Motion to Affirm — United States v. City of Chicago

~

*

*

L&N ’nd by the Commission, whiGi was granted by -

this Court on April 3, 1970, Mr. Justice — dissent-

ing. These appeals followed.

_ » ARGUMENT

These! appeals present no issue warranting plenary con-

". sidératioh by. the Court, as the questions are manifestly ©

=

unsubstantial. The Government ‘expressly concedes that

ifs separate appeal from the “Hummingbird” portion

judgment ‘may not warrant plenary review.

(No. 387, J.S.; pp. 6-7)* -L&N’s claim that the order rein-

stating the “Hummingbird” lacks “findings” and is a man-

datory_injunction, ignores the findings of the opinion itself, . ---

as well as LAN’s pledge to restore the train ‘if plaintiffs were —

successful in their appeals last term. (No. 386, J.S., pp. 13-

_ 15)® The carsier’s further contention that the federal judi-

’ cidry lacks power to grant injunctive’ relief in ‘fp

discontinuance cases is without merit.’

e*--oreorrrr—

*The Govertiment’s contention that the

tinuance is justified apart from the “Georgian” (No. 387, J.S., pp.

5-6), is simply at variance with the face of the "s decision

in the “Hummingbird” case, (No. 387, J:S., pp. 32-33), as well as

contrary Lo the express interrelationship ndted by the agency in its

“Georgian” report. (No. 386, J.S., p. 27) See also Appendix C here- .

to, 336 LC.C.'at 84-86. Moreover, the Government in the court below.

did not oppose plaintiffs’ request in January, 1970, for summary

). remand of the “"Hummingbird” in thé event remand was granted for

_s the “Georgian.”

*A party taking acjion in the face of and with knowledge of re-

_ quests for injunctive aelief is subject later to. restoration of the status

~ quo. Texas & N.O. v. Northside Ry., 276 US. 475,479; Porter -

_ 9» Lee, 328 US. 246, 251; Porter v, Warner Co., 328 US. 395, 399.

” Moreover although the court need not make findings in summary

paatea ‘proceedings, F.R. Civ. P-52(a), it did so here.

"LAN analogizes section 13a(1) with section 15(7) of the Inter-

state Commerce Act, 49 U.S.C. 13a(1), 45(7), citing Arrow Transp.»

CG». v. Southern Ry., 372 US. 658. ° , Arrow is strictly con-

fined to the peculiar legislative history behind the freight rate suspen- :

sion power. It applies to no other statute. 372 US. at 666, fn. 13.

Moreover, ee ne ae the entry

of an agency order on the merits: Here, the C&EI and LAN orders

.

a

C&EI's discontinuance of its portion of the “Georgian”

. train, which portion originated in Chicago and operated in

the States of Illinois and Indiana, is the heart of the mat-

ter; for in eliminating access to and from Chicago, the basic

railroad paséenger structure in the Southeast - embracing ?

also the States of Missouri, Kentucky, Tennessee, Ohio

Alabama, Georgia, Mississippi, and Louisiana-has virtually

1. The Government's contention that the Commission

may properly allow one railroad, tran$porting a train’ in

through service with another railroad, to separately invoke

the provisions of section 13a(1) without giving notice to the

public in the area Served by the entire run‘of thegtrain, is

contrary to the statute and contrary to elementary. fairness.*

The Government asserts that the statutory scheme of sec-

tion 13a, by providing a railroad with the option of having

the Commission, rather than the State agencies, pass upon

discontinuance proposals, suggests that the Commission

should replace State agencies only to the extent that they _

' could have defeated a carrier's attempt to discontinue a -

train. Accordingly, since C&EI could have proceeded uni-

laterally to the Illinois and Indiana agencies, the Government

urges that there should be no requirement in section 13a(1)

as to notice in States which had no regulatory powet over

| C&EL (No. 386, J.S., pp. 7-8)

The Commission’s construction of the statute is unsettled

and of recent origin. The C&EI decision constituted the

first final order of the Commission on the point.” More-

were both administratively final in every sensé.. There is nothing in

the legislative history of Section 13a to suggest a limitation on the at

judiciary. Congress was concerned with limiting the Commission's

interim relief to a maximum four month period. .

' *A number of complaints were filed with the Commission by

residents in the South who had ré@teived no notice of the C&EI.

_ discontinuance. See Appendix to Nos. 101 & 102, Oct. Term, 1969,.

at pp. 82-87.

%A different three-judge panel in the Northern District of Jilinois,

on June 4, 1970, set aside the Commission's piecemeal and disjointed

handling of the “California Zephyr”, operated by three railroads be-

>

wy

over, where a single railroad secks to discontinue only a

portion of a passenger ‘run, the agency has ruled that all

stations and Governors over the run must be given notice,

even that segment of the operation not proposed for dis-

contindance. Chicago,-M.; St. P. & P.R.R. Co. Discontin-

tuance of Trains, 317 1.C.C. 761, 771-73.

The basic premise of the Government is contradicted by

the legislative purpose and statutory language, One of the

principal evils to which section 13a was directed was “the

prior confused and time-consuming procedure under which

the States supervised the discontinuance of passenger trains.”

City of Chicago v. United States. 396 U.S. at 164-05. *Piece-

meal ‘discontinuances by State agencies were of primary

voncem to the Congress. Senator Bricker, one of the floor

icaders, stated: a

“Mr. Bricker: Confusion arises when a railroad has,

let-us say, four trains running between-Columbus, -

Ohio, and Indianapolis, Ind. Ohio might permit the

railroad to take off | train, running-at 10 a.m. and

Indiana might permit the railroad to take off | train

running at 2 p.m. Buf’in that event the railroad

would have to continue the operation of all of them

‘in order to: meet the requirements of the local and

State groups. That situation has led to interminable

delay and confusion which would be relieved as a

result’ of enactment of the pending bill in that then

“the railroads would appeal to the Interstate Com-

merce Commission.” (104 Cong: Rec. 10842)

Senator Smathers stated: : a

.

.

"+

Perens,

oa

“Mr, Smathers: What happens? The Public Utilities.

Commission of New York will approve the discon-

“~tinuance of trains numbered 1, 6 and 12. The Public

Utilities Commission of Pennsylvania will approve

the discontinuance of tfains numbered 2; 9, and 13.

_ tween Chicago, Ill. and San Francisco, Calif. The Commission and

the United States have noticed appeals to this Court. from that

decision. Nos. 70 C 585 & 689, City of Chicago v, United States

(Kerner, CJ., Will and Parsons, DJJ.).

-®

4

| .

s ee Page

’ ‘The Public Utilifies Commission of Delaware will ap-

- prove the discontinuance of trains numbered 16, 19,

and 8. They are never the same trains; with the result

that, while the record of the, public utilities commission

is pretty good with respect to the number of appli-

cations they have granted, those trains are still

‘operating. Why? Because the railroad cannot get

the public utilities commissions to agree on the same

trains.” (104 Cong. Rec. 10851) :

The Commission's construction of section 1 3a(1) would

comtinue, at the federal: level, the very same segmented

evaluation of passenger trains which Congress. sought to

avoid by enactment of the legislation. Yet the National

Transportation Policy is difected “all to the end of. de-

veloping, coordinating, and preserving a national trans-

portation system by water, highway, and rail .. . adequate

to meet the needs‘of the commerce ot the United States,

of the Postal Service, and of the national defense.” 49

U.S.C. preceding section |. Accordingly, the Contmission

is mandated to examine the overall national interest in

coordinated service.” It cannot close ‘its eyes to the com-

plete train service, and serve as a mere substitute for an *

individual State agency. This court has emphasized that

a federaJ standard applies to interstate train discontin- p

‘uances. City of Chicago v. United States, 396 U.S..at 165.

The language of section 13a(1) is consistent with the

legislative purpose of having the Commission examine the

overall public public interest in passenger service, which

overall view must embrace notice to, and the testimony

of the affected public. A three-judge court recently

struck down the Commission’s interpretation of the

_ Statutory language of Section 13a(1) on this point:

“The Interstate Commerce Commission and the de-

fendants interpret Section 13a(1) as only requiring

each individual railroad to notify the Governors of

_ the states in which it operates and each railroad may. .

proceed under Section 1|3a(1) independently of the

‘ Other railroads which together make up an entire

train. Southern Pacific Co. Discontinuance of Trains-

Y hae

‘Ogden, Utah, and Oakland, California, 333 1.C.C. 525

(1968). The Commission’s interpretation is based on

the concept that “train’’ as used in Section | 3a(1) ‘means.

one that is operated by one railroad between two or

more states. It is our gpinion that such interpretation

is in direct Conflict with the literal language of the stat-

ute. .

“The statute begins “A carrier or carriers . . . (whose)

_ ++» Fights with respect to the discontinuance .. . of

the Operation . . . of any (interstate) train . . . are sub-

ject (© any provision of the constjtution or statutes of

any State... may... file with the Commission and ©

. mail to the Governor of each State in which such

train is operated .. .”” The logical reading of this stat-

ute is that more than one carrier can be a Part of a

single “train”’, otherwise the plural “carriers” would. ~

have no meaning. The Commission claims that such

interpretation negates the policies behind the Trans-" -

‘portation Act of 1958 in enacting Section 13a(1). Sec-

tion | 3a(1) was enacted in order that railroads would

no longer have to obtain separate permission from each

state regulatory agency in seeking to discontinue passen-

ger trains and thereby avoid both the lack of uniformity

and the long delay involved in such a procedure. The, *

purpose of Section | 3a(1) was to shift the venue from

the state regulatory agencies to the Interstate Commerce >

- Commission and at the same time permit the statesin- . ~~

volved to present their objections to the Commission.

See New Jersey v. New York, Susquehanna & Western

Railroad Co.. 372 U.S. 1 (1963).” City of Chicago vy.

United States (No. 70 C 585 & 689, N.D. IIL-E »:,

6/4/70).

