess of $] million

for the yeats 1962 through 1966, inclusive. More than _

20 -percent of freight. net income has been ‘required to

‘subsidéze these rail passetiger deficits in each: of the years |

1957 through 1966, except 1959 when the percent of freight

_ het income so required’ exceeded 12 percent: C&EI esti- -

mates that: the national award of September ‘16, 1967

. to the shoperaft employs ees, retrdactive to January 1: 1967, ate

will increase “its “Tabor costs. by $210,000 _in 4967 “and by -

$321,000 in 1968. . Further, -a-recent a agreement with the —

Brotherh socomotive Engineers will result in ‘pay-

ment,of $100,000 to C&EL locomotive engineers in ‘backpay.

‘None of those additional expenses were included in deter-

; mining the cost of operating the subject trains during the,

first. 6 months of 1967, or in projections made.

‘ET shows data respecting the frrancial results of the

operation of the trains for the years, 1969, 1966, and the

first $ months of 1967... In 1965, train No. 93 had revenues

(passenger; diner, express and mail) of $1, 096,607 and out-. °

a a “ sa . o .

\ a ;

ba o «

198

caf- pocket expenses of $1,001 ,95 0 for a “a nek ‘income -of 494,-

657. For the same year, train No. 54 had similar sevenyes .

of P~ py 156, and “out-of-pocket expenses of $862,270 for a

ut- of- pocket loss of $51, 114. In 1966, the correspend- :

ing figures for train | No. 93 were $1,083,494 revenues, Ro

$1,125 ,287 costs, and ‘$41, 793 deficit ; for train No. 54- they

--were $816,863 revenues, $1,022,127 ‘osts, and $205, 264 ‘defi- |

cit; the combined net loss for both trains was $247, 037. ‘In’

the first 6 months of 1967,.the corresponding figures for,

trdin No. 93 were $420, 107 revenues, $22, 421 costs, and

"$102 ,254. deficit,‘ and’ ‘for. train No. 54, $311, 281 revenues,

__ $477,387 costs, and $166,106 deficit; the combined net oiat-

_-of-pocket' loss was $268,360. Details of the revenuc es aan”

_ expenses ; for those’.periods indicated | as compirted by the

carrier are shown in the attached appendix Ae B23

> As indicated, actual revenues from these tation includ-

ing car-hire revenue are reflected i in the data pr esented”The

following actual expenses were alsd. employed: Train en-.

gineman expense, traincrew expense, sleeping car expense,

insurance, expenses incurred in clearing wrecks, baggage *_

loss and damage claims, injuries to persons and dining

_car and buffet. car service. Other expenses. and ‘savings

_ data were computed using methods approved. by the Coni-

missfon in prior proceedings, Inc ‘reases in expenses ° for

1966.ever those of 1965 occurred in four accounts (a) pas- ”—

‘ senger ‘train cars—repairs, (b) equipment depreciation—

passenger cars, (c) Buin & supplies and expenses, and (d)

joint facility aecounts. These were the subject of detailed

inquiry. On (a) an accident to train No. 93 at Hoopeston Ses

in April 1966, were required extensive repairs to passen-

ger cars ($59,506). Expenses charged to that. account in

1965 were abnormally low. On (b) C&ET. did not, until /

"1967, retire its head-end equipmefit used’ on other trains ;

in 1965 and 1966, having made. such equipment available |

to the U. S. Post: Office Department for use in trains Nos.

93 and 54. Retirements of héad-end equipment in 1967,

6:

‘ation: bind was removed ‘from ny alkCRE passenger trains

atnounted to $365,549, but-thi: lS in¢rease in expense’ ‘was not

reflected i in the 1 financig), results discussed above. »In pro-

jecting revenues and expeiises ‘involved in operating the ae

__ subject trains without fhe mail revenue equipment, depre- :

= Ses ciation on only those ears whicli would-be required to op-

| erate, the subject-trains without’ any-heail-end business was

considered. On (ce). the totat passenger portion of the ace. re

_ count ‘actually’ decreased in ' 1966, but spreading the ex- ,

~ pense over fewer trains than’ in, 1965, resulted ‘in an: in-

‘, ° eréased allocation to the remaining trains) “On (d) the in-

crease in joint facility expenses in 1966 was due to the °

discontinuance of passenger trains by other railroads us-

| . -ing. such ‘facilities, Wich added proportionally to the ex-,

| . * pense burden on. the remaining trains... “re

C

Trains Nos. 93 and 54 use joint facilities at Chicago with -

~ four other railroads,sand with one other at Terre Hayte,

Vincennes, and. Evansville. “During the first 6 months ‘of .

oe . 1967, no C&EI passenger. trains, other than the. subject”

| trains used the Terre Hauie, Vincennes | ‘and Béansville

se facilities, and as a: result, all of the amounts ,paid for use” " mo

"+ of those facilities ,($25,356,. $18,136, ‘and $104,328, respec- "gp

tively) aré sayable. Joint facility costs wer computed Seen

‘in accordance with those methods and atanifards: approved —s_—_

in Chicago, R. ‘I é P.Co., Discontinuance of Trains, 328

*. LCC. 278, iiss <p tig:

The isan data reflect - -reventes receiv ed by C&EI

for “tranusportation of mail. Projected annual. revenues

_‘\_ and out-of-pocket expenses, exclusive of mail traffic, using

a 1966 revenue data, show that C&EI would incur. an annual

loss of $242,850 in .the operation of train No. 93 and 2

—< $191, 780 inthe operation of .train: No. 54. In projecting |

_ equipment depfeciation and other expense items only the

é

.

s

. ‘

Py .. Gg.

$ “

Ret | 2la ~ 7 eevee,

“equipment that actually. would be used ‘was -eansidered,.

Le

The projected annual revenues and out- of-pocket expenses, [F

exclusive: of mail traffic, were - > shown as. follows:

f.

—

Train No. 93. _ Train No. 54°

- Revenues: =. | Fee ee . AP ee ee

$468,549 °

e.

. - P

«

a $

™ = —~

ae

ee, Soaeh®* 3.00. k ‘.. $532,953 *, |

102. First* class! ae 87,680 « . 113,593 *

- 103-108 Baggage and othe a seca ses eS 1,153 ©

BF ice neg, SA RT I a

‘31. Dining and buffet! “didsealnice: 47,844. - . 47,844 °

-Totad “ge a RE IT ARN - 671, 334 666,048

505-538 Car-hire, net Sie SM A 3 4,785 4,785.

Revenug, and income Eee eRe - 676,119 670,833

Total expense —.......... Seemann 918,969 ce 862,563

VIN a Sei sho (242,850) (191,730) °

Expenses: é Fatteneye ¢ ‘ *: ae

~ Maintenance of ejuipment— . i .

311 Repairs, diesel loc omotives! ........ . .93,406 48,390

317 Passenger train car repairs? 2.2... 141,817 141,817

331 Equipment depreciation— ae pen .

locomotives _........... mS 8,760 | 8,760 -

331 Equipment depreciation—ears’. 30,103: — 30,103 ~

335 Employee health and: welfare an Rs hi .

“ benefits* iieigatkcoddastiaciae Mecsias. 2,502 2,502.

Traffic: _ a : frag Peake ere he eer ary

351-360. Passbaiie teafiies | 21,996 _ 16,036:

. Transportation : patos ie a Ki ee See

373 Station employees* ‘shar 2 op Eira ; $15,650 . $14,568

376 Station supplies,and. expense! rips 3,062 "' .2.768

378 Yard. conductor and brakeman® 5,532 5,532 »

392 Train -engineman”® *:..../ 1... _ 50,193 __ 52,987 .

» 394 Train Poel oe. 90,400 ~ 30,400

397 Water for ‘train, locomotion" ....... L781. 8 9B

- 398. Lubrication for train locomstion?? ; 3,709° “3,709:

399 Other supplies for train OE ese fot

SNR to fog So oe, 168° -

o. ° ‘

\ vb fe sine * :

“ AS $ ‘ A i at “. PN ome yee ‘ . mt =

. . a . : ” ‘

. . “al * ¢ * ot “ é Lt ’ ae : z °

x +, e ahs ey : \ 4 ‘'* 4 . oy e : .

