Transcript of Record — Southern R. Co. v. North Carolina

Supreme Court brief1964

Ask Donna

What actually matters in this document.

Text

' bon

ines leg ere YY :

: _ SUPREME COURT OF THE UNITED $ STATES

ae ” No. 74 Ge

— . ae ae

| Se SOUTHERN RAILWAY COMPANY, APPELLANT, - 3

: q : o— :

a ‘NORTH CAROLINA, BT aL

a ae No. 93.

Sr ae . : :

UNITED STATES, ET AL., APPELLANTS,

| + NORTH CAROLINA, ET AL.

— wrrnsia» FROM THE UNITED STATES DISTRICT COURT FOR THE

3 DLE DISTRICT OF NORTH CAROLINA .

Beit Se, pee ee

VOLUME 1

Record from the United States District Court for

the Middle District of North Carolina hae .

‘ Complaint as amended ee ae Ye

Exhibit “A”—Report and order of the inter :

state Commerce Commission, dated June 27, a

— oo 1962 to discontinue operation of trains Nos. ai

a .: - 13 and 16 between Greensboro and Golds-

= boro, “North Carolina’ “ Shs | 10°

Recorp Press, Punrrena, New York, N. Y., Avausr 22, 1963 _

F ; ~ ‘ t+ =, She,

4 ° . ; s _— e

a ‘ . c ; - . *

ras B, ”

) . a . -

. 2 &

¢ . e .

a Cc . .

: . : ee e 4s. 2 . . -

. . ‘ ° ae 2 . ‘ * —

. : — aren g 4

ya Sees Se : ° ; .

ee ; . : : ree

: pt °

Ra GS . I> ° zi

* . %

“the Middle District of North, Carolina—Con-

tinued - \

Complaint as ; ae

: Exhibit “B” of the Interstate Com-.

% - ” merce: Commission bearing service date of.

- July 20, 1962 postponing the effective date —

of the order issued June 27, 1962

Exhibit. “B-1”—Order of the Interstate Com-

merce Commission, dated August 8, 1962

=. + denying: petition for a finding that this pro-

= eating teri see ee gee eee

portation! importance

* Answer of Southern Railway Company

_ Exhibit 1—Report and order recommended by

William J Gibbens, Hearing Examiner,

1.C.C.

Appendix A—Schedules of Trains. Nos. 13°

and 16 operating between Greensboro and

Goldsboro and Populations of -Communi-

ties. served :

Appendices B & C—Lists of number of pas-

senigers handled on Train 13 and on Train

Appendix D—Operating Results of Pamen-

ger Trains 13 and 16 between Greensboro, |

_N. C. and Goldsboro, N. C., Year 1960 __

: Answer of the United States of America and the

Interstate Commerce Commission _'....

Proceedings before the. Interstate ‘3 ateaee Com-

. . mission

Petition of the Southern Seco Company for’

authority to discontinue the operation of

+ Trains Nos. 13 and 16 between Greensboro and

Goldsboro, North oni ew |

Exhibits :

1 Sebetals of Trains Nos. 13 and toon

between Greensboro and Goldsboro

2 - Noth Carolina’ _Offieial— —

(1960) with the Routes. of re

4 and 16 shown in red coloring - =

20 :

19°21 :

“a 20s

3943:

0 “4 -%

42 46

44+ 48. 3

48 51 i

48°" 51.

81. 78 :

Yl ° 23

soe ey,

r oom “3 >. F

A by ft + Original Print |.

Sects before the Interstate ‘Commerce Com-

mission—Continued

Petition of the Southern Railway Company for

authority to discontinue . the - operation of |

Trains Nos. 18 and 16 between Greensboro and -

~ Goldsboro, North ‘Carolina—Continued

? Exhibits :—Continued po

3—Southern Railway Company, @Passenger

‘Service Operations showing passenger efi- -

ceit for the years 1948-1960 __.. ___

4~Populations of Counties Traversed by

pe Trains Nos. 13 and 16 compared with the

__. State of North Carolina and the ‘United

States Fs

5—Estimated Ratio of Persons. Per Regis-

. tered Passenger Automobile in the Sev-

> eral. North Carolina Counties Traversed

_ -by Trains Nos. 13 and 16 compared with

the State of North Carolina

6—Estimated -Ratio of Persons Per ‘Regis-

tered Passeriger Automobile in the Prin-

cipal Cities and Towns of The Several

+ Counties Traversed by Trains Nos 13 and .

Map. showing . possible points. of inter-

change of: passengers between Trains Nos.

13 and 16 and rail passenger trains of

- other rail lines of Southern Railway Co.;”

Se _ Seaboard Air Line Railroad and Atlantic

. Coast Line Railroad _ :

* . 8 Timetable of. other Southern Railway

Co: Passenger Trains serving Greensbors, .

N. C., dated October 30, 1960 <

9—Southern : Railway System Gaaldiawe ; ae

Train Schedules, Folder, dated ~October

; 80, 1960 showing service between Greens-

. Vs - boro;"Winston-Salem and Asheville (time-—

: ; \ table) — :

10—Timetable of Seaboard Air tine: Rail-

>. goad Passenger ‘Traing Serving Raleigh, °

-N. C.

mt. |

a °°) 6

8 77

91° 283

> °

» .

"gee FeeShe —.

ss ‘Proceedings pufese-the Interstate Commerce Com-

> 3 : >

mission—Continued-_,

. Petition of the Southern Railway, Guniiene for

authority to | discontinue the operation of ©

- Trains Nos. 18 and 16 between Greensboro and

_ Goldsboro, North tinued.

Exhibits :-—Contin

11—Timetable showing the operation of Sea- i

board “Air Line trains through Raleigh,

N. C., effective December 17, 1960

_-. 19-imetable of Atlantic Coast Line Rail-

road Passenger Trains serving Selma,

- N. C.; dated December 15, 1960

: 13—Timetable of Atlantic Coast Line Rail.

road Passenger Trains Serving Goldsboro,

i | N.C, dated December 15, 1960 2

- 14—Carolina Trailways Schedule :of buses

Between Charlotte, Raleigh, Norfolk show-

ing 15 bus schedules daily in each di-

- rection between Greensboro, Durham ‘and

Raleigh -

_A&—Greyhound, Lines schedule, of buses

between Columbia, ! Sumter, Florence,

Myrtle Beach showing 7, bug schedules

daily in. each direction “between Raleigh —

and Goldsboro —-

_ 16—Carclina Trailways. ahs of buses

between New York, Richmond, Raleigh,

' Fayetteville, Jacksonville (Table 8110)

on 17—Trailways Eastern Linee—Condensed os

ato Thru-Liner Routes (Table°8022) -....’

-18—Seashore Transportation ‘ Company’s

- Timetable showing the bus schedules oper-

- ated and connecting bus lines asmeneh

3425-34272)

- . 19—KEastern Air Lines Ychedule users

' daily first class flights between Raleigh- -

. - Durham Airport and a wide variety of -

ee other -_ ete.

97 89

98-90.

99 91

10: . 93

102 94

103 95

104-96 -

ce aa ae

He ie

g Proceedings before: the Interstate Grannenn srerrete

mission—Continued |

» Petition of the Southern Railway C y. for

authority “to discontinue the operation sof

Trains Nos. 13 and 16 between Greensboro and

~ Goldsboro, North Caroljna—Continued

| Exghibits—Continued)

~~ 20—Capital Airlines schedule ling one

eae ee flight daily in each direction between New :

e York, Raleigh-Durham, Atlanta and New s

Orleans

_21—Piedmont Airlines schedule ioiings one

_ flight daily in each direction, between Wil-

mington, N. C., Raleigh-Durham, Greens--

——— boro-High Point, Wington-Selem and

Lexington, Ky.

22-—-Compariann of Air Line Traffic Depart-

‘ing From Greenshoro-High ‘Point and

es ee eae Airports Pears 1949 and

23—Map showing highway distancés from

various communities in the general area.

served by -Trains Nos. 13 and 16 to the

Raleigh-Durham Airport--..*

'24—Statements showing Passengers Han-

dled on Trains 13 and 16. (Operating daily .

oe _. Goldsboro, N. €. to Greensboro,oN. C.),

-".. \ amd (Greensboro, N, €..to Goldsboro, N.

C.) beg npr trips, Year—1960—

366

_ 25—Southern Railway Company, Passenger

Traffic Statistics for Trains.13 and 16 .

2 operating between Greensboro, ‘N. C. and -

Goldsboro, N. C., Years 1959. and 1960 .

26—Southern Railway Company, Passenger

Traffic Statistics for Trains.13 and 16 op-

«erating between Greensboro, N. C. and

_ Goldsboro, N. C., Years 1948-1960

Originel—Print

106 = 98

110. 192

111108

112 104

113 105

. < .

117° 109

: 119 a 2 hi

"Proceedings before the Interstate Commeree Com.

mission—Continued .

Petition of the Southern Railway ‘Company a:

authority te diseontinue the operation ~of

Trains Nos. 13 and 16 between Greensboro and

_ Goldsboro, North Caroline—Continued

Exhibits :—Continued —

27 & 28—Southern Railway "Company, Op-

erating Results of Passenger Trains Nos,

18 and 16, Greensboro, N. C. to Goldsboro, ,

~N. C., Years 1959 and 1960

For-Index of Sei es, see page mo

' -. 29—Southern Railway Company, Feeder —

Value of Trains 13.and.16, Operating be-

tween Greensboro, N. C., and Goldsboro,

p NC, nscicert Anasbae ine truncate dll

System

" 30—Southern: Railway. Company, General:

Balance, Sheet as of December 31, 1960.

S1-Seithern Railway Company—Incame -.”

idoountt ‘Ser hee cyenee 1800 amd, 1900 00 -

oes reported to the I.C:C.

: Record from the Supreme Court of the State ‘of

North’ Carolina, Tenth District, Fall Term 1960 .

in case No. 457, State of North Carolina, ex rel.

vy. Southern Railway Company consisting of por-

tions of proceedings before the North Carélina . -

Utilities Commission

Transeript of hearing,

. Testimony of Colonel Geodge 'F. Leist—

; ‘direct (by Mr. Bryant) _

io eross' (hy Col. Joyner) __

a rediret (by Mr. Bryant)

oo. —-peeross. (by Col. Joyner).

bis. ; Seenstantion by Commissioner

Ti tie ~. veeross (by: Col. doyner)..

TE Dr. Sherwood Githens—

> , _ direet (by Mr. Bryant) _

en - __— eross (by Col: Joyner)

XN ped es turtber direct

(by Mr. Jones) *

120 «oa

121 113°

13% , 129

138 130

139 131.

141 -138-

142 133

142. 138

145 - 136.

148 - 139

149: 140

149 ©=:140

~150- 141

153-148

156146

156147

me pevssll foes an Digna Dees iak ei tine

North Carolina, Tenth District, Fall Term 1960

~ in case No. 457, State 6f North Carolina, ex rel.

. v. Southern Railway Company consisting of por-

_ tions af proceedings before the North Carolina i

Utilities Commission—Continued .

Transcript of hearing—Continued

SS , Testimony of Dr. Sherwood Githens—Con-

. tinued .

ae further. cross *..

at ARS (by: Col. Joyner)...

further direct —

(by Mr. Burns) —_.

area f further direct

further’ cross

eee oe "ee

Mr. sieia’

rk (by Mr: Burns) —

1 GS Sls ae Soe 8 Bo)

s ° J. M. White

ae a ee "direct (by Col. Joyner) -

beng Sliver yeaa Mrs. see Biddle-Trent

or direct (by Mr. Brooks). .,

e@ _ * eross (by Col. Joyner) _.. -

Piciernseotoo ones

: Shey "direct (by Mr. Bryson) .

. | cross (by'Col. Joyner) ....

_ redirect (by Mr. Bryson)

recross (by Col.. Joyner.) ..

redirect (by Mr. Jones) _

recross (by Col. Joyner).

_ redirect fby Mr. Jones)

Examitiation by Commissioners

- .. Yedirect (by Mr. Jones) -

: : a ates Re recross (by. Col. Joyner) ..

a vedicést (by Mr. Jones) ~

- recross (by Col. Joyner)...

: \

. ’

. Z 5 oe:

. co

- bid Be E

a ™

(by Mr. Brooks)

we gi: Joyner)

cross (by Mr: Bryant) —

SS pe

158 * 148

163 153

163. 158

163° 153

165 . 154 -

172 160

173 161

178°? 164.

179. 165

181 166

188172

188 * 172.

190 *: 174.

191 . 175

192 +176

192 176:

193 177

193-177

193 178°

194 -. 178

194 © 178

194 179

194 ~ ‘179.

nti ° . i * x " ; eee : 4

bee my

‘ ¢- Original Print

Record: from the Supreme Court of thet State of - :

North Carolina, Tenth District, Fall Ternt 1960

“+ "4m ease No. 457,. State of North Carolina, ex rel.

ee,” ‘Southern Railway Company consisting of por-

tions of proceedings before the North Carolina

__. Utilities Commission—Continued

Tramecript ef hearing—Continued Pasi

7 ee Harold Hotelling— . eed ge

direct (by Mr. Beaks) ~ 194 179

eo s+ ross (by Col. Joyner). 197. 181 -> ;

: of a fxaminstion by Commissioner 197° < 182.”

7 Dr, Joseph J. Spangler :

ie direct, — © 198" . 182

Watts Hil————™ oe

: direct (by Mr. Bryant). 202 .°185

: _ cross (by-Col. Joyner) - + 220 200

redirect (by Mr. Bryant) - 228. 207°)

redirect (by Mr.. -Burns) 228 = 207

further cross iS ee

a) eee hee (by Col. Joyner) 228 208

vey . « ° “Bxamination by Commissioner 229 209

mi Pree Carl R. Harris— = - iS

oe '» > direct (by Mr. erent) 230-209

<b ae eae eross (by Col. Joyner) 234-218

ta a Robert FE. Cishman— ==.

v: os . direct (by Mr: Bryson)’ - 234 «= «218

oA te . James P. Reit— ;

‘ one aes sane posarina pres) - 236020215

oie eross (by Col. Ig) 237 ~=—s 216

ae James Whitmore— Sie

ge ; 4 direct’ (by Mr, ea 238 216°.

ee. ee ae _ cross (by Mr. Joyner) - 238 217.

eS: C. N,, Hibbard— nes :

it ) direct (by Mr. Brooks) _ 238.217

pas ae Pow? Examination by Commissioner 239 218:

: aye eee cross (by Mr. Joyner) _ 239. 218

>. Mrs. Mary Biddle Trent : :

‘Semans (recalled )— ee,

redirect (by Mr. Brooks) - 240 | 219

‘ * re

“| - Record from the Supreme. Court sith a teen

| North Carolina, Tenth District, Fall Term’ 1960

____im ease No. 457, State of North Carolina, ex rel. -

- vy, Southern Railway Company consisting of por-

.. tions of -proceedings “before. the North Carolina .

- -_ Utilities Commission—Continued °

Transcript of hearing—Continued :

_ Testimony of Dr. H.: T. ‘Parker— wey

- ens sina Burns) _

Stipulation read into record

— of ‘Parks ‘M. Low—

‘direct (by Mr Burns) Ly

further direct: —

\ , | (by, Mr. Bryant) styretetee

: cross (by Mr. Dixon) ._..

‘i . -. Mrs. Lucille Blake—

: ; (by Mr. Bryson) .

KS a Petere can Fe Pr, _, direct (by Mr. Bryson) .

; oo ~~ COBB (by. Mr. Joyner) —

a ; redirect (by, Mr. Bryson)

: Dr. T. E. Powell—

- . 3 direct (by Mr.-Burns)

4 eee cross. (by Mr. Dixon) ... -

5 _redirect (by Mr. Burns). ©

= Nite - peeross (by Mr. Dixbdn) ~

é Examination by Commissioner

q : _ Proceedings before the Interstate Commerge Com-

| ' mission in Finance Docket No. 21568 eer

2 -- Transcript of hearing July: 11-14, 1961: Be tt

£ Appearances

_. .. Motions to dismiss and lives one aa

4 -! Testimony of L. L. Waters— °

i : , . - -@ross Pe

a nga Aaron Cruise—° ©

me toe eve, tn

a: ; “9.0 CPOs

reap >

~ % f :

. -

cross (by Mr. Soren),

_-e

Asi?

: 252 -

- 235

Sey

Ss ; (9 :

4 Ye 3 INDEX

"pain bafoie the Interstate Commerce Com- -

mission in- Finance Docket No. 21563—Continued _

Transcript of hearing July 11- 14, AO.

tinued *

Testimony of J. A. Watson— .

- direct aod

rom,

“examination by examiner z

_. VOLUME 2.

‘Testimony of Hugh McVay—

direct -

redirect

recross

ae eee 5 B. Gleason— BP ARR,

rule ee, ie

examination by examiner

edirect

/ peeross

Ernest Rechel—

cross -

_ Fedirect -

direct

J. W. Kidd— wae Oa

direct

CTOSS

Oieage V. Baylin ae

direst Beatie

Dr. T. E. Powell—_

cy et esa

_cfoss

“Davis\H. Beck—

OS.

ae |

”

- ae

Z \

OE pce

Sy Vad Ale Bek ean ale VR DP phe as

«6 : .

ry ® :

Provabdings before the Tnieretats Cummnaces Con. )

- _ mission in Finance Docket No. 21563—Continued-

_‘Pranscript of hearing a 11-14, baci sited is

tinued : Re a

Testimony of I. H. tht rie fei ae

7 _ direct JS Cea 587 . 456 -

; _. Poss 594 461:

* peeross 603 4, 468

SN abeae further direct... (ss 604° 468

be ' William L. Fayle— - a pee

: ; io direct went 605 469

o Yee ee as a. 3 0 se

an ee

s we * Reereds Oe 617 477

ees | - George Herbert— -

direct _.. 619 478

Cross, 630 486

George Cox—

direct - 683 «= 488

fied : .CTOSs -* 639- © 492

y habe Herbert ae .

fata further direct - ere 494

ee ' ° Paul Greer— : tbe

O.. |, direct . i a a

: cross 648 499

- .Dr. Wilhelm Jecpeies-

_ direct —. 651 501

- eross __.. 655 504

redirect ___... 659 = 5506

. - Dr. Sherwood Githens—.,

cps ona ne NE 660 - 507

Aes -~*. @em a “B17

ae ; George Parks—__ 1d ae es

“s : , direct | a ee

are cross .. 2. | 689 526

le atia RO Binal.”

a Cite a

eae ee cross . 700. 534

: redirect’ : 704 536

° 6"

: “ b:

pee : "

bio

ings before the Interstate Commerce Com-

_ mission in Finance Docket No. 21563—Continued

Transcript of ite July 11-14, amine

& . tinued - fone

psoraeed of Hugh M. Canimings— -

‘ direct 3 704 . 537

: cross ___ - aFe>-

' direst “712 ~=« N42

Dr. Paul H. Clyde— . ene

3 a. j——<,_ T2258

: Dr. Henry Vincent Newson f 8 ~

° cross ee 731 554

a ed _Fedireet ——_ 737-559

pee ae Dr. Daryl Hart— — : :

: "cross 742 . 562

redirect 750 567

: - direct — 752 568

“ : creas ¢ 759 «. «572

redirect ae ee

T. Milburn— 2

F direct 765 576

cross 773 582

: F. M. Southerland— Ss

direct 778 = 85

- “eross 783 588

°° pedirect 2 786 590

Frank W. Jones— >

direct __ PE 787. 591

* ——¢eross 791 593.

redirect 793 595

At William R. Belfield—

direct 794 595

: I a 796 596.

: °

INDEX .

_ Proceedings cite the Saneetete Conia Com-

- mission in Finance Docket No. asian sacorezacn

o Exhibits:

‘ H-1—Present Schedule teens Greensboro-

’ Goldsboro, N. C., Truck Route |

H-2—Proposed Schedule between Greensboro-

Goldsboro, N. C.,. Truck Route —__|

_H-3—Average. Monthly shipments -handled at

all offices between Greensboro and Golds- -

boro, N. C.; March” 1960 through February

1961 2

H-4—Southern Railway Company, Passengers.

