Brief for Southern RailwayCo — Alabama Pub. Serv. Comm'n v. Southern R. Co.

“LIBRA RY

SUPREME COURT, U. x

IN THE.

“Soupreme Court of the Bint fotates

Octosrs ‘Tena, 1950.

No. 395.

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- -Atnapama Pvusiic Servicer Commission, ET aL, Appellants,

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Sournern Rattway Company, Appellee.

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BRIEF FOR SOUTHERN RAILWAY COMPANY.

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INVOLVED

a STATEM NT OF THE CASE

I S\N ARGUMENT io. pce e ent ees Sas

ae ae Se ak , . fs ene 2°

ee ake “TABLE OF CASES. ee

Pes Ameri “Federation of ‘Labor v., Watson, 327° se. one ere

A IRE ST TEE Cee eee SRR 11, 12, 3°)

_Oklahoma Natural Gas Co. v. ‘Russell, 261 U.S; 290.. if.

Shipman v. Du Pre, 339 U. 8. 321....:...... veeed]0, i113:

‘Smith v. Hlinois Bell Tel. Co., 270 U. 8. 587........... Se

Southern’ y. nae = Alabama Public Service Com’n,

‘91 BF. Witsel see ewe seca meee eer toevee Povesae ce

. Toother v. frell, 394 U. Ss. 385 : ae BE,

CONSTITUTION AND STATUTES.

Constitution of the United States ERC at

Amendment XIV, Section 1 . Pereercrein ch

United States Code, Ti bie RS oar

~ Section 1253...

Section 1331 .

Section 1332

Section 2281 . \*

Section 2283 .\. . .

Re Section 2284! :

, Aishoing. Code, oY Title 48 ee

| Section 17; LeORer ees Resse be ieee NeEees ae |

Section 77 x. ee ane eepes Va eee ew teense awe ‘Swe awe 3:

MIE TE GN cca hs haste oe newer vee buyeecqoons ea

Bp COS EES EGA a a Dieakebiake: 2

/ Section 84... Op AG nig Spee tae yk wate eevee wee

i MME 515 0th Bel ea aes eds oe Leo

+ OI Os ivan ee tee sasoekuedineges ee

OOO BB ee Seeics cece) avuive/e WE See hak take ek.

Bg oc ED PE Eee IS EE EEG CS Case ey Bia

Section 106... ...., + ING eked eae etaes iene ee

\ MIOUONP AIO 665 scab ect leg eovisyesseesi cane oo

~~ Section 399 . Ea Cabs's bin POCA 4E BURN APWES bee sa KS ~ &°

: Section 400 . : \ cman ee Mave ee ia 8

Section 405 . 6. cee ee ect edeeseseeeeeeees eevee 5

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“IN THE Ae

a. Supreme Court of the Gnited States.

ae 2 - Ocrosen Tek, 1950.

: ALABAMA PuBLic SeRvice Commission, ET AL, Appellant, |

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. Sournern Rar.wax Company, Appellee.

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| BRIEF FOR SOUTHERN RAILWAY COMPANY. ©

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"OPINIONS BELOW. Re

“The opinion of the ‘specially constituted three-judge ath

- United States ‘District Court, for the Middle District of - .

Alabama, Northern Division thereof (No. 681-N), appears _ —

in the record at pages 45-7 » F and i is reported 91 Fed. Supp. ;

980. -

- “Commission which’ gave rise to the. proceedings in the dis-

trict court appear in the record at pages rile

oar,

aioe JURISDICTION. © ~

3 This is. a direct: appeal auithorized by ! Title 28 U. s. C., .

, Section 1253.

‘The: report and citer: of ‘the’ Alabama. Public Servive sae

| Oxi SO ce ges ys 5 Pica ar < ea? :

d LS ie : es ate: ix f . / oe ph ites ‘ : ae ; ois

= a 7 ‘ : c ‘* x “- No. 395: ee “4 ae E16 ¢ : “ Soe

ern ee eter Sremenpenene gn

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Suit was. brought i in the district court under the provi-

"sions of the Act of June 25, 1948: 28.U. S: O., Sections 1331, a

1888, 8 2281, and 2284...