BN ae . aia Seer |

. Fs “9. % ° [ \ : , 5 ; ; *. fs P : : BG : 7 : a : 9 - eee

: * as Tega ren : - <5 % o . i \ . : «

Raf os R nd 4 os . ‘ S ¢ <

‘ ee; % * 63 . ak . ed 22a _—- os fe eae $ ~ : : x ‘ -.

j ‘ sae nae = ere on Ree aia * eT ae 3 a tes i, e

’ ° ‘ f ry oN ‘ La : 5 mae , . ; ety tei ; ’

aes Sse! gc -d ~ Train No. 98- Train No. 54

~~ go

ig / © 400 Ex/zinehouse, expense—train™ geht “8,108 SA 8108 a Se

Seeeonstc | age a Trainmen® CCS eee BTS _ 67,184.

Behe fia ae Train ‘supplies and expenses"? eee . “88,308: * - ah "88,308 \ e'\

coe | f Operating ‘sleeping ears* Sse 49.860 > ~ Sng A eae RN

\ 409 Empfoyee -health and. welfare a8 gece Se OSS. hata er

Pia | | aE nee Mevesinitigpliaats 5,163 ate -5, 999

Sr Insurance! SRO ENE as 16,405». 16,405,

‘ 419 Logs angl dganage--baggage' tie Ey 550 eee 480° * \.

ait g ~ 420 Injuries” to ‘persons! FAG AES. | ea -2i154« ay

44) Dining and buitet Servidet [erage : |. eae 71,188

‘General: \ GRA ae Se rian ge Ur enn

452 Clerks, accomitingt (2 ci 9142 78,488

. 456 Employee health and welfare ; ‘ eae pry ta

/, oe OR ace NC: Setilinns . eomeay & ' 360 - iy ' 2 324-

fee MM Joint facility ace outs = setbicin! tyes "170, 720. 9 * 170,720. - —

Bf 2 \Oae Railway tax accruals ne so ssnsongueedpce 21,958 eh 21,542 [

Sue M18,969F -- ° 862,563

«’ Total expenses | hy BOER ee

Ea Aen -~ 1 W066, actual.” nt hé nuynber prec ceding eachsitem is the account |

Gig Sac area num er. in the Cotamiss on’s Uniform ce of Sécounts. tae

2p, jected based ony: current traffie. a aaa

3 Ppa jected based om ear assignments. Pa bone ena | ae

4 Projected based: gh first 6 mara taal 1967, ee

cost per dar a stkee ue

6 Based Yn two unit sae a ee ic ee A A NGaEN baae

iy Based ‘0! ears required. “ety ) Seis! ° ;

-* Based oh current G.M.A. ratés appliéd, to labor puily.

® Based on current assignment,

-10 Based or 1966 payments’ plus wage increases.

oe Based ok 2 unit assignment ©. first month 1967 cost: per

4 ‘unit miles. 4 ear '

: ict /? Based on stimated gar mile, @ fiyst 6 months 1967 cost per

mile plus: ereys’ lodging and. meals at carnent costs..

f 18 Based oy current premiums. x eee eare

_ o

+ amig- et

~

i

“”

e.

¥:.

¢

e

| ae ae

‘ | ea

oP 4s (eee teas :

pe rin.

It i is eae appar ‘ent that C&ll hag ESP gubstantial

losses j in,the opegation. of the trains Nos. 93 and. 54 and that

~ the losses -will- substantially i inc re: se US a: result of the Post. :

~ the consequent discontinuanc e

“-Puilroads usthg: the ¢

Hight communities: on ahs

traifs: inte rvened: in sopposition: -

ford, Hoopeston, andg-Danvillé, Il, and Terre Haute,

_cennes, and Kvansville, -And..

ford., wig 21S Wh ‘some. Minis, residents who ride ,

Office Departyient’ S removal of mail from these irdins and |

of. nussenger trains of other:

‘hicago terminal facility, although the

" Iadter factgr ‘was not | eduatcered in making the’ above *

ao projections. ee

linie ‘served by the subject

W atseka, Mil

Vin-

The trains‘do not serve Mil-

C&E i

“Chie Uso,

LS train No. 4. northbound return*on tram No. 93 southbound,”

-, the witnesses testifying vat communities in Hmois “we rb

— ily ean d jin the continued operation of trains

Neos, 3° anc The. “latter

18a(2) pro bas Mm Mnance

are the: ‘subject. of. the section

Docket. No. 24726 and, under

“the provisions: of that section? are being dealt with in the: re-

- port -of the hearing eXaminer

Indiana interveners and:

Witnesses testifying at Tiina. points were concer ned with

continued. operation of the subject. ‘trams., Acie :

Of the 144 public witnesses

who testified. on: the eonioli-”

“anted record, 90 directed their testimony in whole or in,

part to the subject trains. Not All use the serviees of. the ©

‘trains. ‘Thirty-one testified.on behalf. of State, county, sil :

governnient or municipal org ranizations, ciyie or. trade ° or-

ganizations, and. colleges. or.

sented. the views of a Congressman.

universities, and one “pre-

A number w ere con-

cerned with rail passenger service generally, though they -

ject trains.”

= a ie .°

themselves did not use the services provided by the sub-’

With id exceptions the public witnessés de-

_)

t

" |

¥

ee orn ee

sire the trains continued in what would be a standby ser-

vicé for use as convenience ine ‘bad weather, at holiday

. periods “ang for shopping trips. No publie witnesses testi-

fied at Qhicago. oA

‘At Watseka, the oie and representatives of the cham-

- ber of-commerce and the County Farm Bureau indicated

that, although they do not use the subject trains, there is

“need for rail passenger service in inducing industry to

* locate in the area. A surgeon testified to using the trains:

20-24 times a year to and from Chicago where, he indicates,

an increasing number of his patients require medical ser-

-vice. He owns an automobile,-but does not use it on long

trips. - ’ +.

At Hoopeston, the mayor and the president of the cham-

ber of commerce expressed concern over rail passenger

service. ‘Testimony was given bya department. store

buyer and a beautician. Two personnel managers of large

corporations indicated that-prospective employees‘inquire

about transportation facilities to and from Chicago. « One

could express no opinion as to whether ‘discontinuance of -

the subject trains would have a detrimental effect on re-—

cruiting employees. in Hoopeston; fhe other uses other

trains of C&EI and was more concerned with their reten-

tion. The president of the Hoopeston Industrial . Cor-

poration paints ouf that every prospective industry men-

tions transportation. A representative of a corn festival °

held. annually each September in Hoopeston urges contin-

uation of the service, but of the 100,000 persons attending

’ the last occasion, he knew of only four who came‘by rail.

The foregoing witnesses themselves rarely patronize the

subject trains: Another witness rides train No. 93 during

unusually heavy snowstorms when other means of travel

are not available. . j

o

; 25a” | : /-

At Danville, municipal, para and other organiza--

‘+ tional spokesmen were concerned with rail paggenger ser-"

vice generally and specifically C&EI trains other than those

here involved. Several other witnesses proved to be only

occasional patrons of trains Nos. 93 and 54—a bookkeeper,

: a number of railroad employees (who rated their on-time

performance as poor), a housewife (who finds , them

crowded and: often late), another housewife whose children

‘ sometimes use the trains going to and from colleges (par-’

ee

ticularly in bad weather), and an architect’ who expressed.

the view that the disconfinuance would hamper Danville’s

“* development. -Another witness who. uses G&EI trains

about once a month, occasionally drives his automobile to ~

‘Chicago, but wouldsnot go by bus because he considers the

bus routes circuitous and the service time consuming. Sup-

port for continued operation was voicéd by.a junior cham-

ber of commerce spokesman for 110 members who testi-

ms fied that he used the trains only oney, but that the ma-

: jgrity of the membership use all C&E "trains: and by the

chamber of commerce (representing 116 manufacturing

- firmsy as part of its program to promote improvement in

transportation. Several panufuetiring organizations indi-

cated that some of ‘their employees occasionally use the

‘ trains. Spokesmen for three civic organizations use the

trains several times w year, particularly during inclemeht -

weather, but also have used alternate transportation, in-

eluding ‘private automobile. A number of the witnesses

6.

testified that {™® northbound train is _freqyently late and

dirty, that this was reported to the railroad and that there

was little effective response. °

At Evansville, the mayor and a Sjate senator opined that

discontinuance of the trains woyld he detrimental to the

growth of industry and commerte -in the community. The

-_—

ee

26a ;

mayor uses air service on many occasions and uses rail

service about once every 6 months. The senator does not

have oceasion to use C&EL's serviée. ‘The chamber of com-

merce spokesman urged that the discontinuance be deferred

uyiti] L&N acquires the eastern side of C&EI's line, al--.

though the transportation division whieh he represents -

voted six fo three agaist oppesing discontinuance.” An

aide to a inember of Congress frow Indiana presented the

Congressman’s: views ‘that rail passenger transportation

service is Vital fo the economic growth of. the community,

and that all modes of transportation. must be kept avail-

able. Other witnesses testified to a preference for rail

over alternate modes for the occasional trips they take,

* though some of them found the rail ears ‘crowded, dirty and

sometimes unheated. Among them: was the representa-

five of a religious community having 30°nuns stationed at *

, habeader ty She indicated that‘ her order’s reeent trans-

| portation requirements were accomplished through use of

charter bus service, and that the sisters have ‘sufficient

‘ automobiles at their, disposal. A .