-handled on Trains Nos. 13 and 16 (Operat-

ing daily Geldsboro-Greensboro, N. C.) Jan-—

uary thru May 1961—151 trips: Se,

‘ H-5—Southern -Railway Company, Passenger.

Fine as Traffic Statistics Trains .Nos: 13 and. 16

ase operating between » Greensboro-Gol boro,

N. C:, January thru May 1961, Nam r of

trips, trip mileage, ete. _2f

H-6--Southern Railway Company, Passenger:

’ Traffic. Statistics Trains Nos. 13 and 16

N. C., years 1948 thru 1961 (5 Months),

Number of trips, Number, of passengers, ete...

| . H-7—Southern Railway Company, Operating —

Results of Passenger Trains Nos. 13 and 16,

Greensboro, N. C. to Goldsboro, N. C., Jan-

uary thru May 1961

. H-8—Southern Railway System, Feeder Value

_ . of Trains Nos. 13 and 16, operating between

o - Greensboro, N. ©. and Goldsboro,” N. C.,

accruing to the Southern Railway System |

H-9—Southern Railway Company, General ‘-

Balance Sheet as of April 30, 1961 -

H-10—Southern’ Railway Company, Tneonie

| acount, for Four poate ended April 30,

+ ASE «2S ec

\moval pf passenger service between Greens-

ro, N. C and Goldsboro, N. Ce...

: Peat benefits to be detkeed: by re-_

: 4 Z eS : i

operating between Greensboro-Goldsboro, —— .

806 603

B06. 603

807 ~=—-604

B08 605

809. ~ 606

811 «608

812 609

Speers

813 610

814. 611

815 612

816” 613

817 °614

Proceedings before the Interstate Cominerce Coni-

*. mission in Finance’ Docket No. 21563—Continued

Exhibits:—Continued ‘aa

__ H-12—Timetables_ of other Southern Railway

Co. Passenger Trains, Seaboard Air Line

' Railroad, Atlantic “Coast Line Railroad;

' Carolina Trailways, National Trailways, and

_ Seashore Transportation Company, effective

April 30, 1961 and July, 1961. (These are

Tevised schedules of those shown in Exhibits

8, 9, 10, 11, 12, 13, 14, 16, 17 and 18) __.

H-13—List of North Carolina Counties that .

do not have rail passenger service (50 out

of a total of 100 counties) _

- #14—Southern Coach Company timetable ___

Record from the United States District Court. for a

the Middle District of North Cann sicactacciaelic

Opinion, Preyer, J. ‘a

_ Decree

| Notice of appeal by Southern Railway Genpay

‘to-the Supreme Court ‘of the United States __

Notice of appeal by United States to the Su-

preme Court of the United States

Notice of appeal hy the Interstate Commerce

Commission to ‘the ° Supreme Oourt of the

United States

Clerk’s certificate (omitted in orintiney Sala

oe noting probable jurisdiction Se

818

836

ape

871

878

881

* 883a

884

615 .

667

668

opeinenit ait. Ss tiuitioan eaceag, oieueas se? MOF SRS CS RNAS NE ea MR til AN

. . -

. > ‘

_ fare of the people of the County and City of Durham, many

‘ oJ

; Veu sf

fol. Be: [Pile endorsement omitted]

i IN THE UNITED STATES CT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

Civil Action File No. C-158-D-62

Stare or NortH Carouina; Duxe University; Toe DurHam

~ , CHAMBER OF CoMMERCE, INCORPORATED; RESEARCH .TRI-

ANGLE [ystiTUTE; Erwin MiLLs, Ing.; and mae TRENT ces

Semans, oe SA 2

Pee ¥ a

Tweens. STATES OF AMERICA ; INTERSTATE CoMMERCE GoMMIs- -

‘ SION; and Sournean Ramway Company, Defendants.

Couptatst (as Amended) d)—Filed_August 28, 1962.

_ Plaintiffs, complaining ing of deféndants,; meee and say:

Plaintiff; State of North ae is one of the several . oe :

fi sovereign states, interested in its citizens, users of the

Southern. Railroad, and interested in trarisportation gen-

* erally which serves the State of North Carplina and inter-

ested plirticularly. in the specific trains involved herein. .

Plaintiff, Duke University, is an educational institution

located in the City of Durham, North Carolina; said plain-

. ary tiff also owns and. operates a large, géneral hospital, and

‘some of said plaintiff’s trustees, faculty members, stud2nts,

doctors and hospital patients use the services of the South-

> . ern Railway Company and, in particular, the ‘trains in-

volved herein. Plaintiff, The Durham Chamber of Com-

" merce, Incorporated,-is a’ North Carolina corporation with

‘its office located in the City of Durham, and, as Durham's _

Chamber of-Commerce, is primarily -dedicated to the wel-, ~

of whom use the services of the Southern Railway Company -

and the trains involved herein particularly. Plaintiff,

Research Triangle Institute, is a North Carolina corpora-

tion created for tlie i af promoting research in the

}

; °

: = =r zs | | = S <

‘s co a ° e ie .* der ° ‘

SB o } peak i

q “2 » ae . tt ; ae ° . pe

swe

_ pany and the trains involved herein, in particular. |

... Defendant, Southern Railway Company, js‘a corporati

Ae state commerce and also in intrastate. commerce between

~ Nos. 13 and_16, relative to which this: action is brought, =.

Durham-Raleigh-Chapel Hill area, and its operations re-

quire the services of the Southern Railway Company cats

’ in particular; the trains involved herein. Plaintiff, E

Mills, Inc., is*a North Carolina corporation. with ( *

(fol. 2] and. manufacturing plants in the City of Durham x

_ and elsewhere and whose officers, directors, and employees

use the services of the Southern Railway Company and, in

particular, the trains involved herein. Plaintiff, Mary Trent |

Semans, is a citizen and resident of Durham County \who,. .

with her family, use the services of Southern Railway Com- .

« 2

Beye

charteved under the laws of the Commonwealth of Virginia. --

and is a common carrier of freight and passengers in inter-

points within the State of North Carolina, and in, particular |

is the operator of two passengér trains between Greensboro |

and Goldsboro, North Carolina, known as Passenger Trains \

affording the only rail passenger service between these ~“

‘two points. rere 7 , =

_ On July 8, 1959, defendant, Southern Railway Company

(sometimes hereinafter referred to as “Southern” or “Rail-

road”) filed its’ petition with the North Carolina Utilities -

Commission for an order permitting it permanently to dis-

_ continue Passenger Trains Nos. 13 and 16; that said -

passenger trains afford the only passenger service between

these two points. From the State Utilitiés Commission’s

denial of its Petition, Southern appealed to the Wake

County, North Carolina, Superior Court which affirmed

and sustained the State Utilities‘Commission’s order deny-. .

ing Southern’s Petition: Southern then appealed to the

North@arolina Supreme Court which affirnted the Superior

' Court and the State Utilities Commission, in a. unanimous

decision,rendered on the 3rd day of February, 1961. State .

_ of North Carolina, ex rel. Utilities Commission, et.al. v.

-e .

o At

_ aad

~~ -_ ‘ e -

e _ eney

® Abn,

e —2

. ae

_ r # ;

- Southdew Railway caingany: 254 N. ©. 73, 118 S. BE? 24-21.

( 1961). No appeal was taken by Southern from this deci- |

sion. Thereafter,.on April 6, 1961, Southern filed-a Peti-

>. [fol. 3] tion .with the Iiterstate Commerce Commission

_ (Finarice Docket No. 21563) again seeking authority to

discontinue the operation of Passenger Trains Nos. 13 and

‘16 pursuant tothe provigions of. Section 13a (2) of the.

-. _Interstate’ Commerce Act~(49 U.S.C.A; §13a. (2)). After —

a ‘hearing before Examiner William J. Gibbons, said Exam- —

. iner filed his report, recommending the issuance of an order.

— wing Southern’sPetition. Exceptions to said report and ©

mmended order ‘were duly filed by all-of the plaintiffs

he in, and on July 2, 1962, Division 3 ‘of the Interstate

. Commerce Commission issued an order adopting the rul-*

4 ings, findings and conclusions of the Examiner and author.

|. g izing,effective: July 22, 1962,-the discontinuance. of said =

passen;

order is. ttached. hereto. and marked ‘Exhibit “A”. “That ’.

erce ‘Commission postponed the effective date |

nation of

July 16, 1 2. these plaintiffs, in contemplation of filing

‘ Petition. for reconsideration by the full Interstate Coth-. —

erce Commission of said Division’s order, filed a Petition on

tion\importance. This petition was denied by order of the

Interstate Commerce Commission of August 8, 1962, ‘the.

effectivé date of which was determined.by- the ‘Cominission

to be August 23, 1962. A true and correct copy of said: |

7 order is attached hereto and marked as. Exhibit “B- Woe

: > (This setion is 5 briaghs to annul, set ‘aside and enjoin. the ‘

: certo and enforcement of said order of Division 3 of

the Interstate Commierce Commission which has the effect

‘of a final: order, of the Interstate. Commerce Commission

under the general rules of practice of said Commission.

trains. A true and correct copy of said final: — an

ring service date of July 20, 1962, the Inter- aie

of-the afordsaid Order, (Exhibit ‘A’), pending the determi-

e Petition requesting a determination of the ~

presence of an issue of general transportation importance,-. -

d a copy of, said Order, identified as. Exhibit ‘B’, being at-- _

\ tached hereto ‘and made a part hereof.” Thereafter, 0 ae |

requesting the Interstate Commerce Comniission -to deter-~ yee:

mine that this case involved an issue of general transporta-

oie en ee

{fel.4] Southern Railway Trains Nos. 13 and 16 provide |

the last remaining rail passenger service between Greens- —

boro and Goldsboro, North Carolina. Bhey are, operated

~ over track,gnd right-of-way leased to the Southern Railway

Company by the North Carolina Railroad Company, a cor-_ -

poration, the majority o the stock of which is owned by .-

' the State of North Carolina, and a discontinuance by South--

. ern Railway Company of the operation of these trains .

- ‘would constitute a breach of the lease agreement under

which Southern is utilizing¢he track and right-of-way upon: _

te. . ie

pee

which these trains ope

Southern Railway Compariy is not a financially depressed =x

_, ham, Raleigh, Smithfield, and others; further, said discon-

_ tinuance will leave the cities of Durham, Burlington,

Graham, and surrounding areas totally and completely

without any: << passenger service; Southern. does not

propose to discontinue its lucrative "freight business

through this important section of the State; it does not |

propose to abandon its total operations between Greens-'

boro and Goldsboro, it simply proposes to. abandon com-

pletely its rail passenger service constituting that portion

of its operation which it deems to be unprofitable. Further-

more, it has for years discouraged the use of said passenger

‘trains so as to make their. operations less attractive to:

- .* passengers and less profitable. -- ae

“aie

, ‘That plaintiffs reasonably fear that, unless restrained, ~®

the defendant, Southern Railway Company, before notice

can be isszed and-the hearing had, will cause immediate

ey _¥g : Ae shy: 2 : »

. 68

,. o |

and irreparable injury, loss ssid Senate to ss plain

and to the members of the public generally which these

[fol. 5] plaintiffé represent by hegescsrns et the operation ©

of said. passenger trains without furthe notice. Further-,

more, unl e aforesaid order of the Interstate ‘Com-

- merce Commission be vacated and set aside and an injune-

. tion be issved restraining Southern. from discontinuing the

. operation of said passenger trains, immediate and irrepa-

- rable injury, loss and damage will occur to these plaintiffs

and tothe communities served by said passenger trains \

generally before notice can ‘be issued and hearing had. In.

this connection, plaintiffs would show that the continued,

: ¢ following particulars, among others, to wit:

(a) For the satisfactory performance, by military and

‘governmental personnel, of their missions for the U. S..

Army. at the Office of Ordinance Research located at Duke

University, Durham, North Carolina ;.

~ (b) In providing transportation | for trustees, faculty

members, students and other personnel connected withthe _-

schools and universities located 1 m the area served by said

: passenger trains; ee /?-

(¢) In providing as a matter of médical necessity, trans-

portation of patients from their homes to Duke Hospital, , - 7

athe physical condition of many of said patients being such

that transportation by other means is impossible; -

(d) In carrying on, and in assisting the growth and

development of vital scientific and engineering research

services to foandatiye. corporatioti#, and governmental _.

agencies, by the vafious medical centers, The “Research

Triangle Institute, The Nuclear Research Center, The

Computer Center, The University of North Colina, and

the many otk®r research and study facilities i in said area>

(e).In attracting, to the area. served by. said passenger

trains industrial . development and in holding on to the |

being vital to the economy of North Carolina and to the —

welfare of her citizens. — ;

_ Many: industries already established there, said industry . .

“eninterrapted operation of said passenger trains-is-neees——-—~—

\ P

Sp 6 ; . i ; 5 r ‘

—*. [fol 6) “(#) To: oleae ssiaily a large portion . of’ the. .

by said passenger trains ;

* ea

- 8°

Ds That, shina to: the charter issued by’ the ‘State of

‘North Carolina to the North Carolina Railroad Company,

‘pany and Southern oxen 9 Nacho defendant herein;

‘ ‘that a copy of said lease agreement, identified as Exhibit

_ #C”, is attached. hereto and, by reference, made a part

sail “agreement imposes upon defendant, Railroad, the

‘obligation to continue the operation of the passenger trains

_ involved in this action; ‘that, further; any discontinuance

. of said trains would constitute a breach of, the provisions

Bete of said lease —— by the ‘Railroad. °

c ie

_ purporting to authorize Sduthern Railway Company to

discontinue the operation of its Passenger Trains Nos..13

and 16 between Greensboro and Goldsboro, North Carolina,

‘others, in that:

ets Mehie Karin eee . Sates Sb a Se pea ta he

“U.S.C.A. §13a (2)), under which the Interstate Commerce

Commission purpo. aga to allow Southern’s petition, is un-

constitutional 6n its face and ‘Ym its application to the facts

“© - involved. herein in that it violates, among. other articles,

tion, it that it is aw attempt by the Congress to éonfer

population of North Carolina residing i in the-aréa | served 7

J. = ~—_—s..__ Artiéle I, Sections 8 and 9, of the United States Constitu-

-(g) And in other partidulars n not epecidinly enumerated

. Atigust, 1895, betweei-said-Nétth Caroljaa Railroad Com- _

* hereof; ‘that, viewed in its entirety and from its four —

es: oem and in the light .of the circumstances existing and -

ounding the parties at the time of its execution, said :

‘That the order of the Taterstate Csctneres Commission

is void and unenforceable for. farthtr reasous, aoaens

‘(a) Section 13a (2) of the Interstate Commerce ‘Act (49 —

| = _. ~ . upon’ said Interstate Commerce Commission j iction —

4 over intrastate’ somumeree, whereas’ the United Stites Con- .

@ : o

ig “ ;

a ony

Se 3 6 sf

“Sy

BS;

& *

;

“~

[fol.8] ties in the present. proceeding’ and is, therefore,

: res adjudicata, Therefore, the only-question properly to °

oe have been adjudicated by the Interstate Commerce Commis-

‘ é : <

[fol. 7] stitution confers upon. Congress the pdwer els ‘to

: regulate commerce among the several states (interstate

commerce ),° ‘and the aforesaid statute purports fo: confer

upon’ Congress the power to delegate jurisdictionto the

Interstate Commeree Commission to regulate’ intrastate

- ggommerce. To permit its application in this proceeding

“would deprive: plaintiffs of their: property without due .

'-process of law and would impair and be detrimental to the

public. welfare of the plaintiffs and of ‘thé general public

__ in the area e area served by said passenger et-trains;

(b) There | is no ‘substantial evidence justifying the dis-

continuance of said passenger trains, and the evidence is

completely without-contradiction that. Southern’s over-all

sults in a reasonable profit ; ©

Examiner, later sustained anid “adopted by the Commission,

were arbitrary ind capricious and are unsupported by com-

petent and substarftial evidence ; ;

(d) The adoption of the report of the Examiner i Divi-

sion 3 of the Commission constitutes an abuse of diseretion :

on ‘the part of the. Commission ; ya.

(e) The recommendéd report of. said ssid aia the

adoption thereof by rw Division 3, is not Toundad upon _

dings’ generally, and, in particular,

relative to the alleged loss which Southern contends was .

incurred in the operation of said passenger trains;

‘adequate evidentiary

(f) Prior. to the institution of this proceeding before

the Interstate Commerce Commission, the-issue of public

convenience and necessity for the continued operation of

. these trains had been determined by a court of competent

jurisdiction, to wit, the North Carolina Supremé Court,

pe State of North Carolina ex rel. Utilities Commission, et al.

73, 1118S. E. 2d 21 |

(1961); such determination by the Supteme Court, as of

v. Southern Railway Company, 254 N. C.

the time it was made, is. gonclusive and binding on all par-

Operation, including the passenger trains in a, re-. |

ae adverse change of conditions ;

°°

& : - J

* L . : seg

«sion was whether or not ther had been changes of condi- 4

. tien since tiie prior adjudication such as to warrant a ‘7

-. finding-that public convenience and necessity at that (later) .

time no. longer required the operation of said’ passenger

trains, and there was no allegation. or pot of —_ such -

| °

(g) The aforesaid crder of the Interstate Commerce.

_ Commission is arbitrary and. unreasonable-and-contrary to”

‘the overwhelming and. undisputed evidence showing ‘an

. urgent necessity for the continued operation of said ‘rail

passenger service for the convenience and neéessity of thé

public generally and, in particular, those persons. residing o

__ in the area served by said trains; )

', gated by contract to maintain and operaté said passenger’ |

‘(h) The Southern Railway ‘Company is. bound and obli- |

| trains, and the Interstate Commerce Commission had no ‘yi

‘power or authority under the Constitution or-laws of-the —

United States-to abrogate, interfere with; or’ otherwise

limit the railroad’s contraetual liability or obligation to —

provide said service, and the.aforesaid order of the Inter- |

staté Commerce Commission (Exhibit “A” attached hereto),

as well as all previous orders, issued in that Commission’s _- F

Finance Docket No. 21563, is null and void and in violation .

of plaintiffs’ rights under the laws and.the Constitution of :

North Carolina and the United States Constitution;

(i). The aforesaid order of the Interstate Commerce

‘Commission deprives plaintiffs ‘of “equal protection under:

the law” in’ violation of the Constitution o the allge

States;

(j) Said istecetato Commparee Commission ‘ghar:

“abridges the privileges and immunities of citizens of the. ¢

' United States” including these plaintiffs, in Violation of

the United States Constitution;

_ [fol. 9] ( k) The rights of plaintiffs to aod the omeention 7

of said {isenger trains continued and adequate passenger.

service rendered by the railroad ‘of property. rights, and -

the“aforesaid order of the Interstate Commerce Commis-

sion has the effect. of taking and will destroy said plain-

tiffs” property rights without compensation, all in violatiop— |

ae Carolina. ae ———

of the Consittataia of the State of North dieuiinn and

the United States; ~ #

za . (1) Said order of the Taterebite Commerce Cossndianion

. “impairs the contractual obligation” of the railroad ‘to

pravide the aforesaid rail passenger service ‘and is, there-

_ fore, in-violation: the ar roirg g of the State of N orth

‘3

‘This iostion is s brovght, under - authority of ‘and in con:

- formity with the statutes of the United States and more

" particularly 28 U.S.C.A. § 2284, 28 U.S.C.A. $1336, -28

'U.S.C.A. 2321, 28 U,S.C.A. 2325, and 49 US.C.A. §17 (9).

Wherefore, plaintiffs pray:.

(a) That process be issued against the dainithisia herein.

