Transcript of Record — Alabama Pub. Serv. Comm'n v. Southern R. Co.

Supreme Court brief1951

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ALABAMA PUBLIC SERVICE COMMISSION, ET AL, Ror |

ae “APPELLANTS, <|

»‘ SOUTHERN RAILWAY COMPANY /

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APPEAL mow rae. UNITED. “ptaine DISTRICT court OR

| _ MIDDLE nisraior ALABAMA aah

: " suPREME Cc COURT OF THE UNITED) STATES

eo MM _ OCTOBER TERM, 1950

A No. 146

| ALABAMA PU BLIE SERVIC EB C OMMISSION, ET Als: 3.

ais Go pete APPELLANTS, ae ‘

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. SOUTHERN RAILWAY. COMPANY:

: | s ee, age | 4 - ox : e one ! Yo

i APPEAL ° FROM ‘THe UNITED STATES DISTRICT courr. FOR THE.

ee, _+ MIDDLE DISTRICT ALABAMA

P es

see L INDEX

i reste Original Print

Record fromi U. Ss. D- C., “Miaale’ District of iene ig ae Net es

Caption |... > mi forvi is: 1 Nepiiited in risting) -. 1

Complatnte. 2 lira ches on Ce ca oe ts ey p |

.. Exhibit 4 Petition of Southern Railway. Co. the. Se pha re

fore Alabama Publie Service Commission... - 18 ‘oe:

‘Exhibit. “A”—Statement showing operating |

"results: of. passenger trains Nos. 11 and,16,.

Mareh, 1947 to February, 1948, inclusive. NRE TT

‘3 of LC.C., October 21, 1949 ey Reon eS as

Exhibit 3—Supplemental’ ‘petition of Southern i ea

* Railway Co. before, Alabama Satis Bexvieg 3

Commission - » Qh er 24

Exhibit “C°— Statement’ showirigl opeyating ck

results: of passenger trains Nos.|/11 and 16, .° .

March 1, 1948 to Febrnary 28,.1949...°.. > U8 ot

; Exhibit “B”—Same, March a, 1989 to Sep- 5s a

‘tember 30, 1949)... re 25

Exhibit 4—Notice. f?om Public. Sbevite' Commis: ©...

sion ré LC, C: Order 843, October 2 sit 1949, 30 On

Ju rp & Derwesten (Ise), Priyrens, Wasnt iron, D. €., Nov: 1, 1950;

| od ? rte P

—858

“Record fro: U. 5. b. C; ‘Midalle District of Alabama

- Continued”. ~~.

Cc omplaiat—C ontinusd

‘ Exhibits—C ontinued :

’, ‘Exhibit. 5—Service order $43-A issued by Divisiori

3 of 1.C.C., November 14, 1949. are

Exhibit 6—Telegram from Public Service Com-

mission to Southern Railway €o., November wi.

L». 1949 and reply thereto... .. 5.26... !

Exhibit 7—Order of Alabama Public Service

_ Commission® in Docket No. 12225, November

22, 1949 eras ay Y 2 As es att i kei ce oe eS fe Pe te ee

Exhibit 8—Same, iar 5. 1949, ASP LOANS Pee :

Exhibit 9—Timetable showing schedule of trains. ae

Nos. 15, 12, 11 and

Exhibit 10—Compaison of motor vehicle -regis-.

trations in certain counties and the State of’

~ Alabama for license years 1939. and, 1948. .....

_. Exhibit 11—Ratio ‘of persons eighteen years of

agg and.over per registered automobile in. Piel

- State of Alabama, 1910-1945, inchusive. .

’ . Summons to answer bill of complaint Bice tags RS asin

Temporary ‘restraining .erder~.... .. bis at Dae

Designation of. the Three J udges to serve, on the Dis- ve

trict Court of Three Judges: aE: STE TER CT =

- Defendants’ motion to dismiss. .*.....:-.,...... 66...

’ Plaintiff's amendment to complaint... .......... pet

Defendants’ amendment to the motion to dismiss red

‘Defendants’ motion. fo stay action.

Detescants answer to complaint Sa

: jie Service Commission in» Docket No. 12221,

. Jariuary DV ors fais ERS Rem SS PEE

\, Affidavit of Lamar Wiley, Secretary, Alabama Pub- “3

at lie Service Contmission (omitted in printing) Br wa

éestimony of Lamar Wiley taken in ated Court, .

January 12, 1950 tented in printing)

eee RT OMS eras Bee 6 ig Bae oc

. iv ? inting) REN Pah resmanphdir ssid Vidic or) Gea et AS Gwe gry

. Affidavit of W. J. G, Quinn. (ausitiod in n prititing)

Affidavit af Lesiie, Woodall, Jr. famitted in print- \'

SE Ni iene Bae gate Sky bis ee eid pie selwhlaawee & fe

ee of seidinisin: proceedings ah exhibits be-

fore Alabama. Public. Service Commission in Docket **

No. 12221, December. 8, 1949 Lone in printing) .

Opinion ‘of Court, Kennamer, edi cae eens RR eS

Final judgment .....-......... OER a eee ai eaters

Order allowing appeal .. -.2. +. ve wa

_ Appeal bond, .\..,.. 5.5... (omitted in 1 printing):

Defendants’ designation ef. near on appeal ( omitted .

in printing) eps oe Pye

Beno A Ape ee

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_Exhibit “A”.—Renort and order of Alabama Pub- 2

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Record: ‘from U.S. D. C, ‘Midalle =k ivt of. ‘Alabaina- _

Continued ret i

Order: enlarging tigi for doeketing

(omitted in printing).

“and filing record

Stipulation of parties as te origin:

l exhibits (ontitted

Original

401

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Be ‘in printing) |... Y: 402 23:

. / Order that oniginal transeript of roueedings tefgre:.

“Be / ep the Alabanja Public Service Ce mission, With - Ex-

fe Mf hibits Nos./6, 7, 8, 15, and 16, and Ay thereto, may

of ERBES be erie in the record on preal oenitied. eae

[bt SEINE) ss cee a eEreeE 8 Boe erie 403 -

* "” Glerk’s certificate. - ~ (omitted: in printing). ; 404 +

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IN THE UNITED STATES DISTRICT. COURT FOR,

THE MIDDLE DISTRICT OF ALABAMA, NOR’

_ERN DIVISION . 2 :

e. ye

Civ it Artin No. 645- N. @, fini

LY :

Sov THERN Rucwer Company, a Corporation; Plaintiff,

AxapaMa Pusiic Service Commission, Gornon Persons, Its ~

President, and Jimmy Hitchcock and C/C. (Jack): Owen, —

_ Associate Commissioners: and A. A. Varmichael, Attor-

ney General of the State of Alabama, Defendants eae

- Comprarst—Filed December 6, 1949.

- The Shine: named ‘plaintiff, complaining of the above

named defendants, alleges: 3 7

z= ‘Plaintiff, Southern Railway Conypany,. is Pe was at

the times hereinafter stated, a-corporation organized, and

existing undér the laws of the State of Virginia, and as _

a) ¢

such is engaged as a common carrier by railroad of persons see

and property between points within the State of/ Alabama,

and between-points within the State of Alabxma on the «. 3

one, hand and points in other. states throughout the south’

’ on the other hand, and as such common carrier is subject ©

to the jurisdiction of the Alabamia Public Service Commis-

sion and the Interstate Commerce Commission, respectively:

fol. 3] 9. The defendant; Alabama Public: Service Com-

Mission, consisting of .a President and two Associate Com-

- miXsioners, is and was at the times hereinafter stated, an —

: istrative body, crédated under the laws of the State

‘of Alabama, (Title 48, § 1, Code 1940) and authorized under

‘the laws of the State of Alabama to exercisé certain regu-

latéry powers over plaintiff, and other common carriers -

by railroad, (Tithe 48, § 106; Code 1940). The principal .

office: and official domicile: of said Commission is located in

the City of Montgomery, County of Montgomery, State of

Alabama; being within the Middle Judicial District of the | -—

State of. Alabama, and the Northern Division thereof. |

_ (Title 48,.§ 11, Code 1940). Defendant Persons, is Presi- :

1146 oe

4 o"

‘

- dent, and defendants Hitchcock ¢ at

Commissioners, of said’ Commission, arid defendant Car-

michael is“Attorney General for the State of Alabama, and’

are citizens of the State of Alabama and residents of Mont. 2

gomery, Montgomery County, located in the Middle Judicial

District of Alabama, and the Northern Division thereof.

_. Defendant Carmichael, as Attorney General of the State of

‘Alabama, is by the statutes of said state charged with the

_ Supervision and control of legal proceedings in behalf of

the State of Alabama, and is attorney for Defendant Ala-

bara Publie Service Commission, | : “ aes

8. This is a.suit of a civil nature between citizens of dif-

ferent states, and arises under the Fourteenth Amendment

to the Constitution of the United States; as hereinafter more

. fully.appears. The matter in controversy exceéds, exclusive

of interest and costs, the sum of Three. Thousand Dollars.

4, By Title'48, § 35 and § 106, of the Code of Alabama of

[fol. 4] 1940, plaintiff, and other common carriers by rail-

road, are required to file an application with defendant .

Commission for a permit to abandon passenger train-serv-’

iee and obtain from the Commission a permit allowing’ such

abandonment- before ‘it shall: abandon operation of pas-.

Senger, service on its lines of railroad in ‘Alabama. ° No

standards for the guidance of the Commission are pre-

scribed, and plaintiff is advised and believes, and. therefore

_ alleges, that the statutes are tneonstitatonal and void as

an unlawful delegation of legi lative power, Nevertheless, - *

in compliance therewith, ‘plaintiff, on, to-wit, the 13th day

of September, 1948, filed with defendantCommission an _

application for authority to discontinue. the operation of two

certain interstate. passenger trains then being operated

cheock and Owen, aré Associite

., - daily’ between Birmingham, Alabama, and Colambus, Mis- ye

. sissippi, to-wit:

-.., Train No: 11, leaving Birmingham at 4:00 p. m.,‘ar-

riving Columbus at 8:45 p. m. « eee: BN

Train No. 16, leaving Columbus at 6:00 4. ™., arriv-

ing‘at Birmingham at 10:30 a. m.

Attached to said application. and made a part ‘thereof

“ was ** Exhibit A”, which showéd that. plaintiff’s operation.

of said two passenger trains for the 12-months period‘from |

March 1947 ‘to February 1948, inclusive, showed that the / --

wages for the train and engine crews and the pay roll taxes

paid: by. plaintiff. for the benefit of said crews, plus train -

_fuel consumed i in the oper ation of said trains, approximated é

the total amount of gross revenue earned by said trains fro -

the handling of passengers, mail, and express, and further,

‘that in the light of other direct expense of their operation |

{fol.5] the total cost of direct ‘expense exceeded. the total ——

gross revenues for said 12-months period by $63,613,24.

“Plaintiff attaches a copy of said application and ‘¢ Exhibit. 3 :

A’? thereto ‘to this complaint, marked ‘‘ Exhibit No. 1’’,t0 “°°

which reference is prayed for a more complete understand-

. Ang~ -of said application. . ie ey /

* Ae Thais

fp A

5. In compliance with Service Order 843. issuer by: Dit

vision 3 of the Interstate Commerce Commission on Octo-.

~~ ber 21, 1949, a copy of which is hereto attached, marked

’— inclusive, are set out. Such losses from the operation of

“Exhibit No. 2’? and made a part hereof,plaintiff, effective

at 11:59.p. m., October 25, 1949, discontinued operatianof its.

- said passenger trains numbers 11 and 16 between Birming-.

-ham and Columbus, Mississippi, and said trains: have not

been operated since they were so discontinued.- At the same

> time and under the same: order plaintiff discontinued the

-_ operation of its passenger trains numbers.1 and 2, between

Sheffield and Parish, Alabhma; its passenger trains 7 and

- 8,between Sheffield, Alabama, and Chattanooga,’Tennessee ;

and its mixed trains numbers 15 and 16, between Selma and | ,

Wilton, Alabama.

| 6. On, to-wit; the 10th ay of November 1949, , plaintiff

_/ filed in the pending cause, | before the Alabama. Rublic Serv-”

ice Commission, its Supplemental Petition seeking therein :

- authority from said Commission to be relieved of the neces-

- sity of restoring the operation, of said “passenger. trains

within the State of Alabama. In, said Supplemental Peti- |

‘tion the further losses sustained in the operation of. said

passenger trains from March 1, 1948 to September 30, 1949,

said two passenger trains as shown by the original petition

’ and the Supplemental Petition have become progressively

‘[fol. 6] ‘heavier and more burdensome. While such losses

for the twelve month period March 1, 1947 to February 29, =:

1948, inclusive, amounted to $63,613.24 as appears from .

paragraph 4 hereof, for the sueceeding twelve month period —

» March 4, 1948 to February 28, 1949, inclusive, such losses °

amoutited to $80,555.78, and for the succeeding seven month.

eae

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Seely \

period ion March 1, 1949 to Septeniber 30, 1949, inclusive,

4 such loskes amounted ‘ta. $63, 340.68 as shown by said sup- |

_. plemental petition, accopy of which with’ its ‘exhibits is

atiached hereto: identified as “ Exhibit No. 3”’.

After ‘the filing, Son Septembpr

"petition ‘with the defendant

#/Uiseontinue its said two pa<enger: (rains, airaliers 1) and

16, ‘submitted herewith 4s, “Exhibit. No, 1,” plaintiff re-

‘quested’ and urged the defendant Commission repeatedly,

beginning with Septémber 29, 1948, that the petition be set |

1948, of its original | |

“down for -hearing. Since. the filing of plaintiff s Supple-

. mental Petition with the defendant C ommission on Novem-

_ ber 10, 1949 plaintiff has also urged that its Supplemental

~ Petition, together with its original Petition, be set down for

_ hearing while.said two passenger trais=h and 16 are dis-.~

continued under Service Order ‘No. 843 0 the Interstate .

Cc othe Commission, described in-paragraph 5 hereof,

but the“defendant Commission: refused to do so and notified -

_ plaintiff, emphatically, that it would not hear é@ither plain- -

tiff’s Supplemental Petition or its original Petition until

the operation of said two passenger trains 11 and 16-is.

- restored. Not, until November’, 1949 was plaintiff adVised

by defendant Commission that its said original Petition

for authority to discontinue operation of said two. pas-

senger trains had: been set down for hearing at the Court

. House at Fayette, Alabama, on December 8, 1949. At the

‘same ‘time it was again made clear that the restoration of

‘operation of the tw o trains was a prerequisite to the heari ing,

fol. 7] g' On October 26, 1949, defendant. Alabena Public

Service Commission, issued and’ served upon plaintiff a

' notice, to the effect that the operation of all passenger trains

discontinued undér the aforesaid Interstate Commerce Com-

mission Service Order be restored to service within 24 hours

after said service order might be rescinded.: A copy of said

we. is hereto attached and made a part: hereof, identified

s ‘* Exhibit. No. 4.” |

9. Under date of November 14, 1949, Divisiod 3 Sot! ihe.

Interstate Commerce Commission issued. its rave Order.

843-A, vacating and setting aside its Service \ No,

es described in paragraph 5 of this complaint, ors tive at’

09 P. M., November 20, 1949. A cepy of said Service

Onder No. 843-A is. attached hereto as ‘Exhibit Na, 3. Mi

we wie? Sete ce eee = ge ee 5) aa

sys, ees See erie : aa |

\% response to said Servieé Order No. $43-A, plaintiff, a eee

‘ovember 18, 1949, . advised. deféndant Alabama Public —— *

Service Commission, that it would, on November 21,1949,

restore the operation of said passenger trains Numbers 1

- and.2, between Sheflield and Parrish, Alabama; said passen-

ger trains numbers 7 and 8, between Sheffield, Agbama,

_and Chattanooga, Te1 NESSeE ; and séid mixed trains num: 5 eee

bers 15. and. 16, between Selma and “‘W ilton, Alabamayand Sak

the operation £allof said six trains was.in fact restored on __

- November 2T, 1949. In addition thereto and on the same

¢, one of plaintiff's attorneys sent'to the Commission:

aw ester nE mnion. wire. reading as féllows :: eee

a es < “" Washington, D.C, November 18, 1949, °

-_tfndrable Gordon Persons, Premaent, ac:

is Re Alabania Public Serviee: ‘Commission, Fe ae

er ce Montgomery, Alabama * an St eee

2 “Following our telephone conve ersation day before 3 ves- -: i

terday I came to: Washington: to confer with management

of Southern Railway with reference to our ‘supplemental |

. petition for permission to keep out of service trains 11 and

16 between Birmingham. and Columbus. I understand the. |

other six*trains discontinued under the Order of the ICC

_. will be restored to service promptly in keeping with the

- Commission’s requirement of October 26th addressed to

_all railroads. The.managément feels, as I do, that we are

entitled to a liearing on our supplemental petition on trains

11 and 16. and we hope the ‘Commission can see its way.

clear to give it to us # Prompny.

ape

Wats.

\ Wh

Se ¥ T. Stakely :

yee

4. In response to that wire, ‘and on the same date defendant.

_ Commission by its Presi lent telephoned pigintif ’s said at-

torney that the application for authority to discontinue said < -

; trains Nos..11 and 16 had been set for hedring at Fayette;:

| {fol. 8] ‘Alabama, on/December 8, 1949 as shown in para-

-- graph 7 hereof and at the same. time rea irmed the advice

theretofore given that a hearing would not ‘be had unless

aaa two trains were back in operation”. !

10. Plaintiff further shows that on Nov nhac 3 22, 1949,

it received at its general office in Washington from the de-

fendant Commission a Western: Union wire asking’ that _

wesw tO Owe owe eg wer er oer or er ee we we x

plaintiff wire the Commission “whether the plaintiff ine

tended to’ immediately restore .the operation’ of said two...

trains Nos. 11 and. 16 and plaintiff replied on the same

date that under the circumstances it could not see its ~

way}elear to restore the trains until a hearing. on its said -

supplemental petition for authority to keep them out of : serv- |

ice. Copies of said two wires are’ attached hereto and madé

a part hereof being identified as.‘‘ Exhibit’ ‘No. 6’’.. On«

the same date, plaintiff’ s said attorney. in a -telephone

conversation with the President of: defendant Commission |

advised in substance to the ‘samme effect. In that® same tele-

phone conversation the President-of defendant Cotmission -

advised that it would go ahead with the hearing: set-.for -

December 8, 1949 although it had felt that. a hearing should

be withheld until said trains were'restored to operation.

11. Plaintiff farther shows: that followi ing said exchange

_ of wires and said telephone conversation set forth in para-

* graph 10 hereof,..the defendant Alabama Publie’ Service

~ Commission issued an order to the plaintiff to appear before

the Commission at its office in “Montgomer y, Alabama, at .

2:00 P. M. Friday, November 25, 1949, to show cause, if any, |

why the defendant Commissioh should.not enter an order

requiting. the plaintiff to restore the operation of-its said

trains Nos. 11 and-:16 beiween Birmingham, Alabarf&, and

the Mississippi State line. ‘A copy of said order of: the de-

- fendant Commiasion is attached hereto and _made a part

hereof identified as ‘Exhibit No. 7’.

12. Plaintiff further shows that i in, ‘response to said order

deseribed in paragraph 11 hereof, ‘it appeared before: the |

defendant Commission. as required by said order. through.

its attorneys and officers with its witnesses prepared to

show the tremendous losses incurred in the operation of said

trains before they. were. discontinued under said LC.C.

Service Order on October 25, 1949; the remaining passen-

ger service on said line of railroad between Birmingham,

Alabama and Columbus, Mississippi, which plaintiff insists —

* is adequate ; the improved highways substantially parallel-

[fol. 9]: ing its said line of railroad between Birmingham,

“Alabama and the Mississippi State line and all the facts -

in detail showing why the operation of said two passenger

trains Nos: 11 and 16,should not be restored; but the de- -

fendant Commission refused to permit said witnesses to |

testify v and refi used to receive any evidence of the ‘character. |

WAG

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“which plaintiff preposed, to. which action of the defendant .

Commission plaintiff duly excepted. Before the conclusion .