*-

At Vincennes, the mayor opposed the discontinuance |

_ but, in so doing, was not supported by the city council. The

chamber of commerce mailed 475 questionnaires to area ,

residents regarding the proposed discontinuance; S82 were

returned showing a 3 to 1 preference for keeping the trains

on. <A survey at Vincennes "University revealed that 22 of

thé 2,243 si@dent« use the ‘trains. Members of the faculty

use them twice a year. Seven Students said they hope

to use them more frequently, particularly during bad

weather. - A number of other ‘witnesses—all of them only

occasional users—complained about the condition of the

trains and the station at Vincennes, about a_poor on-time

*

2a 2 pe

° .- <n -

.

_ record, crowded and dirty equipment. All .of the above

“ witnegses urge continuation of. te service with Wnprove-

ment of quality.

* At Terre Haute, the mayor pressed the view that pas-

Kener train service is needed in the development of in-

dustry“and commerce. On his six trips to Chicago in the

past year he used train service once when his air flight was

grounded on account of bad weather. The chamber of

commerce cited statisties showing growth in population,

commerce, enrollment. in the universities and retatl sales

as yardsticks of a demand for improved servicé, Aware

‘that loss of mail revenues has precipitated discontinuance

of passenger rail service, it argued that the railroad should

consider providing complete service, freight and passenger,

and should look to the passenger market as any ‘other busi-

hess man looks at a new market. Further, that a -sue-

cessful company expeets to absorb departmental losses

. within its gross earnings in order to provide a complete

service. Professors and.students. of a local university, op-

-posing the discontinuance, testified-to their use of the

trains variously from regular weekend use to once or twiee

a year during inclement weather. ‘Student ownership of

automobiles by upperclassmen ‘is pesmitted and some of

the students use the trains only wh¢h they: cannot’ obtain

automobile transportation. Student use of the trains is

primarily on holidays and at the beginning and end of sum-

mer vaeation. While enrollment at the local university has

more than doubled in the past 6 cr 7 vears, use of the

trains at Terre Haute has continued: to decline.

A religious order with national headquarters at nearby.

St. Mary of the Woods has 350 members whi ride the trains

to Chicago twice annually for connections east-and west

*

. &

Fe er 28a

° oa —s }

thereof. ‘The order ,has:a: humber of automobiles at: its

_ disposalgand has used thenr and bus service for Chicago

trips. In advertising for its volloge the order would like

to be ina position to Advise prospective students that easy

access is ayailable via rail among other modes, It has

had some difficulty with on-time performance of the trains,

particularly in making conyections. The éollege has about’

400 students

a number of whom are from the Chicago area.

_Some evidence was presented to show the carrier’s car-

cleaning program and the problems. involved. Sometimes

delay in arrival at Chicago requires quick turnaré md, arid

cleaning of the ears leaves much to be desired. The ree-

ord indicates that C&T has made some effort to overcome

the problem but must deal with C&WI whieh maintains the

hicago terminal facility. cae ; ,

Discussion and conclusions.—Numerous factors are con-

<idered in determining whether’ to order the contiunance

‘of service under, section 13a(1) of the act. Among them are

public use’ of the servieepopalation of the area, effect of

a train discontinuance upon the communities served, avail-

able alternate transpoytation, financial results of the op-

eration, prospects for the future, and the earrier’s financial

‘ condition. The weight ‘to he given each factor depends

on the circumstances in a particular case. .. No one. factor

-js necessarily controlling. The intent of Congress in enact-

ing section 13a¢was to enablé carriers to discontinue train

services that no longer pay their way, and for which there

is no longer sufficient publie need to justify the financial

loss involved. See Southerh Ry. ‘o. v, North Carolina, 376

US. 93.

At one time the passenger train was the pride of the

transportation system. This was especially so in the United

’

i 29a

States where- there was vast wtldérness to be tamed,’ rich —

deposits of natural resources -to be tapped, and large,

‘widely-separ ated cities to bé connected.” ‘Phe railroad and

_its passenger trains provided the strands fon fying the far-

¢

flung areas together, and the channels ‘for

communication and transport. Time and inventive genias

created more efficient means for performing a number of

the functions for which we fgrmerly relied on the rails,

Electronics provide instant communic ation, and airplanes

cut transport time tremendously for people, mail amd

express. The automobile and the super highway—for_ -

which the American people bave a special fascination—pro-

vide particular convenience which other modés cannot

duplicate.

The evidence now before us dein that the subject trains °

no longer are used by express shippers . (exce pt. for some

movements Between Chicago and thattanooga), or by the

Post Office Department for mail (once a highly remu-

nerative source of traffic and a primary source of: sus- .

tenance for passenger trains)... Passenger traffié has been -

dwindling. In the meantime, costs continue upward in-

exorably. The general rise in-costs throughout the, econ-

omy are reflected inthe railroad’s expenses for employees,

equipment, fuel, supplies, facilities and services, With the

loss of mail revenues making a dramatic change in the finan-

‘apid, efficient.

cial results of the opergtion, C&EI would have to absorb

an out-of-pocket deficit well over $400,000 per year in

order to continue trains Nos. 93 and 54. It is likely: that

the deficit would go beyond v half million, dollars.

. Financially, this carrier is at hest ‘marginal. It has a

history of deficit operation and is beset’ with numerous

problems flowing therefrom regarding rehabilitation of its

fi,

Re

<< es or a

line and recovery of traffic. See Missouri Pac. R. Co. -Con-

rol-Chicago & E. 1.,R. Co., 327 1.C.C. 279 (1965). The

slender profit shown on this record for 1965 and 1966 oc-

curred. at the height of a record breaking period of na- ©

tional prosperity. The relatively slight slowdown in the

national,econdniy during 1967 had an immediate and telling. .

effect on C&EL’s operation; creating a net deficit of nearly

$2 million ‘in the first’ 7 months of the yar. ~ C&EI is.an ..

important link in the nat

point of sorvice“in its ( own. area and as an integr al part of .

f national, system, its viability is.a thing much to be

desired. Continuance of the subject trains would militate |

against that objective. There is. no reasonable prospect

for relief from the financial burdens imposed by_ those

- trains. To the contrary, all indications aré that the bur-, |

dens would mount. And this, in turn, would soon inten- ae

sify the’ railroad’s malaise, all to the detriment of ‘the |

public. | ech as Ss

The sieeali who have been using the eas for travel - ,

“have done so largely on an occasional or standby basis.

Their primary means of conveyance are the automobile

and other nonrail‘modes. The testimony of the govern-

mental leaders, business representatives, students and

housewives is clear proof. of that. The witnesses them-

____ selves appear to prefer air and automobile travel. Many _

gave opinions about a need for rail passenger service in the

interest of. community and commercial growth, but

hard, realistic facts were advanced by them i in support. The

passénger-use statistics stand as stark proof that, regard-

less of what is felt and said, the people along the C&EI’s

Evansville-Chicago ne are. not using the trains. Their

patronage bes minimal. ,

- @

, $

ll -

Ps

rail system and ‘from the

dla “a 7 ie :

For those who must depend ‘upon public transportation,

_. bus service is far more plentiful than the trait? service—:

oat all points on the line. -Use of the buses will require.

an adjustment, ‘but whatever inconvenience might | be ex-

; _ perienced does not outweigh, ou the scale of the public ~

_ interest, the tremendous burden continued operation of;

: the trains would involve. We conclude that discontinuance

ta

has uniformly held that we do not possess authority to

_ impose conditions for the pr protection of railway employees.

