# Statement as to Jurisdiction — Alabama Pub. Serv. Comm'n v. Southern R. Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386407_0042%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Statement as to Jurisdiction - **Published:** January 1, 1951 - **Citation:** 341 U.S. 341 ## Text 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 . 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 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. ‘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, . 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 - 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 ‘-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 | - . 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