_ (b) "That a statutpry court be convened as roan’ by:

bs law i in cases of this nature. ~ & cles

court annuling, vacating, and setting ‘aside the July 2, 1962,

order of.the Interstate Commerce bnaaranaae in its Fi-

nange Docket No. 21563. il

‘

‘ (d) That a final order jae ssndannent be. made-and en-

fe tered by the court, permanently restraihing and enjoining

the defendant, Southern Railway Company, from discon-~

tinuing the operation of its Passenger Trains Nos. 18 and

16 between Greensbero' and Goldsboro, North Carolina.

(fol. 10] (e) Eor such other and further relief as s the court :

may deem just and proper. -

Thomas Wade Bruton, Attorney -General of Nerth Caro-—

. lina; ;

Charles ‘W. Barbee, ar. Assistant Attorney General of

‘North Carolina;

“Attorneys for State of North Gavolinn

_ _E.€. Bryson, 310 Law School Building, Duke fisies ersity, i i

i Durham, N- C., Attorney for Duke University; .

: ae a fe :

pr TERRA rc Siasive tobe

@ ,

Sas ae |

eo Victor S. nigh dx. ‘evant: Lipton, Bryant & Battle,

. a « 111 Corcoran Street, Durham, N. C., Attorneys for The

"+. Durham Chamber of Commerce, Incorporated and The Re-

search Triangle Institute ;

A. H. Graham, Jr., Newsom, Graham, Strayhoce & Hed-

_Tiek, 111 Corcoran rae. anh N4°C., Attorney for

a? a Erwin Mills, Inc. ;

-E. C. Brooks, Jr., ‘pas & Sarid Trust Building, Dur-

a ham, N. & Attorney for Mary. Trent wesc

"Attorney s for Plaintiffs.

(fol. 11] ore Bp el a ig aes es chee

» ~ + Exuprr“A” To CoMPLAINT +

INTERSTATE COMMERCE COMMISSION

_ Finance Docket No. 21563 z | d

es BT Gy

+ JULY 2, 1962

SOUTHERN RAILWAY COMPANY DISCONTINU:.

ecm ce OF SERVICE BETWEEN GREENSBORO - ¢

Se . | AND GOLDSBORO, N. C.

Decided June 27, 1962

Order ial greeting petition of Southern Railway Com-

se ‘pany to discontinue the operation‘cf trains 13 and 16

tes between Greensboro and. Goldsboro, MN. Ges es

: Arthur J. Dizon and Earl E. Eisenhart for Southern

Railway Company.

Carclins UtilNies Commission.

af Robert B. Holton, W. J. Burton, Si. ‘and R. L. Carnes

_for railway. labor organizations, protestants.

Claude V. Jones, Victor S. Bryant, E. C. Bryson, E. C.

Brooks, Jr., A. H. Graham, Jr., and rancis E. Walker

“Tor other protestants.

4 F. Kent oF for State of North Caroline: and North

———_—oer

"REPORT. OF THE COMMISSION

NIVISION 3, COMMISSIONERS TUGGLE,

~ HUTCHINSON AND GOFF

GOFF, COMMISSION ER: pa |

- Exceptions to the report of the hearing examiner recom:

- mending the granting of the petition have been filed jointly:

by the State of North Carolina, the-North Carolina Utili-

ties Commission, Duke University, Mrs. Mary Trent: Sea-

mans, Research Triangley Institute, and Erwin Mills, Inc.,

all interveners in opposition. Petitioner, Southern Railway

Company has replied thereto. Oral argument requested by

the interveners was denied by order of ,the Commission,

. Commissioner Tuggle dated February 12, 1962, served Feb-

ruary 16, 1962.

_ By petition filed April 6, 1961, the Southern: Railway.

Coinpany, herein called petitioner or the carrier, a common

carrier by railroad subject to Part I of the Interstate Com-

merce Act, requests authority, under section 13a(2) of the

act to discontinue the ‘operation of its passenger trains

Nos. 13 and 16 between Greensboro and Goldsboro, N. C.

A hearing was held in Raleigh, N. C., of which the Gov-

ernor of the State of North Carolina and the North Caro-

lina Utilities Commission had notice. Briefs were ‘filed and

a report and recommended order by the hearing examiner

was served on October 27, 1961. We are in accord with the : |

. examiner’s findings of tects and ultimate conclusions there-

on whith we hereby adopt as our own and will not. restate

’ herein except to the extent necessary for clarity of discus-

- sion. However, we believe that we should set forth our

views on certain of the issues presented. -

Prior to the filing of the petition with this. Commission,

_ the carrier on July 8, 1959, filed: an application with the

North Carolina Utilities Commission for authority to dis-. _

continue the operation of the same trains in’ question here.

After hearing, thet North Carolina Commission concluded —

that there was insufficient competent evidence in the record

upon which to base.a finding that public convenience and

necessity for the continuance of the trains no longer exists

and on issued its order of Jaquary 20, 1960, deny"

[fol. 12] ing tlie a stentien: On. atipesl, a seein of the

‘ Superior Court e Wake. County, N. C., sustaining the order

of the North Carclina Utilities Commission, was affirmed

by the North Carolina Supreme Court on February 3, 1961.

State of North Carolina, ex rel. Utilities Commission et al.

_y. Southern Railway Company, 254\N. C. 73.

. With this history of adjudication of the State proceed-

ing. in‘support of their argument, interveners at the hear-

ing on the petition before us moved for dismissal asserting

that the action is res judicata. The exaniiner has recom-

nended that the motion be overruled and interveners on

exceptions, contend error, reasonirig that the issue of. public

convenience and necessity had. been. clearly litigated be-

_tween the’ parties in the prior proceeding and was finally

determined by a court of competent jurisdiction when the

eee Court of North Carolina issued its decision on

February 3, 1961, br st the findings of the pennies

-Court.

We certainly a not canton either the competency or

jurisdiction of the North Carolina Utilities Commission or

' the Supreme Court of that State in the prior proceeding

and respect their‘decision in that matter. We also recog-

nize the finality of the Court’s decision.on questions within

its judicial sphere. However, the issue before us on ‘peti-

tion by. Southern is whether public convenience and neces-

sity. permits the discontinuance of operation of the: trains

in interstate commerce, a question arising under a Federal

Statute (section 13a(2) of the Interstate Commerce ‘Act).

Proceedings of this nature.are not dissimilar to abandon-

‘ment proceedings presented before us. Pf the latter cases,

Justice Brandeis, speaking for the United States Supreme

Court in. State of Coloradg v. U ited oe, 271 U.S. 153,

165-166 said :

Because the same instrumen ality serves : sei, ‘thes:

- gress has power to assume not only some control but

paramount control insofar as interstate commerce is

_ involved. It may determine to what extent and in what

manner intrastate service must be subordinated in

order that interstate service may be adequately rem-

dered. The power to’make the determination inheres

ME ov care me ree, % :

_ in-the United States as an incident of .its power over

interstate commerce. The making of this detprmina-

tion involves an exercise of judgment of the particular

' ease. The authority to find the facts and to exercise

_ thereon the judgment Whether abandonment is consist- .

. “ent with public convenience and — Congress ¢3

; . conferred upon. the Commission. - : )

eae that the question of public convenience and

— neceggity as it affects interstate commerce and which is

presently before us was not determined in the prior State .

proc arid the doctrine of res judicata obviously is not

' ae to the newly created n— situation. aide

. the motion is denied. ;

Interveners allege further error by the examiner. in rec-

ommending that 2 other motions to dismiss the petition be

“ overruled, namely (1) that section 13a(2) of the Actisun- . .

‘ eonstitutional on its face and in its application;.and (2). ¢

that petitioner failed to meet the applicable. regulations re-

garding proper notice to the public. .. | ;

{fol. 13] As the examiner has pointed out, it is well éstab-

- lished that an administrative agency is without power td

pass upon the constitutionality of a federal statute which

it is‘called upon the administer. See Engineers Public Ser- ..

vice Co. v. SEC, 78 U. S. App.-D.C. 199, 138 F. 2d 936,

952-953, dismissed as moot 332, U. S. 788; Painte v. District

- @f Columbia, 72 App..D. C. 131, 112 F. 93, .89; Todd v. SEC,

_ 187 F. 2d 475, 478, (6th Cir.) ; Central Nebraska Public

Power & Irr. Dist. v. FPC, 160 F. 2d 782 (8th Cir.), cer-

tiorari denied 332 U. S. 765; and Public Utilities Commis- |

sion v. United States, 355. U. S. 534, 539. But, interveners .

argue, petitioner’s ng income from freight traffic over the .

line is such that ovefall profitable operations result: there- —

from. It is.their contention therefore, that the. operation

between Greensboro and Goldsboro cannot be held. to be

‘a burden upon interstate commerce. Their gonclusion is

that any application of section 13a(2) to a situation where | ..

3 an overall profitable operation is*held to be a burden on

4. interstate Commerce results in an unconstitutional applica-

9 tion of the provisions of the statute. Th short, interveners

ainee that petitioner's net income from its freight, oper-

_ations over the line must beni given effect when considering

whether the. ‘continued operation of its passenger trains

Nos. 13 and 16 will constitute a burden on interstate com-

> merce. We think that such premise is contrary. to the.intent

_ of Congress under the statute here involved. By analogy,

interveners’ view would require a determination that over-

all“losses have resulted on traffic handled over. the line..

‘In that instance, however, petitionér could obtain adequate

relief under the abandonment prov isions of section 1(18)

of the Act. Section 13a(2) specifically. empowers the Com-

- mission to authorize the discontinuance of trains upon find-

ing that (a) the present and future public convenience and_

necessity permit of such dis¢ontinuance or change in whole

_or in part of the operation or service of such train or ferry,

and (b) the continued operation or. service of such train:

or ferry without discontinuance or charge, in whole or part, -

will constitute an unjust and undue burden: upon the inter-

state operations of such carrier or carriers or upon inter-

state commerce. (italics supplied).

The legislative history of section 13a(2) ‘indicates that

-the purpose thereof is to permit the discontinuance of the

operation of services that “no longer. pay their way and

for which there is no longer any public neeg to justify the

heavy financial losses involved.” (S. Rep, 1647, 85th Cong.).

(Emphasis supplied). In considering a ‘somewhat similar ~

contention, in Southern Pacific Co.—-Partial Discontinuance °

of Passenger a, Los Angeles, etc., 312 i; LC .C. 631, we.

stated:

“Nowhere in gection 13a(2) or elsewhere in the law is

there any requirement that the prosperity of the intra-

“state operations of thé carrier as a whole, or any par- —

-ticular segment thereof, must be. given effect. in deter-

_ mining whether the operation of an individual intra-

state train imposes an unjust and undue burden on °

interstate commerce. To hold otherwise~ would be con-

trary to. the apparent intent of the Congress. ”

Nething hes heen submitted herein to warrant a change i in

this view.

Nor can we agree with interveners that the petition : in

this proceeding should be dismissed for petitioner's failure -

fr ts : 3 ie . 3

to cbeaive the rule included in our order of November 12,

1959, Fequiring the posting of notice of the proposed dis- -

__eontinuance in each station, depot or other facility involved. .

[fol, 14] While the statute clearly requires such’ posting

* of notice in proceedings instituted under section 13a(1),

a the statute is equally clear in not providing for. such require-

. Inent under paragraph 2:

. “When any petition shall be filed with the C Comnsindion

under the provisions of this paragraph the Commission

-. shall notify the Governor of the State in which such

train or ferry is operated at least 30 days in advance —

. of the hearing provided for in this paragraph, and

such hearing shall be held by’the Commission in: the

2 State in which such train or ferry i is operated; Rest aed

_ It is further apparent that the inclusion of the. require-

ment regarding the posting of notice*in our order of No-

in not amending section 43.6 to conform to the relettering

of section 43.5 in our order’ of the above date. Since peti-

tioner complied with the rules-and regulations promulgated

by our order of August 14, 1958, and since there was no

intent that our subsequent amending order of November 12,

1959, impose an additional requirement regarding notice |

_ upon petitioners in, proceedings under section 13a(2), and

since no specific evidence has been introduced to show that.

_ the position of any of the parties has heen prejudiced or

" matérially affected by our error, the motion. of interveners-

is denied. , js

Interveners’ exceptions include. other assignments oe

’ error to.the examiner (1) in computing. the ‘revenues and.

to give sufficient weight to the overall prosperity of the

petitioner when considering whether continuance of the

operation would constitute an undue burden on interstate |

2 This ‘oversight was corrected by the issuance of the Commis-.

sion’s order of. November 28, 1961 (Ex Parte No. 217) in which

section 43.6 was amended 2 eliminate reference to paragraph (j)

of sectiqn 43.5. .

- J . .

. ,

vember .12, .1959,' and the resultant conflict between that

order and section.13a(2) was caused by an obvious error —

expenses of operation of the trains involved, (2) in failing

16.

commerce, (3) im failing 10 considie: the inerense in: the

average number of patrons in 1960 and the period of 1961 |

over the number of passengers utilizing the service in —

1959, (4). in failing to recognize that petitioner had allowed

service along and over the line to decline in order to pre- --

_-sent a plausible case for the abandonment uf

vice, and (5) in-concluding that future i

of the’ area is not dependent upon existi

, service, _ .

In his determination of the financial. results ‘a operation

the examiner has allowed or disallowed certain items of - .

“expense ¢onsistent with our prior. decisions in similar dis- .

continuance proceedings. Interveners have assailed the

methods utilized in approximating certain cost items where

_ the actual expense cannot be determined. However, they

have offered no substitute formula whereby a more sag

determination may be made. Under the circumstances we .:

_ will rely on the’ methods which have been acceptable to us .

‘in the past. |

The contention that the overall prosperity ‘of the. peti-

tioners must be given effect in the disposition of the issues

involved herein has been adequately discussed in our con-

_ sideration of one.of interveners’ motions and no further

clarification of our position in that matter is necessary.

, {fel 15] The fact has not been overlooked that there has

‘been an increase of nearly 50 percent in the daily average

number of pasengers patronizing these trains in ‘the first —

5 months of 1961. The record also discloses that the in-

- erease in the 1961 period was due largely to an increased

number of group mov ements of school children. However,

despite the increase in patronage during ‘the first 5 months -

- of 1961, passenger revenues during that period amounted

_ to only $10, 653 or approximately $26,000 less tan train and

engine crew'wages. .

The evidence of record fails to support. inherveners’ con-

tention that petitioner has deliberately discouraged the use

_of the trajns as a part of its plan to present a plausible case—

_ for discontinuing passenger service over the line. Neither.

the present nor prospective traffic on the line would justify

the use of expensive or ultramodérn equipment and,: as

etter by the examiner, we have ¢ repeatedly "held that" pio-

spective shied ‘whe toust be ecaxed to use a service have - :

no urgent need for it.

~ We have also expressed the view that wiile industrial

expansion may, under certain circumstances, depend upon

the existence of rail passenger Service, it would/appear that

prospective industries are much more interesfed in freight

' gervice than rail ‘passenger facilities. See Chicago, M. St.

> P. @ P. R. Co. Discontinuance of Service, 307 LC.C. 565

578 and Chicago d N. W. Ry. Co. Discontinuance of Ser

vice, 307 L.C.C. 775, 782.

-. From a review of the evidence of record we conclude that ..

the cost to the carrier of oyierafing the trains involved

greatly exceeds the benefit derived from said trains by, the

traveling public; that existing alternate transportation ser-

vice by rail, bus, airline and motor truck are reasonably

adequate for the transportation of passengers, and express ;

that the public will not be materially inconvenienced by the

discontinuance of the service here involved; that the sav-—

ings to be realized by the carrier outweigh the inconve-

nience to which the public 1 may be subjected by. such discon-

tinuance; that such savings will enable the carrier more

efficiently to provide transportation service to the public

which remain in substantial demand; and that the continued

operation of trains Nos. 13 and 16 would constitute a waste-

.. ful service and would impose an undue burden on interstate

commerce.

We have heretofore coneluded that we have no authority |

under section 13a(2) to impose conditions for the protec-

. tion of rail employ ees adversely affected by the discon-—

tinuance. While.it is recognized that the probable adverse

effect upon employees is a factor to be considered in deter-

mining public convenience, such probablé adverse effect ir

the present proceeding does not afford a sufficient basis to

justify continued operations of the involved trains. -

Contentions of-the parties as to either law or fact not -

specifically discussed herein have been given consideration —

and found to be without material significance or not ane

Se. er

¢ We find that the present ‘and future public convenience

and necessity permit the discontinuance ‘of service by the

Southern Railway Company of its passenger trains Nos. 13

aaa

NERA EOS NR

18 : . ; ; ; - ; af | =

an 16 between Greensboro and Goldsboro, N. C., and that

the continued operation thereof would constitute an unjust —

_,and undue -burden upon the interstate operations of that

carrier and upon interstate commerce.

An An appropriate order will be éntered. pha

“Tol. 1 16} mee Bk

ORDER | : Fi F . « Ge

Ata eee of the. INTERSTATE COMMERCE COM-

’. MISSION, Division 3, held at its office in Washington,

eee D. C., on the 27th day of June, A. D. 1962.

3 Finance Docket No. 21563 -

’ SOUTHERN RAILWAY COMPANY DISCONTINU: .

ANCE OF. SERVICE BETWEEN GREENSBORO -

e AND GOLDSBORO, N. C:

rivestignticn of the matters and things. ‘involved in this

_ proceeding having been made, a hearing having been held, |

and said Division, on the date hereof; having made and

filed ‘a report herein containing its findings of. fact and

conclusions of law, which report is hereby referred to and

made a part hereof : ;

It-is ordered, That fintueveners” sestions i dismiss the.

_' proceeding. be, and they are hereby denied.

It is further ordered, That the petition of the. Southern

- Railway -Company to- discontinue the operation of the pas-

_‘senger trains specified in the aforesaid — be, and it is

hereby, granted.

It is further ordered, That this wie shall be atlective

20 days from the date of service hereof ; and

‘It is further ordered, That if the authority herein. granted

is not exercised within .one year from the effective date

£ thereof, it shall be of no further force or effect.

By ‘the Commission, division 3.

Ss perks Shed Rc - - -Harotn D. McCoy, :

| Re nen F Secretary. — -

_ Finance Docket No. 21563°

ANCE OF SERVICE BETWEEN GREENSBORO |

AND GOLDSBORO; N: C..

Presence of an Issue of General Transportation Importance.

PRESENT: KEN NETH H. TUGGLE, Commissioner, to

signed for action thereon.

Upon consideration of the record in the above-entitled

‘proceeding, including the petition: of the State of North

‘Triangle Institute, Erwin Mills, Ine., Duke University, and

provisions of section 1.101(a)(4) of the ‘General Rules of

_ Practice before the Commission, for a determination of the

presence of an issue of genera] transportation importance ;

and ~ cs

It appearing, That the Commission, Division: 3, by its re-

, port and order decided June 27, 1962, and served*July 2

. 1942, granted the petitien of the Southern Railway Com-

pany to discontinue its passenger train service between

Greensboro,and Goldsboro, N. C., which order is to become

effective 20 days from its date of service ; and - ,

° It further appearing, That the petitioners herein hes

complied with the provisions of: said section 1. 101(a)(4)

of the General Rules of Practice and that the question of

_ the presence of an issue of general transportation im- |

: : 19,

(faery. :

Cea ‘Exaorr “B” ro Conruannt

7 | ‘* SERVICE DATE

2 JULY 20, 4962 ©

ORDER :

SOUTHERN RAILWAY COMPANY DISCONTINU- |

: In the Matter of.a Petition for. a Determination of the

whom the above-entitled. matter has been as--"

Carolina, the Durham Chamber of. Commerce, Résearch .

Mrs. Mary. Trent Semans, filed July 16, 1962, under the ~*

portance. will become moot if the order of the Commission; »: 39

Division 3, decided June 27, 1962, is to become effective:

. : : } e az ‘ + ats

e ’

2 Riactat og oo ; A ;

It is ordered, That the efféctive date of the order of the

Commission, Division 3, decided June 27,\1962, in this pro- -

ceeding be, and it is hereby, postponed pending the deter-

mination of the petition requesting a determination of the.