~~-who may be adversely affected as a result of the discontinu-

by C&ET of trains Nos. 93 and 54 is consistent with the pur-

_ pose of section 13a(1) of the act, and the ob rjectives of, the

national transportation policy.

Certain railway employees seek imposition of the Bur-

lington or similay conditions in the event the, discontinu-

. ancdls authorized. Similar requests have been considered

\

in prior proceedings of this nature, and the Commission: _

' ance of passeager service under ‘section 13a(1), See Great — "

_ Northern Ry: Co. Discontinuance of Service, 307 L.C.C. 59.

‘However, the probable effect of such’ discontinuance, on

employees is, a matter to be considered in determining:

whether the public convenience and necessity require the

continuance of. such service. We have considered: that.

. factor, and, in our. opinion, the probable adverse effect up--

on employees does not afford: sufficient grounds to order

continuance of the service.

Contentions of the parties ; as ‘a fact or liw not specifical-

ly discussed herein have nevertheless been considered and

found to be without merit or ‘material significance.

We find that the operation by the C hicago. & Eastern. Hli-~ _

- nois Railroad Company of passenger trains Nos. 93 and

_. 54 between Chicago, Ill., and Evansville, Ind., is not re-

“- ; en ,@

_

s cece i. st die SM

' “quired” by the public. convenience and: necessity and. that

continued. operation. ‘thereof would unduly. — inter-

state or fortign commerce.

- a. An appropriate order will be entered discontinuing the

investigation, therein... 7 eet, >.

oe apne ee ORDER | ore oye

: oS at of the per Pa ComMERCE ons MISSION,

= ion 3, held at its office in Washington, ail . on: the .. uA

day.of Ja danuary 1968. :

Finance Docket No. (24725 -

ae & Eastern hiainoe -RaTLRoaD Co. —Disco} ea:

" /, ANCE OF Trains Nos. 93 anp 54, souk cued Cuicago, Tu.

ie AND EVANSVILLE, Inp. - |

% | Investi ation of the matters’ and things involyed in ‘this

__ proceeding having been made pursuant to the order of said

division, dated September 18, 1967, a hearing having ‘been.

held and the said division on the date hereof having made _

and filed a report containing its’ findings of fact and con- —

clusions thereon, whith report is: hereby referred to and -

_ made a part Sere ae to Bi aes

“It 18 ordered, That this investigation: be; pee it is hereby

discontinued, and that this order shall be effective 35 Gaye

from the date hereof:. 3

€ Rone the Commission, division 3. . \

H. Nem Garson,

(SEAL) of s: . Secretary

4 Fd ‘

oe. bd

- 2 au ste | : = > J’ enh , . Post Te Li bi Tn ak eG ea PRR ie POPE, eeesimtinasd 5 -

° i . &

© 2 . : a a

. - *- ; ® . 7 :

P . | ps

. A ps ui

**) H

dou . { \

' “s an :

‘ : . eines |

a ze }

: —APPEMOT A 54 :

zat ‘ff tenent of and expenses for traine Hoe. 93 and $4 in 1965, 1966 and 6 months of 1967 ;

4 , > ~ + 1966 a Six Months 1967 ".

E Trsin No 93 —Tratn No S2 = Fain Mo OS Train to ST - fe

Raveries: se $ 532,953 "468, My = «235,039 § 197,355

£102 Sine Ske a 25680 135593 39,4388. 45,272 —Ct;:Ci«‘C§

3ao-toe nattsteo ye cee bh v3.

106 Mail-st ae ‘ 3057621 96, 111 7356 375510 A

/ 107 Express (1) / - @B. 23955 4 762 4,436 - '

} 1 131 Dining & buffet @. . ; 47. 844 820

905" 338 Car ire, net a)” fi "21,328 _ - 2,008 — (5200) :

. ?

+ /Total Epes (See be beqeip ; WEF 287 G1 EE 127 * 4775387

Maintenance of Equipment: . ; ; ‘

- Su sate esel locomo- af > , ®

3) 70,299 70,959 26,695

37 Pessenges strain cars- z z ’

174,853 163,022 70,864,

jl Equip tp Depra. “43 siPees (3) 12,996 . 121996 6,498 |

331 Equip sigee-( 54, ree} ars(6) 59,211 ' 58,431 27,882

335 Emp. H6W bene ° 2,916 - 2,841 1,250

bac tii senger Traffic as 19,959 re 16 oes rf

- as x Tra 1

* Transportation: ~ : e :

- 373 Station ot 64,723 29,276 11,641

' 376 Sta. supplies & exp. (10> +568 2,568 1,384

Yard + & + (11) 1,661 1,661 - 15832 .

392 Train enginemen 47,803 50,369 24,517

394 Train Fuel .(3 . fs 46,150 46,583 18,401

397 Watér for train Loco. j 2,486 23510 i 4078

398 Lubs. for train Loco. / 3,127 3,156 a 2,245

399 Other s lies for ‘tra -- 377 380 * 4 101 e

400 -Enghse. e: train (3 12,395 11 4,908

- OL Hilttee a) @" 64,651 53°93) 8 293201 ,

4 402 Train: supplies & bp ok 0% »105 84,673 5 44,627

, 403 re — | Senekies (5 i S a sg 44 31,368 . 20 ; 18 1696

ton ; 125178 125178 66 8; 766

415 — wrecks a) i 4,987 ooo . ase

420 Ihjurie, ee 22,762 2,593 “hee? rs

uries ‘

44h D e eres serve (1) * 76,839 767839 35;596 ,

432 Clerks account’ on : 10,972 5292 4,129

ME Toate att ae 43,

t Fac

532 Ry. tax accruals (17) ~" 297631 25/381 10; 622

3 Fi , , . . ’

ROTES: ’ ‘

1) Actual. . Z ree “

Reveque plus hire. ° '

3) Passenger portion be “eccount étvides by passenger unit-miles tines unit-miles per train. }

4) Passenger 4 Po a Roagnony divided by passenger carpiles exclusive of sleeping car-miies

ac es per train.

‘ 5 ane. tes distributed to trains on basis of units assigned. . © .

6) : At 1.C.c, ates distributed to trains on basis of actual car-niles. m ’

G.MLA. © Poy to labor portion of accounts Nos, 31) ons 317.

Distribut¢d on basis of revenue pro rate. - é

$3 il handlers, 3 ‘C4EI station employees.

, 93-and S4's portton of Danville cepot expense. os . -

% | ‘savston off wootunt Giuteds by pesusuges cab-alled testatscy Ut ‘y

Tr of accoun miles s

3) G.M.A./rates applied to labor portion Of accounts Nos. 373, 378, 392 cad 201. iS

4) 5 rate of actual Kyo

i ® epplied to labor portion of account No. 452. °

16) Sev portion of joint facili aa at Chicago, Terre Haute, Vincennes end ille, e -

R-R/ and U.1. rates S34 a3). @pplied to Lebor portion of sccounts Nos. 311, 317, 351 0,

3, 378, 392, M1 and * .

-*# -

. ¥ 2 e

4 -

° a ,

; . ° a “4

, 2 4 e ,

° - > ?

o v c e

° ; e | A 4 Py 2

G 6 ;

. s -

7 -

. .

. .. 6 “SAa -/ t . ay ee ws

Service Date , |

May 15, 1968

Corrected Order" ae

Ata Session of the Lytenstate Communion Copuresi0%,

. Division 3, actitig as‘'an Appellate Division, fold at its

_ ofice in W ashington, D.C., on the 8th day of. May, aco :

Finance. Docket No.. 24725

— Curcaco & Eastern ILLin org RamLroap Co. —DIsconTINUANCE

oF Trams Nos. 93 anv o4 BETWEEN Cutcaco, ILL, AND

_ Evansvibe, Ip. : :

é Uyion: gonsideration of the record in *the above- titled

proceedings, including the petition filed by the Cities. of

-and ‘Watseka and the Village of Milford, on March 1, 1968, -

* sion 3, dated’ January 25, 1968, authorizing the above-titled —

Chicago, Danville, Hoopeston, Terre Haute, . Vincennes.” .

