Statement as to Jurisdiction — Alabama Pub. Serv. Comm'n v. Southern R. Co.

Se

of LIBRARY |

SUPREME COURT. vu. a

f uy « 4

"SUPREME Sad oF THE , UNITE na _ OC 8

bt

Fee

‘ALABAMA PUBLIC: c SERVICE Ct MISSION, ET AL,

, t ; ; i wire eae i

. orn 5 ‘ _ eee eae ae) * aes pict ay i Se ay Ree Gan Ker ine Atty " ; Sees ve

rare oF oe ony Sea eS 2 SOVERN Sao eS a see Seen ee. Wreanutin eae ahs ee jpPeanen eee

Seater S =% Altea : i haa hae ate a : a See 3 oer Sg gO ery

“at, ‘ = ee 2 ne ueeoigs, tite my j pitt Pie Sars Ae ee ON airs v,

:e Sea Sata coe ie SDR pea put Sta om Taste ieee ve Me Sa va cdi ona EIS Fas ee S

- ; ms > i oe te ae | cust He: “f : ey

4 z ae , ee Bee ssh PS ay *. 4 =

= As AIS Etec Ce RS Og See eR rs \ Sette

4 iets Se Satire te ey Peas ss Sat " ere

: Reape ea ONE ANE Ficaete AG ss

; : SAP ih tela oA IN Fee | ppt )

- % % ® R

oe.

ee e bor

ee ‘Wasaee L James, anal te

ee son ane

ee a Oe a Govern,

=~\ Me eee a Coane for Apis,

neh aea Te :

SRA UN OPES Opes v0.

et Mtg eee hs .

* E

a

me je ees fees

‘ “INDEX Nee ia hee

eae + Susser Typex (ie eae :

‘Statement as to jurisdiction. eau t ers emus os ae ey

°: “Opinion below .....--.. 8h qe c teen et ees reeks |

SS WPOWON 2. eves yes ee ha en bas te pepe

~ Question presented 2 ia wl

. Statutes involved ch vey Ree ie Rei er ons pest

_ Statement ...°.:... Sten. Wnts Oe ay <8 ‘lee fees

The questions are substantial. |

. Appendix ‘*A’’—Opinion, : findings 6f fact a. con- i

¢lusions of law of the United States District | ourt.

Pas comer adic cpenee: statutes tN ed reais

Taste oF “Cases Cres |

} Mabe "Public: “Service Commission. v. | Western he eae

| Union Telegraph Co., 208 Ala. 243,94 S0.472.-.. 8

| ALP: of LE. v: Watson, 327 U. 8. 582, 668; Ct. 761...0 1 *)

Ashland Coal € Ice Co. v. U. 8., 385 U.S. Sal, 05 8 Ree eee |

CRS Se ee a ee ree Lik ae ae

Atlantic Coast Line R. R, Co. v. Ala. ‘Publi Service ™ BS Ge aes

ComMmmeb stom on nie db ee or Poke or deen < cee + anes.

Beal v. Missouri Pacific R. R Corp., 312 8. Oi et

Lee a IR a aN. eae

' Bransford, Ex. parte, 310 U. 8. 354, 60S. Ct. O47 ae |

~ Burford y. Sun Oil Co., 319 U.S. 315, 63 S. Ct. 1098. . ner} &

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

OO a sa ee gts # |

; ‘Oklahoma Gas & Elec. Co. v. Okla. Packing Co., 292 erie w

WS S06 $6 BOR 988 i a i ae

Phillips v. U. S., 312 U.S. 246, 61S. Ct. 490. 8

Piedmont Northern Ry. ¥. U. 8 280 U. 8. 469, 50 — 7

_ BOR SMR le yee ia Ee ee oe

~ Railroad Commission of Texas v. se Co., 312

VU. 8: 496, 61 8. Ct. 643. hs a 6,11

_ Shipman ¥. ‘Dupre, 339 U. 8. 323...) 20... eo eo

_ Stainback v. Mo Hock Ke Lok, 336:U. 8. 368, 8. Ct. -

Pe Vie ee ee 11

sie

a ae

Se A A PIL

yt Ps °

Ta

: i a |

5 Bdard 0800. 6H a. 283 U. 8.235, 518. Ct. 429. g

~ Township of Hester 5 v. Cromeonlt, 326 U. 8. 620, 66 |

S. cacy area ee eres ee ea ?

- Starures Crrep.”

; a of ‘Alabama, Title 48, Sections 35, 50, 76, 78, 19, ee

‘81, 82, 84, 106, 399 and 400... BO Last :

Prices.

"Wecllon 1253 . ee ie 7: TEC eer |

- Section 2101 - os Cre bs as sep ea bonne vine ceace ae

COON RUBE et se eg

Seetion 1 2284 es pedis eases gS hen aN

Oe

* :

ht

IN-THE UNITED STATES DISTRICT COURT :

FOR THE MIDDLE DISTRICT OF ALABAMA,

NORTHERN DIVISION

| wi ions ‘ _ os

BAe ee eS

a : SOUTHERN RAILWAY. COMPAN i, 4 Cason, ° :

, - Plaintif’, ‘

: "ALABAMA PUBLIC. SERVICE. COMMISSION, GOR- ag :

DON PERSONS, as Irs Present, and JIMMY HITCH: -

COCK and ©. C. (Jack) OWEN, Assocuuts Commis.

. SIONERS, and A. A. CARMICHAEL, Attorney GENERAL

OF THE Strate OF ALABAMA, =. Defendants

_\) STATEMENT AS TO JURISDICTION. |

in Sccliaties with Rule 12 of the Rules ot the Supreme

_ . Court of the United States, as amended, defendants-appel- |

_lants submit herewith their statement particularly diselosing |

: the basis: upon which the Supreme Court ‘has jurisdiction

on appeal to review the a of the District ( Court en-

; tered i in this cause, pee 3 ces Te OMe

The opinion of thé District Cee for ihe Midale J District

of Alabama, Northern Division, is not reported.’ A copy

of the opinion, findings of fact, conclusions of judgment are

: attached hereto as Appendix A.

oT]

EN eee a dren teens enAsincns sash gets ed

- under Title 28, Sections 2281 and 2284, United States ¢

‘

"Jurisdiction ;

_ The judgment of the District Court was catered on n'J uly

20, 1950. A petition for appeal is. presented. to the District

Court herewith, to-wit, on September 18th, 1950. The it

the

herein is: from the final decree made and entered

District Court of the United States specially constituted

and, as provided in Section 1253, Title 28, United St. tes

Code, a direct appeal to the Supreme Coutt-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 i eee

Supreme Court of the United States from such a sin decree

_Iay be taken within meaty. days.

Nee "Questions Presented “

‘Wha state statutes provide, that a. ‘railway 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 cer‘ifieate and the railway files a com- :

plaint asking an injunction of a three-judge Federal Court:

a. Does a three-judge Federal Court have jurisdiction.

_ of such suit it the railway ‘has made no attack on the _

constitutionality of the statutes which require that the .

. trains continue operation, ‘but only on the. constitfition- |

ality of- ‘the order which denied. the certificate to .:. ;

~ abandon? Bs ik

b. Does a. _ three-judge Federal. Court haew jurisdic. of

tion of such suit if only the constitutionality of the” —

oN order j is attacked, but relief sought is an injurietion en-

jeining the Public Service Commission and other state.

officers from enforeing any penalties or remedies pro- 7

vided under state Jaw, which penalties or remedies are

not ealled for by the order or authorized ‘by it? °

S

_7f

oe i* Assad S oieids ‘Pal. there | is juriediction for

oe three-judge federal court, should, the court abstain .

-, from. exereising it:to. enjoin enforcement of state crim- ~~ © _*

inal laws where there. has been no threat of imminent ..

énforcement of criminal sanctions, no allegation of .

' possible multi licity of suits, and where any ‘criminal

penalties whic! might be assessed would be: hace A a. con-

- sequence of violation of the state law?

Cae ‘Assuming arguendo: that there is a jurisdiction a

a three-judge federal court, should the court abstain —

from exercising. its jurisdiction ih recognition of the

wisdom. of allowing state courts to try questions of -

~ Tocal state policy. relating to sim spears sense of.

ee fact?

eg ee Statutes Involved - | ee

Code of Alabama 1940, Title 48, Bections 35, 50, 76,78, «

79, 81, 82, 84, 106, 399 and 400; United. States Code; Title 28,

ee Sections 1253, 9101 (b), 2281, 2284. The said statutes are

set out verbatim or pertinent parts thereof are appropriately ’

or monmuarined 4 in Apren B hereto.

NG : ‘Statement. eee

| Appellee, hereinafter. ‘referred to as Southern, les oper-

2 ated trains between Sheffield-Tuscumbia, Alabama and

Chattanooga, Tennessee, as a part of its railroad system.

_ In September 1948 Southern petitioned ‘the Alabama Public —

Service Commission to allow it to abandon the operation of.

passenger trains 7 and 8 between the above cities, pursuant —

to the requirements of Code of Alabama 1940, Title 48; -

Sections 35 -and 106, which require that no transportation

_ company shall abaridon any of its service to the public ~

uniless it first shall have filed an application for permit to —

- abandon service and obtained trom the Commission a permit ©

allowing such abandonment. | After two continuances, a

hearing was had on October 6, 1949, and on April 3, 1950, »

_. thé Commission entered:an order detiying Southern’ s appli.

— eation for authority to abandon. - )

\ Southern did aot ek for a re-hearing. ‘under Code of

| ‘Alabama 1940, Title 48, Section 76, nor. did it take an ap-

j

— trae

) i sa oe

_ peal 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 tlie Public Service Com-

_* mission to the Circuit. Court -of Montgomery County, Ala-

/ -"bama, in. Equity, and thence to the Supreme Court of Ala- —

“bama. 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

- eases not here involved, such supersedeas may be ordered _

- +. by the said Court or J udge 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 sét aside the order. of. the commission if.

the Court finds that the Commission erred to the prejudice. oh

of appellant’s substantial rights i 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 Southern filed its complaint i in the United States

Bs 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 hearingunder the.

provisions of U. 8. Code, Title 28, Section 2284. Southern

alleged that the revenue received from operation of trains

ae and 8 was disproportionate to expenses and that the con- |

tinuation of such trains was not required by public conven- — ~

ience and necessity. - There were . allegations that the. Pe

/ Commission’ 's order = deprived Southern of its . property

without due process, that it was being denied equal protec-

tion of the law, that interstate commerce was being bur-

dened and that the order was unjust and confiscatory. It

was also ay erred that. Southern had exhausted. all adminis-

oi trativ e remedies av ailable. to it.

ee

‘Paragraph IV of the the compat sentabicd a purely cblan. :

able attack. on. the. constitutionality of Code of Alabama

"41940, Title 48, Sections 35. and 106, the railroad : frankly

stating that it was making such allegations for the purpose,

and only for the purpose, of avoiding’ an admission’ of

record that the statutes were unconstitutional-and also | __

stating ‘‘The plaintiff does not ask in this suit for an‘ad-

" judication of the constitutionality of said statutes as that

- is a matter primarily for the Supreme Court.of Alabama.”’

_ At the trial,-as ‘in the pleadings, Southern’s only real attack Es

on constitutional grounds was directed at the Commission’ ee

_ order of April 3, 1950.

| Appellants first filed with Bou. “Chariea’ 8. eoninke,

. Judge ‘of the United States District Court for the Middle

_ District of Alabama, a petition directed to him ind vidually, © es

asking that he stay the call for a three-judge fede: val court.

_ No formal order was issued by Judge Kennamet, but this

- Motion was ruled upon by the three-judge Court after it j

convened, along with other motions. Thereafter appellants

filed a ‘motion to dismiss, a motion to stay and an answer.

After oral argument on May 22, 1959, all of appellants’

motions were overruled and it was then stipulated by coun-

sel for the parties that evidence should. be taken and the

‘ case submitted on Southern’s prayer for a permanent in- :

junction. Thereafter, on July 20, 1950, the Court ‘issued

its final judgment, and decree overruling all of appellants’

motions, declaring the Commission’s order of April 3, 1950

to be null and void, and enjoining the appellants, | their suc-

cessors. in: office and’ their agents, servants and attorneys

from taking any steps or ‘proceedings of any hature what-

- goever against the Southern to enforce the order of April

~ 3, 1950, or to enforce any fine, forfeitures, penalties or other

* sanctions provided by Title 48, Code of Alabama 1946,

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

~

< ‘ re

a eas 6

uy ‘ i. e

employees on ‘gels of the failure to chee the provi-

sions and requirements of the order by abandoning and

Nie discontinuing ' the operation of plaintiff’s passenger trains

| Nos. 7 and 8 from Tuseumbia, Alabama to Chattanooga, S

- Tennessee, ‘80 far as they 3 are operated in ss a of .

|. Alabama. be eet ots

eres The Questions Are Substantial Te

“The questions involved in this appeal~ are similar to cat

those raised in several, recent ee this. Court,

: among them being: pane g |

‘Railroad Commission of Picea s Pullman Co, 312 U. S.