: o/ . bs ~~ . *. hd } “3 . 4 . .

of sayd-abortive hearing, plaintiff requested the defendant -

_ - Commission if.it made an order requiring said two passen- . -;

\ “ger trains Nos..11 and 16 to-be restored to service that it...

suspend the effective date of such order until after the

hearing on ‘said defendant’s applications sét: at Fayétte,

Alabama, for December 8, 1949 and after a decision of the.

defendant Commission on said applications. However, the *° ;

- ~ Commission-on, to-wit, the 5 day of December, 1949 entered

.an order-requiring plaint#f to restore the operation of said °

{wo passenger trains effective on the 5 day of December,

1949, as per a copy thereof attached hereto and made a part»

hereof, identified.as ‘Exhibit No. ahi Teer elo

‘Said hearing on the defendant Commission’s order to _

show cause was a mere shani‘and pretense and utterly lack-

ing i due process of law underthe Constitution of the State

of Alabama arid under the Foutteenth Amendment to the

Constitution of the United-States. Te

13. With the operation of said trains/Nos. 11 and 16_

discontinued the line of railroad between Birmingham, Ala-

bama and Columbus, Mississippi is ‘derved by. : Jaintiff’s

mixed trains Nos. 15 and 12. The passenger equipment

of these trains area standard seventy foot passenger’ car

_ partitioned for white and colored passengers with separate

toilets for men ‘and women in each end of the car}.and also

> a. standard mail, express and baggage jcar with railway.

”

post office in one end in charge of a R. P. O. clerk, the rest

of the car being used for stotage mail, express, and-bag- :

[fol. 10] gage, if any, with an express messenger in-charge.

° : e \ P ‘ PP ed r -

The trains operate on convenient schediiles. -No.“15 leaves

Birmingham at 7:15 A. M. arriving Columbus, Mississippi.

1:15 P.M. No. 12 leaves Columbus, Mississippi at 1:30.

P.M. arriving Birmingham 7:30\P.M. These trains run

well on time, make all stops; do very little switching and |

coupled ‘with improved. paralleling\highway facilities for

_busses and private automobiles. ren er--adequate service |

to the territory served between. Birmingham and Colum-

bns. A copy of plaintiff’s timetable showing the senedules ‘

_. of said trains Nos. 15 and 12 as well as the schedules of said

trains Nos. 11 and-16 before:they were discontinned under

said T.C.C. Service Order 843 is attached hereto and made

a part hereof being identified as “Exhibit No. le,

: ‘said s

-= mental a plicatior

aes —T

‘The. arpa i in. the: ‘Several countiés of ‘Aishedien Dewi |

which plaintiff's line of railroad between Birmingham,

Alabamg and. ‘olumbus, Mississippi extends aneser which’

- said mixed trains Nos. ‘15 agd 12 operate, and. over which.

ns Nos. 14. and 16sdperated béfore they were, dis:

1d, is tfaversed by improved state highw ays, “sub:

stantially paralleling plaintiff’ s\line of railroad through

veral: ‘counties over which common carrier ‘bus lines.

and private: atitomobiles aré extensively operated.’ At:

tached hereto, and marked *‘ Exhibit No. —’’, and made a

part hereof, is a statement comparing motor vehicle regis- .—

trati ms. in Said counties: and in the State asa whole: for E

the license years 1939 and 1948, Also: attached cpa

_ made a part hereof, marked ‘‘ Exhibit No. —’’, is astate-_

_-ment of the ratio of persons eighteen years of age and over

‘per registered automobile in the state of Alabatha, by five=

year periods, 1910-1945 Dy inclusive. Said exhibits show the \

stanfial and rapidly increasing use of the highways, and

TR kK for the little use formerly made by: the traveling

- -publie of plaintiff’s trains Nos. 11 and 16.

' -In addition to the loss of passenger traffic due to. the

ere competition of busses and, private ‘automobiles over:

said highways adjacent. to: plaintiffs said line of railroad,

‘the ibetantial loss {to piaintitt In. the genie of said -

We 14. In addition to its apptioation Vor sothority

continue the operation of its local passenger trains

bead. and .16- between Birmingham, Alabama\and Colum-

_- bus, Mississippi, filed on September 13, 1948, ¢ and its supple- -

fi ; filed on, .to-yit,. November: 10, 1949,

~ asking authorify not to restore the operation of. these two

trains after they had ,been discontinued on October 25,"

1949, under Said TI. 'C.C Ser she Order. No. 843, the plain- | -

‘tiff has in thé last two years filed similar applications for

authority to ete said two local passenger \trains

Nos. 1 and 2 operating between Birmingham and Sheffield, -

‘Alabama, and sui \two. local. passenger. trains Nos. T and. -

§. operating. between Sheffield, Alabama and Chattanooga,

Tennessee. \ \

The first of said’ ‘applications, for author ity \to; diskon-

tinue its-two lo¢al Passenger trains Nos. 1 and 3 was filed

on the 24th day of wore 1948, was not set for hearing

; { / | \\ ie

eR . { ’ . ; : , 7 .

/ ? : . : si ‘ ie

a } \ re . \ < - .

> \

E : ae p

until | the Stli dey of. July, 1948 at which. ae the ies a ring’

Was. continued over the: ‘plaintiff’ s ‘objections and protest!

on a requirement of the C quimission for. one ‘month’s test

period of freight earnings of said line.’ The\hearing was. a

resumed on the 7th-day of October, 1948 when. the evidence a oe

was concluded nd the case. submitted. Plaintiff. heéfore é

the first hearine/ amended its application to propose, if: ‘the:

Commission required it, the substitution of a mixed train .

service in lie of said two passenger frains. It offered -

- on the first hearing evidence to the effect that direct’ expense .

only ‘of the operation of said trains Nos. 1 and 2 for the,

tw elve month period, March 1, 1947 to February “29, 1948;

inclusive, amounted to $212,008. 98, while the revenue of. iis .

said two trains for the same twelve month period amounted

to only $33,286.96, showing a-loss ned direct expense over.

actual revente for the ‘period-of $78,722.02, or approxi-

as Tnately: $6,500. 00 per month. The. month of Juky, 1948 was

* with the approval of the defendant . Commission ielected: ote

as the month’s test period required and on the-adjourned ~ .

hearing plaintiff showed that the operation of both freight —

and passenger service on the line. between Sheffield. and).

Parrish, Alabama, for the month resulted in a net. railw nf we :

operating income of only $2,646.18 , arate of return of only]

0.68 percent on the investment. in. tailway (road) property,

[fol. 12] used in .said transportation * service. Notwith; -

standing the showing of the heavy losses in passenger?

service. for said. twelve ‘month period and the result-of the (5:

operatiomof both freight and passenger service on. the line,

for. said month’s test period, the defendant Commission -

after holding the tase under consideration. until, May. 1,

1949 denied the ‘plaintiff’s said application to discontinue

the. operation of plaintiff's said: two passenger trains Nos.

“Land 2 and denied plaintiff's proposal to substitute mixed

‘cain service.therefor. Plaintiff took an, Appeal from-said

_ order of the defendant ommission. denying its said dppli-.

caution to the Cireuit Court Oo ( Montgomery C ‘ounty where a

the case is now pending. |

~The .other application, f r authority to ‘discontinie the

--eperation of saidtwo loe ‘passenger. trains Nos. 7 and 8. °

operating between Sheffield, Alabama and. Chattanoove,

Tennessee, was. filed on, to-wit, September 13, A948. "After -

repeated requests that the application be, set down: for

‘hearing the defendant A ‘omission on March 25, 1849 set

“«

See een

‘On May: 12,1949 the. Commission. continued the hearing to.

. August: 4, 1949, and again on July-11, 1949 the defendant

*@ominission. again: continued . the: hearing | to October 6,

/ 1949 when the application. was heard by three. members of

the ‘defendant Commission’s staff, none of the defendant

Con umissioners, being present. The testimony was taker

fant’ thie ease was submitted on that: date. On ‘the hearing *

plaintiff offered in- evidence the direct. expense. of : the

“month period March 1, 1947 to February 29, 1948, inclusive,

whieh ‘amounted to $17 7,553.66, and also offered 4 in evidence:

’ the total revenue of said trains for the same period , which

Tae amounted to only $98,842.92, résulting in a loss in -direct :

, expense over actual. revenue for the period of $78,710.74,

OF approximately $6,500.00 per -ménth. Plaintiff. likewise

‘«.. | affered ik evidence the direct expense ‘of operation of said -

te two local, assenger: trains for the. twelve month perioi:

March: os 48 - to February | 28, 1949, inclusive, which .

leccepia to $ 82,283. 20, and also offered in evidence the

‘total reyenue ‘of said, two local passenger trains for the

“same period which -ainounted to $79,956.28, resulting in a

* Joss of diree: “expense over actual revenue for the twelve’

~~: month period of $102,326.93, or. ap! roximately $8,500.00

2) “431 3] jper morith. Plaintiff likewi e offered in evidence *

Ane dite expense. “of. said two local passenger trains for

~ the Jive. month period March 1, 1949 to July 81, -1949,

~ inclusive, which amounted to: $84, 437.84 and also. offered

a ae “evidence the total revenue of ‘said two local passenger

w ®

- \\ trains for the same: five ‘month period which amounted ‘to |

$30,745.28, resulting in a loss in direct.expense over actual

revenue for the five month period of $53,692.56, or approxi- ie

| nately $10,500.00. per mouth. sf mie le

ie 2. Phe def fendant Commission still’has said application for’

‘it. for housing at + Huntsville, Alabama. on Some 18, 1949."

operation of said two local passenger trains for the twelve’

. the: authority to discontinue - ‘the operation of said two.

local. passenger trains Nos: 7 and 8 under advisement. and

wo deci ision ot said application has yet been rendered.

. The cavalier treatment-thus accorded by the Chmmission :

to the plaintiff and to.its said three applicdtions for author-

ity, “to discontitine the operation of its said six local. “pas--

| senger trains Nos, 11 and 16, Nos. 1 and 2, and Nos, 7 and §

| re a deliberate course on the part of the Ine is the

se ok ; ; oa

. Commission of procrastination and delay resulting in the | -

? \

ay,

céntinaed a pat continuing heavy Cicca to the plaintiff from”

"the operation of its said six local passenger trains. thereby peo}

depriving plaintiff of its property without due process of — -,

law arid denying to the plaintiff the equal protection of the ~—

law in violation of the Constitution of the state of Alabama \

: ~ and. of the Commerée. Clause and the Fifth and Fourteenth © -

-s Amendments of the Constitution ofthe United Staie s,

, 15. Plaintiff avers that defendant Commission. and. its”

‘Members’ should have given to plaintiff a prompt hearing

“of its said application ‘‘ Exhibit 12’ hereto, filed/on Septem. —

_ber 13, 1948, for authority to discontinue the: operation of |

its: said trains Nos. 11 and I6 and the opportunity of pre-

. senting promptly ‘the facts set-out in its said application

and- should have’ thereupon rendered its decision promptly

on said application. . Plaintiff’s property /has been effec- -_.

- | tively. taken by the long, continued and unreasonable delay

.. on the part of defendant Commission and its Members in

| ‘hearing and deciding plaintiff’s: said application. Plain-

__ tiff is advised and believes and therefore avers that, the

failure on the part of the defendant Commission to brant:

oe plaintiff a prompt hearing anda prompt decision of said

(fol. 14] application is. tantamount’ to a denial thereof.\ *

Plaintiff further avers that.defendant Commission and its ue

- Members in-failing to hear and decide plaintiff's application

has required. the operation of said two passenger trains

- ‘meree if

~ bama ai

Nos. 11 and 16 in the public service, thereby taking \plain-

tiff ’s property for public use without. just compensation, _

denying plaintiff due process of law and the equal pro:

tection @ the law. and unduly burdening interstate com-

‘iolation of the’ Constitution of. the State of Alas”

f the Commerce Clause and the Fifth and Four-

— of ‘the Constitution of ithe U nited

teenth |.

States. 4: Se

Plaintiffs advised. and believes ana therefore avers at -

- the refusa by defendant Commission hear plaintiff’s’ .-

. said supplemental | petition for authority to ate said two

passenger trains Nos. 11 and 16 out of service Was likewise

‘a denial to. plaintiff of due process of law and of the. equi al

protection of the law under said Constitutional’ provisions.

Plaintiff further avers that, said. order of the defendant. 4

Conmission of. December’ 5, 1949, ‘Exhibit No. 8” hereto,

requiriig plaintiff. to restore said two’ passenger trains Nos. Ne

1t and 16 to service, hav ing been made without a lawful.

- \

res

hearing as shown by paragraph 12 hereof,. seeks to deprive .

plaintiff of its property without just compensation and...

_~ denies to plaintiff due process of la mand thé equal pro-

_ tection of the Jaw in violation. of said\ Constitutional pro-

WAMOME.- = ey ee Pe ere Ga eee He Cae

16. Plaintiff further avers that if it restores the opera-

tion of said trains Nos: 11 and 16 as required by said order

of the defendant Comntission of December 5, 1949, it’ will

sustain heavy. losses, from their operation at the’ rate of

approximately $9,000.00 per. month. The plaintiif would -:

_ have no means of ‘Kecovering such losses and they would be

irreparable.” On/the other hand, if the plaintiff-fails to -

oe restore the operation of said trains Nos, 11 and 16 as

_Tequired by, said order of the defendant Commission of -

_ December 5, 1949, the plaintiff and its officers, agents and

employees will incur* liability for -severe ‘penalities ‘and:

“fines under Title 48, Sections 110, 399, 400 and 405. of the

- Code of Alabama ranging fromn $500.00 to’ $2,000.00 for each —

day of such failure to restore said two trains to service.

[fol. 15] 17. Plaintiff is informed iand believes and there-

fore aves that if it fails to restore said two. passenger |

trains Nos. 11-aridJ6 to service as required by said order

" \-of the defendant: Commission of December. ), 1949: the de-

_ fendants will under the provisions of the said’Title 48 of -the

Alabama Code immediately undertake. the . imposition of

: \ if

_ said severe penalties and fines, thereby subjecting the plain-

_. tiff,.its officers, agelts and employees to a multiplicity of -

suits on account thereof.

-18. Plaintiff has exhausted all. administrative remedies

available to it and without-the protection of the equitable -

powers of this Court will-be. remediless,

Wherefore, plaintiff prays: pee 3

Nahea 1; That plaintiff ’s bill be reeeived,. filed and. docketed in

the records of ‘this court. Foe ee te

| 7 ~

F . . ea Ce es es Nee see

2. That process issue requiring en eacli of

‘them to appear and answer plaintiff's complaint |

— 2. Thatia spacial Seart of three judges be organized to

hear and determine this-cause as. provided -by ‘Title 28,

= Be Section 2284.

—_

Toy 1 Re ‘

ee 2 “That. this Court i in order: to prevent

on to plaintiff, enter an order without notice temporarily |

- restraining the defendants, jointly and severally, from each

: icra)

; “os : 1

4. That ona ‘hearing, after at least five days’ ‘sintion of

such hearing shall have been given to Hon. James E.: Fol-

‘som, Governor, and to,defendant, A. A, Carmichael, Attor- °..

ney General of the State of Alabama, an) i inter locutory in-

ee junction pending tlie final disposition of the cause be issued

enjoming défendants, separately ahd severally, from pro-

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

‘ployees to enforce any penalties or other ‘remedies pro-

_ yided under the laws of the State of Alabama on account

of plaintiff’s or their failure to restore, the, operation. of

‘said two passenger trains Nos. 11 and\16 between Birming-

~ ham, Alabania and the Mississippi State |line as required:

by said order of defendant Alabama’ Public Service Com-

mission of December, 5, 1949; and that oh ci hearing such

interlocutory injunction be made perma lent

[fols. 16-17] and every act against which a interlocutory

and permanent injunction.is sought as set-out in the prayer

above numbered, 4; on the giving of bond in:such amount

“és the Court may ‘fix, approved and conditio ed as ‘required |

Dy awe z . :

“hg, That plaintiff ave cick: obicé further and different’:

- relief as may be just and — and soos Braye for

: general relief.

S.) J. Prakaly 1038 Browh- Marx Bldg, Sire

4 mingham, Alabama; (S.) Charles Clark, Southern —

Railway Bldg., Washington, D. .C., Attorneys for:

Plaintiff, Southern Railway Company. ’ - Benners,

Burr, Stokely & MeKamy, of Counsel (Birming-: eoA

ham, Ala.). Rushton, hp & Johnston, of — .

: Cc ounsel (Montgomery, Ala. de yONOe esate

“Dale: sworn to by Harold ws Maunev, Sea omitted in

Flas! eS oe ; a ied

r repa rable dam- °

[fol 1s) | f ‘Exaisit 1 TO ‘ComPuatyr

_ Bevore, THE ; ALABAMA Pupuic SERvIcE Commission .

Docket No.

; A

Pad dhe

Pe TION OF » SovtHeRn -Rativay Company TO Discoxtixur

‘Passencen Tratxs Nos. 11. AND. 16 OprraTep Berw EEN

; BirMincHaM, ALABAMA, _AND Co._umsts, Mississiprt,

cla “ ‘Stokely, Charles Clark, Attorneys for Petitioner. 4

- Dated: FA ag

. The Selition of Southern Railway Company respectfully

shows: s eau Bah AN at Sas

‘Dititioner 4k is a corporation of the. State ‘of Virginia and:

as.such is engaged as‘a common carrier by. rail of persons.

end property in intrastate commerce between points within

‘the State of Alabama and in interstate commerce between

points in the State of Alabama on the one hand and points

in many other states on the-other hand. ’

ae ae ie

| Petitioner as such common. carrier “operates. two’ pas- |

‘senger trains daily between Birmingham, Ala., and. Colum-

[fpl. 19] bus, Miss., a distance of 122 miles..

Schedule No. 162. Leave’ Columbus 6:00 AM. S

. ae Leave’ Fern Bank. 6:42AM.” -

ees : "Arrive Birmingham 10:30AM

- Schedule No. It: ‘Leave Birmingham PM :

shy”

peas .. * Arrive Fern Bank | 7:59 PM

a Arrive Columbus - 8:45 PM :

. et

Petitioner séeks niathority to- permanently discontinue the

operation. of said passenger trains because they are ‘little —

used by the publie and because the cost of operating said -

_ trains ‘greatly exceeds the total, revenue earned by. ‘said

. trains. Petitioner attaches heretd, as Exhibit A, statement

of two sheets. showing the operating résults of said trains.

for the twelve-month period March 1947 to February 1948,

; ve , : ty. ;

e . y : 7

eee : i 8.

a ‘+ ; ; free

‘indusive: Said exhibit snows totsil revenue gmounted to

$69,695.25. for hauling passengers, mail aiid express. The 4G

wages paid the train and, engine crews, the Federal. payroll -

axes thereon and the train fuel-consumed plus a small live-

"Stock claim dlene amounted to $68,087.09... Other’ direct:

agents, ticket offic

‘Deon included, a; loss would have. been even greater. |

"expenses ineurred in the operation of said trains such as

repairs to locomotives, cars, and the like, amounted to

$65,221.40, or total direct expenses of $133,308,49. Sys

The total direct expense of operating these trains ex-

ceeded the total revenues, for the twelve-month period, by —

j (fol. 20] $63, 613,24. | The expenses of operation included’.

‘in the: foregoing items are only certain direct expenses and

do not include anything for overhead, dispatching, super-—

vision, | maintenan e of roadway and Structures, tiicket

d expense, and the like. Had-those items

IV).