~ for reconsideration of the- order-of the Commission, Divi-—

discontinuance ; applicant’s reply thereto; petitioners’ MO- .-.

tion to strike certain matter appearing in the reply; and

applicant’s reply to the motion; and

It appearing, That the order of the. Commission, Division |

7 %, acting as an Appellate Division, dated May 8, ‘1968,

ere * — affd served earlier én May 15, 1968, erroneously indicated

oa that the Commission had .granted the petition insofar as

‘it sought dismissal of the above-titled proceeding for fail-

“ure to properly invoke this Commission’s jurisdiction i

‘under section 13a(1) ; pera? : ..

It further appearing, | That the attors ‘appearing in the

reply to the: petition objected to in tlie motion to strike

are not of record inthis - ‘proceeding’. and. therefore not _

i properly before this Commission as evidence and that’no |

‘objection is made to‘the:- motion to strike ;.

|

'. It further appearing, That in order to invoke the juris- "

-diétion’ of this Commission under section 13a(k) | of the

Interstate Commerce’ Act a carrier “must comply . with cer-

tain requirements, including the’ posting of notice.‘‘in each

(Baan)

30a

wa) « b- _ ® =

| - } ry fs . F a .

iis r ¥ oe ee: & "6 J ‘ . / ! ;

aioe, fo.5..@ a8 hoor ; . 2 - :

Teed : % ar — : A gp KPT ES ES SO CaS PEREGO NEES TIRES

| , yy , g - > :

_ m ~ . , ° 2. :

t ’ . i

: . 5 : r

\ > ’ e .

4 ° Ra . » 7 } <

?

station, depot, or other facility involved”? (49 CFR 43.5 —

( j))y which noti¢e must contain a ‘‘complete description of

— the present service of the train . . . involyed and of the

- discontinuance or change of operation -or service pro: :

posed’? (49 CFR 43.5(e)); and that the purpose of re-

_ quiring suck notice is fo. give the travelling public affected.

a ‘the opportutity to protest the proposed discontinuance ;

It further appearing, That applicant in ‘the above-titled

it further appearing, That no other new issues are saleba

for Srantig the relief requested;

“It is ordered, That the motion‘to strike certain matters

appearing in applicant’s reply to the petition for Pesan;

sideration be; and it is hereby, granted ;

It is further ordered, That the petition for reconsidera-

tion be, and it is hereby, denied: i In all respects. |

By the Commission, Division 3, acting as an Appellate

3 Division. :

4

H. oe GARSON Fe

Secretary. Sa

ir. proceeding gave, the pope notice required, as Geseribed =

: above; and -

or evidence of substance offered to support the request.

for reconsideation, and good cause has not been shown

9 36a: -

- APPENDIX D

UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION’

r) *

Crry or Curcaco, et al., ; ;

a Plaintiffs,

, , 9%.

: Usirep States or Amenica, Lytrersrate Commerce Com- =

. Mission, Cuicaco & Easter ILLINXos Rataoan COMPANY,

et al., .

Defendants. °

a oe Civil Action — No. 68 € 956 ,

_ NOTICE or XPPEAL TO THE SUPREME

“COURT OF THE UN ITED STATES

sy ; ; L vf

“Notice is hereby given that Chicago & Kastern Illinois

Railroad Company, one of the above-named defendants,

hereby appeals to the Supreme Court of the United States

- frém the order, entered in this, action on Mafch 19, 1970,

consolidating this action with Tennessee Public Service

Commission; et-al..v. United States of America, et al., N.D.

IIL, Civil Action No. 68 C 1666, vacating the orders of the

Interstate Commerce Commission theretofore entered in

each action, and remanding both actions’ as consolidated,

» _ to the Interstate Commeree-Commission for further pro-

qm

9S

ceedings. |

This appeal is taken pursuant fo 28 U.S.C. £1253.

“Ae oo IL.

* In accordance with the provisions of’ Rule 12 of the Rules

of the Supreme; ¢ Court of the United States, the Clerk of

~

@-. a as a ; VJ

. ‘ :

*

+ oe eres ee Meets

this Court i is hereby requested to seitity the entire record

pp this cause and ‘provide for its transmission to the Clerk

of the Supreme Court of the United States,

/8/ Keith F. Bode — cr ;

Keith F. Bode _

Jenner & Block as

135 South LaSalle Street

- Fe gine, Illinois 60608

C&EI filed the tei Notice of Appeal in the United

States District Court for the Northern Distriet of Minois

on April 17, 1970, together with proof of service, and- :

served/copies upon all parties of record by mail on the ti c20

same day.

-

)

‘ .

id

~

bia

APPENDIX E

Interstate Commerce Act. Title 49, United States Code:

Section. 13a(1). vg

A carrier or cartie rs subject to this part, if their rights

with respect to cL discontinuance or change, in whole

or in part, of the operation or serviee of any, train

or ferry operating from a point in one State to a point in

any other State or in the Distrigt of Columbia, or from a

point in the District of Columbia to a point in any State,

> are subject to any provision of the @unstitution or statutes

“ae of any State or any regulation or order of (or ave the

subject of any proceeding pending before) any court or

‘an adtninistrative or regulatory agency of any State, may,

but shall yot be required to, file with the C omission, and

upon such filing shall mail to the” Governor of each State

in’ which such train or ferry is operated, and post in every

station, depot or other facility ‘served: thereby, notice at

least thirty days in advaneé of any such proposed discon-_

linuance or change. The earrier or carriers filing- such no-,

tice may discontinue or, change any such operation or-

. service pursuant to such notice except as otherwise ordered

"by the Commission pursuant to this paragraph, the laws or

constitution of any State, or the decision or order of, or the

pendency of any proceeding before, any court or State

* _ - authority to the contrary notwithstanding, Upon the filing

ef such notice the Commission shall have authority during

said thirty days’ notice period, either upon complaint or

yan aon its own initiative without complaint, to enter upon

an investigation of the proposed discontinuance or change.

| pon the institution of such investigation, the Commission,

by order served upon the earrier or carriers affected there- ,

by at least ten days prior to the day o1mwhjgh such discon-

tinuanee or change would otherwise become effective, may

.

Oe ae

39a

require such train or ferry to be continued in operation or

service, in whole or in part, pending hearing and decision in

‘such investigation, but not for wa longer period thar four

mouths beyond the'date when such discontinuance or change

‘would otherwixe have become etfective. If, after hearing in

», sue h investigation, whether concluded before or after such

discontinuance-or change has become effective, the Com;

mission finds that the operation or service of such train or

ferry is reqtired by public convenience and necessity and

will not unduly burden interstate or foreign commerce, the

Commission may by order require the continuance or sages

ration of operation or service of such train or ferry, in

whole or-in part, for a period not to exceed one year from

the date of such order; The provisions of this paragraph

shall hot supersede the laws of any State or the orders or

regulations of ‘any administrative or regulatory body of

any State applicable to such discontinuance or ghange un-*

less notice as in this paragraph provided is filed with the

Commission. On the expiration of an order by the Com-

mission after such investigation requiring the continuance

or restoration of operation or service, the’ jurisdiction of.

‘any State as to- such discontinuance or change. shall no

longer. be superseded unless the procedure provided by

this paragraph shall again be invoked by the carrier or

carriers. :

"49.0.7, Part 1122 (1970 Ba): Say en

§ 1122.1 Scope of rules in this part.

’ The rules in this part govern the procedure to be fallowed

by carriers subject to part I of the Interstate Commerce

Act which, under and pursuant to the provisions of section

13a of said act,. file with the Commission a notice under

paragraph (1) of said section or a petition under paragraph

(2) thereof with respect to a proposed discontinuance’ or

change, in whole or in part, of the operation or service

of afhy train or ferry." °

0 eee ee ad

S or | ar

“un paragraph (1) of section 18a,” i

| 2

§ 1122.2 Definitions.