STATUTES INVOLVED. '

"98 Uy, &. Cy-Seetions 1253, 1331, 1332, 9981, 2983, a eee

| . 2284 Alabama Code, 1940, Title 48, Sections 17, 79, 82,

84, 86, 87, 88, 89 and; 106." Constitution. of the United os

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ee States Amendment XIV, Section 1.

|. gq EMENT OF THE CASE. | SO

September 13, 1948, Southern Railway Company, appel~ ae

lee, filed a petition (R. 8) with the Alabama Publi¢ Service \.

- Commission (Docket 11988) for authority to discontinue — \

- operation ‘of its passenger trains Nos. 7 and 8 opérated | %

daily between. Tuscumbia, Ala., and Chattanooga, Tenn. {-

- in so far as their operation . took place within the State of

- Alabama, to-wit, 130 miles in each direction. *

The ground for this application was the disparity be- ee

- tween the revenue and the: eost of Operation ‘because of |

small public patronage due to motor car operation, public —-

and private, over improved highways, showing the lack of

__ publie need for such rail service. The ‘petition. recited that:

. for a twelve-month period the direct expenses of operating

these trains exceeded: the ‘total revenues therefrom by

$78,710.74 (R. 9).

The Alabama Canieiagiin did not set appellee’ s applica-

tion for hearing until June 2, 1949; then of its own motion

postponed the hearing date until August 4, 1949; and still

-~ Jater, until‘October 6, 1949, on which date the appiication

was-heard before three representatives of the Commission,

none of. the three commissioners: sitting (R. 3y.

1 Set ‘out in full in ‘Appendix A, pages 34-35, and: Appendix B,

pages 35-38, Appellee’s, brief in No.. 146.

"2 The operation between the. Alabama- Tennessee state line and

. Chattanooga, Tenn., a distance of about 15 miles, was authorized to

_ be discontinued by, the Tennessee Railroad and’ Utilities Commis- —

. sion, Docket No. R. 3085.

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Ss ‘Under ‘sg state atatate the Commission is ‘required to

*. / vender decision within ninety days after the completion of

hearings, provided that.it may issue an order stating its —

_ reason for inability to decide the ease within’ ninety days,

~ and thereupon extend the time for. decision for another

period not to exceed ninety days. Title 48, Alabama Code .

1940, Section 77: :

April 3, 1950,'a year and sentle six months after’ the 1 pe:

tition was filed, the Commission issued its report and en-

“tered its order thereon denying appellee’s application to

- dis¢ontinue these trains (R. 27-39, Exhibit A to -ccemcnumeteell

answer).

_ ing thereby that the defendant Commission had denied ap-

pellee due process of law and confiscated and ‘deprived it

: : of its property for public, use without | just compensation

2 in violation of the Fourteenth Amendment to the Constitu-

‘tion of the United States (R. 7). Diverse citizenship and

. _ appropriate jurisdictional amount were. alleged. The —

prayer was for a decree declaring the order of the Com-

mission null and void, and for interlocutory and permanent

_- injunctions against. the Commission, its members, and the

Attorney General, “from proceeding against the railway,

-. its officers, agents,. or. ‘employees, to'enforce any penalties

- or other remedies provided under the laws of. the State of

' Alabama on account of\failure to continue operation of

"passenger trains Nos. 7 ‘and 8, required by the order of

defendant Commission of April 3, 1950. (R. 7, 8.)

Defendants filed their motions to stay it 21 and R. 39) 2

and their answer (R. 24).

Designagion. of the three-judge court was filed on “May :

a May 22, 1950. (R. 18) on which date if/was heard (R. 46).