'. presence. of an issue of genéra ransporéation importance.

Dated at Washington, D. €., this 18th day of July, A. D.

1962. -

+ x ‘

=“ \

. By the Commission, Commissioner Tuggle. ak

ae ‘ - Hanowp D. McCdi

ies Maher ee -.\- Secretary. \,

Weg). baad 2 we eles | rs X\

" [fol. 18] ee 0 ees Pay Gaeages

Exar “B-1” To CoMPLAINT - eg

SERVICE DATE

AUGUST 8, 1962

aS :

- Ata General Session of the INTERSTATE COMMERCE. -

. COMMISSION, held at its office in Washington, D. S. on. .

the. 6th day of August, A. D. 1962.

; ae Finance Docket No. 21563

* SOUTHERN: RAILWAY COMPANY DISCONTINU..

- ANCE OF SERVICE. BETWEEN GREENSBORO

AND GOLDSBORO, N.C. >>

Upon consideration of the record in ‘the above-entitled |

- proceeding, including the petition of the State of North .

_ Carolina, the .Durham_Chamber of Commerce, Research |

Triangle Institute, Erwin Mills, Inc., Duke University, and —

Mrs. Mary Trent Semans,’ filed: July 16, 1962, under the |

‘provisions of section 1.101(a)(4) of the General. Rules of

Practice before the Commission, for a finding that this pro-

ceeding involves an issue of general transportation im-

portance; and —

‘

y ; . ze e . : se, Mie

° oq @

. ° - .

¢ et .

8) ‘ ' / .

° . ae : . e

‘ °

‘

“a

A .

‘It appearing, 7 no issue of general transportation im-"

portance is involved in the proceeding :

It is ordered, That said petition. he, and it is hereby, de- sy

‘nied, and the order of June. 27, 1962, be, and. it is-hereby ©

made effective 15 days from the date of service hereof.

By the Commiasisn. :

Hanotp D. McCoy’

‘ > Secretary. -

(Sea) - : Ree es

% ‘*¢ % a . . 3 : | : : . : \

- {fol.19] _-_[Fileendorsement omitted] ‘|

| INvTHeE Unrrep Srares Disraict Court tC

‘For THE Mp.e Disraicr OF. NortH Da |

> Civil Action they No, C- 158-D-62 \

\ .

\ \

\ . .

iN :

\ —Filed September 10,1962

The Defendant, ‘Southern. Railway Company, answering

\ [Title o 0 itted) | .

\ serene or SouTHERN Ratway Picardy ;

: = Cecepldiat of the inmsaniins alleuse and Bays:

1. .

It is denied that many people in the City and. Gian of

‘ Durham use the trains ‘involved in this proceeding. It is’

:-~-denied that the operation of the - Research Triangle re-

" quires the services of these trains. It is denied that the °

_ Officers, directors and employees of Erwin Mills, Inc. use

. [fol. 20] the services’ of the trains involved in this pro-

ceeding. Except as herein. denied, the allegations of Para- ;

graph 1 are admitted, ge. are

22 a

Ne leg

‘The allegations of Paragraph 2 are admitted. In this

connection, it is specifically alleged that Greensboro is on

“.the main line of the Southern Railway, Company and it is

serve by five (5) trains daily in each direction between

Wash¥tton, D. C., Atlanta, Georgia, dnd other points,

and two (2) trains daily i in each direction between Greens-

boro and Asheville via Winston Salem; that Raleigh is

on the main line of the Seaboard Airline Railroad Com-

.pany and is served by six (6) trains daily in each direction

between Richmond, Virginia, and points North, and Florida

- points and Atlanta and Birmingham, and one (1) train

daily in each direction between Raleigh and Portsmouth,

Virginia; that Selma, North Carolina, is on the main line

of the Atlantic Coast Line Railroad and is served by three

(3) trains daily in each direction between Richmond, ,Vir-

ginia, and points Northy and Florida; that Goldsboro,

North C&rolinagis on the Atlantic Coast Line Railroad and

is served by one (1) train daily in each direction between"

Rocky Mount and Wilmington, North Carolina, which con-

[fol. 21}: nects with other trains at Rocky Mount to provide

' through sleeping car service bétween Wilmington, North

. Carolina, Washington and New: York. .

It is denied that the passenger trains involved in ‘this

proceeding afford the only passenger service. between

. Greensboro and Goldsboro, the truffi being that passenger

service between the two points is provided by numerous

_.. busses. In addition, the Cities of Greensboro, Raleigh,

.’Sélma..and Goldsboro are served by passenger trains as’ .

"+. deseribed in: Paragraph 2“abéve. Except as herein denied, -'

the allegations of Paragraph 3 are admitted. In this con- ~

nection, the Defendant attaches hereto as its Exhibit No. 1

.a true and correct eopy of the ares of Examiner William oe

“\ J. Gibbons. os és

The sits of Paragraph 4 are admitted.

5.°

It is denied that the discontinuance of the operation of

the trains involved in this proceeding would constitute a

breach of the lease agreement with the North Carolina

_ Railroad Company. Except as herein denied, ee

of Paragraph 5 are admitted... pe

[fol. 22] Tae 6.. a a

It is.admitted that Southern ailway Company is not. in |

- default in the payment of any of its financial obligations;

that the Southern. -Railway Company does not operate at

a loss; that the passenger trains involved in this proceed-

ing are the only passenger trains running between Greens-

boro and Goldsboro. Except as herein admitted, the alle-

gations « <3 aden 6 are denied. '

; | <A

The diiitiina: of Paragraph 7 and each ‘subdivision

thereof are denied. )

“ See ete |

~ It is déuied that the lease between the Southerri Rail-

‘ * way Company and the North Caroljna Railroad Company .

imposes upon the Southern the obligation to gontinue the

operation of the passenger trains involved in ‘this action

or that the discontinuance df such trains would eonétitute

a breach of said.,lease. Except as herein denied, the alle-

gations of Paragraph 8 are admitted.

oo Be

The allegations of Paragraph a and oil suibdivi ision

thereof are Gomes. ;

- [fol. 23] 10.

The allegations of Paragraph 10 are admitted.

ms Wheretore, having fully answered the. Complaint of the .

- Plaintiffs, the Defendant prays that this action be dis-

"missed, that ths ents of, this action be pie to ie Plain.”

* tiffs, and for such other and further relief. as the eae:

_ may deem just and proper. —

Southern Railway Company, By: Earl E. Siscaberi,-

fe ~ Jr, P. O. Box 1308, Washington 13, D. Ys James -

rey: "> 7 &, Bisthine.

Joyner & Howison, By W. T: J oyner, Jr.

oe (tah 28° * ce A.

Rige eas 5 Exmert 1 To Axgw eee

ei ~ INTERSTATE C COMMERCE COMMISSION

ot ds «Served Obtober 27, 1961 ©

_NOTICE TO THE PARTIES

Mreaptions, if any, must be filed with the Secretary, IN-® *

- TERSTATE COMMERCE COMMISSION, Washington, *

egg. & days from the date of service shown above, or within such

further period as may be authorized for the filing of such

_ éxceptions. At the expiration of said period for the filing

of exceptions, the attached order will become the order.of _

the Commission and will become effective unless excep- .-

tions have been seasonably filed or the order -has been -%

_ stayed or postponed by the Commission. If exceptions are

., , filed, repiies to exceptions may be filed within 20 days after

' , the final date for filing of exceptions. “It should_not be

assumed that the recommended order has become e ive .

as the order of the Commission until a notice or order’ to |

- effect, has been Lg ae bth - .

toe

sc Railway Company.

. Finance Docket No. 21563 |

. SOUTHERN RAILWAY COMPANY

‘DISCONTINUAN CE OF SERVICE BETWEEN

GREENSBORO AND plcaniaseaces N. C.

j 3 ¢

Desi ‘

° fi -# as

i: Wottons of protestants , to dismiss proceeding over-__

Ty) Order granting | alia of Southern Railway —s

7 to discontinue the operation of trains 13 and 16

between Greensboro and Goldsboro, N. C. aie *

' Arthur J? Dizon and Earl E. Eisenhart. for Southern

F. Kent Burns for State ‘of North Carolina and North

Carolina Utilities Commission. —

Bees B: Holton, W. J. Burton, Jr., and R: L. Carnes

for railway labor organizations, protestants.

Claude V. Jones, Victor S. Bryant, E. C. Bryson, E. Cc.

Brooks, Jr., A. H. Grapam, Jr., and Francis E. Walker for

: _— protestants.

"REPORT AND ORDER.

RECOMMENDED: BY. WILLIAM J. GIBBONS,

Beir: _ HEARING EXAMINER |

On: April 6, 1961, the. Southern Railway Company, a

common carrier by railroad subject to Part I of the Inter-

ee Commerce Act, filed a petition under section 13a(2)”

__ [fol. 25] of the At for authority to discontinue the opera- .

tion of trains Nos! 13 and. 16 between Greensboro and

\ nk

ety

' Goldsboro, N. C. ‘A hearing was held in Raleigh, N. C. on —

July 11 through July 14, 1961, of which the Governor of .

the State of North Carolina and the North Carolina Utili-

ties Commission had notice. he supey na Railway Com-

pany wil. be referred to h as the “petitioner”, the .

Ae os Ob se

26 : ei:

railway labor alata and their representatives as .”

“employees”, and all other parties, including the State of

North Carolina and the North Carolina Utilities Commis-

sion, will be referred to as “protestants”. ‘The proceeding

has been referred to-the examiner who presided at the

hearing for 4 recommended report and order. Briefs have —

been filed. . ae Feat aa tap Sa ates | ;

On July 8, 1959, the Southern Railway Company filed an

application with the North Carolina Utilities Comizhission —

for authority to discontinue the operation of the same

' trains that are involved in this proceeding. After hearing, —

the North Carolina: Commission issued its order dated

January 20,.1960, denying the application. On appeal, a

judgment of the Superior Court of Wake County, N: C., .

affirming the order of the North Carolina Utilities Com-'

mission, ‘was affirmed by the North Carolina Supreme Court

on February 3, 1961. State of North Carolina, ex rel.

Utilities Commission et al. v. Southern Raitlway,Company, ._

254 N.C. 73. | ES Niels * a ba

At the outset of the hearing, protestants filed three

separate motions to dismiss the proceeding on the gragnds |

that (1) section 13a(2) is unconstitutional, (2) decision of

_ the Supreme Court of North Carolina which sustained the |

order of the State Commission is res judicata, and (3) no

proper notice of the hearing was given as required by law.

- It is well established that an administrative agency is

without power. to pass upon the constitutionality of a

federa! statute Which it is called upon to administer. See

> Engineers Public Service Co. ¥. SEC, 78 U. S. App. D.C.

199, 138 F. 2d 936, 952-953, dismissed as moot 332 U.S.

788; Panitz v. District of Columbia, 72: App. D.C, 131, |

FB. 23, 39; Todd v. SEC, 137 F. 2d: 475; 478 (6th Cif); |

Central Neiraska Public Power & Irr. Dist. v. FPC, 160°”

F. 2d 782 (8th Cir.), certiorari denied 332 U.S.-765; and”

Public Utilities Conimission v. United States, 355 U.S. 534,

With respect to the second motion to-dismiss, it is thé

position of protestants that the matter has beeri conclusively

adjudicated by a court of. competent jurisdiction and that

. all parties are bound by such detérmination in the absence -

of an allegation or showing of.a change of conditions, and

‘since no change in conditions has been’ alleged or shown,

the decision of the Supreme Court of N orth Carolina,

supra, is res judicata. — raat

. ‘In the past, this Commission has superseded court deci-

‘. . sions when the applicable statute clearly indicated that it

_ should do so. Chicago, S. 8. @ 8S. BO’R., 234 LC.C. 34; ©

-. Street Elect. Ry. d M. Coach Employees v. C., A. @ E.R.

[fol. 26] Co., 234 I.C. C. 301; and Sprague v. Woll,%122 F. 2d

128, certiorari denied 314 U. S. 669. The jurisdiction of d

this Commission over the subject matter of this proceed-

ing has been established by virtue of the denial of peti- . °

_tioner’s application by the North Carolina Commission and |

"the subsequent filing by petitioner of the petition herein. —

After the jurisdiction,of this Commission has been properly

invoked, section 13a(2) contemplates that the matter be

tried de novo-and that the prior determination by the ap-

propriate State authority is of an advisory nature ouly,

_having no binding effect upon this Commission.’ To hold

otherwise would render section 13a( 2) ineffectual or wholly

inoperative. Moreover, section_]3a(2) raises an issue with —

respect to the burden on. interstate commerce, an issue

which neither the North Carolina Commission nor: the

North Carolina Supreme Court was empowered to deter-

mine. The doctrine of res judicata does not preclude re-

litigation when a new-or different claim or issve is pre-.

sented. For the above reasons, the examiner concludes

that this Commission is not bound by the order of the

North Caroling Commission or b¢ the State Court deci-

_ sions which edthatorder. ~ .

Protestant’s third motion to dismiss is based upon the

ground that petitioner did not post notices of its proposed

discontinuance in its stations, depots and passenger cars

as required by law. In support of this motion, they con- ‘

- tend that the applicable regulations (49 CFR 43.1) specif- ee

ically state that the rules apply to a “notice” under section. Pa

tt} of the Act, or to a “petition” under section 13a(2),

ye 18a (2) ‘sondiiia? ‘among other ‘thins, that this Com-

‘mission “is authorized to avail itself of the cooperation, Services,

records. and facilities’ of the authorities in’such State in the per-./ |

formance of its functions under this paragraph.” :

ron RereReeTeNS as AS ch SIRS AT IG BORA SP Ge peaks a, RD a! ited ar eas ae

eee ee

and, further that section 43.5(j).of the regulations requires _

_ that a copy of the notice of the proposed discontinuance

for authority to effect the discontinuance of a train shall | |

tions, paragraphs (a) through (k), specifically applies to.

- be posted “in a conspieuous place in each station, depot or ——

other facility involved, including each ferry-and each pas- —

Senger car. ” (49 CFR 43.5(j)).

It is to be observed that the regulations define the te er —g

. “notice” as a notice provided for in section 13a(1) of

. Act, and the term “petition” as a petition filed under sec- °

tion 13a(2). (49 CFR 43.2). Section 43.5 of the regula- | 3

a “notice” in a section 13a(1) proceeding, and section .43.6,

‘paragraphs (a) through (d) specifically applies to a “Petry

tion” in.a 13a(2) proceeding.’

Among: other things, section 43.6 provides that petitions

contain information required by.'section 43.5 excepting

[fol. 27] paragraph (i) thereof. (49 CFR 43.6). By re- .

' quiring all other: information contained in section 43.5 ex-

cepting paragraph (i), section 43.6 would appear to re-

quire the carrier to comply with the. notice posting re 3

quirement of section 43.5,(j). ©

Despite the language. of” section 43.6, duch a requirement

on the part of the earrier was never inténded i in a section

13a(2) proceeding. As origifially issued by this Commis-

“sion on August 14, 1958, paragraph (i) of section 43.5 con-

tained the requifement with respect to the posting of no-

tices in a section 13a(1) proceeding, and section 43.6, relat-.-

ing to petitions, required the information set forth in section

43.5 excepting. paragraph (i) thereof. (23 F.R. 6378, Au- — .

gust 20, 1958): Thus, it is clear that, as originally issued,

the applicable regulations did: not require that the notice.

called for in a section 13a(1) proceeding be required in a.

- section 13a(2) proceeding.

By subsequent amendments to the regulations on No- a:

vember 12, 1959, a new paragraph (i) was added to’section

43.5 and the then existing paragraph (i) was amended and

redesignated paragraph (j). (25 F.R. 434, January 20,

1960). No amendment or change in section 43.6 was made

at that time and through inadvertence or as a result of-an

? Sections 43.7 and 43.8 apply to notices and petitions.

’ tified as trains 13 and-16, operate daily between Greens-

_oapparent mishap, the reference to paragraph (i) was re-

tained in section 43.6 when it (paragraph (i)) should have

_ been relettered paragraph (j). Thus, thé only conclusion

that can be drawn from the administrative history of the

applicable regulations as well as from the contemporaneous

- construction placed thereon by this Commission is that the

. type of notice required in a section 13a(1) proceeding is.

not required in a section 13a(2) proceeding. In this con- 3

nection, see Pennsylvania R. R. Co.—Discontinuance of ©

Passenger Service, Camden-Pemberton, N. J., F. D. No:

20553, decided June 6, 1960. To interpret the regulations

differently would be inconsistent with the obvious intent

expressed in sections 13a(1) and 13a(2) of the Act. . —

For the reasons Atated, the 3 motions of protestants -

- above-described to’dismiss this proceeding should be over- |

ruled. x cy Cane et ao : P

The trains. sought to be discontinued, hereinafter iden-

boro and Goldsboro, a distance of 129.1 miles. As pres-

ently scheduled, eastbound train 16 leaves Greensboro at

6:10 a.m., and arrives at Goldsboro at 10:45 a.m.,.serving .

12 intermediate stations on regular. stops and 9 stations .

on flag stops. Train 13 leaves Goldsboro at 3:05 p.m., and

arrives at Greensboro at 7:50 p.m., serving 10 regular in-

termediate stations and 11 flag stops. These are the last

- two° passenger trains operating in an east-west direction

between Greensboro and. Goldsboro. Appendix. A hereto’

shows the schedules of the trains, the regular stops, flag

stops and the populations ‘of the cities and towns served

by the trains. : eae

[fol..28] The trains regularly consist of a 1500-horse-

power diesel electric locomotive, a passenger coach, and a -

combination car for passengers, baggage and express. In

addition, on the portion of the run between Raleigh, N. C., ~~

- and Greensboro, each train handles a sleeping cary which,

in turn, is handled on other passenger trains of petitioner

‘ between Greensboro.and Washington, D. C., and on trains”

of the Pennsylvania Railroad between Washington and

4° New York City, thus providing through sleeping car ser-. -

'. ° vice between Raleigh, Washington, Philadelphia and New

York City. The trains carry express but no mail. The

eee parr are operated ber a 5 man railroad crew aaaieliens of

.°. @ @M engineer, fireman; conductor, flagman, and, brakeman.

Although one

sary in the ope

sees cers of working

‘During the pe

passengers carri

_ on'each train and ‘average passenger _ per train mile

| Were as follows: ?

| Z " Passengers. te Sa Sade:

m 1959, 1960. 1961 (5 mos.)

B Train 13 6,462 7,076 | 4,384

Train 16 7,789 .- 7,700 4,550 |

: Total .. 14,251 14,776 8,934

ee Daily -Average “e ;

See > 1959,. 1960 1961 (5 mos:)

Train 13 SS 193 29.0 a

Train 16 21.3 21 ~ 30.1.

Total 195 20.2 (29.6.

Average Passenger Mile Per Train’ Mile

) 1959 1960 -. 1961 (5 mos.)

‘Train 13 = ee i 10.67".

Train 16. 7.16 7.50 9.27 -

Total . 6.83 S2 coe | aoe

crew makes a round trip, two crews are neces- ©

ration because of limitations on the num-

days. In addition, a pullman conductor and

a porter work the s

ping cars and an express erceeitn. ted

works: the trains 5 days a week.

_ indicated below, the total stihl of :

on trains 13 and 16, the daily average

: Appendix “By shows the .on-and-off ‘passenger count at

* .. each station for train 13.in 1960 and the daily average at.

