Jurisdictional Statement — Alabama Public Service Commission v. Atlantic Coast Line Railroad

Supreme Court brief1951

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Statement as to jurisdiction ..... uA EIR, ay

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Jurisdiction ......... Pe Ry Pere Paes

Questions presented ...... PrEror irre Pog iat

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The questions are substantial..........

Appendix ‘‘ A’’—Decree, opinion, findings of fact and

conclusions of law of the District Court..........

Appendix ‘‘B’’—Statutes involved ............

TaBLeE or Cases CITED

Alabama Public Service Commission v. Western

Union Telegraph Co., 208 Ala. 243, 94 So. 472... ..

American Federal of Labor v. Watson, 327 U. S. 582,

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SS ee ee rn 2 2 Ae

EE igs a oven edd ravens ae

Bransford, Ex parte, 310 U.S. 354, 60S. Ct. 947....

Burford v. Sun Oi Co., 319 U. 8. 315, 63 S. Ct. 1098. .

Chicago v. Fieldcrest Dairies, 316 U. S. 168, 62 S.

MMR. oo oly da 5 Wal A So bain oa AE eae

Deal v. Missouri Pac. R. R. Corp., 312 U. S. 45, 61 S.

SE Si iiess's ak 4b o aco hae ne Rae

Oklahoma Gas & Elec. Co. v. Okla. Packing Co., 292

oe & Fe er

Oklahoma Natural Gas Co. v. Russell, 281 U. Ss. 290,

Re RS Coteen.. hoy rah tte

Phillips v. U. S., 312 U. S. 246, 61S. Ct. 480.........

Piedmont & Northern Ry. v. U. S., 280 U. S. 469, 50

i oo: ak acs vd hea Soe ee

Pa OWA REALE EAR Y OGEEA E

ii INDEX

Railroad Commission of Texas v. Pullman Co., 312

or rrr 6, 11

Shipman v. Dupre, 339 U. 8. 323.................. 11

Stainback v. Mo Hoek Ke Lok, 336 U. 8. 368, 69 S.

TRS A aa, Se a ne ee 11

Standard Oil Co. v. U. S., 283 U. 8. 235, 51 S. Ct. 429. 9

Township of Hillsboro v. Cromwell, 326 U. S. 620, 66

ie ee ace hs iva entre eeeees 11

U.S. v. 1.C.C., 337 U. S. 426, 69S. Ct. 1410.......... 9

Wilentz v. Sovereign Camp, 306 U. S. 373, 59 S. Ct.

ee ei eu ie Reds ee kee neses sos 10

Srstutes Cirep

Code of Alabama of 1940, Title 48, Sections 35, 50, 76,

78, 79, 81, 82, 84, 106, 399 and 400................ 3

United States Code, Title 28:

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IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDULE DISTRICT OF ALABAMA

NORTHERN DIVISION

Civil Action No. 693-N

ATLANTIC COAST LINE RAILROAD COMPANY,

A CORPORATION,

Plaintiff,

Us.

ALABAMA PUBLIC SERVICE COMMISSION, GOR-

DON PERSONS, Its Presipent, anp JIMMY HITCH-

COCK anp C. C. (JACK) OWEN, Associate Commis-

sIONERS, AND A. A. CARMICHAEL, Artrorney Generau

OF THE STATE OF ALABAMA,

Defendants

STATEMENT AS TO JURISDICTION

In compliance with Rule 12 of the Rules of the Supreme

Court of the United States, as amended, defendants-appel-

lants submit herewith their statement particularly disclos-

ing the basis upon which the Supreme Court has jurisdic-

tion on appeal to review the judgment of the District Court

entered in this cause.

Opinion Below

The opinion of the District Court for the Middle District

of Alabama, Northern Division, is reported in ——————-.

A copy of the opinion, findings of fact, conclusions of law

and judgment are attached hereto as Appendix A.

Ts — =

Jurisdiction

The judgment of the District Court was eniered on

August 23, 1950. A petition for appeal is presented to

the District Court herewith, to-wit, on October 20, 1950.

The appeal herein is from the final decree made and entered

by the District Court of the United States specially con-

stituted under Title 28, Sections 2281 and 2284, United

States Code, and, as provided in Section 1253, Title

28, United States Code, a direct appeal to the Supreme

Court of the United States may be taken from the final

decree made by such specially constituted District Court.

It is further provided by Title 28, Section 2101(b), that

such a direct appeal to the Supreme Court of the United

States from such a final decree may be taken within sixty

days.

Questions Presented

Where state statutes provide that a railroad may not

abandon service unless it first obtains a certificate from the

State Public Service Commission allowing such abandon-

ment, and after hearing and consideration, the Commission

declines to grant such certificate and the railway files a

complaint asking an injunction of a three-judge Federal

court.

a. Does a three judge Federal court have jurisdiction

of such suit if the railway has made no attack on the

constitutionality of the statutes which require that the

trains continue operation, but only on the constitu-

tionality of the order which denied the certificate to

abandon?

b. Does a three judge Federal court have jurisdiction

of such suit if only the constitutionality of the order is

attacked, but relief sought in an injunction enjoining

the Public Service Commission and other State officers

from enforcing any penalties or remedies provided

—

under State law, which penalties or remedies are not

called for by the order or authorized by it?

e. Assuming arguendo that there is jurisdiction for

a three judge Federal court, should the court ab-

stain from exercising it to enjoin enforcement of

State criminal laws where there has been no threat of

imminent enforcement of criminal sanctions, no alle-

gation of possible multiplicity of suits, and where any

criminal penalties which might be assessed would be

only a consequence of violation of the State law?

d. Assuming arguendo that there is a jurisdiction for

a three judge Federal court, should the court abstain

from exercising its jurisdiction in recognition of the

wisdom of allowing State courts to try questions of

local State policy relating to complicated questions of

fact?

Statutes Involved

Code of Alabama 1940, Title 48, Sections 35, 50, 76, 78,

79, 81, 82, 84, 106, 399 and 400; United States Code, Title

28, Sections 1253, 2101(b), 2281 and 2284. The said statutes

are set out verbatim or pertinent parts thereof are appro-

priately summarized in Appendix B hereto.

Statement

Appellee, hereinafter referred to as Atlantic Coast Line

has operated trains between Birmingham, Alabama, and

Manchester, Georgia, as a part of .ts railroad system.

In May, 1949, Atlantic Coast Line petitioned the Alabama

Public Service Commission to allow it to discontinue the

daily operation of passenger trains 122 and 123 between

the above cities and to substitute in lieu thereof tri-weekly

service, pursuant to the requirements of Code of Alabama

1940, Title 48, Sections 35 and 106, which require that no

transportation company shall abandon any of its service to

the public unless it first shall have filed an application for

permit to abandon service and obtained from the Commis-

DP PENT EE

—

sion a permit allowing such abandonment. A hearing was

had on October 10, 1949, and on April 6, 1950, the Commis-

sion entered an order denying Atlantic Coast Line’s appli-

cation for authority to abandon.

Atlantic Coast Line did not ask for a rehearing under

Code of Alabama 1940, Title 48, Section 76, nor did it take

an appeal from the Commission’s order, even though Code

of Alabama 1940, Title 48, Section 79, provides for an

appeal from any final action or order of the Public Service

Commission to the Circuit Court of Montgomery County,

Alabama, in Equity, and thence to the Supreme Court of

Alabama. Sections 81 and 84 of Title 48 provide that on

any such appeal the order or action appealed from may

be stayed or superseded by the State Appellate Court, or

the Judge thereof, upon hearing after consideration of the

testimony taken before the Commission, and, except in rate

cases not here involved, such supersedeas may be ordered

by the said Court or judge without the requirement of a

supersedeas bond. Section 82 of Title 48 provides that

the Appellate Court shall hear the case upon the certified

record and shall set aside the order of the Commission if

the Court finds that the Commission erred to the prejudice

of appellant’s substantial rights in its application of the

law, or that the order was based upon a finding of facts con-

trary to the substantial weight of the evidence.

Instead Atlantic Coast Line filed its complaint in the

United States District Court for the Middle District of

Alabama, basing jurisdiction upon alleged Federal questions

involved, and upon diversity of citizenship, and asked for

convocation of a district court of three judges and a hear-

ing under the provisions of United States Code, Title 28,

Section 2284. Atlantic Coast Line alleged that the revenue

received from operation of trains 122 and 123 was dispro-

portionate to expenses and that the continuation of such

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—

trains was not required by public convenience and necessity.

There were allegations that the Commission’s order de-

prived Atlantic Coast Line of its property without due

process, that it was being denied equal protection of the law,

that interstate commerce was being burdened and that the

order was unjust and confiscatory.

Atlantic Coast Line has not in its pleadings, or at the

trial, made an attack upon the constitutionality of any

State statute of the State of Alabama. The only attack on

constitutional grounds was directed at the Commission’s

order of April 6, 1950.

Appellants first filed with Hon. Charles B. Kennamer,

Judge of the United States District Court for the Middle

District of Alabama, a petition directed to him individually,

asking that he stay the call for a three judge Federal

court. No formal order was issued by Judge Kennamer,

but this motion was ruled upon by the three judge court

after it convened, along with other motions. Thereafter

appellants filed a motion to dismiss, a motion to stay and an

answer. After oral argument on August 14, 1950, all of

appellant’s motions were overruled and it was then stipu-

lated by counsel for the parties that evidence should be

taken and the case submitted on Atlantic Coast Line’s

prayer for a permanent injunction. Thereafter, on August

23, 1950, the Court issued its final judgment and decree

overruling all of appellant’s motions, declaring the Com-

mission’s order of April 6, 1950, to be null and void, and

enjoining the appellants, their successors in office and

their agents, servants and attorneys from taking any steps

or proceedings of any nature whatsoever against the Atlan-

tic Coast Line to enforce the order of April 6, 1950, or to

enforce any fine, forfeitures, penalties or other sanctions

provided by Title 48, Code of Alabama 1940, or any remedies

against the plaintiff, its officers, agents or employees on

‘= AS HR PORT ge ape mine,

account of the failure to observe the provisions and require-

ments of said order by discontinuing the daily operation of

plaintiff’s passenger trains 122 and 123 between Birming-

ham, Alabama, and Manchester, Georgia, insofar as they

are operated within the State of Alabama, and substitute

in lieu thereof tri-weekly service.

The Questions Are Substantial

The questions involved in this appeal are similar to those

raised in several recent cases before this Court, among

them being:

Railroad Commission of Texas v. Pullman Co., 312

U. S. 496, 61 S. Ct. 643 (1941) ;

Burford v. Sum Ou Co., 319 U. S. 315, 63 S. Ct. 1098

(1943) ;

Deal et al v. Missouri Pac. R. R. Corp., 312 U. S. 45,

61 S. Ct. 418 (1941);

3 Ex parte Bransford, 310 U. S. 354, 60 S. Ct. 947 (1940).

There are involved the same fundamental issues of how far

the Federal judiciary has jurisdiction over local questions

which can be adjudicated by State courts, and to what extent

Federal courts should exercise jurisdiction which they do

have over such questions where there is ample provision

for judicial determination within the framework of State

courts. The decision ef the three judge District Court in

finding that it had jurisdiction is in direct conflict with the

language of the statute under which it was convened, and

even had there been jurisdiction the decision is contrary to

the clear policy set out in numerous recent decisions of the

Supreme Court that Federal courts will stay their hand on

local matters until the State courts have ruled.

I. As appellants read Title 28, United States Code, Sec-

tion 2281, three requirements must be met before there is

jurisdiction for a special three judge Federal court.

a. An interlocutory or permanent injunction must

be sought.

b. The injunction must be sought on the ground that

a State statute is unconstitutional. (Oklahoma Natural

Gas Company v. Russell, 281 U. S. 290, 43 S. Ct. 353

(1923) interprets ‘‘statute’’ as including ‘‘order.’’)

e. The injunction must seek restraint of enforcement,

operation or execution of the statute or order whose

constitutionality is attacked. Appellants submit that

there can be real question of this in view of the specific

language of the statute:

‘*An interlocutory or permanent injunction restrain-

ing the enforcement, operation or execution of any state

statute (including ‘order’ since the Oklahoma case)

shall not be granted . . . upon the ground

of the unconstitutionality of such statute (including

‘order’ since the Oklahoma case).’’

Atlantic Coast Line’s complaint failed to meet require-

ments ‘‘b’’ and ‘‘c’’ as to any Alabama statute. No attack

was made on the constitutionality of any of the statutes or

laws of the State of Alabama and it has not asked for an

adjudication of constitutionality of any statute of the State

of Alabama. The prayer for relief includes statutes in the

requested cloak of protection, for it refers to ‘‘any penal-

ties or other remedies that may otherwise accrue or be

given against plaintiff, its officers, agents and employees on

account of its or their failure to observe the provisions and

requirements of the order of the Commission.’’ However,

the statutes included are neither identified nor their con-

stitutionality attacked.

As to the Commission’s order of April 6, 1950, it is

squarely charged to be unconstitutional, but the complaint

did not ask relief in terms of the order but went far beyond

a —

that and sought an injunction against all possible penalties

and remedies under Alabama law, a much broader field of

relief than the language of Section 2281 allows,—injunction

against ‘‘enforcement, operation or execution’’ of ‘‘such

statute or such order.’’ Atlantic Coast Line’s prayer and

the Court’s decree would include even common law rem-

edies, which is a broad extension of Section 2281. And the

Alabama Supreme Court has held that orders of the Com-

mission may be enforced by the courts by issuance of writs

of mandamus.

Alabama Public Service Commission v. Western Union

Telegraph Co., 208 Ala. 243, 94 So. 472 (1922).

OLN TE MENTS ERNE, ig a eit ae 1

Atlantic Coast Line has sought to create a new field for

Federal jurisdiction by using allegations of unconstitution-

ality of an order as a springboard to get into court while

seeking relief from a constitutional statute, and from any

and all forms of redress to which it might be subject when-

ever it wishes to violate the laws of the State.

The theory of the District Court seemed fo be that it could

enjoin whatever penalties and remedies, statutory or com-

. mon law, as it saw fit in order to give effective relief as a

duly convened court of equity. But this is ‘‘bootstrap

law,’’ since jurisdiction is conferred initially only if relief

is sought from the statute (or order) whose constitution-

ality is questioned. The three judge court cannot, by the

broad scope of its relief, confer jurisdiction upon itself

retrospectively, if the complaint averred no case quickening

the special jurisdiction of the statutory-created court. The

three judge court is of statutory creation and its juris-

diction is to be strictly limited by the statute which created

it, and is not to be lightly extended.

Okla. Gas & Elec. Co. v. Okla. Packing Co., 292 U.S.

386, 54 So. Ct. 732 (1934) ;

Phillips v. U. S., 312 U. 8. 246, 61 8. Ct. 480 (1941).

;

Too, it is noteworthy that the extraordinary relief ob-

tained, going far beyond the relief against ‘‘such statute’’

(N. B., or ‘‘order’’) authorized by Section 2281, is exactly

the relief prayed for by the Atlantic Coast Line from the

very beginning, and the complaint was challenged by ap-

pellants on jurisdictional grounds before the three judges

ever convened (by motion directed to Judge Charles B.

Kennamer individually) and challenged again after the

three judge court convened but before any evidence was

taken and before the court ruled that it had jurisdiction to

proceed. This is no special case of equity giving extra-

ordinary relief where it cannot give that asked out of

equity giving the relief prayed for.

The ‘‘negative order’’ doctrine of Standard Oil Co. v.

U. S., 283 U. 8. 235, 51 S. Ct. 429 (1931) and Piedmont &

Northern Ry. v. U. S., 280 U. 8. 469, 50 S. Ct. 192 (1930),

has been carved away somewhat, though to what extent is

not clear.

See: U. S. v. I. C. C., 337 U. S. 426, 69 S. Ct. 1410

(1949) ;

But cf.:Ashland Coal & Ice Co. v. U. S., 325 U. S. 240,

65 S. Ct. 1572" 1945).

More than a negative order is involved here where the

attack on the order is the nominal basis for three judge

jurisdiction on constitutional grounds, with relief being

sought from a statute whose constitutionality is not attacked

or alleged.