(R. 17) and on that date the court if cause for trial

July. 20,. 1950, the three-judge distrfct court filed its opin-

ion, findings of fact, and: conclusions of law (R. 45- Sides and

on, that date entered its final decree . 71- 72).

|

_ May 3, 1950, apaetien, Southern Railway, filed its | com:

pla nt (R. 1) inthe United States district: court pleading

_ the application to discontinue, the denial thereof and charg-

4

‘Bepteinbe: 18, 1956, the district court entered « an 1 order 2

allowing ‘appeal (R. 42). a

November 27, 1950, this Court noted probable furindis.

tion and transferred this case, No. 395, to the’ summary

docket and assigned it for argument immediately follow-

ing the argument in No. 146, which case it also transferred

— the vaccine docket (R. 75). s :

“ARGUMENT.

- In_-their brief appellants argue tons ‘phtube: I. A fed-

eral court sbould decline to enjoin enforcement of the crim- .

inal laws of the State of Alabama. II. There was no

‘jurisdiction in any federal court of equity, there being no .

‘irreparable damage because Southern ‘Railway had an

adequate remedy in the stagp courts. Ill. The three-judge

. federal district court had no jurisdiction of this cause. . TV.

The federal, courts should abstain from exercising jurisdic-

tion of matters properly decided by state courts. While

stated as four points in the brief in this case, No. 395, the |

points are embraced within three points argued i in No. 146,

October Term, 1950, a ‘companion case. .

4

. Having discussed the points argued in No. 146 in our. -

- brief in that case and, we ‘submit, having shown them to

be without merit and the supporting arguments to be. un-

sound, we do not bur ‘den the Court with a. repetition of our

arguments in this brief. We therefore take the liberty of

: referring fo our brief in No. 146, believing ou) selves justi-

fied in doing that because No. 395 has been } ssigned for

‘argument immediately following the argument in No. 146.

- Likewise we refer to the statutes, federal and state, set _

out in appendices to our brief in'No. 146, rather than dupli-

— eate them in appendices. to this: brief. | Soe :

_.. We take the further liberty of saying that here we also

Fahy oF on the ‘strong opinion, findings of fact and conclusions

of law filed by the three-judge district cqurt in this cause,

and conveniently appearing in the record at pages 45-71.

Therein, Judge Lynne, speaking for the unanimous court,

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: _ overruled appellants’ ‘edie: in clear and precise ‘Jan-.

' guage, amply supported by authorities cited, and then in —

the findings dealt with the evidence in’ much. detail. The

~ -eonclusions of law found specifically: That should the rail-

way continue to operate these trains it ‘would suffer irre- e

- parable damage by spending sums. grossly disproportionate

to revenue in a situation where there is no public necessity

or demand for such service; that if the railway. fails : to. ~ i:

operate said trains it must be subjected to irreparable loss

‘ by incurring liability under sanctions imposed by Title 48,

Code of Alabama, 1940, including Sections 110, 399, 400, and

405; that plaintiff will suffer such irreparable damage un-_

less injunctive relief is granted against defendants and

their successors in office from seeking to impose the sanc-

tions provided by the: Alnhama statute, upon discontinu-— |

‘ance of operation these trains; ; and that the Commis--

ermiasion to discontinue .operation is.

sion’s denial of, pe

‘unjust, unreasonable, and confiscatory, ‘and deprives the

_ railway of its: property without just compensation in vio-

‘lation of the Fourteenth Amendment to the Constttation

of the United States. |

As we have said, Nos. 146 and 395 are be or ayur cases, 2 b

eit

There are a few points of difference. .

In both cases the same railway” filed applications with fC:

the same state commission as required by the same state

statute to discontinue operation of unprofitable passenger

‘trains for which there was no public need. Both applica-

tions were denied, ‘after long delay. .

All four trains. were et on Getober 26, 1949,

in compliance with an Interstate Commerce Commission

order. Trains 7 and 8 (Case 395) were restored when the

Interstate Commerce Commission’s order was lifted effec-

tive November 21, 1949. Trains 11 and 16 (Case 146) were

- not restored, for while they were out of operation the rail-.

- way. filed a supplemental petition with the Commission for

authority to not restore them. '

This difference arose beeause the hearing had been held

on Trains 7 and 8 on October 6, 1949. As the Commission

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a had Waited thirteen uhuths to hear the case; the railway

expected a prompt decision. On the record made the rail-

way anticipated an order authorizing discontinuance. In

- the ease of Trains 11 and 16, fourteen months had. elapsed, .

but no hearing date had even been announced. Tle losses

on 11-and 16 were large aid steadily increasing: This .