_- each station. Appendix “C” shows similar data with Te-

spect to train 16 in 1960. In 1959and in the first 5 months

of 1961, the pattern of entrainment and detrainment was ~ :

substantially the same.as in 1960. As

' tistics, the ‘overwhelming majority of

ee less than 1 ane a day boarding train 13 or

aloe

by these sta- ©

e stations served

: 31

“16 ‘of the total passengers (7076) pee by: train 13 in

- [fol. 29] 1960, 989 passengers entrained at Goldsboro, 826

‘at Raleigh, 2,929 at Durham and 1,464 at Burlington, and

5,048 passengers detrained at Greensboro. Of the total -

‘passengers (7,700) carried by train 16 in 1960, 5,101 en-

_ trained at Greensboro, 112 at Burlington, 775 at Durham

and 667 at Raleigh. All but 1,279 of these passengers on

. train 16 detrained before reaching the end of the line at.

‘Goldsboro, the heaviest detrainment (2,712) occurring at

Durham, and at Burlington and Raleigh, with 1,275 each.

In.1948, both trains carried 56,739 passengers, an aver-

age of 77.51 per trip, as’ compared with a total of 14,776,

or an average of 20.19 per trip, in 1960. During the same

period, total passenger. revenues declined from $60,534

Or an average passenger revenue of $82.70 per trip, to

“$21,135 or $28.87 per trip. In 1959, 1960 and during the

first 5 months of 1961, the ‘average revenue per passenger

was respectively, $1.39, $1.43, and $1.19. Each train &arns

. from 21 to 22 cents per train mile i in passenger rvvenue, and

about 34 cents per train mile in express revenue.

As shown by petitioner’ s exhibits, the revénues derived

from the operation of the trains in 1959, 1960, and the —

first 5‘months of 1961, the direct expenses ineurred in con-

nection therewith and the expenses in excess of revenues

/ were as follows: Ls os

[ pean : “1950 es 1961 (5 mos.) ©.

- heistiiies St ee & i ;

.. Passenger ........ $.19,839- $ 21,135° $10,653

_ Express ) $ 31,875 | $31,630 § $ 4,697

Miscellaneous ................. $ ° 356 < 3360 $ 140

Total Revenes . $ 52070. °$ 53,101: - $15,490.

_ Direct Expenses -.......... $174,907 - $170,742 $70,321. ;

Expenses in ee ERE es

Revenues Jsccenqe $122,000 $117,641 $54,831

ppendix D,shows the details of the operating results for ~~ -

trains for 1960. Similar data is of record for 1959

= for the first 5 months of 1961. ra

_ < miles ed to trains 13 an

4 Soeene the wages of train and engine crews, vacation

3 :°Ci«‘(<‘

» Passenger revenues are actual as.determined from the

tickets collected by conductors, showing station to station _

travel, the class of passage and the type of ticket used. -

. When interline travel is involved, revenues are determined

on a mileage pro rate. Miscellaneous revenues represent

actual revenues received for the handling of mwspapers,

and express reyénues’ are computed by the application of

the system gvefage revenue per carfoot mile to the carfoot

16. As to the computation

allowances, payroll taxes, and equipment rental are actual

shown by petitioner’s books and records. Train fuel . :

. [fol. 30] expenses were determined by applying the system |

- average cost per on to the number of gallons. of fuel ..

consumed by these trains during a test period. - Net losses

from the operation of the sleeping car represents the excess.

of expenses.over revenues between Raleigh and Greénsboro, .

ais billed to petitioner by the Pullman Company. Locomo-

tive expenses ate computed on the system average. cost per

diesel locomotive unit mile, and passenger car expenses .

are determined on a system avefage cost per passenger car

mile. The joint facility expenses at the Goldsboro Union

Station are computed on the basis of the number of cars”

. moving in and out of the station. -

_ Expenses refulting from damage , to livestock and ‘in-

juries to psa. incurred in 1960 and. 1961, are actual.

Neither of these expenses was ‘incurred in 1959. Excluded

from the carrier’s operating costs are expenses for main-

_tenancé of tracks and structures, depreciation on equip-

_ ment, traffic and supervisory expenses,. property taxes, and.

: general expenses. Other financial data presented by peti-

_ tioner shows’ that system off-line revenues derived: from

the trains sought to be discontinued amounted to $73,960

. in 1959 and $83,034 in 1960, After reducing these amounts

. by 50 percent as the ‘cost of producing the revenue, the net

- feeder value of trains 13 and 16 was $36,980 and $41 517 /:

“respectively, i in 1959 and 1960. -

As a result of the discontinuance of these trains, peti- —

‘ tioner claims that it will realize savings of $122,837, which

‘ is equivalent to its ut-of-pocket loss in 1959. “In addition,

it ‘estimates that it will. save another oy 015 bec

te 33

‘aad up’ of station expenses ($4,046), rental for lease of

- property at Burlington ($6,820), and, heat and. light in

various stations ($4,149). _ ;

-With respect ‘to other oa wy methods of tranaporta- ;

tion, petitioner submitted data t6 show that 15 motor buses

‘operate daily in each direction between Greensboro and

Raleigh and 8 between Raleigh and Goldsboro, with.-2 -

' daily. scheduled operations in through service between

Greeusboro and Goldsboro. In addition, local bus service

_is available twice a day in each direction between Raleigh

and Durham. Most.of the buses in the area provide through -

service to and from points beyond the terminals of trains —

13 and 16, in addition to providing local service. Of the 23

i stations served by trains 13 and 16, McLeansville, Glen and

Rose are the anly stations not directly served. by meter bus.

Other rail passenger service: is available at 4 stations

- now served by trains 13 and 16. At Greensboro, 7 trains.of —

the petitioner in each direction provide daily service, and °

- at Raleigh 6 daily trains of the Seaboard. Airline Railroad

‘are available in each direction. The Atlantic Coast Line

Railroad operates 3 passenger trains daily in each direction

.{fol. 31] through Selma, and 1 train’a day through Golds. -

boro. These trains provide through service, including pull-

man accommodations, ta and from, among other. points,

Washington, D. C., New York City, Atlanta, Ga.; Birming- oa

ham, -Ala., and Richmond, ‘Va. In addition, daily air line

service*is available between. the Raleigh- Durham and the

e Greensboro-High Point Airports and Washington, D. C.,

New York, Philadelphia, Chicago and other major cities.

At present most of the express traffic originating at and

destined to Greensboro, Burlington, Durham, Raleigh,

ih ‘Selma and Goldsboro is handled by over-the- highway motor

trucks of the Railway Express Agency, although it can still

be transported via trains 13 and 16. At 8 6f the smaller

communities, which the Railway Express Agency is: not

presently authorized to serve by truck, express service is

. provided exclusively by trains 13 and 16. In the event the

trains are discontinued, the Railway Express Agency pro-

poses to handle ail of the express by motor truck. In addi-

tion, other passenger trains previously mentioned: lierein

pr express service at Greensboro, Raleigh, Selnia and.

“es

é Goldsboro, and.various bus lihes-in: the area offer a limited

ress service.

or the most part, the 7 odunty-arek through which the

trains operate is traversed by a network of paved, all |

ather highways, at least one of which substantially paral-

- ce petitioner’ s railroad. Mést of thé communities served

chy

_ Utilities Co

» by the trains are hocated on improved highways or in close

proximity thereto. In the area-served by the trains, there is

‘an average of one passenger automobile for. every -2.9

persons as compared with an average for the entire —

of one automobilé for every 3.3 persons. -

{fol. 32] At. hearing before the North Carolina Public

sion; 18 public witnesses testified as to

service provided by trains 13 and 16. In

eding, testimony was offered. by 21 wit-

the need for

thé instant

- nesses, most of whom use the trains with varying degrees

af, frequency, ‘Many of -the witnesses testified as to the. use _

of the trains by members of their families, their employees

and associates. Fifteen of the opposition witnesses, includ-

ing , college ofessors, research. scientists, business execu-

tives anc government employees, came from the Durham.

area or had @n interest there; and 3 were business men from -

Burlington. Their use of the trains is primarily for travel

on the sleeping car between Durham or Burlington and _

Washington, D.C, Philadelphia, New York City and o a

use

: intermediate points.” For persorial convenience or

of medical necessity, -these persons use the jArains instead.

_ of other available modes. of transportation. .. One witness

expressed conéern about express service t ‘and from Elon

Coll-ze,* while others. feared that the discontinuance. of

these trains would hamper: the industrial development of

the area. Through oral testimony, petitioner denied that

‘the presence or absence of rail ag aie service has any

bearing on industrial development.

’ Durham and Burlington are 55 and 21.4 rail miles ya,

tively, from Greensboro, at which point the Pullinan car on trains

18 and 16 is switched to and from other: trains of petitioner.

‘For. sometime in the past, ei service at. this station has

been provided by truck.

=—

‘4

bd ?

harms

o'7

a CD PEP I". ION 3 PGR T RG RAE Oe RENE PIOUS

‘Other evidence of : isestaabinids relates to the saalisiabioes

of the passenger stations on the line, and the deterioration

of service generally, including the lack-of dining facilities

on the trains, the failure of’ petitioner to pre-cool the cars

in the summertime and to properly heat-them in the' win-

tertime, and difliculties encountered in .securing reserva-

' tions.. At the hearing, protestants took the position that

poor service and lack of modern facilities, plus petitioner’s

failure to advertise or solicit business, dre primarily re-_

bh sponsible for the redygtion in passenger patronage. As

against this, petitioner contends that its passenger facil-

_ ities are clean, comfortable -and modern, and that in the

past efforts to attract additional patronage through ad- -

vertising and solicitation have been unproductive. :

Both at the hearing and on brief, protestants assail the

method used by petitioner in'computing many of its ex- —

penses on the basis of system averages. In the past this

method of computing locomotive and ‘passenger carex- -

penses has been approved i in train discontinuance proceed-

ings as reasonably approximating ‘the actual expenses in-

eurréd. . Louisviile d N. R. Co., Discontinyance of Service,

7 1.C.C. 173, and Missouri ‘Pac. R. Co., Discontinuance of

fol. 33] Service, 307 I.C.C. 787.: As. to the expenses at the

Union Station in Goldsboro, these expenses are actual and -

will be’ savable to petitioner, since trains 13 and 16 are the

last_trains of petitioner using that terminal. Upon :the

discontinuance. of the trains herein, the terminal expenses

~ at Goldsboro would undoubtedly be redistributed among

other carriers using the terminal. Since the terminal ex-

pense of the petitioner at Goldsboro amounts to about

"$7,000 annually,’ it does not appear that the redistribution —

_ thereof -will impose an undue—burden upon other carriers

in interstate commerce. In this connection, see’Wabash —

Railroad Company Discontinuance of Service Bétween To-—

ledo, Ohio, and Fort Wayne, ie _F. D. No. 20710, decided '

November 30, 1959. /

It is doubtful that full seendelté n should be ag¢corded to -

aigeoia for damage + to livestock. and injury to persons,

FLIES yt De

5 Terminal expenses a at Goldsboro were ©, me int 1959 and $6, 940

- in 1960.

ay Ak

RE 7

BARREL ATER LE RS

since neither of these recur with sufficient regularity to

treat them ‘as part of petitioner’s nqrmal operating ex- -

penses. Inasmuch as both items of expénse are insubstan-

> tial, the exclusion: of ‘them from petitioner’s operating re-

_ sults will not ,alter the ultimate findings made herein.*

- Except for these, thé-remaining expenses presented. by

‘petitioner are directly attributable to the operation of the

s trains and appear to be proper and fairly realistic.

‘In determining the net feeder value of these trains, the |

protestants contend that the reduction. of the gross sys-

tem-conn revenues by 50 percent; as, representing the

cost of producing such. revenues, is ly speculative.

- _ Protestants, however, suggest no tive cost formula.

In rail abandonment proceedings aswell as in train discon-

tinuanep cases, the Commission has accepted the 50 percent -

'. formilla as reasonably reflecting the cost of producing sys- ‘

tem off-line revenues: Chicago,.M. St. P. d-P. R. Co., Dis-

continuance of Service, 307 1.0.C. 865. Ini the absence of a

more precise method for determining net feeder value, the

examiner accepts as reasonable the 50 pexvont cost’ formula

used by. titioner.

It is the further position of protestants that revenues are .

| aideulada: gince no revenue wag assigned to the trains

for the transportation of pass riders. In a recent case, the -

Commission, in rejecting a similar contention, observed.

. that “constructive revenues or phantom revenues—revenues

(fol. 34] from fares never collected—are of no measurable |

‘financial advantage to the carrier, and, thus should be dis-

regarded in. the computation of total revenues.” Southern

‘Pacific Company Partial Discontinuance of Passenger

| Trains Bétween Los Angeles and Sacramento; Oakland

and Sacramento; and San Francisco and San Jose, Calif.,

F. D. 20503, decided Augnst 11, 1961. These remarks are

equally applicable here. While no doubt the carrier incurs

some expense in -the transportation of pass riders, the ex-

penses involved should be considered. as being merely in- .

cidental to the a 8 ) prithary responsibility of _—

In 1960 expenses for injuries to persons were, $500 and for

- .-.damage to livestock $50. In 1961 expenses: for injuries-to persons

was $3,500. Neither of these expenses was incurred in 1959.

| a % :

ating the trains for the’ benefit-of the public. So long as

. the trains are required to 6 erate, the additional cost of —

_ ‘earrying pass riders or d dheads is infinitesimal. Thus,

there is no basis for reducing or adjusting the a of «

these trains because of the pass riders. Similarly, there is.

_ no merit in protestants’ contention that the. computation of -

express revenues on a car-foot ‘mile. basis is im roper. See,

Chicago & N. W. Ry. Co. Discontinuance of. ervice. 307

LC. O.7%. °°

~ Another ecnifisition of sobtetniitt is that any sedate

deficit,on this line should be reduced by a percentage

,amount equivalent: to the combined federal and State cor-

porate inegme taxes. In considering and rejecting a similar :

-contention in New York Central R. Co. Abandonment, 254 °

1.C.C. 745, 755, the Commission stated:

' “The committee of Yonkers Commuters contends, in

effect, that the actual loss of $60,155 from the opera-

cause if the loss had not been incurred, applicant

would-have paid a 40 percent Fedetal income tax on

‘ah equal sum, amounting to $24,062. but obviously the. ”

loss was actually incurred, and dt cannot reasonably >

‘be considered that it was less. because applicant’s total

iuome [sic] tax might have been $24,062 less than it:

‘*would have been had it not been-incurred.” .

The findings and conclusions in the ‘above report were .

affirmed in Public Service-Commission of New York v.

United States, 56 F. Suppe 351, affirmed 323°U. S. 675, |

rehearing denied 323 U. S. 817. The -Commission has re.

‘cently reaffirmed its position on ‘this issue. See Southern

Pacific Co.—Partial Discontinuance of Passenger Trains,

- Los Angeles, etc. supra. The contention of protestants on

' this issue must accordingly be rejected.

At the hearing, protéstants emphasized the fact that peti.

tioner’s net railway operating income in 1960 was $36,-

107,599, and that its net income alone from freight: opera-

tions on the line between Greensboro and Goldsboro aver-

- ages $630,000, thus contending ‘that the overall prosperity

of the. deepen as. well as its intrastate freight ‘operations,

.tion of the branch should be ‘reduced to $36,093 be- «°

- »

ve must be given ‘effect in the Seectiiin of the issues ‘inbelved ;

- ,[fol. 35) herein. ‘With these eéntentions, the examiner dis-

~ of the ‘operation of gervices that ang longer pay their-way ~

agrees. The legislative history of section 13a(2) indicatgs

that ‘the purpose thereof. is to permit. the discontinuance

and for which there is no longer public need to justify

the heavy financial: losses involved.” (S. Rep. 1647, 85th

Cong.). (Emphasis supplied). In éonsidering a somewhat

-siniilar, contention, in Southern Pacific Co—Partia] Dis,

continuance of Passenger Trains, Los Angeles, etc. supra,

- would not be consonant with the national transportation ;

the Commission made the following pertinent statement:

-“Nowhere in section 13a(2) or.elsewhere in the law is:

_ there any requirement that the prosperity of the in,

trastate operations of the carrier as a whole, or any

particular segment thereof, must be given effect in |

determining whether the operation of an individual’.

. intrastate train imposes an unjust and undue burden.

- on interstate commerce: To hold otherwise would be

: pea to the upparent intent of the etc ney

In this same connection, the argument that losing passen-

freight rates is also untenable. In rejecting this-argument,

the Commission stated that such “theory of. regulation

policy, and would be fraught with disastrous possibilities.”

Great Northern Ry. Co. Discontinuance of Serviee,.307

1.C.C. 59, 61. Similarly, the fact that petitioner’s system

: operations are profitable is entitled to little or no weight.

See New York.Central R, Co. Abandonment, supra; Sea-

board ‘A. L. Ry. Co. Abandonment, 257 I.C.C. 758, Great

.Northern Ry. Co.—Discontinuance.of Service, supra.

? Although protestants submitted no financial data with

. | Tespect to trains 13 and 16, they contend on brief that the

maximum loss incurred by ‘the operatiqn: of these trains in

1960 was $33,688 instead of petitioner’s claimed loss ‘of.

$117,641. To reach this conclusion, protestants subtraéted

$6,940 (terminal expenses at, the Goldsboro Union Station)

| and. $41, 517 (net feeder. value) from a aatnes

* ger operations must be supported by constantly increasing -

_ Joss. Sites this amount ($70, 184)," they turther subtfacted °

‘a federal income tax deductidn (52 percent of $20, 184) of

sar ee ; 4 °

Goldsboro have been allowed, and protestants’ contention

regarding income tax savings has been overruled. In the

trains.. Petitioner claims that it

- [fol. 36] Neither of these positions can be reasonably sus-

connect&i revenue losses, however: can not be determined

from the record. But @suming tn

value of these trains will. be lost, petitioner’s minimum

' out-of-pocket loss froma the operation of these traing;.on the

- basis of- 1960°figures and aftes dedacting $550 for non-

recurring expenses resulting from i injuries to persons an

ings of $15,015 in’ —_ expenses, previously referred to

_ herein, ‘and the net“savings to be realized from the discon-

tinuance.of thése ‘trains would be at least $90,589 @ year.

On -the theory that some of the feeder value will be re-

~ ings will-be considerably én excess of $90,589 a year.

‘Among others, t ctors.to be considered in a proceed-

‘ing of this nature ake }the populations of the communities

- and the financial losses sustained by the carrier in provid-

- determination’ must be designed to protect interstate cOm.

of the carrier to continue to provide efficient transportation

. Servite to the publie generally. Thus, in determining pub-

lic convenience and necessity, the needs of the entire public,

7 There appears ‘to be a ‘mathematical error of. ec, p00" in Lad

: Aestante’ calculation. | nS

* hn

ae SE, SER RRR RACE

. . .

» .

~ od °.

\ 39

For reasons hereinbefore stated, terminal expenses: at_

foregoing computation, protestants assume, that petitioner 7

will lose all, system-conrected reven aepomes by these.

retain all of it, -

- tained. It seems obvious that petitioner: will neither lose.

nor retain all of such revefine. The exact amount of system- .

hat tfe entire net, feeder

livestock would be $75,574 annually. Add:to this the,sav-

tained, the examiner is of the opinion that the annual sav- .

served, the use made Vy the public of the trains sought to ‘

_ be discontinued, other mearfs of transportation inthe area, .

ing the service? Colorado v, United States, 271 U. S. 153. .-

Under the provisions of section 13a{2), the Commission’s

merce from onerous burdens which may aifect the ability —

_ as — from the relatively few, mnt va taken into

S a

sccount. When there is i eesti trated. “el ne the ser-

2 vice, the continuation thereof might he justified even at a

loss to the carrier. In the final analysis, however, the need

for the service must be: balanced against the losses ' sus-

~ tained, in providing the service.

That some need exists for the service of trains 13 and

16 is shown by the testimony of the opposition witnesses.

Their need, however, is relatively insubstantial when

viewed in the light of the density of the population of the

area segyed and the patronage that is potentially a available.’