We agree with the Gansta that section 13a(1) is an

optional statute. Section 13a(1) does not directly pre-empt

State jurisdiction. A railroad’ has the option of proceeding

to the States rather than to the Commissidn. But the mere

fact that section 13a(1) is an optional statute does not mean

that the federal agency is simply to act in the stead of the

State authority. A railroad electing the greatly expedited

federal procedure must comply with federal standards and.

with federal criteria. If C&EI wishes to enjoy the rapid and

expedited federal procedures, then notice must be given to

the public and to all Governors in the areas served by the

train. '° | »

The court below correctlysheld that the notice given did’

not comply with the statutory requirements.

2. The district court took note of the action of, the

~ Commission in awarding C&EI’s Chicago-Evansville line to

‘L&N, rather than to Illinois Central Railroad Company, one

of the important considerations in the Commission’s deter-

mination being the anticipated maintenance afd improve-

ment of through passenger service between Chicago. and the

South via the C&EI and L&N routes. (No. 386, J.S., p. 14) -

That decision, sustained by the Supreme Court, provides an

’ indépendent basjs for affirming the judgment below. See:

Missouri Pac. R. Co. -Control-Chicago & E.R. Co., 327 L.C.C..

279 at 298, 301, 332, 338, 361-62; Illinois Central Railroad

Company v. United States, 263 F.Supp. 421, aff'd 385 U.S.

457 (1967); and 336 LC.C. 81 at 84-86, attached he-eto as

Appendix C, at pp. 4-6.

L&N, having acquired C&EI’s Evansville line, is respon-

sible for the passenger service findings relied upon by

the Commission in awarding the line to it. Yet after

securing approval in January; 1967, the carrier in June,

1967 commenced Commission proceedihgs aimed at ter-

mination of the “Georgina-Hummingbird”™ service. 336 ©

LCC 81 at 84-86 (App. C, pp. 4-6).

MOCREI, Gictn its jurisdictional statement, assails the decision

below for failure to specify the line or lines of route over which no-

tices should be posted in the remanded proceedings. The contention

is without merit since by consolidating the proceedings, the complete ~

“Georgian” and “Hummingbird” routes would be before’ the Commis-

‘sion. Moreover, L&N’s acquisition of the C&EI properties in June,

1969, renders unnecessary any separate C&EI notice. As noted, fn. 1,

supra, we today fai to understand any C&El. interest in these

proceedings.

.

a

.

:

SERS ® Vo eer lt

—e

a

ye,

; 12

‘ ‘CONCLUSION. ba

For the reasons stated, we submit that the halieeak: of

the district court should be affirmed.

| Respectfully ‘submitted,,

_* RICHARD L. CURRY ; °

BERNARD RANE P ®

MA GOLDSTEIN

511 City Hall Building

Chicago, i. 60602

Z ? EUGENE W. WARD

e Cordell Hull Building

. Nashville, Tenn. 37219

* Of Counsel: _. . © CHARLES E. GRIFFITH I

ROBERT E. KENDRICK

204 Metropolitan Court-

-house Building

“Nashvilje, Tenn. 37201

EDWARD J. HICKEY, Jr.

MATHIAS M. MATTERN

511 City Hall Building ,

Chicago, il. 60602

J. KENNETH @TKING

Cordeit Hull Building 5

Nashville, Tenn. 37219 gry thes aimee 3

WENODELL w. a tal Washington, 0.C. 20005

MARION E. WRIGHT, RTH

106 N. Vermilion Street waaucet as Seah. de

Danville, I. 61832 JOHN W. HINCHEY

KEITH E. ROBERTS : 132 State Judicial Building ‘

120 S. LaSalle Street Atlanta, Ga. 30334 : -

Chicago, WI. 60603 “" WELDON A. COUSINS 5

ANTHONY HASWELL “ 737 National Bank of Commerce Bids. s \

2517 N. Burling New Orleans, La. 70112

_ Chicago, 1. 60614 CHESTER L. RIGSBY

WILLIAM E. NELSON State Office Buliding

Dyer Buliding Frankfort, Ky. 40601

Hoopeston, ill. 60942 LEON M. DESPRES

GEORGE 8. TOFAUTE | 77 W. Washington : ae

17 Harding Avenue Chicago, Il. 60602

Terre Haute, Ird. 47801 GORDON P, MacDOUGALL ,

ROBERT P. DOOLITTLE, Jr.- F 705 Ring Building

801 Busseron Street . Washington, 0.C. 20036

Vincennes, ind. 47591 * a : '

HENRY C. NEEL y

Farm Credit Buliding Attorneys fe or Ap, pe lees

Henderson, Ky.

WILLIAM F. BLACK :

CARL lL. EVANS ; ; ‘ °

State Office Building 4

Mofritgomery, Ala. 36102

CARL E. VanDORN

807 State Office Building

indianapolis, ind. 46204

BENNETT E. SMITH ;

_ State Office Bidg. - Rm. 1105 : . ne

Jackson, Miss. 39201 ’ »

SHELDON A. TAFT a, % ,

GERALD P. WADKOWSKI +.

111 N. High Street re , -

Columbus, Ohio 43215

August 1970.

aes

APPENDIX A SERVICE DATE

: . | MAY 15; 1968

- ORDER

At a Sestion of the INTERSTATE COMMERCE COM-

MISSION, Division 3, acting as an Appellate Division,

held at its office in is ccna D. C., on the 8th day

+e May, 1968.

’ Finance Docket No. 24725

CHICAGO & EASTERN ILLINOIS RAILROAD Co.

DISCONTINUANCE OF TRAINS NOS. 93 AND $4 BE-

TWEEN CHICAGO, I&L., AND EVANSVILLE, IND.

Upon consideration of the record in the above-titled

proceedings, including the petition filed by the Cities of

Chicago, Danville, Hoopeston, Terre Hau@e, Vincennes, and

Watseka and the Village of Milford, on March 1, 1968, for’

reconsideration of the order of the Commission, Division 3,

dated January 25, 1968, authorizing the above- titled discon-

’ tinuance; applicant’ s reply thereto; petitioners’ motion to

strike certain matter appearing in the reply; and — s

reply to the’ motion; and ee .

It appearing, That the matters appearing in the reply to

the petition objected fo in the motion to strike are not of

record in this proceeding and therefore not 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 jurisdic-

_ tion of this Commission under section 13a(1) of the Inter-.

state Commerce Act a.carrier must comply with: certain

requirements, including the posting of notice “in each,

station, depot, or other facility involved” (49 CFR 43. 5(j)),

which notice must contain a “complete description of the

present service of the train . . involved and of the discon-

tinuance or change of operation or service proposed” (49

CFR 43.5(c)); and that the purpose of requiring such notice

is to give the travelling public affected the opportunity to

protest the proposed discontinuance; and

A. 2

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

proceeding failed to give .the proper notice required, as -

described above, in that“ffio notice was posted in those faci-

lities along the through route of trains Nos. 93 and-54 south

of Evansville, Ind., and the notice as posted contained no

mention of the through-route nature of ‘the trains south of

Evansville; and that applicant therefore tras not effectively

invoked the jurisdiction of this c ommission in the above-

titled proceeding: .

- It is ordered, That the motion to strike certain matters

appearing in applicant's, reply. to the petition for reconsider-

"ation be, and it is hereby, granted: ae

It is further ordered, That the petition, insofar as it seeks

dismissal of the above-titled proceeding for, failure to iNvoke

this Commission's jurisdiction under section | 3a(1), be, and |

it is here by. granted, and in all other respects is denieds or

By the € ‘ommission, tides 3, acting as an Appellate

Division. . : +

it NEIL GARSON,

Secretary

(SEAL)

ee

a SERVICE DATE

; . MAY 15, 196%

APPENDIX B- on dee

2

At a Session ‘of the INTERSTATE. COMMERCE COM-

MISSION, Division 3, acting as an Appellate Division,

held at its office in waeneon, D.C, on the %th day

of May, 1968. velet

Finance Docket No. 24725. -

CHICAGO & EASTERN ILLINOIS RAILROAD CO. -

DISCONTINUANCE OF TRAINS NOS. 93 AND 54 BE-

TWEEN CHICAGO, ILL., AND EVANSVILLE, IND:

Upon consideration of the record in the above-titled

proceedings, including the petition filed by the Cities of.

Chicago, Danville, Hoopeston, Terre Haute, Vincennes, and

Watseka andthe Village of Milford, on March 1, 196%, for

reconsideration’ of the order of the Commission, Division 3.

dated January 25, 196%, authorizing the above-titled discon- |

tinuance; applicant’s reply thereto; petitioners’ motion to

strike certain matter appearing Fin the re reply; and sonceaecs S

reply to thé motion, ‘and :

Ht appearing, That the arder of the Conimission, Division

3, acting as an Appellate: Division, dated May %, 1968, and

‘served earlier on May 15, 1968, erroneously indicated that

the Commission had granted - the _petition insofar as it sought

dismissal of the above-titled ‘proceeding for failure. to

properly invoke this patauameaces. S jurisdiction under section™ -

13a(1);, Tea ee

It farther appearing, , That the matters appearing in the

reply to the petition objected to in the motion to strike are

not of record in this proceeding and therefore not: properly

‘ ‘before this Commission as evidence and that no objection | is

made to the motion to strike; -

a: further appearing, That in order to invoke the jurisdic- .

tion Of this Commission under section 13a(1) of the Inter- -

state Commerce Act a carrier must comply. with certain’

PAN INES) TRON Ae

oT, iy B2 | fi

Tequirements, including the posting of notice “in pg

station, depot, or other facility involved” (49 CFR 43. oe

which notice must contain a “complete description of the .

"present service of the train . ... involved and ofthe discon- . ™,

; tinuance or change of operation. or service proposed” (49 ~ "Se

' CFR 43. 5(c)); and. that the purpose of requiring such. notice

is to give the travelling: public affected the = to :

protest the proposed discontinuance. anaes

Tit further appearing, ‘That applitant in the above: titled

proceeding gave the proper notice required, as described.

». above;, and | ren Vata soe ean

It further appearing. That’ no other new issues are raised

or I Surer a of substance offered to support the request for

reconsideration, and good cause has not been shown for -

granting the relief requested:

It is ordered, That the motion to strike certain matters

‘appearing in applicant’s feply to the petition for reconsider-

ation be, and it is hereby, granted;

e, Itis further ordered, That the petition for reconsideration

- be, and it is hereby, denied in all respects.