As used in-this part: is

(a) The term ‘tact’? means the Interstate Commerce

Act, as amended, yates ee ip

(h) The term “notice” means a notice as provided for

(e) The term “Hetition’? meats a petition filed with

the Commission under the provisions of paragraph (2) of

section Ia for authority to effect a disgontinuance or’

change. — < om

§ 1122.3 Form and sate of notice.

The notice shall be reproduced by printing, caine:

ing. or mimeographing (or by any other process provided

jhe copies are clearly legible) on paper not less than 8Y/,

by 11 inches, with the words, ** Notice. of proposes change

(or discontinuance, if appropriate) of service’? printed in

large bold-face type near the ‘top. If printed, nothing -

less than f2-point type shall be used in the rémainder of

‘jhe notice. - ‘© St

§ 1122.4 Galante of notice.

A separate notice shal] be given for each discontinuance

or change of service. “A single notice may include more

‘than one train or ferry except. that unrelated trains or

ferries shall not be made the subject of a single notice.

Each notice shall set forth the following information :.

(a) Exact corporate name and _ general offiee address:

of the carrier. ae

-

.

”

” 4la-

7

*

(b) The number and tame or other deseription of the

train or ferry with respect to which a discontinuance or

change of operation or service is proposed, the name of

each station, depot, or facility affected, there hy, - sets the---

termini bet warcas bleh tlie “train or ferry operates,

(«) The date on which the discontinuance or change of

operation or’service is proposed to become effective.

(dl) Advice to the public that persons desiring to object

to the proposed discontinuance or change should notify

the Interstate Commerce Commission, at Washington, D.C.,

‘of such objection and the reasons therefor at-least 15 days

before the effective date of the proposed discontinuance or

change. : r

§ 1122.5 Information required ‘with notice.

With each notice of a proposed disegptinuance or r change

of operation or service, there shall be filed with the Com-

mission a “Statement. in Relation to Proposed Discon-

‘tinuafice or Change of Train or Ferry Serviee’’ which, in

“the hody thereof or in exhibits attached thereto-and re-

ferred to therein, shall_comtain the. follo n

(a) Exact t corporate name and * general office ress

of the carrier proposing the discontinuance or change.

(b) Name, titlé, and post office address of-,counsel or

officer to whom correspondence ‘in regard to the notice

should be addressed, :

(c) ¢ Jomplete description of the present. service of the’

train or ferry involved and of the discontinuance or change

af operation or service proposed.

(d) Complete statement of the reasons for the | pro-

posed discontinuance or change of operation or service.

J ; ae

Oe EYEE ett I! 5 ag

42a

(e) The names of all railroads interchanging passengers

or freight with the subject/train or ferry, and the points

of such interchange. : |

(f) - Description of ‘other common carrier service, in-

cluding service of the subject carrier, of the same. kind

(passenger or freight) rendered by the trains or ferrjes

involved, between and at the points described in the notice

and other common carrier service available in the im- .

mediate territory. ‘

a

(g) A statement of the traffic transported on trains or

ferries involved for each of the last 2 calendar years and

for the part of the current year for which such information _

is available. If information for. such periods is not sub-_

mitted, explanation must be given as to why such informa-

tion was not submitted, When a notice mvolves more

than one train or ferry, the traffic of each should be segre- |

gated to the extent practicable. If the proposed discon-_

tinuanc © or change involves less -than all of the stations

Served by a train or ferry, to the extent such information

is available segregation should be made of the_ traffic

transported to and from each station which will be affectod.

(h) Financial results of operating the trains or’ ferries

_ involved. during the period or periods embraced ‘in the |

«statement submitted pursuant to paragraph (g) of this.

sectién, segregated in the same manner and to the same

extent as required by that paragraph..

(i) - A copy of the carrier’s general balance sheet state-

ment as of the latest date available; and of its income

statemerits fot each of the last two caléndar years and for

. that portion of the current. year for which such infor-

mation 1 is av ailable.

ea SA POM, Serta tet ORAL as DORA

. (i) A certificate that a copy of the notice and of the

“Statement in Relation to Proposed Discontinuance or —

Change of Train or F erry ‘Service’? has-been imailed to

the Governor and railroad regulatory body of each State

in which the subject train or ferry is operated and that

‘such notice has been posted in a conspicuous place in each

station, depot, or other facility involved, ‘ingluding each

’ ferry.and cach passenger car on trains affected, whieh cer-

‘ tifieate shall include information of-the date or dates on

which the notice and statement were mailed and the date

or dates on which the notice was posted as aforesaid and

that a copy of the notice and statement were served upon

the Assistant Postmaster General, Bureau of Transporta- —

‘tion and. International Services, Washington, D.C. 20260

and the IT allway Labor Executives’ Association, Washing-

-ton, D.C. 20001.

(k) Map showing the geographic situation. of the line.

over which the train operates, or, if a ferry, the route

traversed. The map should showethe line or route clearly,

‘by color or otherwise, and the stations thereon, on a sheet. ~

- not smaller than 84% x 11 inches. Threé copies of the

map should be submitted unbound for use of the Com-

mission, in addition to those attached to the’ statement.

G § 1122.6 Petition.

eet -etitions for authority to e siSeek a discontinuance or

\nange of the operation or service of a train or ferry shall

contain in the body» thereof or in exhibits attached thereto

und referred to therein, the information required by para- .

graph (b) of § 1122.4 of this part, that required by $1122.5

excepting paragraph (j) thereof, and in. addition the fol? ©

lowing:

44a,

(a) The date on which the petition or aiptinkiise, for’

discontinuance or change in the operation or service of the .”

train or ferry was filed with, the appropriate State author- —-

ity.

_(b). Identifiedtion of the State authority with which -

such petition or. application was filed.

—

(c) ‘Deser iption of the action, if any, sais by» inte

State authority on the petition or application filed with it.

(d) To. be filed only with the original of -the. petition Tee

to the Commission, copy of the record made before the |

Staté authority, including copies of the application or

petition to it, transcript of any oral hearing, and decision

and order, if any.

§ 1122.7 Execution. ae

_ The original copy of the statement required by § 1122.5 =

and of a petition as described in § 1122.6 shall be signed

in.ink by an executive officer of the carrier having knowl-

edge of the matters and things therein set forth., Persons

signing the statement or petition shall also signa certifi-

cate.in form’as follows:

s iapeuaacsepseline rane Laisa doce letiaieds hereby certifies that he i is the

(Name) . ‘

oc see ae ea So re” aeessOnaDS 6 -

(Title) ,

Sa cde aces Ah es cisebasipiabeisighciiardocem A petitioner

(Corpotate name of petitioner). ~ .

‘

herein; that he has been-authorized by proper corporate

“action on the’ part of said petitioner, or by the -proper. _

court, to execute. and file ‘with the Interstate Commerce

Commission the foregoing statement (or_petition) ; that he :

has carefully examined all of tle statements referred to

in said statement. (or pe tition) and the exhibits attached -

thereto and made a part thereof ; that he has knowledge -

~ of the’ matters: set forth therein; and that -all such state- |

ménts made’ and matters set forth therein are true ‘and

correct to the -best of his knowledge, ponmation, and —

o}

a

‘Delief.. | ' Fee .

s ma at (Signature)

“Dated this haiti aetaaac day of 19

neces

_ § 1122.8 Filing; copies. ee Ciel:

‘As applicable, 8 copies of the notice and an " original

wid 7 copies of the accompanying statement, or ari original

and 7 copies of the petition shall be filed with. the Secretary

of the Commission, Washington, D.C. - Each copy ‘of the

statement or petition shall bear. the dates and signatures

that appear in the original and shall be complete in itself ;

but the signatures in the copies may be stamped or r typed. a.

J udicial Code, Title 28, United States Code:

Section 2325,

. An interlocutory or permanent injunction Pe Aehenr, ‘the

. enforcement, operation or exécution, in whole or in ‘part,

of any order of the Interstate Commerce ° Commission

shall not be granted unless the application therefor S eee

heard and determined by a district court of three judges :

Nader section 2284 of this title.

Netto

Wat

“\ e

ms 4

d °

p

paps

~- i ;

. “f

.