- 496, 61S. Ct. 643 (1941) ; es ee

Burford v. Sun Ou Co., 319 US. 315, 63 Ss. Ct. 4098

(1943) |

- Beal et al. v. Misiourt Pacific R. R. ook. #12 U.S. 45,

: 61 S.Ct. 418 (1941)

ad parte Bransford, 310 U.S. 354, 60 S. ct 947 i149)

eG

: There are involved the same. fundamental issues: of how far

the federal judiciary has jurisdiction over iocal questions

which ean be adjudicated by. state courts, and to what ex-

'-. tent federal courts, should exercise jurisdiction which. they

4 do haye gver such ‘questions. where: there is ample pro-

_--yision, for: judicial determination within the framework of

state courts. The decision of the three-judge District

Court i in finding that it had jurisdiction i is in direct conflict

with the guage of the statute under which it was-con- |

vened, and‘eyen had there been jurisdiction the ‘decision is

contrary to the clear policy set out in numerous recent deci- -

. gions of the Supreme Court that federal courts will stay

their hand: on local. matters until, the state courts : have

ruled. om

rere ie ee en nes Pa -

a

I. As seliaats read ‘Tit. 28, U. S.C. ‘Sect. 2281; hes : os

requirements must be met before there is jurisdiction for .

special three-judge federal court,

a. An interlocutory or permanent injunction must |

— be sought. yf

‘b. The inj unetio aivont be sought on the ground that

a state statute

_ interprets “statute”? as. including ‘‘order’’.)

ce. The injunction must seek restraint of enforcement, Ss

-' operation orsexecution 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: eA Saee

. 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, ‘or-

der’? since the Oklahoma ease). ” 7

Southern’s complaint failed to meet conuiteanieta “yp” ‘

and ‘‘c’’ as to any Alabama statute.’ The attack'on the con-

stitutionality of Tit. 48, Secs. 35 and 106 is. colorable and

in fact Southern frankly stated it did not: ask for an ad-.

judication of constitutionality of the statutes because ‘‘that |

is a matter primarily for the Supreme Court of Alabama.”’ |

The prayer for relief: includes statutes in’ the requested ©

cloak of protection, for it refers to ‘‘any: penalties or other.

remedies provided under the laws of the State of Alabama,”’

but the statutes included neither are identities nor is a their

constitutionality. attacked.

As to the Commission’s order of Aprit %, 1950, it is

squarely charged to. be anconstitutional, ‘but the ‘complaint

did not ask relief in terms of the order but went far be- .

yond that and sought an injanction ngninat all possibly ce

ail

is unconstitutional (Oklahoma Natural

Gas Co. v. Russell, 281 U.S. 290, 43 8. Ct. 353 (1923).

penalties and rintsaiibee under Alabama law) a soa broader

"field of relief than the language of Section 2281 allows—

injunction against, enforcement, operation or execution’?

‘ of ‘such statute or: ‘such ‘order’’, Southern’s prayer and

. the Court’s decree would include even common law remedivs,

__ which is a broad extension of Sec. 2281. “And the Ajabama

-, . Supreme Court hag, held that orders of the Commissipn may .

_ be enforced by the ‘courts by issuance of writs of man amus. uh

Alabonie Public Service Commission Y, Wester : Union. :

: from a bets aang ‘etatiite, ma from any. ahd all het :

. of redress to which it might be subject’ whenever it edocasage

/ to violate the laws of the State. |

The theory of the District: Court ‘soeued. to be that it

could enjoin whatever penalties and remedies, statutory or :

common lew, as it saw fit in order to give effectivg relief -

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

‘, law”, ‘bince jurisdiction i is conferred initially only if' relief —

: “is sought frém the statute (or order) whese conti tion-

» ality is questioned. “The three-judge court cannot

: broad” scope of its relief onfer jurisdiction upon| itself

y the:

retrospectively, if the comp aint averred no case quickening .

a the special jurisdiction of the statutory created court, The |

three- judge court is of statutory. creation and its jurisdic: :

, tion i is to bé strictly limited by the statute which créated it,

and i is not to be lightly extended.

Okla, Gs & Elec. Co. v. Okla, Packing ©: Co., 292 U. a”

Cie f 386, 54 8. Ct. 732 (1934); >.

ey

1 f Phillips v v. U, 8. , 312 U. S. 246, 61 S. ct. 480 (1941).-

°

a ihieeniestianetienieraethiean —guaeeietnes eee

: ~- é \ wweN

—oO~ ve aa eee

sneer ennai, ~eneneideetemens

At ait. 9

: Moré’ ‘han a negative order. is involved tere where ‘the |

it al i ian rt neat eae

‘Moo, it it\is sttaneustheg that the e1 extranrdinary relief wsdinel

_ going far beyond the relief against ‘suc

statute’’ :(N.B,,..

or ‘‘order”’). authorized by Sec. 2281, js exactly the relief

prayed for by the Southern from the ver;

the complaint was challenged by appellanfs on jurisdictional

grounds before the three judges ever col vened (by motion

_ directed to, Ju ‘Charles B. Kennamer individually) and

‘ challenged again ‘after: the: three-judge 1

urt convened but,

hefore ~ evidence was taken and before the Court ruled _

pe it had jurisdiction. to proceed. This is no special case

of equity giving extraordinary relief where it cannot give

a that asked but of equity giving the relief prayed for.

The. *‘negative order’? doctrine of Standard Oil Co. .

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

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

- : has been carved away somewhat, ‘though to what extent | oe

| not ‘clear.

See: U. dy. 1.C.C.,337U. s. 426, 69'S. Ct. 1410 (1949) ;

But cf.: Ashland Coal €¢-Ice Co. wU, Ss. 325 U. S..

65 8. Ct. 1573, (1945). :

Ne

atfack on the order is the nominal basis-for three-judge :

jurisdiction on constitutional grounds, with, relief\ being

_ sought from a statute whose constitutionality i is ‘admittedly

a matter for state court decision.

The Distriet Court has also overlooked Ex parks Brans- “fe

ford, 310 U. 8.'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 ob-

‘tained by usé¢ of ‘a statute which is. not’ attacked as.

unconstitutional. Southern has done no more than attack as

unconstitutional the result of an administrative act, and has

not attatked the statute as generally applied to petitions

beginning, and 3

7 diseon i uance. | “this ee case sins holds that a three judas’ :

art is not required unless the action ‘complained: of ‘is di-

2 - pass attributable to the statute (or an order,- a fortiori). a

Here the penalties and remedi s'as to which relief is sought

are not called for by the order. or authorized: ‘by it, but in ©

‘truth and in. fact bre: directly; aifsibajeble. ‘only to the. a }

ostatute, pele ee By a

The decision of: the Distriet. ‘Ovurt j is in n coiiliet” with the rs

eG holding i in. Wilente et al. v.. Sovereign. Camp, 306: U. 8. 573,

59 S. Ct. 709. ( 1939) wherein it is held that an ‘injanction’

ina three-judge case must be directed at-state officers who —

\ are: clothed with authority te-enfor ree the challenged. statute _

.:* and have taken steps to enforce such statute. In view of: -

|. Oklahoma Matural Gas Company, ‘supra, this would apply e ie

to the Commission’ Ss: order, but no.state 2 -official has. ‘taken on

“any steps to enforce: : Site wi in | fact. calls. for no-

eigenen Retest gee

$

Peet, ae ¥ ae ale \ ies i¢@ . ; Pind i Bc baa was

ie Th The decision below is in ane ‘with: Beal. et al. ‘ef

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

(4941), which se indidates. ‘that if: only a single suit ig ‘ g |

: . : oe penalties, the § Supreme Court could not 7

: a say that any such irreparable i injury is threatened as would’

nreaid staying prosecution, ‘of the criminal Jaws of th

State and withdraw g the:ddtermiination of tl the legal. qu ae : s

ate state. courts’ 8'whose appointed fune- BEY

: tion involved fro

tion it is to decide it, In ‘the present case Southern has not

in Pcie any possible multiplicity of suits nor has it adduced

on the part of any state: officer to enforce the statute at all.

%3

‘ 1 oa . é : . ; who ey ?

Sat \ 7s ha ec SRE Seay

ae aie Ee or an e Sat ease : : ‘si 3 Rae ay

‘The case also notes that even, if an adverse _décision-were }

ere tendered in » the state court. - causing ant penalties to. be:

2 3

' . .

Ps é

4 e 4 \ oe . ‘

: Ny

- a. e

RE be ES ls By

"

oT i oie

5 2

~ *

~ any. evidence to that effect. In fact there has been no move™

Se nee Dar 7.

: fissessed ngainat. the seilscad, cue pénalties inighh well be oe

| the’ consequence of violation: of state law. . .

; i 3 “ = a a °

Pri ty ‘ . Sta : ¥ be ue . es

_@ - ere Dae: * 3 * .° *.. *

- ces . > > . tai

e < . . . + * s . 'ee

if The decision below 4 is cunteary to. numerous 5 recent a

hae holdings of the Supreme Court | concerning the desirability

of federal | courts abstaining | from. exercising their .juris- oo

~’ diction on matters which a are Properly decided a Brat by. He os ieee

cont of the state.

-, Shipman v. Dupre, 339 U. s. 393 (1950) 4 : oie

- Railread Commission of Texas: ¥. Pulimon Co., a2 as = j

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

: ey 8 “aur v. Sun Oil Co., 319 U. 8. 315, 65'S. C ct 1098 |

AT943)5 os. |

en v. Fieldcrest Dairies, 316 Uz 8. 168, 6 8. Ct.

ae 986 (1942);

ALP. L. v. Watson, 397 U. s. 582, 66 S. Ct. 761. (1946);

Township of. Hikksboro v. Cromwell, 326 0. ‘S. 620, 66 “a

~ S.Ct. 445 (1945) 5. me bs

Stainback v. Mo Hock Ke Lok, 336 Uv. s. . 368, ‘69 8. ct eee

| 606 (1949). : \ &

Ore

“The sainé thread runs ‘through all ft the shiv cases, seat

-. 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 ae

and ‘the smooth working of the federal jndiciaty. Is this. ‘

not especiafly so where the railway is in truth seeking 4 to .

~ escape the impact of statutes the constitutionality of which _

-it admits is. ‘properly for consideration by. the Supreme

Court of the State, for as was pointed: out, by Mr. Justice’

Frankfurter i in the Pullman case, supra; a lecision Dy: the

' State courts may. avoid the. necessity of a constitutional de-

cision in’ the federal courts, and a a raling. by a federal court ae

EA \

: 12

“may. prove. ‘to. be » supplanted bya subsequent controling

- decision of a state tribunal.” ¥

The District Court’ déclined 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. theré are ‘basic problems of .

-. state policy’’ involved, that problems of local law are to be~

Ie t to local courts where each case may be handled as ‘one

ore item”’ in a continuous series of adjudginents. That

“this: case is vital for the Alabama Public Service Commis-

sion and Alabama courts is made clear by the fact that

this is the second ina series ‘of such eases by Southern

filed in the s e judicial district, a third by another! rail-

road has alreddy been submitted to the saine Court ( Atlan--

ae tic Coast Line R. R. Ca. v. Ala. Public Service Commission, .

et als., file?” Angust 2, 1950, and the parties: hereto well

--_know that cases already are being readied by. other railroads

’ who, like Southern, are trying to escape the process. of ad- -

_justment ofa complex situation ‘through local courts and -

make of the three-judge courts. a\ tetbunat for Appeal of ;

e: administrative: orders.

Respeetfu ly wtibenitte a

BAe SS ay A. A. Cininmtions:

fy Sas se < Attorney General of Ma.

et SS ht eae Te JOHNSON,”

EO EA - Asst.: Atty. General of Ala.

PRS Coe EP : -Ricuarp T. Rives, -

zi on Joun C. Gopsotp,

ie Of Counsel for. Appeliente.:

Filed Sept. 18, +1950, O: D: Street, Jr: Clerk, by Annie

_Sehoolar, Deputy nope

| Before McCord, Cireuit J nudge, ‘Kounamer’. and Lynne, |

e:

--- - Z . rip SF 5 iq 7

oie ios wee ue 13 yes aoe ; pee |

| AppEnore « “a” -

IN THE UNITED STATES DISTRICT COURT FOR

THE. MIDDLE DISTRICT OF- cemmeaaiatig NORTH-

_ ERN DIVISION -

* Civil ‘Action No. 681

~ Sourmeny | Rawat ‘Company, a Corporation, Plaintif, z=

Pea ee So gh eae 08:

s ALABAM ‘Pupiac. Aarts Cox isston, Goupow ‘Persoys, is

--Its\ Presidént, and. Jimmy Hrrencock and C.-C. (Jack) —

Owen, Associate Commissioners ; aud A.A. CARMICHAEL, oo

_ Attorney General of the State of. Alabama, Defendants: ay

- District. J udges

ivrae, District Judge: :

Resting the ‘jurisdiction of the: district court upon: the

Federal B pevasent and amount in controversy provisions

of Title 28, Sectign 1331, U. S. ‘C. A., or upon the diversity

- gomplained of the Alabama defendants and prayed. for

both temporary | and permanent injunctive relief against

of.citizenship and amount in controversy provisions of .-

_ Title 28, Section 1332, U.S. C. AS and that of a district. .

court of three judges upon the provisions of Title 28, Sec-

tion 2281, U. S. C. A, plaintiff, a Virginia corporation,

them. &

. Plaintiff’ s basic insistence is that the. revenue Ss au

Scaa the operation of, its passenger trains Nos. 7 and 8

“between Tuscumbia, Alabama,‘and Chattanooga, Tennés- |

see, is grossly disproportionate to the direct expenses and

that the continuation of such train service is not demanded

or required by the public necessities. a

- Alleging the exhaustion of administrative remedies,

plaintiff exhibits its petition for a permit allowing abandon- —

ment of such service, filed with defendant, Alabama Publie

~ Service: Dompmnission, September 13, 1948, paragent to the

Neem”

sovelienene of Title 48, Bestions 35 and 106, €ode of

-- Alabama, 1940. “There follow. averments calculated to:

_ show undue delay in the hearing and consideration of the

petition culminating in an adverse order entered by. defend-

ant Commission on April 3, 1950.