By the Commission, Division 3; — as ap Appellate

Division.

*H. NEIL poe

~ Secretary

(SEAL),

5

RO AES i SORES,

de . Served December 12, 1969 «*

dureene eaten: se tones :

INTERSTATE COMMERCE COMMISSION |

a FINANCE DOCKET No. 25765.

LOUISVILLE. AND: NASHVILLE RAILROAD COMPANY DISCON- |

_, TINUANCE OF. TRAINS: NOS. '3.AND 4 BETWEEN ATLANTA,

GA., AND EVANSVILLE, IND.,-AND’ TRAINS NOS. 5 AND 10

BETWEEN FVANSVILLE AND ST. LOUIS, MO.

‘

»

Decided December 3.1969 —

}

. ? ‘ ; e °

on, Upapinvestigation, found that continuance of operation by the Louisville

* and Nashville Railroad Company of service by its passenger trains Cg

Nos. and 4 between Atlanta, Ga., and Evansville, Ind., and its pas-

Senger ‘trains ‘Nos. 5 and 10 between Evansville, Ind., and St. Louis,

Mo., is required by the public convenience and necessity and con-

tinued operation will not unduly burden interstate commerce, Opera-

tion ordered. for a period of 6 months from the. date heregf, Investiga-

‘tion discontinued. : : _

‘F. Wesley Bowers; Clifford T. Coomes, Tyree B. Harris, Joseph

L.Lenthan, W. Rhett Tanner, and Ralph D. Walker for LouisviNe - -

and Nashville Railroad Company. . a2 Koad me

_d. Fred Parker for Georgia Public Service Conimission, Carl F.

Van Dorn for State of Indiana, and Eugene W. Ward for Tennessee

Public Service Commission, protestants? — Soe. SS Vint

David L. Stanley for city of Carmi, Ill.,\ Bernard Rane, Raymond

F. Simon and Mathias M. Mqttern for city of Chicago, IIl., Demetri --

Hassakis for city of Mt. Vernon, Ill., Robert S. Matthews for city

of Evansville, Ind., and- Albert W. McCallister for village of En-

field and county of White, Ill., protestants. ste ;

Gordon. P: MacDougall for passenger association, protestant. hla

W. E. Cobble, Gordon E.. Coz, ‘S. G. Davenport, B. L. Dresbach,

Thomas J.Duggan, L. G. Freeman, Joe Hester, Richard H. Kraus.

haar, George B. Lee, Tom McNeal, Maurice F. Radriz2i, Robert Fr’

Reynolds, Mack P, Rice, Henry Risner, Keith. Roberts, D..M. .

‘Schmitt, W. R« Selby, George P. Sheahan, A. L. Shepherd, Harry.

T. Smith, J. He Smith, W.C. Spencer and G. |. Winn, Jr., for rail- ~

way labor organizations, protestants. a Rie.

336 I.C.C, Roe Peay pad dar & a}

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a ed o- . of 7 * “ ’

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sp INTERSTATE COMMERCE COMMISSION REPORTS

. ‘ dl

2 ‘|

REPORT OF TH® COMMISSION *

-~

*

Divigion 3, COMMISSIONER'S TUGGLE, DEASON, AND-HARDIN —

ns .

HARDIN, Commissioner: !

‘On July 9,. 1969, Louisville and Nashville Railroad Company.

(L&N), a common Carrier by railroad sub ject to the provisions of

part I of the Interstate Commerce Act, filed two separate notices

and a single supporting statement pursuant. to the provisions ie

section -13a(k) of the “act proposing to discontinue operati

August 13, 1969, of its (1) passenger trains Nos. 3 and 4 be een

Atlanta, Ga., and Evansville, Ind., a distance of 444 miles, and,

(2) passengers traips Nos. 5 and 10 between Evansville and St.

Louis, Mo., a distance of 165 miles, or a total distawce of 609

miles. ©

Upon, consideration thereof and of a petition filed July 25, 1969,

by the National Association of Railroad Passengers (NARP), re-.

questing the carrier’s notice be re jected for lack of jurisdiction,’

and protests filed by the association, various tommunities, thdivi-

uals, labor organizations and State regulatory agencies, the’Com-

mission, division 3, by order entered July 30, 1969, instituted an _

investigation of the proposal embracing the issues "raised by the

petitioh, and ordered continued operation of the train¥tor a period

not to exceed 4 months beyond the date when the. proposed discon-

‘tinuance would. otherwise become effective. Because of the statu-

tory limitation upon the time available for investigation and deci--

sion, the order provided that hearings would be held, for the omis-

sion of a report and recommended order by the hearing examiner,

and for certification of the record t6 us for inftial decision. Pur-

- guant to a later order, duly posted in stations served by the trains, .

public hearings were held at St. Louis, Carmi, Ill., Evansville, |

Hopkinsville, Ky., Nashville and “Chattanooga, Tenti., and Dalton,

and Atlanta, Ga., between September 24 and October ve 1969,

inclusive. Briefs.have been filed. 7

As previously indi ted, NARP in its petition requests rejection .

of the notices filed by L&N on the grounds that the carrier failed

effectively to invoke the Commission’s jurisdiction pursuant to :

section 13a(1) of the act in that the wording of the certificate of

posting does’not indicate whether both notices, i.e., the notice con-

cerfing trains Nos, 3 and 4,‘and the notice concerning trains Nos.

5 and 10, were in fact posted at all stations served by the trains

‘ between St.- Louis*and Atidnta, that neither notice sets forth the

’

= 336 LCL.

= 2 7 -< of

‘wee . os

¢?

__ ‘ : WMC 23 i Sa . -

LOUISVILLE & N. R. CO. DISCONTINUANCE OF TRAINS." 83

fact that the subject trains Nos. 3-5 and 4-10 are single trairis

_ -bétween Atlanta and ‘St. Louis, that. L&N has split its trains into

two sections for the purpose of giving notice, and that even if both -

notices were in-fact posted at’all: Stations between St. Louis and

_* Atlanta, ‘sectéin 13a(1) is not invoked because the trains to be. .

_ discontinued-are not set forth in the notice. Tt ‘rehews its request

‘on. brief filed jointly with other protestants, Protestants further

. contend that at no place.on either of the L&N. notices do trains Nos.

3*§ nor 4-10 appear and that neither notice, by itself, lists all of

the statiofis which would-be affected by the discontinuance of, trains

Nos. 3-5 and 4-10.- Protestants renew the challenge of service of -

notice upon the. States on the ground that thé affidavit of service

States only that an individual ‘‘caused’’ service by mail and that

the use of the word ‘“‘caused’’ wars criticized by the Commission in

a recent decision and the carrier warned that in the future strict

compliance with the provisions for proper service: would be re-

quired, THe record, however, shows that L&N has properly

invoked the _ Commission’s Spistectiin under section 13a(1)

of the act in that service: Was properly effected and that both -

notices were Properly pqsted ,at all stations served by -the

_ Subject. trains. Each notice lists‘ the stations served by the —

“set of trains to which it principally appliéd and sets forth in clear

and unambiguous language the fact that one set of trains connects

with the other, and, furthér, that the sub ject trains are in fact four’

trains‘as published in the carrier’s schedules two of 7 connect

at Evansville with the’ other two to permit the performance of a

through service between St. Louis and Atlanta. The petition is

denied, | eee os <i

Protestants’ contend that, since discontinuance of the trains, |

which are the last L&N passenger trains into and out of St. Louis, ,

ae would involve an-abandonment of operations over certain facilities

used solely for passenger trains, discontinuance of the trains may

a, not, be ‘allowed absent“ Pproval under sections 1(18)-1(22) of the 3

act. While L&N could well have submitted such an application

concurrently with its notices filed herein, its determinationnot to _ .

do so at this time does not prejudice our action herein.

' Protestants also argue on brief that a rehearing is requiréy on

the grounds of prejudicial’ error because the presiding hearing

examiner (1) erred in not informing the parties at the Evansville

hearing of their right to file a brief on a date 3 weeks from the

final hearing date, (2) erred in refusing to permit cross-examina-

tion of certain L&N witnesses at Nashville and Atlanta hearings on

486 1.C.C. * aise eo” oe

haa soe ¢. 4 = , @;

84 INFERSTATE COMMERCE COMMISSION REPORTS

the ground a prior request had not been made, (3) erred in receiv-

ing in evidence three L&N ‘‘rebuttal”’ exhibits not responsive to. any

‘ Opposition testimony, and that permitting such ‘‘rebuttal’’ testi- .

mony at Chattanooga deprived labor of the. right to cross-examine

effectively an important part of L&N’s: ‘case, and (4) erred ip sus-

; taining objections at the Chattanooga hearing tending to show that -

@L&N had a preconceived plan to withhold direct testimony concern- ¢

ing ,the role of passenger train service to industrial development

until such community ‘witnesses had beeh’heard. The record’ OWS

that the presiding ‘hearing examiner, shortly after the opening of

the hearing at St, Louis, advised all parties present that briefs

may be filed about 3 weeks after the final date of. hearings and that

the date for filing of briefs would be fixed on the final day of hear-

ing. The date for. filing of briefs 3 weeks hence was announced on

the last day,of hearing at Atlanta, Noparty was prejudiced by such ~

action. The record Shows that the rebuttal evidence offered while -

in some ‘respects may be interpreted as exceeding the limitations ~

of proper rebuttal is not such as would warrant our reversal of the

ruling of the examiner and preclude its consideration by us in eo

determination of the issues involved. Our order spécifying

procedure to be followed in the presentation of evidence did pro~ :

vide the presiding hearing examiner with considerable latitude in

the conduct of the hearing, The ruling with respect to the request a

to cross-examine certain witnesses at Nashville and Atlanta on the

ground that a prior request had not been made was proper, within

the purview of our order, and ‘was not’ pre judicial to the parties,

-Background,— The L&N system operates as a north and south

railroad, south from Cincinnati, Ohio, to Atlanta; southfrom Cin-

cinnati to Louisville, Ky., Nashville, Tenn.,- New Orleans, La.,

Pensacola and Chattahoochee, Fla., and intermediate points; south.