Only scattered opposition appeared at the hearing in this

proceeding and at the hearing held by the North Carolina -

; Coulee, and most of .the o ss came from, Dur- .

ham, with virtually none-east thereof. It is obvious that

the needs of these few would. be insufficient to justify the

institution. of a new service. Conversely, it should be

__ equally apparent that under the test of. public convenience ~

and necessity, their needs no. longer Justify the continus-

tion of existing service. d

_ In arriving at this conclusion, the fact See not sean :

overlooked that there has been an increase of nearly 50

percent inthe daily average number of passengers patron-

izing these trains in the first 5 months of 1961 as compared

with the entire year of 1959.- In actial numbers, the daily: .

[fol. 37] average for both trains increased from 19.5 in

1959 to 29.6 in the first 5 months of 1961. is

These figures, however, are of minor significance because :

the comparison. of two“entirely different periods fails to

'.- take-into’ consideration ‘seasonal variations: in passenger

traffic patterns and for the further reason that the increase

in’ 1961 was due largely' to an increased number of group

movements of school ehiidren.’- Moreover, the percentage 2

Mincrease becomes even less meaningful when considered in

the light. of petitioner’s statement that 82,000. additional

passengers @ year on these trains would. be- required to

enable it to break even. Despite the increase in patronage ~

_ ‘in the first 5 months of 1961, passenger revefiues during

that-period amounted to only $10,653; or $26,020 less than

. the wages of the train and engine crews.

For most of the major communities, shiacaiki passenger

service is available by. bus and by air and 4 communities

‘ .

ee et eidiemaamiaains . e:

oi ‘

o ® -

ies y

o /

’ erty Se! ees e z . » ;

‘have rail passenger service. Only 3 small communities — :

_ would be left wholly without bus service. Likewise, express

service by motor truck, as proposed by the Railway Express

_ Agency, should be adequate for most of the communities.

While industrial expansion may, under certain circum;

"stances, depend on rail passenger service, it would appear

-that industry is much more concerned about. rail freight

service than rail passenger facilities. For this reason, and * —

because of the ever-increasing use of automobiles_in the

area involved, the economic: growth aspect of. this’ is.

’ relatively unimportant. Neither the isolated instances of

poor service nor defective train equipment sustain pro- .

testants contention that petitioner has deliberately dis- .

couraged the use of these trains as part of its plan to pre-. _-,

sent a plausible case for abandoning service on the line.

_ Neither the present nor prospective traffic on the line would -

- justify the use of expensive or ultramodern equipment on

-.these trains. As to petitioner’s failure to advertise the

services of these trains, the Commission has repeatedly held

that prospective patrons who must be coaxed to use a ser;

vice evidently have no urgent need for it. :

- In the light ‘of all these considerations, and for reasons |

hereinbefore stated, the conclusion is warranted that, the

continued operationgof trains 3, and 14 would constitute .

a wasteful service and would impose an unjust and undue

_ _burderi upon the interstate operation of ecarsenn. 4 and’

upon interstate commerce.- :

At the hearing, employees of petitioner whose jobia may .

be adversely affected as a consequence of the discontinu-.

ance herein requested that appropriate employee-protective |

“conditions. be imposed in the event the trains.are discon-

' tinued. Although the 10 operating employees on’ the trains-

will be entitled to other jobs with equal or better. pay,

other employees with less seniority may be furloughed, or

_ [fol. 38] temporarily displaced. Three station. employees

and 2 pullman employees may also be furloughed. For rea- |

sons expressed in Missouri Pacific Railroad Company Dis-

continuance of Passenger. Service, 312 I.C:C. 105, the ex-

a er concludes that there is no authority under section.

(2) for the imposition of conditions for, the protection

af employees adversely affected by the discontinuance of

intrastate trains. It is seoanhial heiasiaes that the ino

able adverse effect: which the discontinuance of service

would have. upon employees is a factor to be considered in _.

_ determining: public corivenience and necessity. In the in-

stant ing such probable adverse effect does not .

afford: a’ sufficient basis, when considered in connéctiou

with all of fhe facts hereinbefore discussed, to justify the

continued operation of the trains.

Contentions of the parties as to either fact or law not BS

specifically discussed herein have.been given consideration

. and found to be without material significance or not justi-

fied. ¢, |

In S anticn of the petition. here, the akon ad-

duced at the hearing, the contentions of the parties, and -

being fully advised in the premises, the examiner is of the

opinion and finds that present and future public conve-

nience and necessity permit the Southern Railway. Com- |

pany to ‘liscontinue the operation of its Pata ‘trains .

Nos. 13:and\16 between Greensboro and Goldsboro, N. C., -

and that the continued operation thereof would constitute

’ an unjust and undue burden upon petitioner’s interstate

" operations and upon interstate commerce.

- In view of the findings herein, the examiner recommends

that the attached order granting the petition be entered.

By’ Wm. 7: Gibbons, pearing Examiner.

/s/ Ww. J. Gaszons

(Signature) Wm. J. Gibbons ;

a _ 3

> 7

: + ° -

2 oe

F .

: . .

* ‘

o ‘

. *

s Se pee

2 es

an 5

: =

‘. ,

Ae Y, = 3 ®

s 3

> 4 :

* i Ld bad *-

. : °

— .

S s 2

. ee aa a snecipariee stn adel a

AB ee anaes ey

- .

A MI ol eee

a Avenwony A ro Eris 1 s

: Docket No. 21563 ;

- SCHEDULES OF TRAINS NOS. 13 AND 16,

‘OPERATING BETWEEN GREENSBORO AND ~

“GOLDSBORO AND POPULATIONS OF

‘COMMUNITIES SERVED. |

Read Down ~ - ' Read Up

16 - Miles». - | a

A AARON

6M10 0. Ly. icine .. 119,574. Ar. ° 7M50_

f. 6:22 . 80 MaLeanaville os 300° f.7:25 4

* 6:30 14.7 Gibsonville ....- 1,784 f 7:16 i

6:34 16.7. Elon College... _——-1,284 f 7:10°

6:50. «21.4 Burlington .... 33,199 14

f- 6:53 23.1 Graham ........... 7,723 f 6:42 3

6:57 25.8 Haw River .... 1,410 f 6:38 | |

- . 7:10 © 31.7 Mebane ............ 2,364 6:32

f 7:20 37.0. Elfland ..........:. ie £621 ©

7:25 40.9 Hillsboro ...:.... 349 6:15.

£735 464 (|: Glem -:........ n.:s.* £ 6:06 ©

- 7A55. 55.0 Ar. , Durham ........... 78,302 Lv. 5P55

8M10° 55.0 Lv. Durham .......... Ar. 5M55 :

f 8:32 68.7. Morrisville 222 f 5:19

8:39 728 Oe se 3,356 5:1

8A55 81.1 Ar. Raleigh ........... 93,931 Lv. 5

9M10. 81.1 Lwv.. Raleigh .......... Ar. 4M30

9:18 86.9. Garner .........:.. 3451 4:20

-9:30 ° 96.1 Clayton ....:.....: 3,302 4:07 -

9:39 103.7 Wilsons Mills 280 .. .f 3:57

109.2 Ar. Selma ............ 3,102 Lv. 3P50

J0M00° 109.2 Lv. Selma w00...: - © Ar. 3M50 - ay

oS ee ae eee ot oe ae

“117.7 °— .. Prineston ..c... 828

‘1938.7 eo A me A £ 3:15 3

_, 129.1" Ar. Goldsbore ww 28,873 Lv. 3P05 —

“tFlag stop.

n. s.—No population shown. .

, oe 3 * i}

i + . ’

Source: ee ee

. Southern Besiviy System Passenger Train Schedules, Ss

folder dated October 30, 1960. Population figures taken

"from Final 1960 Census, US. orp Census except

that those marked: with an asterisk ere obtained from

- Rand McNally Commercial Atlas & Marketing Guide, 91st. -

i 1960. - ) omen :

{fol. 40) I ae

Aone APPENDIX B To Exam 1. &.

“\ co eae te oe Finance Docket No. 21563 :

a PASSENGERS HAN DLED- ON TRAIN Se

OF were * DAY Of °° D/A

_ Goldsboro, NO OO 4% 2 SS

Rose, N.C. ... eg Oe Se Ui oe

Princeton, N.C. ......... seas i Ppa, See” 4

‘Pine Level, N. C. ee Bb + 16 «—

Selma, N.C.’ Oe 4O°.. 9 . 21 5

_ Wilsons Mills, N.C. .......... -. 29 ae ee

, ON, Te bo 124 2 2

Garner, N.C. ........ Yee te meee Dagan

Raleigh, N.C. .. 826 2.3 STi -- 10-.-

Gary, N.C. ri ce Free. Bee

_. ‘Durham, N-C, .......... ia 2929 8.0 453 1.2

- Glenn, N.C. .. a ei — - 538 —

‘Hillsboro, N. GC. Lael Kielce ee a. 266 4 gee

Efland, N.C.. — — wie

Mebane, N. Bee aris 117 3 ee |

re ee; B.D — 12 a.

Graham, N.C. .......:... 4 — 3 os

, Burlington, -N.C. .............- eee GOO ie ae

ie tele, BO OTT ee OO

Gibsonville, N.C., ............ 8 — (1400: «4

Greepsboro, N.C. — = = NB «dB

Fey Seis aA ee 7076 19.3: 7076 | 19.3

-*—Daily Averages ws, eae

a hoa ae

, . ° : . 7 . hd

ee ee at . s decieeahie aeeeiininet 5 oan nahaenhaie " PRE SADE GE IOI SHE

: > :

! j e

ee ae

et :

[foli 41] | 7

ee , Appexory C to Exar 1 eee ee

| ; Finance Docket No. 21563

‘PASSENGERS HANDLE ON TRAIN 16

eh: ae D/At. om. Dyat

sical, ee 5101 / 139 8 — _

. Gibsonville, N.C. -...2......- —- Po, Sierra TP

‘ Blon College, N.C. .:....- 19-- - 1 «51 nd) | uit peal si

Burlington, Mae cy 3. 1375 3.5 - :

: Gratiam, N.C. W.:.; oo a Se

Haw River, N.C. Se =e GB wt 2

Mebane,’ N.C. -................ vee 2 . 63 2

WON, FU. essences _— 2° —

Hillsboro2N. 3 odie | eee, A

Gian NO...) 7’. BD tL Se ae

Durham, N.C, ......... amo a1. 2713 74

Morrisville, ‘N.C. me —

' Cary, N.C. WN ee dB

Raleigh, N.C. ~............. 667. 18 . 1,274 3.5,

Garner, N.C. ...:............:. 49 1 17,

' Clayton, N.C. ............ RO 5 374 1.0

Wilsons Mills, ‘N.C. ........ a I aS

, Betmn, NO. os S147 a os 43.‘ 9

" Pine Level, NjC. i’ 96 | ” Shee

~ Princeton, Re 378 1.0 Yee oe

oe N. C. PERS RE & —- — 1279° 33.5

‘ex 7990 (210 7,700 210.

—Daily Average Ps eas } ;

é e s

=\ é

| : ale ; ae rm | ie

a2 46 6 : 4 36 ; : -

OS | 3g

: “se, Aprexorx Do Exuimr Ba EAE EET y

ie ieee = Finance Docket No. 21563 |

‘Geena Results of Passenger Trains 13 aad 16 between-

Greensboro, N. C. and Goldsboro, N. C. Year 1960

_ Revenisess

Te, Passenger FEET EERE habeas $ 91,135 .

ee) Say CE AAD Laie ee ea 31,630

~, Miscellaneous .. RRR APPLES PS 336:

Total Revenues . jighlissetenrdcpcubtoanianenes $ 53,101

Direct Expenses: ees aes an @ we ven

~ Wages, Trair and Engine Crews | <nnietinn § Ope

Payroll Tax Be iS : §,2350

I. Injuries to Persons + i

- Damage to Live Stock on R/W -: ok

- Pullman Co. Net Loss Hh EER Aaa 4,226 -§

" Engine House Expenses siSicniees ~ "1,590

Passenger Locomotive, Lubricants ................ : 1,816

ake Vag -OtherSuppl. ............ 372. «

< 35 Repairs. iplieniond See

<a Train Cars—CHLWit Icing ...... 7,164 §

Rie RU. enews . 447

For ° nak Bae a —Other Exps: mcohesecase . 942

er ye il —Repairs . ‘ 13,692.

. 6 gi Air Cond. Sclambebial 5 _ 95,060.

* Goldsboro Witivn Station Sn] ’ 6,940

~ Rental of Equipment aati sesteeerenseeenns "681

. Total Direct Expenses Secsiniaaiioet ath eae - $170, 742

.<Direct Expenses of Excess Revenies ............ . $117,641

PN ia Nea : \ ee ¥ Ee \\ '

C a

. a

P °

dé PRR A RI, Re SE,

- (Signature) ‘Wm. J. Gibbons

ORDER: i,

- MISSION, Division 3, held at its office in Washington,

a C. on the. day of - 2D. 1961. -

ees (Ee Finance Docket No. 21563 =

: SOUTHERN RAILWAY COMPAN Y~DISCONTINU-

AND GOLDSBORO, N. C.

_ - proceeding having been referred to and heard by the Hear-

‘ing Examiner, who has made and filed a report containing

duly submitted :

“It is ordered, That protestants’ reitlethe tg dismiss the

proceeding be, and they | are hereby oyerruled.

hereby granted.

order adopting this order.as the order of the Commission,

or a notice stating that this recommended order has be-

‘come the order of the Commission.

2 a :

herein is not exercised within one %ear from the effective

date thereof, it-shall Be of no further force or effect.

By the Commission, division a

as Harotp D. McCoy,

oe ey doe ate peaieaey,

”

-(Sean)

‘ANCE OF SERVICE. BETWEEN | GREEN RRORO )

fol. 48]: = Recommended by Wm. J. Gibbons,

a Hearing Examiner. ;

At a Session of the INTERSTATE COMMERCE COM. :

Investigation. of the matters and shes’ ‘involved in this ae

his findings of fact and conclusions thereon, which report.

is made a part hereof, neste said eee cian been

It is further ordered, That the petition of the Southern. ..

“Railway Company to discontinue the ope: tion of the pas-

senger trains specified in hes aforesaid re vt be, and it is /

_ It is further ordered, That the authority herein einer =

shall not be. exercised prior to the date of service of ap.

' And it is further ordered, That if the: authority granted

Ries Certificate to » foregoing Pepe. (omitted in

{fol 44). . (File endorsement omitted] =|

In THE Unrrap States Distaicr Court

For: THE : Mippixz District oF Norra CAROLINA

: Dunnam Division. tei

2 i "(Title omitted]

—_—

seid , 5

Aivswae OF THE Unrrep ‘Sieaves or AMERICA AND THE INTER- |

STATE Comsenyes Comaassion—Filed October 22, —

gece

.. The: United oe of America and the aPann ‘Gen.

; merce Commission, defendants in the above-entitled suit

onl answer to the Contsplaint; tate : | pais

a ite : ° ae : of « :

_ Admit the allegations of paragraph 1; except that it is

denied that many people i in the City and G unty of Durham‘

- - use the trains involved in the proceeding before the Com- _

- mission; further denied that “the operations of Research.

Triangle Institute require the services gf said trains; and

. itis further denied that-the officers, dire ors and sage cosy |

of Erwin Mills, Inc., use the services

ae II. }

haat the allegations of paragraph 2, eal ‘that. the

defendants. aver that the Counnii s10n’s Examiner and ‘

that: - ;

[fol. 45] Other rail passenge service is available at

4 stations now served by trains 13 and 16. At Greens- -

_ boro, 7: trains.of the petition¢r in each direction pro-

vide daily service, and at Raleigh 6 daily trains of the °

Seaboard Airline Railroad, are available in.gach difec-

tion. The Atlantic ‘Coast. Line Railroad’ operates &

> -passenger trains daily in eath direction through Selma,

~ and 1 train a day throu Coldsboro. These trains

2 : Z os “

PH AMARANTE D CRD HE PATS LOT RE, UI

| Sees

- 7 . ¢

ey re ee FT a

wsaitts wiinsh's service, ‘including. pullman accommo-

dations, to and from, among-other points, Washington, —

D. C., New York City, Atlanta, Ga, Binniaghom, Ala,

aes and Richmond, Va. .

(Report of the Examiner in eri ‘Docket No. 21563, S

: pp. 7-8, October: 27, 1961). This finding adopted by the ._

Commission, Division 3, in its report dated June 27, , 1962. °.

F VA

/ Itt,

; _ Admit the allegations. of paragraph 3, except that defen.

dants deny that the designated passenger trains afford the

_ only passenger service between the named points. Defen-. g

- dants aver. that the Commission found that, there is pas- _

-senger bus transportation between the naméd points. See

page 7 of Examiner’s report referred to in II above.

. Admit the allegation. of paragraph 4. - a.

7 le 3

‘Admit the allegations of the first sentence of paragraph es

“ Neither admit nor deny the remaining allegations since. they

call for an opinion regarding matter not Sc a ‘to a,

jurisdiction of the Commission. . : ete

> Answering the ‘sllegations of salami 6 defendants

- , admit that the Southern Railway Company is not a finan-

" cially depressed railroad and that it makes a profit on its . -

{f0l.46] total overall operation; that the passenger trains .

involved in this proceeding are the only passenger trains

"operating between Greensboro, and Goldsboro. The remain-

ing on are denied. - :

on Deny each and evéry allegation of ‘paragraph. , Ai

aad : . en

~“

wi ~gauaetyast of the Commission.

Answering paragi 8, admit the efistence ‘of a lease

agreement between the North Carolina) Railroad Company

atid the Southern Railway Company. Neither admit. nor

. deny the remaining allegations of paragraph 8 since they

call for an*opinion regardmg matter not — to the

Ix. ete Wer co

Deny each and every allegation of paragraph 9.

hey >” Wee : i aa M

_ Admit the allegdtion of .paragraph 10.

Further answering the complaint,. the dctendante: aver —

. that‘the action of. the Commission is valid and lawful i in all -*

respects. Except as expressly admitted herein, defendants

the extent that they are inconsistent with the averments

of this answer and with the order of the Commission “dis- :

missing the complaint. Pee &

' deny e@ch and all of the allegations in said complaint to: §

Wauenerorz; the United States of <America and the See

state Commerce Commission pray that the ‘relief prayed

for in the complaint be denied and that the complaint be"

dismis$ed, and that costs be assessed against the plaintiffs.

Robert W. Ginnane, General Counsel ; o

H. Neil Deinen Associate General Counsel, Inter: ‘

state Commerce : Commission, Washington 25, &

De-G.s Lees , .

; Attorneys fot the Interstate ‘Commerce Chenideien ”

[fol. 47] Lee ‘Loevinger, Assistant Attorney General ;

ae John H. D. Wigger, Attorney, Puen of J ustioe, :

* Washington 25, D. C,;

William H. Murdock, United States “Attorney,

Greensboro, North Carolina; |

Liges Attorneys for the United States of America.

Certificate of Service (omitted in sees)

[fol. 48].

: Barone THE Inrenstate Comacence Commession

Finanee Docket Mi

- Petition: of Southern Railway Company inde Section

*" 18a(2) of the Interstate Commerce Act for authority

‘to discontinue the operation of Trains Nos: 13 and 16

between Greensboro end nea North Carolina.

Parmox—Filed April 6, 1961

_ Comes now Southern Railway Company, a ‘carrier by

railroad, subject.to Part I of the Interstate Commerce Act,

and respectfuily requests thatethe ‘Commission issu¢ an

order ‘under Section 13a(2) of the Interstate Commerce Act

authorizing the discomtinuance cf the operation of its Trains |

| Nos. 13 and 16 between Greensburo and Goldsboro, North -

-, Carolina, and: in support thereof: shows ‘parsuant to the .