Emphasizing the impact of the Commission’s erase 3

-within the framework of the statutory scheme of regulating

transportation companies, Title 48, Code of Alabama, 1940,

plaintiff makes clear that it is impaled on the horns of a

dilemma. If it continues the operation of such trains, it

will lose substantial sums of money. If it ignores the

_. Commission's order and abandons such services, it will

face the imposition of severe sanctions under pertinent :

statutes. Either course, it complains, will result'in irrep-

- arable damage unless this court’ grants injunctive relief.

Following the constitution ofa three-judge district court

in conformity with the provisions of Title 28, Section 2281,

U.S.C. A, this action was, on May 8, 1950, set down for a

: hearing on plaintiff's prayer for a temporary injunction.

_ at Montgomery, Alabama, on May: 22, 1950. 3 Bee

Upon its convocation, this dourt was met. at the thres-

hold with three several motions, in which all defendants

., joingd, raising certain adjecyve problems relating to the

jurisdiction of the court, the propriety of exercising such. y

jurisdiction as it might be found to have, and the right of.

plaintiff to injunctive relief in any event.

_ °At the conelusion of oral arguments, the court, after |

consultation announced its opinion tlfat each of such’ —

motions was due to be overruled for reasons thereafter to be

stated. Whereupon, it was stipulated by counsel for the .

parties that evidence should be adduced and the,case sub- _

- mitted upon plaintiff’s prayer for a permanent injunction.

_ I, Adopting a literal construction of the ssdrealaboas lan-—

guage of Title 28, Section 2281, U. 8: C. A:

‘An interlocutory. or permanent injunetion. restrain-

_ ing the enforcement, operation or execution of any

State statute by restraining tha action-of any officer

of such State in the enforcenient or execution of such

statute cr of an order, made by an administrative -

board or commission acting under State statutes, a

~

,

| treet

‘not be granted by any district court or judge thereof 2

upon the. ground -of’ the unconstitutionality: of ,such

: wR

. Me op

statute unless. the application therefor is heard “a

determined bya district court of three judges under. ~

section 2284 of this title. J une 25, 1948; e. 646, 62 Stat. .

defendants challenge the jurisdiction of this District ‘Court

of three judges because no attack is leveled at the consti-

tutionality of the State statutes under which the defendant

Commission acted. . Since, it.is argued, plaintiff does not

seek an adjudication of unconstitutionality of such statutes

but relies squarely upon tlie assertion that the order of the ~

defendant Commission denying plaintiff the right to abandon —

the passenger. train service concerned is‘ confiscatory in

. effect and therefore violative of the Fourteenth Amend-. _ ,

ment to the Constitution of the United States, the quoted =

‘statute is manifestly inapplicable. . |

‘Dispositive of this contention is Oklahoma Nat uy al Gas

Co. v. Russell 261, U. 8. 290, 43 S. Ct. 353, 67 L.\E. 659

" (1923), in which Mr. Justice Holmes, delivering the opinion

for a‘unanimous court, stated: SRO R ee

, “4 doubt has been suggested whether these cases are —

within Sec. 266 of the Judicial Code, Act of March 3,

1911, e. 231, 36 Stat. 1087, 1162; as amended by the

Act of March 4, 1913, c. 160, 37 Stat. 1013. The section —

_ originally forbade interlocutory injunctions restrain- _

-- ing the action of state officers in the enforcement or —

execution of any statute of a State, upon the ground . ~

of its unconstitutionality, without. a hearing by three —

judges. The amendment inserted after the -words

‘enforcement or execution of such statute’ the words _

‘or in the enforceemnt or execution of an order made =~

by an administrative board or commission acting

under and pursuant to the.statutes of such States’

but. did not change the statement of the ground,

which still reads ‘the uncenstitutionality of such stat-

ute.’ So if the section is contrued. with narrow ‘pre-

cision.it may be argued that the unconstitutionality of

the order is not enough. But this Court has assumed

ae :

ee a eer

rs

So

pineatady. that the section was to ‘he taka more

ae | oa ‘broadly. Louisville & Nashville RR. Co. 'v. Finn, 235. -

ele eae. 601, 604. Phoenix Ry. Co. v. Geary, 239 U. S.

- 277, 280, 281. Cumberland Telephone & Telegraph

Co. v. Louisiana Public Service Commission, 260 U. S.

| 212. Western & Atlantic R. R.-v. Railroad’ Commission

| of Georgia, ante, 264. ‘The amendment seems to have

been ‘introduced to prevent any. question that. such

ade were within the section. It was superfluous. as

| ville R. R. Co, v. Garrett, 281 U. S. 298, 301, 318.

“Atlantic Coast Line R. R. Co. v. Goldsboro, 232. VU. eae

548, 555. Grand Trunk Western Ry. Co. v. Railroad ~

Commission of Indiana, 221 U. S. 400, 403. But it

plainly was intended to enlarge not to restrict the «

law. We mention the matter: boc to: Ae i ca to

ma rest. ad ;

4

We hold that a : Federal three-judge district coart has %

Aariadiction to entertain a complaint alleging the unconsti-

tutionality. of an order of an administrative board or comr- —

_. mission, acting under a State statute and- praying for

injunctive relief against the enforcement, ‘operation or

' execution of such order, eihong ' no “attack 4 is made -upon

the validity of the statute itself.' -

p ‘

ies} Tusigting that this court should etal decline to ex-

~~ ereise its jurisdiction, defendants first invoke the familiar

- doctrine of exhaustion of administrative remedies. Point-

ing to the provisions of Title 48, Section 79, et seq., Code-of

Alabama, 1940, defendants’ assert that the appellate pro- .

- cedure therein tet ided is.a part of the administrative

_ process. : re ATER HERO OE eee

- a ile ;

g

1 Herkness v. Irion. Comm. we -Conesvaton, et” al., 2 U. & 92, 49

S. Ct. 40, 73 L. Ed. 198 (1928); - i

Ex Parte Williams Tar. Comm., 277 Da. 207, 48. s, ct. 523, 72 L.

Ed. 877 (1928); ._.

Prendergast, et al. v. New York D clephone Co., 262 U. S. 43, 43 S. Ct.

466, 67 L. Ed. 853 (1923); .. -

‘ Louisville é N. R. Co. v. ‘Railroad Comm. of Ala., 208 Fed. 35 (D. Cc.

Ala, 1913), . hee nS

‘the original statute covered them.’ Louisville & Nash- ~~

2

eee

We do not agree. In Avery Freight Lines, Inc. v. Per- —

sons, 250 Ala. 40, 32 So. 2d 886 (1947), the Supreme Court |

of Alabama, in holding that an appeal to the Cireuit Court

under the statutes concerned was judicial and not legislative

or administrative, observed: ee Benge

_© “Under the foregoing statutes * * ° the-circuit —

- court ean do ‘only three things. (1)-It can affirm the © _

order of the Public Service Commission. (2) It can

set aside the order of the Public Service Commission. -

(3) It ean remand the.case to the Public Service Com-

- mission for further proceedings in. conformity with

the direction of the court. The legislature evidently. -

ae ot intend‘that the reviewing court should put

itself in the place-of the commission, try the matter

anew as an administrative body, weigh the evidence —

- °and substitate its finding and judgment on the merits

- as that of ‘the commission.’ State v. Public Service

Commission, 234 Mo. App. 470,. 134 S. W. 2d 1069,

1076; Id., 348 Mo. 613, 154 S. W. 2d 777; 51 C. J. p.

758. See Alabama Public Service Commission v. Crow,

; 247 Ala. 120,22 So. 2d 721.7 :

After discussing a similar statutory design for judical.

review of administrative orders in Bacon, et al.- Public

~ Service. Comm. of State of Vermont v. Rutland Railroad

- Co., 232 U. §..134, 138, 34.8. Ct. 283, 58 L. Ed. 538 (1914),

- - the court said: fears . es ,

**Tt is apparent ‘on the face of these sections that they:

do not attempt to confer legislative powers upon the

‘court. They only provide an alternative ard more

expeditious way of doing what might be done by a bill

‘in equity. Whether the alternative is exclusive or con- _

current, whether it opens matters that would not be

_ open upon a bill or not, if exceptions are taken (which

does not appear in this case), is immaterial; the remedy

, in any event is purely judicial; to exonerate the ap-

pellant from an order that exceeds the law. This, we

“understand, is the view taken by the Supreme Court |

of thé State, Bacon y. Boston & Maine R..R., 83 Ver-

» mont, 421, 457; Sabre v. Rutland R. R. Co., 86 Vermont,

’ . / : Jo's ’

s ’ ; - or

i

347, 368, 369, and this dalng 80, by the rule laid dows :

. In Prentis y. Atlantic Coast Line Co. the railroad

_company was free to assert its rights in the District

7 Court of the United States.” :

We hold’ that defeadant Commission’ s ‘order deniag

plaintiff’s‘ petition terminated the administrative proc-

ess, entitling plaintiff to resort immediately to this éourt ?

for relief. The failure of plaintiff to apply for a re-—

hearing does not affect: the result. ‘Title 48, Section 76,

Code of Alabama, 1940, permits an application for a re-

- hearing before the Commission but does not require it. No

Alabama case has been called to our attention, we have

found none, holding that such an application must have been —

made hefore resorting to the statutory procedure for ap- |

peals to the State cour ts, to which we have referred.’ More- .

over, in the absence a statutory requirement making ap-

_ plication for a. rehearing a condition precedent to the right

of judicial review, plaintiff was. authorized to proceed in

this. court without first paving availed iteelt of | such “ae

privilege.*

There is no mérit in defendants’ inaiotenen tha plaintiff

must perforce litigate. the validity of the nega confis-

_ eatory. order in the State courts. ‘Jurisdiction ‘of this court

has been invoked ‘by facts properly pleaded. Plaintiff had

a choice of forums. It could have prosecuted an appeal to

the Cireuit Court of Montgomery, Alabama (Title 48, Sec- ;

__. tion 79, Code of Aphees 1940) or it could _ invoked

2 280. Louis-San Francisco ‘Railway Co. v. “Wie. Public Service Comm. ”

. 279 U. S..560, 49 S. Ct. 383, 73 L. Ed. 843 (1929) ;

Prendergast, <t al. v. New York Telephone Co., 262 U. 8. 43, 43 8. Ct.)

466, 67 L. Ed. 853 (1923);

Bacon, et al. Public Service’ Comm. of State of Vermont ‘v. Rusland. 3

" Railroad Co., 232 U. 8. 134, 34S. Ct. 283, 58 L. Ed. 538 (1914); —

Chicago B. & O. R.. Co. v. TMinois Commerce Comm., 82 F. Supp. 368 »

(D.C. TH. 1949) ;.

Atlantic Coast Line R. Co. v. Public Sorcies Comm. of South Carolina, Ss

77 F.Supp. 675 (D.C. 8. C. 1948).

'. 8 Prendergast et al. v. New|York Telephone Co., supra, note 2.

Atlantic Coast Line R,- Co. ¥, hiacoon Service Comm. sf South Caro.