+ from Chicago, Ill., to Evansville, Nashville,and Atlanta, and inter-

mediate .points; and north from Atlanta to Chattanooga, Nashville

and Memphis, Evansville and St., Louis, serving ere

points.

Trains Nos. 3 and 4 were formerly nymbered Nos. 93 and 54

(between Evansville and Atlanta) and.trains Nos. 5 and 10 were’

formerly numbered Nos. 53 and 92 (between St. Louis and Nash-

ville), In October 1967, the current numbers were adopted asa _

part of systemwide numbering of L&N trains. Nochange in serv-

ice resulted from that change of numbers. Trains Nos. 5 and 10 —

are shown separately from trains Nos. 3 and 4 because of a prior

requirement in Louisville & N. R. Co. Discontinuance of Trains,

336 I.C. Ce

Sc

i395; ire ;

Loursviigiba N. R. CO. DISCONTINUANCE OF TRAINS” . | 85 g. <

331 I,C.C."203, that L&N continue the operation of trains Nos. 53

; and 92 between St. Louis and Evansville for a period of 1 year from f “

" "November 22, 1967.. °.. 3 Cee os

. L&N, in conjunction with Chicago & Eastern Illi ois Railroad

Company (C&EI), formerly maintained coordinat 1 “‘Georgian-

_, Hummingbird’’ passenger train service connecting Chicago, Cin-

‘cinnati, and St. Louis with a.number of southeas@rn United States

points, One segment of the ‘‘Georgian’’ operated between Chicago

and Evansville (trains Nos. 93 and 54) over,the C&E! with C&EI

engines arid traincrews and at. the latter point L&N engines and

crews were substituted. The ‘‘Georgian” continued ag-an-L&N ’

train between Evansville and Nashville, where somg’ cars were’, <

transferred to the ‘‘Hummingbird’’ train, the latter train originat-

ing at Cincinnati and scheduled to arrive Nashville concurrently -

with the “Georgian.” At Nashville cars destined to Atlanta were

switched from the “Hummingbird”? to the ‘*Georgian’’ and cars

‘ destined to Montgomery and Mobile, Ala., were switched from the

““Georgian’’ to the “Hummingbird.” The St. Louis segment of the

“‘Georgian’’ operated (trains Nos. 92 and 53) over L&N between

St. Louis and Nashville, via Evansville, where its equipment was

added to the “*Georgian’’ and where passengers could also transfer

to the “‘Hummingbird.’’ After such switching at Nashville, ‘the -

‘ “Georgian” went on to Atlanta, and the “‘Hummingbird’’ went south

to Birmingham, Montgomery and Mobile, Ala., and New Orleans,

La. Those trains provided complete sleepingand dining facilities.

_ In Missouri Pac. R. €o.—Control—Chicago & -E.I.R. Co., 327

1.C,C, 279 (1965), sustained sub nom.. Illinois Central Railroad

, Company v. United States, 263_F, Supp. 421, affirmed per curtem———-—

385 U.S, 457 (1967), C&EI’s Chicago-Evansville line was awarded is

- to L&N rather than Illinois Central, onef the important considera-

‘tions in the Commission’s determination being the anticipated -

maintenance and improvement of through passenger seryice be-

tween Chicago and the South via the C&EI and L&N route. L&N

and C&EI were directed to complete negotiations for the line

within 1 year from February 7, 1967. a ae

On June 28, 1967, L&N filed a notice under section 13a(1) of the

act to discontinue the St. Louis segment of the ‘‘Georgian’”® trains

between St. Louis and Nashville andinLouisville & N.R. Co. Dis-

continuance df Trains, supra, tMe trains (Nos, 92 and 53) were

ordered continued between St. Louis and Evangville andpermitted -. «

to be discontinued between Evansville and Nashville, - On August 31,

1967, however, C&EI filed a’ notice under section 13a(1) proposing ~~

336 I.C.C, ? : ms ,

- , oy i 6 = ah * “27. — a

che vs INTERSTATE COMMERCE a REPORTS, - ™ i

to discontinue the Chicago-Evansville segment of the “Georgian”

trains (C&EI-L&N trains Nos. 93 4nd 54); andin Chicago & E.I.R:

Co. Discontinuance of Trains, 331 1,C,C, 447, served January 31, .

1968, the trains were permitted to be discontinued. - Asa regult

' of those proceedings the “Georgian’’ trains originated at Evans- ©

ville instead of Chicago with the connecting segment between St.

Louis and Evansville. A ‘few days later,on February 3, 1968, L&N

: removed ‘all sleepjng and dining facilities from the Evansville- *

Atlanta segment of the “Georgian’”’ trains. Subsequent, to discon- .

tinuance by C&EI of the Chicago-Evansville segment of the ““Geor-

gian’”’ trains,\L&N sought,reopening and reconsideration of the.

_ proceeding involving the St. Louis segment of the ‘‘Georgian’’

trains in Louisville & N. R. Co. Discontinuance of Trains, supra,

but the further hearings scheduled were canceled at L&N’s re-

quest. L&N also filed a notice under section 13a(1) of the act to’

discontinue the connecting — “Hummingbird” trains (Nos. 6 and 7) ”

over the route between’ Cincianati and New. Orleans predicating

loss of passenger business on its trains from discontinuance of

the traing by C&EI, .On May 15, 1968, ‘a petition’ by protestarits

for reconsideration of action taken inChicago& E.I.R. Co.. Discon--

tinuance of Trains, supra, was denied.’ Court review of our action

' therein was instituted by the city of Chicago and others, -protes-.

. fants, on May 27, 1968, On September 6, 1968, in Louisville & N.R.

“Co. Discontinuance of Trains, 3331.0.C,720, discontinuance of the

“‘Hummingbird”’ trains was permitted. That action was tempo- —

rarily restrained and on ‘January 8; 1969, in City of Chicago Vv. -:

United States, 294 F, Supp. 1103 and Tennessee Public Service

Commission v, United States, 294 F.Supp. 1106, both actions were

ss dismissed. That action was appedled and on June 16, 1969, proba-~

ble jurisdiction was noted by the United States Supreme. Court; 395

U.S, 957, where the matter is still pending. It is significant, inthe =

_ light of the background, to note that this proceeding was institute

on July 9,1969% ~~ . .

____——_—Basis* for i the proposal.— ‘L&N bases its stepeanl to discontinue °

the operation of the subject trains principally on alleged savable .

- losses $f $811,388 in 1967, $672,359 in 1968, and $519,055 for the

first 7 months of 1969, Based on the representations (1) that the.

Post Office Department will, effective November 29, 1969, remove

' storage mail‘now moving on the subject trafhs to highway service,. .

L&N projects its’ losses for year 1969 would approximate $883,- -

615, and ‘an annual loss of $942,364 after :the Post Office Depart-

ment takes the — off the — (2) that i tt revenues —

336.1.C C.,

“¢. 7 ; : ; : : ; ee

Bet ' :

MOUISVIL LE & Ne R. co, DISCONTINUANCE BE TRAINS 87.

+ ‘o

ad

epee digkpassenger, Utilization of the service has been low’ang is de-

- sreasing at a 'substanzial rate, and (3) that there is alternate serv-

- ice.available. L&N ‘submits: the subject trains are no longer re-

quired and that continued: ‘Operation imposes an undue hurden on

* interstate commerce,,-” aeay’ - sep

De scripti on of train ope ration.— These trains axe the last pas- -

‘senger. trains between Atlanta and Evansville and between Evans- .

e and St. Louis. For all practical purposes they operate as a

. sihgle pair of trains between Atlanta and St. Louis, via vansville,

‘ ® but are published’ in‘ two separaté schedules. Trains Nos. 3 and 4

are operated daily between) Evansville and Atlanta .and trains Nos,

5 and 10 are operated daily between, St. Louis and Evansville upon -

schedules shown in appendix A,- which reflects all intermediate

oints served together with their ‘respective populations., Train

es) 4 operates daily departing Atlanta at 5:15 p»m. (€.s.t.) arriving.

Evansville at 3:40 ‘a.m. (c.s.t.). Train. No, 4 connects with train

No. 10 which departs daily from Evansville at 4:15 a.m. (c.8.t.)

and arrives at St. Louis at 8:55. a.IMy (CeS.t.)e Train No. 5 departe-

daily from St. Louis at 4 p.m, (c.s.t.)and arrives at Evansville at

8:39 pem.e (c.s.t.), Train No.5 connects: at Evansville with train

No. 3, which departs Evansville at 9:40 — (c.8.t.)-and | arriv

> Atlanta at 10:55°a.m. (e.s.t.). Sad - .

“+3 The normal consist of trains Nos. 4-10 is one diesel locomotive,

-one Atlanta-Nashville storage mail car, Yc aga ia Louis

storage ‘mail car, one Atlanta-St. Louis ggage and mail car,

and one Atlanta-St. Louis. reclining seat coach. During: June,

July, and August an additional coach is added on weekends. One

deadhead. Atlanta-Nashville storage mail car-is also carried on

each of S days of the week. No sleeping or dining cars are now

. carried on the trairis. The normal'consist of trains Nos. 3-5 is. i

one_ single-unit diesel locomotive, one St. Louis-Atlanta storage: Y

mail car, one St. Louis-Atlanta baggage and mail car, and one Sts

. Louis- Atlanta coach with an additional coach on weekends during

June; July, and August. Qn 5 days‘a week two additional Nashville-

Atlanta storage mdil cars are carried on trairi No. 3, One dead- fe

head storage. mail car is also. carried between ’St. Louis and

Nashville. No sleeping or dining cars are carried on the trains &

nor is any food service available for the convenience of passengers

on. any of the: trains during the 609-mile trip between St. lis

- and Atlanta, such services having been discontinued: in 1 on

‘the St. Louis-Evansville trains when the trains were designated

7h ery trains Nos. 53 and 92, and in ie eel 1968, on the Evansville- :

4

336 I.C.C.. 3

\e |

\*

-

Prem

(88. INTERSTATE COMMERCE ‘COMMISSION een eda tt tint RO er se oe

, io ee

‘Atlanta train. That circumstance is frequently referred: to by

protestants as contfibuting to declining patronage, but defended ©

* by the railroad as an ‘economy measire. . While there is no food

" . gervice available or provided on the trains, the cafrier represents .

that southbound passengers on train No. 5 have a 70-minute.

layover at Evansville before proceeding on (fain No. 3 to.Atlanta,

and have available a restaurant across the street from the L&N

railroad station, and” passemgers ‘on train No, 3 are given time

(10 minutes)~at- Chattanooga to obtain’ breakfast. Northbound —

passengers on train No. “4 arrive Chattanooga at 8:30°p.m. and

-- depart at 8:45 p.m., and may obtain evening meal service at that, ,

point. No other convenient point is provided on train No. 10 which

departs. Evansville at 4: :15 a.m. arriving St. Louis at.8: :55,pems

Each train. handles passengers, some U, S. mail, and baggage.