The District Court has also overlooked Ex Parte Brans-

ford, 310 U.S. 354, 60 S. Ct. 947 (1940), where a distinction

is made between the ground of unconstitutionality of a stat-

ute as applied, which requires a three judge court, and the

ground of the unconstitutionality of the result obtained by

use of a statute which is not attacked as unconstitutional.

Atlantic Coast Line has done no more than attack as uncon-

“a AOL TRIS ETI

stitutional the result of an administrative act, and has not

attacked the statute as generally applied to petitions for

discontinuance. This case also holds that a three judge

court is not required unless the action complained of is

directly attributable to the statute (or an order, a fortiori).

Here the penalties and remedies as to which relief is sought

are not called for by the order or authorized by it, but in

truth and in fact are directly attributable only to the stat-

ute.

The decision of the District Court is in conflict with the

holding in Wilents, et al. v. Sovereign Camp, 306 U. 8S. 373,

59 S. Ct. 709 (1939), wherein it is held that an injunction

in a three judge case must be directed at State officers who

are clothed with authority to enforce the challenged stat-

ute and have taken steps to enforce such statutes. In view

of Oklahoma Natural Gas Company, supra, this would ap-

ply to the Commission’s order, but no State official has

taken any steps to enforce the order, which in fact calls for

no enforcement.

eo eS

1 ET hee ae, Cr PRB

II. The decision below is in conflict with Beal et al. v.

Missouri Pacific R. R. Cerp., 312 U. S. 45, 61 S. Ct. 418

(1941), which case indicates that if only a single suit is con-

templated for penalties, the Supreme Court could not say

that any such irreparable injury is threatened as would

justify staying prosecution of the criminal laws of the State

and withdrawing the determination of the legal question

involved from the State Courts whose appointed function

F it is to decide it. In the present case, Atlantic Coast Line

has not alleged any possible multiplicity of suits nor has it

adduced any evidence to that effect. In fact there has been

no move on the part of any State officer to enforce the stat-

ute at all. The case also notes that even if an adverse

decision were rendered in the State court causing large

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penalties to be assessed against the railroad, such penalties

might well be the consequence of violation of State law.

III. The decision below is contrary to numerous recent

holdings of the Supreme Court concerning the desirability

of Federal courts abstaining from exercising their juris-

diction on matters which are properly decided first by the

courts of the State.

Shipman v. Dupre, 339 U. 8. 323 (1950).

Railroad Commission of Texas vy. Pullman Co., 312 U.

S. 496, 61 S. Ct. 643 (1941);

Burford v. Sun Oil Co. 319 U. S. 315, 63 S. Ct. 1098

(1943) ;

Chicago v. Fieldcrest Dairies, 316 U. S. 168, 62 S. Ct.

986 (1942) ;

A. F. L. v. Watson, 327 U.S. 582, 66 S. Ct. 761 (1946) ;

Township of Hillsboro v. Cromwell, 326 U.S. 620, 66

S. Ct. 445 (1948) ;

Stainback v. No Hoek Ke Lok, 336 U. S. 368, 69 S. Ct.

608 (1949).

The same thread runs through all of the above cases, that

to avoid needless friction with state policies the Federal

judiciary should exercise with a wise discretion giving due

regard to the rightful independence of the State govern-

ment and the smooth working of the Federal judiciary.

Is this not especially so where the railway is in truth seek-

ing to escape the impact of statutes the constitutionality

of which it does not question, for as was pointed out by Mr.

Justice Frankfurter in the Pullman case, supra, a decision

by the State courts may avoid the necessity of a constitu-

tional decision in the Federal courts, and a ruling by a

Federal court may prove to be supplanted by a subsequent

controlling decision of a State tribunal.

The District Court declined to abstain from exercise of

jurisdiction on the ground that there were no questions of

novel, ambiguous or undecided State law involved. But

Burford v. Sun Oil Co., supra, indicates that there is no

such limitation, so long as there are ‘‘basic problems of

State policy’’ involved, that problems of local law are to

be left to local courts where each case may be handled as

‘‘one more item’’ in a continuous series of adjudgments.

That this case is vital for the Alabama Public Service Com-

mission and the Alabama Courts is made clear by the fact

that this case is the third in a series of such cases filed in

the same judicial district, and the parties hereto well know

that cases already are being readied by other railroads who

are trying to escape the process of adjustment of a complex

situation through local courts and make of a three judge

court a tribunal for appeal of administrative orders.

4 OSTEO ea ENA VAG.

Respectfully submitted,

A. A. CARMICHAEL,

Attorney General;

Watiace L. Jonnson,

Assistant Attorney General,

Attorneys for Defendants

AD gn Ce te ee ee OE Ce a ee ee

APPENDIX “A”

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE ‘DISTRICT OF ALABAMA,

NORTHERN DIVISION

Civil Action No. 693-N

Artiantic Coast Line Rar_roap Company, a Corporation,

Plaintiff,

vs.

AuaBAMA Pustic Servicer Commission, Gorpon Persons, its

President, and Jimmy Hitcheock and C. C. (Jack) Owen,

Associate Commissioners; and A. A. Carmichael, Attor-

ney General of the State of Alabama, Defendants

This cause coming on to be heard before a duly constituted

three judge district court and having been submitted by

agreement of the parties for final decree upon the plead-

ings in the cause and upon the evidence offered herein,

including a transcript of the testimony presented at the

hearing before the defendant, Alabama Public Service

Commission, for the reasons set forth in the findings of fact,

conclusions of law and the opinion of the Court filed herein:

It is now ordered, adjudged and decreed this 23 day of

August, 1950, as follows, viz:

(1) That the motion of the defendants to stay the call

for a three judge court, the motion to stay the proceedings

in this court, and the motion to dismiss the cause of action,

be, and they are, hereby overruled and denied.

(2) That the order of the defendant, Alabama Public

Service Commission, dated April 6, 1950, denying the peti-

tion of the plaintiff filed May 4, 1949, and as amended on

June 21, 1949, requesting authority to discontinue the daily

operation of passenger trains Nos. 122 and 123 between

Birmingham, Alabama, and Manchester, Georgia, in so

far as they are operated in the State of Alabama, and

substitute in lieu thereof trains alternately in each direc-

tion, with train number 122 departing Manchester, Georgia,

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on Mondays, Wednesdays, and Fridays; and train number

123 departing Birmingham, Alabama, on Tuesdays, Thurs-

days, and Saturdays; with no Sunday service, be, and the

same is, hereby vacated and declared to be null, void, and

of no effect.

(3) That the defendants, Alabama Public Service Com-

mission, Gordon Persons, its President, Jimmy Hitchcock

and C. C. (Jack) Owen, Associate Commissioners; and

A. A. Carmichael, Attorney General of the State of Ala-

bama, together with the successors in office of each of them,

and their agents, servants and attorneys, be, and they are,

hereby permanently enjoined from taking any steps or

proceedings of any nature whatsoever against the plaintiff,

its officers, agents or employees, to enforce the provisions

of said order or to enforce any fines, forfeitures, penalties

or other sanctions provided by Title 48, Code of Alabama,

1940, or any remedies against the plaintiff, its officers,

agents or employees, on account of the failure to observe

the provisions and requirements of said order by discon-

tinuing the daily operation of plaintiff’s passenger trains

Nos. 122 and 123 between Birmingham, Alabama, and

Manchester, Georgia, in so far as they are operated within

the State of Alabama, and substitute in lieu thereof trains

alternately in each direction, with train number 122 depart-

ing Manchester, Georgia, on Mondays, Wednesdays, and

Fridays; and train number 123 departing Birmingham,

Alabama, on Tuesdays, Thursdays, and Saturdays; with no

Sunday service; and,

(4) That the costs of court incurred in this cause be and

the same are hereby taxed against the defendants, for

which execution may issue.

Leon McCorp,

United States Circuit Judge.

C. B. Kennxamer,

United States District Judge.

Joun McDuvurrie,

United States District Judge.

Filed August 23, 1950. O. D. Street, Jr., Clerk.

.——

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF ALABAMA,

NORTHERN DIVISION

Civil Action No. 693-N

Atiantic Coast Line Rartroap Company, a Corporation,

Plaintiff,

vs.

ALABAMA PusLic Service Commission, Gorpon Persons, its

President, and Jimmy Hitchcock and C. C. (Jack) Owen,

Associate Commissioners; and A. A. Carmichael, Attor-

ney General of the State of Alabama, Defendants

Before Leon McCord, Circuit Judge, and John McDuffie

and Charles B. Kennamer, District Judges

Kennamer, District Judge:

Statement of the Case

This case, similar in facts and presenting the same points

of law as the two cases previously decided by this court

(Southern Railway Company, a corporation vs. Alabama

Public Service Commission, et al., 88 Fed. Supp. 441, and

Civil Action #681-N, to be reported in Fed. Supp.), is

brought by the plaintiff, a foreign corporation, for injunc-

tive relief against the defendants from proceeding to

enforce sanctions provided under the laws of the State of

Alabama for the failure or refusal of plaintiff to continue

the daily operation of local passenger trains 122 and 123

between Birmingham, Alabama, and the Alabama-Georgia

State Line, in violation of an order of the defendant Com-

mission; and that said order be declared unlawful, null,

void and of no effect.

This court, at the outset of the hearing, announced that

the motions filed by the defendants: (a) to stay the call for

a three judge court, (b) to stay the proceedings in this court,

and (c) to dismiss the cause of action, would be overruled

and denied without further argument, the court having

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heard counsel on two previous occasions on these motions

and therefore would continue to adhere to the rulings pre-

viously made.

By stipulation of the parties, the court heard the case

on both the application for a temporary and permanent

injunction.

Proceeding to the merits of the case, the court took evi-

dence and heard counsel for the respective parties, and, in

view of the comprehensive findings, conclusions of law,

and opinions rendered in the two previous cases, makes the

following concise findings in this case:

Findings of Fact

1. Plaintiff, a foreign corporation, operates passenger

trains 122 and 123 daily between Birmingham, Alabama,

and Manchester, Georgia, at a financial loss of between

$12,000 and $16,000 per month, due to the lack of patronage

occasioned by improvement in highways and highway facili-

ties such as buses, automobiles, and trucks, which compete

with and service the same territory as plaintiff’s trains 122

and 123.

2. The defendant Alabama Public Service Commission,

created by the State of Alabama, is empowered with

authority to regulate public utilities such as the Plaintiff

Railway, and where public necessity and convenience war-

rants such, may, in its discretion, require the plaintiff to

continue daily operation of such Short Line runs as this

one between Birmingham and the Alabama-Georgia State

Line, without regard to the pecuniary loss which may be

encountered by the railway company.

3. The plaintiff, as required by State law, petitioned the

defendant Commission for authority to discontinue the

daily operation of passenger trains 122 and 123, due to the

continued heavy financial loss occasioned by the daily

operation of these two trains, losses which indicate that

such daily service is not substantially used or needed by the

public, and substitute in lieu thereof trains alternately in

each direction, with train number 122 departing Manchester,

Georgia, on Mondays, Wednesdays, and Fridays; and train

number 123 departing Birmingham, Alabama, on Tuesdays,

Thursdays, and Saturdays; with no Sunday service. This

petition, as in the two previous cases before this court, was,

after an unwarranted delay, heard by a subordinate em-

ployee of the Commission and then, after further undue

delay, denied by the Commission.

4. An application to the Georgia Public Service Commis-

sion, by plaintiff, for authority to discontinue daily opera-

tion of trains 122 and 123 between Manchester, Georgia, and

the Alabama-Georgia State Line, and in lieu thereof to

operate the trains alternately in each direction as above set

forth, was granted by the Georgia Public Service Commis-

sion on November 15, 1949, subject to the plaintiff obtain-

ing authority from the Alabama Public Service Commission

to make similar changes on these trains over that portion

of its line located between the Alabama-Georgia State Line

and Birmingham, Alabama.

5. There is no evidence before this court, and there was

none before the Commission, to substantiate a finding of

necessity on the part of the public for the continued daily

operation of trains 122 and 123, and in the absence of such

public necessity, coupled with the great financial loss which

the plaintiff is suffering by reason of the continued daily

operation of these trains, the order of the Commission deny-

ing plaintiff’s application for authority to discontinue the

daily operation of these trains and substitute in lieu thereof

these alternate operations, which order, in effect, is a com-

mand by the State that plaintiff continue to furnish the

train services involved or suffer the consequences of their

abandonment, is confiseatory in its effect and the injunctive

relief prayed for should be granted.

6. A majority of the communities served by trains 122

and 123 are either on or adjacent to improved highways

and are served by bus line and motor express companies,

in addition to the large percentage of individually owned

automobiles.

7. The deficits occasioned by the operation of Short Line

passenger trains such as trains 122 and 123 must be made

up, if at all, by rate increases on freight services and is,

therefore, a financial burden on freight customers.

8. The proposed alternate operation by plaintiff of trains

122 and 123 will provide reasonable and adequate facilities

for the accommodation and convenience of the traveling

public and of the communities through which these trains

ee ere Oe re ee ee

aes

run, and when considered along with the heavy financial

loss the plaintiff has sustained for over two years and is

sustaining at the present, on account of the daily operation

of these trains and the failure of the public to patronize

such service to any substantial extent, any requirement on

the part of the Commission that the plaintiff continue the

daily operation of these trains is a denial of constitutional

rights.

Conclusions of Law & Opinion

This court herein adopts as the Conclusions of law and

opinion in this case the conclusions of law and opinions in

the two previous cases which were recently before this

court. (Southern Railway Co., vs. Ala. Public Service

Commission, et al., 88 Fed. Supp. 441, and Civil Action

681-N, to be reported in Fed. Supp.).

Leon McCorp,

U. S. Circuit Judge.

C. B. Kennamer,

U. S. District Judge.

Joun McDvrrir,

U. S. District Judge.

Filed Aug. 23, 1950. O. D. Street, Jr., Clerk.

APPENDIX “B”

Alabama Statutes

Code of Alabama 1940, Title 48:

Sec. 35. Abandonment of service, regulated ;—No utility

shall abandon all or any portion of its service to the public

except ordinary discontinuance of service for nonpayment

of charges, nonuser and similar reasons in the usual course

of business, unless and until written application is first

made to the commission for the issuance of a certificate

that the present or future public convenience or necessity

permits such abandonment, and the issuance of such a

certificate. Upon the filing of such application and after

a hearing of all parties interested, the commission may, or

may not, in its discretion, issue such certificate.

See. 50. Attorney General to represent commission;

special counsel provided for;—The attorney general shall

represent the public service commission in any and all

legal proceedings which it may have the power to institute

and which, pursuant to such power, it has instituted, and in

all legal proceedings against it, and shall institute such

legal proceedings which the commission may request or

deem necessary, provided it has the power to institute

them, to enforce the provisions of this title or compel

obedience to and observance of the same by any person,

firm, company, or corporation, upon which such obedience or

observance is imposed. The attorney general with the

approval of the governor may employ any special counsel

_to institute or defend such legal proceedings or to assist the

attorney general therein, and to contract with the special

counsel concerning a reasonable compensation for his or

their services, which compensation shall be paid out of the

treasury on a warrant drawn by the comptroller on the

treasury upon approval by the governor. (1907, p. 43.)

Sec. 76. Rehearings ;—Any time after an order has been

made by the commission, any person interested therein may

apply for a rehearing in respect to any matter determined

therein, and the commission shall grant and hold such

rehearing within sixty days after the said application there-

for has been filed, and such rehearing shall be subject to

such rules as the commission may prescribe. Application

for such rehearing shall not excuse any utility or person

from complying with or obeying an order of the commis-

sion, or operate in any manner to stay or postpone the

enforcement thereof except as the commission may by order

direct. Any order of the commission made after such

rehearing shall have the same force and effect as an original

order, but shall not affect any right, or the enforcement of

LE LOI IS OOO ERR PP LN TEE

any right, arising from or by virtue of compliance with

the original order prior to the order made after rehearing.