"The ter Bago een Birmingham, Parrish, Fay ette and

ae Columbus, thr ough which said trains operate, is served. by ~

improved highways available to the publie use in drivi ing

private automobiles and trucks, and adequate bus service

‘Is maintained over said highways. Pik Ger area a

2 .

ve oe ge

Your petitioner 3 is posting at each station served by: said.

trains: Nos. 11 and 16 a notice of the filing of chis petition, ,

in the form of Exhibit B héreto, and petitioner will upon the.

a expiration of the required ten-day postitig period file with |

this Commission proof of such posting.

ee ‘The continned - operation by your petitioner of ‘Trains _

‘Moa: 11 and 16 between Birmingham and Columbus will |

constitute an undue burden en interstate conimeree and

_ [fol. 21} will. involve the. taking of petitioner’s property |

without due process of law and be a denial to your peti-

_tioner of the equal protection of the law contrary to the pro-

visions of the: Constitution of the State of: Alabama and

of the United States,

Ww hevefore. your setitioner yrays for the reasons here-

inabove stated, and others to be shown at°the hearing, that a see

it.may be duly authorized and, permitted in* the manner

prescribed by law to discontinue the operation of said pas-

~ senger trains. Nos; 11 and 16 between Birmingham,. Ala.,

and: Columbus, Miss.; in so far as the same are operated in *

BE Nees, CN TR Pune oe) ENO Ee,

Southern Railway Company, by H. C. Mauney, Its

Superintendent., J. T. Stokely (1038 Brown-Marx -

'.. Bldg., Birmingham, Ala.), Charles ‘Clark (South-

ern Railway Bldg.,. Washington, D. C.), Attorneys

- for Petitioner. oe ne ON oF

ay ‘ x : . : ’

Ma re

Paths

= ris

‘ }

@, bef

‘ 1

‘

2 4 3

% ’ ‘

ae aes e*

“~ aA

. e

- ws Sak

3° -

\ J

KG ;

: t | \ ca

° . al \ ; \:." 3

e) ey s! \ om

\ 5)

- ANS \

(fol. 22] ue, RAGE a Sas aa:

ed Ar eke Os as _ Exuipit “A” to Petrrion

: © Schedule &—Sheet lof 2°. f

Southern Railway Company. sae

‘ perating Result of Reacanans Trains Nos. Il and 16 between Birmingham, Ala., sind Salaciiien Mies...

, : March’ * April ‘May J une. July.: .* August September

er a : 1947 1947 1947 1947 1947 i 1947 1947

a Revenues: \ 2 ; . :

AMIR cites Caine vns ga ees EEG S pees 1,716.59 1,666.02. 1,710.82 1,649.61 - 1,690.25 © 1267993 1.632.290

as ae Express... 6.0635. a eS ee ae Firs i Seine 459.13 478.61 355.40 — 262.94 ° 208.69 228° 90 234,32...

es Miscellaneous... ...... seme er teceshens 1:24) 3.34— 2.58 . 3.50 _ 3.08 (271°. 2.20

_ Total Revenues... 0... 5.:.0.%,..... $5,859.42 $5,177.08 ° '$5,37810 $6,401.85 $7,123.89 $7,558.32 $5,803.49.

Direct Expenses—"Actual’”: | Se as pies oF ne x ; Gee . jek *s . . ,

US rE Boo a Wages, Train and oe Crews....... ... $3,091.03 $3,026.76 $3,045.87 $2,986.42. —$3,109-95 $3,.087.65'. $3,040.49.

an Kafer’ Taxes, RR. Ret. & ULL... 22... 230 :35 232.43: 237.66 - 233.69 233 . 57 239.41 ° 228.62°

Ce er ere es eee 2, O31. 12/ 2,030.40 2,086.92 . 2,008.80 2,092.50.- 2,287.80 | 2,473. 20

ais Damage to Livestock on Right of WARE oo dR RE. - 40.00 ..... Mabie Chae waee wos

_ Total Direct Expenses—“Actual” es we Gy $5,352.50 “$5,289.59 $5,370.45 $5,228.91 $5,476.02 | $5,614 86. $5,742.31

ce "Direct Expenses—“Apportioned” : ee eae nee a5: . |

ee ee - Enginehouse Expenses. eevee See ene By $550.25 77,80 $574.12. $554.70 .. $508.71: $517.70 . * $543.00

, Pass. FT eonaltt-vlr mrt ee ee 107,40-° . 103.94... - 107.40 | 103.94 ~ 107.40 107.40° 2 . 103.94

Seiad pee . Pass: Locos.—Lubrieants. 2.2... .. eeueiie a f / 18304 -177.14° ~~ —.183.04 177.14 183 -04 183.04. * 177.14

SE MR —Other BODES. ois ces eeins 99.08: 95.909 ..99.08 ~ 95.90: (99.08 99.08. — 95.90

* Pass, Locos.—Repairs:.................. ,, 63.27 . 2,577.38 - 2,663.28 2,577.38 2,663.28 2,663.28 2.577.38 .

~. Pass. Train Care. H.LLLW. & Icing...... 329.69 317.99 330.28 ° 319.7 344.34 . 360.73 — 353.12

Pass, Train Cars—Lubricants. SSG aortas a 90. 22.08. 22. OF 22.20 23. 92 25.05 ' 25.42

Pass. Train Cars—Other Expenses,......5 18.82 17.67 18.836 . 17.76 19.12 20.05 19.62.

Pass. Train Cars—Repairs Geet ree cae 3 679.98 © 655.86 681. 20 659. 46 710.18. © 744.02. 728.30

. ° Pass. Train Cars Air Cond... . : pa 338 .- 10.58 10.34. «10.88 © ‘10.24. 10.58 - , 10.58. 10:24. >

: Birmingham Terminal Company - Levees sles * 905. 82 a 760. 35 654.50 831.74 — 844-76. 685.17 794.00

Pa eas Direct. Expenses—“Apportioned”. $5,570.34 $5,316.35 . $5,344.78 $5,370.20. $5,514.41 $5,416.10 $5,427: 16 ar

+ Total Direct Expenses—~/ Actual’ and Ap- ¢ | ae WE

MR x CCR Sas BU dae eR RR SAA cee $10,922.84 $10,005.64 $10,715.33 $10, 599. J1- “$10,990.43 $11, 030. > $11,169.47

“Direct. Expenses in Exxooes ¢ of Reveiues pA $5,563.42. $5,428.86 $5,337. 13° $4,197.26 $3 , 866.54 $3, 472. $5,275.98

‘ Revenues:,

Pe SEA a ls

—M iscellaneous See Pe oa le apes age tee

Total Revenues: ED) pape rina

Direct Expenses—“Actual”:

Wages,'Train and Engine Crews,.......

Payroll Taxes; R. R.. Ret. Ce Baas ‘a

ROMEO core cae heise cakes coe ves

- Damage to Livestock on Right of Way.

Total Direct Expenses—“Actual”’. 5 eas

‘.. Direct. Expenses—‘Apportioned"”:

Direct Expenses i in Excess of Revenses. ee

Enginehouse Expenses......:........:

Pass. pitroalls “ orm eeeabeg Sele es

| Pass. Locos, BK sans Supplies Sa cnt

Pass. Locos.—Repairs..... 0.2... 06.67

Pass. Train Cars—Lubricants..........

Pass. Train Cars—Other Expenses... .. .

Total Direct Bupnsed:=" Nipporticaea

ee 7

ee |

Cee ee RR we ee

eee tween eeeneenae

Pass, Train Carel H:L.W. & ia

Pass, Train Cars—Repairs.............

“rat ‘el one ate 5 eae a

er |

ee 7

Total Direct: -Expenses—Actual and Apportioned.”

‘ N

° | is m

Peel

5: 5 | a / !

- EXueit “A” 70 Petition—Continued — -

Schedule 3-—Sheet 2 of: 2

: Souther Railway Company

October - November December January. February . Total.

» yw 1947 1947 1947, 1948 ° 1948" "12 Months

$3,653 '50 $3, 182:83 $4,003.92 $2,822.96. $2,532.95 $45,156.06

1,728.14 1,702.12 1,919.24 ~ 1,726.98 1,627.33 20,449.32

“254.98 385.82 "465.94 ‘347.37. 385.94 4068.04

A ~. 85 .52 44 AW 21.83.

$5,637.78 $5,271.62". $6)449.62 $4,897:75 $4,546-33 $69,695.25

es ‘y ore e Oey : 2 \ ms ’ x =

$3,125.30 - $352 242.87 $3,346.18 $3,327.81 .$3,150.50 ‘$37,580.86

231.63. 243 53 244.85. 178.25 171.80. 2,705.79

2,527.74 2,446.20 2,561.22 “ 2,566.80 . 2,437.74: 27,550.44

Ura BIO. 08 os pics eit cae ye ee ly eap te ee OO

$5,884.67 $6,142.60 $6,152.25. $6,072.89 $5,760.04 . $68,087.09

$188'87 $488.10 $526.07 «$535.99 ' $495.32° $6,360.63.

“107.40 103.94 107. 40 107.40 100.48 - 1,268.04

183.04... 177.14 183.04 183 04 171.24 2,161.08 ©»

99.68 95.90 99.08 99.08 92.70. 1,169.86 . ~

2,663.28. 2,577.38 . 2,663.28 2,663.28 2,491.46 31:443.94 ~~"

353.71 365.41 391.76 339.06 309.20. 4,115.03

24:56 25.38. 7.20 23.54" 21.48° 985.77 > |

19.65 20.30 21:76 18.84 17.18 . 228.63 ..

729.52 753.67 +=: 808.02. ‘899.32 7.72 8,487.25

10.58 10.24 10.58 10.58. 9.90 / 124.92.

826.18. 813.28 871:93 810.60 © 777.92/ 9,576.25

$5,505.87 - $5,430.74 $5,710.12 $5,490.73 $5, 124. 60 $65,221.40

_ $11,390.54 .$11,573.34 $11,862.37 $11,563.62 $10,884.64 $133,308.49

$5,752.7 76 $6,301.72 $5,412.75 $6,665.87 $6,338.31 $63,613.24

° oe nas

Operating Result of Ps asse nger Trains Nos. Il and 16 between Birmingham, Ala., and Calamus, Mise,

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Title 49-"Tranaportation and Railroads

Chapter I—Interstate Commerce. Commission .

A—General Rules a

_ Subchapter

Restr ictions: on is Conk Burning Passenge

ES Mileage

ty,

Part 95—Car Beenie

Service Order: No.: B43

geese 2 vo. Comrraint

nd Regulations

r Service Locomotive @.

- At a session. of the Interstate_ Cotamerce Commission,

Division :3} held at\ its office in Washington, D. C,, on the )

21st day df October, ‘A. D. 1949,-

Itappearing, That reserve e stocks 0!

fuel coal have decreased; that some

-reached-a dangerously low level and ar

~ that the supply and movement of cars

‘service’? generally is impeded and int

. of locomotive fuel coal; that the preset

minous coal is insufficient. to relieve

adequately supply such fuel, and the

the opinion that an emergency exists

action in,all sections of the country;

‘Itis ordere d, That: :

§ 95. 843 Restrictions on coal- g Anes

loc omotivg mileage.

‘

f railroad locowigtive

such reserves have

e further deer casing ; yf

and trains and “ear

errupted by the lack —

it production of bitu-

these conditions and*

Yommission being of"

requiring: immediate;

/ a

, /.

9 / Act iy service

(a)! Re duction in ‘passe nger oe

ve mile age. On Bra:

ae, rf.

after the effective date of this order, any .coimmon cafrier.’

by raihroad operating ‘coal-byrning steam. locomotives: cand

having 2 25 or less days supply of fuel coal for such loeomo: .

tives and not having available a dependable souree of sup-

ply of coal; shall reduce its coal-bubning passenger, ‘ecomo-

tives miles: to an aniount of 25% lessMthan it operated such |

coa}- burning passenger locomotives on October: 1, 1949.

(b) Application.\ (1) The provisions of his érder/ ‘shall

apply to.intrastate! cominer¢ ‘e, as well as inter tate ad for-

eign commerce. \ : é

(2) The provisions of this order shall ap ty to oat: burn-

ing passenger/locomotive operation commence ing on and

. after the’ effective date hereof. . ie He

11 209 p.m, October 25, 1949, a

‘

“\

me effective at ..

(d) KB cpiration date, ‘This, order shall continue in effect

until 11 159.p. m., December 2), 1949, unless otherwise modi-|

fied,. changed, suspended or annulled by order of the Com-|

‘mission, l td : ; ;

‘(e) Rules: regulations | and p Kactlors suspend: - The

“operation of all - Jules, regulations, and practices insofar-..

as they conflict Ww. th the eae sf st this order, i is | her eby

suspended. x SiN

ee f i “<< ee,

ied That a copy of this order shail te

tate railroad regulatory: bodies of each

~ state, and upon tl\Asséciation of Ameri ican, Railroads, Car

Service Division,tas agent of the railroads subscribing to

‘the car service-ahd. per dient agreement under .the terms .

- of. that agreement ; and that notice of. this order be given

to the general: publie by depositing a copy in the office of

the Secretar y of the. Commission at W ashington, D.C., and.

by filing: it with}. the Director, Division, of tha Federal

(40 Stat. 101, Sed. 402; 41 Stat. 476, See, 4: 54 Biat: 901;

It is hohe: OF

served upon thet

49 U.S.C. 1 (10)-(5). ery AY Se Cae ieeen

‘By the Commisdion, division 3, : |

Ce Mbt ae Ww. P. Bartel, Seeretiry.. " (Seal.)

we ?

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| 3

By FORE, THE “Atanaitn Ppauie Genser € ‘omaiss SION.

“Docket. No, é

“Ss | pplemental Petition of Souther Railway Company. C on-

J/eetning. Interstate Passengéy Trains Nos. 11 and 16

' Formerly Operated Betweey Birmingham, Alabama and

ar Columbus, Mississippi, Now Discontinued Under Order

| of. the Interstate Commerce Commission ;

|. J.'T. Stokely, Charles Clark, Attorneys for Petitioner.

_ Dated: November 9, 1949. . \. Sacer cee

Mee the Honorable Alabama Public Service Commission.

. Comes,Southern Railway C ompany and: files this: petition

supplemental to its original petition herein. filed on Septem- 7

ber 15. 1943. and: respectfully, shows: > |

Petitioner: filed Qs. Exhibit: ‘A’? to its original petition

ereth a statement showing.the operating results of its said

trains Nos. 11 and 16 for. the twelve-month peri d ending

February 29, 1948. The heavy losses of $63,313.24 there |

~ shown have not only since continued but have’ progr essively

grown heayier|and more unbearable. ;

The statement marked’ Exhillit “Cv attached hereto

shows the ‘operating results of said two interstate trains for

‘the. twelve-month period immediately following the twelve-.

month period covered by Lixhipit ‘+ A”, that is, from March

1, 1948 to February 28, 1949, inclusive, Said Exhibit “C’.

shows | total ‘revenue amounted .to $52,720.20 for hauling

[fol. 25) passengers, mail and express, The wages paid fhe

train and engine crews, the Federal, ‘pay ‘oll taxes: thereon

and the train fel consumed plus personal.injury and prop:

erty damage claims and suits ‘alone amounted to $80,559.65,

Other direct expenses incurred ‘in the operation of said>

. traitis such as repairs to locomotives, cars, and the like,

— to $52,716.33, or total direct expenses Of S133,-

9.98. vhe total direct expense of operating these trains

psec" the total revenues for the twelve-month, period,

by. $80.5 959.78,

4 : ° F o-

é' Ae ee

ne Pe titioner’ ations: liereto as. Exhibit “D’’- a) ‘statement:

showing the operating results of said trains for ‘the seven: |

month périod, March 1, 1849 to September 30, 1949, inclu- -

sive, immediately following the twelve-month period. cov-

ered by Exhibit “*C’’. Said Exhibit “‘D’’ shows total reve-

"> nue amounted to $29,071. 96, for. hauling passengers,.-mail

~and express. ‘The wages paid the frain and engine crews, :

the Federal payroll faxes. théreon; and the train fuel con-

sumed’ plus’ personal injury and property damage claims.

and suits: alone amounted to $54,894.08. Other direct ex- :

“ pensés. ineurred‘in the operation.of: said trains such as. ree.

- pairs to locomotives,-cars, and the like, amounted to: $38)\-

418.56, of total direét: expenses of $93,312.64. ‘The total

direct ‘expense of operating these ‘trains exceeded: the total.

" revenues, for the seven-month per iod, by $63,340.68.

ee LIES tt eter

. + ee . wr e te . . .

The operation of said interstate trains Nos: 11 arid 16.w as.

‘| fol. 26] discontinued on: October 26, 1949, -vnder)an order - |

“issued by the Interstate Commerce: C ommission id account

. of the shortage of coal brought about by: ‘tho current strike.

a ee

ri the bituminous edal fields east of tlie Mississippi River.

fneluding Alabama by the United Mine Workers of America,

“resukting in the chosing ‘down -of all, or substantially. all of

_ ‘the coal mines in said fields. ‘The little use of said two inter-.

“state traits ‘by. the; public and. the heavy lesses in their

operation before | they were discontinued on October -26, .

1949 Jo not. justify the: resumption: of. their operation after:

- Said order of the: hiterstate Comimeree Commission. shall,

have. expired accordings to its terms-at 11:59 P.M. Decem-

ber 25, 1949, or shalk fiav e in the meantime been modified,

- ¢hanged, suspended or annulled, And the.. shortage of: coal

‘shall have been: retieved. ©

a See ne ae pe

“The. requireme mt by the ‘Gernistedion of fle resumption

‘of oper ition by ra petitioner of said interstate passenger. -

irains: Nos. 11 anc

: ¢‘olamhus, Mississippi would constitute an tndne burden

on interstate commerce’ and would involve the ‘tanking of.

petitioner's prope vty without due process of law and he a

Meni aly 0 Four petitioner of thé equal Jegheeton of. the law’

; “ oN 2s

e .*

ited . . k * ™ .

ite tt, APN : . : - ane e A o

erry ey fe te. . pide : .

;

16: i between Birmingham, Alabama ‘and: ,

iz < ea ! ‘fj @ : * = af : 7 : oi mies

‘contrary to the provisiotis Jot both the Coristitution of. the ace

. State of Alabama and. of the U wited’ States. z

“8 ee:

Ww ‘soyalore. your ‘petitioner prays for ‘the reasons herein

a [fol. 27] above stated, and others .to bé shown at the hear-’

ing, that it not be required to restore the operation of said —

two interstate passenger trairis } Nos.|11 and.16" between

j Birmingham, Alabama and “Columbus, Mississippi when.

_ the‘coal shortage shall have been relieved and that it be duly.

authorized by the Commission not to restore the operation

of. said trains insofar as the ‘same. are operated in the.

State of:Alabama. * |

¢ Southern Railway Company, by H. ¢. “Mauney, Its /-

: Sanerats dent. See | |

ss ie

{fol. 28] 2 NE ea? aes by oe

ae a te eee SEs Exuisit “C” to SurPLementaL PETITION

ae LE TTS iether Railway Compariy e 9°

Operatin Results of Passenger Trains Nos. 11 and 16 between Nieiinitheon. Ala. and —

Colum us; “Miss., for the Lapana from. March 1, 1948, to F ebruary 28; 1949, Inclusive

ss Total 12 Months - ee

a? , * Train No. 11 Train No. 16 Total ,

Revenues | cae Se ots eine

Reamer bi ok a ee $14,619.17 $29,945.43

) ee Erdiacdivuceriocsbas eestesy. 11,827.30 "7,604.24. 19 431-54

“Express... .. Sif ie ede eaed SG TEE Re L969: 138 3,289.65

: ee a ateles Neeeeeteee 8 20387 — 33.21 NS. 58

Total 000525. oe: pees wcecasenes $28,494.45. $24,225.75 - $52,720.20"

-. Direct cipenetd—“Act a Weta 2 Bh es e ay Ay a ‘

Wages, Train.and Engine ie eG AY ee $17,819.26. $17,819.28 $35,638.54 -

~ Payroll Tax—R.°R. Retirement & Unemp. Ins. 1,009.83 1,009.79 2,019.62

ORM WME 520 5c55 0. odes Sey Bel 10,869.48 10,869.50. 21:738.98

- Injuries to Persons... .......: New ce ya wads ‘ 21, 112. 51 yr ener re 21,112.51

Damage to Property... ..... ea uk pends 6 tau Wh Seka gees 50.00 50°00 -

‘Total Direct Expenses—" Actual”: eeties $50,811 08, $20,748.57 $80,559.65

Direct Expensés—“Apportioned” * , ; ~ | ae ; Sc,

- _Enginehouse Expenses... . .’. pee ba cai tals +» . $1,895.62). $1,895.62 . $3,791.23 ©

Pass. Locomotives--Water... 2.0.2.2... -*. 345.767 345.07 - 690.83

Pass. Locomotives— Lubricants. . aah Mek 588.94 _ 587.78 1,176.72

Pass. Locomotives—Other 5 Supplies. . hee eas - 804.41 _ 303. 87. 608.28

-_.Pass. Locomotives—Repairs Steam. weess 10,162.12 : 107144.85 20,306.97

- Pass. Train Cars—C. H. L. W.-& Icing. agAb eas 1,627.29 \ 1,626.73 © 3,254.02

~~ Pass. Train Cars—Lubricants. eK eve usewieriges ph - Beer ORe 374.61 - 749.27

. Pass. Train Cars—Other Expenses. ....... . fF 10.0 ' 710.90 - 220.44

_ Pass: Train Cars—Repairs’ 2.2.00... 5. t.d+ 2,260.44 2,259.99" . 4.51973

. Pass. Train Cars—-Air Conditioning. ....... .. ; AT7.14 177.36 3h. 50

Pasg. Train pact om to Motor, Car and Se Se

ae eer »>» . 3,945.79 3,945.78 7,891. 57 .