No: -exptess, except for a single movement on train No. 3 from

_ ‘Nashville to Atlanta, has been handled on. trains Nos. 3 or 4

‘since April 1, 1968. No express has been handled on trains Nos.

5 or 10 since April 1, 1968. Some expréss previously handled

on these trains now moves trailer-on-flatcar (TOFC).

4

Storage mail now movgs in these: trains. However, the Post - etoM

Office Department has notilied L&N that the last day for handling

‘bulk mail at L&N’s Nashville station will be.November 28, 1969,

and that effective November 29, 1969, substantial changes with -

/Yespect to transportation pf storage mail will be instituted. -In

_ that regard, , effective April 18, 1969; the Nashville to Kansas

City, Mo., storage mail was’ diverted to TOFC service by order-

of the Post Office Department. Allother storage mail now. moving:

_” in these traits will be diverted to star routes by highway éarriers.

‘: Thereafter, only a.small amount of preferential mail would be ©

expected to be’ handled on these trains. ts Se

The passénger coaches utilized by these ard pmeipaol

‘by the carrier as. modern and ‘well mainta » Of steel and

aluminum. construction, purchased new in 1946, and have seating

capacity. of 60 persons in each coach. The coaches are equipped _

with revérsible reclining seats, are air conditioned, have modern

lighting, washroom and toilet facilities. . <All cars are equipped —

with trucks designed to provide easy; comfortable: riding. The '

equipment is seryiced | and receives interior cleaning prior to

departure from Atlanta and St. Louis and exterior cleaning at

Atlanta, The single unit E-class diesel passenger locomotive

equipment now used in the operation of these trains is’ more than

-- 20 — old. That equipment together with passenger equipment

a -@ ° - [ 336 LC Ie

$ . aes TR is pe .

“ ©

C. % e wae a sdile: o\ wi Ae

esa ee ALQUISVILLE 4 N. R. co. BigconTINUANCE OF. TRMNS i td ae

and L&N owned head-end cars ised on the trains would be retiréd —

on discontinuance. of their operation, if authorized. Foreign line -

.head-end cars would be returned to the owners. °° ieee ate

‘,° > + Financial data.— The. carrier’s balance. sheet gtatement as of

June 30,.1969, shows assets of $1, 049.3 million, including current age

‘assets $95 million, special funds $4.7 million, investments $39.2

- million, total properties less reserve for depreciation and.amofti-—

4° =” gation, $900.4 million, and. other assets and deferred charges $9.8

een - million. ae gino were: .Current liabilities $60.5 ‘million, song-

‘term debt dué within. 1 year ‘$29 million, long-term, debt due after. -

bate year $423.9 million, reserves $5.7. million, other liabilities and

deferred credits $19.2’ million, capital stock $123. ‘9 million, capital

surplus $22.1 million and retained income ‘unappropriated $364.6 ~

‘million. L&N “ihcome statements for 1967, 1968, and first 6 months —

_ of 1969 show, respectively, railway operating revenues of $285.3 .

"million, $301. 7 million, and $161.7 million; net railway operating

. é income’ of $31.4 million, $35.0° million and $19.3 million; and

. °° + ordinary net income after fixed charges-and other dedisctions Ae

~ | $19.9 million, $22.9 million, and ‘$13.1 million. | ° :

Financial results.— L&N subfhitted financial results of the trains’

operation for 1967, 1968, and first 7 ‘months of 1 ‘Revenues

during .1967 and 1968 include pass nger, mail, exp om) baggage, ~

dining and passenger car rental. During the 1969 partial-year

_ period revenues include passenger, mail, express and baggage

. °... only. Passenger counts are. for the 19 months’ period ended

. July 31, 1969. Excluding maintenance-o f-way and-structurés ~

expense, L&N’ data show in 1967 trains Nos. 3 and 5 revenues of

$1,064,861, and out-of-pocket expenses of $1,519;674, for an

i out-of-pocket loss .of $453,813. During the. same -period for

trains Nos. 4 and 10 revenues were: ‘$1,134,769 and out-of-

& pocket expenses $1,439,380, for an eo a loss of $304,611.

In 1968, the L&N data show trains Nos. 3 and 5\as having revenues |

of $477,264, and out-of-pocket expértses of $822,718, for an out-

of-pocket loss of $345,454. During the same period. trains Nos, 4.

and 10 revenues were $570,751, and out-of-pocket expenses —

$815,338, for an out-of-pocket: logs of $244,587. During the first 7

months of 1969, the data show trains Nos. 3°and/5 as having

revenues of $227, 723, and out-of-pocket expenses of $457,844, for

an out-of-pocket loss of $230,121. During the same period trains

' Nos. 4 and 1G revenues were’$194,013, and out-of-pocket: expenses

of $426, 243, for an out-of-pocket —_ of aa cited Operation of the

836 1.0.0. wae :

.

a Sent Ane INTERSTATE pane covalent REPORTS .

°s

= *

oo ei sent ies

h

ic)

rt nt

1969 . (projecting | ata’ from the: first 7 months), are expected to

prodtice net out-of-pocket. (savable) losses, before Federal jncome ,

. tax effect, of. $784,130, and projecting such data for the period

- .° December 1, 1969 through November 30, 1970, would’ approxi-

mate net. pre-tax out-of-pocket (savable)* loss. of $942,364, ‘The ,

_ latter figure ‘is . submitted to show effect of loss of mail on

i November 29, 1969.. L&N argues that discontinuance of the trains

in 1967 or 1968-would have been’ warranted considéring the losses

it shows in those periods, and that ¢gntinued operation in the

‘light. of the projected 1969..loss of $784, ,000 reflecting feeder gain

based on current operations, and ‘in the light of the annual loss, of

_ $942,364 reflecting loss of Us S.mail effective November 29 1969,

after deducting gain from that mail which would move in TOFG, -

and which may be expected asa minimum: loss for futuré years,

‘cannot be justéfied. L&N ‘further argues. that such lofses) =.

be justly absorbed by it because such losses are an ane nomic

drain on. its working ‘capital.

; ‘combined, trains; for the periods indicated shows, respectively, .

+ revenues of $2,199, 630, $1 048,015, and $421, 736, ; out-of-pocket ex-

penses ‘of $2,958, 054, $1, 638,056, and $884, 087. The net out-of-poc- * 4

. ket losses, after excluding maintenace.of way and structures \and:

‘giving effect to feeder value, but before Federal income tax effect,

are, respectively, $566,397; $564, 618, and $461, 282, Operations for 2

pias

. L&N’s financial results of the operation of ‘both sets of sratile .

| for thé first 7 months of 1969 and as projected for all of 1969

based on “present ‘operation are shown: in appendix B. L&N

_ expects beriefits from a net annual savings thfough discontinuance.

excluding. maintenance of ‘way and structures, but including feeder ©

traffic gain,—of $784,130 before provision for taxes:(26. 4 percent ©

rate) and $577,119, after such .provision. Projected for a l12-

‘month period December 1, 1969 through ‘November 30, ‘1970,

L&N. expects to realize a net gnnual savings.t through discontin-

uance, excluding expense for maintenance of way and structures,

“and: including” gain from U; S, mail diversion, of $942,364 before

provision for taxes (estimated at 24.6-peycent rate) and $710,544 °

_’ after such-provision. Passenger revenues were determined by

_ applying. system average revenue per passenger-mile to the actual

-number, of revénue passenger-miles developed: on these trains

and reflect the 10-percent incr&ase effective July 1, 1968.

Passenger-miles. attributable to the subject trains were obtained

from.an analysis of tickét collections and daily reports submitted .

‘by conductors on these runs. Mail revenues were based on actual |

) ; se 338 1,C.C.

; (a ah Basket eran

>

e

-

-

i Ee

ees a ee eae

LOUISVILLE & N. R.. 9% DISCONTINUANCE OF "TRAINS 2 a

. pilings. Express teverues (carload) are “actual; leas enka ;

‘load‘are based on calculations: using car foot-miles. applicable to .

- the-traing-as against the system totals. . Baggage revenies are --

ics ‘ actual.: Wages of train. -and- enginecréws are actual—amounts

. paid, tp which. has been added. allowance for appropriate payroll

taxes, vacation, holiday, health and) welfare, paid by- L&N for: .

.account of the crews. Locomotive repairs, fuel, lubricants, other.

locomotive ‘supplies, and enginehouse experises are based ona: -

system average Cost (excluding overhead) per. diesel unit-mile

applied to the diesel, unit-miles operated by ‘the ‘subject trains.

Locomotive: and car depreciation - costs and costs of deadhéading ~

cars, and’ the wages, and fringe benefits of- station employees at -

‘Nashville,.are. excluded from out- -of-pocket expenses: of the subject -

- trains. $uch losses are thus claimed. to be understated for the ..

1969 projection:by $80,199. .— *

‘Passenger car repairs and train supplies and expenses were

computed by . applying systemiaverage cost (excluding overhead)

per’ passenger car-mile tothe car-miles operated by the. subject:

trains Nos. 3, 5, 4, and 10. Rent for passenger train gars was

computed by multiplying appropriate mileage rate by the mileage .