3 lina, supra, note 2, — ,

ee Reeie 2s Roe ee ee On ar

‘ ‘ ¢ y

ernie rm rare 28 sn yop bec gr ANOS RM Oy ee

Me

¢

tiei-juriediotion of this cast ina plenary suit. We hold that, |

after. the judicial stage is reached, a complainant alleging

an order of a State commission to ‘be confiscatory in viola- _

- tion of the Fourteenth Amendment may seek the protection —

of a Federal court even though the State Jaw affords. Bxe |

procedure in the State courts.‘

Conceding arguendo its. jurisdiction, defendants urge this ;

- eourt to abstain from its exercise both under the principle

_ of comity between Federal and State courts and under-the

doctrine of diseretionary abstention. But ‘‘rules:of comity 9 =

or convenience must’ give way to constitutional rights. of

. Oklahoma Natural Gas Co. v. Russell, supra, 261 U.S. 290, -

“. 293.. 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, we hold that rules of

comity are inapplicable. Southern Railway Co. v. Alabama

Public Service Comm., 88 Supp. 441 (1950). :

There \s ample authority. to the effect that if questions of :

novel, ambiguous.or undecided State law are involved in

a pending action and it appears that a State court adjudica-

tion would decide or render unnecessary the decision of.

ae

~ Federal questions, the Federal court should: retain juris-

diction but withhold its decision pending determination of

‘4 Railroad Wa Aa Comm. of. Minnesota x. “Duluth Street Ry. Co., |

273 U. S. 625, 47\S. Ct. 489, 71 L. Ed. 807 (1927) ;

Pacific Telephone & Telegraph Co. v. alee, 265. U. 8, 196, 4 a

S. Ct. 553, 68 L.Hd, 795 (1924); :

Prepdergast v, Yew York Telephone Co., supra, note 2. a

Oklahoma, Natu

L. Efl. 659 (1923);

‘D. roit & Mackinac R. RCo. Vv: Michigan R. R. Comm., 285 U. 8. oust

. 35 8, Ct. 126, 59 L. Ed. 288 (1914);

Bacon v. Rutland Railroad Co., supra, note 2. -

'-.° Reagan v. Farmers Loan ¢ Trust Co., 154 U. 8. 362, -? . Ct. 1047,

38 L. Ed. 1014 (1894); .- ~ e

Central Kentucky Natural Gas v. Reilroad Comm. of: kw, 37 F. od

938 (1930); . .. |

Union Light, Heat & Power Co, -v. Railroad. Comm. 17 .F. 2d 143 -

(1926) ;

(1924). .

Gas Co. v. Russell, 261 U.S. 200, 43'S. Ct. 353, 67

Van Wert Gaslight Co. v. ‘Ped. Utilities Comm, of Ohio, "209 Ped. 670 ,

aan

cumbia, Alabama, and Chattanooga,. Tennessee, in so far as they are-Opy

| erated i in the State of Lcesena, be and it is hereby: denied. "

oy :

dion matter by the State out with Sibatunible promptnéss.®

State court as to the local law. But defendants cite no

.. ambiguous, novel or undecided. State law involved herein.

The authority of the Commission to issue the order is not

questioned. The statute under which it acted is not attacked.

The Alabama law requires no definitive. construction of

authoritative interpretation. Alabama Public Service Com-

TH Maintaining that’ the » ‘allegations of the ‘complaint

afford no basis for injunctive relief in any event, defend

_ ants advert to the negative form of the Commission’ 8 aie

_and assert that the effect of an injunction would be to inter-

- fere , ith the enforcement of State criminal statutes con--

trary to time-honored principles of equity. ;

‘We agree that the district court should stay its hand where

-the Federal question may not survive the decision of the

mission vy. Atlantic Coast Line R. Co., supra. We hold -

that the doctrine of discretionary abstention does not apply.

It is cohceded that the order i is negative in form, * but its

legal effeet could hardly be niore. positive. Viewed against

‘|

‘the statutory scheme adopted by the State to regulate trans- —

, portation companies, such order is conclusive. evidence that:

plaintiff has done all it could under the State law to get

relief and ah not get it. To save itself from irreparable roth

‘t Shipman v. Depts 0. 8. ces” Ct. —, 94 Li. Ed. 537 (1950) ;

' Railroad Comm. of Texas v. Pullman: Co., ‘312 U. S,.496, 61 8. Ct.

643, 85 L. Ed. 971 (1941);

' Burford v. Sun. Oil Co., 319 U. 8. ‘315, 63 8. Ct: 1098, 87. L. Ed. 1424 nt

(1992); !

. ALF. Lv, Watson, 327 U. 8. 582, 66 S. Ct. 761, 90 L. Ed. 873 (1946) ;

Township of ‘Hillsborough v. Cromwell, sas 8- 620, (66 8. Ct. 53, 90

L. Ed. 415-(1945). ay, Bs,

6 The report and order of the Commission, after’ a statement of the case

and a finding adverse to the railroad concludes: “Premises. considered,

Ir Is OrpeRED BY THE Comission, that the petition of *the® Southern |

Railway Company filed on September 13, 1948, requesting at jority to

(1943) ;

Mh seaceire v: Mo Hock Me Lok Po. and U. 8. 368, 69 S. Ct. 606, 93 L.

—- (1949); - | : oS

gy iba Fieldcrest Dairies, 316 U. 8. 163, — 8. tenn —L.Ed— .

discontinue the operation of passenger trains Nos. 7 and 8, -betwéen® ‘Tna- :

aN

a

a1.

<fe

damage it must violate the State’ ’s criminal law and submit .

. to its sanctions if State officers do their duty. This, equity

does not. require. Stripped of artificiality, the order .

amounts to a stark command by: thé State that. plaintiff

continue to furnish the train services involved or suffer ©

‘the consequences of their abandonment, In view of the _

findings of fact and conclusions of law, in nfra,’ we hold that .

ees its impact on plaintiff’s business it is affirmative in nature,

ey having the practical effect of confiscating plaintiff’s prop-

erty in violation of the Fourteenth Amendment, and that:

itis clearly not within the rule of the cases relied upon by

defendants.

Equally. tenuous is defendant's s contention that the in-

junction prayed for would restrain enforcement of the —

criminal laws of Alabama in an: unwarranted manner. To

impart reality to the protection | afforded plaintiff, by the

Fourteenth Amendment it is essential that this court re-

strain defendants from seeking to impose the sanctions of.

fines, penalties and forfeitures provided in Title 48, Codé

of Alabama, 1940. We are without jurisdiction to grant

- the relicf which the Commission wrongfully: withheld,

namely, permission for plaintiff to abandon these train

services. We are warranted in assuming that shonld-we —

decline to interfere with the enforcement of the criminal .

laws of Alabama plaintiff: would continue to operate these.

trains ata serious and growing: loss, for while the threat

- . of prosecution may be a goad, it is not the only inducement

to law observance. « Thus, it is not the threat of a multi-

_ plicity.of Vidor antec but the finding, of irreparable dam-

. age to plainti

’s property: rights that is real, not fanciful,

immediate, not-remote, which. moves us to grant an injune- |

tion: -We know of no other. manner of phoned the relief

to which paint if is v entitled.

1 See Finding of Fact Nos. 15.38 ad Cousiesicnn of Law Nos. 11-17,

infra. ;

8 Standard Oil v. United States, 283 U. 8. 235, 51S. Ct. 429, 75-1, Ed.

| ed (1931) ;

- Piedmont & No. Ry: Co.:¥. ‘United States, 2 280 U. 8: 469, 50 8, Ct. 192,

74 L, Ed, 551 (1990).

‘&

at

ose ‘Defeuidasite rely heavily upon the hie owing sintement: in

Beal, County Aitorney of Douglas County, Nebraska, et al.

v. Mo. Pac. R. Co., 312 U.S. 45, pani Taek 85 L. Ed. 577

(1941);

“Tt is a familiar rule ‘that courts of sanity “a not

_ordinarily restrain criminal prosecutions. ‘In re Saw-_

gh yer: 124U. S. 200, 211; Davis & Farnum Mfg. Co. v. Los

Angeles, 189, U. 8. 207 ; Hygrade Provisions Co. v.

Sherman, 266.U. 8. 497, 500. No citizen or member

of the community is immune from prosecution, in good .

faith, for his alleged criminal acts. The imminence

of such a prosecution even though alleged to be un-

cae authorized and hence unlawful is not alone ground for.

_/... ‘relief in equity which exerts its extraordinary powers —

“only to prevent irrepa iyable i injury to the plaintiff wlio

- geeks its:‘aid. Terrace v. Thompson, 263 U. S. 197, 214;

Packard v. Banton, 264 U. S. 140, 143; Tyson v. Banton,

273 U. S. 418, 428; Cline v. vriak Daivy Co,, 274 U.S.

| 445, 452. se

But it was also said i in the Beal case, supra: 3

_ # * © that in view of the state of the record and

certain concessions made by counsel on the argument: —

here any further hearing of the issue of irreparable

injury to respondent from a threatened -multiplicity *.

of suits has been waived. The reversal will accord-

ingly be with instructions to the district court, to dis-

miss the bill of complaint. Ate

In the case at/ bar there was no concession or waiver of

any claim of ‘irreparable ‘injury resulting from a multi-- -

plicity of suits or the deprivation of property without due |

process. of. law. .

We hold that this case falls within the ixenption to the

- general rule and find apposite the following language in

Cline v. Frink Dairy.Co., 274 U.S. 446, 47S. Ct. 681, 71

L. Ed. 1146 (1927):

Pecacemteneey Wo general rule $ is that a court of salty

is without jurisdiction to restrain criminal proceedings

‘ ote ‘ . ae | e

F x - . 2

—< ‘ ps

‘ 7 a ORS le BIC, RMN ARY Ir gn a esa pe COLES ORNL” CATO aE ODL NIE EN " - " canal

oor al S é ‘ ° . LORIE OMI A Hie pwreseiimten nortan — pene tee

to try the same right that is in issue before it; but an ~

_. exception to this’ rule exists when the prevention of

such prosecutions under alleged unconstitutional en~

ea is essential to the safeguarding of rights of

'. property, ahd when the circumstances are exceptional -

is both great and ~

‘and the danger of ‘irreparable loss

immediate.. Fenner v. Boykin, 27

Packard v. Banton, 264 JJ. S. 140;

-U. S. 240, 143;

ygrade Provision

Co. v.. Sherman, 266 U. 8. 497; 502;Terrace v. Thomp- | -

son, 263 U. S. 197, 214; Ex Parte Young, 209 U. 8, 123;

Davis & Farnum Mfg. Co. v. Los Angeles, 189 U.S. 207, _

218; Dobbins v. Los Angeles, 195 U. S. 223, 236, 241;

-. In re Sawyer, 124 U.S. 200, 209, 211.""=- -

Proceeding to the merits of the case, we hold that the : s

plaintiff is entitled to the relief for. which it prays and

— enter the following findings of fact and conclusions of law;

——

Findings of Fact Be oN a Ka ” .

‘. Plaintiff, Southern Railway. Company, is ‘ corporation

‘organized and existing under the laws of the State of tl

ginia, is engaged as a common carrier by.railroad of persons

and property between points within the State of wea

" ‘and between points within the State of Alabama onthe one_

hand and points in other states throughout the South on |

the other hand, and is subject to the jurisdiction of the -

Alabama Public Service Commission and the Interstate —

- Commerce Commission,. respéctively.

°

/ ; f

2, The defendant, Alabama Public Service Commission,

~ consisting of a president and two associate commissioners, .- ,

in an administrative body ¢reated under the laws of the,

-State.of Alabama (Title 48, Section 1, Code of Alabama,

_ 1940), and. thereby authorized to exercise certain regu-_

‘latory powers over plaintiff (Title 48, Section 106, Code of

Alabama, 1940). The principal office and official domicile

of said Commission is located in the City of Montgomery,

being within thé Northern Division of the Middle judicial

. . district of the State of Alabama. (Title 48, Section 11, Code

of Alabama, 1940.) Defendant Persons is President, and

2, |

NOE

8 .

oa E '3. The delenutant Carmichaelii \is “Attorney General for the.

N State of Alabama, and isa citizen of the. State of Alabama

and resident of the City of Montgomery. Defendant Car-: ..

Oe michael, as Attorney General of the State of Alabama, is by

e statutes of said state charged with the supervision and ‘°

‘eontrol of legal proceedings in behalf of the State of Ala-

bama and is vibe: for defendan te

Com ission,-

4, This i is a suit of a civil nattire etween citizens of dif- -

_ ferent states and arises under-the Fourteenth Amendment

i * .* . tothe Constitution of the United States, ‘The matter-in con- |

f pinged exclusive of \interest and cost, exceeds the sum

Q of $3,000 s he

Be _ 5.’ Plaintiff bavuntad with Title 48, Section 35 pe ee.

(Ne tion 106, Code of Alabama, 1940, on ‘th 13th day of Sep-

tember, 1948, by filing with defendant Commission an appli-.

gation for authority to discontinue the! operation of two

/loeal intrastate passenger trains being operated. -daily be-

/ tween Tuscumbia, Alabama, and Chattanooga, ‘Tennessee, s :

labama Public Service

6: The defendant Commission set said application | down Ys

~ fer hearing at Huntsville, Alabama, for June 2, 1949. The —.

hearing was certinued by the Commission until August 4,

1949, and again until October 6, 1949, when it was heard by

‘two representatives of the Commission, none of the defend- ae

ant commissioners: being present thereat. Pte es aa

y 7. Oni April 3, 1950, the Commission entered Sts report '

> and orderand denied plaintiff ’s application. aes

g. ‘Plaintiff seeks a temporary and permanent injunction

against the defendants, separately and severally, from pro-_.

eeeding to enforee sanctions provided under the law of the :

State of Alabama for .the failure. or refusal of plaintiff to

‘gontinue the operation of local } passenger trains Nos: 7 and

8 within the State of Alabama ii violation of order No.

11988, entered by defendant Commissfon April 3, 1950, and

)

1.