Rent Paid for Equipment. ... 2.2.2... 02.0... .. 8 Sea

Terminal Station Experjecs— Birmingham, Wa. 4,541.25 4,608 7 9, 149. 97

Total Direct Expenses—““Apportioned™. . ; $26,336. 46 $265379 87 $52, 716.33

Total Direct E xpenses “Actual” & “Apportioned” $77,147.54 $56 128.44 $133. O75. 98

4 we

Direct Expenses in Excess of Revenues>:...... . $48,653.09 $31,902.69 $80,555.78 — :

cape did not operate March. at. te April 24, IMS, account, O. D. T. Order’ No. 69,

ies

‘

: at 25

* Fas ye ae: & “ 1 ib 2 :

Yu / “St

ai * / meh ta

z ik Pains

[fol.. 29]

Fine, Exmeit up TO SUPPLEMENTAL PETITION :

Southern Railway Cimgeiny

"- Operatin Resulis of Passenger Trains Nos...11 and 16‘between Birmingham, Ala., to ;

rans us, ‘Miss. for the period from March 1, 1949 to September 30, 1919 -

| GAS ie Sate -Total 8 Months Ie

= ae jae ; Train No. 1t Train No.16 =Total

Revenues 7 é “ pier ae SA |

PINE 565285 5 es he 05s VUES vara calee : $8,557.79 $7,648.03 $16,205.82

Bp "| EMER EY OAS ene eink i oben eka 6,906°32. 4,930.70 . 11,837.02:

\« MOON 9 65 Ve Ba oe Coes hig War aieracns Pare \ 773.89 -~ 1,110.00 1,883.89

Milk and Newspapers aa Pak s as eee awe sees ‘ORi7G ~... 10.46 - 45.23

MBM essies sae Opes, ee es Sa Sk cg $29,971.96.

Direct: FE xpense »s—“Actual” te | Ge sit pare Rete Oak

Wages, Train and Engine Crews............. $12, 421. 35 - $12,421.33 _ $24,842.68

Payroll Fax—R. R: Retirement & oe Ins. -: 687 .13 687.16 1,374.29

\ eo 5 ERS D ERAN SEE RISD Waeatioeret ae Bae 7,944.72 .7;941.54 ° 15,886.26

\. Tojuries to Persons: ..... a4 ee aeRieaety a oa oak 12,785.85. ...... vee. 12,785.85.

_ Damage to Property. ke S GU ER be twe Ka ETE 5.00 se Oe 2 5.00

Total Direct Expenses—"*Actual’’ J....+ $33,844.05 $21,050°03 $54,894.08.

-Direct Expenses—“Apportioned”: | RS ie 40 eee ;

- Enginehouse Expenses. ....... DER Seep ea “$1,773.70 $1,773.71 - $3,547.41

_’ >Pass. Locomotives—-Water.......... Rear ty, ete 333.45 666.15

. Pass. Lecomotives—Lubrieants. ......... woe jp ee 567.28 1,133.27.

Pass. Locomotives—Other Supplies. .... Witenes - 523.97

Pass. a gr ca airss-Steam........:; 8.546 92, 8,514.90, 17,061.82 |

_ Pass. Train Cars—C; H. L. W. & Ici iMG... .. Re 053.47 © 1,055.00 2,108.47.

Pass. Train Cars—Lubricants. ... 20... «. ot "06. 44 ‘, 96.37. | 192.81

~ Pass. Train Cars—Other Expenses... . . . eaewy Vi ee: 100.80. 201.63

Pass. Train Cars—Repairs......... ¢ nevcevc. © 2,134.51. 2,142.11. .4,276.62

Pass. Frain Cars—Air Conditioning’ ..\. ...... Ye. ~ 282.69 ‘2 (270. $2 62.01

“Pass. Train Cars—Re sairs to Motor Carand | s £ i

SEES SOD Ea M4 ' 344. 65 A 2,678.68

Te rminal Station E-xpenses- ~Birmingham, Ala. . 2,732.86 2,732.86 5,465.72

& -

Total Direct Expenses—““Apportioned”\.. $19, 226. 45 $19,192.11 $38, 18, 56

Total Direct Expenses “Actual” & “Apportioned’ A $53,070. 50 $40.242.14. $93,312.64

Direct E xpenses in avons of Revenues......... Dai 797. ” $26, 542.95 $63,340.68 ~

\° : s » :

an, +

[fol. 30] - . Exwrerr 4 to Compiarnt |

° 8 ‘ : . 5 ba ee : :

To: All Railroads:

‘ Copy”

STATE oF AL ABAMA,. ALABAMA, Pu BLIC Senvice: COMMISSION,

‘Manteo ERY 1, A LABAMA

| * October 26, 19489.

Lamar Wiley, Secretary.

Seen ron President ;_ Jimmy Hitchcock, Associate

Commissioner ;.C. C. (Jack) Owen, ‘Associate Commis-

sioner. | ca ooh uname a voted

Ro. E ©. . Order 843

This Goinmiseten: is reveiving ‘telegrams: and. latieve

notifying us as to compliance withthe above order, same

being i in connection with the discontinuance of passenger -

trains. ;

The Public’ Service Commission 4 expecting that each

and. every train which might have en removed in com-

plianee with the I. C. C. order will be restored to service :

Within 24 hours after ‘the I. C. C. order might. be rescinded.

Very truly yours, (S.) Gordon FETsORS, President!

; é: : ager i : — .

[fol. 31}... - Exuir 5 5 ro ‘ComPLatnt Mee e

“Title 49_—Transportation and Railrohde

Chapter I—Interstate Commerce Commission

. Subchapter A-—Generai Rules and Regulations

Part 95—Car Service.

Service Order No. 843-A

< (Vacates Service Order No. 843)

_ Restrictions on Co al- Rorning Passeriger Service, Locomo-

4 tive Mileage

At a Sesston ‘of the Interstate Commerce Commission, |

Division .3, held at its office in W ashington, Ds C., on the

‘14th ‘day of November, A. D. 1949,

~~ October 1, 1949.

: y oh | =

~ ; aot -

Upon further £onsideration of Service Order No. 843 ae

(14 FY R, 651 7) and good cayse ‘appearing therefor:

se ordered, That:

§ 95.843 Service Order No. 843, Restrictions on Coal-°|

burning Passenger Service Locomotive Mileage, be and it

is hereby, vacated and set aside. ple eh, |

_ . It is further ordered, That this onder shall become. effec- .

tive at 11:59 p. m., November 20, 1949; that a copy of this

_ order and direction be served upon the Association’ of

.. American. Railroads, Car. Service Division, as ‘agent of the. _

railroads subscribing to the car service and per dient agreé-*

ment under the terms of that agreement; and that notice of

‘this order be given fo the general public by depositing a -

copy in the office of the Secretary of the Commission at

Washington, D. C., and by filing it with the Director, Divi-

sion of the Federal Register. bie? iad agp Ege |

(40-Stat. 101, See. 402; 41 Stat. 476, See. 4; 54 Stat. 901;

es 49 U. 8. C. 1 (10)-(17).). Zo,

: By the Commission\ division RESON piece Bg

: \ W. P. Bartel, Secretary, (Seal).

~ [fol. 82] November 15,1949

| 638-2843 eg

Supplement: No. 1 to Circular CSD-434 Ss .

To Al Railroads: 4) ¢ °° Ve. Cpe

Herewith FE. C. GC. Service Order No, 843-A which vaeates

. and sets aside Service Order No. 843,. effective 11:59 P. M.,

November 20, 1949. > oe ota

Service Order 843, effective Ottober 25, 1949, required

any common carrier by railroad operating coal-burning

_ Steam locomotives and having 25. or less days supply of

fuel coal, and not having available a dependable source of

. Supply of coal, to reduce its coal-burning passenger loco-

motive miles 25 per cent under the mileage operated on

Yours very ‘truly, A. H. Gass. -

Lists: CS1,1A,1B,DM,CSA, eeu

ot i\.

~ the Ic ;

[fol. 33]. _ Exar 6 to CompLarxt oa es

“

C opy

RA771 NSAD7 NS.MYA758 Long PD—Montgomery,

‘Ala. 21 o1OP—1949 Nov. 21 P.M, 6:56

R. K. MeClain, Asst Vice Pres. 3

_ Report- Diy Sou. ern Railw ay Sy stem W ashi., ?D. C..

on October 23, 1949 you wired us as follows : : :

Tn compliance with Service Order No. 843, -efititled

Restrictions on’ Coal- burning. Passenger : Servies Locomo-

tive Mileagé—entered by Division 3 of Interstate Com-

merece Conimission on October 21st, and served upon Rail--

roads and Regulatory Commissions, to meet the. present

coal shortage emergency,. Southern Railway System. Lines

will, effective 11:59 P. M. October 25th discontinue opera-

tion of the following sairecig Ps ains: 1-2 Sheffield-Parrish,

7-8 Sheftield-C hattanooga, 1 9-16 Wilton-Selma ‘11-16 . Bir.

‘mingher, Columbus. (Signed) R. K. Mec lain, Assistant

Vi ice- Pr ‘esident Souther n Railway System’’.

? é

. On October 26 you were advised ‘The’ Public. Service

Commission is expecting that each and every train which

might, have been removed in compliance with the ICC

order will be restored te service within 24 hours, after the

ICC order might be reseinded.””

On November: 17th we wired you as Scien “Please

-, advise this Commission. by return. wire if your railroad:

will definitely restore all passenger trains which were re-

moved in accordance with the emergency order of inter-

state Commerce Commission in connection with recent coal

strike. We have previously notified you that this Commis-

sion éxpects all discontinued trains to be fully restored and

-[fol.34] in normal operation 24 hours after thie lifting of

der which takes effect midnight November 20.’

On November 18th. you wired us as follows : Operation,

Trains 1-2 Sheffield-Parrish. 7-8 Sheffield Chattanooga and |

15-16 Wilton-Selma, suspended under ICC order 483, will

be restored November 2 st. (Signed) R. K. MeClain, As-

sistant vice President Southern Railway System,’

It is noted in your telegram of November 18th. that no

reference is made to the contemplated restoration of service

& te : 8

Sita

OU ALi Bt eae Paes

PE aAN,

7 RENN EN Ae tosceien

foe eee at 488

of trains 11 and 16 between’ Birmingham and Alabume:-

-Mississippi-state line. ©

Will you please, therefore, wire us at once if the Southern |

Railway intends to immediately restore these two trains’

and- if not, kindly supply us with your eet for failing —

to ‘restore them.

Alabama. Publie Bepice Commission by Gordon

Persons, President:

fol. 3615 5c; Exaterr “62: “:

eee

‘Western Union

: } Day. Letter ret en

Kit yee ~ Washington, Nov. 22, 1949. -

ee Soe Public § Service Commission

* Honorable Gordon Persons, President

_ Montgomery, Alabama.

Your wire received - stop: As you see we restored “to

service yesterday all of the eight trains discontinued under

ICG service order 843 with the exception-of trains Nos. 11

and 16 between Birmingham and Columbus Mississippi stop :

As your records will show we have had pending with you

since November, 10 a supplemental petition asking your

authority to keep said two trains out of service. stop We

requested. that the supplemental petition be set down’ for

hearing while the“ICC service order which was lifted at:

midnight on-the twentieth was still in éffect but vou have

set. it down for hearing along with the original petition for

, December 8.stop The management is advised that if it.

restores the trains-to service it will thereby ‘waive its. sup-

pies petition-which under all.the circumstances. it

cannot see-its way clear to do particularly as the direct

expenses alone of the operation of these two trains for the

Jast 7 full motiths of operation exceeded the revenues which

-they earned by more thai nine thonsand dollars per month

as shown by the supplemental! petition. This-is an unnéces-

“sary and wasteful burden which-we should not in all good

-eonscience he, asked. to resuine e stop With these. two trains

SO MS NER BERN TID NRE BRE BSae

Son Ue OLR. |

. >

Re:

. off the company hés i in service e daily between ‘Birmingham

-and Columbas mixed trains numbers 15 and 12 carrying a

:. Standard seventy foot passenger car partitioned for white

_and colored passengers with separate toilets for men and

women in each end of the ear and-also a-standard com-

bination mail express and baggage car with a railroad post

office in charge of a RPO clerk in one end of it the rest

of the car being used for storage mail express and ‘bag geage

if any with an express messenger in charge stop The trains

operate on convenient schedules stop Number 15 leaves —

Birmingham at seven fifteen A M arriving Columbus —

Mississippi at one fifteen P M stop Number 12 leaves

Columbus Mississippi one thirty. P M arriving Birmingham

Alabama seven thirty P M stop. These trains run well on

time make all stops do very little switching and coupled

with improved parallelling highway. facilities for buses and

private automobiles render adequate service we think to the

territory served between Birmingham and € ‘olumbus stop .

With all due regard for the Commission it is not our inten-.

“tion to restore the operation of trains 11:and 16 until we are

afforded a hearing and decision on our ‘supplemental peti-

‘tion for authority to. keep them out-of service stop Please.

be assured that our position is in no sense arbitrary or_

{fol. 36] defiant but is we believe the only sound one we

ean propane take stop We hope on further consideration.

the Commission will see the correctness of our position

-and refrain from issuing 4 citation against us until we can.

‘have a hearing and a decision in orderly course on our

supplemental petition stop-We feel deeply that wé are

entitled to the sympathetic! cooperation of the Commission

in our effort to avoid the dissipation of our resourees in. -

_ the operation of local passenger trains at such trémendous | \

‘and intolerable losses: stoy cee

Southern Raiiway Company, R. K; MeClain, Assist.

ant Vice President.

mae 1

‘

¥ Vee, Sea *

A PA Pe

[fol 37] — — Exuisir 7 To ComPuarnr -

State of Alabama.

. shore, it

~ Alabama Publie Service Commission - the

; Montgomery 1, /Mabama cea Te

Bonin Persons, Densities “tomar Wiley, Becretary

Jinimy Hitchcock; Associate Commissioner

CLC, (Jack) Ow en, Associate Cc onmnissioner,

Southern Railway ( ‘ompany, a corporiition, Respondent

| Citation: to respondent, Southern - Railway Company, a

corporation, to show cause, if. any, why: the Commission

should not enter of record an order specifyi ing that the ~

failure or refusal of respondent to restore on and /after

November 22, 1949, the operation of its passenger trains ©

Nos. 11 and 16’ between Birmingham, Alabama, and the—

_Alabama-Mississippi state line, constitutes a violation of,

the provisions of Title 48 of the Code of Alabama of 1940,

and requiring that such violation be discontinued by restora-

tion by respondent of the operations of said trains betw een

Birmingham, Alabama, and the Alabama- “Mississippi state

line. peRrilar

oe nae Docket 12995

On and prior ta October. 25, 1949, Southern Railway Com-

pany, respondent ‘in this orCaotidie operated, under regu-.

lar schedules, its passengef trains Nos. 11 and 16 between

Birmingham, Alabama, and Columbus, Mississippi.

“Under and by authority of the provisions of Service

Orser No, 845, ‘dated October 21, 1949, of the Interstate

Commerce C occu rerbeny which Service Order beeame effeec- *

tive at 11:59 p. m. on October. 25, 1949, the 1 respondetit,

Southern Railway’ C ompany, suspended: the operation -of

the aforesaid two trains between. thé said points.

Thereafter, the Interstate Commerce (C ommission by its

order terminated or suspended the effective period of its.

aforesaid Service. Order No, 843, and said Service Order

No. -843 is not now in effect.

. It appears to the Commission that upon the termination

or suspension of the effective period of said Service Order

_. No. 842 it was, is and will be the legal duty. of respondent .

_ under the provisions of Title 48 of the Code-of Alabama

of 1940-to restore and resume the operation of such two

trains between Birmingham, Alabama, andthe Alabama: ©

Mississippi state line, and the respondent was advised by

- the Commission prior to the termination of: the ‘effective |

period of said Service Order No, 843, that respondent should

restore such service not later than 24 hours after the ter-

“mination or Suspension of. the ‘effective period of said.

Service Order No. 843. eae Siew gal ree

The Commission is informed that respondent ‘has ‘not |

“restored and resunied the operation of said passenger trains

between Birmingham, Alabama, and the Alahama-Missis-

sippi state line within the said specified period of 24 hours

after the termination or suspension of the effective period

of said Service Order No. 843, and the Commission is fur-

ther informed by respondent, through its authorized attor-

ney and representative, that respondent does -not intend

to restore and resume operation of said two trains between

Birmingham, Alabama, and the Alabama-Mississippi state

‘Wie. SS (ee Ie eae . 3

___.Now, Therefore, the premises egnsidered, <

It Is Ordered by. the Commission that respondent, South-

ern Railway Company, a corporation, ‘by and through its

authorized agent or agents, officer or officers, or employee or

employees, be and appear before the Cemmission at its of-

fices in Montgoniery, Alabama, at 2:00 p. m., on Friday,

November 25, 1949, then and there to show cause, if any,

[fol. 38] why this Commission should not enter of record an

Order specifying that the failure or refusal of respondent,

Southern Railway Company, a corporation, to restore and

resume on and after November 22, 1949, the operation of its

passenger trains-Nos. 11 ahd 16 between Birmingham, Ala-

-bama, and.the Alabama-Mississippi state line; constitutes a

violation of th¢ ‘provisions of Title 48 of the Code of Ala-

bama of 1940, andrequiring that such violation be diséon-

tinued by restorations by respondent of. the operations of

said two trains. bet ‘een, Birmingham, Alabama, and the.

Alabama-Mississippi'state tine. : - nse

: ie ker a tak ae MS

Lea Sais

SR phi BIS Pra gis Fog #

restos

oF Bim AAO Nala Rigi TS RNS Sd

Se: at the olieis of the Coraiiéssion in Montgomery,

Alabama, on this the 22nd day of November, 1949.

yAlabama Public Service Commiséion, (S.) Gordon i

‘Persons ,_President ; Jimmy Hitcheock, Associate

Commissioner ; C. C, (ack) Owen, Associate Com-

missioner. : ;

”

ataats A True Copy. (S.) lees Wiley, Secretary.

[fol..39] A Exuuprt 8 o-CompLatnt

State of. Alabama

| ' Alabama Publie Service: Commission

_ Montgomery 1, ‘Alabania.’

Garden Persons, President. tote fe en a

“Jimmy Hitcheock, Associate Commissioner. REX

C. C. (Jack) Owen, Associate Commissioner.

Lamar Wiley, Secretary.

Sicceies Rat.way Compaiy, a Corporation, Respondent

| Docket No. 12295 |

Order of the Piccelaatnn

On November 22, 1949, 9, the Commission issued its: citation” °

order to: Respondent Southern Railway Company, a corpo-

ration, to appear before the Commission at its offices. in

Montgomery, Alabama, at 2:00 P. M., on Friday, Novem-

ber 25, 1949, then and there to show cause. if any there be,

why this Commission should not enter of record: an order

specifying that the failure or refusal of responderit South-

. ern Railway Company,:a corporation, to restore and resume-

on and after November 22, 1949, the operation of its passen-

ger Trains Nos. 11 and 16 between Birmingham, Alabama,

“and thé Alabama Mississippi state line constitutes a viola-. ”

tion of the’ provisions of Title 48 of the Code of Alabama ;

1940, and. requiring that such violation be discontinued by

restoration by the resporident of the operation of said two

trains between Birmingham, ‘Alabama and the Alabama:

Mississippi. State Line.