' accrued ‘on the. L&N (in the subject trains) for foreign line pas- ‘ ‘

senger ears operating ‘betw@en Atlanta and St..Louis. Pérsonal

,injury ‘and property damage expenses were computed on \basig-of:

average. annual cost per passenger train-mile using expénses’ .

_charged to. passeriger service and. passenger train-miles for the

system.

Terminal ‘ented coveréd expenses at St. Louis, Evansville,

' and Atlanta, as well.as cost of ‘operation of joint-line facilities.

' These were calculated on.an avoidable cost basis approved by this

’ Commission’ in Chicago, R. Il. & P.-R. Co. Discontinuance OF .

Trains, 328 1.C.C, 278 Discontinuance of trains Nos. 5 and 10

- use of main-line tracks and East St. Louis, Ill., relay passenger

‘gtation, Expenses at Evansville include cost of operating the -

subject traing through the joint terminal, apportioned to L&N

Ly and C&EI on number of cars into and out of terminal. However,

. | @ffective: February 3, 1968, that terminal ceased to be a joint.

_operation and no’ expenses“are shown after that date for the sub~

\ would . eliminate ‘all these expenses since they are the last L&N

: — trains to utilize the terminals. Those expenses included. -

re costs of operating the trains through various zones of the.

~ “terminal plus bridge transfer’ charges and trackage. charge for

ject. trains. ‘Expenbes at — include cost of operating the

336 1.€.C. :

Pr a eee

. : 4

C. 12

*92 - INTERSTATE COMMERCE COMMISSION a ‘

sub ject traing into and out of joint terminal, apportioned to L&N,

. Seaboard Co4st Line, and Georgia Railroads on number of cars

into and out, of terminal. However, effective January 26, 1969,

terminal cease to be jointly operated and no expenses are shown

after that date for operating subject trains into and,gut of terminal.

Statign employees expense and station supplies expense as shown

are actual. Discontinuance of the trains would eliminate the

positions of the former and there would be no need for the latter.

Passenger revenues projected ‘for 1969 were determined: by

using the passenger revenues earned during the first 7 months

of 1969, and adjusting to 12 months assuming heavier travel

during vacation months and special holidays. No adjustment was

“ .made to tfeflect the downward trend in rail passenger utilization.

The mail revenues projection was estimated on basis of notice

received from the Post Office Department that all storage mail

cs would be discontinued on the subject trains effective November 29,

1969, and upon advice of post office officials that limited

preferential mail would continue on the subject trains, Projected

expenses were applied as previously described for current opera-

tions using consist of one locomotive, ore coach and one head- .

end car on each of the subject trains, and assumed no additional

equipment during heavy travel. periods. Feeder revenue and

expenses were predicated on analysis from samples of passenger

and mail traffic feeding to and from the subject trains. While

protestants express some dissatisfaction with a number of areas.

of L&N’s financial data their arguments ‘are not persuasive.

a of the train service.—L&N’s evidence shows that there has

been & decrease in passenger-miles for trains Nos. 4-10 and

5-3 between Atlanta and St. Louis in recent years. Passenger-

miles for trains Nos, 4-10 for 1967, 1968 and first 7 months of

1969 were 16,779,931, 6,000,831, and 1,288,508, respectively.

Passenger-miles for trains Nos. 5-3 were 17,017,116, 4,082,958,

and 918,233'for the same periods, respectively. For the separate

segments trains Nos. 3 and 4 between Atlanta and Evaneville

passenger-miles for 1966, 1967, and 1968 were 36,167,888,

30,271,327, and 7,66),396, respectively. As to trains Nos. 5 and

10 passenger-miles for the same periods were 4,998, o44, 3,525,-

720, amd 2,422,393, respectively.

L&N’s passenger count data covers a period of 18 months .

beginning February 1, 1968 and ending July 31, 1969, during which

the subject trains carried 33,829 passengers (18,480 0n trains Nos.

4-10 and 15,349 on trains Nos. 5-3). During that period, 8,211

336 1.C.C. *

. CAP tee

LOUISVILLE & N. RJ CO, DISCONTINUANCE OF RAINS , 93

passengers boarded. train No. 4 at Atlanta, of which 1,918 came

‘s ‘from othef connections, 3,552 at Nashville, afyhich 1,835. came

from other connections, 1,975 at Chattanooga, Of’which 208 came

“from other connections, 330 at Hopkinsvillé, 322 ar Marietta, Ga.,

° 264 at Tullahoma,-Tenn., 152 at Dalton, 108 at Madisonville; Ky.,

79 at Cartersville, Ga., 7Qcat Henderson, Ky., and 4 at Guthrie,

- Ky. The same train on departing Pvansville.as No. 10, recéived

+ on board 1,566 passengers, 683 at Carmi, 418 at McLeansboro,

297 at Mount Vernon, IIf., 271.at Mount Vernon, Ind., 122 at Nash-. °

ville, I1l., 28 at Enfield, Il)., 27 at Rellevifle, Il., and lat St. Louis.

Of those passengers detraining fram train No. 4,'4,017 detrained

at Nashville, Tenn., of which 2,573 went to othér connections,

.' 768 at Evansville, 774 at Chattanooga, of- which 14 went to con- ~

necting trains, 263 at Tullahoma, 223 art Hopkinsville, 100 at

Madisonville, 74 at Henderson, 12 at Dalton, 9 at Marietta, and

_ 5 at Guthfie. On.the same train departing Evansville as No. 10,

_~ 11,065 detrained at St..Louis, of which 4,972. went to connecting

<3 ;* trains, 368 at Belleville, 360 at Mount Verfior,, Ill., 157 at East

o St. Louis, 80 at Carmi, 70 at Nashville, IIf,, 53 at McPeansboro,

39 at Mount Vernon, Ind., 30 at Enfield and 13 at Ashiey, Ill. Trains

a ): - -4-J0 ‘carried a daily average of ¥4.-4 passengers during that

a _ foetiod. .

_ During the same 18-month period, 6,948 passengers boarded

train No. 5 at St. Louis, of which 728 came from connecting -

trains, 713 at Mount Vernon, Ill., 553 ens 247 at Nash-

ville, Ill., 189 at East St.Louis, 166 at CaTfiti, 128 at McLeansboro,

‘121 at Mount Vernon, Ind., 118 at Enfield, 37 at Dahlgren, Hl., and

12 at Ashley. ‘The ‘same train departing Evansville as train

‘No. 3, received, 934’ passengers, of which 101 came frém-other

connecting trains, 3,644 at Nashville, Tenn., of which 2,718.

came from other ‘connections, 400 at Chattanooga, of which 3

came from ower connections, 554 at Marjetta, 266 at Hopkinsville,

129 at Tullahoma, 99 at Henderson, 97 at Madisonville, 2 at

Dalton,-and 1 at Cartersville: Of those passengers detraining

from train’ No. 5, 1$502 detraired.at Evansville, 930 at Carmi,

731 at Mount Vernon, Ill., 702 at Mc ansboro, 379 at Mount Vernon,

° - Ind., 266 at Nashville, tl., 112 Ar Dahlgren, 109 at Enfield, 82

; ' at Ashley, 49 at Belleville, 11 9 East St. Louts, and | at Maunie,

il. On the same train rting Evansville’ as No.’ 3, 5,704°

detrained at Atlanta, of Which 1,177 went to connecting trains,

2,263 at Nashville, Tenn., of which 1,423 wentT® other connections,

1,424 at Chattanooga, of which®190 went to connecting trains,

336 1.C.C. °

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94 INTERSTATE COMMERCE C OMMISSLON RE PORTS

242 at-Marietta, 197 at Madisonville, 174 at Hopkinsville, 148

at Tullahoma, 83 at Dalton, 74 at Henderson, and 66 at Carters-

ville. Trains Nos. 5-3 carried a daily average of 28.6 passengers

during that period.

Alternate passe mger tran caiciaiian’ services.— Between Chat-—

tanooga and Atlanta the Southern Railway operates a pair of

trains Nos. 3 and 4, over a route which serves only the inter-" .

mediate point of’ Dalton, Ga. Except for the subject trains and

the aforementioned trains of Southern, no other rail service is

available between fhe points ‘involved., Numerous bus schedules .

daily each way are operated between Atlanta’ and St. Louis, ‘and

serve 19 of the 24 stations which are served by the subject

trains. Seven schedules (3 westbound and 4 eastboufd) operate

daily serving Atlanta, St. Louis, and all but 5 of the above 24

stations. Forty-four (22 betweén Atlanta and Chattanooga)

operate daily between Atlanta,+ Marietta, Cartersville, Dalton,

Chattanooga, Tullahoma, Nashville, Tenn., Guthrie, Hopkins-

ville, Madisonville, Henderson, Evansville, Carmi, Mount Vernon,

Ashley, Nashville, Ill., Belleville, and East St. Louis.

BY air, service. is available at Atlanta, Chattanooga, Nash-

ville, Evansville and St. Louis, with ‘frequent flights between

those points daily. In recent years there has been a sub-

stantial increase in airline service available and utilized to

and from the points named.

In summary, aside ‘from the subject. rail service, St. Louis

is served daily by 42 air schedules and 10 bus schedules, East

‘St. Louis, Belleville, Henderson, and Madisonville by 10 bus

schedules, Nashville, Ashley, and Mount Vernon, Ill., by 8 bus

‘schedules, Carmi by 4 bus schedules, EvansVille by 14 bus’

schedules and 8 air schedules, Hopkinsville by 11 bus schedules,

Guthrie by 4 bus schedules, Nashville, Tenn., by.20 bus schedules

and 35 atr schedules, Tullahoma by 6 bus schedules, Chattanooga

‘by 40 ‘bus schedules and 24 air schedules, Dalton by 19 bus

schedules, Cartersviile by 27 bus schedules, Marietta by 25 bus

schedules, and Atlanta by 41 bus schedules and 63 air schedules.

As indicated, Dahlgren, McLeansboro, Enfield, Maunie, Ill., and

Mount Vernon, Ind., have noalternate public transportation service

available. -

Generally paralleling the route between the principal termini is a

network of public hfghways ‘and some segments of high-speed

interstate and toll roads for users of private automobiles and

the record reflects a growth in the number of automobiles using

*

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LOUISVILLE & N. R. CO. DISCONTINUANCE OF TRAINS 95

.

