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STATE v. UNITED STATES

United States District Court, Northern District of Illinois, E.D


December 19, 1958

STATE OF ILLINOIS, ILLINOIS COMMERCE COMMISSION, AND MILWAUKEE ROAD COMMUTERS' ASSOCIATION, PLAINTIFFS,
v.
UNITED STATES OF AMERICA, INTERSTATE COMMERCE COMMISSION, AND CHICAGO, MILWAUKEE, ST. PAUL & PACIFIC RAILROAD COMPANY, DEFENDANTS.

Before Schnackenberg, Circuit Judge, and Sullivan and LA Buy, District Judges.

The opinion of the court was delivered by: Schnackenberg, Circuit Judge.

On September 12, 1958, defendant Chicago, Milwaukee, St. Paul & Pacific Railroad Company, a corporation, hereinafter called the Milwaukee Road, filed its motion for distribution to itself, for its own general use, the total amount of excess fares now remaining unclaimed by, and unrefunded to, the persons from whom collected, now amounting (it is said) to the sum of $229,565.51; and Milwaukee Road Commuters' Association, one of the plaintiffs herein, has filed an answer to said motion, denying that the Milwaukee Road is entitled to the balance now in said fund and asserting that the Milwaukee Road should be required to deposit the balance of said fund with the clerk of this court to be used to pay to plaintiffs their reasonable expenses incurred in connection with this litigation.

Provision for the establishment of the fund in question was made by this court's order of June 18, 1956, which provides:

    "This cause coming on to be heard on motion of
  Chicago, Milwaukee, St. Paul & Pacific Railroad
  Company (herein referred to as `the Milwaukee Road')
  one of the defendants herein, for the entry of an
  order staying the injunction prescribed by decree of
  this court entered June 14, 1956, pending the hearing
  of said cause on appeal before the Supreme Court of
  the United States, it appearing to the court that due
  and proper notice of the time and place for
  presentation of said motion has been served on all
  the attorneys of record and it further appearing to
  the court that Notice of Appeal from the decree
  entered by this Court on June 14, 1956, has been duly
  served and filed and the Court being fully advised in
  the premises,

"It Is Ordered:

    "1. The injunction prescribed by decree of this
  Court entered June 14, 1956, is stayed pending
  disposition of the appeal from that decree heretofore
  taken to the Supreme Court of the United States, and
  subject to the conditions below set forth.

    "2. The excess fares collected by the Milwaukee
  Road after April 20, 1956, pursuant to order of the
  Interstate Commerce Commission set aside by the
  decree, shall be impounded and held by the Milwaukee
  Road in a separate fund so that in the event the
  decree is affirmed, or the appeal therefrom is
  dismissed or discontinued, the excess fares may be
  refunded to the persons who paid them. The Milwaukee
  Road shall issue suitable coupons or other evidence
  to such persons showing their payment of the excess
  fares.

    "3. If the decree is reversed and injunction
  dissolved, the Milwaukee Road shall retain the
  impounded excess fares and may transfer them to its
  general funds.

    "4. If the decree is affirmed or the appeal is
  dismissed or discontinued, the Milwaukee Road shall
  post immediately in its suburban stations, notice
  that refund will be made of the excess fares to the
  persons who have paid them.

    "5. Six months after the posting of such notice,
  the Milwaukee Road shall file a report in this court
  setting forth the total amount of the excess fares
  impounded, the total amount of refunds made
  therefrom, and the balance of the impounded excess
  fares then unclaimed. At the same time, the Milwaukee
  Road shall deposit with the Clerk of this Court the
  amount of such unclaimed balance.

    "6. Thereupon, upon petition of plaintiffs, and
  evidence showing reasonable expenses (including
  reasonable attorneys' fees) incurred by each of the
  plaintiffs in the proceeding before the Interstate
  Commerce Commission, reviewed in this case, in
  prosecuting this case in this Court, and in
  connection with the appeal from the decree herein the

  Court shall order that the amount of said reasonable
  expenses shall be paid to plaintiffs from the
  unclaimed balance of the impounded excess fares. Any
  remaining balance shall be retained by the Clerk
  subject to such disposition as this Court may direct.

    "7. The Court retains jurisdiction of this case to
  enter such further orders as may be required to carry
  this order into effect."

According to the records of this court, the balance of said fund, in the sum of $229,565.51, was paid to the clerk of this court on September 16, 1958, and is now on deposit in a Chicago bank.

The order of June 18, 1956, is an agreed order and was entered upon motion of the Milwaukee Road.*fn1 No appeal has been taken from

that order and, of course, no appeal could have been taken therefrom.

Exhaustive briefs have been filed and considered by this court.

The agreed order of June 18, 1956, was a final and favorable determination of the right of plaintiffs to receive payment from the unclaimed balance of impounded excess fares covering their reasonable expenses (including reasonable attorneys' fees) incurred by each of them as referred to in said order. The only reservation of jurisdiction in regard thereto was for the purpose of entering such further orders as may be required to carry that order into effect. However, in order that plaintiffs may take advantage of the provisions of that order in this respect, they must petition this court and submit evidence showing reasonable expenses incurred by each of them and the amount. For that reason, counsel for plaintiffs are directed to prepare and, after due notice, submit to this court for entry, an order granting plaintiffs leave to file within ten days thereafter, a petition or petitions, together with proper affidavits showing in detail the reasonable expenses (including reasonable attorneys' fees) incurred by each of them, and which order shall give leave to defendants, or either of them, to file within ten days after the filing of each said petition, an answer to said petition, together with such counter-affidavits as defendants may deem necessary.

The said order shall provide further that this court reserves jurisdiction to finally adjudicate upon said petition or petitions and to dispose of said entire fund.

As to any balance remaining in said fund after it has been reduced by the payment of any such reasonable expenses (including reasonable attorneys' fees) as aforesaid, we hold that said balance shall be paid to the Milwaukee Road (Atlantic Coast Line Railroad Co. v. State of Florida, 295 U.S. 301, 55 S.Ct. 713, 79 L.Ed. 1451). Provision, therefore, shall be included in the order which we have hereinabove directed counsel for plaintiffs to submit to this court.


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