# Transcript of Record — Alabama Pub. Serv. Comm'n v. Southern R. Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386407_0043%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Transcript of Record - **Published:** January 1, 1951 - **Citation:** 341 U.S. 363 ## Text A ated = ae No] ) | ALABAMA PUBLIC SERVICE COMMISSION, ET AL, Ror | ae “APPELLANTS, . “5 ; ret : ; 9 oy Owes 2 woes 1a f ? by Xs.9e ly 4 f 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 ‘ z ‘ : : we ts, Z ; . . 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 oe ty 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 *. o “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 oy Beno A Ape ee ss ogi Oe we be wig eee Se 8 Oe eee q _Exhibit “A”.—Renort and order of Alabama Pub- 2 Onees Print 2 BY) = 26 se. a8 ae a 3. BB 43/5 37 f4 + 38 } a5 40 ae" a7 39. ' 49 40 52°. 42 53-*°. 43 56: | 46 7 ee 60 48 62. 49 68. 54 i: Roce A 92 104 123° 138, 154 173 ee dee sso a 386 69 388 70 308" — . ay | 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 Print . ° \ Ms 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 + Statement of points: to be relied upon jand designation of : Roe TOOT | oie Seas Se des See es ge Pee ee tees 405 eo ips oe as y Order hoting probable juriadiction : os 6 \ poo sles a giphag oe MOO 73-: - 4 \ ; | \ : \ \ : } - 1 | °j ; : perk ‘ eres: “et . . \ \ i > i % % e \ ‘ it pair is ts Sates / ae «| . . ‘ ° ; \! \ ' / ° ° zs oan : : ati et ee a cea —_—-— - — eee ae — ee ee ee see —— As a ~ . . « . s trae . . ov . . . . eee « y . . Z . wae oni * ‘i nm o. ior o” . 3 ? . oS St * . ee . s. ee oo fs . : % . we ° ‘Bip > oo ‘ . os . . 65. tay ’ ‘ v& : . * er . . . . . ¢ . : \ ato he, ry e iA 4 . oe A . om . « “9 eo 5 . 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Varmichael, Attor- ney General of the State of Alabama, Defendants eae a - 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 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 a 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 | o ee 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 f ’— 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 - te 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”’. A After ‘the filing, Son Septembpr "petition ‘with the defendant #/Uiseontinue its said two pa 4 i : 3 : oe . ; . ° . : ; ¥ - ei : j - * . f a, . - : - ° . o te ode. / 4s . “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 aa ‘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 hs 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’ %e ey . 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, 2 a nw 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 oe (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 ‘ a, tt a s / 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 Q 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: Be 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 ae r repa rable dam- ° g [fol 1s) | f ‘Exaisit 1 TO ‘ComPuatyr _ Bevore, THE ; ALABAMA Pupuic SERvIcE Commission . Docket No. we ; A Pad dhe at 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 : Ti . et d 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 I. ‘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. s 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 4 = ris ‘ } @, bef Hy ‘ 1 4 x . ‘ 2 4 3 4 % ’ ‘ ae aes e* “~ aA . e . e - ws Sak pe 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 ; . : © - Passenger....... Lelehenecesseesssbeggee $3,182.46 $3,029.11 $3,309.30 $4,485.80 $5,221.87 $5,646.78 $4024.58 - 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 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, ‘a3 Fee Face eS ; $ peek a o =a ok . - Ewes E e > en rd eu . . . > a o . ce : ee . . 3 . - x ™, . ; 4 x . . . ° a Aa Mi 4 . ” e ‘ ee . e 2 a. - : oe : oem £ ge - wat - =x > - *. ¢ . . gore e ’ 7 ‘ 3 : 4 ° ; é , Nt : oie * : ? ? . re ‘ . ; . ato, 93] 1G ‘opy . ‘ 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 19 geese 2 vo. Comrraint ? Ms 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. 4 ‘ 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 (c) Effective date. ‘This order shall hee 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 “ | I. 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- 7 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 .* 0 ited . . k * ™ . ite tt, APN : . : - ane e A o erry ey fe te. . pide : . ; 16: i between Birmingham, Alabama ‘and: , iz » . 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, e 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, + 26 [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 4 , 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 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 6 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 Ae ‘ ¥ Vee, Sea * A PA Pe i [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, ° . . ' ° - « le a» A he . _ pone the samé until the said respondeiit Southern Railway Company shall have purged itself ofits aforesajd contol > 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 3 °*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 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 40 “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 kK '. [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-~ 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! 9 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 Alabama, and that the decision of the Supreme Court 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 ar 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. ] , e 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 required to obtain from the © ommission. a permit allow- 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. 4 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 51 a £ 1949; that, notwithstanding the aforesaid facts, the. plaintiff” — has continuously, since the termination of the effective >. er 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 | O 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 \ . ee é 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 a ‘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. $ = 2 mo Coe = i é: ao E i ay «attached and made a part of Fs eherer and. marked for Scare identification: ‘ads Exhibit’A.