\,

QO er Bees

affected station in Al :

‘Alabama Public Service Commission for authority to dis- |

continue local trains

at 5:55 a. m. and arrives at Chattanooga, Tennessee, at _

10:50 a.m. © aed at aA unig) Yan a pon

-_ . é

—_ 4 &

that said order be d lared unlawful, null, void and of no

9. On September. 1 , ,

jama that plaintif€ had petitioned tlie -

os. 7. and 8. These notices remained

. posted for a period of ten days in complianee with the rule

¥ ie sie: ye ba

of defendant Commission. PTE Se

10. Local train No, |7 leaves Chattanooga, Tennessee, andi

’ makes scheduled or flag stops at the following. towns in Ala-

bama: Stevenson, Fackler, Hollywood, Scottsboro, Lar;

. kingville, Limrock, Wpodville, Paint Rock, Gurley, Browns-

boro, Chase, Huntsville, Madison, Belle Mina, Decatur,”

Trinity, Hillsboro, Wheeler, Courtland, Town Creek, Lejgh-

_. ton, and Sheffield-Tuscumbia: Local Train No. 8 niakes|the

"same trip in reverse, starting at Sheffield-Tuscumbia

ending at Chattanoo ra, Tennessee. ar 3

nd

11. ‘Train No. 7 leaves. Chattanooga, Tennessee, ‘at 4:15 ys

P. M. and arrives at Sheffield-Tuscumbia, ‘Alabama 9:05°

p.m. Train No. 8 Jeaves Sheffield-Tuscumbia, Alabama,

12.. In addition to local trains Nos. 7 and 8, plaintiff oper

ates-trains Nos. 35 and 36, ahd trains Nos. 45 and 46 be-

tween Chattanooga, | Tennessee, and Sheffield-Tuscumbia,

, 1948, a notice was ‘posted. at each |

Alabama. Train No. 35 leaves Chattanooga, Tennessee, at es

7,00 A.-M. and arrives. at Sheffield-Tuscumbia, Alabama,

» at 12:20 p.m. Train. No. 36 leaves Sheffield-Tuscumbia,

~ Alabama, at 12:40 p. m. and arrives at Chattanooga, Ten-

~nessee, at 6:00 p. m. ‘Train No. 45 leaves Chattanooga, |

bia, Alabama, at 4:10 a.m. Train No. 46 leaves’ Sheffield -

Tuscumbia, Alabama, at 11:10 p. m..and arrives at,Chatta,

‘nooga, Tennessee, at 3:10 a. m. ‘Trains. Nos. 35 and 36

make a scheduled stop or flag stop at the following towns

in Alabama: © |:

- Stevenson, Fackler,-Hollywood, Scottsboro, Larkinsville,

Limrock, Woodville, Paint Rock, Gurley, Brownsboro,

. i Sarr ae.

‘Tennessee, at 11:50 p. m.-and arrives at Sheffield-Tuscum- malt

es

‘ : Rae, ¥ : . v es

‘ : é Ssh 5 INA Late - a \ a .

TORE Shot ae Ee ieee ae

. : GR ys a) eon Ne "Qf ee hice ; 6 : ‘3

? alan. Hanteviile, Madison, Beile Mina). Hosaban:. Trinity,

heffield-Tuscurmbia.. Trains Nos. 45 and'46 maké a sched-

> Si Wheeler; Courtland,.Town Creek, Leighton to _

pled top or flag- -stoplat. Chattanooga, Tennessee, andthe

_ following towns in Alabaina. ‘Stevenson, catemepata Hunts- pha

Decatur. and Sheffield-Tuscumbia. ales a

13. 0

= from. Chattanooga, Tennessee, to Sheffetd-Tuscumbia, Ala-

_-bama.. Even number trains'8, 36 and 46 operate eastbound. . © -

from Sheffield- Tuscumbia, Alabama, to Chattanooga, Ten-.

- nessee.” All six trains are. operated daily and ary pas- Ao

i _ Alabama, would be closed for that reason.

sengers, mail and. express.

14; The passenger codthes- ‘ised. 6 on. trains: Non: JTand 8:

are of steel’ construetion, electric lighted, steam- heated,..

equipped with electric fans; flush toilets, window screens,

_ drinking fountains and smoking compa Chat The equip-

ment is gezierally.cléaned at. Sheffield an

aa i. ame

15. It requires-ten men -to. anette traing Nos. 7 and 8, os

five men inf each direction. Each crew-is’ composed of an: MS

Ls aa engine ercw of engineer .gnd fireman. and a train crew of |.

. conductor, flagman and baggageman. On Saturday and Sun-.

Rs 5 a pee is crags as an cad member on eas train. :

“8 make a sbott -haul from one’ ‘Joeal torn tp anothier of f about en

5% to. 10 miles ¢ distance. Berl “ Poke ten ant

17. Tf. trains Nos. By ik and 8: are: ‘diseonthaved: ‘no tation *

- hetween Chat nooga, Tennessee, and Sheffield- Tescumbia;

‘ —

s

18.! Statistics 1 information: concerning “the operation of

-trains Nos. 7 and 8 for the twelve months ending February. - |

29; 1948, slows \that“‘actual’’ direet expenses ($87,524.05).

Me \e ~véry nearly approximate total gross revenue earned ($98,-

842, 92)... With ‘‘ apportioned”? direct expenses added, the

~ twelve-months’ operation resulted in an: excess’ of Airect: io

expenses over ve revenue ot #7857 710. 14. ‘Stated differ. Sie

a, $ eval x ° : hea

d: peat trains a, 35 and 48 spent. ‘iatbonnd a :

rcestion and. 2

~*

es

SS

‘ently, the railway: spends $1 80 to” earn 1 $1. 00: of gross ;

_fevenue.®

19. For the twelve-month arto’ ‘caine ‘February "28,

1949, ‘‘actual’’ direct’ expenses ($90,993.77) exceeded total’ eat

gross revenue ($79,956.27): With ‘‘apportioned’’ direct: |: ‘i :

| * expenses added, direct expenses exceed total revenue by =:

» $102,326.93. Stated differently, Mea Railway pee out #2, 28

: to, earn $1.00 of gross revenue. ~ r

aS For the five-month pertid ‘ending July 31, ‘1949, tige. vo

. tual’’ direct expenses ‘($40,819.57) exceeded. total ‘gross oe

-revenue ($30,745.28). - _ With ‘tapportioned”’ . ‘direct ex- |

__penses: added, direct, expenses exceeded total revenue by .

"$53,692. 56. The. plathtiff railroad 1 paid out + 15 - earn

$4900 of. ; gross revenue. fin

: = The. “average number of passengers. on: trains: Nos. ee

~. Tand.8 per train mile decreased from 26.63 for the twelve _

‘months ending February ‘29, 1948, to. 18.13 for the twelve - : ae

* '. months ending February 28, 1949, and to 13:92 for the five

‘months ending. July 31, 1949. ‘The average number of pas-

- |. sengers-pér. train mile on’ all other Southern. Railway pag-

|, “Senger trains was 84.65 ‘for the twelve months ending Feb. |. .

+. Tuary 29, 1948, 76.30 forthe twelve months ending February ©

~ . 28, 1949, and 67.93 for the five moriths ending July. 31, 1949. ©

22. ‘The average revenue from, passeng rs per. train mile:

“for trains Nos: 7-and 8 decreased from 4.90 cents for tlie

h stwelve. months ending. February 29, 1948,. to. 37.35 cents —

--. ..foi’the twelve months ending February: 28, 1949, and to-

-“*. 29,22 cents for thé five months ending July 3f; 1949; this. :

ie _ contrasts with all other Southern Railway passenger trains,. é

—-— \: ° ‘

Peete. Tri these and the following. computation -the ‘temni “actual” direct ex-

” penses ineludes the wages for the train and engine crews, payroll tax, °

-railroad retirement and: unemployment insurance, train ‘fuel and damage ©

_~ fo livestock on the right of way. The term “apportioned” direct expenses

includes. engine house: expenses, water, ‘lubricants, supplies and he “#

. for. passénger locomotives and train. card, eésts of trackage over N.C. & -

. | 8. 4L,: and the ‘ Ghattanooga station- company expenses. ‘Nothing was

\+ineluded for maintenance of way, track, and structures, station, yard, all °

" -. traffie expenses, general supervision, - -Aaxes a ey fixed charges, é

bk Meritage or: return ‘on investment. | ; ee -

CM 4 eget Mee ie “oa

. “» ; Ps .* #,

; ;

sae

i end

ms 3

Ra Nis

ing deficit of $55, 262,779.

28 %

: cy

.- with an average of 192. 81 ents for the twélve mente end-

ing February 29, 1948, 195.92 cents for the twelve months ©

ending February 28, 1949, and 183. 67 cents for the five |

months ending July 31, 1949.

93. Plaintiff’ 's operation of its entire passenger business |

ee the period 1931-1941, inclusive, resulted in a net operat-

For the period 1942-1945, inclu-~

. give, passenger operations produged a net operating 1 income —

_ of $44,938,879. For the post-war years, 1946-1948, inclusive;

_ passenger operations resulted in a net operating deficit, of

$20,796,189. ‘However, for the same’ respective periods, .

* plaintiff ’s'net freight: service operating income was as fol-.

lows: for the years 1931- 1941, inclusive, $233,815, 273; for

_~ the years -1942-1945, ‘inclusive, $97,305,303; for the years.

1946-1948, inclusive, $90,631, 088. By combining the results °

a passenger and freight service, it appears that'plainfiff’s -

~ net operating income was as follows: for the years 1931-. |

~ 1941, inclusive, $178, 552,494; for the years 1942-1945, inclu- -

sive, -iperrapieane and f for the years + TGA, ipchisive, my

$69,834,899.

24. For shah year 1936- 1941, ‘ochisive plaintiff” S opera- Foe

‘tion of. passenger. service “within the State of Alabama re-—

sulted in.a net operating deficit, the total for such period -

having been $3,962,525. For each year 1942-1945, inclusive,

es _ there was a net-operating income, the total for’ such period.

having been $2,946,758. For each year 946-1948, inclusive,

there was a net operating deficit, thé total for such period

having been $2,872,505, ‘The plaintiff 's operation of freight

paitby oe fhe: the State ‘of Alabama resulted iri the follow- -

: for the years 1936-1941, inclusive, a nut operating in- ©

corks of $13,012,218; ‘for: the years 1942-1945, inclusive, a ;

net operating ineome of $13 934,056 ; and, for the years.

- 1946-1948, incliive, a net operating income .of $10, 667, KST. -

- Taking these two sets_of figures together, the plaintiff’s 3”

operation. within the State -of Alabama ‘resulted in a net

| _ railway’ ‘vperating- income from both passenger and freight-

“service for the years 1936-1941, inclusive, of $9,049,693 ;

. for the years 1942-1945, inclusive, of $16,880, 814, and for

the yéars 1946-1948, eae “ . 798,377. a

25. ‘Cacunabins 1948 with: 1936, plaintifi’s average Te- é

ceipts per passenger mile throughout its entire systeni in- -

creased 47%, whereas the average annual compensation per.

employee increased 109%, “ee and snppligs 134% and

payroll taxes 1 44%. 2

26. For the Southern Railway Ceiecey. as a whole, the

_ average yearly gross revenue from passengers was: for the

- years 1921-1930, inclusive, $27,956,720; for the years 1931-

_.. 194, inclusive, $9,573, 645; for the years 1942-1945, inclusive, »

2 B52, 339, 553; and for’ the’ ge 1946-1948, inclusive, $25; -.

195, 733.

nats Ps

3 J oat A comparison of the distribution of inter-city. pas- :

senger: traffic in the United States for the years 1926 and

f 1948 shows that in 1926 the steam Toads handled 21.9%,

in 1948 only 11.4%, a decrease of 48%. Private automobiles -

“in 1926 transported 70.9% ; in 1948, 79.7%, an increase of |

Le 12%. Busses transported 2. th & in ane and 6.6% in 1948,

an ineréase of 144%.

28. For the year ending Pebruey 3 29, 1948, the a day aver-—

age revenue from- passengers on trains Nos. 7 and 8 was. °.

* "$180.94, whereas the daily average total of wages, payroll .

tax and fuel was $238.04. For the year ending February -

28, 1949, the daily ‘average revenue from. passengers on .

trains Nos. 7 and 8 was $124.74, whereas the daily average

total of wages, payroll tax and fuel was $276. 19... For‘the

five-month period, March 1, through July. 31, 1949, the -

_-daily.average revenue from passengers on. trains Nos. 7 and

8 was $97.02, whereas. the daily average total of wages, ©

payroll tax. ‘and fuel was /$265.26. For the eight-month ill

period, August'1, 1949, th ough March | 31, 1950, the daily

. average revenue ‘from p sengers on tr ains Nos. 7 and 8 oe

was $83.11, whereas the daily average total of weReh, pay:

roll tax: ‘and fuel was $278. 57. ‘

29. Prior to 1946, plaintiff eG a Siovel-clesicic

power unit, the ‘‘Joe Wheeler,’’ on the run now served, by

trains Nos. 7 and 8, but after several years of. experimenta- :

' tion, discontinued its operation because of the uneconomical

results which: obtained. va ee

cds

0. Plaintiff i is not. a common carrier of the United Hintos i

mail. The collection and delivery of all mail is the function.

of the United States Government, exclusively.