Sec. 78. Courts may compel compliance with orders of

commission and punish failure;—In case of failure or

refusal on the part of any person to comply with any valid

order of the commission or of any commissioner, or any

subpoena, or on the refusal of any witness to testify or

answer as to any matter regarding which he may be law-

fully interrogated, any cireuit court in this state, or any

judge thereof, on application of a commiss'oner, may issue

an attachment for such person and compel him to comply

with such order, or to attend before the commission and

produce such documents and give his testimony upon such

matters as may be lawfully required, and the Court or judge

shall have power to punish for contempt as in cases of dis-

obedience of a like order or subpoena issued by or from such

court, or a refusal to testify therein.

See. 79. Appeals from orders of commission.—From

any final action or order of the commission in the exercise of

the jurisdiction, power, and authority conferred upon it by

this title, an appeal therefrom shall lie to the circuit court

of Montgomery County, sitting in equity, except appeals

} under chapter three of this title, and thence to the supreme

; court of Alabama. All appeals shall be taken within thirty

days from the date of such action or order and shall be

3 granted as a matter of right and be deemed perfected by

j filing with public service commission a bond for security of

cost of said appeal when the appellant is a utility or per-

son, and by filing notice of an appeal when the appellant is |

the State of Alabama. (1909, p. 96; 1932, Ex. Sess., p. 233.)

Sec. 81. Right to supersede order.—On any such appeal

any utility, interested party, or intervenor may supersede

any decree rendered by giving such supersedeas bond or

bonds as may be appropriate to the proceedings as provided

for herein for superseding an order or orders of the com-

mission,

See. 82. Proceedings on appeal.—The commission’s order

shall be taken as prima facie just and reasonable. No new

or additional evidence may be introduced in the circuit

court except as to fraud or misconduct of some person en-

er -,

So er ie ae tae _

= ean saeetthahinthd aia (em pone epee

gaged in the administration of this title and affecting the

order, ruling or award appealed from, but the court shall

otherwise hear the case upon the certified record and shall

set aside the order if the court finds that: the commission

erred to the prejudice of appellant’s substantial rights in

its application of the law; or, the order, decision or award

was procured by fraud or was based upon findings of facts

contrary to the substantial weight of the evidence. Pro-

vided, however, the court may, instead of setting aside the

order, remand the case to the commission for further pro-

ceedings in conformity with the direction of the court. The

court may, in advance of judgment and upon a sufficient

showing, remand the cause to the commission for the pur-

pose of taking additional testimony or other proceedings.

(1932, Ex. Sess., p. 233.)

Sec. 84. Appeal does not supersede order ;—supersedeas

bond.—No appeal shall stay or supersede the order or action

appealed from unless the appellate court or judge thereof,

upon hearing and notice, after consideration of the testi-

mony, taken before the commission, shall so direct. If the

appeal be from an order of the commission reducing or re-

fusing to increase such rates, fares, charges, or any of them,

or any schedule, or part or parts of any schedule of such

rates, fares or charges, the appellate court or judge thereof,

shall not so direct or order a supersedeas or stay of the ac-

tion or order appealed from without requiring as a condition

precedent to the granting of said supersedeas that the util-

ity applying for the same shall execute and file with the

clerk of said court a bond, which bond shall be as herein-

after provided.

Sec. 106. Permit to abandon service.—No transportation

company subject to this chapter shall abandon all or any

portion of its service to the public or the operation of any

of its lines, properties, or plant which would affect the serv-

ice it is rendering the public, except ordinary discontinu-

ances of service for nonpayment of charges, nonuser, viola-

tions of rules and regulations or similar reasons in the usual

course of business, unless and until there shall first have

been filed an application for a permit to abandon service and

ER Be ae OEE

obtained from the commission a permit allowing such aban-

donment.

Sec. 399. Penalty for charging excessive rates, granting

rebates, or violating commission’s order, ete.—Any utility

doing business in this state, or any of its authorized

agents, officers or employees, who is guilty of knowingly or

willfully charging, demanding, or receiving any rate or

charge for any commodity or service different from that au-

thorized by its lawful tariffs on file with the Alabama public

service commission, or who is guilty of knowingly or will-

fully granting or giving to any person or persons any con-

cession or rebate in respect of its lawful charges or rates, or

who knowingly or willfully violates, or procures, aids or

abets a violation of, any lawful order or decree of said

commission, shall be guilty of a misdemeanor and, upon

conviction, shall be punished by a fine of not more than one

thousand dollars for each offense. In the case of a violation

of said commission’s orders or decrees, each day’s violation

shall be deemed a separate offense. (Ib.; 1932, Ex. Sess.,

p. 209.)

Section 400. Violations of statutes as to reasonable rates,

adequate service and unjust discriminations; penalty.—

Every officer, agent or employee of such common carrier or

railroad corporation who shall violate or procure, aid or

abet any violation by such common carrier, or railroad cor-

poration, or any of the statutes of this state relating to rea-

sonable rates, adequate service, and unjust discriminations

of the public service of any common carrier of this state, or

who shall fail to obey, observe, or comply with any order

of the public service commission, or any provisions of any

order of said commission, or who procures, aids or abets

any such common carrier, or corporation, in its failure to

obey, observe, and comply with any such order, direction, or

provision relating to reasonable rates, adequate service and

unjust discrimination by common carriers of this state, shall

be guilty of a misdemeanor, and, on conviction thereof, shall

be fined not exceeding one thousand dollars, to be fixed by

the court. (1907, p. 23.)

EMPLEO PEELING EGE IE ARAL I Mee CUR ME Bie IR SET: RES a Ee,

Unitep States Statutes

United States Code, Title 28:

Sec. 1253. Direct appeals from decisions of three-judge

courts.

Except as otherwise provided by law, any party may ap-

peal to the Supreme Court from an order granting or deny-

ing, after notice and hearing, an interlocutory or permanent

injunction in any civil action, suit or proceeding required by

any Act of Congress to be heard and determined by a dis-

trict court of three judges.

Sec. 2101. Supreme Court; time for appeal or certiorari;

docketing; stay.

(a) A direct appeal to the Supreme Court from any deci-

sion under sections 1252, 1253 and 2282 of this title, holding

unconstitutional in whole or in part, any Act of Congress,

shall be taken within thirty days after the entry of the inter-

locutory or final order, judgment or decree. The record

shall be made up and the case docketed within sixty days

from the time such appeal is taken under rules prescribed by

the Supreme Court.

(b) Any other direct appeal to the Supreme Court which

is authorized by law, from a decision of a district court in

any civil action, suit or proceeding, shall be taken within

thirty days from the judgment, order or decree, appealed

from, if interlocutory, and within sixty days if final.

bring any judgment or decree in a civil action, suit or pro-

ceeding before the Supreme Court for review shall be taken

or applied for within ninety days after the entry of such

judgment or decree. A justice of the Supreme Court, for

good cause shown, may extend the time for applying for a

writ of certiorari for a period not exceeding sixty days.

(d) The time for appeal or application for a writ of

certiorari to review the judgment of a State court in a

criminal case shall be as prescribed by rules of the Supreme

Court.

(e) An application to the Supreme Court for a writ of

certiorari to review a case before judgment has been

a WR NE es ys pert omen? SIP:

O° RRC BEDS RP SOF LTE EIT atte, Tete Ite eA: IIL REET AEN RIES IG RBA LB MOTO CEN EES Lipa Op ,

rendered in the court of appeals may be made at any time

before judgment.

(f) In any case in which the final judquent or decree of

any court is subject to review by the Supreme Court on

writ of certiorari, the execution and enforcement of such

judgment or decree may be stayed for a reasonable time to

enable the party aggrieved to obtain a writ of certiorari

from the Supreme Court. The stay may be granted by a

judge of the court rendering the judgment or decree or by

a justice of the Supreme Court, and may be conditioned

on the giving of security, approved by such judge or jus-

tice, that if the aggrieved party fails to make application

for such writ within the period allotted therefor, or fails

to obtain an order granting his application, or fails to make

his plea good in the Supreme Court, he shall answer for all

damages and costs which the other party may sustain by

reason of the stay. As amended May 24, 1949, c. 1939,

Sec. 106, 63 Stat. 104.

See. 2281. Injunction against enforcement of State stat-

ute; three judge court required.

An interlocutory or permanent injunction restraining

the enforcement, operation or execution of any State stat-

ute by restraining the action of any officer of such State in

the enforcement or execution of such statute or of an order

made by an administrative board or commission acting —

under State statutes, shall not be granted by any district

court or judge thereof upon the ground of the unconstitu-

tionality of such statute unless the application therefor is

heard and determined by a district court of three judges —

under Section 2284 of this title.

Sec. 2284. Three-judge district court; composition; pro-

cedure.

In any action or proceeding required by an Act of Con-

gress to be heard and determined by a district court of

three judges the composition and procedure of the court,

except as otherwise provided by law, shall be as follows:

(1) The district judge to whom the application for injune-

tion or other relief is presented shall constitute one mem-

ber of such court. On the filing of the application, he shall

immediately notify the chief judge of the circuit, who shall

designate two other judges, at least one of whom shall be a

circuit judge. Such judges shall serve as members of the

court to hear and determine the action or proceeding.

(2) If the action involves the enforcement, operation or

execution of State statutes or State administrative orders,

at least five days notice of the hearing shall be given to the

governor and attorney general of the state.

If the action involves the enforcement, operation or exe-

cution of an Act of Congress or an order of any department

or agency of the United States, at least five days’ notice

of the hearing shall be given the Attorney General of the

United States, to the United States attorney for the dis-

trict, and to such other persons as may be defendants.

Such notice shall be given by registered mail by the clerk,

and shall be complete on the mailing thereof.

(3) In any such case in which an application for an in-

terlocutory injunction is made, the district judge to whom

the application is made, may, at any time, grant a tempo-

rary restraining order to prevent irreparable damage. The

order, unless previously revoked by the district judge,

shall remain in force only until the hearing and determina-

tion by the full court. It shall contain a specific finding,

based upon evidence submitted to such judge and identified

by reference thereto, that specified irreparable damage will

result if the order is not granted.

(4) In any such case the application shall be given

precedence and assigned for a hearing at the earliest prac-

ticable day. Two judges must concur in granting the

application.

(5) Any one of the three judges of the court may per-

form all functions, conduct all proceedings except the trial,

and enter all orders required or permitted by the rules of

civil procedure. A single judge shall not appoint a master

or order a reference, or hear and determine any application

for an interlocutory injunction or motion to vacate the

same, or dismiss the action, or enter a summary or final

judgment. The action of a single judge shall be reviewable

by the full court at any time before final hearing.

A district court of three judges shall, before final hearing,

stay any action pending therein to enjoin, suspend or re-

strain the enforcement or execution of a State statute or

order thereunder, whenever it appears that a State court of -

competent jurisdiction has stayed proceedings under such

statute or order pending the determination in such State

court of an action to enforce the same. If the action in the —

State court is not prosecuted diligently and in good faith, ©

the district court of three judges may vacate its stay after ©

hearing upon ten days notice served upon the attorney |

general of the State.

(2231)

ELL TE PSE LOE I LL RINE TELE N EOI Ee

INDEX

Sussect INDEX

Page

Statement as to jurisdiction...................... 1

i ea cd ted gx KS CS pede ev ep ha 1

EE ees a uk y alas adi aves 2

Questions presented ....... 1.0.0... cece eeees 2

a Pe. oy ein ee ERO 3

Ae ee hs by hah nen 3

The questions are substantial................. 6

Appendix ‘‘A’’—Opinion, findings of fact, conclu-

sions of law and judgment of the District Court... 13

Appendix ‘‘B’’—Applicable statutes .............. 23

TaBLe oF Cases CITED

Alabama Public Service Commission v. Western

Union Telegraph Co., 208 Ala. 243, 94 So. 472.... 8

A.F. of L. v. Watson, 327 U. S. 582, 66 S. Ct. 761... . 11

Ashland Coal € Ice Co. v. U. S., 325 U. S. 240, 65 S.

NS Pate Oe Va Ab are ee PRG Ta ae GINA a ed 9

Beal v. Missouri Pac. R. R. Corp., 312 U. 8. 45, 61 S.

igh Os cy oh oy Baan wane ys 6, 10

Bransford, Ex parte, 310 U.S. 354, 60 S. Ct. 947... 6, 10

Burford v. Sun Oil Co., 319 U.S. 315, 63 S. Ct. 1098... 6, 11

Chicago v. Fieldcrest Dairies, 316 U. S. 168, 62 S. Ct.

SG oe I ae DUO aal ua ea ea ia diate © Ren 11

Oklahoma Gas & Elec. Co. v. Oklahoma Packing Co.,

UR SR eer rer 9

Phillips v. U. S., 312 U. S. 246, 61 S. Ct. 480........ 9

Piedmont & Northern Ry. v. U. S., 280 U. 8. 469, 50

EE at in aie Ss aa We eae Naas Came) 9

Railroad Commission of Texas v. Pullman Co., 312

NS 8 DS Ree ey ere 6, 11

Shipman v. Dupre, 339 U.S. 323.................. 11

Stainback v. Mo Hoek Ke Lok, 336 U. S. 368, 69 S. Ct.

ESR rey pmairer con cere oerety © Car ep anes

il INDEX

Page

Township of Hillsboro v. Cromwell, 326 U. S. 620, 66

Eee rer rey hone 11

U. 8. v. L.C.C., 337 U. S. 426, 69 S. Ct. 1410.......... 9

Wilentz v. Sovereign Camp, 306 U. 8. 373, 59 S. Ct.

ee oer rrr eae 10

Statutes CiTep

Code of Alabama of 1940, Title 48, Sections 35, 50,

76, 78, 79, 81, 82, 84, 106, 399 RE 5 dno on Wer 3,4

United States Code, Title 28:

eS errr rrr Tee eee ere 2,3

Section ZIO1(b) .........-- eee cece tte ctees 2,3

REE SS SOO TOT ET te Tree 2,3, 7,8

Rloction SBB6 ........- eee c ete c rene ren erees 2, 3,4

s a a eh te nn _"

—

IN THE UNITED STATES DISTRICT COURT, FOR

THE MIDDLE DISTRICT OF ALABAMA,

NORTHERN DIVISION

Civil Action No. 698-N .

LOUISVILLE AND NASHVILLE RAILROAD COM-

PANY, a Corporation,

Plaintiff,

vs.

ALABAMA PUBLIC SERVICE COMMISSION, GOR-

DON PERSONS, rvs Preswent, anp JIMMY HITCH-

COCK anv C. C. (JACK) OWEN, Associate Commis-

SIONERS, aND A. A. CARMICHAEL, Arrorney GeneraL

OF THE STaTE OF ALABAMA,

Defendants

STATEMENT AS TO JURISDICTION

—

In compliance with Rule 12 of the Rules of the Supreme

Court of the United States, as amended, defendants-appel-

lants submit herewith their statement particularly disclos-

ing the basis upon which the Supreme Court has jurisdic-

tion on appeal to review the judgment of the District Court

entered in this cause.

Opinion Below

The opinion of the District Court for the Middle District

of Alabama, Northern Division, is unreported. A copy of

then. ——

the opinion, findings of fact, conclusions of law and judg-

ment are attached hereto as Appendix A.

Jurisdiction

The judgment of the District Court was entered on Oc-

tober 31, 1950. A petition for appeal is presented to the

District Court herewith, to wit, on December 29, 1950. The

appeal herein is from the final decree made and entered by

the District Court of the United States specially consti-

tuted under Title 28, Sections 2281 and 2284, United States

Code, and, as provided in Section 1253, Title 28, United

States Code, a direct appeal to the Supreme Court of the

United States may be taken from the final decree made by

such specially constituted District Court. It is further pro-

vided by Title 28, Section 2101(b), that such a direct appeal

to the Supreme Court of the United States from such a

final decree may be taken within sixty days.