_ prompted the railway to file the supplemental petition on —

‘trains 11 and 16 and to advise the Commission that it was - :

» unwilling to restore the trains until it had been heard on

its supplemental petition. to not restore them. This course —

brought a hearing date in less than thirty days, and, after

nA hearing, an order, even though a —_ was rendered ine:

thirty days. }

~The entry of the final decree ‘on February" i3, 1950, i

the three-judge court in No. 146 merged: the temporary re-

straining order of December 6, 1949, against. the Commis- --

-sion’s order of December ‘5, entered on the citation it had

served on the railway. Viewed as of the ‘final decrees, the

' two cases are in substantially. the same position. |

‘The other point of difference between: these cases ig in

- the complaints. — a |

In No. 146 the railway, ‘hile not shialnseline the consti-

- tutionality.of the requirement of the Alabama statute (Sec-

-- tion 106, Title 48 of the Code) that an application be made

‘and authority received from the Commission ‘before dis-

continuing passenger train operation, did allege*® that no

standards for the guidance of the Commission were pre-

scribed, and the statute was therefore unconstitutional as

an unlawiul delegation of legislative power. This allega-

"tion was not ‘pursued on argument nor. passed on by the

_ court below. It was not a factor in the case, and can be

treated only as surplusage.

In the complaint in. No. 395 we specifically disclaimed

any purpose to have that. point adjudicated (Paragraph Iv.

of the complaint, R. 2) and it was nota factor therein. |

oe stacy a R. 2, Case No. 146,

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In both cases we stand squarely on the. doctrine of

: Oklahoma Natural Gas. Co. v. Russell, 261 U: S. 290 (1923)

that Section 2281 of Title 28 U. S. C...(then Section 266) ote ae

_ encompasses orders of state commissions of the type in-_ Ae

volved i in both these cases.

Appellants ‘have attempted ke a distinction, of

those differences in the complaints and have asserted that ©

- We were in error in either instance. _ However, there is.

no such distinction in the cases and there i is no distinction —

in Section 2281 between cases where a state statute is

attacked as unconstitutional and those in,which an admin-

istrative order enacted under a state statute is so attacked:

We submit in the case at bar (No, 395) that appellee

was denied due process of law first by the Commission’s

dilatory tactics in setting the ease and twice -postponing

itso that a period of thirteen months elapsed between the

filing of the petition and the hearing date, and then to

compound such dilatory action the Commission delayed _

until the very: last day allowed by state law before -

rendering a decision—a lapse of a year and a half from —

the filing of petition to date of order denying petition. The

. ‘railway might have filed its complaint treating nonaction

_. as substantially a denial of its application. This Court has —

held that a party so situated is not required indefinitely —

‘to await a Uecision. We refer to Smith v. Illinois Bell Tel.

Ca., 270 U- 8. 587 goa where, at pages 591-592, it was .

said:

eee Poucegs may be as effectively taken by vibes |

- continued and.unreasonable delay in putting an. end.

‘to confiscatory rates as by. an express atfirmance of [

- them; and where, in that respect, such a state of facts is {|

disclosed: as we have here, the injured public service.

company is not required indefinitely to await a deci-

sion of the ‘rate-making tribunal before applying to

a federal court for equitable relief. - The facts, which —

the motion to dismiss conceded, present a far stronger

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(eo : ne ty be

ease for such relief than any of the cases with which

_ this court dealt in.’’ * Pe a ii ae

"- The-unseemly delays in setting a hearing and then decid-

ing this case become all the stronger as a denial of due

process when it is recalled that in the application filed with

- the state commission the applicant, railway’s loss was shown

as $78,710.74. for a twelve-month period, that is to say,

the direct expenses exceeded the total gross revenues from

operation by that amount. Numerous other items: of cost

eould have been included in this computation but were omit-

ted. Upon the hearing the loss from operation over the next

- twelve-month, period was shown to the Commission to

~ amount to $102,326.93. Finally the loss for the next five

~. months was shown to be $53,692.56.. The total for the three

periods amounted to $234,7 30.23. Despite that heavy loss, -

_continuing from day to day, and at an ever increasing ratio,

the Commission unduly delayed setting the case, and then —

further delayed in deciding it. —

In the district court the railway showed the daily aver-—

' “age revenue from passengers in comparison with the daily ..