~

- the public highways in the States involved, Those roads are all-

- weather roads and for the most part are U. S. highways. Maunie

is served by a county road and Mount Vernon, Ind., by a State road.

The record indicates, however, that some of the highways are

Still under construction or in a bad ‘state of repair. . —

Effect upon employees.—Discontinuancé -of the subject trains

would affect 43 positions, including 32 train and enginecrew

posittons. There are two regular crews assigned ta the operation

of the trains Nos. 3-5 and 4-10 in each of the four seniority dis-

tricts, Of*the 32 train and engine service pOsitions there are (1).

six engineman and six fireman positions, six conductor positions

and six trainman positions which comprise three four-man crews

for train No. 3.and three four-man crews for train No. 4 over the

_ 444- mile segment between -Atlanta and Evansville each train

" travels, and (2) two engineman positions, two fireman positions,

two conductor positions, and two trainman positions which com-

prise one four-man crew for train No. 5 and one four-man crew

for train No. 10, over the 165-mile segment between Evansville

_and St. Louis. Of the 11 stationemployee positions, 9 are located”

at Atlanta and 1 each at Chattanooga and Evansville. ‘The rail-

road -has no passenger service employees at St. Louis, and nd

station organization there acts as its representative.

Included in the above, eight firemen are protected senianine;

_ four whose employment would be elimjnated shortly by retirement;

' the balance within a year by attrition, Those employees operating -

the subject trains have beén in service many years and can, by

exercising seniority right, displace younger men. The latter would

be: placed on the extra-board. The carrier points out that there is

a constant movement from the extra-board to regular assignments.

due to average turnover each year brought about by retirement

under the Federal Railroad Retirement Act, deaths, and other

Causes, ne

Certain rail labor groups assert that employees will be ad-

| versely affected by discontinuance and some: urge that we impose

protective conditions such as those.in Chicago,B. & Q. R. Co.

Abandonment, 257 1.C.C, 700.. Having no authority to impose such

conditions, we limit our consideration of the effect upon employ-

ees to its relation to the public convenience and necessity and the

burden on interstate commerce issues. Should these trains be

allowed to discontinue operation the temporary slight adverse ef-

fect such discontinuance may me on individual employees does

SS ice. 3

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—- 36 |

96 INTERSTATE COMMERCE COMMISSION REPORTS

not warrant extended discussion as it appears that such dislocation

except for station employ€es would be for a relatively phort time.

Alternatives to complete discontinuance.—Our arder instituting

investigation herein réqujred the parties to be prepared to present

evidence orf; among other things, the. feasibility of requiring the

continuance in part of the trains’ service, including, but not limited

to, service over a segment of the route, weekend, seasonal, holi-

day or special run service, mixed passenger-freight service, or a

combination of the foregoing or other limited service. The carrier

contends that these alternatives were neither feasible nor practi-

cal in that they would serve only to produce ineffective gill

segmented operations. °

Evidence in opposition.— Fifty-one individuals testified in POOOr

tion to the discontinuance, including a State senator (Indiana),

mayors of Evansville, Carmi, and McLeansboro, and a r of

city officials of Mount Vernon, Ill. As represerttatives of the com-

‘munities they serve, they express deep concern over the proposed

discontinuance of rail passenger service to their communities as

they consider the service vital and necessary. Other public wit-

nesses include representatives of the Public Service Commissions

of Indiana and Tennessee, two members of NARP, and numerous

business and professional persons, small shop owners and opera-

= farmers, housewives, retired persons, railroad employees,

if calted, would testify similarly to other witnesses at those points.

The tenor of the evidence presented by those opposing discon- .

tinuance covers.-a broad spectrum. Most of those expressing

opposition were concerned by continued operation of the trains

' between St. Louis and Evansville, although a number were con~

cerned with connections for points beyond. Others were con-

cerned with transportation to and from Atlanta and Chattanooga.

Their use of the trains was generally for visits to the larger

cities for purposes ‘of shopping, visiting relatives in hospitals,

and meeting doctors’ appointments; some were concerned with

use of the trains for business purposes primarily because of the

‘convenience the trains- provided and others for baggage accom-

modation; some were elderly and found rail transportation more

suited to their needs; and some preferred rail over other modes,

Benerally. A number of -complaints were expressed as to the

quality of the. service and the cleanliness ofthe cars and facilities

on the « cars. Many complained about the lack of food and sleeping

46-4.€;°C;

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LOUISVILLE & N. R. CO. DISCQNTINUANCE OF TRAINS 97

car service and failure of air conditioning or heating equipment

which, if corrected, could have improved the situation. Complaints

. were ‘also expressed respecting poor on-time performance, the.

‘long: layover at Evansville, and the priority of movement giyen

freight trains’ over the subject trains. A number also expressed

concern over poor lighting on occasions. and lack of clean wash-

rooms. Complaint was also made that while several years ago

the train speed was generally 70 miles per-hour maxinium it had

been reduced to a 60-mile per hour maximum and more, recently

reduced to a 50-mile per hour maximum, and that the ride was

particularly rough indicating the roadbed could be improved. The

carrier offered evidence, howéver, to show some effort was being

made to improve the condition of the roadbed. While their use of

the trains ranged from once a week toseveral times annually (al-

though some had not used the service for a number of years), the

consensus generally was that the quality of the service was vastly

in need of improvement. ,

L&N, on brief, contends that the subject trains “a being oper-

_ated at heavy financial loss, and that substantial savings would be

realized by their discontinuance, It also takes the position that dis-

continuance of the trains in 1967 or 1968 would have been warranted

considering the heavy losses in thoge years, and that their con-

tinued operation in-1969, in the light of current operations as pro-

jected and in the light of the projection subsequent to November 29,

_ 1969, reflecting loss of mail, constitutes an onerous burden. It

further contends that if required fo continue operation of the trains

it will incur $8 in savable expenses for each $1 of revenue collected

‘and that more than 100,000 passengers ‘annually (or 300 daily)

* would be required to liquidate such a logs and approach the break- .

~ even point on the basis of such projected operations after Novem-

ber 29, 1969, or an increase of 828 percent, It maintains the ~

evidence shows that passenger traffic will continue to decline

despite the steady increase in the population atthe stations served

by the trains, that those traveling locally use the bus or private

passenger cars, while those traveling between the major cities

are increasing their use of commercial airlines, andthat remajn-

ing transportation services will be entirely adequate. ;

Protestants, in their joint brief, argue that the trains are re-

quired by the public convenience and necessity. While acknowledg-

ing that the record here reveals a sharp decline in the patronage,

of the trains since February 1, 1968, they contend that the decline |

was brought about four principal developments. First, they —

Sey wliece dl sealer ” eat

7 . \

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C. 18.

98. INTERSTATE COMMERCE ¢ COMMISSION REPORTS.

argue, the C&EI discontinuance (Chicago-Evansville) on February”

‘a

-?

1, 1968, caused a severe reduction in passenger traffic since pas- _ |

sengers can no. longer travel by rail between Chicago and Evans<

_ ville, pointing out that-trains Nos. 3 and 4 generated 13.7 million

*and 14.8 million passenger-miles, respectively, in 1967, and that

tho se trains genetated only 3.2 million and 4.5 million miles, ré-

_ spectively, in 1968, and that such comparison understates the effect

of the C&EI discontinuance since the C&EI segment operated for

the month of January 1968. Second, they argue, was the discon-

tinuance of the “‘Hummingbird”’ trains on Janyary 9, 1969, which

resulted in reduction in ae because approximately 30 per-

.? cent of the users of trai -10 and 36 percent of the users

of train’ No. 3-5-transferred to or from the ‘‘Hummingbird’’ at -

_. Nashville during the period March-December, 1968. Third, they

: argue, was the removal of dining and sleeping car facilities on

trains Nos, 3 and 4 between Evansville and ‘Atlanta after discon-

tinuance of the C&EI segment. Fourth, they argue, is the activity

of L&N to discourage use of the trains, pointing to rhe reduction

‘in passenger train speed from 70 miles per hour maximum to the

present. 50 miles per hour maximum and the long delay (1 hour, |

10 minutes) at Evansville. Because of such factors, protestants

. contend the decline in patronage does not xeflect a comparative

decline in the public need for the trains between St. Louis-Evans-_

ville- Atlanta.

' The protestants. also argue that discontinuance of the subject

trains should not be permitted prior to a ruling by the Supreme

Court on the pending ‘‘Georgian’’ and ‘‘Hummingbird’’ appeals in

City of Chicago. United States, supra, and Tennessée Public Serv-

ice Commission V. United States, supra, since, if the appellants

» prevail, discontinuance would make restoration of the ‘‘Georgian-

Hummingbird’’ service impossible. because the — link or

middle ry acta will have been eliminated. ee

-

>

DISCUSSION AND CONCLUSIONS

Here, as in most proceedings ‘under section 13a(1) of the act, we

are faced with a proposal to discontinue 4 rail passenger service

(here the last sets of trains between the termini) that has been

conducted at a loss. The removal of Railway Post Office cars by

. ‘ the Post Office Department in recg¢nt years and subsequent action

Ys it in ne or ai aa et nae ftof storage mail to TOFC

336 1.C.C.

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LOUISVILLE.& N.-R. CO. DISCONTINUANCE OF TRAINS 99

‘ on freight trains as well as the present proposal to shift the trans-

_ portation of mail to star routes by a ee has" not im-

proved the situation.

Among the factors generally considered in proceedings under

section 13a(1) of the ‘act to ascertain whether operation or sarv-

ice of passenger trains is required by the public convenience 4nd -

necessity and will not unduly burden interstate commerce, ate the

population served, the effect upon the communities, the extent o

the use by the public of the service sought to be discontinued, other

available or alternate transportation service in the area, the cost

incurred ahd financial logs sustained by the carrier in providing

‘the service under consideration,.and the carrier’s financial con-

¢ dition. Also warranting our consideration in determining the public

. convenience and necessity is whether or not we, in administering

section 13a(1) of the act, are preserving 4 national transportation.

system by rail for passengers, insofar as is needed, to meet the.

changing needs of commerce, among others. We must evaluate the

puljjic convenience and necessity requiring the-continuance of the.