Questions Presented

Where state statutes provide that a railroad may not

abandon service unless it first obtains a certificate from the

State Public Service Commission allowing such abandon-

ment, and after hearing and consideration, the Commis-

sion declines to grant such certificate and the railway files

a complaint asking an injunction of a three judge Federal

Court.

a. Does a three judge Federal court have jurisdiction

of such suit if the railway has made no attack on the

constitutionality of the statutes which require that the

trains continue operation, but only on the constitu-

tionality of the order which denied the certificate to

abandon?

b. Does a three judge Federal court have jurisdic-

tion of such suit if only the constitutionality of the

order is attacked, but relief sought in an injunction

PYLE n 4.

Tz, y Safe Pw e RENE SP RY ome. PORCINE RENEE RIND

DER TOT ag aN |

enjoining the Public Service Commission and other

State officers from enforcing any penalties or remedies

provided under State law, which penalties or remedies

are not called for by the order or authorized by it?

c. Assuming arguendo that there is jurisdiction for

a three judge Federal court, should the court abstain

from exercising it to enjoin enforcement of State

criminal laws where there has been no threat of immi-

nent enforcement of criminal sanctions, no allegation

of possible multiplicity of suits, and where any crimi-

nal penalties which might be assessed would be only

a consequence of violation of the State law?

d. Assuming arguendo that there is a jurisdiction

for a three judge Federal court, should the court ab-

stain from exercising its jurisdiction in recognition of

the wisdom of allowing State courts to try questions of

local State policy relating to complicated questions of

fact?

Statutes Involved

Code of Alabama 1940, Title 48, Sections 35, 50, 76, 78,

79, 81, 82, 84, 106, 399 and 400; United States Code, Title

28, Sections 1253, 2101(b), 2281 and 2284. The said stat-

utes are set out verbatim or pertinent parts thereof are

appropriately summarized in Appendix B hereto.

Statement

Appellee, hereinafter referred to as L & N Railroad,

has operated trains between Georgiana, Alabama, and

Graceville, Florida, as a part of its railroad system. On

November 6, 1947, L & W Railroad petitioned the Alabama

Public Service Commission to allow it to discontinue the

operation of passenger trains Nos. 27 and 28 between the

above cities, pursuant to the requirements of Code of Ala-

bama 1940, Title 48, Sections 35 and 106, which require

that no transportation company shall abandon any of its

service to the public unless it first shall have filed an appli-

cation for permit to abandon service and obtained from

MON ak Demi

—

the Commission a permit allowing such abandonment.

Hearings were held on August 19, 1948 and January 11,

1950, and on July 28, 1950, the Commission entered an

order denying L & N Railroad’s application for authority

to abandon.

L & N Railroad did not ask for a rehearing under Code

of Alabama 1940, Title 48, Section 76, nor did it take an ap-

peal from the Commission’s order, even though Code of

Alabama 1940, Title 48, Section 79, provides for an ap-

peal from any final action or order of the Public Service

Commission to the Circuit Court of Montgomery County,

Alabama, in Equity, and thence to the Supreme Court of

Alabama. Sections 81 and 84 of Title 48 provide that on

any such appeal the order or action appealed from may be

stayed or superseded by the State Appellate Court, or the

Judge thereof, upon hearing after consideration of the

testimony taken before the Commission, and, except in rate

cases, not here involved, such supersedeas may be ordered

by the said Court or judge without the requirement of a~

supersedeas bond. Section 82 of Title 48 provides that

the Appellate Court shall hear the case upon the certified

record and shall set aside the order of the Commission if

the Court finds that the Commission erred to the prejudice

of appellant’s substantial rights in its application of the

law, or that the order was based upon a finding of facts

contrary to the substantial weight of the evidence.

Instead, L & N Railroad filed its complaint in the United

States District Court for the Middle District of Alabama,

basing jurisdiction upon alleged Federal questions in-

volved, and upon diversity of citizenship, and asked for

convocation of a district court of three judges and a hear-

ing under the provisions of United States Code, Title 28,

Section 2284. The L & N Railroad alleged that the revenue

received from operation of trains Nos. 27 and 28 was dis-

proportionate to expenses and that the continuation of such

trains was not required by public convenience and neces-

sity. There wete allegations that the Commission’s order

deprived L & N Railroad of its property without due proc-

ess, that it was being denied equal protection of the law,

that interstate commerce was being burdened and that the

order was unjust and confiscatory.

The L & N Railroad has not in its pleadings, or at the

trial, made an attack upon the constitutionality of any state

statute of the State of Alabama. The only attack on con-

stitutional grounds was directed at the Commission’s order

of July 28, 1950.

Appellants first filed with Honorable Charles B. Ken-

namer, Judge of the United States District Court for the

Middle District of Alabama, a petition directed to him

individually, asking that he stay the call for a three judge

Federal court. No formal order was issued by Judge

Kennamer, but this motion was ruled upon by the three

judge court after it convened, along with other motions.

Thereafter, appellants filed a motion to dismiss, a motion

to stay and an answer. After oral argument on October 20,

1950, all of appellant’s motions were overruled and it was

then stipulated by counsel for the parties that evidence

should be taken and the ease submitted on L & N’s prayer

for a permanent injunction. Thereafter, on October 31,

1950, the Court issued its final judgment and decree over-

ruling all of appellants’ motions, declaring the Commis-

sion’s order of July 28, 1950, to be null and void, and en-

joining the appellants, their successors in office and their

agents, servants and attorneys from taking any steps or

proceedings of any nature whatsoever against the L & N

Railroad to enforce the order of July 28, 1950, or to enforce

any fine, forfeitures, penalties or other sanctions provided

by Title 48, Code of Alabama 1940, or any remedies against

ed De oy Wr xe

the plaintiff, its officers, agents or employees on account of

the failure to observe the provisions and requirements of

said order by discontinuing the operation of plaintiff’s

passenger trains 27 and 28 between Georgiana, Alabama,

and Graceville, Florida, insofar as they are operated within

the State of Alabama.

The Questions Are Substantial

The questions involved in this appeal are similar to those

raised in several recent cases before this Court, among them

being:

Railroad Commission of Texas v. Pullman Co., 312 U.S.

496; 61 S. Ct. 643 (1941).

Burford v. Sun Oil Co., 319 U. 8S. 315, 63 S. Ct. 1098

(1943).

Beal et al. v. Missouri Pac. R. R. Corp., 312 U.S. 45,

61 S. Ct. 418 (1941).

Ex parte Bransford, 310 U. 8. 354, 60 S. Ct. 947 (1940).

There are involved the same fundamental issues of how far

the Federal judiciary has jurisdiction over local questions

which can be adjudicated by State courts, and to what

extent Federal courts should exercise jurisdiction which

they do have over such questions where there is ample

provision for judicial determination within the framework

of state courts. The decision of the three judge District

Court in finding that it had jurisdiction is in direct conflict

with the language of the statute under which it was con-

vened, and even had there been jurisdiction the decision is

contrary to the clear policy set out in numerous recent

decisions of the Supreme Court that Federal courts will

stay their hand on local matters until the state courts have

ruled.

ali a ee Ee ee eye, — |

. ’ Peer ge

I. As appellants read Title 28, United States Code, Sec-

tion 2281, three requirements must be met before there is

jurisdiction for a special three judge Federal court.

a. An interlocutory or permanent injunction must be

sought.

b. The injunction must be sought on the ground that

a state statute is unconstitutional. (Oklahoma Natural

Gas Company v. Russell, 281 U. S. 290, 43 S. Ct. 353

(1923) interprets ‘‘statute’’ as including ‘‘order.’’)

e. The injunction must seek restraint of enforcement,

operation or execution of the statute or order whose

constitutionality is attacked. Appellants submit that

there can be real question of this in view of the specific

language of the statute:

‘*An interlocutory or permanent injunction restrain-

ing the enforcement, operation or execution of any

state statute (including ‘order’ since the Oklahoma

case) . . . shall not be granted . . . upon the

ground of the unconstitutionality of such statute (in-

cluding ‘order’ since the Oklahoma case).”’

L & N Railroad’s complaint failed to meet requirements

‘*b’’ and ‘‘e’’ as to any Alabama statute. No attack was

made on the constitutionality of any of the statutes or laws

of the State of Alabama and it has not asked for an adjudi-

cation of constitutionality of any statute of the State of

Alabama. The prayer for relief includes statutes in the

requested cloak of protection, for it refers to ‘‘forum pro-

ceeding against the plaintiff, its officers, agents or em-

ployees, to enforce any penalties or other remedies pro-

vided under the laws of the State of Alabama on account

of plaintiffs or their failure to continue the operation of

said two local passenger trains.’’ However, the statutes

included are neither identified nor their constitutionality

attacked.

SAD Deere

As to the Commission’s order of July 28, 1950, it is

squarely charged te be unconstitutional, but the complaint

did not ask relief in terms of the order but went far beyond

that and sought an injunction against all possible penalties

and remedies under Alabama law, a much broader field of

relief than the language of Section 2281 allows,—injunction

against ‘‘enforcement, operation or execution’’ of ‘‘such

statute or such order.’’ L & N Railroad’s prayer and the

Court’s decree would include even common law remedies,

which is a broad extension of Section 2281. And the Ala-

bama Supreme Court has held that orders of the Commis-

sion may be enforced by the courts by issuance of writs

of mandamus.

Alabama Public Service Commission v. Western Union

Telegraph Co., 208 Ala. 243, 94 So. 472 (1922).

L&N Railroad has sought to create a new field for Federal

jurisdiction by using allegations of unconstitutionality of

an order as a springboard to get into court while seeking

relief from a constitutional statute, and from any and all

forms of redress to which it might be subject whenever it

wishes to violate the laws of the State.

The theory of the District Court seemed to be that it

could enjoin whatever penalties and remedies, statutory or

common law, as it saw fit in order to give effective relief

as a duly convened court of equity. But this is ‘‘bootstrap

law,’’ since jurisdiction is conferred initially only if relief

is sought from the statute (or order) whose constitution-

ality is questioned. The three judge court cannot, by the

broad scope of its relief confer jurisdiction upon itself

retrospectively, if the complaint averred no case quickening

the special jurisdiction of the statutory-created court. The

three judge court is of statutory creation and its jurisdic-

: ~ Stee os |

tion is to be strictly limited by the statute which created it,

and is not to be lightly extended.

Okla. Gas & Elec. Co. v. Okla. Packing Co., 292 U.S.

386, 34 S. Ct. 732 (1934).

Phillips v. U. S., 312 U. S. 246, 61 S. Ct. 480 (1941).

Too, it is noteworthy that the extraordinary relief obtained,

going far beyond the relief against ‘‘such statute’”’ (N. B.,

or ‘‘order’’) authorized by Section 2281, is exactly the

relief prayed for by the L & N Railroad from the very be-

ginning, and the complaint was challenged by appellants

on jurisdictional grounds before the three judges ever con-

vened (by motion directed to Judge Charles B. Kennamer

individually) and challenged again after the three judge

court convened but before any evidence was taken and

before the court ruled that it had jurisdiction to proceed.

This is no special case of equity giving extraordinary relief

where it cannot give that asked out of equity giving the

relief prayed for.

The ‘‘negative order’’ doctrine of Standard Oil Co. v.

U. S., 283 U. S. 235, 51 S. Ct. 429 (1931) and Piedmont &

Northern Ry. v. U. S., 280 U. S. 469, 50 S. Ct. 192 (1930),

has been carved away somewhat, though to what extent is

not clear.

See: U. S. v. I. C. C., 337 U. S. 426, 69 S. Ct. 1410

(1949) ;

But cf.: Ashland Coal € Ice Co. v. U. S., 325 U. S. 240,

65 S. Ct. 1573 (1945).

More than a negative order is involved here where the

attack on the order is the nominal basis for three judge

jurisdiction on constitutional grounds, with relief being

sought from a statute whose constitutionality is not at-

tacked or alleged.

The District Court has also overlooked Ex Parte Brans-

ford, 310 U.S. 354, 60 S. Ct. 947 (1940), where a distinction

is made between the ground of unconstitutionality of a

statute as applied, which requires a three judge court, and

the ground of the unconstitutionality of the result obtained

by use of a statute which is not attacked as unconstitutional.

The L & N Railroad has done no more than attack as uncon-

stitutional the result of an administrative act, and has not

attacked the statute as generally applied to petitions for

discontinuance. This case also holds that a three judge

court is not required unless the action complained of is

directly attributable to the statute (or an order, a fortiori).

Here the penalties and remedies as to which relief is sought

are not called for by the order or authorized by it, but in

truth and in fact are directly attributable only to the

statute.

The decision of the District Court is in conflict with the

holding in Wilentz, et al. v. Sovereign Camp, 306 U. 8. 373,

59 S. Ct. 709 (1939), wherein it is held that an injunction in

a three judge case must be directed at State officers who

are clothed with authority to enforce the challenged stat-

ute and have taken steps to enforce such statutes. In view

of Oklahoma Natural Gas Company, supra, this would

apply to the Commission’s order, but no State official has

taken any steps to enforce the order, which in fact calls for

no enforcement.

II. The decision below is in conflict with Beal, et al. v.

Missouri Pacific R. R. Corp., 312 U. 8. 45, 61 S. Ct. 418

(1941), which case indicates that if only’a single suit is

contemplated for penalties, the Supreme Court could not

say that any such irreparable injury is threatened as would

justify staying prosecution of the criminal laws of the

State and withdrawing the determination of the legal

question involved from the State courts whose appointed

PEEP OTE PTET a AeA OR! mae OURS Ie -_

5 APO py, EP IEE ty ta YI PUAN ORE A NATE ey oe oe |

function it is to decide it. In the present case, the L & N

Railroad has not alleged any possible multiplicity of suits

nor has it adduced any evidence to that effect. In fact,

there has been no move on the part of any State officer to

enforce the statute at all. The case also notes that even if

a” adverse decision were rendered in the State court caus-

i, g large penalties to be assessed against the railroad, such

penalties might well be the consequence of violation of

State law.

III. The decision below is contrary to numerous recent

holdings of the Supreme Court concerning the desirability

of Federal courts abstaining from exercising their juris-

diction on matters which are properly decided first by the

courts of the State.

Shipman v. Dupre, 339 U. S. 323 (1950)

Railroad Commission of Texas v. Pullman Co., 319

U.S. 315, 61 S. Ct. 643 (1941)

Burford v. Sun Oil Co., 319 U. S. 315, 63 S. Ct. 1098

(1943)

Chicago v. Fieldcrest Dairies, 316 U. S. 168, 62 S. Ct.

986 (1942)

A.F.L. v. Watson, 327 U. S. 582, 66 S. Ct. 761 (1946)

Township of Hillsboro v. Cromwell, 326 U. S. 620, 66

S. Ct. 445 (1948)

Stainback v. Mo Hoek Ke Lok, 336 U. S. 368, 69 S.

Ct. 608 (1949)

The same thread runs through all of the above cases, that

to avoid needless friction with state policies the Federal

judiciary should exercise a wise discretion, giving due re-

gard to the rightful independence of the state government

and the smooth working of the Federal judiciary. Is this

not especially so where the railway is in truth seeking to

escape the impact of statutes the constitutionality of which

a AS Tt Cay ame Be

it does not question, for as was pointed out by Mr. Justice

Frankfurter in the Pullman case, supra, a decision by the

State courts may avoid the necessity of a constitutional de-

cision in the Federal courts, and a ruling by a Federal

court may prove to be supplanted by a subsequent control-

ling decision of a state tribunal.

The District Court declined to abstain from exercise of

jurisdiction on the ground that there were no questions of

novel, ambiguous or undecided state law involved. But

Burford v. Sun Oil Co., supra, indicates that there is no

such limitation, so long as there are ‘‘basic problems of

State policy’’ involved, that problems of local law are to

be left to local courts where each case may be handled as

‘‘one more item’’ in a continuous series of adjudgments.

That this case is vital for the Alabama Public Service Com-

mission and the Alabama courts is made clear by the fact

that this case is the fourth in a series of such cases filed

in the same judicial district, and the parties hereto well

know that cases already are being readied by other rail-

roads who are trying to escape the process of adjustment

of a complex situation through local courts and make of a

three judge court a tribunal for appeal of administrative

orders.