- gia Lait eg Ox “3 =i 7 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 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 s 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 s 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 Upon éirgful congideration of all the ev idene ‘© and the ; 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 a . 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 . : 7 = ‘ 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, is engaged.as a common carrier by railroad ef persons and © 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- VA o 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 q : 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 ab 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, ... @ach- of them; f vom taking aay Abs 6r proceedings of any _‘. + nature whatsoever against| the p aintiff, its officers, agents | or. employees, to enforce rt provisions of said-orders -or of either of them or to-dnforce any penalties. or other -. remedies against the. plaintiff, its officers, agents ‘or em- -°. ployees, on acegunt of the failure to observe the provisions —..’- > and requirements: of ‘the said: orders or either of them by “aa djscontinuing and net restoring the operation of plaintiff’s | local passenger trains Nos. 11 atid 16 between Birmingham, © - Alabama and the Alabama-Mississippi state Nine; and | _(3) that the bond given by the plaintiff on the issuance \.. of: the restraining order herein, which by consent of the _. defendants was continued in force pending a decision of the - - cause, be diséharged and that the plaintiff as principal and - > American Surety Company of New York as-surety: be dis-. .. * charged end relieved of any ‘and all liability theretnder. Leon McCord, United States. Judge, Court -of Ap’ peals, Fifth Cireuit; C.. B. ,.Kennamer, Judge, Bnited States District Court, Middle , District of . ~ Alabama; John McDuffie, Judge, United States — District. Court, Southern District of Alabama... - . [ File endorsement“ omitted. | . s ; -[ fols.388-404 ] In THE District Courror THE Unrrep States [Title anitted] _* Onven Autowrxa Aprear—Filed ‘April 12, 1950 .. The petition of the Alabama Public Service Commission, Gordon Persans, as. its. President; Jimmy Hitehcock. and C. C. (Jack) Owen,:as. Associate Commissioners) and A. A. Carmichael, as Attorney General of the State of Alabama, — the defendants in flie above styled cause, for an appeal from: ¢ the final decree of the three judge District Court made -- and entered on the 13th day. of February, 1950, is hereby ‘\ °° granted and:the appeal is allowed; bond:eonditioned to pay =. . the costs of’said appeal if same should not be sustained, is "hereby fixed in the sum of $500.00, such bond, with suffient. _ ~ -. sureties, being: presented to the Court, is hereby approved. * | 7 ST is futther ordered that. this appeal. shall be made. >. ° | s 14a : Dy tis As Mae eas any 4. ° citation ‘to the Plaintiff: Southern Railway Conipany, eee eee _¥} Fe 3 72 ~ ; g 3 \ \ . . ? ¥. o aR oe ; 2 /: 4. The lower Court ‘erred in proceeding with the hearing . of this eause. prior to the determination: in the courts of _the State of Alabama ‘of the appeals which might be taken \by the plaintiff from the orders or decrees of tlie Alabama — . Public Service Commission complained of in the complaint... + _ ‘The appellants designate the followitig parts of the record. which they think necessary for the consideration. of the fore- - going peints. . piensa eae ete da ~ 1. The original bill of complaint and the exhibits thereto ee filed December 6, 1949: SN to meer Peete s Gani Afol. 406] 2. The ‘temporary restraining order issted De-' : “eember 6, IOGGo ase: rity we Ree Set eva Sie ‘ 3.-The summons: to answer said complaint datéd: Decem- - ber 6, 1949, - NER ARG See) reed eae 4. The designation 6f| the three Judges to serve on the — - District Court of three judges filed December 13, 1949, ~ O. The motion to dismiss the action filed December 14, ~ O48, aN eat eae italic hl hckg Tee ! .- 6. The amendment to the complaint filed January 12, = MigBO. 3 | Ce ok ee _. 4. The. amendment to tie motion to dismiss the action, - filed January.12,1950, - \- Ae AE eG '.’ & The. motion to stay tlie action filed January 12, 1950, ‘. -. 9, The answer of the defkndants, including the exhibits: . thereto filed January Sey Se ees 10. The opinion of the thr e-Judge District Court; in- -, cluding the statement of. the ¢ ¢, the questions to be de: termined by the Court; the ci of fact, the questions _ of law and the opinion of the’ Court filed: February. 8, 1950; : rs a PA eae a Etec i eee _ 11, The order of the Alabama ] ublice Service Commission _ ‘under Docket No. 12225 of ‘said Commission dated Decein. ciel Oo os WORE ee aes OE Sail git eae ae 12. The order of the Alabama Public Service Commis: . sion under Docket. Number 12221 of said Gommission dated . - . January 9, 1950. Sas tae > REA a a eR . + 18. The final judgment ‘or decree made ‘and entered Feb. . ; ruary 13, 1950. PS Cal RN | oe, ‘As a Carmichael, Attorney General of ‘Alabama: as M. R.. Nachman, Assistant Attorney General of: Alabama; Richard T. Rives, Attorneys ‘for Ap-— pellants. fee dee he ian a a Service of a copy of the foregoing statement and desig: nation is hereby accepted this 23rd day df June, 1950: ge erin a. SOs, - Marion Rusht [fol. 406a J. [ File endorsement. omitted. } f ra aA aoe os .. - ‘C P \ Sage Papert é ~- [fol.407] Supreme Covrr or tur Unirep on, of Counsel for Appellee. 8) J. | 1 ; Srares, Octosen Ter, 1950, 3 : fo bes eee | ee a GSD eNews -OnvEr Noting Prowasie J URISDICTION—October 9, 1950 : = f ae as v \ ". ihe ‘ * : ? \ “eer | Ba ay Aner Phe Statement of jurisdiction in this ‘ submitted and. considered by. the'C tion is noted. . Ne Se case having been we ourt, probable Jurisdie- _» . Endorsed-on Cover: File No. 54,652, U.S. D. C:; Middle Alabama, Term No: 146. Alabama Public Service Com- mission, et al., Appellants, vs, Southern Railway Company. ‘Filed June 34, 1950. Term No. 146.0. T. 1950, ! x RD, e jt | a, \ ° 2 ‘ v 4 . / . f. é \ f B 8) oa eee Ree a --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386407_0043%3A1. Public record. Not legal advice.