cost for wages and fuel in ‘the operation. of these trains

for the three periods just referred to.. The computation »

was made ona per day basis to be fairly comparable in

-view of the fact that the trains had been out of operation a

- different number of days in the three periods. Likewise, —

in the district court the railway made this computation

for the succeeding eight-month period. These comparisons

show that the revenue from passengers fell short of the

amount necessary to pay the wages, payroll taxes there- |

on, and fuel consumed by $57.10 per day during the first

twelve-month period, $151.45 during the se ond twelve-.

month period, $168.24 during the third five-month period,

4 Omitted enthorities : :

“Oka. Gas Co: v. Russell, 261 U. 8. 290, 293; Prendergast v.

ONY. Tel. Co, 262 UI. S. 43, 49; Pacific Tel. Co. v. Kuyken-

dall, 265 U. 8. 196, 204and Banton-v. Belt Line Ry.,.268 U. 5. %

418, 415. Ee

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. sad $195.43 per day during the fourth period of eight |

months." Such delay in the face of such losses was a denial __

of due process, and such losses clearly show confiscation :

of the railway’s property. es

Upon compliance with the Commission’s order of. April

3, 1950, denying application to discontinue operation, ap-

pellee would nécessarily incur, and continue.to incur, tre-

mendous losses from ‘such operation. On the other hand,

refusal to comply with said order would inevitably subject

: appellee. to the statutory sanctions provided in the Alabama

statutes for’ violation of the Public: Service Commission’s

_ orders, There are several such penalty statutes and each -

day would constitute a violation, hen nee the amounts mul-

tiply rapidly with each passing. day. No matter’ which

horn of dilemma appellee should select, it would | suffer

: irreparable. damage.

That appellee’ was immediately. confronted with irrey~

_ arable damage was clear. Appellee had just had a painf, ]

: experience: with the. Alabama Public Service Commissjon

in connection with Trains 11 and 16 involved in Case No.

146 before this Court. There the Commission had a

-lessly delayed hearing the original and supplemental ppli-

. eations. : It issued a pre-emptory order ona citation against

the railway. It issued this order following the pretense of

_ a hearing at which the railway appeared and offered its’

_ showing in the premises by: witnesses then present, which —

evidence. the Commission would not receive. In ‘the pre-

a gee Ave Daily Ave Daily ‘Daily Excess t

3 Cuuiles Of ees Movenue Broa y © Wage ana Ay Wages & Fuel —

‘Trains7and8 _. Passengers __ _ Over Revenue «

12 mos. ending 2/29/48 $180.94 $238.04 $57.10 |

- 12 mos. ending 2/28/49 (124.74- | 276.19 (151.45 |

‘ .§mos.3/1 -to7/31/49 «97.02 = ss 2GH.26° i= s«*26 8.24

8 mos. 8/1/49 to 3/31/50. - 83.11 | 27857. 195.46

Trains Discontinued Under I.C.C. Orders . :

Mar. 21,1948 through May 2, 1948........ .43 days

Oct. 26, 1949 through Nov. 20, BOOB cousins 26 days

Jan. 9,1950through Mar. 11,1950........ 62 days

- CBxhibite 4 and 5 to Complaint, R. 15, ada /

pe

emptory order issued on the citation specific attention was.

therein called to the penalty statutes of the state. The rail.

way was informed that it would not be heard on its original .

application until operation of the trains had been restored.

