# Appendix — United States v. City of Chicago > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1464%3A05 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1970 - **Citation:** 400 U.S. 8 ## Text ' 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 * 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 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 : - ~ 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. . 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 } 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. — ef ° m 9) . a 4 a ~ rr * « . * + 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 . . . . ‘ eG ie emer Tas vio ME oe ee ath ay nt . . : *. © ’ P ; 3 5 ° - ° P e eet eee 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. > at. PIELER SEP 6 Loy 0B” AD LE gD Eta . j i . *. Se - / 7 “fs ‘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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1464%3A05. Public record. Not legal advice.