$i. The line of railroad traversed by trains Nos. 7 and

CK PO Seb IN \eihcdanalisicinhions owt

ca

.8

-. § from Bridgeport, Alabama, to Sheffield-Tuscumbia, Ala-

-bama, is closely paralleled -by hard surface highways and

- many of the. communities’ along the railroad are located . :

directly on important. east-west highways. Several of the

larger communities ‘are also located on important north-

south highways. The Lee Highway (U.S. No. 72) closely. -

parallels the line of railroad from the Alabama-Tennegsee

state line to Huntsville, from which point the railroad runs | |

southwesterly to Decatur, and then generally westerly to

Tuscumbia. From Huntsville to Tuscumbia the line of rail-_

road is closely paralled. by the Joe. bidontenes vor nsatlad era

Me 20). #

32. The American Bus Lines Sernte' thirteen round trips

- daily between Florence and Huntsville. Seven of these

schedules operate easterly over State Highway. No. 20 be- |

tween Tuscumbia and Huntsville, while six schedules operate

westerly from Huntsville to Tuscumbia, via State Highway-

No. 20. The remaining ‘schedules, east and west, operate

over U. Ss Highway No. 72 via.Athens. Some of these~

busses operate in through service between Memphis and

. Charlotte ard Memphis and Asheville. Eight round trips - ;

. are operated daily between Florence and Chattanooga. Not

- less than seventy. ‘busses arrive in or depart from Huntsville

daily. Decatur is also served by the Southeastern Grey-

hound Lines, operating nine uaa trips daily between

é Nashville and. Birmingham. , \

ie 33. The steps, in timetable’ untad population,’ and bus

‘service available for. each of the towns traversed by ‘trains

Nos. 7 and 8 between Stevenson and Sheffield- ‘Tuscumbia

are as follows:

(a) Bridgeport,an agency station (xc&StL) Ho

‘incorporated - community with a: population re

49 the 1940 federal census of 2031 (2124 in 1930) :

Located on U.S. Highway No. 72. .

@.

“ ,

Six baile 5 Mae facie Florence and ‘Chat. <

' tanooga and seven busses daily between Chatta-

_~ nooga and Florence plus an additional round trip :

ioe

daily between Scottsboro and - “Chattanooga wia We

American. Bus Lines, :

Also served by daily trating’ of the NC&StL idk

other daily trains of Southern Railway ‘Company. ae

3 (b) Stevenson, an agency ‘station in an inveorporated :

community with a ,population according to the "1940 .

federal census of 793 (733 1 in 1930) :

Located on U.'S. Highway No. 72,

‘Six busses: between Florence and Chattanooga and

seven. busses daily between Chattanooga and Flor-.

ence plus.an additional round trip daily between

_ Seottsboro and ‘Chattanooga via. American Bus

ae

Also served. by daily: trains of the eiaa and

: “other. daily trains of the: Somber Railw ay Co, :

16) Fackler, an agency station 1 in an aintnsarporsted oi

community with an estimated population of 200 within

sight of the stepping place : 3

_ Located on gravel road about two, uae. from U. S.

- Highway No. 72; | .

Bus service along U. 8. Highway No. by Ne

( d) Hollywood, an agency station i in an a :

| eommunity with a population according to the 1940

federal census of. 311 (274 n 1930) :

Located on gravel road about. one mile from U. S, ee

Highway No. 72, _ .

- Bus’ service along: U. 8. “Highway No. 72.

Also served by other daily sabasret of. ‘Southern :

ilway. ce ee ae s ° Je

1h Algo served by other daily trains af Southern Rail- | e

ay way. -

(e) ‘Scottsboro, an agency station in.an incorpo-

rated community with a population according: to the

1940 federal census of 2834 (2304 in 1930):

: Located at junction. of U. S. Highway No. 72 and 6

‘State Primary Highways Nos. 32'and 35. | pa

Kight busses daily in each direction between Flor-.

} ence and ‘Huntsville and Chattanooga via American

2 eine eines, ae

es One bus daily in peor direction Sciweni Scottsboro

mee and Chattanoogo via American Bus. Lines. |

Two- round trips daily between Scottsboro and: |

Flat Rock via Northeast Alabama Bus Co., Inc. | -

'... Four round trips daily between Ft, Payne’ and

Guntersville via Northeast. Alabama Bus’ Co., ‘Ine. .

_ Also served by. other nee i trains of Soutliern

Railway Co, és .

I

ie ) Larkinseiile, an: agency. station. in an unincor-.

' ‘porated: community .with-an estimated population of

“iy 200 within sight of, the ‘stopping place:

‘ Located on U. S. Highway No. 72:

_ Six: busses daily in each ‘direction ‘békeden: Flor- “3 |

- enee and’ Chattanooga via American Bus Lines. « .

“pe Se served by other hoagie trains, of Southern

_ Railway Co. pile A *.

( @) Limrock, a non- ‘agesisy-station in an uninéorpo- |

rated community with an estimated oe of 507

within sight of the stopping place:

: A Located on U.S. Highway No. 72. °

_ Six busses dajly in each direction between Flor-

“ence and Chattanooga via American Bus Lines.

Also -served by other daily. trains of Southern re.

s : _ Railway Co. —

(h) Wootville, an ) agency station i in an incorporated a

~ community - with a population according to. the 1940

federal census of 183 (196 in 1930): :

‘ Located on U.S. Highway No. :, pease

i par

3 . * zs . « “oH

r é .: i #5

33

~

Six busses daily in each direction between Flor- :

-ence and Chattanooga via American Bus Lines.

Also flag stop for. Southern Railway _ trains

. - 35 and 36,0” Pot 2 ae

(i) Paint Rock,. an agency | statiok stale an rictipocated |

-éommunity with a ra accorditig to the - 1940

federal census of 282 ( in 1930) : pes

Located on U. Ss. Highway No. 72,

. Six busses daily in each direction Sa Flor. ;

ence and: Chattanooga via American Bus Lines.

and 36.

&

(j) Gurley, an “agency tation in an ‘unincorporated :

. community with an estimated. ‘population of ” within

: sight of the station:

. Located on U. S. ‘Highway No. 72,

Six busses daily in each direction’ ‘between Flor- |

ence and Chattanooga via American Bus Lines.

_. Also served by ny. naar appliway A trains 35

and 36.

(k) Hruwnebors an agency station in an. unincor-

porated communit, with an estimated population of

75, within sight of the stopping place:

“Located on hard surface road sboit eis eft of

‘a mile from U.S. Highway No. 72. -

- Bus service along U. S. Highway. No.. 72.

Also’ flag: stop for sally Southern n Railway trains : 3

: 35 and 36,

. (l) Chase 3 a joint agency’ sation (with, NC&SHL)

in an unincorporated community with an estimated

population of 50 within sight’of the stopping place:

Flag stop: for train No, 7 and regular stop for .

train No. 8 -

“Located on hard surface road about two ‘miles

fr rom U, S. Highway ‘No. 72.

Gots

rt

Also served by any Southern Bailway: trains ie

| oh 3 | 34 }

: Bus’ service along: U. 8. Highway 1 No. 72 (Chase a

- Road) between Florence. and Chattanooga. Also

bus service along unnumbered road between Hunts-

ville and Shelbysville, Tenn. via Cherokee Motor |

- Coach. Lines. :

3 ety re Also served by daily except. tender; mixed trains

: _ of: ee ate C&StL, ee between Decherd, Tenn.

n

lage tsville, abput 48 miles.

Also flag stop for daily Southern Railway ay pine

ie 35 -— 36...

_ federal census of 13, 050 (11,554 in-1930) :.

2 | & . . Located at. junction of U.S. Hishways Nos. 24,

tho. 92 and 241 and State Primary Highway No. 20. ;

Bo Seca: Eight busses daily in each direction between Flor-

ence and Chattanooga via American Bus Lines.

(in) ‘Huntsville, an 4 agency station i in an Lcelerstad: is

‘community with a population according. ‘to ie 1940 .

.. Thirteen busses daily in each direction between __ 4

Florence and Huntsville (seven via Tuscumbia east-. ©

bound and six via Tuscumbia westbound—the

remaining schedules via. Athens’) via American Bus

' Lines.

Five busses daily in ‘each disestion from’ iad to

New Market (four each way from and to W inchester,

Tenn.) via Cherokee Motor Coach Lines. |

" ~ Nine busses daily to and from. Nashville, Tenn.

ae via Crescent Stages, Inc.

__ Eight busses daily to and. from Montgomery, Ala. vs

vin. Crescent Stages Ine.

. Eleven busses daily to and from Anniston, Ala.

is bama, via Crescent Stages, Ine. Ss

3 Nine busses daily’ to and from Sylacauga, Ala.

(with connections to and from Birmingham) via

i Crescent Stagés, Ine.

Also served by. other daily trains of Southern

Railway Co.

_. . Also served by daily, except Sunday, mixed ifsine

a “at Oe NC&StL between Decherd, Tenn. and Huntsville, kee

; nD somes 48. miles. .

v

“(n). ‘Medienn. an agency station in an taporporated ap

community with a- population. re ae to “the 1940

_ federal census of 455 (431: in 1930): ° :

“Located on State Highway No. 20:-_ -:

Seven busses daily between Florence- Decatur and

Huntsville and six busses daily between Huntsville- |

Decatur and Florence via America Bus Lines. <

Connection at Huntsville. from and to Chattanooga. ie,

_. Also served by daily Southern sess Se trains 35 |

as 36. as : vay Z

. (0) Belle Mina; an 1 agency station in an unincorpo-

rated community with an estimated Population: of 200

within sight of the stopping place:

Located. ‘on Siate Highway No. 20. > ‘on

_ Seven -busses daily between Florence-Tuiseumbia -

and Huntsville via Decatur and six busses. daily:

' between Huntsville and. Tuseumbia- Florence via

~~ Deeatur via American Bus Lines. aoe

Also flag stop for. any Southern Railway irsbue :

85 and 36, | :

(p) Decatur, ¢ an agency station in an : incorporated.

community with a population according to the 1940 -

a federal census of 16,604 (15,593 in 1930) :

Located at junetion of U.S. Highway No. 31 ‘and

State Highways Nos. 20 and-24. |

_ Seven busses daily between Florence- Poienuhia :

and Huntsville. and six buses daily between Hunts- :

ville-Tuscumbia and Florence via American Bus .

- Lines. Connections at Huntsville from, ane to Chat-

tanooga.

‘|. Three busses. daily i in pa direetion to and frow

Red Bay, Ala., via Red Bay Bus Lines. —

: Four basses daily. in each. direction from and to’.

Moulton, Ala., via Red Bay Bus Lines. : —

Nine busses daily in eaeh direction between Bir-:

: mingham and Nashv ille via Southeastern Greyhound

Lines.

- 4

Ae end ea nto se

a

“Algo served by other ‘daily Southern. Railway

trains in addition to daily L&N trains between

_ Cincinnati-Birmingham and. beyond,"

(a) Trinity, a non-agency stop in an incorporated —

community with a population according , to the 1940. |

federal census of 249. (208 in 1930) : pee ss

Located on hard surface road about one ‘mile from

‘State Highway No) 20. >.

- Bus service along State Highway No. 20 between

Folrence and Huntsville with connections at Hunts-

_ ville to and from Chattanooga. .

Also flag stop for sass Southern Railway trains

, and 36.

9

(r) Hillsboro, an agency station in an ‘incorporated,

: community with a population according to. sy 1940"

federal census of 292 (240 i in 1930) :

Located‘on hard surface road about one mile from

State Highway No. 20. . :

_+ Bus service along State Highway No. 20 between

Florence and Huntsville with connection at Hunts-

_ ville from and to Chattanooga.

As

ee f

°

‘

Aiso flag stop. for ony Southern Railway trains.

35 and 36, :

y s) Wheeler, a non-agency station with a an estimated

| as population of 100 within sight of the. station:

Located on State. Highway No. 20.

‘Seven busses daily between oh and Hunts-

ville and six busses. daily between Huntsville and

Florenee via American Bus Lines with connections

at Huntsville from and to Chattanooga.

_ Also fiag “~ for ony. oe cries trains:

35 and eet

(t) Courtland, an: agency station i in an incorporated —

community with a _population Seoordine to the 1940.

accra census of 454 (359 in 1930) :

/

oe

neta : Tioaated on 1 State’ Highway No. 20 near junction

with State Highway No. 36, the latter highway eon-

necting State Highways Nos. 20 and 24. |

‘Seven busses daily between Flotence:Tnecumbia |

and Huntsville and six busses daily between Hunts- |

- Lines with connections at Huntsville to and. from

| Chattanooga. |

ae and 36,

ville-Tuscumbia and Florence via American Bus:

Also served by daily | Southern Railway trains | gs

hae (u) pened Creek, an ‘agency: station in an incor-" ve

__Porated ‘community. ‘with a population according to the

1940. federal. census of 637 (427 i in.1930):. ¢ ~

Located at junction of State Highway No. 20 atid

-. State Highway No. 101, the latter highway connect-

ing State Highway No. 20 and U.S. Highway No.72. —

_ Seven busses daily between Florence and Hunts- °

ville and six busses daily ‘between Huntsville and’

Florence via American Bus Lines. |

Also served Kd daily Southern Railwa " iraina 35

and 26. ne ane

(v)* “Leighton, an agency station in an inoorpotated ee

“community with a population according to the 1940 ‘ :

federal census of 810 (670 in 1930) : 3

Located on State Highway No. 20.