Mee 3s ae APPENDIX F Sa ty

C&EI Trains 93 and 54 ‘

.. L&N Conneéting Trains — — — — — -(*)

_ Trains Involved in the L&N Case “sae -- y-| =

e .

: 5

.

7

*

ic

os el

— -pewilhad ‘i

al Falls A S ‘«

\e

Hibbing gait sro. Mar sudo

Duluth

fols

re 0 ONTO Ms

sapolls a Aiton yee

A yer \o mr

i} Le, osihowne ont , avon putter apis

wito 4 sry? fu be an ‘ » ‘a y aie

Rochester For kee | Mustek i 1

cit waiter! yt - mn aan sle quant ae

emavan Cy ah, J 1 I Sy ocr

‘ ’ 2 crevy awow®, iy _—e we ant, 1 r

Dodge srerioo° pu mO aiean Ts bY en pura ai! , won Conti éw x

. Wi Dub { Tmv.pur novo pit ct war yi) uate we ‘a

Cedar hapids'e d on “al y ‘et . tyne nto ef i

Davenport ghagcine youet Boer Bene 6 +e ye y

wfisiand wont te ” weer art,

py Ottuinwy Hor pniesure s sinter sc owns Ww. Ty Nig . 1

+ Burlington ® Muncie ‘ ‘ r st

RI - Pec le pioominet! panwiile h spaiton att e ~* we egal wh ‘*~

U poilp- - j

i quiney *ecatut inBlanA Cine mr paint

Hannida! spnint"eiD . a -™ 2 ants st" =

. aute I

Aiton ; Ville asniah

‘ Ca \ ,

»Kansas ory _ St. Louis sm. Los it ansville ont Sexinato® wens 2

rence 4 = w vag whe “0

‘Sea ad ' : oe Pg i63 pristol

. : ’, wilt? «, Gre’ pore 8 .

Cape Girardeay, ‘ midst

° 1d Asc si oe oa

Springfie rest a ae!

osackso” =_ es

uta

* emonis aiK i

th if

~ se uTl TILE ROCK . 7 A1SS- Corinth Peco wants -

egen®

-

Alester Hot springs « ni _ I,

£1 Dorado ~~ |

‘exarkana | { -

er j yon. : “Twont TOOMBS". ;

. K .

eTyler | shreveport & ae x pothats °

— mck \

oe FLORIO awassite a *

é oN oe

o7* ia | . ;

ras } peor W

,

f| . * *

one | ” ‘Tap?

i. *

(*) Some cars from the C&EI (Chicago-Evansville trains are

transferred to the L&N connecting trains at Evansville. In ad-

dition, some of the cars so trans rred, as well as. some of. the

to the L&N @incinnati-New* Orleals Perea at Nashville for a

continuation of their southward journey.

LIBRARY | 2

‘SUPREME COURT, U.S. —

Uerep STATES OF AMERICA and INTERSTATE Conneence

COMMISSION, Appellants

Cary cn Cucands ot al, Appellees

No. 387

UNITED STATES OF AMERICA and INTERSTATE COMMERCE

COMMISSION, OE

TENNESSEE PUBLIC SERVICE Cosnmasion, et al,, Appellees

No. 396

LOUMVELE AND Nastiwais RAsRoAD Comrany, Appelicnt,

Tomer Punic Sect Counaamon, eta Appellees,

~ + Nd. 410 $4

CHICAGO AND EASTERN ILLINOIS RAILROAD COMPANY, Appellant, -

v.

Shai napintas cen

ON APPEALS FROM THE UNITED STATES DISTRICT COURT

tetetesng nie exer ime pele

MOTION TO AFFIRM : *(#

(Names of counsel appear inside front cover)

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TABLE OF CONTENTS ;

- STATEMENT...'.<..\...... bie Le ueny eee cee 2

. ARGUMENT .......... Bye punes canes aN

ONIN een as wh fe geees reer mer

APPENDIX A. Ordet of the Interstate Commerce Com- .

mission entered May 8, 1968, served May

15, 1966 at 92530 am. 1.42.22 cc ccgces A-l

APPENDIX B: _ Order of the Interstate Commerce Com-

eo, mission entered May 8, 1968, served tied

15, 1966,, at 32300 pm; 2.6. de cect eee’ - Bl

APPENDIX C. Report and Order of the Interstate Com-

merce Commission in Louisville & N.R: Co.

Discontinuance of Trains, 336 LC.C. 81..... C-1

Cases ‘

Arrow Transp. Co. v. Southern Ry., 372 U.S. 658 ........ 6

Chicago, M., St. P. & P.R.R. Co. Discontinuance of Trains, © :

BAT By FOR ce ehh Soa SR OS Cree ee oe ee 8.

City of Chicago v. United States,.396 U.S. 162 (1969) ..,... 2, 5,8

City of Chicago v. United States (No. 70 C 585 & 689 ©

N.D: IlL-E.D., June 4, 1970) OE Pee Poe Pre Ga err e 7,9

Louisville & N.R. Co.-Pir.Chicago & E.1.R. Co.,

SAID E Fe ee ee

Louisville & N.R. Co.-Trackage Rights, 3341C.C.412......

Louisville & Nashville Railroad Company Discontinuance

of Trains Nos. 3 and 4 Between Atlanta, Ga., and

Evansville, Ind., and Trains Nos. 5 and 10 between

Evansville and St. Louis, Mo, (Finance Docket No.

26221, pending) PEP e Per ST rere Ct eee a ee ere 5

Missouri Pac. R. Co. -Controi-Chicago & ER. Co.,327

1.C.C. 279 (1965) sus. sub nom. Illinois Central Rail- ©

road Company v. United States, 263 F Supp. 421

(N.D. Ill. 1966), affd per curiam 385 U.S. 457 (1967).... 2,11

New Jersey v. New York, S. & W.R,Co.,372US.1 ...%. 10,

Saal 4, a TIE Mga oss ogc ve cc eh ces asaya fa.

: (ii) --

Porter v. Warner Co., 328 US. Eis civ: vee eh eer

Texas & N.O. R.R. v. Northside Ry., 276 US. 475°. ol ee

Miscellaneous | E ‘

104 Cong. Rec. 10842... .. Pe aete eClaes 63 i

104 Cong. Rec. 10851

Traffic World ......

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IN THE SUPREME COURT OF THE UNITED p sTATEs

OCTOBER 7 1970

‘No. 386.

UNITED STATES OF AMERICA and INTERSTATE COMMERCE

COMMISSION, Appellants,

v.

. CITY OF CHICAGO, et al., Appéllees..

‘No. 387

” UNITED STATES OF AMERICA and INTERSTATE COMMERCE

_ COMMISSION, Appellants,

ie v. eee:

TENNESSEE PUBLIC SERVICE COMMISSION, et al., Appellees.

we

No. 396

LOVIGVELLE AND NASHVILLE RAILROAD COMPANY, aniien

v.

TENNESSEE PUBLIC SERVICE COMMISSION, et al., Appellees, ©

~ No. 410

_ CHICAGO AND’ EASTERN ILLINOIS RAILROAD COMPANY,

Appellant,

. 4 v. ;

CITY OF CHICAGO, et al., Appellees.

ON APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS ,

MOTION TO AFFIRM

Pursuant to Rule 16(1)(c) of the Rules of this Court,

appellees City of Chicago, Tennessee Public Service Com-

mtission, The Metropolitan Government of Nashville and a

: Davidson County, Tennessee, Village of Milford, City-of .

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Watseka, City of Hoopeston, City of Danville, City of Terre

. Haute, City of Vincennes, City of Henderson; Indiana Public ©

Servica.Commission, Georgia Public Service Commission, -°

Alabama Public Service Commission, Mississippi Public Serv-

ice Commission, Kentucky Railroad Commission, State of

Louisiana, Public Utilities Commission of Ohio, ‘Railway-’

Labor Executives’ Association, Maurice F. Radrizzi (United.

Transportation Union), United Transport Service Employees

‘ (AFL-CIO), and National Association. of Railroad: PassengefS,

move that the judgment‘of the district court be affirmed.

STATEMENT

These are tae appeals from a final judgment of a three- .

judge district court, setting aside orders of the Interstate

Commerce Commission involving the “Georgian-Humming-

bird’ passenger train service of the Louisville & Nashville

Railroad Company (L&N),' remanding the proceedings to

the Commission, and reinstating the restraining order barring

discontinuance of the “Hummingbird”. 2 The judgment was

emered tipon reserved issues, together with: subsequent pro-

ceedings, following remand last term in City of Chicago v.