Commission’ 8 me that;

: ae

A description of the trains. proposed to a discontinued —

including the name of each station, depot, or facility affected

thereby, and the termini between which the trains operate

is attached hereto asG@xhibit 1, a timetable of the ,opera-

‘tion of Trains Nos. 13 and 16, which shows the designation

of the trains’ by number, the stations along the route served,

time of departuré from each station and the time of arrival

[fol:49] at and departure from termini. This exhibit also

shows the rail mileage. distance from Greensboro to each .

- of the other stations on the line and, with the exception of

- the small flag stop’ communities of Glenn and Rose, the

population of each station. The communities of Glenn and

Rose had no record of population in either the final 1960

- Federal Census Report nor in the Rand McNally Commer-

cial. Atlas and Marketing Guide for the year 1960. |

os ; :

| erally maatiywaitsrly direction, i is scheduled te leave Golds-

Statement in Relation to Proposed Dischdatimpaii of Trains

1. The exact corporate name and general office address

of petitioner are:

Southern Railway Company pea

P. O. Box 1868' -

Washington. 13, D.C.

2. The name, title and the office address of counsel to

whom correspondence in regard to the eae should be

e553 addressed are:

Arthur J. Dixon

General Attorney a ET oh

. P.O. Box 1808. os a

Washington 13,D.C. eo he ee

ve A complete description of the siesent service of the .

trains involved and of the discontinuance or change of .

operation or seevice prop is as follows:.

[fol.50] Petitioner sschmtie operates Trains Nos. 13 and

16 daily between Greensboro and Goldsboro with a five man

erew and with a regular consist of a 1500 horsepower road .

switcher, a passenger ‘coach and.a combine car for passen-

‘gers, baggage and express. Between: Greensboro, and

Raleigh a sleeping car with roomettes and bedrooms is oe

handled on these trains with a two-man Pullman company

crew. The passenger carrying equipment is safe, modern, 2

: air-conditioned,, has all the usual conveniences and is ade-

quate in all respects for the use to which it.is put.

The train crew has been reduced by the elimination of :

°a porter and the consist by an express car, which formerly

;,operated over the entire distance, and a box car anne

express from Greensboro to Burlingtén. - ~

The trains provide rail passenger service to and froin

and between the stations along the route shown in red color-

ing on the attached map, marked Exhibit 2. Train No. 16,

operating in a generally southeasterly direction, is sched-

uled ‘to leave Greensbeto at 6:10 a.m. and to arrive at

Goldsboro at 10:45 a.m. Train No. 13, operating in a gen-

gts

- boro at 3:05 p.m. and to arrive at Greensboro at 7:50 p.m.

The rail distance in ‘each. direction. is 129.1: miles.: These

-* trains handle passengers, baggage and express traffic of the

-REA Express Agency, Inc. These-trains also handle a

_ Pullman: sleeping car between Raleigh and Greensboro

which, in turn,°is handled on other passenger trains-of —

* petitioner between Greensboro and Washington and on pas-

- senger trains of:the Pennsylvania Railroad between Wash-

ington and ‘New York, i in connection with through sleeping

_ [fol. 51) car service between Raleigh and:-New York: No

United States mail has been handled on these trains since

‘September 14, 1957; when the Post Office Department can-

celled the transportation of mail by these trains and thence-

- forth arranged handling of the mail by highway trucks in .

_ line with a practice that had become apparent in this area

several years previously. Revenues from. the transporta-

tion of U. S. Mail up to that time ‘had constituted a very

important part of the total income earned by Trains Nos.

-13 and 16. *

Petitioner proposes to discontinue Trains Nos. 13 and 16

‘entirely and, coincident therewith, to discontinue the opera- *

‘Washington, D. C. Other passenger trains of péefitioner

Bf provide adequate daily through Pullman sleeping car ser--

vice between Greensboro, points south and west thereof and -

Washington and New York and intermediate points. This

service is also available at Greensboro to many of the

nearby communities now served by: Trains 13 nd 16 east

of Greensboro. __ (SF “| Ses

4, Petitioner. seeks authority of this Consinionon to per- |

manently discontinue the operation of:'Trains Nos. 13 and

16 for'the reasons that the direct expenses of operating them

far exceed the revenues produced hy the trains, the public

of. travel, all the mail and much of the express. formerly

transported by these trains has been shifted to over the

‘highway vehicles by the U. S. Post Office and the REA.

Express ‘Inc.; and there is no reasonable: prospect of their —

- Serving a public need or of their overcoming ‘the great loss .

incurred to provide the eervibe. ee

il 5 are < Se

RS.

anya

ww.

‘Southern Railway has sustained a wholly: ‘distributed

[fol. 52] passenger deficit which is shown for the years,

1948-1960 on Exhibit 3: In 1960, this deficit was $14,669,798

_«. computed by the Interstate Commerce Commission account- -

Trains Nos. 13 and 16 contribute substantially

to this deficit, and despite the’ provision of safe, modern

as having enjoyed a population and commercial growth

'. im recent years, the public. gatronag? of the trains has

progressively declined.

Exhibit 4-attached hereto shows the populations of the

several counties traversed by Trairis Nos. 13 and 16 as com-

pared with the population of the- State of North Carolina

and the: United States as a whole. It will ‘be noted that —

between the periods 1950-1960, gains were registered in six

_ of the seven counties. The population of Johnston County _

decreased by 4.5 percent in the ten year period, while in _—

the remaining six counties, increases ranged from 10.2 per- ~

cent in Durham County to 29.0 percent in Guilford County. .

, The average population per square mile ranges from a low .

of 79.1 per square mile in. Johnston County to a high of -.

278.6 per square mile in Guilford County, which is only

| . slightly. higher than Durham County with 374.5 per square

mile. The average population per square mile for the seven

counties is 200.4 as compared with the average for the |

State of North Carolina of 92.7 per square mile and the —

United’ States as a whole of 50.5 persons per square mile..

_ The overall population gain in the seven counties was 20.5

[fol. 53] percent, as compared with the State’ of. North

Casolina of 12.2 percent and the United States as a whole

of 18.5 percent for the period 1950-1960.

. As may be noted from Exhibit d, twenty-one of the

- twenty-three communities served by Trains Nos. 13: and 16

_ have a total population of 386,087 (Glenn and Rose have no

_ known. recorded Airey Four of these twenty-one

_eommunities (Gree

_. with a‘total population. of 245,480, or 63.6 percent of the

. overall total of 386,087, have other daily ° rail passenger

ro, Raleigh, Selma and Goldsboro) |

service available in those communities. .

Eleven of the remaining communities are located,within

from four to fifteen miles of other rail passenger service.

Re 2 a . NN NN ALE LLL LALLA LLL LAL

| “5S

- the total population, and the highway miles to nearest

other ra passenger service are shown in parentheses: = :

- Level (4), Rose (6), Wilson Mills (5), Garner (6),

Leansville (8), Cary (9), Clayton (12), Princeton (12),

Mactiaviie (14), Gibsonville (15), and Elon. College (15).

"Four of the remaining communities account for 120,634,

or 31.3 percent of the total popijation, and these communi-

ties are located from twenty-one to twenty-three miles dis- -

tant from other cities where daily rail passenger service is

~ [fol. 54] available. These four with highway distances to -

other cities having: rail. passenger service’ in parentheses —

are: Burlington (21), Graham (21), Durham (23), —_

~ Haw River (23).

* "The remaining four communities are Heeatid within ete

‘twenty-seven to thirty-seven miles from nearest cities or.

towns having rail passenger service. These four account

for 4,483, or approximately 1 percent of the. total

tion and are a: distances to other cities with rail,

." passenger. service as shown in parentheses: Mebane. (27),

Glenn (32), Efland +) and: Hillsboro (37).

. All‘communities except the communities of McLeansville,

- Glena* and Rose have daily. common carrier. bus service

directly available. These communities are located on black-

topped roads of from approximately 4% mile at Glenn to’

approximately 1.5 miles at MgLeansville and one mile at .

Rosé from main highways over which scheduled bus lines

' operate. It would thus appear that daily scheduled buses .

serve approximately 99 percent ‘of the area served by

. Trains Nos. 13 and 16.» —

- With the availability of other baile of transportation,

(fol. 55] éspecially the private automobile, local traffic is

.tapidly: disappearing from the rails, and on this line-now_

consists largely of occasional movements by Special groups

travelling short distances.

Exhibit 5 attached hereto shivers the ratio of. persons —

per registered passenger automobile i in the several-counties ~

. traversed sl Trains Nos. - and 16 compared -with the

= en

‘ Glenn was iceieey station. het: CNR: of North Carolina

'. which is now served by buses to } and from Chapel Hill.

average for the State of North Carolina. It will be noted

that the range is from a low of one, passenger automobile.

for every 3.9 persons in Orange County toa high registra-:

tion of one passenger automobile for every 2.6 persons in»

Guilford and Alamance Counties: The average for the _

seven counties is one registered passenger automobile. for —

every 2.9 persons as compared with an average for the

State of North Carolina as a whole of @ne registered pas- -

senger automobile for every 3.3 persons. It is thus apparent .

' that the average ratio of registered passenger automabiles

to population in the seven county area is ‘better than’ one.

automobile per family.* :

' _ Exhibit 6 attached hereto shows the ratio of persons to,

and towns of the seven counties traversed by Trains Nos.

13 and 16. Chapel Hill; in Orange County, is the only city

(fol. 56] listed that is not directly served by Trains. Nos.

13 and 16. It will be noted from this exhibit that the owner- —

ship of registered passenger automobiles in the principal

. . ¢ities served by Trains Nos: 13-and.16 is quite high, with —

an average registration of one passenger automobile for.

every 2:1 persons in those cities and towns as compered

with an average for the seven counties of one registered |

passenger automobile for every 2.9 persons arid an average

for the State of North Carolina as a whole of one registered.

-passenger automobile for every 3. 3 persons, as shown by

Exhibit 5. ot 3

‘Interest in long distance rail travel has become largely

limited to a few persons from Durham -who claim they

-. dislike air trayel.

In the prevailing circumstances, which include the high

incidence of private vehicles shown above as well as the

availability of other common carrier service shown below,

the population, which formerly would support much fail-

senger service no jonger will support Trains Nos. -

13 and 16 and continuance of’ the operation at the huge loss

' indicated serves no public need, constitutes-an economic

waste which deprives petitioner of its property and casts

: ° ‘ venga > >

"According to the U. 8S. Census Bureau, the average family

in the U. S, based upon the 1960 Census, consisted of 3.68 persons.

. ™

ee Ow

8 eesden ‘on sterstate Dene of the petitioner’ and

commerce generally. a i.

_ [fol.57] 5. The names of all railroads Pee eee pas-

sengers with the subject trains and the points of such inter-

ehange are listed below and are illustrated by reference to

Exhibit 7, which is a map showing possible points of inter-

change of passengers between Trains Nos. 13 and 16 and

rail passenger trains of other rail lines at Jeigh, Selma

e and Goldsboro as well as petitioner’s otheFrail passenger

trains through Gréensboro, N. C. As -indicated on — ex-

- ‘hibit, possible points of interchange are:

Qa At! Greensboro: With other passenger trains * of

~~ ~—~—Southern Railway Company , operating between

Washington and Atlanta; Birmingham and New Or-

leans, and between Ceesnenens, .Winston-Salem and

-, .. Asheville. ° ete

(2) “At Raleigh: With passenger trains of the Seaboard

Air Line Railroad operating between Richmond, Vir-

ginia and Flerida points, and between Richmond,

Virginia, Atlanta and Birmingham, and’. between

Portsmouth, Virginia and Baleigh.

'. (3) At Selma,.N. C.: With Atlantic Coast Line Railroad

- passenger trains operating between Richmond, Vir-

ginia and Florida points. +‘

(4) At Goldsboro, N. C.: With Ailantic Coast Line Rail.

road trains operating between Rocky Mount, N. C.

passenger trains of the Atlantic ‘Coast Line Rail-

and Florida points. . Pe

; Interchange ‘of passengers setwote Trains N os. 18 and 16.

_ ligible. There is some interchange of passengers at Greens-

boro between petitioner’s other passenger trains and Trains -

Nos. 13 and /16. The New York-Raleigh sleeping car |

» (handled pn Trains Nos.-13 and 16 between Greensboro and °

* Raleigh) is coupled on and off other passenger trains of

ree

Mii s

(fol. 58] and Wilmington, N. C., connecting with other — :

road at Rocky Mount om between -Richmond- rey

and other rail lines at Raleigh, Selma or Goldsboro is neg- -_

ae fore | ee Tee

; petition lasetising bitweah Greensboro wid points a

and. west thereof and Wasliington) at Greensboro. "

' man passengers from or to points south or west of Greens-.

boro detrain at Greensboro and all coach passengers to or

. from other trains detrain and board. Trains Nos. 13 and 16

at Greensboro. ;

6. A description of other common carrier service, in- .

cluding service of the subject carrier, of ¢he same kind .

rendered by the trains involved, between and at the points

described in the petition and other common carrier service

available in the immediate territory follows: .—

Trains Nos. 13 and 16 are the last. of three’ pairs of j pas-

[fol. 59] senger trains formerly operated by petitionen.on

3 the Greensbero-Goldsboro line. Discontinuance of the other .

‘two pairs of trains formerly operating on this line were

‘ authorized by the North Carolina Utilities Commission fol-

lowing application to and formal, hearings. held by that

Gommission.’ Trains Nos. 21 and 22 were discontinued on ~

September 3,.1954, and: Trains Nos. 111 and 112. were dis-

- -gontinued May 2, 1958. . a

- While Trains 13 and 16 are the last trains offering rail

passenger service between certain intermediate points on |

the line, north-south rail passenger service is available by —

other passenger trains at four a served by Trains |

_ Nos. 13 and 16 (Greensboro, Raleigh, Selma and Goldsboro). | )

Attached hereto as Exhibit 8 is a timetable showing the

_ operation by petitioner: of five daily passenger trains: in |

each direction through. Greensboro. All five of these trains

in each direction’ handle coaches between Greensboro and °

‘points south thereof and Washington, D. C: Four of these

five trains in each-direction handle Pullman sleeping’ cars

between such points as-New Orleans-Washington and New

. York; New. Sei srg aoreeenp ca agp

York; Augusta-Columbia-Was on and New York; Ashe-_ . |

ville-Washington-New. York; ‘Winston-Salem-Washington

and New York and between Greensboro-Washington’ and

New York, Trains Nos. 47 and 48 handle through coaches

between New York and New Orleans; Washington and

[fol. 60] New Orleans; Washington-Birmingham and be”

tween New York and Birmingham. . g

PADRE ASEM IES EMPRESS

’ ‘ ~

ee ee

Attached hereto as Exhibit 9 is @ timetable showing the

between Greensboro, Winston and Asheville. Trains . -

Nos. 15 and 16 handle -Pullman sleeping cars (between '

Greensboro and Asheville) and Train Ng, 21 handles a

Pullman sleeping car (Greensboro- Winston-Salem) in con-

nection with through sleeping car service between New York

‘and other Eastern cities and Greensboro ‘and Winston- ~

‘Salem.. (This sleeping car returns on Train*N6. 16 to

. Greensboro.) All of these trains handle coaches. between

Greensbero and~Asheville and Train No. 22 (Asheville-

Greensboro) handles coaches only: Trains Nos. 2t and 22

also connect with other trains’ of petitioner at Asheville,

- operating between Charleston and Cincinnati. ~

’ Attached he as Exhibit 10, is a tinietable showing

schedules of S&oard Air Line Railroad passenger trains.

through Raleigh. Four of these trains in-each direction |

provide through service between New York, Washington’ .

~ and Florida points.

Attached hereto as Exhibit 11 is a tiinetabie showing the

operation. of Seaboard Air Line trains through Raleigh.

In connection with consolidations at-Hamlet with New York-

Florida trains, three schedules are offered daily in each -

direction between New York, Washington, Richmond, At-

lanta and Birmingham. Trains 33 and 34 handle sleeping

fol. 61] cars and coaches while Trains Nos. 3 and 4 and

rains Nos. 5 and 6 handle coaches only. This-exhibit also - :

shows the schedules of Seaboard Air Line Railroad Trains _

. Nos. 17 and 18, operating between Regleigh gnd Portsmouth,

- Trains Nos. 17 and 18 handle sleeping ca¥#® and coaches in

through service between Jacksonville and Portsmouth and

_ Atlanta and.Portsmouth. we

As is: shown by Exhibit 12 attaghed hereto; the Atlantic

Coast Line Railroad operates five trains daily in each direc-:

tion throngh Selma, N. C. (two in each, direction do not

stop at Selma). Four of these:trains in each direction pro- .

vide thro sleeping car and.coach,service between New

York, Washington and Florida points. Trains N os. 375 and

376 handle coaches:only.

As is shown by Exhibit 13 attached hereto, the Atlantic |

Coast Line Railroad operates one train daily in each direc-

* Oe aS % :

Graham, (with one additional schedule daily eastbound) ;.

‘ in each direction, it will be noted, that the operations are

tion between Wilmington, N. C. and Rocky Mount, N. C.,

via Goldsboro, i in connection with through Pullman sleep-

ing car service between Wilmington, Washington and New

York. These trains handle coaches betweeh Wilmington

and Rocky Mount and through coach passengers to and from

points north 6f Rocky Mount board or detrain from con- _

- necting trains of the Atlantic Coast Line at Rocky Mount”

handling through coaches to and from Washingtoft and New

York and between those points and Florida points. f

lina Trailways operate 15 bus schedules daily in each direc- .

tion between Greensboro, Durham and Raleigh. Thirteen

of these schedules in each direction (with one. additional

westbound schedule daily) also serve Burlingtén. Eight of

° the fifteen schedules @aily in each direction. also serve —

five of the fifteen daily schedules in each direction serve Gib-

sonville and Elon College; four of the fifteen daily schedules

in each direction also serve Haw River, Mebane, Efland:

and Hillsboro (with one additional schedule eastbound

through those communities). Three of the fifteen daily

schedules in each direction also serve Morrisville and Cary.

A number of additional bus schedules operate daily except

Sundays and holidays’ between Raleigh and Durham. It

will be noted that of the fifteen daily schedules in each direc-

tion between Greensboro and Raleigh, -ten’ eastbound and,

-nine westbound schedules, operate in express service be- «

tween such points as Norfolk-Birmingham and‘ Dallas,

Tex.; Norfolk-Charlotte; Norfolk-Memphis; Norfolk-Den-

ver; Raleigh-Oklahoma City; Beaufort-Asheville; Norfolk-

Atlanta; Norfolk- Montgranery Dslias; Haleigh-Asheville-.

New York and Raleigh-Atlanta. — Ne *,

' Exhibit 15 attached hereto shows: the Atlantic Greyhound

. Lines operating. seven schedulés daily in each direction be--

” tween. Raleigh and Goldsboro. Six of these seven schedules

- [fol. 63] in each direction serve Clayton, Selma, Pine Level

_and Princeton as intermediate points. Three of the seven

schedules’ daily. in. each direction serve the intermediate

point of Wilsons Mills. Of these seven daily schedules buses

not limited to competition with Trains Nos. 13 and 16 be- .

Hh se

. . bs 61

tween Raleigh and Goldsboro and: the intermediate points.

Four south (eastbound). buses operate in through service

between such points as’Raleigh-Savannah ; Cincinnati-Beav- .

fort; Winston-Salem-Wilmington, N. C.. and Detroit to

=< ‘Goldsboro. Four north (westbound) buses operate between

’.- such points as Wilmington, N. C. to Detroit; Beaufort, N: C..

- to Cinétnnati; Wilmington, ¥ C. to Winston Salem and

* Savannah to Raleigh. :

- Attached- fomer as Exhibit 16 is a timetatile showing (at :

Table 8110)-the schedules of Trailways System buses: Ones

_ through bus is operated daily New York to Jacksonville via.