Seven busses daily between Florence-Tuseumbia

and Hp tsville and six busses. daily ‘between Hunts-

ao yw and Tuscumbia-Florence via American Bus —

ines with connections at Huntsville to and from

Chattanooga.

Also, s rved by daily Southern Railway trains 35

and 36.

, wohiale ssalateation in the State of. Ala:

Sey bama_ for the year 1948 shows 391, 704 automobiles, 3,859 :

busses and 137,511 trucks.- ;

t 35. ‘Phe’ number of inhabitants per registered stiomobiie ue

_ ‘ in the counties iof Ajabama seo which trains Nos. 7 and i

\

oa

* _- Gordon’s Transports, Ine, .

< \ 2 ‘ fe d

38.

8 run are as fcowa: Colbert, 6. 2; Sauronen 11; Lintentane,

8.8; Morgan, 7.5; Madison, 7.4; Jackson, 12.9; and, for the .

State of Alabama, the number of inhabitants per registered

automobile i is 7.8.:

36. There is disscsie highway motor freight service .

sige! the route traversed by trains Nos. 7 and 8, and each

city or town is serviced by one or more of the following.

interstate highway motor freight carriers:

Baggett’ Transportation Co.~ 2G:

. Birmingham-Huntsville Transport, Ine, e

Fayetteville Transfer. Co. Hea

Loo-Mac Freight Lines. - ais oe nes

Malone Freight Lines, Ine. a =

Martin Motor Express. _ me ue aa =

Neely-Ross Motor Express, Ine. ascot

oe North Alabama Motor Express, Irie, ss

Roadway Express, Inc.

Silver Fleet Motor Express, The.

_’ Valley Truck Lines, Inc.

. Mohawk Motor Lines, Inc.

_ Dixie-Ohio Express Co. :

Hoover Motor Express Co., Inc. _ ae a

McCullough & Sanderson. | ia Wy Pe ee

. Inter-City Trucking Co. BSA eee

is Meeks Motor Mreight.

‘87. The fussenger transportation revolution, resulting

from the construction of a vast network of highways, im-

_ provement of ‘the private automobile, and tlie’ availability

. Of bus setvice, has transferred passenger transportation

needs from the railroad to the highway: See :

38. The convenience of the private automobile and busses

~ has outmoded local passenger trains Nos: 7 and 8 and caused

them to beeoine an undesirable form of transportation,

\

: subject matter. .

ae OL RC ni: | MGhrd a

«

aciuatonn ot Law .

ie Plaintiff ‘suit arises under the Fourteenth ck:

“ment to the United States Constitution and the matter in

controversy oe exclusive of cai soak and costs, the.

sum of $3,000 |

2. This court has jurisdiction of the parties ‘end of the

ia

3

3. The questions for dusted prenent no > unresolved aces: :

tion of State law. ©

ey Under the pr visions of Title 48, Sections 35 a 106,

Code of Alabamg, 1940, plaintiff is ‘required to obtaina. *

permit from. ‘Aldbama Public Service Commission ' before

discontinuing gularly £cheduled passenger tr Vengo

5. ‘Defendants Persons, Hitcheock, and Owen, as the:

President and Associate: ‘Gomintesionérs of the Alabama

' Public Service Commission, are charged with the duty: of ©

regulating and controlling transportation ne: rina Pia

OO el Section 104, et seq., Code of Alabama, 1940).

6. Defendant Carmichael, as Attorney Gamera! of ‘the

State of Aiabama, is charged with. the duty of. enforcing

all orders of the Alabama Public ‘Service Commission and

the sanctions provided i in Title 48, Code of Alabama, 1940.

a The Alabama Public Service Commission is charged.

with the duty of supervising, regulating and. controlling all

“transportation companies doing business in the State in

specified particulars, including ‘the maintenance of such

_.. public service as may be reasonable seat just Title 48, Bee-

| tion 104, Code of Alabama, 1940, a“) u af

8. In Alabama the daty. to maintain. such public service «.

"as may be reasonable’ and just is” not i perative but is

relative. ‘‘In order.to justify a reduction of the service,

‘the carrier is not required to show that the rate br return

on the system requires the ‘reduction, or that }t would imn-

pede interstate commerce, but it is sufficient if'the reduced.

plan would supply such train service as the public neces- :

sities demand and require (cases sited). "’ Ala, Pub. Serv.

| :

eh + e .

> . p 4 ts

Pexinhede ; 40

”* ‘ ‘

'

' Cama v. - Atlantic Coust Line R. Co., o— ‘Ala. —_, 45 So. 2d |

' 449 (1950), 3 , at

. X Plaintiff i is under no obligation to. dontinte to offer a

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

nancial: ‘burden, and Where it is unreasonable to deamand

oe its s edhtinuance.

Thompson v. Boston & Maine RR, 86 N. ‘ay 204, 166, a

—A:249; :

a Atlantic Coast Line R. ‘Ry. Public Serve Comm. ‘of

- So. Carolina, supra; )

_ Alabama: Public Service Comm. ‘Vv. Atle C Coast Bie

R. Co., supra.

10. The controlling criteria in s detecaniclns whether local

a: 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 ¢ expense

of operation as compared with revenue from same, and the

“ operations of the carrier as a whole, - °

-, Atlantic Coast Line R.R. v.° Public Service Comm, a

So..Carolina, supra;

Ala. Pub. Serv. Comm, Y¥. Depaiouies Coast Line R.R.,

i iigt ee : ie a

Ke SER * ‘

11. If plaintiff. continues to operdte local trains Nos. 72:

and 8, it will suffer irrepar~ble damage by expending sums ©

“grossly disproportionate to revenve in a situation where

_ there is no public necessity or demand for such-service:

12) it; plaintiff fails to operate local trains Nos. 7 and By.

_ plaintiff will be subjected t6 irreparable loss by incurring <-"

_ liability under sanctions imposed by Title 48, Code of Ala- —

_ bama, 1940, including Sections 110, 399, 400 and 405. -

13. Plaintiz has po adequate remedy at law.

“14 ‘Plaintiff will. suffer irreparable | damage unless this a

eourt permanently. enjoins defendants and their sucéessors.

in office from seéking to impose the sanctions pyovided by.

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

plaintiff of-operation of its passenger trains Nos.7 and 8

between Tuscumbia, Alabama, and Chattanooga, , Tennessee,;,

: ; ‘} °, a ee

ME Beet emer ane’

hacer Ve

\n opposition to the order of the defendant Commission,

Docket No. 11988, April 3, 1950. ,

“15. Order No. 11988, of April 3, 1950, rendered by the

defendant Commission denying plaintiff permission to dis-

-eontinue ‘local trains Nos, 7 and 8 is unjust, ufireasonable—

- and.-confiseatory and deprives plaintiff of its property with-

5 as

~ ment to the Constitution’of the United'States since there is

out just the Gott in violation of the Fourteent Amend- —

no lopger public

is operating at a. large financial loss.

ecessity for this service _ plaintiff

ee 16. Plaintiff owes no common carrier obligation, either :

to the United States or to the Genural Futile a — ie

the United States Mail.

47 Plaintiff i is erti led toa ‘permanent injenttidn enjoin-

_..ing defendants Alabama Public Service Commission, Gor-

_ don Parsons;: its

resident, Jimmy Hitchcock and €. C. fe

. .Owen, Associate ‘Commissioners, and A. A. Carmichael, |

the successors in office of each of ‘them, and their agents,

oe Attorney General of the State of Alabama, together with |

_ servants and attorjeys from pursuing any of the’ remedies Oh

of mandamus, injunction, fine, forfeitare or penalty pro-

vided in Title 48, Sections. 110, 399, 400. and 405, Code of >

- Alabama,.1940, or dtherwise, for the purpose of compelling

‘plaintiff:to contimie to operate: local trains Nos. 7 and _~

8 between Shéffield- Tuscumbia, Alabama, and Chattanooga, — -

Tennessee, pursuant to Title 48, Sections 35 and 106, Code .

Of Alabama, 1940, jand the order of the Alabama Public:

Service Cominissidi, Docket No. 11988, of April 3,-1950.

c's . Done at Montgqunery, meters: this the: 20 day of Jay,

.1950..

er Rec ees ee ie Mé Coke sat :

| | . United States Circuit Judge. |

/1C.B. KenNaMER, -

. . United States District Judge. .

; Srysourn H. Lynne,

United States District Judge.

ues ‘Filed July 20, 1950. 0 D. Street, Ir. Clerk.

?

|

}

Fee

LF - . me. oe ae ————

.” ahs HH ay 5 te ; ns

Se

33 Oe eee

as oe

eee. aN THE. UNITEs: STATES: lonerator: COURT. FOR :

eS PRE MIDDLE vadinegs OF ALABAMA, NORTH. |

e: a — + SEBS DIVI ION © sees |

. as et ‘ ea ratee i . Pat pe

= Als eae segues Gini ‘Adlon Nokast : eee ;

ee

+

: nt ioe Comtraxy, a Corporatio Plainti, n

ee en as feet ages é. : Eee : ae

See Avapai A Poms ‘Sawrice: ‘Comaataron ‘Gousow. Penson: tle.

peesener © Meee identi and Ji immy. Hitchcock and C.. C>¢Fack) Owen, +

Ng Ass late-Co issioners; and A. Carmichael, A Attor- aS

2 General: f the he State of Jeattases sy, Bete nie

Gee cause > éoming. on. to be heard ‘hefore a duly consti-

hree\judge district court and having been. submitted 5

7 ee \of the partiés for final decree upon the plead- be!

co. “ings im the ez ise and upon the’ evidenc offered herein, in-:

Be iy eu _ duding a trans stript of the testimony. presented at the hear- ~

7 Pina ee “ie before the Nefendant, Alabama Public. Service-Commis- ©

— \o + sion, eld at Hidtsville, Alabama, on Qetober 6, 1949,"for

_ + \ thé’ reasons set {9 thin the findings of fact, conelusions of:

ae a ieee law and the opinion of the Court filed herein:

hs Ati is now Onliesd Adjudged: ond pte 20th ay oe

“ot July, 1959, as: follo a vig:

ee i ay That the motion ¢ |

eee several motions ‘of the. ;

ee a

1e clefe b

e = L “Batis Goniintedion hated April 3, 1950, Seavine the

_-tion of plairtiff filed ‘September ‘13, “1948, requesti

ee thority to discontinue the- opérati A of passenger €;

fee ie - Nos. 7 and 8 -between- -Tuscumbia, | Alabama,. and Cha f

Ne -nooga; Tennessee, in so far as they are ‘operated i inthe §

a = of Alabama, be a the same is hereby vacated and sauanetan \:

ee er LS - be ed void and of no effects :

Se SS: siiesiod, Gordon Persons, ‘its Presi on Thee fick §

gd CCL Favk): “Owen,_Agsociate| Commissioners, and .

| \e 4) ~ A Series, A Morney General of ‘the the a ie of Ala: a

oS

“a

se Puy £

ETS AP Y

8 0 are \s 43

“= ‘ L< se eo ‘ kin

~~

"S

‘ t z aN

bam “fester with the s successors in office of each of them, Se >

‘-and their agen: servanits | and ‘attorneys, be and they are |

itly enjoined from taking any steps or : ot

‘tort whatso against the plaintiff, Me. es

_. officers, agents or. employees; to enfo e@ provisions Mee

yg said order or. to enforce any fines, forfeitures, alties op.

other ‘sanctjons provided by Title 48, Code of Alabama, _

~ 4940, or any remedies. ‘against. the plaintiff its officers,

agents or employees on. ‘aecount: of the. failure to observe Ea

the provisions and requirements of said order by fbandon-;

ing and discontinuing thée.operation ‘of plaiiitiff’s passenger... >

trains No$.7 and 8 in enter a ey Alabama, and Chat.

0

d,

5 3 , ; Eps

iiakenteenanicesininntnaraleie tens iia tibae inten uncut oe” otea

Pe SAE

_. tanooga, Tennessee, in s ras they are i ad within:

tg the State of Alabama; an |

| ae (4) That the costs. of court incurred in’ “this ’ cause ‘be is

|". and the same are hereby. taxed against. the ‘efenantorfor 4

VERS which ¢ exeration mer issue, AS: :

; \e et oa ; Taso MéCorn, ik Soe

Ay eee GUS RE AE bs EER RDS a States Cireyit Judge. %

/8

By meen Sian Ene ene Kexxamer, Ges AS oe

eB ae cee — zt United States District Juilge. Re Wp

sa WANG coer 1 Sok a eyes - Suysourn H. Lyxwz, - é RSS, |

Sone = Soares * United States District endge.: :

a Filed daly , 1950. 0. D. Street, Jy Clerk.

Pee a oe

2 ae * | : ” apresvix “B" ; | |

a te ee 3 ay “ ‘Alabama Statutes a * : ee

a Code of Alabama 1940, Title BTL me *. fa aa

-\” See, 35. Abandonment of service, regulated: ate ‘utility

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

\) exeept. ordinary’ discontinuance of. service for.nonpayment . .

ae charges, nonuser and similar reasons in the usual course ~

_of business, unless and until written application is. first

to the | commission for the i issuance of a certificate that.

future publi 1¢ convenience or necessity permits

such abandonnient~ the issuance of such a certificate.