3—146 |

33 5

establishe

PD aes

Pursuant to said citation the respondent Southern Rail-

way oe a corporation, appeared at’ tlie time and -

place orderéd and upon the hearing the following facts were

‘ithout conflict : 2

On and prior to October 95-199, the Rouithern Railway 7

Company operated on a regular schedule its passenger

Trains Nos. 11 and 16 between Birmingham, Alabama, and

- Columbus, Mississippi. On September 13, 1948 the South-

ern Railway Company had filed: with this Commission its.

petition for authority to discontinue its said two passenger

~ Trains Nos. 11 and 16 operating between Birmingham, Ala-

bama and Columbus, Mississippi. On November 14, 1949,

Southern Railway Company filed with this Commission a

-- petition supplemental to its said original petition filed on

- September 13, 1948. icicle 16, 1949, this Commis-: |

sion set for hearing avette, Alabama, commencing on

December 8, 1949, both, said original petition for authority |

to discontinue said passenger trains and said supplemental ;

' pefition for authority to not restore the operation of said

two passenger trains. Such hearing has not been held and

no official order has been entered by this Commission on

the said original petition or said supplemental petition.

-Ner has’ cate Commission entered any order allowng the

[ fol. 40] discontinuance of the ‘said passenger traius.

Purporting to act under the authdérity of an order of the 4

Intérstate Commerce Commission, heing Service Order

No. 843, dated October 21, 1949; and effective at 11:59 P. M.,

on October 25, 1949, the respondent Southern Railway Com-

pany suspended operation of the aforesaid two trains he-

tween the said points on the effective date of said order.

The Interstate Commerce Commission by its Order No.

843 A, effective as of 11:59-P. M. November 20, 1949, ter-

minated the efféctive. operation of its Service ‘Order No.

843, and since the effective date of Order No. 843 A, said

Servi ice Order No. 843 has not been in effect.

~ Prior to the termination of the effective period of the afore- |

said Service Order No. 843 of the Interstate Commerce Com-

-- mission, this Commission had notified the respondent South-

ern Railway. Company, along with every. other railroad

company operating in the State of Alabama, that each ‘and

every train which might have -been rethoved under the ‘au-

| ! thority of said Service'Order No. 843 should e restored to:

service: within twenty-four (24) hours after said order’

e ie ae. 6 age 2 i: cok 3 \ | 53,0

fight “be termiusted. such notice havi eg. been mailed on

October 26,1949 ‘‘to all railroads.’’ Also, prior to the

_ termination. of the effective period of the ‘aforesaid Service .

Order No. 843 of the Interstate Commerce C ‘ommission, as

-has already been recited, this: Commission had on Novem-

her 16, 1949, . ordered a public: hearing of the.or iginal peti-

_ tion of Southern Railway. Company for authority to discon-

tinue its said two pagsenger trains and of. its ‘supplemental

petition for authority to not restore the operation, of said.

two trains, and notice of said hearing had been iss ed to

Southern R ilway Company and to all: interested parties,

said petitions: being set for hearing in Fayette, Alabama,

at the Fayette County Court House, commencing at 9:00

A. M. on Thursday, December 8, 1949, said petitions and all \

- proceedings thereon being show n ‘ander Docket No. 12221

of this Commission.. , aay ta

, The records, of the Commission show that. every other

railroad ‘company operating. in. Alabama promptly rein- °

. Stated every’ other train removed under the authority of

the said Order of the Interstate Commer¢e Commission. ”

_ This Commission is of the opinion that Wwithin-twenty-four

hours after the said Order Nb. 843 of the. Interstate Com-

merce Commission was terminated by, Order No. 843 A of

the said Interstate Commerce Cornmissioni; ‘ie. within —

twenty- four hours after 11:39 P: M. on November 20, 1949,

the operation of passenge trains Nos. 11 and 16 between. /

_Birmingham, Alabama and the Alabama- Mississipp state \

line should have been yestored... Nevertheless, the respond- —

ent Southern Railway. Company has not restored: and re- °

suméd the-operatigh of said two passenger trains between

_ Birmingham, Alabama, and the Alabama-Mississippi state:

line, and the Commission is informed by the respondent

: that it does not intend to restore and resume the - -opera-

* tion of said’ two trains’ between Birmingham, Alabama, and

the Alabania-Mississippi-staté Tine. Since 12:01 A. M. _-

. November 22, 1949, the discontinuance. of the operation of

said two passenger trains has been without:the authority

[fol. 41] of this Commission or of the Interstate Commereé

(Commission and without legal authority of any kind, and i in

defiance of the direction of this Commission.

It is ‘clearly provided by the statutes of this State: (Gode |

‘ of Alabama 1940, Title 48, Séction 106; see also Seetion

35) that ‘*No transportation company: * * * shall aban-.

wae

\ 36 '

| ‘dou ‘allor any portion of ifs. service eto the public. or the.

\ opération of any of its lines, properties, er plant which — -

would affect the service it is rendering the public * * * -

unless and until there shall first: have been filed an applica: ~

\ee fora permit tombandon the service and obtained from Ps

the Commission a permit allowing such abandonment.’’ -

It is obvious that the respondent Southern ‘Railway Com-. ee

any has taken the law info its own hands and is acting in

violation of the statutes of Alabama and i in defiance of this

lomimission’s ‘authority.

/\ \Now, therefore, the prémises considered, it is ordered by |

the Commission that it’ is hereby found and specified, that

the failure or refusal of the respondent Southern Railway °

; Colmpany, a corporation, to restore and resume on and after

“12.1\A. M., November 22, 1949, the operation‘of its passen-

ger \Trains. Noz.. 11 and 16 between Birmingham, Alabama

—_and \the Alabama- Mississippi state line, constitutes a vio-

— Jation if the provisions of Title 48 of the Code of ‘Alabama

“1940, | ‘Ku ’

a It is further or envi by) tlie Commsleaian that the respond-

ent § Southern Railway Company shall immediately discon-

_tinue the\violation of said law by restoring the operation Of. |

‘its said re trains-between Birmingham, Alabaras and the. |

Alabama lississippi state line. Bee

It is further ordered by the Commission that the attention

_ of. the. respondent: Southern Railway Company. be directed.

to Section 399 of ‘Title ’48-of the 1940 Code of Alabama,

which provides in part that any utility doing business in this

State which knowingly or willfully violates any. lawful order

of tliis Commission: shall be guilty of a misdemeanor, and:

upon conviction shall be punished by a fine of not more than

£1,000.00 for: each offense, and that.in the case of a viola- ||

~ tion of this'Commission’s orders each day’s violation shall. :

be deemed to be a separate ‘offense. ~* oan

It is further ordered that the attention of the respondent

Southern Railway Company be directed to its petitions |

- before this Commission under Doeket 12221 and‘to the set-

‘ting of said petitions for hearing at Fayette, Alabama com- .

~ mencing at 9:00°A. M:-on Thursday, December 8, 1949, and. | |

‘ td. the further fact that unless: the said respondent South- ° |

‘ern: Railway, Company purges itself of its aforésaid con-

tempt of this Commission on or before the time,set for the

commencement ‘of such hearing, it will be. optional with

Oo:

Bin i 6

this Commission to proceed with said hearing or to post:

> ° . . ' ° - « le a» A he .

_ pone the samé until the said respondeiit Southern Railway

Company shall have purged itself ofits aforesajd contol

(fol. 42] of this Commission's orders and authority, inthe

premises. _ ae EN alee et pe \

Done at the offices of the Commission in Montgomery. _

‘Mabama on this'the 5th day of: December, 1949, Rohe

Alabama Publie Service Commission, | (S.). Gordon

Persons, President. “Jimmy Hitchcock, Aksociate

Commissioner. C. C. (Jack) Owen, Associate Com-

i). “" missioner. | see i a

Attest ; A True Copy: (8.) Lamar Wiley, Secretary,

; “et e i) pet AM ‘A 4 “

; | | ; “,

‘+ [fol. 43}> ae : rs Ce be

o,-% Exaimit 9 To Qomptaint- gs

t, _\ Table3B b . e

Birmingham and Columbue

i ae, _ (Birmingham Division). ‘

: ‘Read Down ©. *° 7° tte iPS Read Up |

15 11 Miles Central Time. 16 12

% A.M. P.M. aha? he lees (Ae oo alle: TB,

B46. Ac Pe ee 4 00 * .0 Ev Birmirgham..:...... Ala. Ar 110 30 *7>30.-

a 730 410°°'22 N. Birmingham... .. “a 10 15 ¢ 18°

[748 £426 83 - Coalburg.’......2"". “- £1002 16 49

$804 £440 13.2.” Byookkide.../>...... Oriol A aE 8 8

(810. f445 14.7 -Jefferapn...... 1.1. “ (944 f6 31

f§ 25°. 457. 20.2 Littleton. ee ae oe ae

f$ 40." (5 12 , 26.4.°, Burnwdll...3.0..0) =. oe {9.2 {5 AT

} 9 03 5 32 - 34.0 Cordova. 0.53. 05.5. d 903 §.5'32

(915. £5 40° 38.5 America Jct “ [S55 5-20

" -930 545° 40.6 POU i. ee i as se 8 50 5 05

{950 f6 04 47.3 Oakmian\....... ee {8 24. {4°44

f10 10 = {6:17 53.5 Corona. .\. . ..-.. aw ke ft f§ 134,30

f10 38 {6.40 63.9 ORES, Bree Nie ore ‘538 {4.05

- £1050 ~ {6 50 69.1 Bankston \.........5.. 4 {7 45 . {2.42

1116 «22708 ~. 79.7 WRU. \ 5 evecare Oy 725 3-20

fll 35 fZ 23 88.6 . Covi... .). es. 55 7 14 . {3.09

fll 57 739. 93.0 Kennedy... a 2S A eae

é (1210 {7 50, 98.9. Millport...\.... 1.1). “| 4.16 50 2 34

{12 20° £7 59; 103.0. Fernbank..\.... 6... «:' {6 42° {2 25

“fl2 43 8 17 ° 113.1 . Steens.... nee {623 .f2 04

° “115 8 45 - 122.1 Ar Columbus: |)... Predwee oo hl

PM. 3 POM. . Fol SAE : mon reM

Republic, Bivens, Cardiff, ‘Lynn Crossing, Bibby, Bryan, Doliska, .Red Star,.

Barney, Big Ridge; Gayosa, Dixie 8 ring, Marietia, Alta, Patton, Rossland Cit Vv.

Stough, Belk and Melbourne are stops for Nos, 11; 12, 15 and 16. :

f--Flag stop. | *--Mixedt-ains. =. es

boy

°*s ee +; a ws Mes |

fol. 44) nie ue ke

cise =e 7 . Exwere 10 TO “CompLaint

2 | ‘Alabama Publie Service Commission '

“49 ae ; i J pets ey ty : ish err

.* . oe AN yee ‘ a 4 Dockei Noi. z mat : : a4 ; ’ ee he 7 .

: ge Aas Linde 4 ay _ Witness: George V. Bayle 5 ‘e . ce a c

hie i Reereoe ee 2 Exhibit No. RI aS .

%e cae atid of Bctoe Vehicle Hlegistrations i in: vthe Csiasition of : Ribs Ww iter:

Fayette anid, amar. and: State.of Alabama for ‘the License Years 1939 and 1948

‘o

3 Dae. Jefferson County : oe Be

Bae Os Moet a abuts ect - Pass. Autos. Talia’: hi as wager’

| UEC mms peT a <a 15,706 - 669

IBD rset | SERFS BR. 169

. + _Inerease® . os SEN an Ie REE a eh , a 0” Anis: | Saree

2 ame 8H Seep se ee a mete ge tye i 2B A%. 92.8%. 205.8% |.

“Walker County »

eas <2 Pagel County

Be ~ ‘e a cee oe tee -. Pass. —. . ! Truvks- SS fenis Eos

fe LamarCounty - Prvrnce et

aie yk ae RN Seay eae . Pam. Autos, etts Trucks’. - Buses:

EY weur epi dae ikd ovat SMe! |, Saker atts: vem

He een ene ren, ‘ Whe ‘S27.

rae yore _— “nes 7 teak $560 Ue we ies 7, res 28. 8% 3 82.5%

State of Alabama’. a fs aie : ie | |

er eee aera. Atitos. _\ Trucks: * , Buses

SS ee eee a. PY di _ 124,981 2,101 |

BOB re oe es Gy tbee oes fee ome, _ 250. nat gk eg RE

~—Tnerease 70 nee mat Bier Car ¢ eo.

Percant ...: ee ev eewie ve 4's ; nf 4%" tie eee BIB

“\ ss —

atte . A

F -

‘

_ ‘

s 4 re

. -

& de

-® a,

Authority: Department of Revenue; State oft ‘Alabama, Méntgomery, Alabama Qe

fol. 46), asic ae 3

eR ES, Exmerr 110 Compiaint

Alabiama Public Service*Commission

Docket No. ..2.6..%. :

: Witness: George V. Bayliss :

aN | Exhibit No. .....). ee rete ek

Ratio of Persons ‘Eighteen Years .of -Age and. Over Per Registered Autémobile

'» in the State of Alabama, by Five-year Periods, 1910-1945, Inelusive :

Authority: Highway Statisti¢s, Surnmary to 1945, Public Roads Administration,

Pte ies U.S. Department of Commerce, Washington, D. C. . - he

a ST Seated of Alébame SEE ha ene acs |

Bee Mees thd ic tay eo) Ratio of Pérsons

Foe ie - ‘3 Meg £ Pe 18 Yrs. of Age and Over — yi

‘Year ° AS Gr gems ab Laces ee enya ‘Registered Automobile ae .

1910...... te ae eer BT eRe MnT Vie oer : + 663.5-. 6°: ake e

MEN ere AY PEER NS PCE NOE

SMM i Ns thy 7 ease sc elde pigioc ts WES LAT EET eee 20.8 . ae

1995.50: skein Set PME OO . $5 20:

np REET EEE PR gp ON nee Reg ae aE 6.4°../

a erat gor He al JP rag ee oe Se Re IR Sera 7.9

OND er ce Tid Fock ve lente kane re: 6.4 - ysis

OUR nck Stiveusacetih eetcen 4, re 6.0 |:

[fol. 47] Is rue Unirep States District: Court -

° 4 ee

ae ae abe. are

eee [Title omitted] - rine

beer Uitte Ss :

You are hereby summoned ‘and required: to-servé upon :

J..T. Stokely, plaintiff’s attorney, whose address 25 eee

Brown Marx. Building, Birmingham, Alabama, an answer

‘to the complaint which is herewith served upon you, within © ‘

~ twenty (20) days after service of this summoris upon you,

. exclusive of the day ‘of service. If you fail to, do so, judg-

ment by default will be taken against’ you for the relief

demanded in the complaint. nae Te :

Dated Dee.’ 61949; bi... LOD gs ee

Khe O, D. Street, Jr, Clerk of the Court... (Seal)

» {fol. 48] Reveived_this writ at -Monizomery, Alabama. on. Be

Decembér 6, 1949, Executed by serving eopiés thereof with -. +“. °

complaints attached on the following: hog ogek Bir UL es |

A. A> Carmichael, Attorney: General of. the .State. of —

“Alabama at 5:05 -P. M. StateJudicial Building; Montgom- ‘- -

ery, Alabama, December 6, 1949. Pes oe + Beet”

Wee 8k Os Set ar -ap oe oe ewe eS

“Alabama Public Service Commission = leiehies: copies

with. Gordon Persons, its president at 523 Dexter Ave.,

Montgomery, AWibama: at 8:00 A, M., December 7; 1949.

Gordon Persons, Alabama Public Rarvies Commissioner

- at 523 Dexter Av-. , Montgomery, Alabama at 8:00 A. M.,

~ December 7, 1949. ,

Jinimy Hitehcock, Associate Conuniasionér by’. leaving :

’ copies with Gordon Persqns, Alabama. Public Service Com-

| missioner at 523 Dexter Ave. Montgomery, sania at :

8:00 A, M. December ‘f 1949. - | .

Cz. ce (Jack) Owen, Aadocisite Commissioneh by eiving

i copies with Gordon Persons, Alabama. Public Service Com-.

-- missioner at, 523 Dexter Aves. Montgomery, Alabama. at

8:00 AL M. December 7, CS aN ei Reto aa ‘

Benjamin, F.. Ellis, Unitea States HEP IS Middle ey

‘District ‘of Alabama, by Jack S. Johnson, ‘Deputy.

‘Fees $10. 00. : a

_ Returned, ond Filed Dee. 8, 1949, oO. D. Street Jr, ‘Clerk.

“¢@

s ° F

Cay 2

'. [fol. 49} ° Ts U NITED Stats Districr Cour

: utopia “ = | oe | [Title omitted] ”

sos ‘Teronany Restearstnc Oxper—Filed. December 6, 1949.

‘This cause came on fo be heard on the’ verified complaint

operation ‘of. said trains, Nos.

No. 8”? ‘thereto the: plaintiff will “be liable to the severe

-"penalities ‘provided by Title 48 of. the Alabama Code,

herein, and it appearing to the court that defendants are .

' About to commit the acts hereinafter referred to.and.that > -

'. they will do so unless restrained by order, of this court, and. -

that immediate and irreparable injury, loss and damage

will result to’ plaintiff. before notice ean be served and a’

hearing: had on plaintiff’s application for a temporary .

restraining’ order, in'that if plajntiff fails to restore. the .

4 and 16, as required by Bees

~ said order of the defendant commission, dated December

5, 1949, described | in the complaint, and made ‘Exhibit

rege VEL res

particularly Sections 110, 399, 400 and ‘405 thereof, which A

., involve penalties or fines Tanging from $500 to $2000 per

~., day against plaintiff, for each day said trains Nos. 11 and 16 ©

° ; ; ve ‘ . si-~< Zs - ae 1 os A.

are not operated. Each of plaintiff’s officers, agents and.

employees concerned will also be subject to arrest and fines —

' -up to $1000 per. day. ' If plaintiff restores the operation

of said trains Nos. 11 and.16 as required by said order, it

will be subject to an operating loss of approximately $300

per, day. °: Suck, loss. would be irreparable as plaintiff .

would have no measis of recovery. The liability: for said

penalties and fines, if the operation of said trains are not

~~ restored, would likewise be irreparable, because when paid _

they -would be impossible of recovery, |. .

It Is Ordered, that defendants, Alabama Public Service

Commission, Gordon Persons, its President, and Jimmy

‘Hitchcock and.C. C. (Jack) Owen, Associate Commis-

-sivners; and A. A, Carmichael, Attorney General. of the

- [fol, 50], State of Alabama, their agents, servants, em-

ployees and attorneys and all persons in active concerteand :

. _ participation with them be, and they are hereby restrained

from pursuing or invoking ‘any of the remedies provided in

Title 48 of the 1940 Code of Alabama, particularly Sections |

110, 399, 400-and 405, or otherwise, for the purpose of coni-

_ pelling the plaintiff, or its officials to restore and Operate its,

said trains, Nos. 11 and 16, between Birminghani Alabama:

y - $ r ato ’

. and the Mississippi State Line, or as punishment for their

failure to restore and operaté said trains; provided that

plaintiff first gives bond in-the sum of $5000.00, for the

payment of such costs and damages as way be incurred or

' - suffered by any party who is found to/have been wrongfully ~

restrained, such bond to be approved. by the Court, or by.

the Clerk of the Court, Nothing. in‘this.order is intended,

or shall beecénstrued as prohibiting or interferring in any

way with the hearing on plaintiff’s original application of.

September 13, 1949, for authority.to discontinue the epera- -

tion of said trains Nos.-11 and 16 and on plaintiff’s supple-

mental application of: November 1@ 1949 for authority to

keep said trains out of service set for December 8, 1945 -

at Fayette, Alabama as shown by paragraph 7 -of the.com-

plaint, or with.a decision and order on. said application

after such hearings. - it see ety ox Mish

It Is’ Further Ordered, that this order expire within *-

ten (10) days after entry unless. within such time the order

_ for goed cause shown is extended for a like period or unless 2

the defendant consents that it may be extended for atonger ~

Period, °°: |: heap oe

——~ b-

oF. i,

It Is Further Ordered, that the plaintiff ’s application

for an interlocutory injunction be set down for hearing on

the 15th day of December, 1949 at 10 O’clock A. M. Decem- -

ber 15, 1949, at U. S. Court Room, Montgomery, Alabama.

This 6th day of December, 1949, ‘one‘o’clock P. M. #

C. 'B. Kennamer, Judge, U. S.. District Court.

[ File éndorsement omitted. }

-[fol. 51] Received this writ at Montgomery, Ainbgton on

December 6, 1949. Executed by serving copies thereof on

the following : :

AL A: Carmichael, Attorney r Gemeral of the State of Ale

bama, State Judicial Building, . Montgomery, Alabama, at

5:05 P. M. December 6, 1949, ae

Alabama Public Service Commission by leaving a copy

thereof with Gordon Persons, its President at 523 Dexter

Ave., Montgomery, at 8:00 A. M, December 7, 1949.