Raleigh; one through bus*is operated daily New York to |

‘Atlanta via Raleigh; one through bus is operated daily ‘New

-York to Tampa via Raleigh; one through bus is operated

daily Philadelphia to Myrtle Beach via.Raleigh; three buses.

are operated daily Boston to Raleigh; one bus.is operated -

daily New York to Raleigh for connections at Raleigh with

buses for Fayetteville and Augusta, Ga., ‘and Jacksonville.

In the reverse direction, the Trailways Bus System operates

[fol.64] one through bus dajly Miami to New York via:

Raleigh; one through bus daily Jacksonville to New York |

via Raleigh’; one through bus daily Durham Boston via -

Raleigh ; one through bus daily Fayetteville’ to New York

via Raleigh; one through bus daily Chapel Hill to Boston ,

via Raleigh; two buses daily Raleigh to New York and one

_ bus daily Raleigh to Boston. Other daily schedulés show

‘two buses Dallas to Raleigh; one bus Anderson to Raleigh;

one bus Dallas to Norfolk via Raleigh and one bus. from :

_Columbus to Raleigh. , |

Exhibit 17 attached. hereto at Table 8022 shows the Trail-

ways Bus System “operates via Raleigh, Durham, Chapel

- Hill, ae: ae and. Greensboro the — —— bus

_ service: -

_ Qne daily—Norfolk- Raleigh- Chattanoogs, Memphis and

Denver : cee

. One daily—Raleigh-Salisbury oS .

_One daily—Raleigh-Asheville - :

One daily_-Maleigh-Chattanidogs-Memphis sand —

- homaCity | : :

~ Two daily—Norfolk-Salisbury P

- One daily —Norfolk- Knoxy ille and a Memphis,

’

and in the reverse direction:

4. "One daily—Knoxville-Norfolk

One daily—Denve?-Memphis-Knoxville.N o-folk -

Four daily—Salisbury-Norfolk ag Os a

One daily—Salisbury-Raleigh = te

~One daily—Asheville-Raleigh — : pistes

Ong Gally--Memphis-Chattanoogs-N orfolk

{fol..65]. Attached hereto, as Exhibit 18 is a timetable

sh@wing the bus schedules operated by the Seashore Trans- .

_ portation Company and connecting bus lines. At Table

of this exhibit it will’ be noted that the Seashore Trans-"

eyhound Lines, operates one through bus‘ daily in each

aioe between Cincinnati, Ohio and Beaufort, N. C., via

a Raleigh and Goldsboro; one through bus daily,

qtte to Beaufort ‘via Greensboro, Raleigh and Golds-

fey one through bus.daily, Beaufort to Asheville via

Goldsboro, Raleigh and Greensboro. The Seashore Trans- —

portation Gompany operates other daily schedules hetween

Goldsboro and Rocky Mount, N. C: and between Goldsboro.

‘ and Beaufort, N. C. :

Among other bus service in the genetal area served by

Trains Nos. 13 and 16, the Queen City Trailways operates

‘one ‘bus daily in each direction between Durham and Wil-

’ mington, N. C. via Chapel Hill and Fayetteville. Queen

City Trailways also operates one bus daily in éach direction -

' between Raleigh and Myrtle Beach, S. €. via‘Garner as’ part

of through Philadelphia- Myrtle Beach’ service.

The Carolina Trailways operate two buses daily in each

direction between Raleigh and Charlotte via Cary, with |

connections at Raleigh with.buses from and to Norfolk ot

-Richmond and ee ‘at Charlotte for Atlanta or

_ Ashev ille.

- As is shown by Exhibits 14, ‘15, 16, 17 and 18, there is

[fol. 66] ample local and long distance bus service operating

in the area served -by Trains 13 and 16. All. communities :

gserved by’ Trains Nos. 13 and.-16 are served by daily com- ,

mon carrier bus service except the small communities of

McLe ansville, Glenn and Rose but these communities are

‘zc °

" + quan . oe he REESE AAI LAIRS

_ located only short distances off. the main highways over

which the scheduled buses ——- age shown above at :

. page? |

on is shown by’ Exhibit 19 attached hereto, Eastern Air:

Lines operates daily first class flights between Raleigh-Dur-_.

ham Airport and a wide variety of other‘cities, such as

New York, Washington, Philadelphia. Baltimore, Rich-

‘mond, Chicago, Pittsburgh, Detroit and Atlanta, among

others, This exhibit shows that Eastern Air Lines operates

~ ten flights’ daily, except Saturdays and Sundays, between

Raleigh-Durham Airport and New York. Eight flights oper-

ate.on Saturdays and nine operate on Sundays. Six flights

are operated daily, except Saturdays in the opposite oan

‘ tion-between'New York and Raleigh- Durham. Four of

flights operate on Saturdays. Eight flights are opera a"

daily, except Saturdays and Sundays, between Raleigh-

‘Durham Airport and Washington, D. C. Six of these flights -”

‘operate on Saturdays and seven operate. on Sundays. Seven

flights are operated daily, except Saturdays, in the oppdSite —

direction, between Washington and Raleigh-Durham. Four

of these flights operate on Saturdays. Other daily first-

class flights offered‘at Raleigh- Durham Airport by Eastern

‘Air Lines are: One flight daily in each direction between

[fol. 67} Raleigh- Durham and Chicago. Qne .flight daily,

except>Saturdays, in each direction ‘between Raleigh-Dur-

ham, Pittsburgh and Detroit. Two-fligkts daily to Columbia, -

S. C., and three flights daily in the reverse direction. Four

‘flights daily Raleigh-Durham to Atlanta and five returning

daily. Eastern Air Lines also. operates. from Raleigh-Dur-

ham Airport one flight daily, except Saturdays, to Chat- .

tanooga, Nashville and Louisville; with one flight returning

‘from those cities to Raleigh-Durham daily. Be

As is shown by Exhibit 20, Capital Airlines offers one.

flight daily in each direction between New York, Raleigh-

_ Capital Airlines also offers one flight daily, except Satur-

days, hetween Washington, D.C., Norfolk, Ralei h- Durham,

High Point and Knoxville, with on flight from «4

4% the reverse direction daily. At Knoxville con- -

y be made with flights to and from Huntsville,

nections

Ala..

a “ By righ < wee Ba

ae . :

<4. it 21 sitaieed: peas Shows Piedsfont hides oper-"

ates: =a, light daily in each direction between Wilmington,

N.C, Raleigh- Durham, Greensboro-High Point, Winston-

. Salem and Lexington, Ky. Piedmont’ Airlines also operates -

-one flight daily in each, dition between Fayetteville,

-Raleigh- Durham, Greensboro-High Point, Winston-Salem .

{fol. 68] and Cincinnnati, Ohio. In addition, this exhibit.

also shows that Piedmont Airlines operates one flight daily, -

except Saturdays and Sundays, in each\ direction between

.. New Bern, N. C--Raleigh-Durham, ‘Greensboro-High. Boint,

Roanoke and Columbus, Ohio. The flight from New Bern

_ terminates at Roanoke on Saturdays and the flight from *

Columbus terminates at Roanoke on Sundays. = - |

Exhig@f 22, attached hereto, shows a comparison of air

line. trafic handled oufound* via scheduled air lines from .

| _ Greensboro-High Point and’ Raleigh-Durham. airports be-

tween the years 1949 and 1959. It will be noted that the

' number of aircraft departures at Greensboro-Higlr Point e

*. inereased from 9,854 in 1949 to 12,731 in 1959, or 29.2 per- 2

cent. The number of passengers departing from that air-

port increased from 25,479 in 1949 to 92,721 in 1959, an

- imerease of 263. 9 percent. Average number of passengers

_ boarding departing planes increased from’ 2.6 per plane in ~

- 1949 to 7.3 in 1959. Air mail tons placed aboard departing

planes increased by .102.3*percent in the period 1949-1959.

Tons of cargo placed. aboard departing. planes increased by

209.1 percent in m period 1949-1959. Increases in:all eate- v4

[fol. 69] . gories : of air line traffic wer® also registered at

Raldigh-Durham Airport between 1949 and 1959. Aircraft

departures increased from 9,603 in 1949 to 11,480 in 1959,

-an increase of 19.5 percent. Number of passengers board-

a ing departing planes increased from 38,791 in'1949 to 131,644

-in 1959, an increase of 239.4 percent, Average number. of

passengers DHoardingseach departing plane increased from

four persons per plane/in 1949 to 11.4 persons in 1959. Air. —

mail placed aboard departing planes increased from 87.1

tons in 1949 to 151.8 tons in@959, an increase of 74.3 per-

cent. Air ete or aboard departing planes increased

“? Records are bal on revenue fraffic enplaning at each airport.

To avoid duplications arrival tr ¢ is not included.

- honed

’

¢ - ~ e

Tg . > NE NN LF, AEE

ee ent « Sant

: P . . e

‘ ° ; . *

: . : ,

oo 134.1 tons in 1949 to 361.2 tons in 1959, an increase.

- of 169, 4 percent.

Attached hereto as Exhibit 23.18 a map showing highway

distances from various communities in the general area |

served by Trains Nos. 13 and 16 to the Raleigh-Durham -

Airport. It will be noted that the City of Durham is located

_- 12.5 miles from the airport and that the City of Ralbigh

is located 13.5: miles from the airport, both cities being

‘accessible to the airport over U. 8. Highway No. 70, a @

_ modern four-lane highway. The Raleigh-Durham Airport.

is also available to communities within a wide area, includ- = __.

’ ing a number served by Trains Nos. 13 and 16, other than

Durham anq Raleigh. The City of Chapel Hill is located

16.5 miles from Raleigh-Durham Airport via North Caro-

' lina State Highway No. 64 (12.5 miles) and a paved, access

road (4.0) between Nelson and the airport. The Research +

[fol. 70] Triangle Park is-located approximately six.miles .

from the airport. Morrisville, a station served by Trains

. 13 and 16, is located 45 miles from the Raleigh-Durham

Airport.

Another important einieuiel airport serving thé gen-

. eral area served by Trains Nos. 13 and 16 is the Greensboro-

' High Point Airport which is’ located approximately nine Ea

: miles west of Greensboro. This airport is also available to

many communities within a wide area, including a number

of communities served by Trains Nos. 13 and 16.

The REA Express Agency, Inc., which utilizes Trains

‘Nos. 13 and 16 for the transportation of express traffic, also

utilizes highway trucks for the transportation of express

to and from a number of communities served by Trains

Nos. 13 and 16.. Express traffic is also’ handled by other

passenger trains at Greensboro, Raleigh, Selma and Golds-

‘boro:

The various bus: lines operating it the area served by

Trains Nos. 13 and 16, besides handling passengers and

baggage, also offer a limited express serv ice.

The .air lines serving the area served by Trains Was

13’and 16 also, in addition td handling passengers and

(fol. 71) baggage, transport air express and air cargo.

As is shown by Exhibit 2 attached hereto, the line of

Southern Railway Company between Greensboro and,Golds-

«" :

4 G

hore over whieh: Drains Ness 13 eaa. 16 eperete, is closely.

paralleled by. U. 8. Highway 70. Other U. S..and North

Carolina highways, paraliel and intersect the line. of rail.

read at a number of points. Practically all of the com.

manitien served by Trains Nos. 13 and 16 are located ‘on |

through highways and the remainder have easy access to

through highways from short distances over paved, -all-

weather roads, As indicated by this Exhibit 2, Federal

Interstate Highway No. 85 follows the route of U. S. High-

way 70. between Greensboro and a point south of the village

. of Efland and from that point ‘to a point just west of Dur-

ham will be newly located. When completed, Federal Inter-

state Highway°No, 85. is expected to shorten the highway

: — distance between Durham and. Greensboro by several miles

lows than the present 56-mile distance. |

A comparison of the rail distances between petitioner's

lines and those of rail competitors from certain stations

along the route of Trains Nos. 13:and 16 and Washington,

D.C. and points nort thereof, is most revealing: the rail

mileage via “Southern ilway’ Company, Goldsboro to —

Washington, D.C. is 413 ‘miles, whereas the distance pe-

‘ tween those points via Atlantic Coast Line

in 775 miles ; the rail distance between Selma, N. Cc. and

-’ Washington via Southern Railway Co. is 393,1 miles, where-

"asx the distance between those points via ACL-RF&P is

270.8 miles; the rail distance via Southern Railway Co.,

| fol, 72] Raieigh to Washington, D. C.,.is 365.0 miles where-

ws the rail distance via essoemiag Air Line Railroad-RF&P

ix 2714 miles, ;

7% The trattic transported on ih e trains involved icin

_ 1939 and 1960 is shown in an orMand-off statement mgrked

see 4 and pertinent statistics relating to passenger

ad these trains are presented in Exhibit 25 fbr the same

Nata wars, Exhibit 26 ‘offers an historical accognt of ‘pas-

senget statistics om these traims fromi 1448 gh 1960.

“At the time these exhibits were prepared, more. recent ante

were net available

Exhitit 4. consisting of four sheets, is a series of’ aate-

ee showing the pumber, of reverue passengers getting 5

ant af Trains is 6 at each of the stations for th-

EL AAEM E I Be

eee 61 °

. cabinitel? years1959 and oo? This information 1 waa ob-

__ tained from the tickets lifted by the conductors and turned

in to the Auditor of Passenger Accounts. The figures shown

for Greensboro include passengers originating or continu. 2

ing trips beyond Greénsboro via Southern Railway, as well. ~

as those originating and terminating at Greeisboro. It will

be noted from the exhibit that most of.the use of the trains

was from the stations of Golisboro, Raleigh, Durhain and

Burlington going to Greensboro and beyon In the reverse -

direction, it was fice Sopeel Greensboro and Greensboro

‘to the same places.

_ Exhibit 25, consisting Sf two sheets, an for the years

1959 and 1960, with respect to Trains 13 and 16, the number

[fol. 73] of trips. operated, trip mileage, total train miles

‘operated, total number of revenue passengers carried, total

revenue passenger miles and total passenger revenue.. It

may be noted that for both trains for the year 1960, the

_. average number of passengers per trip was 20.2; average

miles per passenger, 46.8; average revenue per passenger,

expressed in cents, 143. 036; average passenger revenue per-— .

train mile, also expressed in cents, 22.382; and the average, =

passenger miles per train mile, 7.33. The last figure, 7.33,

was the average number of passengers for the entire trip

at a time when the train crew consisted of six members

and the Pullman crew of two for part of the distance.

' Exhibit 26 is a statement..of the traffic: statisties for

Trains 13 and 16 for the years 1948 through 1960. It shows —

the number of trips, the number of revenue passengers, the .

passenger revenue, the average number, of revenue passen-

gers per trip and the average passenger revenue per trip. —

_ It may be noted that the number of passengers decreased in -

this-period from 56,739 to 14,776, or 73.96 percent. The

- 65.09 percent. The average number of passengers per trip

decreased from 77.51 to 20.19, or 73.95 percent. The aver-

’ age E appiem ok revenue per. trip decreased from $82. 70 to

= 37, 65.09 percent. _ °

. The financial results of ioalina ¢ the trains inv olved

Per 3 1959-1960, segregated by trains, are shown on Ex-

(fol. 74] hiibits 27. and 28. Exhibit 29 shows the feeder valué

‘of the trains sought to be discontinued to the Southern -

sy a

edie System for the same years. ‘Later: figures were not

avaiiable at the time of preparing this petition. oe

‘Exhibit 27 is the operating results for Trains 13 and 16 |

for the.year 1959. This is a single sheet exhibit which has’

been prepared in the same magner, explained below, as the

following exhibit marked “28”, except that the showings on.

27. are in totat rather than by individual months and the~

detailed, schedules, attached to No. 28, have “not, been ap- -

pended to Exhabit 27. For the year 1959, the expenses of

operating Trains 13 and 16 exceeded thy revenue in the

amount of. $122,837. .

Exhibit 28, consisting of 10 schedules, covers the. oper.”

ations of Trairis 13 and 16 for the year 1960. The revenues —

and expenses are computed in accordance with the require- _

ments of the National ‘Assaciation-of Railroad and Utilities

Commissioners’ formula. This formula was recommended

by the NARUC September .23, 1953, and\has been used by.

our company and other carriers in passenger train hear. -

“ings before the various state regulatory bodies. For the

year 1960, the expenses exceeded the revenues in the amount .

.of $117,641 or it cost the Company $3.22 to earn a revenue

__ dollar.’ The items of revenues and expenses shown on ‘Ex.

~ hibit 8 are explained as follows :

[fol. 75) Operating Revenues aos

(1) A/ 102—Passenger_ eel

Tickets lifted by conductor are sounchied into IBM cards :.

showing station to station, class ‘of passage and other in-

ee fermation. These cards are processed through the com-

pute. which is programmed to compute the passenger rev-

enue based on authorized rate for class of passage. .

(2) Asc 107—Expifess . eee a

Revenue per @urfoot mile for the company was Sadianek

by dividing total revenue received from the REA by the:

total carfoot miles. The resulting revenue per carfoot mile -

- was aga to the carfoot miles — to Trains 13°

and 16

) r : 3 : » J or

oe.

ise 69

——

* (3) A/C 108—Miscellaneous

papers and movement of terminal cases.

Sesenets ;

(1) A/C $92-401—Wages'o of train and engine crews °

From time returns of the members of the crews operating.

these trains plus, vacation allowances. |

: (2), AC 632—Payroll taxes

Payments made to the railroad retirement boat for

- retirement and unemployment benefits for the members of

the crews.

(3) ‘A/C 394—Train Fuel | cae ff 8

Actual consumption of*fuel by these trains was deter-

mined by a fuel test and this ——- apple’ to the

company. average cost ‘per. gallon. ,

(4) A/C 420—Injuries to Persons

Actual paythents made to persons injured in the ® opera

tion of these trains. - | .

[fol. 76], are :

(5) A/C s17—Damaget to Live Stock on ‘Right-of-Way

Actual payments ‘made- for damage « caused by operating

Traine, 13 and 16.

(6 A/C 403—Pullman panier Net Loss»

| This represents the excess of expenses over revenues for

- ..this line as billed by the Pullman Company. The line op- -

: erates from. Washington, D. C. to Raleigh, N. C., and the

figure shown is the proportion applicable to. Trains 13 and

16 between Greensboro and Goldsboro.

“) Locomotive Expensés— a

‘A/C 400—Engine House -

A/C 398—Lubricants :

A/C 399—Other Supplies | Wea ee

A/C311—Repairs

eS ee

The average cost per.diesel unit milé for the Company

was determined for each of these items and these unit eos

applied: ‘to the diegel unit miles sateen in Trains 2 fid 16.

(8) Passenger Car Sgemee—

A/C 402—CHLW & Icing BS a ‘ °

A/C 402--Lubricants ~ : | ae AN thee

A/C 402—Other Expenses -: .“ ~ °

A/C 402—Air Conditioning . , ag

A/C:317—Repairs Rae

The average cost per passenger car tills le #8 the company

was determined for each’ of these items and this cost ap-

plied to ‘fhe car miles nf&ide by trains 13 and 16. In our

accounting precedure Acct. 402—“Train Supplies & Ex-

penses” is broken down between CHLW cars, lubricants,

other expenses and air conditioning.

. (9) Sonat Facility Expenses |

This represents ‘the’ savings that wea have been ‘ile :

had Trains 13 and 16 not operated during this period. Total

expenses at Goldsboro Union Station apportioned to the

user roads on the basis of the number of cars in and out of

the station for each road.”

[fol. 77] ene oe | ta a)

» (10) Rental of Equipment ‘4

* soem ey

‘Payment made to foreign lines for use of passenger equip.”

ment; no — made to Southern System lines are

included. ns :

“Exhibit 29 is a shitensinat for the years 1959 and 1960

_ of the revenue accruing to the Southern Railway System

for tie off-line portion of the trips made by ‘passengers —

‘using Trains 13 and 16. These revenues have been reduced ~

by the amount of 50 percent, representing an estimate of

the cost of: producing the. revenue accepted by this Commis-

sion in abandonment:and discontinuance casts. In the aad

\s *

: a,

. Sy . . t

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.