1 : Upon the filing of such a tion, and after a hearing of —

i all parties interested, the commissi or r may not, in

Ras Py oe its discretion, issue such. certificate.

See. 50. Attorney: General to reprouent € commission; spe-

_ | eial counsel ‘provided far : :—The attorney shall represent

~~ the public serviee co mission in any and‘ali legal’proceed-

"5... ings which it-may Mave.the power to institute: and which, .

ee pursuant. to. syeh- power, it has instituted, and in-all legal °

, Jee '- proceedings against it, and shall institute such legal proceed-

op EG ings.’ which, the commission may request or: deem necessary, ~ -

| provided it has the. power to institute them, to enforce. the .

+. prévisions’ of this-title or compel obedience to and observ-.”

-. *..- anee of the same by any person, firm, company, or.corpora-\,~

Poe tion, upon which such obedience’ or observance is imposed, .

The attorney general with the approval of: the gov ernor”

~- may employ any special cotinsel toinstityte or defend ‘such ~|

“..- Jegal proceedings or to assist the attorney general theréin, ‘\

“oe 7. saad to contract with the special counsel concerning a rea- ~

Mg: Fee sonable compensation for, his or théir seryices, which com- ¢.

¢ | ‘pensation’ shall be pai out ef the treasury on a, warrant ye

~ , drawn hy ‘the comptroller on the ee ‘ane. apprey, al

by the governor. | (1907, Pp. 43).

; See. 76.,Reheatings. Any time after an “or

~. made by the commission, any person interested therein may -

apply: for a rehearing in respect toqny matter dete rmined ae

; the rein, and the commission shall grant and hold’ sueti_ re-

; dette 5 :

Sebel. oF cooker play Boy oN _— , 4 Tt OR ae ae oy ; \

i A : za . : . : L

PO es . : . “\

ae “. aN

_» 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 shail 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 shail

_ have the same foree and effect as an original order, but

-~Shall not affect any right, or thé 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 cethply with any valid

. order ‘of the commission or of any comngssioner, 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 conimissioner, may iksue an

»: attachnient for such person and compel lim. fo comply with

-- such order, or to attend before the commission and produce

- Such documents and give his testimony uppn such matters

* gs may be lawfully required, and the. court/ or judge shall

have power to punish for contempt as in cases f disobedi-\

ence of a-like order or subpoena issued by ot tram such: \.

court, or a refusal to’ testify therein. | ee SS

2» © See. 79::Appeails from orders of commission.—From any” Pan Ne

final action or order of the commission in the exercise of — _ OS

the. jurisdiction, power,. and. anthority. conferred aaa te

by this title, an appeal therefrom: sha}l lie to the ‘Cireuit. «|

. €ourt of Montgomery County, sitting in equity, except ap.

—~ peals under chapter three of. this title, and thence to the.

~ supreme court of Alabama.” All .appeals. shall be taken « ’ ue

. Within thirty days from the date of such. action or order © | ~--

and shall he granted as a matter of right and be deemed.

“>. perfected by filing with public service commission a bond _

_ 1. for security of cost of said appeal when the appellant is a_

utility or person, and by filing notice’ of-an appdal when

; . i a bs Paes |

2 © baad ‘ or ee

a ; . ‘ 4 - A wi : . a

4 Ms . °

2 “

oe Ex. Sess., p. 233.)

| the appellant i is the State of

Q

- See. 81. Right to supers

any atility, interested. part,

_ any decree rendered: by giving such supersedeas bond or

“bonds as may be appropriate. to the proceedings as provided

2

mission.

a

+ fori herein n for ro order 0 or wneere of the com :

See. 82, * Proesddikes ou appeal. —The commissign’s order 3

~~ shall be: taken as prima facie just and reasonable: Ng new —

_ or-additionai-evidence may: be introduced in the|cireuit court —

except as to fraudeor misconduct of some person engaged |

-<in the’ administration-of ‘this title and affecting the order,. -

ruling or award appealed from, but the court shall ‘otherwise

hear the case pon the certified record and shi set aside .

the order if the court finds'that: the commission erred to

the. prejudice of appellant’ s substantial rights in its. appli-

remand the case to thé.commission for further proceedings

itt conforinity with the direetion of the. court. The court |

-remand

maty, in dvance of judgmentiind upen a sufficieht showing,

ing att

: Alabama. (1900, be 26; 1982, 2

‘biden, ia any inch appeal 4

, or intervenor may supersede —_

~.eafion of the law; or; the order, decision or award was pro-—

-eured by fraud or was based Ypon findings of facts contrary — -

tq the. substatitial’ weight of the evidence. Provided, how- ~

_ ever, the court may, instead gf sétting aside’ the order, -

he cause.to the¢ommission, for the purpose. ‘of tak--

a. ional testimony, or other ‘proceedings. 4 1932, _Ex.

. Sess., Py 233.) ae

. See. ‘4. Appeal. does not chnivenile: ont sapasstiinn

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

| appealed from unless thée'appellate court or. judge thereof,

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

A

' . upon hearing and notice, after ednsideration of the testi-:

appeal be from an order of the commission redueing or

AE 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’

.- df the action or order appealed from without. requiring as_

me condition precedent to, the granting of said super sedeas

2 ee hi

.s

t

* ue

sat

“oy

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.

<

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

tion comvany subject to this chapter shall abandon all or:

any portion of its service to the public or the cperation of |

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

continuances of service for nonpayment of charges, non-

user, Violations.of rules and regulations or similar reasons '

in the usual course of. business, unless and until theré shall

first have been filed an application fora permit to abandon.

serv ice and obtained from the commission a i permit allow- :

“ing such abandonment. Ee eve mwa OS

See. 399. Penalty for charging extensive rates. granting

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

-. doing business: in this state, or any of its authorized agents, |

: officers or employ ees, who is guilty of knowingly or willfully

charging, demanding, or receiving any rate or charge rsd

any.commodity or service different from that authorized .

by its lawful tariffs on. ‘file-with the Alabama public service :

.. eommission, or. who is guilty of knowingly or willfull?

granting or giving to-any person.or persons any concession -

or rebate in respect of its lawful. charges cr rates, or who

* knowingly’ or willfully violatas, or procures, aids or abets

the service it is. rendering the public, except ordinary dis- .

‘ ‘

a Violation_of, any lawful order or decree of said commis- —— *

sion, shall be guilty of a misdemeanor and, upan conviction,

shall be punished by a fihe of not more thar one ‘thousand |

‘doliars- for each offense. It. the ease of a violation of said —

-eommissiqn’s orders or decrees, each day's violatfon shall

“be. deeme to he-a, separate: offense. B oiot, 1932, ‘Ex. Benes

© PE 209.) ee i

| Section wo. ‘Violations of statutes as to reasonable oles.

"adequate service and unjust discriminations ; penalty. —.

|| Every. officer, agent. or employee of such common carriér:

‘or railroad corporation who shall violate or procure,.aid

or abet any violation by such ¢onimon carrier, or railroad

_ Corporation, of any. of the statutes of this state relating -

to reasonable rates, adequate service, and ‘Piaget diserimi-

rates, adequate. service and’ unjust dis«

' , seribed by the Supreme.Court.” 7

a Any other direct appeal

awe Sarria Ae tee 48

aa eee pares ; ; x, . Testo

nations -of the public service of any common earrier of. °°

this state, or who shall fail to: obey, observe, or comply —

. With any ‘order of the public service ¢ mission, or any , -

provisions of any order of said. commi sion, ‘or who pro- ,

efres, aids or abets any such common carrier, or corpora- -

tion, in‘its failure to obey, observe, and comply with any |

- such order, direction,’ or provision relating-to reasonable -

imination by com-. °

‘mon-cartiers of this state, shall be guilty of.a misdemeanor,

and, on conviction. thereof, shall be fined’ not exceeding — -

" one thotsand dollars, to be fixed by the court. (1907, p. 23.)

eas Ae - United States Statutes.

- | Unlited States Code, Title 28: © -

«See. 1253. Direet appeals from decisions of three-judge

‘Exeept as otherwise provided -by law, any party’ may

_ appeal to the ote and ea from an order granting, or®

_ denying, after notice and hearing, an interlocutory or per- |

_ Manent injunefion in any civil action, suit or proceeding

“, required by any Act of Congress t& be heard: and deter-

Inined by a district court’of three judges. © si

Ane Sans sts ¢ sa ; . Fer Peete ’

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

| docketing MEF Eee Raa P ae

--_ (a) A-direct appeal to the Supreme Court fronrany deci-.

_ sion undef sections 1252, 1253 and 2282 of this tifle, holding

- unconstitutional in wHtole or in part; any’ Act of Congress,

‘shall be taken within ‘thirty.days ‘after the entry. of the:

__Interlocutory or final order, judement or decrée, ‘The ree--

ord shall be made up and the case docketed within sixty ~

days Trom the time such appeal is taken under ¥ules pre- +

.

| , 0 the SupPeme Court —shjeh

i a by. law, from a decision of a. district courtSin.

hy civil action, suit or proceeding,-shall be taken: within

‘

thirty days from the judgment, order or decree, speonie :

‘from, -if interlocutory, and within sixtt days if final. Pegi

_ . _(¢) Atiy other appeal or writ of certiorari intended to > .

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

“=~ ‘ Pore ne : ; f : e Y ~ epee

. eS. Mls Lanes ° ee, - e "

v as . <> \ 4 aan :

aged

S ¥

ee SAE

Sie : 49

ae st

‘antes before the Supreme Court for review shall be hen

‘or applied for within ninety days after-the entry of such

_ judgment or decree. . A justige 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 cer-

- tiorari to review the judgment of a State court in a ay rd

ease shall be as prescribed by rules.of the Supreme Co

(e) “An application to the Supreme Court for a wri a

certiorari to review & case ‘before judgment has been ret:

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

before judgment. | :

~ (f) In any case in which the final jelimenk or ‘ deoree of

‘any court is subject to review by the. Supreme®Court on

(ee writ of certiorari, the execution and enforcement of such,

judgment or decree may be stayed fora 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 judginent or decree or bye

a justice of the Supreme Court, and. .ay 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’ ‘gtanting -hi§ application, or fails to make

his plea good i 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: — 24, 1949, c. 139, See,

106, 63 Stat. 104." a

eat Sec. 2981. Injunction ‘against daledpdennich of f State stat.

ae ute; three-judge court. required, *.

An ‘interlSeutory or permanent injunetion ‘restrainibg the

enféreement, 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 statttes, shall not be granted by any district

_ court. or judge thereof upon the ground of the uneonstitn-

- tionality of such statute unless the application’ therefor is -

_ lieard’ and determined, by a district court of Uiree Judges

| under Section 2284 of this title..

, judges the composition and procedure of thé’ ¢

-

> Bee: 2284. Three-jude district court composition; pro-

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

gress to ‘be heard and determined by a mpeg ks th of three

rt; except

_ as otherwise provided. by law shall be as follows:\ ©

(1): The district judge to whom the application t r injune- a

tion or other relief is presented shall constitute ong member .

of such court. On the filing of the application, he shall im-

_ mediately. notify the chief judge of the circuit, who shall

designate two other judges, at least one of whom hall ‘be

a circuit judge. Such judges shall serve as member of the, |

e court to hear and determine the action or pro¢eeding. an

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

execution. of State statutes or State administrative rders, -

at least five days notice of tlie hearing shall be given oO the”

' . governor and attorney general of the state.’

If the action involves the enforcement, operation orexe-

--¢ution of an Act of Congress or an order of any department

oF ageney 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 distri ict,. .

vand 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.

we an inter:

Hee : . (3) Im any such case in whielr an dpplicat

locutory injunetion ‘i is made, the district judge to whom the

application is maile may, at any timé, grant a ‘temporary

restraining order ,to prevent irreparable damage. The |

order, unless previously revoked by the district judge, shill

remain in force enly until the hearing and. determination, by

‘thé fulleourt. It shall contain a specific finding, based upon -

evidence submitted to such judge and identified by refergnée

/ thereto, that specified irreparable damage | will result if thie”

' order is not ‘vrant

edy

(4) In any such ak se the application. shall ie given prece- ;

dencegand assigned for a hearing at the earlicst praeticable

day. Two judges must-concur in granting the application.

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

form all funetions,. conduct all proceedings except the trial,

|

and athe all orders required or permitted hy the: rules of ae

“> eivil procedure. A single: judge shall not. appoint a master

sor ordera 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 of final

ei judgment, The action of. a single judge’ shall be review-

_ able by the full court at any time. before final hearing. ey

_A district court of three judges shall, before final hearing, - :

| stay any action pending therein to enjoin, suspend or ree

- strain the. enforcement or execution of ‘a State statntc or ‘ 7

order thereunder, whenever it appears that a’ State court

of competent jurisdiction bas stayed proceedings under —

such statute or order pending: the determination in such

State court of an action to enforce. the same. If the action ! ‘3

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 attor- <

ney dsentas of the State. seas i

(855)

Lee - F ‘