_ Even after a hearing date was set the Commission ad-

vised the railway that unless the trains weré restored, it

would be optional with thé Commission whether the hearing

would be held, or, as the. Commission put it, until the rail-.

way had by restoring the trains purged itself of contempt. ©

That the Commission was in a fighting mood elearly ap-

peared from the foregoing.facts and the further fact that

the very day these trains were discontinued, in compliance

- with an order of the Interstate Commerce Commission, the

Alabama Commission notified appellee that it expected such

trains to be restored. within twenty-four hours after the .

order of the Interstate Commerce Commission might be

lifted. That all transpired immediately before'the entry

_ of the order of April 3, 1950, denying application ‘to dis-

-eontinue Trains 7 and 8 involved in Case No. 395. Experi- .

ence is the best teacher. Appellee knew what to expect.

- Therefore, faced, with immediate irreparable injury, appel-

lee filed its complaint seeking injunctive relief. — eee

- In the case at bar, as in No. 146, there was no case pend-

ing in the state courts. . The complaint was filed in the dis-

trict court on May 5. On May 8, the three-judge court was

designated and notice given the case would be tried on May

992. Following the trial on that date briefs were filed and —

the final decree was rendered on July 20, Appellants failed

‘to-institute proceedings for adjudication of the issues in the

_state courts, which they might have done, as contemplated

by the/laat paragraph of Section 2284, Title 28 U. S.C.

Here, avin (ase.No, 146, they waited until on appeal to this .

Court to ‘eaipbpurely procedural points, and in this case,

“thareby in effect confessed the error the Ala-

=

as in No. 146,

bama Coramissioa made in denying application to discon-

tinue these trains. "3. . Fe SOR

Appellants cite Shipman v. Du Pre, 339 U. S: 321. (1950).

in support of their argunieat that federal courts should .

oy | 11 é

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abatain from exercising jurisdiction of matters. properly

_ decided by state courts. In the per curiam opinion in that .

case we find appellants’ application for a declaratory judg-.

‘ment and injunction restraining the enforcement of certain

sections\of a South Carolina statute regulating fis eries

and shri ping, on the ground that they violated th&Consti-

tution of the United States, was erroneously dismissed on

the merits by a three-judge federal court, it not appearing: :

: that the statutory sections had been construed by.the state .~

courts: Citing American Federation. of Labor y. Watson,

327 U. S. 582, 595-599, this Court vacated the judgment of

the district court and remanded the cause with directions

‘to retain jurisdiction to afford appellant opportunity to ob-.

tain by appropriate proceedings the construction. by the

state court. Sek

‘. In the ease at bar there 4 is no statute of the State of Ala- ;

bama which it.is necessary for the state courts to construe. _

Title 48, Section 106, simply requires that railways apply ‘S,

to the Alabama Public Service Commission and receive its.

- authority for discontinuing train operation. Appellee rail-

way has not challenged the constitutionality of that require- —

ment, It filed-application and, after long delay, ‘the state:

‘ commission: denied the application. The state commission

thereby applied the. statute to appellee and under such ap-

plication required appellee to run the trains in question.

Appellee could comply and suffer the losses from such op-

_ eration, or refuse to comply and suffer the penalties..

We submit Shipman v: Du Pre is of no avail to appellants

here. Fruthermore, i in that case this Court referred to its

decision in American Federation of Labor v. Watson, 327 -

- U.S. 582, 595-599. We refer to that case in order to better .

understand the decision in Shipman v. Du Pre. In Ameri-

cam: Federation of Labor v. Watson many sections of :an ”

elaborate state statute couched in the broadest terms were |

involved and there was much doubt over how the statute =

would be interpreted by: the state authorities. _ Certainly .

there is no such complicated statutory scheme involved in |

/

"the Alabama statute with which we are here doncerned.

_ ‘Also in American Federation of Labor v. Watson it ap-

peared there was a state court proceeding in which the un-

- 'eertainties in interpretation of the state law could be de- _-

termined. There is no pending state action in Alabama in"

which the questions mvved 3 in the case at bar ete be

determined. .

Having paused to comment on Siiginon v. Bu Pre be-

cause so. recently. decided by this Court, we think it all-im-

portant to call attention to Toomer v. Witsell, 334 U. S.