Gordon Persons, Alabama Publie Service Commissioner

at 523 Dexter Ave. ‘ed ‘Montgomery, Alabama at 8: 00 A. M.

_- December 7, 1949.

Jimmy Hitchcock, Associate. lee by leaving ee

a copy thereof with Gordon Persons; Alabama Public Serv-

ce Commissioner. at 523 Dexter Ave., Montgomery, Ala- we

babi at 8:00 A. M.. December 7, 1949. is .

2. &. Cy. (Jack) Owen, Associate Commissioner. by leaving, :

a copy thereof with Gordon Persons, Alabama Public Serv-

' ice Commissioner ‘at 523 Dexter. ‘Ave.; Montgomery, | Ala-_

s bama at 8:00 A. M., December 7, 1949.

y Clerk.

Benjamin F. Ellis, United States Marshal, Middle :

- District of Alabama, ‘by Jack S. Johnson, Deputy. :

Fees $10.00.

Returned and Filed December 8, 1949. O. D. Street, de. 2

”

Fe [fol 52], In THE Unrrep States Distr Court

_ [Title omitted].

Desi NATION OF, Tikee-JuncE Court—Filed D ember 13,

, 1949 - :

The Honorable C. B. Kerfhamer, United States strict

Judge for the Middle District of Alabama, to whom an ap-

‘ ; Ae wigs fe a 43

plication for injunction and other relief has been presented —

In the above styled and numbered’ cause, having notified —

ine'that the action is one required by act of Congress ta be

heard and determined by a district.court of three judges;

I hereby designate the Honorable Leon, McCord, United

States Circuit Judge, and the Honorable John MeDuftie, °°

ace for the Southern District of

Alabama, to serve with Judge Kennamer as members of, -

United States District

and with him to constitute, the said court to hear.and deter-

mine the action. - eile gE Ae eke nc eee

Witness my harid this 9th day of Deceniber, 1949...

J . C. Hutcheson, Jr., Chief Judge, Fifth Cireuit.

_ (Injunctions—Three Judge Courts—Designation, 28 °.

» USCA, Sec. 2284) -

. eo

——

« [fol 53] Iv rue Unrrep Srares District Courr

ae [Title omitted] os :

Mortow to Dismiss—Filed December 14, 1949

The defendants move the Court as follows: ~~

"1. To dismiss the action because the complaint fails ‘to

state a claim against the defendants upon which relief can

_ be granted. ees ene 28 eee ’ eae

2. To dismiss the action because it affirmatively: appears’

that the plaintiff has not exhausted its administrative reme-

ches before the Alabama Public Service Commission, ..

3. To dismiss the action because the Court. judicially

is constitutional and valid:

4, \ To dismiss the action because the Court Juditially

dD. TA disthiss the action because it affirmatively appears

doned the operation of its tfains Nos. 11 and 16 between

_ knows ‘that Title 48, Sec.. 35 of the Code of Alabama.1940_

‘knows that. Title 48, Section ‘106 of the Code of Alabama

1940 is constitutional and valid. | :

that thé plaintiff, Southern Railway. Company, has aban- .

Birmingham, Alabama and the Mississjppi-Alabama’ state -

line en-route to‘and from Columbrs. Mississippi without ob?

a ras Nae ae oes

7) Y - 4 ;

| Are

° : 3

44 a 2° :

: taining. from the Aleberse Public Service Commission a.

‘permit allowing such abandonment in violation of Sections _.

35 and 106 of Title 48 of the Code of Alabama, 1940.

[fol. 54] 6. To dismiss the action because it i Aomabieuis 3

appears that the plaintiff’s failure or ‘refusal to restore. the”

- ‘operation of.its said two trains between Birmingham, | Ala-

bama and the Alabama-Mississippi state line is in violation -

- Sections 35 and 106 of Title 48. of the Code of Alabama

ee | 1940. s \

. To ‘diniotin the action Hecause it aiirinatively appears

that the plaintiff’s failure or refusal to restore, the opera-

tion of its said two trains hetween Birmingham, Alabama

and the Alabama-Mississippi state line is in violation of.a -

lawful order of the Alebana Public Service Commission.

‘»

.» 8 To dismiss tlie action because it affirmatively appears

that the plaintiff is knowingly or willfully, violating a law-

ful order of the Alabama Public. Service Commission and:

~ that each day’s continued violation of said Commission’s

* Lerder by the plaintiff constitutes a separate offense or mis-

, demeanor i in violation of Section 399 of Title 48 of the Code

“of Alabama of 1940. — |

| 9, To dismiss ‘the ‘lion because it affirmativ ely appears

that the only authority under which the plaintiff suspénded

thes operation of said two trains on October 25, 1949 was

Regs “nets ice order No. 843 of the Interstate Commer ce Cammis-° |

sion; that the effective périod. of said Service Order No.

: 843°was terminated by Order No: 843A of the Interstate

Commerce Commission effective as of. 11:59 P.M. November

20, 1949; that priov-to the termination of the effective pe-

oa of the aforesaid service Order No. 843 of the Inter- |

state Commerce Commission, the Alabama Public Service -

Commission had notified the plaintiff Southern Railway

_. Company, along with every other railroad company in the

State of Alabama, that each,and every train which might

have been removed under the, authority of said Service

Order No. 843 should be restored to service within twenty-

four (24) hours after said order might be terminated; that

xilso prior to the termination of the effective period of the.

aforesaid Service Order No. 843.of the Interstate Commerce

Commission, the Alabama Public Service. Commission iad

on November’ 16, 1948, ordered a public hearing of the

‘gy

Pon eee

a ©

Bir mingham, Alabama:

NE EF RS 7 ae ee ee a NERS PEE eee ae OSS Oe CESS Te ey Ces

| fol. 55] criataal petition of Southern Railway Company

for authority to discontinue its said two passenger trains

. and.of its supplemental petition for authority to not restore

the operation of said two trains, and notice of said hearing

. had been issued to Southern Railw ay Company and to all .

‘interested parties, said: petitions being set Yor hearing. in

Fayette, Alabama, at the Fayette County Court ‘House,

. ei, ‘commencing at 9:00 A.M. on Thursday, December 8, 1949;

that notwithstanding: the aforesaid facts, the’ plamtiff has

continuously since the termination of the effective period

of said Service Order No. 843, failed and refused. without ©

- any lawful authority to restore the oneration of its said :

two trains between Birmingham, Alabama, ae. the Ala-

__bama-Mississippi state line.

10. To dismiss the action becanse it aiicasativals appears

that the plaintiff and its officers, agents and employees, or

any of them cannot be subjected to any. of the penalties or

4 fines under Title 48, Sections 110, 399, 400, or 405 in any

manner except by a trial before a court of competent juris-

diction and observi ing due process of law. ,

AL A. Carmichael, Attorney.General of Alabama:

Richard T. Rives, Special Counsel. Attorneys for

. Defendants. | 3

To Honorable ‘J.T. Stokely Sate ee sueeeurs

1038 Brown-Marx Bldg. oe Bee re

s ‘ 5 = : ;

Please take notice that the dudersianéd will ‘bring the

above motion on for hearing before the Court at the United

States Court Room in the City of Montgomery, Alabama.

on the 9th day of January, 1950 at 10:00 A.M. on 1 that date

“or as soon thereafter as counsel can be heard.

A. A: Carmichael, Richard ie Rives, Attorneys for

_ Defendants.

“(File endorsement omitted. 7

cage a ee oWes cP es

[fol. 06] I~ THE UNITED STATES Disraicr Courr

[ Title omitted ]

A MENDMENT TO CompLatxt—Filed January 12 , 1950

.Comes Southern Railway Company, plaintiff i in this cause -

and by leave of Court. first had and obtained amends its

complaint filed herein .on Deceniber 6, 1949 by adding thereto

\ '* the following numbered paragraphs and prayer:

19. The hesring on the’ plaintiff’ s said ériginal petition

for authority to discontinue the operation of said two pas-.

senger trains Nos, 11 and 16 between Birmingham, Alabama _

~and Columbus, Mississippi, and on‘ its said: supplemental |

petition for authority to keep said trains out of service after

they had been discontinued under said service order 843,

- issued by Division 3 of the Interstate Commerce Commission

_ on October 71, 1949, was set for December 8, 1949 at Fayette,

Alabama, stated | in paragraphs 7, 9 and 10 of this complaint.

The ‘hearing on said original petition-and said supplemental

“petition was duly held by the defendant Alabama Public

Service Commission on that date and after receiving the

evidence offered by the plaintiff petitioner in support of the

petiiions and by protestants in opposition to the petitions

the catise. was submitted and taken under advisement by ..

_ defendant Commission for a report and order. -Sucli report id

‘y ~. [fol..57] and or ‘der denying said petitions was entered by the

defendant Commission on the 9th day of January, 1950:

20. Plaintiff avers that said order of the defendant Com- :

mission of January 9, 1950 denying plaintiff’s said two

petitions takes the plaintiff’ s property for public use with-

out just compensation, denies to plaintiff -due process of

law, denies to plaintiff the equal protection, ofthe law, and ‘-

unduly burdens interstate commerce, al} in violation of the

Constitution of the State of Alabama and of the Fifth and

‘Fourteenth Amendments to and the Commerce Clause of the

Constitution of the United-States and should be held unlaw- |

ful, null and void and of no effect. is

Wherefore, Plaintiff prays sipplemental to the prayer

- of its or iginal complaint herein that an interlocutory injune-

tion pending: the final disposition of ‘this cause be issued

enjoining defendants, their agents; servants, employees and —

attorney s, and all perSons in active concert and participa.

LEAS, EO PRES 6 Uy

—e

ee : e EO | 47

tion with them jointly and wien from proceeding against

the plaintiff, its officers, agents or employees to enforce any

penalties or other remedies provided by-the laws of the State

» of Alabama by reason. of plaintiff’s or their failure or the

failure of any of them to restore the operation of said two |

‘_passenger trains Nos. 11 and 16 between Birmingham, Ala-

bama and the Mississippi State Line as required by said

order of defendant Alabama Public Service Commission of :

December 5, 1949 and as is inherent in said order of Jan- —

[fol. 58] uary 9, 1950, and that.on the final hearing of this

- cause that. each’ of said orders be held unlawful, null and

void and of, no effect, and that such interlocutor y injunction

be made permanent. —

- Mation ‘Rushton, 1203. Bell Building, Mongomery, ae

~ Alabama, Rushton, | Stakely & Johnston, (Mont. bs

goniery, Alabama). (S.) J. T. Stokely, 1038 Brown- |

Marx Bldg., Birmingham, Alabama, Beniners, Burr,

. Stokely & MeKamy, (Birmingham, Alabania).~ Of

Counsel. (S.) Charles Clark, Southern Railway

- Bldg., Washington, D. C., Attorneys for Plaintiff,

Southern Railway Company.

- Filed by leave of Court Jan. 12, 1950. O. D. Street, Jr,

Clerk.

[fol. 59) Ix Unirep. SraTes Distatcr Covrr

G cial omitted)

AMENDMENT TO Morioy 1 TO Duntne— ited January 12, 1950

- The defendants refile to the complaint as amended iad mo- -—

- tion to dismiss and each ground thereof heretofore filed to

-the original complaint, and in addition thereto, defendants

-. move the Court as follows :

11. To dismiss the action because its seeks am injunction:

to stay proceedings in a State Court in a eause not ex-

pressly authorized by an Act of Congress and not necessary

in aid to the jurisdiction of this Honorable Court, or to pro--

tect or effectuate its. judgments, . nes

12. 'To dismiss the action because a € oat of Equity should

oa restrain ‘eriminal prosecutions: in a state court. ,

13. To dismiss the action because there’ is. no > equity in -

- .. the complaint.

A. A. Carmichael, dienes aca of: the State of

Alabama. Richard T. Rives, Special Counsel, ‘At.

‘tornéys’ for Defendants.

~ Filed in open Court after amendment was allowed by —

Court, Jan. 12, 1950. O. D- Sarees, Jr., Clerk. :

[fol. 60] . In THE Untrep States District Court

(Title omitted}

‘Moves TO ‘Stay Action—Filed Jamiary 12, 1950!

Without waiv ing the motion ‘to dismiss -this action as

amended or any ground thereof, the defendants further show »

unto the Court that this Honorable Court is asked in the

complaint to decide an issue of the constitutionality of Title

48, Section 35 and Section 106 of the Code of Alabama 1940 |.

‘ upon the ground that said statutes are unconstitutional and

void a> an unlawful delegation of legislative power, and i is

asked to decide other questions of law and of fact the proper

decision of which should: be made in the State Courts of

’ Alatania upon_the constitutionality under the state consti-

tution of the statutes of Alabama and upon the construction

of such statutes would be final; binding and conclusive - upon

all other courts, and that this Honorable Court should not

undertake.a decision on such questions of law or of fact until

[fol. 61] the same ean be decided in State courts; that the

plaintiff’s two. passenger trains referred to in the complaint

are not now in operation and that the plaintiff. is suffering

no damage, irreparable or otherwise, at this time: that the’

Sc plaintiff has a right to appeal from the orders of the Com-

mission complained of in the complaint to the Cireutt Court |

of Montgomery County, Alabama, -in Equity and thence to’.

the Supreme Court of Alabama, and that the said Cireuit

Court, or the J udge ther2ef, upon hearing and, notice, after.

consideration of the testimony taken before the Commis-

sion, may direct that. such appeal shall stay, or supersede

the 6rder or action appealed from. .

1 SnD WA Dia SpE UM a

HRD BRE, GS

‘ . sO Pie wise | 49

Ww herefore, the ‘dofendante move this Honorable Court to

stay any further actions, orders or decrees in this complaint

pending the determination in the Courts’ of the State of .

Alabama of the appeals which may be tfiken by the plaintiff

— [fol. 62]. Is Us | NITED Seltes. Disrnicr Court

‘ fe:

from the orders or decrees of. the Alabama Publi¢e Seryice

Commission complained of in the complaint. ’

he Be Carmichael, Attorney. ‘General of the State’ of

Alabama. Richard T: Rives, Special Counsel. At-

torneys for Defendants. se Uh:

[ File endorsement omitted. ] ,

Me [Title omitted) we

or Awswen TO Comriarst—Filed: -January 12 , 1950

: |

Come the defendants, jointly, ‘severally and separately,

and without waiving the motion to dismiss. the complaint

or any ground of ‘said motion, do expressly insist thereon,

nevertheless for answer to the complaint plead and say:

1. They admit the allegations of. “paragraph one of the

complaint.

2. They admit the alley: ations of Seracray two of the

“complaint. pes a |

teenth Amendment to the Constitution of the U nited States.

106 of the Code of Alabama of 1940, plaintiff and -other -

3. They admit: that this suit is of a civil nature between :

citizens | of different states and that the matter in contro-|

versy exceeds, exclusive of interest: and costs, the sum of

$e 3000, 00. ‘They deny that this suit arises “utider: the Four-

“4. They admit. that by Title 4 48, Section 35 and Section

common carriers by railroad are required to file an appli-

cation with the Alabama Publie Service Commission for —

a permit to abandon all or any portion of its service to the

public or the operation of any ‘of its ‘lines, property or plant

which would affect the service it-is rendering to the publie,.

with certain exceptions. not here: pertinent, and is further

ing such abandonment before it ‘can, lawfully abandon

4 .

peer oh

operation of passenger trains or any other service it is

rendering to the public on its lines of railroad in. Alabama.

_' They deny that no standards for the guidance of the Com-|

Mission are prescribed, and they aver that standards’ of

present. and future public convenience. and” fiecessity are

{ fol. 63] preser ibed, and that such standards areas definite

as-are practicable and as the circumstances require or per-

mit. They deny that the said statutes, or either of them,

are unconstitutional and void as an unlaw ful delegation of

legislative power or upon any other ground, ‘They admit

that the plaintiff on, to-wit, the 13th day. of September,

1948, filed with the Aiabana Public Service. Commission

an. application for. authority to discontinue the operation

of two passenger trains in so far as the same are operated’ -

in Alabama as allegéd in Paragr apl: four of the eémplaint..

They deny the averments of fact eontained in the said

application and. repeated therefrom in “paragraph four of

the complaint, | xe igen | f

5. They admit that, cerpoe tine to act under the authority

of Service Order No. 843 of the Interstate Commerce Com- _

mission, the plaintiff, effective at 11:59 P. M., October 25,

1949, discontinued: the operation of its, said two’ passenger

trains, Nos. 11 and 16 between. Birmingham, Alabama. and

“Columbus, Mississippi, and at the same time,’ purporting

to a¢t under the same: order, discontinued the operation

‘of its other trains as alleged_in paragraph five of.the ¢

plaint. They aver that the effective period of said S ‘vice |

_ Order No. 843 was terminated -by’ Order No. 843/A of the

~ Interstate Commerce Commission effeetive ‘as of 11 39

~P.M., November 20, 1949; th: at prior*to such termination '

of the effective period ‘of the aforésaid Service Order No. |

843 of the Interstate Commerce Commission, the Alabama

-Publie Servicd Commission had notified the plaintiff, along |

with every other railroad company operating in the State:

of Alabama, that all trains removed: under the authority -

of said Service Order No. 843 should be restored to service --

within twenty-four hours after said Order might be tér-

minated, -They further aver that also prior.to such ter-

mination of the effective period of the aforesaid Service

Order No. 843 of the Interstate-‘Commerce Commission and:

-on, te-wit, the 16th day of November, 1949, the Alabama °

Publie Ser rvice Commission had ordered a public hearing

of the original application of plaintiff for authority. to

. : .

‘sippi State line.

Riscontinue its said two. passenger trains and of its supple-

nental application ‘for authority to not restore the oper-

ation of said two passenger traips, and notice of. said

[fol. 64] hearing had been: issued to the plaintiff and to

all interested payties, said applications béing set for. hear-

ing at the’ Fayette County Court House in Fayette, Ala”

bama, commencing at 9400 A. M. on*Phur sday, Deeember 8

period ‘of said vice Order No. 843, failed: and refused,

without any: lawful authority, and still fails and refuses

to restore the operation. of its said two passenger trains

between Birmingham, Alabama, and the Alabama- Missis--

% 3 _ «FF

_6:-They.adinit thaf’on the 10th age of N lovensber. 1949, ‘the

£ 1949; that, notwithstanding the aforesaid facts, the. plaintiff” —

has continuously, since the termination of the effective >.

plaintiff filed with the Alabatna Public Service Commission |

its supplementary application for autlority to not restore -

the opération of its said two passenger trains, but they

deny the averments of fact contained in said supplementary

5. ise and repeated i in paragraph six of the complais it.

. They admit that, due to the crowded condition of the

docket of the Alabama Publie Service’ Commission, the

application filed by the plaintiff un Septembef 12, 1 948, was.

not promptly lieard, but they deny that the plaintiff has

set for heari ing; to the contrary they aver that the plaintiff.

requested anc urged any special or ‘preferential hearing

- or has made any vepeatéd offers to have said application.

made no such offer until on. about October 26, 1949, when’ e

' “by Jetter dated October 24;° 1949, the plaintiff's pounael

requested the Commission’ to set the same for hearing at °

the earliest consistent date after November 10, 1949. The:

plaintiff’s supplemental application dated Noveniber 9,

_ 1949, was filed on November 14, 1949. .On November 16, ee

1949, bys due notice to the plaintiff and other interested:

parties, the application as amendeéd was.-set for hearing in

4 > a ¢ », 949 as ; ae

Fayette, Alabama on December 8, 1949 » ang Ww as’ _anaae §

heard at said: timeyand place.

8. They admit the avermnents | in | paragr aph eight of the

complaint. | ;

9, They admit the avernierits of paragraph nine of the’.

complaint, except that they aver that the Presidenf of the

3 ‘ om Hard utes 4

, 3

“4

62 9 , ee he | ee ace

; Alabama Publie- ‘Berviee ‘Commission’ i in ‘a telephone eon-

” versation with plaintiff ’s attorney ‘referred to in said para-

graph. insisted that the plaintiff’ S failune or refusal: to

“restore the operation of its.said two passenger trains was.

without lawful authority and that the operation of said two

* [fol. 65] passenger trains should be restored. a:

> FO. They admit, the averments of paragraph ten of the.

complaint. j r

11. They admit the averments of paragraph eleven. of |

. the complaint. / | fees \

4rd They = “d ny ‘the sugcmvenits of paragraph 12 of the |.