Respectfully submitted,

A. A, CARMICHAEL

Attorney General

Wat.ace L. Jounson,

Assistant Attorney General

Attorneys for Defendants

APPENDIX “A”

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

Civil Action No. 698-N

LovIsviLLe AND NasHviLLe Rartroap Company, a Corpora-

tion, Petitioner,

vs.

ALABAMA Pusiic Service Commission, Gorpvon Persons, Its

President, and Jimmy Hitcucock and C. C. (Jack) Owen

Associate Commissioners, and A. A. CarmicuakEL, Attor-

ney General of the State of Alabama, Defendants

This cause coming on to be heard before a duly consti-

tuted three judge district court and having been submitted

by agreement of the parties for final decree upon the plead-

ing in the cause and upon the evidence offered herein, in-

cluding a transcript of the testimony presented at the hear-

ing before the defendant, Alabama Public Service Com-

mission, for the reasons set forth in the findings of fact,

conclusions of law and the opinion of the Court filed herein:

It is now ordered, adjudged and decreed this 3lst day

of October, 1950, as follows, viz:

(1) That the motion of the defendants to stay the call

for a three judge court, the motion to stay the proceedings

in this court, and the motion to dismiss the cause of action,

be, and they are, hereby overruled and denied.

(2) That the order of the defendant, Alabama Public

Service Commission, dated July 28, 1950, denying the peti-

tion of the plaintiff filed November 6, 1947, requesting au-

thority to discontinue the daily operation of passenger

trains Nos. 27 and 28 between Georgiana, Alabama, and

Graceville, Florida, in so far as they are operated in the

State of Alabama, be, and the same is, hereby vacated and

declared to be null, void, and of no effect.

tre

(3) That the defendants, Alabama Public Service Com-

mission, Gordon Persons, its President, Jimmy Hitchcock

and C. C. (Jack) Owen, Associate Commissioners; and A.

A. Carmichael, Attorney General of the State of Alabama,

together with the successors in office of each of them, and

their agents, servants and attorneys, be, and they are,

hereby permanently enjoined from taking any steps or

proceedings of any nature whatsoever against the plaintiff,

its officers, agents or employees, to enforce the provisions

of said order or to enforce any fines, forfeitures, penalties

or other sanctions provided by Title 48, Code of Alabama,

1940, or any remedies against the plaintiff, its officers,

agents or employees, on account of the failure to observe

the provisions and requirements of said order by discon-

tinuing the daily operation of plaintiff’s passenger trains

Nos. 27 and 28 between Georgiana, Alabama, and Grace-

ville, Florida, in so far as they are operated within the

State of Alabama; and,

(4) That the costs of court incurred in this cause be and

the same are hereby taxed against the defendants, for

which execution may issue.

Leon McCorp,

United States Circuit Judge.

Cuartes B. KennamMer,

United States District Judge.

Sipney C. Mizz,

United States District Judge.

Filed Oct. 31, 1950. O. D. Street, Jr., Clerk. By Annie

Schoolar, Deputy Clerk.

ay ERP PR PINION

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

Civil Action #698-N

LovIsvILLe AND Nasuvitte Rartroap Company, a

Corporation, Petitioner,

vs.

AaBaMA Pusiic Service Commission, Gorpon Persons, its

President, and Jimmy Hitrcucock anv C. C. (Jack) Owen,

Associate Commissioners; and A. A. Carmicnagt, Attor-

ney General of the State of Alabama, Defendants

Before Leon McCord, Circuit Judge, and Charles B. Ken-

namer and Sidney C. Mize, District Judges

Kennamer, District Judge:

Statement of the Case’ ~

This is the fourth in a series of cases recently before this

court involving similar facts and presenting the same points

of law. (Southern Railway Company, a corporation vs.

Alabama Publie Service Commission, et al., 88 Fed. Supp.

441; Southern Railway Company, a corporation, vs. Ala-

bama Public Service Commission, et al., 91 Fed. Supp. 980;

and Atlantic Coast Line Railroad Company, a corporation,

vs. Alabama Public Service Commission, et al., 92 Fed.

Supp. 579).

Plaintiff, a citizen of the State of Kentucky, petitions

this court for injunctive relief against the defendants from

proceeding to enforce sanctions provided under the laws

of the State of Alabama for failure or refusal of plaintiff

to continue the daily, except Sunday, operation of local

passenger trains Numbers 27 and 28 between Georgiana,

Alabama, and the Alabama-F lorida State Line, in violation

of an order of the defendant Commission; and that said

order be declared unlawful, null, and void and of no effect.

This court, at the outset of the hearing, announced that

the motions filed by the defendants: (a) to stay the call for

—

a three judge court, (b) to stay the proceedings in this

court, and (c) to dismiss the cause of action, would be

overruled and denied without further argument unless

counsel for the defendants desired to cite any later deci-

sions to the court, which counsel stated they were unable

to do; therefore, the court continues to adhere to the rulings

previously made, and reaffirms the following principles of

law:

As the bill challenges the validity under the Federal Con-

stitution of an order of an administrative board of the

State, acting under a State statute upon which no attack

is made as to the validity of the statute itself, and praying

for injunctive relief against the enforcement, operation or

execution of such order, a District Court, composed of three

judges, under Title 28, Section 2284, has jurisdiction.

Harkness v. Irion, 278 U. S. 92.

Oklahoma Gas Co. v. Russell, 261 U. S. 290.

Plaintiff has exhausted all administrative remedies, and

the administrative processes having been terminated, plain-

tiff has a choice of forums, it could have prosecuted an ap-

peal to the circuit court of Montgomery County, Alabama,

(Title 48, Section 79, Code of Alabama, 1940) or it could

have invoked the jurisdiction of this court in a plenary

suit.

Avery Freight Lines, Ine. v. Persons, 250 Ala. 40.

St. Louis-San Francisco RR v. Ala. Pub. Ser. Comm.

279 U.S. 560. Railway Warehouse Comm. v. Duluth

St. Ry. Co. 273 U. S. 625.

Since no suit is pending at this time in any of the courts

of the State of Alabama between the parties to, or involving

the subject matter of, this litigation, the rules of comity are

inapplicable.

Sou. Railway Co. v. Ala. Pub. Ser. Comm.

88 Fed. Supp. 441.

91 Fed. Supp. 980.

The doctrine of discretionary abstention does not here

apply. There is no ambiguous, novel or undecided State

law involved herein. The authority of the Commission to

ee —

ada sate ee ee ee eee |

-—

issue the order is not questioned. The statute under which

it acted is not attacked. The Alabama Law requires no

definitive construction or authoritative interpretation.

Sou. Railway Co. v. Ala. Pub. Serv. Comm.

91 Fed. Supp. 980.

By stipulation of the parties, the court heard the case

on both the application for a temporary and permanent

injunction.

Proceeding to the merits of the case, the court took evi-

dence and heard counsel for the respective parties, and

now makes the following findings of fact and conclusions of

law.

Findings of Fact

1. Plaintiff, a corporation organized and existing under

the laws of the State of Kentucky, is engaged as a common

carrier by railroad of persons and property in intrastate

commerce between points within the State of Alabama on

the one hance, and in interstate commerce between points

within the State of Alabama and points in other states on

the other hand, and as such common carrier is subject to

the jurisdiction of the Alabama Public Service Commission

and the Interstate Commerce Commission, respectively.

2. The defendant Alabama Publie Service Commission,

consisting of a President and two Associate Commissioners,

is a Commission created under the laws of the State of Ala-

bama (Title 48, Section 1, Code of Alabama, 1940) and

authorized under the laws of the State of Alabama to exer-

cise certain regulatory powers over the plaintiff and other

common carriers by railroad (Title 48, Section 106, Code of

Alabama, 1940). The principal office and official domicile

of said Commission and each of its Commissioners is lo-

eated in the City and County of Montgomery, and within the

middle district of Alabama. The defendant A. A. Car-

michael is Attorney General of the State of Alabama, with

his official office in, and residing in, the City and County of

Montgomery, and is by the statutes and laws of the State

of Alabama charged with the supervision and control of

legal proceedings in behalf of the State of Alabama, and

Sa eee POO RPO Say nen nay staan

is attorney for the Alabama Public Service Commission

(Title 48, Sections 50, 51, Code of Alabama, 1940).

3. This is a suit of a civil nature between citizens of

different states, and exceeds, exclusive of interest and

costs, the sum of three thousand dollars, and arises under

the 14th Amendment to the Constitution of the United

States.

4. The plaintiff, as required by Alabama Law (Title 48,

Section 35 and 106, Code of Alabama, 1940), petitioned

the defendant Commission for authority to discontinue the

daily operation of passenger trains numbers 27 and 28

between Georgiana, Alabama, and the Alabama-Florida

State Line, due to the continued heavy financial loss occa-

sioned by the daily operation of these two trains, losses

whch indicate that such daily service is not substantially

used or needed by the public.

5. Plaintiff’s petition to discontinue the operation of

trains 27 and 28 was filed with the Alabama Public Service

Commission on November 6, 1947. This petition, as in the

previous cases before this court, was, after an unwarranted,

unreasonable and unexplained delay, heard by the Commis-

sion at a final hearing begun on January 11, 1950, and

disposed of by the Commission denying the petition in an

order dated July 28, 1950.

6. Plaintiff seeks a temporary and permanent injunc-

tion against the defendants, separately and severally, from

proceeding to enforce sanctions provided under the laws

of the State of Alabama for the failure or refusal of

plaintiff to continue the operation of local passenger

trains Nos. 27 and 28, within the State of Alabama, in

violation of order No. 11641, entered by the Commission

July 28, 1950, and that said order be declared unlawful,

null, void and of no effect.

7. In lieu of the present service by train, plaintiff pro-

poses, if proper authority can be secured from the defend-

ant commission, to substitute bus service between Georgi-

ana, Alabama, and Graceville, Florida, over paved high-

way which runs practically parallel to the railroad tracks

of the plaintiff between Georgiana, Alabama, and the Ala-

bama-Florida State Line. Plaintiff proposes such service

” , . — |

-—

either by arrangement with existing certified motor car-

riers of passengers, namely Capital Motor Lines and Alaga

Coach Lines or, if necessary and proper authority can be

secured under the Alabama Motor Carrier Act of 1939, to

operate such bus service itself.

8. Plaintiff is not a common carrier of the United States

Mail. The collection and delivery of all mail is the fune-

tion of the United States Government, exclusively.

9. Plaintiff’s trains Nos. 27 and 28 operate daily, ex-

cept Sunday, between Georgiana, Alabama, and Graceville,

Florida, carrying passengers, mail, and express; train No.

27 leaves Georgiana at 7:15 A.M., scheduled to arrive at

Graceville at 10:40 A.M., and train No. 28 leaves Graceville

at 11:05 A.M., and is scheduled to arrive at Georgiana at

2:35 P.M.

10. The approximate distance between Georgiana, Alabama

and Graceville, Florida, is 86 miles. Train +27, leaving

Georgiana, makes scheduled and flag stops at the following

towns in Alabama: Rhodes, McKenzie, Shreve, Brooks,

South, Red Level, River Falls, Cawthon, Andalusia, San-

ford, Babbie, Poley, Opp, Estothel, Kinston, Lowery, Pera,

Samson, Marl, Lytle, Geneva, Thurston, Black, and High-

note. Train #28 makes the same trip in reverse.

11. The counties through which trains 27 and 28 operate

are predominantly rural and agricultural, and the Federal

Census of 1950 shows a decrease in population in these

counties since the Census of 1940.

12. The route of Capital Motor Lines parallels the

track of the plaintiff served by trains 27 and 28 from Me-

Kenzie, Alabama, to Opp, Alabama, a distance of some 38

miles. At both Opp, Alabama, and Andalusia, Alabama,

Capital Motor Lines connects with Alaga Coach Lines, and

Alaga Coach Lines then parallels the plaintiff’s track on

into Geneva, Alabama, and the Alaga Coach Lines runs on

into Dotham, Alabama, where it connects with other bus

lines operating into Graceville, Florida.

13. Capital Motor Lines does not at present have a cer-

tifieate to operate from McKenzie to Georgiana, Alabama,

and return, but they stand ready and willing, if trains 27

and 28 are discontinued, and authority is granted them by

‘...

“=

the defendant Commission, to operate such bus service. A

complete and adequate bus service between Georgiana,

Alabama and Graceville, Florida, on highway which

parallels the tracks over which trains 27 and 28 operate, is

now proposed by the Capital Motor Lines.

14. Plaintiff is now, and has for several years, operated

trains 27 and 28 at a heavy financial loss. This operating

deficit now amounts to around $188.00 per day.

15. Passenger travel on trains 27 and 28 is now, and

has been for several years, at a very low ebb, there being

times when the train crew exceeds the number of passengers

on the train.

16. There is no evidence before this court, and there was

none before the defendant Commission, to substantiate a

finding of necessity on the part of the public for the con-

tinued daily operation of trains 27 and 28, and in the

absence of such public necessity, coupled with the great

financial loss which the plaintiff is suffering by reason

of the continued operation of these trains, the order of the

Commission denying plaintiff’s application for authority to

discontinue the operation of these trains is confiscatory

in its effect and the injunctive relief prayed for should be

granted.

17. The passenger transportation revolution, resulting

from the construction of fine highways, which the railroads

are taxed to help build and maintain, coupled with the con-

venience of the private automobile and buses, has out-

moded local passenger trains Nos. 27 and 28, and caused

them to become an undesirable and unused form of trans-

portation.

18. Although negative in form, the order of the defend-

ant Commission in denying plaintiff’s petition for author-

ity to discontinue the operation of trains 27 and 28 amounts

to a command by the State that plaintiff continue to

furnish the train service involveed or suffer the conse-

quences of their abandonment. Plaintiff, in complying with

the commission’s order, continues to operate these trains

at a serious and growing financial loss, and coupled with the

absence of any necessity on the part of the public for the

continued operation of these trains, the Commission’s order

CREO MERRERC RT msateammne —

is affirmative in nature and is having the practical effect

of confiscating plaintiff’s property in violation of the

14th Amendment of the United States Constitution.

Conclusions of Law

1. Plaintiff’s suit arises under the 14th Amendment to

the United States Constitution and the matter in con-

troversy exceeds, exclusive of interest and costs, the sum

of $3,000.

2. This court has jurisdiction of the parties and of the

subject matter, and the parties are properly before the

court.

3. The questions for decision present no unresolved

question of State law.

4. Plaintiff is required by Alabama law to obtain a per-

mit from the Alabama Public Service Commission before

discontinuing regularly scheduled passenger trains.

5. Plaintiff is under no obligation to continue to offer

a service which the public will not use, where the offer is a

great financial burden, and where it is unreasonable to

demand its continuance.

6. The controlling criteria in determining whether local

passenger trains may be discontinued are these: the char-

acter and population of the territory served, the public

patronage, or lack of it, the facilities remaining, the ex-

pense of operation as compared with revenue from same,

and the operations of the carrier as a whole.

7. Plaintiff will suffer irreparable damage unless this

court permanently enjoins defendants and their successors

in office from seeking to impose the sanctions provided by

Title 48, Code of Alabama, 1940, upon discontinuance by

plaintiff of operation of its passenger trains Nos. 27 and

28 between Georgiana, Alabama and the Alabama-Florida

State Line, in opposition to the order of the defendant

Commission, Docket No. 11641, dated July 28, 1950.

8. Plaintiff has no adequate remedy at law.

9. The defendant’s order No. 11641, dated July 28, 1950,

denying plaintiff permission to discontinue trains 27 and

28, is unjust, unreasonable and confiscatory and deprives

plaintiff of its property without just compensation in

—

violation of the 14th Amendment to the Constitution of the

United States since there is no longer any public neces-

sity for this service and plaintiff is operating at a large

financial loss.

10. Plaintiff owes no common carrier obligations either

to the United States or the General Public to transport the

United States Mail.

11. An order by the defendant Commission which re-

quires the Plaintiff to operate local passenger trains Nos.