385 (1948). This case also involved the South Carolina

statutes regulating shrimp: fishing in the coastal waters.

-* Toomer, et al., fishermen, citizens of Georgia, and a fish

dealers’ association, sued in the United’ States District .

- Court for the Eastern District of South Carolina to enjoin

3 enforcement of the~South Carélina statutes regulating -

shrimp fishing on the ground that they violated the Consti-

ee tution of the United States.

The dealers’ association was thrown. ouj on the. ground

, that it could show no irreparable injury from the enforce-

ment of the statute. The individual fishermen failed to

show that they had no adequate remedy atlawinsofaras

their contentions with respect to the income tax statute —

was concerned since there was provision for payment of .

tax under protest and suit for recovery. ° -

As to the fishermen’s contention with respect to the ‘tee-

ulatory statutes, however; it was held that they showed the

imminence of irreparable injury for which there was no

. plain, adequate, and complete remedy at law, inasmuch as

to remain at their occupation they were either required to

pay out large sums of money for which no means of recov-

‘ery were provided by South Carolina law or to assume the

risk of heavy fines and long imprisonment for violation

the law. If they withdrew from fishing until a test. case

S Violation of the South Carolina statute brings suspension of the

violator’s license, as well as a maximum of $1,000 fine, or imptison-

ment for a year, or a combination of a $500 fine and a year’s im-

rie prisonment. oe } ey a Se

er sea y

IL aS confronted with heavy penalties. 2 ae ys if vi GaN

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could be prosecuted they: would have suffered a loss for

' which no compensation. could be had (391-392), The court

found that the doctrine of ‘American Federation of Labor v, |

Watson did not apply (except: as-to a tax statute involved)’ _ |

since theré’ was no need for’ interpretation of t statutes’

nor any ther special circumstances requiring the federal

‘ court to stay action pending proceedings i in the stat court

(392 foétnote 15). . eo]

_ The decision of. this Court in Toomer vy. Witsell squar \ eee Se

ee

| ‘supports appellee in the case at bar, No. 395, and in th

companion case No. 146.. We say that with the utmost con- \

fidence because should appdllee Tailway comply with ‘the NES

state order and run the trains it immediately suffers a tre- - \, :

. mendaus loss, and if it fails’ to run them it is immediately. ee

. oS

CONCLUSION. se,

“The three-judge district court Sracarks took juriadiction,” |

heard this cause; and i red its final decree therein. Ap... |

‘propriate averments w e contained in the. complaint, and.’

are supported by th /éndtings’ and conclusions of the: dis-

trict court. Upon the entry of the.order of April 3, 1950,

by the Alabama Commission denying appellee’s: application Ga!

to discontinue the trains in question, the proeeeding passed -

- from, the administrative to the judicial stage, at which the yi.

“ railway had’an election to sue in the federal or state court. |.

_ Believing its remedy in the state court to. be inadequate, ie as

decision, was properly made to sue in the federal court}. |

and upon invoking the jurisdiction of the federal uk ity |

quite properly, we submit, the cause necessarily came be-.

fore a three-judge court. Appellants, having failed to ayail

_ of their opportunity afforded for adjudication of the issues.

in the state courts, as contemplated in thé federal statutes, |

‘are now too late to be heard to complain that: appellee

. sought federal jurisdiction rather than that of tite state L.

—

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- courts. Their sien neve j is without ihetit; their argument

| » support of it is unsound.

ahe decree of the district court should be affirmed. :

Nee Me Respectfully submitted,

Bota ea oe fase Rusutoy,

3 Bell Building,

ie Neath Montgomery, Ala. :

" ‘Baru E. ‘Eisen fant, JR.,

-CHar.es Cuark, an

Poe ade Southern By. Office Bldg.,

-- /" .Waghington,-D. ©. -

- Attorneys for Appellee,

\ - _ Soutirern Railway Company.

Sitoney'8. ALpeRManN, =f. 3 ete

Jos. F.\Jonnston, Oe. re SEE

Of Counsel.

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