‘e@omplaint anfl to the contrary. aver that, pursuant to the’ .

authority referred to in paragraph eleven of the complaint,

the plaintiff and itscounsel appeared at the time and place

** ordered and upon dué hearing agcording to Taw, the faets °

set. forth in the order of the Alabama Public Service: Com-

‘mission of date December 5, 1949, a copy. of whith is

attached‘to and. made a part of the complaint and identified

+. therein as Exhibit No. 8, were established without. “a |

13. They deny the. avernionis” of paragraph thirteen

the complaint atid aver. that, the facts are truly found and

reported in the report and order: of the Commission dated .

the 9th day of January 1950, denying the plaintiff’s s appli-

‘ation for author ity-to discontinue the operation of its said .

two passenger trains Nos, 11, and. 16, between Birmingham,

Alabama and Columbus, Mississippi, in so far as the same

are ‘operated | in Alabama, - a cops of which said. Order of

the’Commission is hereto attached. and made % a part t hereof

and identified as Exhibit A.’?! ° 5

ey They | admit’ that. the pl: inti iff filed worlivaticke for

* authority to disvontinue the operation of ‘other trains was

‘averred in paragraph fourteen of the complaint.” They

-* deny the .averments of fact contained in said applications

and repeated in said paragraph, afid they deny that the

,“Commission ‘unduly: delayed orders upon said applic: itions,

_and they ‘deny that the plaintiff has béen deprived of its

‘property without due process 6f law or has been denied:

the equal protec tion of thé Taw,or tht any-of its other con-

stitutional rights have been violated. | ‘They deny other

averments of fact comained ii paragraph fourteen of ‘the ie

'* complaint. ; ee

6-6 # es pat: sep

\ .

Stions

15. They deny the averments of fact and the que

of law and expression of opinion contained in paragraph

fifteen of the complaint.

[fol. 66] 16. They deny ‘the facts. averred in paragraph

sixteen-of the complaint.. They deny that by the, mere ° -

failure to restore the operation ofzits said two passenger

trains the plaintiff and its officers, agents and eniplovees

will ineur liability for penalties. and fines. as averred in

said paragraph ‘sixtéen of the complaint, and aver to the

contrary that the |plaintiff’s. attention was directed by the

. Alabama Publie Service Commission, in-its order dated

‘December 5, 1949, in a case appearing under Docket Number

12,225 on fhe Docket of said. Commission, to- Section 399

of Title 48 of the 1940. Code of Alabama, which provides

in part that any utility doing business in this State which -

sixteen of this answer. .

‘has a full, adequate and coniplete reme

Commission shall be guilty, of: a misdemeanor ‘and upon

conviction shall be punished by a finé of not more than

_ knowingly and willfully violates any lawful order -of said |

$1000.00 for such-offense, and that in the ease of the vio- .

lation of said Commission’s order, each day's violation

shall be admitted to be a separate offense. | : 3 }

‘They aver that the law does so provide, and that the

plaintiff. would ineur liability for such fine only upon. con-

vietion by a Court ef competent jurisdiction ofa criminal

offense of having knowingly or willfully violated a-lawful

order of the said Commission. > |

17. They deny the averments of paragraph seventeen of.

the complaint and deny that they have made any threats in

any way against the plaintiff except simply. to direct. the.

attention of the plaintiff. to Section 399-of Title 48 of he

1940 Code of Alabama in the said order of-thé said Com-

18. They deny the averments of paragraph eighteen of

the complaint and aver to the eentrary/ that the plaintit?

ly for any wrongs’

done or alleged to have been done by the defendants or

any of, them as provided by the laws of the State of Ala-

‘bama, ineluding:the right to appeal front any final action

or order of the Commission to the Cyreuit Court of Mont.

gomery County, Alabama sitting in Nquity, and thenee to

the Supreme Court of Alabama, and including farther the

‘mission of date December 5, 1949, as set forth in paragraph,

5. + SS prejudice sof. the.-plaintiff substant

ik be a inission on thy 9th- day of. January, 1950, has been hereto

2-4 * 80.."The defdidants, Jeuy the. avermient’s of ee tp

‘A MP ie Montgomery ly Alabama -

“A Bek a Hitehock, Associate’ Cotantiedionse.

St AoE ant AV a ‘tition: — ee nee

; ts “ats \ Hanae nge ger rains. N Nos. aos a3 16,-Ketween Birmingham,

vs right pee ‘proesddyel to 6 supers tde ny sueh anda or dectvie a a +

oa ae [fol, 67) of—the Commission. So appear from, and the; Dee

» 2° ‘pight to. liave such order or ‘decree: of- the Conr

sion set.

“7% aside ifthe Court-finds that the cae et ordered to the

ally in. its. application:

Of The: law, or that the order or decree was: based. upon a.

==" finding of Yaets contrary. to, the. substantial weight of the - -

evidence. 5 ees: ., ge SAA g See et

aa | | For “further. ey to. paragraph nineteen. ‘of. ‘the 7. rae

‘— amended gomplaint, the. defendants admit the. averments *e:

oft said oak: nineteen And further shaw unto the.

- Conit that ‘copy ofthe. report: and order. denying. the |

: plai ntift’s ‘applications - entered hy ° ‘the: defendant: (om-

;

. ;

° a

= 2

Coe

é:

ay «attached and made a part of Fs eherer and. marked for

Scare identification: ‘ads Exhibit’A.- gia Lait eg

Ox “3

ie “iwenty: of the ¢ complaint, : ‘A

; ae fe

[ “And now havi ing: fully answered’ the-y pabiuitier 's konipil: Lint,

“the dpfendants: pray. that’ they -may be: hence: Ahichargedt

with theit r aware casts. inewrred:, NE ant

—Beteridavite porekge ase

AD,

UFile’ endorsement Smitted. J: 2 te ae 2

4s aie oe AN

» nat 5 : ‘ ¢ —— enh ae err

\ ‘ol. 68] | a “Bane aie TO Axswen ¢ ine hea

: State of Alabama ee +

ae ee X : Alabama, Public Service. —

Se, Porson: Present 2.3 03 SO

COO. Lack) Ow en, Associate Comey oner.. 4

Tama Wiles, Secretary. eet (Ai

ef ” se

—“ ee “e

a Beit rinets Raw WAY: ‘Comrany, “a « Corporation, Petitioner ee

“Relitis an ek aiactdety: (1) Fer authority. to. disgouthina

‘Alabama, and Columbus, Mijsissigo! and (2) For anthorit y

‘to: not restore’ the operation of said two trains between

_gaid points: upon the termination. of the present suspension

> of operation thereof under. an order ofthe Interstate Com-.

= merce Commission: ‘ssued. on account of the shortage of coal. .

* a Betis De ee ‘Docket 12 oi

oreo gah Ses Sh cede aa {

ae E cron aat yleon 9, 195 : ERIC EN Saag a eae

ao _°@

ed wes _ Apphanances:

ae * Chinrles: Clatk, J. Be Stokley and av, Baitkead ‘

Petitioner: Moe ip |

Oliver E. Young; Sr., Ohiker my Noting. Jr, «, M. ‘Holder, iia | (i ey

\Roger C. Landrum, Laurie C. Battle, €. B:. Wilsen,'J,"D:.- 7. |. -

‘Daniel, Vaughn Sumier, L. S. Ackerman, Charlés WL Nolen,» ~ oe Te

_W.F. Wilson, J. ‘P.-Knight, J. ds, ‘Carraway, ltt E08, oe RS

~My. Ht. Johnston, M.S. Black; & R. Caine, Dt.A. Hutto; Mar-

on: Savage, Mr. Lelievre, William Walden, Will Crown-

oy DESEy. Mr. Myers and. Kelly Savage,. for protestants. ra

SS ee

wees Yee apa Any ame

ee | Report fnd Order of the, Codsuiission: Ve eee Mau |

“By petition filed with the,Commisston on: Sapteinberd 13, a SNe

fe! 1948, the Sonthern ‘Railway Company \ equested, for. rea- :

“sons therein stated and ‘others. be ‘liter ‘show nl, that it

che duly: authorized and permitted in ‘the manner -preseribed : -

-: by law, to discontinue The.operation of its passenger trains), = Pea

\ Nos. ‘Tt and 16 pi ielad oe fhe an een and Co- me tire

_ Iumbns,. Mississippi, insofar as the same are operated mn em ER 4

_Aljabama. — \ be | eae

_” On Ocfober 1, 1948, petitioner filed with the. Conimiasion: Ses 8

<. Certified proof of posting of notice for the réquired: ten- «day.

and discharge of. passengers on the line affected; to the effect. ~ 1 eee

_. that the said petition was being’ filed, This resulted ‘iti. -.-\-\F- 5 '

~\\ the Commission receiving. whitfe.. protests from a laree :

ee nurhher of interested citizens at Several Sect, on. the line-

of railroad in. question.. The

: Diie ta the | crowded condition &f the Coiniision? $ ‘formal ¥

docket at that.time and Whieli Poet ely more so |

[fol. 697 and in view of the pétitiover not specifieally: re.

3 questing, unusual or r preferentfal attertion this matter. Was

WES ee ae DS Cotas

ie P

not vonsidered. as. gaficiently extraordinary to require.

special or expedited handling.

' Notlimg further was received from petitioner: regarding

; this matter, until October. 26, 1949, when by letter dated ~.

October 24, 1949, petitioner’ S$ division -counsel requested -

' *he Commission to set same for hearing at the carieew con- . -

sistent date after Nofember 10,:1949, 03 °'

It appeais: that on October 21, 1949, just prior’ rns ‘the

- dale of the above request, the: Interstate Commerce Commis-

sion entered its Service Order No. 848 directing that, effec-_

“five at 41:59 p. m., ; Oetober 25, 1949, any common carrier

by watlnoga ail an coal-burning steam deamotives and.

having’? 5 or legs days supply of fuel coat for such lecomo-.

tives and not having available a’ dependable source of sup-

_ ply‘of coal, shall reduce its — burning passenger locomo-

tive miles to an amount of 25% Tess than it operated such

“passe

“locomotives on October 1, 1949. . The preamble

" expressed the opinion. that due to. the

lous—coal an emergency:

the -

of this service

insufficient production 0

existed requiring. immediate -action in w

‘. country.. By stipulation, the’ said. service .order was to.

continue in effect until f1 359 p. m., December 25; 1949, "unless

otherwise , modified; changed, suspended. or annulled by

: order of the Interstate € ‘ommerce Commission.

Pursuant. to the above service order, the: petitioner in the

instant proceeding: discontinued tts passenger trains Nos.

WA and ‘16. between Birmingham, ‘Alabama, and Columbus, .

5 Mississippi, ori October 2 , 1949. . During this ‘teriporary -

interruption of. service, nee which ‘this Commission ‘inter-

| tween Birmingham,- ‘Alakama,. a1

- when the coal shortage shi

it be duly authorézed -

; In the St

Ate proper parties, tthe petition,

hearing, that. it: not de. required to. restore,

- posed no objection purely hecanse. of the. gravity of the

~ emergency, the petitioner i in this cause amended its original -

request ‘by stipplemental. petition “dated November 9, 1949, °

e and filed. on November 14,. 1949, wherein it requested for |

the, reasons ‘therein’ stated and others to be: shown at the —

“operation

of ‘said_two interstate. passenger trains Nos, 11 and 16 be-

Columbus, Mississippi,

fave heen relieved and that,

he Commission not to restore the

oye ration of. suidtyains insofar ‘as the same are eorerers

“Of Alabama. .. tery

-Xeéordingly and by @ due notice lean Navesber 16,. # 949,

Na eae ater cet Ti

Ont

whe ap tees

s amended, .was set for - -

* 1S dom Pe Sek. =e -

ERY rte Oe PROT GERD be SoG he

BEM FIR ENN Ne dd ae pan k

Mies

[fol. 70] hearing ‘and heard, ith, Fayette, Alabama, on De-

~ cember 8, 1949.

In the nhaiatiands however, the Tatervinte Commerce Com-.

mission by Servies Order No. 843-A entered on Nov ember

14, 1949, ~vacatedand set aside its Service Order No. 843°

as of 11:59 p.'m., November 20,1949. “Regardless of this -

‘development. petitioner had not resumed the operation of

_ passenger trains Nos. 11 and 16 on December. 8, 1949, the’

date of hearing. Therefore thé issue in this’ proceeding i is

limited stric ly to the: matter, of pernianent discorfttinuance

of such service.” Further more, on January 4, 1950, the

Interstate Commerce Commissign entered its S service Order

No. 845 effective at 11 09 P.M, “January 8 ,. 1950, again di-

. reeting the railroads to-eurtai) their coal: ‘burning PYassen-

_ ger locomotive miles but in this case. the amount is by 331

per cent and to expire Mareh 8, 1950. .On Janu: ry 5, 1930

. the Commission, requested petitioner to-advise whether or.

not the trains involved i in this proceeding atid not restored

at the. expiration of Service Order 843 would be embraced

in the percentage of curtailment under tlie new or der, ' ‘Peti-

tioner has advised that it would not. % .

The operating schedule of trains Rie: AL and 16 is viel:

No. 11 leaving Birmingham at 4:00 p. m-arriving Columbus,

"Mississippi at 8:45 p.m and train No. 16 leaving ( ‘olumbus

at 6;00 a. m, arriving Birmingham at 10:30 a.m. Between =

trains Nos. 15 ‘and 12, the schedules being train No. 15 leav-

ing. Birmingham: at 7:15. adm. arriving Columbus at.

1: 15 p.m. and train No. 12 leawng € ‘olumbus “at 1:30 p.m.

‘arriving Birmingham at 7:30'p. m. Each of the four sched-—

ules above call.for 4 regular. sfons. and 34 flag stops at inter-

imedizfte ‘Statiows. The distance: het weet termini. is. 1

‘miles: “The scheduled elapsed time» of train. No. 11 is 4.

‘hours and.45 minutes, train No. 16 is 4 hotirs and 30'minutes

and mixed trains Nos. 15 ar o "12, which peti loner Propases

to retain, is 6 hours. | HES i

» From the. stantlpoint of | cony enience ‘and sckvice mixed

‘e ‘trains are considerably inferior to the trains Now. H. and.

“16: In. thesfirst place thé latter represent strictly passenger

‘train service including express, mail and baggage whereas |

a hixed train gener: Bes consists of a series of freight. cars

with one coach attathed: and which is divided. into. three

~‘sections, white; colo ed _ passenger compartments at each

yer!

i aii ag

~—— ee,

eT a ee Re oy Ree ee

. :

ce <

\ ; es ee ; ates Z . ‘ ee

end and: a. baggage ‘compartment in between, Ip: this

case\ petitioner’s traingiaster ‘testified. .that preseiltly “a

— combination mail’ baggage-txpress “car is also, used mo

|" ffol. 71]. mixed trains Nos. 15 and 12 but we presume

that jthis is. on¥y. a. temporary arrangement. Secondly, —

a mixed train performs freight service enroute by switch-

.Ing’and placing freight cars and loading and unloading

Jess carload freight thereby considerably lengthening ‘the.

‘fixed schedule and frequently: delaying the train beyond —

suth schedule. This.type of puSsenger. service is most.

obnoxious. During the month of November 1949 train No.

15 left Birmingham an average of 8 miputes late on four

. days and train No..12 arvived at Birmingham an average: .

- of 30 minutes late on twelve d4ys,-no similar date was sub- 1

mitted in regard to trains’ Nos. 11 and 16, but their sched- he

_ ules are no doubt tegu

lar, Furthermore, in this particular

caseAhe schedules afforded by the passenger trains Nos. 11

and 16 of arriving pt Penineyam, the prineipal business

area and interline comiecting point at 10:30-a. m. and depart-

ing at 4:00 p.m. aré vastly niore convenient and desirable. -

- -than the mixed trains arriVing at 7:30 p. m.and departing at

°° 7:15.%.m, . From the above it is evidentto-usthat the mixed’

train’ service which petitioner will retpin is not in any way

- comparable to that accorded by trains Nos: Tland 16...

.. Petitfoner-has submitted in evidente a detailed ,deserip-_

- tion, including photographs, of the pain of trains Nos; 11 ~

i: and 16 for the purpose bf showing the type. of equipment ~

» 6¥dinarily used on this ‘run. This evic ence deals with the —

operation of a Steam, locomotive and three gars, the latter

consisting’ of one coach foi whité passengers, another par-

-titioned coach with colored passengers using the front sée-

_tion and the-rear section tised as ‘a sinoker -for white pas-,

sengers: Tlrese cars are ef steel construction and air-con- e

difionéd except when a ‘nll-in’’-is necessary in case Bf a: '.

_ break-down §r-an/emergeneys The other is a combination,

ear with the f ront section heing used for United States:mail¢.-:

* During the month of September. 1949,,the above type of .

equipment was used on 44 trips, 41 of .which were powered.

bya mountain type locomotive and.13 by a Mikado type.

_.. Aceording to our information, those types are identified by

wheel arrangement, being 4-8-2(6000000) and 2-8.2(000- |

000) respectively, Acqfualified Witness for petitioner-testi- ne

BOE kecideahanie ds ddaaie

2. Sila k ara

~\ .

taduczoee

Se Ppt. Rey

es ao

‘ $.

fied that the mountait type locomotive is’ used extensively

on passenger trains whereas.ghe Mikado type is principally ~ , |

a freight locomotive, nevertheless, both are Obviously en-9 * |

~..[fol. 72] tirély too heavy and expensive to operate on a pas-

senger ‘train consisting of only three cars. . - eran ee

Petitioner has submitted in evidence operating result% of - :

trains. Nés: 11 and 16.for the period March 1 to September); ||

30, 1949. According to this tabulation the total revenues,

including passenger, mail, express, milk, newspapers, ete.,

were $29,971.96. The actual expenses, that is those direct]y « °

incurred by the operation of ‘the trains, arq-shown “as $50,-

112.95. This ineludes wages ‘and‘ train f uel of $37,322.10, Lees

injuries to persons of $12,785.85 and. dafhage to property

- “of $5.00. In addition the apportioned expenses are shown

as $43,161.40 which includés enginehousé expense, locomo-

tive expense, passenger train-expense and station. expense

at! Birmingham. making a total of $93,274.91. This results

~, in arr alleged loss of $63,362.95. 0 eg

.. The greatest items of these expenditures are obviously

s. caused by the qperation df the heavy: steam locomotives

and the type of coaches necessary with steam power, ,

_ The record shows that on 97, one-way trips dtring. the

‘+ above period a Diesel unit consistin of a motor car pnd

trailer was-used. While no photographs were ‘submitted

by petitioner, this is evidently a light, compact and inex- . +).

_. pensive unit to operate. * According to the record, the cost —**’

« Of repairs per niile for this unit averhges 13.7 cents per =<

, mnile, Petitioner shows the cost of’repairs to this unit for ae

the 97 one-way. trips during this. period to be $2,678.68. .

Based on 122 jniles for &ach trip, this unit operatad. 11;834

miles which at 13.7 cents per milé waqukd amount to $1,621.26,

‘ Therefore, petitioner’s apportioned cost for. repairs. te

“motor ear and trafler is evidently incorrect by more. that

$1,000.00, A: let @

’ ; : Sle AS ‘. ‘ J

During the 214 days in the above period 428 one-way trips *%

should have been-made. . Ii 97 trips were made by the Diesel ~

‘Unit, 331 vert made by the heavier steam locomotive trains:

This would mean’ a. total mileage’ of: 40,382. - The record

‘shows the.average cost per mile for repaixs to steam loco-

. motives to be 42.13 cents: per mile ‘resulting in a total eost = + -

“of $17,012.94 which is approximately thé /same. ‘amount .

shown on petitionér’s statement:. — acta, eS ae 4

As shown above the estimated per guile cost for repairs “7. -

to the Diesel Unit is 13.7 cents. If this unit hadbeen oyver- -

- items sucht

feel that as to the niatter of short line serssiedys service os

mechanies of operating a: yailroad is ‘entirely. a matter of

managerial -discretion but it is our opinion that in this -

F F ‘

A wr

ated Jurtag the entire 214 dive the cost for. repairs for the

. total of 92,216 miles would’ have -been $7,103.59 resulting:

in a Saving fof over $12: 500.00 for power uiit repairs as-

[fol. 72] stiping petitioners figure, of $2,678.68 for repairs e

to motor car and trailer to be corr ect.