United States, 396 U.S. 162.3 .

'The appellant in No. 410, Chico & Eastern Illinois Railroad

Company, sold its Chicago, IIl.-Evansville, Ind. line to LAN on June

__ 5, 1969, as contemplated in Missouri Pac..R. Co. -Gontrol-Chicago &

'-E.LR. Co., 327 LCC. 279 (1965), affirmed sub.nom. Illinois Cen-

tral Railroad Company v. United States, 263 F. Supp: 421 (N.D. Ill.

. 1966), aff'd per curiam 385 U.S. 497 (1967). We are at a loss to explain

C&EI’s continued participation in this passenger train proceeding. -See

* also: Louisville & N.R. Co.-Pur.-Chicago & E.LR. Co., 334 LC.C. 273

(1968) and Louisville & N.R. ©.- -Trackage Rights, 334 LC.C. 412

. (1969).

2The “Hummingbird” was abruptly discontinued in mid-ran at

Birmingham, Ala., discharging its passengers. For an account of this

event, see the weekly 77 c World, Vol. ahs No. 3, at p. 45 —

18, 1969).

>The prior district court opinions are. reported at 294 F. Supp.”

1103, 1106. The instant order is not wy sags

emcn. 3 7

The judgment below involved two’ actions which were -

. consolidated. . The. appeals in Nos. 386°and 410. concern

the discontinuance by Chicago & Eastern Illinois Railroad

Company (C&EI) of its segment of the “Georgian” passen-

ger train. The, “Georgian” was jointly operated by C&EI

and L&N between Chicago, Ill. and Atlanta, Ga., C&EI ,

trdnsporting the train between C cago, Ill. and Evansville;

- Ind. (287 miles), and .L&N between the latter point and

Atlanta, Ga. (444 miles). The “Georgian” connects at Nash-

ville, Tenn. (159 miles below Evansville) with the “Humming-

bird’’, the latter ‘train being operated by L&N between.

Cincinnati, Ohio ‘and New Orleans, La. ‘Coaches and sleepers .

are transferred between the°two trains at Nashville. Thus _

passengers may board the “Georgian” at Chicago in the —

early evening and arrive the following morning at Birming-

ham,: Ala. on’ the “Hummingbird”, whereas passengers

destined for Atlanta, Ga. would continue on the “Georgian”.

C&EI filed a notice with the Commission that it would -

discontinue its segment of the ““Georgian”’ between Chicago,

lll. and Evansville, Ind. Notice was not served” ‘upon the

7 "Governors of Kentucky, Tennessee, Alabama or Georgia;

notice was not posted at stations south of Evansville, Ind.;

and the notice as posted specified only “Trains Nos. 93

& 54”, making no mention of the through-route nature of

the train. After hearings in Illinois and Indiana, the Com-

mission allowed discontinuance of C&EI’s segment by

’ report entered January 25, 1968. 331 LCC. 447. Certain _

protestants petitioned for reconsideration, maintaining that

. the carrier had not effectively-invoked the jurisdiction of

- the Commission. The Commission initially ruled in protes-

tants’ favor by dismissing the entire proceeding for failure.

of C&EI to effectively-invoke the Commission’s jurisdiction.

(App. A) ‘However, the .order on reconsideration, issued

May 15, 1968 at 9:30 a.m., was Teplaced by a so-called.

“corrected order’ served at 3:00 p.m. the same day. The >

“corrected order” denied reconsideration in .all tespects. _

(App. B) Plaintiffs instituted their action to set aside the

“Georgian” decision on May 27, 1968 in the court below.

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at. PIELER SEP 6 Loy 0B” AD LE gD Eta . j i

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‘The nai in ‘Nos. 387 and 396 vole the “Humming-

bird” train between Cincinnati, Ohio an New Orleans, La.

When C&EI was permitted by the Commission to discontinue

its Chicago- -Fvansville segment of oul “Georgian”, L&N

posted notice that 4t would discontinu¢ the “Hummingbird”,

stating to the Commission that the C&EI discontinuance re- _

sulted in the loss-of the bulk of the jee business on —

_ the “Hummingbird. 5

“On Balaaaiy 1, 1968, e Chicago and Eastern -

Iinois Railroad Company Macontinned its passen-

_ ger trains Nos. 93 and 54 /between Chicago, Illinois .

and Evansville, Indiana, which connected with the

L&N ‘passenger trains operating between Evansville,

. Indiana aiid Atlanta, Georgia. These latter trains

_* also carried passengers traveling between Chicago, |

Illinois, stations on the C&EI intermediate to Evans-

ville, Indiana and stations on the L&N served by Nos.

6 & -7 between New Orleans and Nashville, Tenn.

The discontinuance of said C&EI trains resulted in

the immediate loss of the bulk of the ‘passenger bus-

iness handled On trains Nos. 6 & 7 ‘between: _New

Orleans and Cincinnati.” 4

The Commission on September 3, 1968 entered its report

-allowing the discontinuance of the “Hummingbird” over its

tun between Cincinnati, Ohio. and New Orleans, La. *333

1.C.C. 720. The Commisison in its fecision took note of

the, then-pending judicial review. proceedings involving. C&EI’s

discontinuance of its segment of the ‘“Georgian”’, and stated

that developments in the *‘Georgian”’ case might change the.

picture for the““Hummingbird. ” (No. 387, J.S., pp. 32-33) --

Plaintiffs stituted an action. for judicial review of: the

“Hum ingbird”’ on September 6, 1968 in the court below,

and secured a restraining order. against discontinuance of the:

2 eee Rar

The “Georgian” sia “Hummingbird” preene were - both

argued together on November 4, 1968. The complete agency

records were lodged with the court at that argument. Plain- .-

- tiffs moved for’ summary judgment in the “Georgian” case;

hee

ee. °

7

‘Ind. and Atlanta, Ga. should have been posted, and each of

‘the Governors served with the notice. Plaintiffs argued for

- summary: remand of the “Hummingbird” on the face-of the

* *

cane yen

maintaining that all stations on the line between Evansville, cf

report, and requested consolidation. C&EI and L&N moved

for dismissal of both tare for lack of subject-matter

jufeationon. | : us

~ The. court: below dismissed both actions, expressly. reserv- Coin livre

ing decision on all other questions. The restraining order =.

against discontinuance of the “Hummingbird” was dissolved. aes

294 F. Supp, 1103,-1106.- This court reversed. City of :

Chicago v. United States, 396 U.S.°162.. During: the course

ofthe case here last term, L&N attempted. to discontinue

the remaining segments of the “Georgian’’.. In denying dis- + |

continuance, the Commission set forth’ the history of this Se

litigation. 336 I.C.€: 81. at 84-86. The Commission’ S Repent.

is set forth herein as Appendix C.' $ 1?

The court below found on remand. that i in the proceed-".

. ings before the Commission relating to the discontinuance.

of C&EI’s “Georgian” trains the publicdid not receive ade-

quate notice from the railroads or of the Commission pro-

ceedings; and, further, although the residents of. the area.

south of Evansville, Ind. were vitally interested-in-con-

_.. tinued through passenger service by. the failroads and the

respective governors of those States were entitled to not-

.ice of the proceedings before the Commission, no notice -

_ - was given them beforehand. (No. 386, J.S., p. 15) The.

interrelated proceedings were consolidated, and. remanded |

. to the Commission. ‘The status. quo which existed on eee? a |

September 6, 1968 was ordered restored, and the “Hum-

mingbird”’ réstraining order. was reinstated. A stay of the -

"order reinstating the “Hummingbird” was requested by

4The Commission’s order required continued operation for a-period

+ of six,months from December 3, 1969, or to and including June 3,

* _ 1970. L&N on June 4, 1970, filed a new. section 13a(1) notice, and

the Commission has instituted a new investigation. Finance Docket

No..26221. A decision is anticipated on or about November 6, 1970,

when the interim four-month contifuance order will expire. Public

Ft

heacinge were concluded — 14, 1210 1 at Atlanta, Ga. : Xf