27 and 28 under circumstances as herein set forth, confis-

cates Plaintiff’s property in violation of the 14th Amend-

ment to the United States Constitution even though Plain-

tiff, in the over-all operation of its Railway system,

operates at a financial profit.

12. Plaintiff is entitled to the relief sought in the bill of

complaint.

Opinion of the Court

When viewed in all the attendant circumstances and facts,

this court is of the opinion that the defendant Commission

did not act upon the evidence presented by the plaintiff in

support of the petition to discontinue trains 27 and 28, but

has adopted an arbitrary ruling that all such local passenger

trains, irrespective of the financial loss and absence of

public necessity for their continued operation, will be

required to continue to operate.

However, irrespective of the attitude of the Commission

or its method of operation, this court is not concerned as to

the mere correctness of the method and reasoning adopted

by the regulating agency, but whether the order of the Com-

mission will result in confiscation, and that is what this court

so finds.

Leon McCorp,

United States Circuit Judge.

Cuartes B. Kennamer,

United States District Judge.

Srmwney C. Mize,

United States District Judge.

Filed Oct. 31, 1950.

O. D. Srzer, Jn., Clerk.

By Annie Scuoouar, Deputy Clerk.

PELE SAE ORI TOPE BER MS 85mm ea reaie, ey —

eens

CELLO LIONEL SRILA GO et ET cD

APPENDIX “B”

ALABAMA STATUTES

Code of Alabama 1940, Title 48:

Sec. 35. Abandonment of service, regulated ;—No utility

shall abandon all or any portion of its service to the public

except ordinary discontinuance of service for nonpayment

of charges, nonuser and similar reasons in the usual course

of business, unless and until written application is first

made to the commission for the issuance of a certificate

that the present or future public convenience or necessity

permits such abandonment, and the issuance of such a

certificate. Upon the filing of such application and after

a hearing of all parties interested, the commission may,

or may not, in its discretion, issue such certificate.

Sec. 50. Attorney General to represent commission; spe-

cial counsel provided for ;—The attorney general shall rep-

resent the public service commission in any and all legal

proceedings which it may have the power to institute

and which, pursuant to such power, it has instituted, and

in all legal proceedings against it, and shall institute such

legal proceedings which the commission may request or

deem necessary, provided it has the power to institute them,

to enforce the provisions of this title or compel obedience

to and observance of the same by any person, firm, com-

pany, or corporation, upon which such obedience or ob-

servance is imposed. The attorney general with the ap-

proval of the governor may employ any special counsel

to institute or defend such legal proceedings or to assist

the attorney general therein, and to contract with the special

counsel concerning a reasonable compensation for his or

their services, which compensation shall be paid out of the

treasury on a warrant drawn by the comptroller on the

treasury upon approval by the governor (1907, p. 43).

Sec. 76. Rehearings ;—Any time after an order has been

made by the commission, any person interested therein may

apply for a rehearing in respect to any matter determined

OCDE LE ALLO T NCTY LOE

therein, and the commission shall grant and hold such re-

hearing within sixty days after the said application therefor

has been filed, and such rehearing shall be subject to such

rules as the commission may prescribe. Application for

such rehearing shall not excuse any utility or person from

complying with or obeying an order of the commission, or

operate in any manner to stay or postpone the enforcement

thereof except as the commission may by order direct.

Any order of the commission made after such rehearing

shall have the same force and effect as an original order,

but shall not affect any right, or the enforcement of any

right, arising from or by virtue of compliance with the

original order prior to the order made after rehearing.

Sec. 78. Courts may compel compliance with orders of

commission and punish failure ;—In case of failure or re-

fusal on the part of any person to comply with any valid

order of the commission or of any commissioner, or any

subpoena, or on the refusal of any witness to testify or

answer as to any matter regarding which he may be law-

fully interrogated, any circuit court in this state, or any

judge thereof, on application of a commissioner, may issue

- an attachment for such person and compel him to comply

with such order, or to attend before the commission and

produce such documents and give his testimony upon such

matters as may be lawfully required, and the Court or

judge shall have power to punish for contempt as in cases

of disobedience of a like order or subpoena issued by or

from such court, or a refusal to testify therein.

Sec. 79. Appeals from orders of commission.—From any

final action or order of the commission in the exercise of

the jurisdiction, power, and authority conferred upon it by

this title, an appeal therefrom shall lie to the circuit court

of Montgomery County, sitting in equity, except appeals

under chapter three of this title, and thence to the supreme

court of Alabama. All appeals shall be taken within thirty

days from the date of such action or order and shall be

granted as a matter of right and be deemed perfected by

filing with public service commission a bond for security of

cost of said appeal when the appellant is a utility or person,

—

and by filing notice of an appeal when the appellant is the

State of Alabama. (1909, p. 96; 1932, Ex. Sess., p. 233.)

Sec. 81. Right to supersede order.—On any such appeal

any utility, interested party, or intervenor may supersede

any decree rendered by giving such supersedeas bond or

bonds as may be appropriate to the proceedings as pro-

vided for herein for superseding an order or orders of the

commission.

Sec. 82. Proceedings on appeal.—The commission’s

order shall be taken as prima facie just and reasonable.

No new or additional evidence may be introduced in the

circuit court except as to fraud or misconduct of some per-

son engaged in the administration of this title and affecting

the order, ruling or award appealed from, but the court shall

otherwise hear the case upon the certified record and shall

set aside the order if the court finds that: the commission

erred to the prejudice of appellant’s substantial rights in

its application of the law; or, the order, decision or award

was procured by fraud or was based upon findings of facts

contrary to the substantial weight of the evidence. Pro-

vided, however, the court may, instead of setting aside the

order, remand the case to the commission for further pro-

ceedings in conformity with the direction of the court. The

court may, in advance of judgment and upon a sufficient

showing, remand the cause to the commission for the pur-

pose of taking additional testimony or other proceedings.

(1932, Ex. Sess., p. 233.)

Sec. 84. Appeal does not supersede order ;—supersedeas

bond.—No appeal shall stay or supersede the order or ac-

tion appealed from unless the appellate court or judge

I thereof, upon hearing and nctice, after consideration of the

testimony, taken before the commission, shall so direct.

If the appeal be from an order of the commission reducing

or refusing to increase such rates, fares, charges, or any

of them, or any schedule, or part or parts of any schedule

of such rates, fares or charges, the appellate court, or judge

thereof, shall not so direct or order a supersedeas or stay

of the action or order appealed from without requiring as

i aS

— EELS NOT LE OE aI ST Smee ae

a condition precedent to the granting of said supersedeas

that the utility applying for the same shall execute and file

with the clerk of said court a bond, which bond shall be as

hereinafter provided.

Sec. 106. Permit to abandon service—No transporta-

tion company subject to this chapter shall abandon all or

any portion of its service to the public or the operation of

any of its lines, properties, or plant which would affect the

service it is rendering the public, except ordinary discon-

tinuances of service for nonpayment of charges, nonuser,

violations of rules and regulations or similar reasons in the

usual course of business, unless and until there shall first

have been filed an application for a permit to abandon

service and obtained from the commission a permit allow-

ing such abandonment.

Sec. 399. Penalty for charging excessive rates, granting

rebates, or violating commission’s order, ete.—Any utility

doing business in this state, or any of its authorized agents,

officers or employees, who is guilty of knowingly or will-

fully charging, demanding, or receiving any rate or charge

for any commodity or service different from that author-

ized by its lawful tariffs on file with the Alabama Public

Service Commission, or who is guilty of knowingly or will-

fully granting or giving to any person or persons any con-

cession or rebate in respect of its lawful charges or rates,

or who knowingly or willfully violates, or procures, aids or

abets a violation of, any lawful order or decree of said com-

mission, shall be guilty of a misdemeanor and, upon con-

viction, shall be punished by a fine of not more than one

thousand dollars for each offense. In the case of a viola-

tion of said commission’s orders or decrees, each day’s

violation shall be deemed a separate offense. (Ib.; 1932,

Ex. Sess., p. 209.)

Section 400. Violations of statutes as to reasonable rates,

adequate service and unjust discriminations; penalty.—

Every officer, agent or employee of such common carrier

or railroad corporation who shall violate or procure, aid,

or abet any violation by such common carrier, or railroad

corporation, or any of the statutes of this state relating to

reasonable rates, adequate service, and unjust discrimina-

tions of the public service of any common carrier of this

state, or who shall fail to obey, observe, or comply with any

order of the public service commission, or any provisions

of any order of said commission, or who procures, aids or

abets any such common carrier, or corporation, in its fail-

ure to obey, observe, and comply with any such order,

direction, or provision relating to reasonable rates, ade-

quate service and unjust discrimination by common car-

riers of this state, shall be guilty of a misdemeanor, and,

on conviction thereof, shall be fined not exceeding one thou-

sand dollars, to be fixed by the court. (1907, p. 23.)

Unitep States Statutes

United States Code, Title 28:

See. 1253. Direct appeals from decisions of three-judge

courts.

Except as otherwise provided by law, any party may ap-

peal to the Supreme Court from an order granting or deny-

ing, after notice and hearing, an interlocutory or perma-

nent injunction in any civil action, suit or proceeding

required by any Act of Congress to be heard and deter-

mined by a district court of three judges.

Sec. 2101. Supreme Court; time for appeal or certiorari;

docketing ; stay.

(a) A direct appeal to the Supreme Court from any de-

cision under sections 1252, 1253 and 2282 of this title,

holding unconstitutional in whole or in part, any Act of

Congress, shall be taken within thirty days after the entry

of the interlocutory or final order, judgment or decree.

The record shall be made up and the case docketed within

sixty days from the time such appeal is taken under rules

prescribed by the Supreme Court.

(b) Any other direct appeal to the Supreme Court which

is authorized by law, from a decision of a district court in

any civil action, suit or proceeding, shall be taken within

thirty days from the judgment, order or decree, appealed

from, if interlocutory, and within sixty days if final.

“SAMs ATES co ered .

waery LEE Te

bring any judgment or decree in a civil action, suit or pro-

ceeding before the Supreme Court for review shall be

taken or applied for within ninety days after the entry of

such judgment or decree. A justice of the Supreme Court,

for good cause shown, may extend the time for applying

for a writ of certiorari for a period not exceeding sixty

days.

(d) The time for appeal or application for a writ of

certiorari to review the judgment of a State court in a

criminal case shall be as prescribed by rules of the Supreme

Court.

(e) An application to the Supreme Court for a writ of

certiorari to review a case before judgment has been ren-

dered in the court of appeals may be made at any time

before judgment.

(f) In any case in which the final judgment or decree of

any court is subject to review by the Supreme Court on

writ of certiorari, the execution and enforcement of such

judgment or decree may be stayed for a reasonable time

to enable the party aggrieved to obtain a writ of certiorari

from the Supreme Court. The stay may be granted by a

judge of the court rendering the judgment or decree or by

a justice of the Supreme Court, and may be conditioned

on the giving of security, approved by such judge or justice,

that if the aggrieved party fails to make application for

such writ within the period allotted therefor, or fails to

obtain an order granting his application, or fails to make

his plea good in the Supreme Court, he shall answer for

all damages and costs which the other party may sustain

by reason of the stay. As amended May 24, 1949, c. 1939,

See. 106, 63 Stat. 104.

Sec, 2281. Injunction against enforcement of State stat-

ute; three judge court required.

An interlocutory or permanent injunction restraining

the enforcement, operation or execution of any State statute

by restraining the action of any officer of such State in the

enforcement or execution of such statute or of an order

made by an administrative board or commission acting

under State statutes, shall not be granted by any district

ai | =

7 . I OL CO OO A gt er a

court or judge thereof upon the ground of the unconstitu-

tionality of such statute unless the application therefor is

heard and determined by a district court of three judges

under Section 2284 of this title.

Sec. 2284. Three-judge district court; composition;

procedure.

In any action or proceeding required by an Act of Con-

gress to be heard and determined by a district court of

three judges the composition and procedure of the court,

except as otherwise provided by law, shall be as follows:

(1) The district judge to whom the application for in-

junction or other relief is presented shall constitute one

member of such court. On the filing of the application, he

shall immediately notify the chief judge of the circuit, who

shall designate two other judges, at least one of whom shall

be a circuit judge. Such judges shall serve as members of

the court to hear and determine the action or proceeding.

(2) If the action involves the enforcement, operation or

execution of State statutes or State administrative orders,

at least five days notice of the hearing shall be given to the

governor and attorney general of the State.

If the action involves the enforcement, operation or exe-

eution of an Act of Congress or an order of any depart-

ment or agency of the United States, at least five days’

notice of the hearing shall be given the Attorney General

of the United States, to the United States attorney for the

district, and to such other persons as may be defendants.

Such notice shall be given by registered mail by the

clerk, and shall be complete on the mailing thereof.

(3) In any such case in which an application for an inter-

locutory injunction is made, the district judge to whom the

application is made may, at any time, grant a temporary

restraining order to prevent irreparable damage. The

order, unless previously revoked by the district judge, shall

remain in force only until the hearing and determination

by the full court. It shall contain a specific finding, based

upon evidence submitted to such judge and identified by

reference thereto, that specified irreparable damage will

result if the order is not granted.

a —_ ——

(4) In any such case the application shall be given prece-

dence and assigned for a hearing at the earliest practicable

day. Two judges must concur in granting the application.

(5) Any one of the three judges of the court may perform

all functions, conduct all proceedings except the trial, and

enter all orders required or permitted by the rules of civii

procedure. A single judge shall not appoint a master or

order a reference, or hear and determine any application

for an interlocutory injunction or motion to vacate the same,

or dismiss the action, or enter a summary or final judgment.

The action of a single judge shall be reviewable by the

full court at any time before final hearing.

A district court of three judges shall, before final hearing,

stay any action pending therein to enjoin, suspend or re-

strain the enforcement or execution of a State statute or

order thereunder, whenever it appears that a State court of

competent jurisdiction has stayed proceedings under such

statute or order pending the determination in such State

court of an action to enforce the same. If the action in

the State court is not prosecuted diligently and in good

faith, the district court of three judges may vacate its

stay after hearing upon ten days’ notice served upon the

attorney general of the State.

(4028)

LEIP TUE EI POP AD PRN ECO eee tM

APR 5 155

SUPREME COURT OF THE UNITEW STATES.

OCTOBER TERM, 1950

No. 660

ALABAMA PUBLIC SERVICE COMMISSION, GOR-

DON PERSONS, Irs Preswent, er ax,

Appellants,

vs.

LOUISVILLE & NASHVILLE RAILROAD COMPANY

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF ALABAMA

)

‘ STATEMENT OPPOSING JURISDICTION AND

MOTION TO DISMISS OR AFFIRM

5 ee

W. A. Norrucutt,

: Rosert E. Steiner, /k.,

Counsel for Appellees.

ne Rtn

| Nas a i

He NSE IR PE ae eM SY et tee

OE RE Sy IE a ee ts AD fare

PPR YON TENE Cpe ks me ps ne

c be Be a es — |

INDEX

Sussect Inpex

Statement opposing jurisdiction and motion to dis-

OR ins hci veialan dike haere os 1

Statement of the issues on appeal............. 2

SS Ge GID, ovoid pus cee e¥ er thea baues st 3

No substantial federal question is presented... . 6

Appendix—Applicable statutes ................... 5

Tasie or Cases CiTep

Alabama Public Service Commission v. A.C.L. R. Co.,

SS FO ert an er ee 12

Ann Arbor R. Co. v. Michigan Public Service Com-

enlonion, C6 FT Ge sv haves s5 oaagencp A tacnes 7

Atlantic Coast Line R. Co. v. Alabama Public Service

Commission, 92 F. Supp. 579....................

Atlantic Coast Line R. Co. v. Public Service Commis-

sion of Montana,78 F.Supp.1010................ 8

Beal v. Missouri Pacific R. Co., 312 U. 8S. 45, 85 L. ed.

ONG. vcccavedestivkcrcslackutsinsde oe

Chicago, B. € Q. R. Co. v. Board of Railroad Com-

missioners of Montana, 78 F. Supp. 1010......... 8

Cline v. Frink Dairy Co., 274 U. 8S. 445, 71 L. ed.