‘service, on the one hand, wi th, on the other, the degree of burden —

‘imposed on interstate commerce due to the carrier’s financial

loss resulting from continuance of the trains. No factor alone is .

conclusive or controlling. The-weight afforded éachis determined ;

by the circumstances presented’in.each case.

Concerning the public convenience and necessity, L&N here has‘

endeavored to show that in measuring the publictheed for the trains

there has been a decrease in passenger traffic in recent years and

that the decreased patronage has been marked. The evidence of —

record aisa clearly shows, however, that decrease in patronage |

‘was undoubtedly due in no small measure to a marked deteriora-

tion in the service provided by these trains, a matter wholly within ©

the province and control of the railroad. Most of the complaints

voiced regarding service deficiencies are, inour opinion, justified

on the basis -of the record. No dining cars or other food service

facilities are provided on, the trains for any segment of-the 609- |

mile run, not even food or beverage vending machines. As pre~_

viously noted, dining car service was discontinued onthe Atlanta-

Evansville segment in’ February 1968, a few days after discon-

'.tinuance of the C&EI Chicago-Evansville segment of the: ‘‘Geor-'

- gian.’”’ To obtain any sustenance, other than carrying. thetr-own

food aboard, passengers must leave the train during | the 70-minute

layover at Evansville and cross the street to an all-night restau-

rant to obtain refreshments. While train No. 5-3 on the south- ©

336°1.C.C. . _ ie

: -

“- . q a .

2 ee ds.4 feet

q iin aieeeerie |

| SP oe ae

100 © INTERSTATE COMMERCE COMMISSION REPORTS

bound trip from St. Louis to Atlanta arrives and departs Evansville

at 8:30 p.m. and 9:40 p.m., sespectively, train No. 4-10 on the

northbound trip arrives at Evansville at theearly morning hour of

eae. :40 a.m., departing at 4:15 a.m. The only other time food. is /

. . obtainable is during a. 10-. or 15-minute stop (depending on the

— of.travel)at Chattanooga. As to providing food and bever-"

ag’ vending: machine service on these trains, the record shows

‘ that L&N had studied vending machines previously, but not for these

particular trains. While several witnesses complained of the lack

of sleeping car service, most of the complaints’ regarding the ab-

sence of sleeping car and eating facilities centered on the Jack of

- food service. / - : :

With respéct to eS of poor, iusto performance; the ad

record shoWs that out of 28 trips during January 1969, train No. -

5-3 a from St. Louis arrived late at Atlanta on 16 occa-

_ sions was on time on‘onfy 12, On seven of these trips the

train was over 1 hour late, from 30 minutes to 1 hour late on three, —

from 15 to 30 minutes late on five,. and less than 15 minutes. tate .

- on one occasion. During the same period, out of a total of 27 trips,

train No. 4-10 northbound from Atlanta arrived late in St. Louis »

on 22 occasions, and arrived en time on only 5. The train was

% over-1 hour late on 12 occasions, from 30 minutes to 1 hour late

on 7, and. frém 15 to 30 minutes late on 3. During the months of ae

June, July, and August 1969, out of a total of 92 trips, train No.

5-3 was late in arriving in Atlanta on 52 occasions and arrived

on time on 40. It was over | hour late on 5 trips, from 30 minutes

‘to 1 hour late on 10, from 15 to 30 minutes late on 17, and less

than 15. minutes late on ‘20, During the same months train No.

4-10, out of a total of 91 trips, arrived late in St. Loujs on 56: -

occasions and was on.time on 35. On 10 trips it Was over 1 hour

late, from 30 minutes to 1 hour late on 14, from 15 to 30 minutes

_ ‘Tate on 21, and less than 15 minutes late on 11. While we recognize

Q that trains are delayed at times for reasons beyond the carrier’s

-¢ontrol, we find-little such explanation of record in this proceeding.

=e

e on-time’ performance of these trains leaves much to be desired |

not conducive to retention of or increase in patronage. Ina

similar vein, and as previously noted, numerous complaints were

made with respect.to the reduction of the maximum speed of these

_trains from 70. to ‘60, and more recently, to 50:miles per hour.

Those complaints are, inour view, justified, but, as also previously -

noted, the record indicates that the carrier is taking steps te

rectify this situation. We would ee L&N to’continue its efforts

= . 5 + 336 1.C.¢0. °°)

4

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" LOUISVILLE & N. R. CO. DISCONTINUANCE OF TRAINS~ 101

in’ this direction.~ Weare also.of the view that L&N should explore

_ the possibility of reducing thé lengthy layover time-at Evansville.

_We do not agree that the carrier was precluded by any prior order

of the Commissign from taking such. steps as may “be necessary to.

effect such change, including an:appropriate petition to the Com- :.

mission. Other reasons for the decrease in patronage are the

elimination of porters, slower scliedules, dirty cars, and poorly _

equipped facilities, such as washrooms, et cetera, all of which

are ‘significant in the eyes of the users of the service. It may be

-added that had L&N continued to exercise diligence toward its

passenger service, after removing sleeping cars and: food.service

facilities, as it had prior thereto, “instead of removing services ~~

not only attractive to the rail passenger hut vital to the latter’s ©

support of rail trapsportation service, it would have, in our opinion,

enjoyed revenue from its passengers more in keeping with-the-

-amount of revenue received in the recent period of record and .

would. have incurred considerably Jess loss in the operations of -

‘the trains in those recent periods of record here. With respect

to promotional efforts on the. carrier’s part, the record shows

that the last large advertising of its: passenger service took place .

in about 1963, Also in this connection, however, we-are aware of -

the need for the public to demonstrate, by its ‘patronage of these

_ trains, the extent to which itconsiders such service to be required

by the public convenience and necessity. “i

‘As previously indicated, L&N anticipates loss effective Novem-

' , ber 29,:1969, of a substantial portion of mail traffic currently han-

dled on the subject trains. L&N filed the notice propofing to dis- _

continue these trains on July 9, 1969, almost 5 months before the

mail traffic was expected to be diverted. The claimed burden on

_interstate,commerce from continued operation of the subject trains,

is predicated on pro forma financial data “‘giving effect’’ to opera+

tions without mail revenues which have not yet been lost.. While

L&N has attempted in that pro forma presentation to show revenue.

cost data which it anticipates may be applicable to the operation

of trains under new consists and operating arrangements the car-° °

rier chose not to afford any time to determine what the actual

operating results might be and to assume that operating losses

necessarily would flow from elimination from the trains’ earnings

of the revenues whith theretofore had accrued from the mail traf-

fic. In the absence of evidence. showing. L&N’s actual experience °

. in the operation of these last trains under the anticipated new

arrangement the record does not provide a basis for reaching a-

conclusion as to the resulting operating situation.

336 +1.C.C. ,

&

92.

102: INTERSTATE COMMERCE COMMISSION REPORTS

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The degree of burden on ‘interstate commerce’ as a result of

loss financially incurred by L&N in continuing to operate the sub-

ject trains depends for all practical purposes on how seriqusly

such ‘financial loss will affect its-:other passenger and freight.

.*” operations. It is obvious on this record that L&N is incurring

' losses in operating the subject trains. ‘However, we do not believe ©

the losses’ sustained will place an undue burden on or seriously

affect its other passenger and freight operations durjng the period

--we will require the.continued_operation of these tra ns.

In‘ view of the fact that there remains a significant number of

so-calted “‘hard-core’’ passengers using the trains, the likelihood

that patronage would increase with more attractive service, that —

future revenues and expenses do not reflect the experience of the

carrier under circumstances it only anticipates would result, and .

considering. the carrier’ s financial position, a continuation of the x

4 ‘subject trains for a reasonable period to determine whether its

revenue and: expense expectations will be berne out, allowing it

which it has long failed to do, is warranted. Following ‘actual

experience under the. changed circumstances, a new judgment can‘

“be made as to financial results-of the operations and how these

relate to the public need fof continuance in whole or in part.

* Contentions of the parties as to fact or law not specifically dis-

. cussed herein have been given consideration and found to be a

out material significance or not justified. — ;

| We find that operation by Louisville afid Nashville Railroad Com-

fi pany of passenger service on: its trains Nos. 3 and’4 between

Atlanta, Ga., and Evansville, Ind., and trains Nos. 5 and 10 be-

|. tween Evansville and St. Louis, Mo., is required by the public cori-, '

'* venience and necessity and will not unduly. burden interstate com-

merce. °

An appropriate order will be Sapprons

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INTERSTATE COMMERCE COMMISSION. REPORTS

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C. 25 eae

: ORDER

“4” At @ Seasion of the INTERSTATE COMMERCE COMMISSION,

Division 3, held at its office in Washington, D. C., on the 3d

day of December 1969, ©

" , Finance Docket No. 25765

LOUISVILLE AND NASHVILLE RAILROAD COMPANY DISCON-

‘a. TINUANCE OF. TRAINS 10S, 3 AND 4 BETWEEN ATLANTA,- . ree

GA., AND EVANSVILLE, IND., AND TRAINS NOS, 5 AND 10

BETWEEN EVANSVILLE AND ST, LOUIS, MO, pa

Investigation of the matters and things involved in this proceed-

having been made pursuant to the order of said division dated

July 30, 1969, a hearing having been held and said division, on the —

date hereof, having made and filed a report containing ite findings

of fact and conclusions thereon, which report is reaps referred

a ee it °

‘It is red, That the Louisville and Nashville Railroad Com-

es ay — and it is hereby, required to continue the operations of

its trains Nos. 3 and 4 between Atlanta, Ga., and Evansville, Ind.,

and trains Nos. 5 and 10 between Evansville and St. Louis, Mo.,

+. for a period of 6 months from the date hereof;

And it 1s further ordered, ccm L6es

uaa eee

this order.

By the Commission, division 3. ,

* H; NEIL-GARSON,

: (SEAL) ¥ , Secretary.