In.additipn a substantial. saying - would be accoinplished

in.wages fpr the train and-engine:erews in: that: reduced

personnel

§ fuel, lubricants, ete., in the opey ation of, such

a unit could afford a.further saving.

While‘ our pow er ‘to chéck into the efficient management

of a railroad is limited to. the matter of rate making,we do

more economical and equally as effective’ means I

devised to convenieitly hand!e. such traffic and riot

hold the present volume: but _perhaps increase it.

- The

-- . case. unnecessary expense is-involved.

. that, to the covtrary a.deternination “has been made Ve the: -

In the 62nd: Annual Report of the Interstate Commeree

Commission dated November 1, 1948, said at. Page 3/

ara\y hile = not uniniadful of the’ tany éfforts hid

railroads indiv idually and to some extert. collectively: .

are making ‘to increase the: efficiency: of particular

operations,’ end’ while. appreciative of thé. fact that most

railroad> face difficulties in securing outside funds with

: which tH effect cost-reducing fixed improvements, we

are of the view: “that. mtich mor e must beslone to increase

Athe efficiency and reduce the. costs of raifroad opera-

tions. *. -*

and methods seems . also” to be required jn.some ‘in-

stan: is.” 3 as are Wi :

ws . : ‘ e

‘We. feel. that: 3 in “Vhis Gase no experimentation has’ heen

— to inerease the offiel iechey and-redace the’ costs of rail-

oad. operations leaveagne ‘thold ‘experithentati ” but

management to discoutirixe the. Service and the more ex-

| pensiveit can be made ihe. easier The result.

-A$ previously stated petitioner” submitted in evidence ”

. operating results 6f- tra iin, Nos: 11 ‘and 16 -wh&h affer all

furnish the hasis for “petitioners, case. "Two statements were -

submitted; ‘one. covering: the period Mairch 1, 1948 to Feb-

ep a Da

oe air ibaa ts | penal

ired on: 2 motorcar trailer. Also other —

Bold-exper imentation. with new devices ,

*e &.

+ Ae me wheats sore

Cs 61

_, . tuary 28) 1949 and the other March 1, 1949 to September

—2. 80, 1949. According to petitioner, during the first period

the direct expenses of operating these twe trains were -

$78,372.52 in excess of the: rev@ies and during: the ‘second '

period this: difference was $63,502.99. It is interesting to

note that the exhibits attached to the stpplemental petition.

filed on November 14, 1949 show operating results for -the-

same periods. According to these exhibits the direct ex-

fol. 74]. penses for the first period were $80,555.78 in‘ ex-

- cess of the revenues and for the second period the difference-

was $63,340.68. This shows that in submitting two. state- >

ments for the first period they differed by $2,183.26 and:

while the twd statements for the second pyfiod only differed —

by $37.73 many items of expense fluctuated. The only con: °

stant figures were the revenues,, In view of thiswe question:

if‘any confidence can be’placed in the a¢curacy of expeuses’

as shown-by the ‘statements submitted at the. hearing.

Nevertheless, if a loss exists in a minute: portion of the —

Systenr as a whole this: loss is cushioned to the extent of

about 40 per cent representing what the carrier, would |

otherwise be required to pay. in taxes were the loss elimi. |,

meted; 42 let Patt .

~ It is noted that.in these statements the petitioner has

‘charged train No. 11 with a total of $33,898.36 representirg. | he.

injuries to persons. We do not know if the dnjuries were -

caused by negligence of eniployees or: contributory negli-

". gence of those injured nevertheless this may be termed as® |

an operating expense, — llowever, because the’ accidents un.

fortunately happened in these particular periods ‘we*do .

not. feel that this aniount should here be charged in, whole

but ‘averaged over the Years the train has heen operating.

_ The record shows that -basea upon petitioner's passenger -

service castalty expenses. in the State of Alabama for-the.

, ten vear period 1939 fe'1948 and prorated on basis of the.

Atal passenger train milesin Alabamw with the train miles 5 |

of Nos, 11 and 16 the average for these trains over the.above —,

period would amount to $3,52042°per year. five

“The area served by,these trains, according to petitioner's

calculation, has a population of about’ 10,000,. This. of

course, only includes the drea immediately adjacent to the

railroad, however, the outlying districts should also be

taken into consideration so it-may weil be said tliat 15,000

people are within the dred served by these trains, “It is |

”

y ; ; = ©

5 e ‘ ~~ es

In service.

The record, does riot show how. Jong these trains have becii ne

_ operated Dut we assume for many years. We do not believe -

that simply because a train service has been maintained. for

a long period it should be re ‘tamed after it has served its-use-;

_* fulness but when it is still an essential’ part. of. the daily

~ dives of hundreds of people. and dozens of towns and.com-

innnities itis. part and parcel of their well being. These

~ people depend upon such service to.the extent that its ab-

sence would -affeet the welfare of their Gommunities and-.

-insteal of an oppor tunity to grow it, would stifle the entire

?°

true.that bus lines closely parallel the rail deal over a por-

‘tion of theline but a large portion does not have bus service

closely available and therefore must depend principally

‘on.the railroad. - The area traversed by the dine is largely.

inhabited by low-income families and it -is.reasonable ‘to _

assume that automobiles are not plentiful. Xo doubt many ~

hundreds depend entirely upon the railroad for their trans- .

‘ portation, Pyissenger traflic itself however, is not the only

service upon which these. people must. depend SO Viti ally

[fols. 75-379] but express ard mail are of : i very important

contide ration. — Evén though we have no ‘soutee) over the

mail we believe we can give consideration to the inconven-

ience it might work upon the public when the discontinuance »

"of service might carry With.it a loss of adequate mail facili:

ties.: We have. reason to believ e, from the reeord, that with

the discontingnince of trains Noa. 11 and 16 the mail service .

would not be compar, able to. that accorded with the trains

aren,

It is on opinion’ that: nublte convenience and necessity:

-=reqiires the. per ration of trains “Nos, 11 and-16 and that

with the exercise‘of stringent economies and experimenta-

tion with new and differerit devices and. methods the peti-

tiener could niéet this public need without fear ofa burden-

some ope xation, ee : rs

facts disclosed thereby we are of the opinion and find that

the petition should be denies I.

‘Thi is. Therefore ordered tiv the. com mission, That the peti-

tion of the-Sowthern. Railway Company filed on September

» 1948, Feqi vesting authority to discontinue the operation’

of its Puss nger trains Nos, 11 anc 16) vetween Birmingham,

ee Pace

Alabama and Columbus, Mississippi, insofar as the same_

are operated in Alibama, bé, and it-is hereby denied. -

Dated at Mont

od igomery, Alabama, this the. 9th day of Jan-

MOIy TH Ee ene oe

a Alabama: Public. Service Commission, Gordon Pere

sons, President: ° Jimmy Hitcheock,- Associate to

+ ~ . Commissioner, C.4. (Jack) Owen, Associate Com-

3 missioner.’ ia : Sree ieteh Peels 9

Attest. A tue copy :. Lamar Wiley, Secretary.

; : ” rg ° . . z 4 = e . hs

4 f ‘

e : ¢

sf ee : aire Ly sa 4. :

[fol.380]. Lyrae Disrricr Court or tie | NITED STATES FOR

THE Mippie District. or AvaBpgma, Nortuern Diviston

| ae Ube

ji é*$er ‘ -

.. aL 5 = Civil Action, No. 645-N

ae . A ie Tag Sa 3 ; Vs. 7 : . Y ?

/ > ,

- . Souruern Rattway Company, a Corporation, Plaititiff,

ALABAMA Ptruic Service Comission, Gorvon Persons its

President, and Jimmy Hitchcock and-C, C. (Jack) Owens,

“Associate Commissioners sand A, A, Carmichael, Attor:

eney General of the State of Alabama, Defendants . :

‘ Before Leon MeCord, Circuit Judge, and Jolin MeDuftie and

| Charles B. Kennamer, District Jadeds 2:

ae 5 e *.

OrtSion—Filed February 8, 1950

Kenwawen, District Judgez 00. eee

. i /

a , bg S

\ +. . :

~ \ STATEMENT OF THE Cask

“is a : ae Sages 5 \ Poe eeteee : . : iv ys =

; + Plaintiff, Southern Railway Company, a. corparation, or-

ganized and existing under the laws of the State of' Virginia,

property between: points within the State of Alabama, and

between points i other States throughout the Seuth. ENS

The. Wfendant: Alabama Public Service Commission, is’ ‘

ain Administrative: body,’ created Ynder the. laws of the

State of Alabama, and authorized. to exercise certain regp- -

latory powers over the Plaintiff and ofher common carriers +

: -_ Pr ses P a

“\e

hy railroad within the State of Alabama. ’ (Title 48, See-

ok:

tion I, and Section 106, Code of Alabama, 1940.) -~

Plaintiff Railway, by complaint as amended, petitions

this Court for injunfetive relief to enjoin the Defendants,

their agents, ete., from proceeding geainst the Plaj ntiff, its

officers, ete., to enforce any penalties or other ti pro-

vided by the laws of the State of Alabama, by reason of

Plaintiff's f: ailure to restore the operation of Trains. Nos.

1Land 16, as required by.order of the Defendant Commis-

{| folk. 381] sion of December 5, 1949, and as is inherent in the

“Commission's s report and order of January 9, 1950.

’The Defendants filed a motion, to dismiss the bill of com-

-plaint as amendéd; a motion.to stay the proceedings i in this

“Court; and, without: waiving any of: these motions or

rounds thereof, an- ‘answer tg” the bill of’ complaint a

a ‘aniended.

The Court heard this-cause, by consent of the pariten

Plaintiff and Defendarits, on the Defendant’ s motion to dis-

niss, motion, to stay the cause in this C ‘ourt, and on Plain-

tiffs application for a temporary and_ permanent injune-

- tion, and-on.the Anerits of the: bill and answer.

After the € ourt announced the éause would be-so heard,

the respective parties olfered evidence, and at the conclu-

sion of the taking of the evidence, oral arguments were

heard by the Court-and permission was given the parties

to file writter briefs with the Court within fifteen days, and

_ the cause was taken under advisement by the Court.

QUESTIONS TO BE, Derermixep py THe Court

‘The main question raised by the motions. to dismiss yt

stay, is, whether this Court should entertain. this: action at

‘this time, ir respective of the impact the. orders of the*Coni-

mission had on,the Plaintidf, or in spite of their question. .

able constitutionality,

The.main question presented to: this C ‘ourt by the bill aind

answ er is, whether the orders of the Defendant Coemmis- *’

‘sion of December ro, 1949 and January 9, 1950," is a violation

of due process of law, as provided for by the th amend:

ment to the Feder “ail ¢ ‘onstitution, and will result i in an illega ]

~ confise ation of the: Plaintiff’s S property.

F IN DIN‘ iS OF Fact.

p laintiff Railw ay is a foreign cor poration, orgiinized

pees existing under the laws of the State of Virginia, is en-

Y 7 ot i 840 : Pe

caged as a common carrier by railroad of sat sons wna prop-

erty between points within the State of Alabama,. and_he-

as tw een points in other States throughout the South.

* The’ jurisdictional amount of three thousand ‘dollars; %

celunies of interest; is involved... The bill of ‘complaint, as.

. [fol. 382] ametided, contains allegations. of denial of due

process of law, as provided for by the 14th. amendment. to _

' the Federal Constitution. The parties are properly} before

“the Court and this Court has jurisdiction to hes ar and: deter-

~ mine the issues involved. No suit is pending 4t this time in

any. of the Courts of the State of. Mabama between the

» parties to: this litigati ion, _therefore, the rule of comity is

not applic able. o : |

ee et Piaint a Railway did, on September #3. 1918, file an

, _.. applieationfywith-the Defendant Commission for authority |

_ to discontinye operation in Alabama of Trains Nos. 11 and

sf 16, as requi ed by. Sections 35 and 106 of the Cc ode of Ala-

Bama, Aitle 36. Relea ipo ;

‘\ 4/ Plaintiff Railw: ay did: on 1 Oc tober 2 Dy 1949; and in com-

a1. pliance with an arder,of the Interstate Gounietes Commis-

| "sion mhade to effectuate. a saving in the. use of coal, discon-«

| - . tinue ‘operation 0! _ passenger, Trains Nos. 11 and 16.:

| 5. Plaintiff * Railw: ix? did, ‘on November 10,1949, ‘file a;

| supplemental ni oe with the Defendant ( ‘ommisdion for

authority to be. telieved -of th necessity. of restoring to.

operation Trains MN and 16 with mn the State of Alabama.

- 6. The Interstate Commerce. Commission did, on Novem-

i ov. ber 14, 1946 ), issue an order Vacating and setting asiee the

_ order under. which. Plaintiff - Railway had, on October: -25,

| 1949, discontinued operation of Trains 11 and 16. a ee

ee 2 Plaintiff: R-ilway did, on numerous oer asions, after the |

* filing of the original applies ition with the Defendant Com !

~ mission, and-after the filing of the supplemental petition).

make requests to the € ‘ommission for an: opportunity to he

heard on the original applic: ition and the supplemental peti-

: : hes but were denied such a hearing: by the Cominission; :

a the Commission stating that no sueh he: ring would he held

ee the T rains had first been. restored to service

\ “8. The Defendaiit (Sonnnission: did, on ‘Deosaber 5, 1949,

jenter a an order requiring the Pliintitt to. restr ‘e Traiiis H

el GB Des ee sy

and 16 to service, and calling Plaintiff’ 8 sitintion tg cer-

tain statutory penalties made and provided for in the event |

of a refusal, ; : , ‘

s °

“6 (fob 383 |. . oO, Plaintiff Railway ‘did, on Dicteiaikos 6, 1949,

file in this: Court a bill for a temporary restraining drder

against the enforcement of the order of December 5, 1949,

by the Commission.: A temporary. restraining ordet was

eranted by the Judge of this Court and the hearing on the

_ bill for a temporary and permanent injunction was Set. for

“Nearing before three Judge. Court for December 15, 1949,

“which he: aring, at theer equest and consent of the Défend-

ants, filed in this Court on December 14, 1949 was passed _

euntil the’ 9th day of: January, 1950, and later, at their

request-and consent, ‘to the 12th: ‘day of January, 1950.

10. The Detondant Commission did, on December 8° 1919,

ghold a hearing at the Court House-at Fay te, Alabama, at

which time, the Plaintiff Railway was giv en an opportunity”

and did; present evidence and arguinent in support of. the

original applic ition: and supplemental- petition.

- 11,-The Defendant. Cc Cominissian: “did, on January 9 . 1950,

make and file a. report-m ‘der denying’ ‘the Plaintiff's

or iginal applicé ition and: ‘Supplement } petition.’

12. The Defendant Commission ‘took’ no action’ | on: the

oiginal application, filed by-the Plaintiff with the C onunis-

sion on’ ‘September, 13. 1948, for authority to discontinne

operation in ‘Alabama of Trains 1 and 16, from thettime %

the original applic: ition was filed ‘until the trains were dis-

‘continued by: order of the Interstate | Commerce Commis-

sion on October 2 25,1949, +>. pr gr ae tees 4 cee

jt pes ‘That for a period: of about fftoet months prior to the

| filing of the original application for authority to discontinue

— operation id trains 11 and 16, the expense. of operation. of

these two titains: excecded the income derived from their

operations os ‘over four thous#nd dollars per inonth. This.

financial loss eontinaed from the time the ériginal appliga? ,

tion was made to the Commission until Trains 11 and 16 |

were diseonfinued on October 29, 1949: \ +

14, That, in.addigion to Trains #1 anil 16, Plaintiff, Rail:

Way oper rated, and continnes to operate Trains 12 and 15:

hetw en Bir mungham, » Alabam: a, and Columbus, Mississippi,

I Se. seb ? . . ° C . " \. :

3 iF

: meee of convincing proof.

67"

¥ which ‘Trairs 12 and 15, although mised traius, carrying

[ fol. 384] both. freight®and passengers , has:adeyuate facili-

oties for hauling and handling the mail, and makes all regular

pre flag stops made by Trains-11 and 16. Train 15 is due to »

leave Birmingham daily:at 7:15:a. m. and arrive in Colum-~

bus at 1:15'p.m. Train 16 ig die to leave Columbus at 6:00

a.m. and arrive in Birmingham at 10:30 a.m. With the dis-

continuanee of Trains, 11 and 16, Plaintiff-did not close, and |

doeg not threaten to close, any of the intermediate stations

between Birmingham and Columbus. -

15. That with the improvement made in highways, thie’ use

of privately owned, automobiles, buses, trucks, vans, and

other modes of conveyarices, have i inere: ised, thereby. caus-

ing 2 steady decline in the use-of passenger trains by the

‘travelling publie, especially on short runs such as this one ‘

_ between Birmingham and. Columbus, a distance of one hun-

dred and twenty-two miles, PE ar | \

16. That the operation. of riniked trains -snch as Plaintiff's

trains 12 and 15, ngw in daily service betw eén Birmingham

and Columbus, is: adequate and sufficient-to meet, the de:

~mandsand requirements of the public for tailroad passenger

service between these

{Wwe-points, ACR a

gif That, -to require the Plaintiff Railway to continue the

operation of Trains Nos. Tl aad 16, at this hes avy financial

loss, which occurred over a leng period-of time before these

trains were discontinued, und, by every prospect and likeli-

hood, would continue should ‘they. be rest@ed to service, ds.

ae unwarranted: e illegal confiscation of Pi iaintiff ’s prop- -

erty. ee 9 :

“Cdk cuUstONS. OF aoe

“The Plaintiff, simrplatnit of the donstitutional inbalidity

of a state- made: ‘order, is held to the burden. of showi ing that,

92 WU. S. 290; Verne ts Be Lee Me,

ae U..$. 305; = - OF) koe nage Mees

J. A BBO Re rge

The right to a fair and open houri ng-is one of the rudi-

antnts of fair play assured to every litigant: -hy the F ederal,

Constitution as’ a. minimat re. ~trement? Phere “must ie”

[fol. 385 | due’ notic e and an: opportunity to be heard, ‘the .

GM ee eg ee

s @®

peeoiions

. taken on the application;

aivsistent with: thie esientials ‘of a fair.

trial, and the Con mn niust act upon evidence and not”

- arbitrarily. — A ee |

eae, RN

/ 298: U. 8: 38;. 5 Bh

BOF U.S. 298:

Wien the Deenmoleci ‘gives a fair Msaiein received uid

~onaideds the ‘compétent evidence. that is” offe

“are met, and the question that remains for’ a’ federal court

; ‘is not as to the mere co rectness of the method and reason:

ing adopted-by, the regu ting agency but whether the: order :

o | Wilkresult in confisdation. bos ne

Ee atandeeni

Sct Plaintiff's 8 applicat on for permission to discontinue

- the two trains had béen

mission that it-would ear nor consider the application

until after the Plaintiff restored the two'trains to service,

jury the Plaintiff would sustain in obeying the demand>of

~ the C ‘ommission i in restoring the trains to service, the least

“the Commission: could have done under the circumstances,

<1 ies ‘proper. spirit of fairness and justice, would -have been |

. +. to defer making its:demand and calling the attention of the .

~~ Plaintiff to Hae Alabama statites providing for the heavy tis

. penalties Plaintiff would be subject to if. it did not promptly -

_- comply With the Commission’s order. \ rte

_°. The nianner of treating the’ application of the Plaintiff, ae

“then pending before the Commission, | it appears to this :

b, ourt, amounted to a threat on the part of the Commission -

to invoke the penalties provided for i in the. Alabama stat.’

he utes against. the Plaintiff: -

a fol. 386] . This’ Court is of the | opinion: ‘dad so holds, that

“the motions to dismiss and ‘stay should be, and are, denied

.and the relief as prayed -for in the- Plaintiff's bill: of « ‘com-

Bagh as: 2 ames should be, and. is, granted.”

ered, affords .

: “apportunity’ ‘through evidetice and argument’ to challenge :

*.. the result, and ‘makes its determination upon evidence and

. not arbitrarily; the’ requirements of procedural due process

Sean OF THE Borne ee ear dik

the position: taken by. the Com-

“WwW hen

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