BOD vse cwee boecguccacéinre tenet

Corporation Commission of Oklahoma v. Cary, 296

SF 8 eS ee See 9,11

Delaware L. & W. R. Co. v. Van Santvoord, 232 F.

DE ob cues py beeee weed dene cue

Driscoll vy. Edison Lt. d Pr. Co., 307 U. 8. 104, 83 L.

RS bed eke diese ae , Core hla oe eaten ies 9

Great Northern R. Co. v. Nagle, 16 F. Supp. 532... .. 8

Herkness v. Irion, 278 U. 8. 92, 73 L. ed. 198........ 8

Mississippi Railroad Commission v. Mobile & O. R.

Co., 946 U. @. SOB, GB La otk. BBM. 2.00 vce ccccces 8

Mountain States Power Co. v. Public Service Com-

mission, 299 U. S. 167 81 L. ed. 99.............. We

= Were reseed

ii INDEX

Oklahoma Natural Gas Comm. v. Russell, 261 U. 8S.

. et Fe Sf Meret cree

Phillips v. U. S., 312 U. S. 246, 85 L. ed. 800.........

Southern Ry. Co. v. Alabama Public Service Comm.,

5 SY errr irre re ree

Southern Ry. Co. v. Alabama Public Service Comm.,

8S Pn ee

Spielman Motor Sales Co. v. Dodge, 295 U. 8. 89, 79

rr rrr rere

Sterling v. Constantin, 287 U.S. 378, 77 L. ed. 375. .

West Ohio Gas Co. v. P. U. Comm. of Ohio, 294 U. S.

Me | a Serr roy rr

Statutes CrTEep

Alabama Code of 1940, Title 48, Sections 35, 77 and

SD 3s «vnc eel oe eeease VaaseureeTds1a ane

Constitution of the United States:

Article I, Section8 ..... ieee ee veeae ky aera

Ot eS on 6 wae uded one waenee

United States Code, Title 28:

ee eso OS aaa b pean

gg or Naa ra gle we onan

NFS Sem — |

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

Civil Action 698 N

LOUISVILLE AND NASHVILLE RAILROAD COM-

PANY, a Corporation,

-_ Plaintiff,

ALABAMA PUBLIC SERVICE COMMISSION, GOR-

DON PERSONS, Irs Presiwent, anv JIMMY HITCH-

COCK anv C. C. (JACK) OWEN, Assoctare Commis-

stoners; anD A. A. CARMICHAEL, Arrorney Genera

or ALABAMA, Defendants

APPELLEE’S MOTION TO DISMISS OR AFFIRM AND

STATEMENT AS TO JURISDICTION

Appellee, Louisville and Nashville Railroad Company,

believing that the matters set forth below demonstrate the

lack of substance in the questions raised by this appeal,

files this its statement in opposition to appellants’ state-

ment as to jurisdiction. Appellee also files this its motion

to dismiss the appeal, or in the alternative to affirm the

judgment of the court below on the ground that the ques-

tions raised by appellants are unsubstantial.

While the cause is one which would otherwise be review-

able by the Supreme Court on direct appeal, appellee as-

Pa V ,

ry OT ROE RRP ERY

“3

serts that the unsubstantial character of the grounds stated

by appellants is so apparent as to warrant this court in

summarily disposing of this appeal without further hear-

ing. Appellee further shows that the judgment of the court

below must, in any event, be affirmed upon the findings of

that court as to the confiscatory character of the order of

Alabama Public Service Commission sought to be enforced

by appellants, but enjoined by the court below.

Statement of the Issues on Appeal

Only procedural questions are raised in this appeal by

appellants. Appellants have not raised any issue as to the

correctness of the decision of the court below on the merits

or facts in its holding that the contested order of Alabama

Public Service Commission was confiscatory and unconsti-

tutional.

The procedural and only issues involved in this appeal

are:

(a) Since the complaint prayed for an interlocutory

and permanent injunction to restrain the confiseatory

and unconstitutional order of Alabama Public Service

Commission under an Alabama statute, was a 3-judge

court the proper tribunal to hear and decide the case?

(b) Since confiscation of plaintiff’s property by the

order of Alabama Public Service Commission was al-

leged and proved, should the 3-judge Federal Court

surrender its jurisdiction to state courts where no

speedy, plain and efficient remedy was afforded

therein?

(ec) Where all material facts showing that the order

of Alabama Public Service Commission was confisca-

tory and unconstitutional were proved, should the Fed-

eral Court abandon or decline jurisdiction because in

moulding its decree against the enforcement of such

confiscatory and unconstitutional order, incidental re-

eT NEE SIRENS TINS HN, emnaanenaneen

adaieh dail ax che > Her NC

; OY NL TL RRR MORN HAE Mew he See tm

lief was granted by enjoining the enforcement of state

penalty statutes which would otherwise be applicable

to plaintiff-appellee upon its failure or refusal to com-

ply with such order?

Statement of Facts

The facts leading to this litigation are as follows:

For many years, Louisville and Nashville Railroad Com-

pany, plaintiff-appellee, has operated passenger trains Nos.

27 and 28 between Georgiana, Alabama and Graceville,

Florida. In recent years, the operation of these trains has

resulted in increasingly large losses because of the compe-

tition of other forms of transportation, particularly that of

buses and privately owned motor vehicles. L & N could

not discontinue trains 27 and 28 until it received authority

from Alabama Public Service Commission, as required by

Title 48, Sections 35 and 106, Alabama Code of 1940 (see

appendix). If it had discontinued such service without

authority, L & N and its officers would be subject to the

heavy penalties provided by the applicable Alabama stat-

utes (see appendix).

On November 6, 1947, L & N filed its application with

appellant Alabama Public Service Commission for author-

ity to discontinue these passenger trains insofar as their

intrastate operation between Georgiana, Alabama, and the

Alabama-F lorida state line was concerned in order to elim-

inate the heavy losses involved in their operation. (It is a

matter of record about which there can be no dispute, that

since the decision of this case by the court below, the

Florida Commission granted appellee’s application to dis-

continue operation of these passenger trains within the

State of Florida). After protracted delay, notwithstand-

ing repeated requests for a hearing, the Alabama Commis-

C07 A NURI, Rep

sion set the case for hearing on August 19, 1948, in Anda-

lusia, Alabama. L & N introduced and concluded its

evidence at said hearing, but over its objection, the case

was continued for further hearings. Again came protracted

delay, notwithstanding repeated requests for an early con-

clusion of the case, but it was not until January 11, 1950

that further hearing was had and the case taken for an

order.

Under the law of Alabama (Title 48, Section 77, Code of

Alabama of 1940, see appendix), the Alabama Commission

is required to decide all cases submitted to it within 90 days,

provided that it can extend the time for decision an addi-

tional 90 days ‘‘for good cause shown’’. Although 29

months had then elapsed, the Alabama Commission ex-

tended the time for decision an additional 90 days, the

‘good cause’’ assigned being the furnishing of 1950 census

figures—a matter of which the Commission and the courts

take judicial notice. At long last, on July 28, 1950, the

Commission issued its order denying L & N’s application

and requiring the continued operation of these trains.

Thus for 32 months and 22 days, the Alabama Commission

required L & N to operate these two passenger trains in

Alabama at an out of pocket loss to it of approximately

$56,000 per year, amounting to $188.00 per day at the end

of said period, and averaging $166.00 per day throughout

the entire period. Thus during the period from the time

when L & N filed its petition to discontinue these trains

to the date of the Alabama Commission’s final order deny-

ing the application and requiring the continued operation

of these trains, L & N sustained an out of pocket loss of

more than $160,000.00.

Having futilely pursued its ‘administrative remedies”’

for 32 months and 22 days without relief, appellee then

sought relief by filing its complaint in the Federal Court

: ae oven

—

praying for an interlocutory and permanent injunction, on

the ground that the order of the Alabama Commission

requiring the continued operation of these passenger trains

violated the 14th Amendment of the Constitution of the

United States by taking its property without due process

of law, by confiscating its property without just compensa-

tion; and violated Article 1, Section 8 of the Constitution

of the United States by imposing an unreasonable burden

on interstate commerce and on interstate freight and

passenger rates.

Incidental and ancillary to the primary relief of enjoining

the Alabama Commission’s order requiring the continued

operation of these passenger trains, appellee sought also

to enjoin the Commission and the Attorney General of

Alabama from enforcing the heavy penalties and sanctions

provided by the statutes of Alabama (see appendix) for

failure to comply with orders of Alabama Public Service

Commission.

By the provisions of 28 U.S.C.A., Sections 2281 and 2284

(see appendix) and the unbroken line of decisions con-

struing these sections, a proceeding to set aside or enjoin

the enforcement of an order of a state administrative board

or commission, as violative of the United States Consti-

tution, requires the more solemn statutory 3-judge court

as distinguished from the District Judge sitting alone.

Such court was convened, and by stipulation of the parties

the case was submitted on the merits for final decree and

injunction as well as on the prayer for an interlocutory

injunction. After hearing and considering the evidence,

the 3-judge court held the Alabama Commission’s order to

be confiscatory and unconstitutional, and enjoined defend-

ants from enforcing it or any penalties or sanctions against

the railroad because of the discontinuance of the two

passenger trains involved.

— - ee ee ee

The Court in its findings, opinion and order held that the

order of the Commission was illegal and confiscatory and

deprived the L & N of its rights guaranteed by the United

States Constitution. No appeal has been taken from that

finding. (A copy of the 3-judge court’s decree, findings of

fact, conclusions of law and opinion are attached to

appellant’s ‘‘Statement as to Jurisdiction’’).

Ill

No Substantial Federal Question Is Presented

Appellants at the outset question the jurisdiction of the

3-judge District Court, on the theory that since Appellee

did not attack the constitutionality of a state ‘‘statute,”’

but instead attacked the constitutionality of the ‘‘order’’

of Alabama Public Service Commission requiring the con-

tinued operation of Trains 27 and 28, there was no juris-

diction in the 3-judge court pursuant to section 2281, Title

28, U.S.C. (See appendix).

Section 2281 was formerly section 380 of Title 28, U.S.C.,

or section 266 of the Judicial Code.

This feigned issue was decided against the State’s con-

tention in Oklahoma Natural Gas Co. v. Russell, 261 U.S.,

290, 292, 67 L. Ed., 659, 661 (1923), in the cleareut opinion

written by Mr. Justice Holmes for a unanimous court:

‘*A doubt has been suggested whether these cases

are within Section 266 of the Judicial Code, Act of

March 3, 1911, chap. 230, 36 Stat. at L. 1086, 1162, as

amended by the Act of March 4, 1913, chap. 160, 37 Stat.

at L. 1013, Comp. Stat. Section 1243, 5 Fed. Stat. Anno.

2d ed. p. 984. The section originally forbade interlocu-

tory injunctions restraining the action of state officers

in the enforcement or execution of any statute of a

state, upon the ground of its unconstitutionality, with-

out a hearing by three judges. The amendment in-

serted after the words ‘enforcement or execution of

such ‘statute’ the woris ‘or in the enforcement or

execution of an order made by an administrative board

or commission acting under and pursuant to the statutes

of such state’; but did not change the statement of the

ground, which still reads, ‘the unconstitutionality of

such statute’. So if the section is construed with nar-

row precision it may be argued that the unconsitution-

ality of the order is not enough. But this court has as-

sumed repeatedly that the section was to be taken more

broadly. Louisville & N. R. Co. v. Finn, 235 U.S. 601,

604, 59 L. Ed. 379, 382, P.U.R. 1915A, 121, 35 Sup. Ct.

Rep. 146; Phoenix R. Co. v. Geary, 239 U.S. 277, 280,

281, 60 L. Ed. 287-289, 36 Sup. Ct. Rep. 45; Cumber-

land Teleph. & Teleg. Co. v. Louisiana Pub. Serv. Com-

mission, November 20, 1922 (260 U.S. 212, ante 217,

43 Sup. Ct. Rep. 75); Western & A.R. Co. v. Railroad

Commission, February 19, 1923 (261 U.S. 264, ante,

645, 43 Sup. Ct. Rep. 252). The amendment seems

to have been introduced to prevent any question that

such orders were within the section. It was super-

fluous, as the original statute covered them. Leuis-

ville & N. R. Co. v. Garrett, 231 U.S. 298, 301, 318, 58

L. Ed. 229, 238, 244, 34 Sup. Ct. Rep. 48; Atlantic

Coast Line R. Co. v. Goldsboro, 232 U.S. 548, 555, 58

L. Ed. 721, 725, 34 Sup. Ct. Rep. 364; Grand Trunk

Western R. Co. v. Railroad Commission, 221 U.S. 400,

403, 55 L. Ed. 786, 787, 31 Sup. Ct. Rep. 537. But it

plainly was intended to enlarge, not to restrict, the

law. We mention the matter simply to put doubts to

rest.’’

Other railroads, similarly situated, have applied for and

received identical relief from 3-judge Federal courts con-

vened in various states and jurisdictions in the following

cases :

Ann Arbor R. Co. v. Michigan Public Service Com-

mission, 91 F. Supp. 668 (D. C., E.D. Michigan, July

6, 1950) ;

Southern Ry. Co. v. Ala. Public Service Commission,

91 F. Supp. 980 (D. C., M. D. Alabama, July 20,

1950) ;

Southern Ry. Co. v. Ala. Public Service Commission,

88 F. Supp. 441 (D. C., M. D. Alabama, Feb. 8, 1950) ;

Chicago, B. & Q. R. Co. v. Board of Railroad Commis-

sioners of Montana, 78 F. Supp. 1010 (D. C. Montana

1947) ;

Atlantic Coast Line R. R. Co. v. Public Service Com-

mission of South Carolina, 77 F. Supp. 675 (D. C., E.

D. South Carolina 1948) ;

Northern Pacific Ry. Co. v. Board of Railroad Com-

missioners of Montana, 46 F. Supp. 340 (D. C. Mon-

tana 1942);

Great Northern Ry. Co. v. Nagle, 16 F. Supp. 532 (D.C.

Montana 1936) ;

Delaware, L. d W. R. Co v. Van Santvoord, et al, 232

F. 978, (D. C., N. D. New York 1916) ;

Mississippi Railroad Commission v. Mobile & O. R.

Co., 244 U. S., 388, 61 L. Ed. 1216 (1917) ;

Atlantic Coast Line R. R. Co. v. Ala. Public Service

Commission, 92 F. Supp. 579 (D. C., M D. Alabama,

Aug. 23, 1950).

Obviously those courts were unanimous in their opinion

that a 3-judge Federal court had jurisdiction, since in none

of those cases was there any dissenting opinion or any hint

of doubt that such jurisdiction existed.

Other cases in which the United States Supreme Court

held proper the convening of a 3-judge Federal court to

enjoin an order of a state administrative board or commis-

sion, following Mr. Justice Holmes in the Oklahoma Nat-

ural Gas case, are:

Sterling v. Constantin, 287 U. S., 378, 77 L. Ed. 375

(1932) ;

Herkness v. Irion, 278 U. S., 92, 73 L. Ed. 198 (1928) ;

- me awh *

DP asrace. ter roe

Driscoll v. Edison Lt. & Pr. Co., 307 U. 8. 104, 83 L. Ed.

1134 (1938) ;

Corporation Commission of Oklahoma v. Cary, 296

U.S., 452, 80 L. Ed. 324 (1935) ;

Mountain States Power Co. v. Public Service Commis-

sion, 299 U. S., 167, 81 L. Ed. 99 (1936).

The order of the Alabama Commission sought to be en-

joined by appellee was found and held by the court below

to be confiscatory and violative of the 14th Amendment of

the Federal Constitution. Appellee had long suffered such

confiscation awaiting the hearing of its petition to discon-

tinue these trains and the Commission’s delayed decision.

It was entitled to a plain, speedy and efficient remedy to

relieve it from further confiscation.

‘Present confiscation is not atoned for by merely hold-

ing out the hope of a better life to come.’’ Mr.

Justice Cardozo in West Ohio Gas Co. v. P. U. Comm.

of Ohio, 294 U. S., 79, 83, 79 L. Ed., 773, 777.

It sought and obtained such relief in a Federal Court.

In this appeal, the Alabama Commission has not challenged

the correctness of the decision of the court below on the

merits and the facts of the case that, under the evidence,

the order of the Alabama Commission was confiscatory and

illegal. Certainly appellants cannot contend that its order

challenged and complained of in the court below *thad the

quality of a supreme and unchallengeable edict, overriding

all conflicting rights of property, and unreviewable through

the judicial power of the Federal Government. If this

extreme position could be deemed to be well taken, it is

manifest that the fiat of [Alabama Public Commission],

and not the Constitution of the United States, would be the

supreme law of the land.’’—Mr. Chief Justice Hughes in

Sterling v. Constantin, 287 U. S., 378, 397, 77 L. Ed., 375,

385.

a ——

ae ee

Undoubtedly, this was a case for a 3-judge court. Can it

be that this appeal by the Alabama Commission is simply

another step in the long series of delays that have attended

the course of this case—32 months and 22 days having

elapsed from the filing of appellee’s application to discon-

tinue the trains to the Commission’s order denying such

application? Even if we were to assume that the 3-judge

court did not have jurisdiction over the case, the proceed-

ings before it and its order and judgment would not be

void, and the Supreme Court would not order the case dis-

missed, but would simply reverse and remand the case

for an order by the single judge of the District Court below.

—Phillips v. U. S., 312 U. S., 246, 85 L. Ed., 800 (1941).

That Judge was a member of the 3-judge court, and it was

he who wrote the opinion of that court in this case. Obvi-

ously, he would reach the same conclusion if he were decid-

ing the case alone. Therefore, what does it profit the

Alabama Commission to appeal solely from the procedure

—not complaining of or attacking the correctness of the

decision of the court below on the merits and facts of the

case—other than further delay? If appellants contend that

this case was one for decision by a single District Judge

sitting as a District Court, rather than one for a 3-judge

court, then obviously the same result or decision would be

reached, If appellants contend that even a single District

Judge sitting as a District Court had no jurisdiction over

the case, then the entire system of concurrent Federal

jurisdiction over violations of the Federal Constitution

would cease.

Appellants next contend that the Federal Court should

have declined to exercise jurisdiction in this case for rea-

sons of comity.

**Rules of comity or convenience must give way to

constitutional rights,’’

+i ha dae ee. |

—

Mr. Justice Holmes in Oklahoma Natural Gas Co. v.

Russell, 261 U. S., 290, 293, 67 L. Ed., 659, 662.

Other cases holding that the Federal Court properly

exercises jurisdiction in cases involving confiscation and

Federal constitutional questions are:

Corporation Commission of Oklahoma v. Cary, 296

U. S., 452, 80 L. Ed., 324 (1935);

Mountain States Power Co. v. Public Service Comm. of

Montana, 299 U. S., 167, 81 L. Ed., 99 (1936).

Section 2284(5) of Title 28, U. S. C., furnishes the test

of when proceedings in the Federal Court should be stayed,

namely, when like proceedings are pending in a state court

having jurisdiction thereover. Here, no such proceedings

were or are pending in the state courts of Alabama.

There has been no authoritative declaration by the courts

of Alabama that appellee has the right to supersede an

order of the Alabama Public Service Commission in a train

discontinuance case under the provisions of Title 48, Sec-

tion 84 (see appendix), and no statement or admission to

that effect by the Attorney General of Alabama can in any

way bind the courts of Alabama. Thus it cannot be said

that appellee’s remedies in the state court are ‘‘plain’’ or

‘‘efficient.’’ Appellee sought relief from the state adminis-

trative body for almost 33 months without avail. It sought

and obtained relief from the Federal District Court in

approximately 36 days. No further comment need be made

as to whether state remedies are as ‘‘speedy’’ as Federal

in this ease. Furthermore, where confiscation is alleged

and proved under the Federal Constitution, nothing can

preclude the jurisdiction of the Federal Court thereover.

The allegations of appellee in its complaint, and the

findings and decision of the court below that the order of

the Alabama Commission was confiscatory and unconsti-

tutional are unchallenged in this appeal. Thus the con-

tention of appellants that the court below should decline

to exercise jurisdiction because of ‘‘complicated questions

of fact’’ is entirely without merit. There is no novel

question of state law or state policy involved in this case.

There was and is involved in it the question of confiscation

under the Federal Constitution. As to the policy of the

State, that was decided in Alabama Public Serv. Comm. v.

A. C. L. R. Co., 45 So. (2d) 449, 451 (Ala. Sup. Ct. Mareh,

1950,) where the Court said:

‘“‘There is no other railroad service in that area.

There is a good hard surface road and bus service for

passengers in all direction, with one truck freight com-

mon carrier. The passenger patronage would not de-

mand a continuance of the railroad service’’ (emphasis

supplied).

This case is the fourth of a series of like cases in which

the Alabama Commission has arbitrarily and unconstitu-

tionally ordered railroads to continue unprofitable passen-

ger service in spite of the policy laid down by the Alabama

Supreme Court; and in all of them such orders have been

enjoined by a 3-judge court. Two additional and subse-

quent orders of the Alabama Commission requiring the

continuance of passenger train service are now before 3-

judge courts in Alabama on applications for injunction. The

Alabama Commission, by its order in this ease, has ignored

the pronouncement of the Alabama Supreme Court and the

decisions of the 3-judge courts, and it now asks the Supreme

Court to make the order of the Alabama Commission, even

though confiseatory, supreme by surrendering jurisdiction.

As to enjoining penalties or sanctions; Appellants com-

plain that the court below enjoined them from undertaking

to apply any penalties or sanctions against appellee for its

failure or refusal to continue the operation of the trains in

question. In fact, appellants contend that a Federal Court

has no right to enjoin the enforcement of a state criminal

law. Such is not an issue here, nor is it involved. The

relief sought by appellee’s complaint, and the real relief

granted by the 3-judge court below, was against confisca-

tion of appellee’s property, which would have resulted from

requiring the continued operation of trains with such heavy

financial losses. The court below found and decided that

appellee was entitled to relief, and accordingly enjoined the

enforcement of the order of the Alabama Commission.

Obviously such relief would be ineffectual if appellee, or

its representatives, could be harassed by penalties or

prosecutions under any penalty statutes of Alabama for

failure to comply with the Alabama Commission’s order,

which order the court below had set aside and held to be

illegal and confiseatory. By this action, the court below

made its decree effective.

Clearly this action comes under the well defined excep-

tion established by this Court in the case of Cline v. Frink

Dairy Co., 274 U. 8. 445, 451, 71 L. Ed., 1146, 1150 (1927) :

«* * * But an exception to this rule exists when

the prevention of such prosecutions under alleged un-

constitutional enactments is essential to the safe-

guarding of rights of property, and when the circum-

stances are exceptional and the danger of irreparable

loss is both great and immediate (citing other U. 8.

Supreme Court cases)’’.

A similar holding is Beal v. Missouri Pacific R. Co., 312

U.S., 45, 49, 85 L. Ed., 577, 579 (1941). See also Spielman

Motor Sales Co. v. Dodge, 295 U. 8., 89, 79 L. Ed., 1322

(1935). P

Appellee further submits that questions presented in this

appeal have been so definitely determined by decisions of

the Supreme Court, following which so many 3-judge courts

Sel A dit

‘> 14

have assumed jurisdiction over like cases, that no substan-

tial Federal question is presented by this appeal which

would entitle appellants to invoke the jurisdiction of the

Supreme Court of the United States.

Wuenrerore, appellee respectfully moves that this appeal

be dismissed, or that the judgment and decree of the Court

below be affirmed.

Respectfully Submitted,

(S.) W. A. Norrucutt,

Louisville, Kentucky,

(S.) Rosert EF. Sterver, Jr.,

Montgomery, Alabama,

Attorneys for Louisville and Nashville

Railroad Company, Appellee.

(S.) Srerver, Crum & Baker,

Montgomery, Alabama,

Of Counsel.

PSTN LSE NGM IOMTO RET PO, SIDE LA II LIGASE I RE Te Na a _ _ as

APPENDIX

ALABAMA STATUTES

All citations are to the Code of Alabama of 1940.

Abandonment of Service:

Title 48, section 35.

‘‘No utility shall abandon all or any portion of its service

to the public except ordinary discontinuance of service for

nonpayment of charges, nonuser and similar reasons in the

usual course of business, unless and until written applica-

tion is first made to the commission for the issuance of a

certificate that the present or future public convenience or

necessity permits such abandonment, and the issuance of

such a certificate. Upon the filing of such application, and

after a hearing of all parties interested, the commission

may, or may not, in its discretion, issue such certificate.’’

Title 48, section 106.

‘‘No transportation company subject to this chapter shall

abandon all or any portion of its service to the publie or

the operation of any of its lines, properties, or plant which

would affect the service it is rendering the public, except

ordinary discontinuance of service for nonpayment of

charges, nonuser, violations of rules and regulations or

similar reasons in the usual course of business, unless and

until there shall first have been filed an application for a

permit to abandon service and obtained from the commis-

sion a permit allowing such abandonment.”’

Time for Decision:

Title 48, section 77.

“The commission shall within ninety days after the

completion of the hearings and arguments, if any, and the

filing of briefs, if any, in any case submitted to it, or upon

a rehearing thereof, decide said cause, or if for any good

and valid reason it shall be unable to decide the same within

said period, then at the expiration of said ninety day pe-

riod, the commission shall make and file and serve upon all

the interested parties a written order stating its reason for

its inability to decide said cause within said time, and may

extend the time for decision for a period not to exceed

ninety days.’’

Penalty Statutes:

Title 48, section 78.

‘‘In case of failure or refusal on the part of any person

to comply with any valid order of the commission or of any

commissioner, or any subpoena, or on the refusal of any

witness to testify or answer as to any matter regarding

which he may be lawfully interrogated, any circuit court

in this state, or any judge thereof, on application of a

commissioner, may issue an attachment for such person

and compel him to comply with such order, or to attend be-

fore the commission and produce such documents and give

his testimony upon such matters as may be lawfully re-

quired, and the court or judge shall have power to punish

for contempt as in cases of disobedience of a like order or

subpoena issued by or from such court, or a refusal to

testify therein.”’

Title 48, section 163.

‘‘Every violation of the provisions of this chapter, or

of any order, decision, rule, regulation, direction, or re-

quirement of the commission, or any part or portion

thereof, by any transportation company, is a separate and

distinct offense, and in case of a continuing violation each

day’s continuance thereof shall be a separate and distinct

offense. In construing and enforcing the provisions of this

chapter relating to penalties, the act, omission, or failure

of any officer, agent, or employee of any transportation

company acting within the scope of his official duties or

employment shall in every case be deemed to be the act,

omission or failure of such transportation company.”’

Title 48, section 399.

‘‘Any utility doing business in this state, or any of its

authorized agents, officers or employees, who is guilty of

PR RLS harp

cieettinteeilain ta 4

knowingly or willfully charging, demanding, or receiving

any rate or charge for any commodity or service different

from that authorized by its lawful tariffs on file with the

Alabama public service commission, or who is guilty of

knowingly or willfully granting or giving to any person

or persons any concession or rebate in respect of its lawful

charges or rates, or who knowingly or willfully violates,

or procures, aids or abets a violation of, any lawful order

or decree of said commission, shall be guilty of a misde-

meanor, and, upon conviction, shall be punished by a fine

of not more than one thousand dollars for each offense.

In the case of a violation of said commission’s orders or

decrees, each day’s violation shall be deemed to be a sep-

arate offense.’’

Title 48, section 400.

‘Every officer, agent, or employe of such common carrier

or railroad corporation who shall violate or procure, aid or

abet any violation by such common earrier, or railroad

corporation, of any of the statutes of this state relating to

reasonable rates, adequate service, and unjust diserimi-

nations of the public service of any common carrier of this

state, or who shall fail to obey, observe, or comply with any

order of the public service commission, or any provisions

of any order of said commission, or who procures, aids or

abets any such common carrier, or corporation, in its fail-

ure to obey, observe, and comply with any such order,

direction, or provision relating to reasonable rates, ade-

quate service and unjust discrimination by common car-

riers of this state, shall be guilty of a misdemeanor, and,

on conviction thereof, shall be fined not exceeding one

thousand dollars, to be fixed by the court.’’

Supersedeas:

Title 48, section 84.

‘‘No appeal shall stay or supersede the order or action

appealed from unless the appellate court or judge thereof,

upon hearing and notice, after consideration of the testi-

mony, taken before the commission, shall so direct. If the

appeal be from an order of the commission reducing or

refusing to grant such rates, fares or charges, or any of

them, or any schedule, or part or parts of any schedule of

such rates, fares or charges, the appellate court, or judge

thereof, shall not so direct or order a supersedeas or stay

of the action or order appealed from without requiring as

a condition precedent to the granting of said supersedeas

that the utility applying for the same shall execute and file

with the clerk of said court a bond, which bond shall be as

hereinafter provided.”’

Unitep States STaTUTES

U. S. Code, Title 28, section 2281:

‘An interlocutory or permanent injunction restraining

the enforcement, operation or execution of any State statute

by restraining the action of any office of such State in the

enforcement or execution of such statute or of an order

made by an administrative board or commission acting

under State statutes, shall not be granted by any district

court or judge thereof upon the ground of the unconstitu-

tionality of such statute unless the application therefor is

heard and determined by a district court of three judges

under section 2284 of this title.’’

U. S. Code, Title 28, section 2284:

‘“‘In any action or proceeding required by Act of Con-

gress to be heard and determined by a district court of

three judges the composition and procedure of the court,

except as otherwise provided by law, shall be as follows:

(1) The district judge to whom the application for in-

junction or other relief is presented shall constitute one

member of such court. On the filing of the application, he

shall immediately notify the chief judge of the circuit, who

shall designate two other judges, at least one of whom

shall be a circuit judge. Such judges shall serve as mem-

bers of the court to hear and determine the action or pro-

ceeding.

‘«(2) If the action involves the enforcement, operation or

execution of State statutes or State administrative orders,

we = POLIT PEP

_——

at least five days notice of the hearing shall be given to the

governor and attorney general of the State.

“Tf the action involves the enforcement, operation or

execution of an Act of Congress or an order of any depart-

ment or agency of the United States, at least five days’

notice of the hearing shall be given to the Attorney General

of the United States, to the United States attorney for the

district, and to such other persons as may be defendants.

‘Such notice shall be given by registered mail by the

clerk, and shall be complete on the mailing thereof.

‘¢(3) In any such case in which an application for an in-

terlocutory injunction is made, the district judge to whom

the application is made may, at any time, grant a temporary

restraining order to prevent irreparable damage. The

order, unless previously revoked by the district judge, shall

remain in force only until the hearing and determination

by the full court. It shall contain a specific finding, based

upon evidence submitted to such judge and identified by

reference thereto, that specified irreparable damage will

result if the order is not granted.

««(4) In any such case the application shall be given

precedence and assigned for a hearing at the earliest prac-

ticable day. Two judges must concur in granting the ap-

plication.

(5) Any one of the three judges of the court may per-

form all functions, conduct all proceedings except the trial,

and enter all orders required or permitted by the rules of

civil procedure. A single judge shall not appoint a master

or order a reference, or hear and determine any application

for an interlocutory injunction or motion to vacate the .

same, or dismiss the action, or enter a summary or final

judgment. The action of a single judge shall be reviewable

by the full court at any time before final hearing.

‘‘A district court of three judges shall, before final hear-

ing, stay any action pending therein to enjoin, suspend or

restrain the enforcement or execution of a State statute or

order thereunder, whenever it appears that a State court

of competent jurisdiction has stayed proceedings under

such statute or order pending the determination in such

State court of an action to enforce the same. If the action

in the State court is not prosecuted diligently and in good

faith, the district court of three judges may vacate its stay

after hearing upon ten days notice served upon the attorney

general of the State.’’

(4029)

IO PY HEIL OU LAT EME OI OE YE A EE RT Te. #

PENT OT ELE I I LOD Tent

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.