The opinion of the court was delivered by: Robson, District Judge.
MEMORANDUM AND ORDER ON DEFENDANTS' MOTIONS TO DISMISS
The defendants have moved to dismiss this suit for a
declaratory judgment and for an injunction. For the reasons
set forth below, this court is of the opinion that these
motions should be granted.
The plaintiff, South Suburban Safeway Lines, Inc., is an
Illinois corporation which operates under a certificate of
public convenience and necessity from the Illinois Commerce
Commission. It provides motor bus services to and from points
south of Chicago in Illinois and points in south central
Chicago. It has served this area in some form since 1927. Its
four principal routes, accounting for 82% of its annual
revenue, follow the Dan Ryan Expressway. The defendants City
of Chicago and the Chicago Transit Authority (C.T.A.) are
building a rapid transit extension down the middle of the Dan
Ryan Expressway, from about 18th Street to 95th Street south.
The federal defendants are providing financial aid to the city
and the C.T.A. under the Urban Mass. Transportation Act,
49 U.S.C. § 1601 et seq.
The plaintiff claims that, because of this
federally-subsidized competition, it will be irreparably
injured should this transit system go into operation. It
claims that its status as a public utility gives it a legal
right that is protected from invasion by the Fifth and
Fourteenth Amendments to the Constitution. The federal
defendants are alleged to have granted money to the other
defendants without meeting the requirements of the Urban Mass.
Transportation Act, and that even if the requirements were
met, that statute is unconstitutional. The plaintiff in its
prayer for relief asks for (1) a declaration that the
requirements of the Act were not met; (2) a declaration that
"just compensation" be paid to plaintiff for this invasion of
its "property right," and (3) an injunction to restrain the
federal defendants from granting any further funds to the
local defendants, unless and until the requirements of the Act
are met, or just compensation is paid.
All the defendants argue that the plaintiff has no standing
to bring this suit in this court. This question must be
decided first, since, if the plaintiff is found to lack
standing, the suit must be dismissed for lack of jurisdiction.
E.g., Central Illinois Public Service Co. v. City of Bushnell,
Illinois, 109 F.2d 26, 30 (7th Cir. 1940).
In order for the plaintiff to show that it has standing, it
must show that it has suffered, or will suffer in the future
a "direct injury," i.e., a wrong which directly results in the
violation of a legal right. Alabama Power Co. v. Ickes,
302 U.S. 464, 479, 58 S.Ct. 300, 82 L.Ed. 374 (1938). This "legal
right" may be a property right, a contractual right, a right
protected against tortious invasion, or a right conferred by
a statute or constitutional provision. Tennessee Electric
Power Co. v. Tennessee Valley Authority, 306 U.S. 118, 137, 59
S.Ct. 366, 83 L.Ed. 543 (1939). The plaintiff here claims that
it has a right conferred on it by the Constitution or a
statute, and that it has a property right under Illinois law.
The Urban Mass. Transportation Act, however, confers no
express right on the plaintiff to sue in this court. In fact,
there is no provision for judicial review at all. Kendler v.
Wirtz, 388 F.2d 381, 383 (3rd Cir. 1968). Cf. Harrison-Halsted
Community Group, Inc. v. Housing and Home Finance Agency,
310 F.2d 99, 104 (7th Cir. 1962).
The plaintiff, however, contends that there is an "implied"
right to sue under that Act. Because, the plaintiff argues,
the statute mentions the need to co-ordinate private
facilities with the overall plan for an urban transit system,
this supplies the necessary "implied" right to sue. This
contention is not well founded. Cf. Berry v. Housing and Home
Finance Agency, 340 F.2d 939 (2nd Cir. 1965), and Pennsylvania
Railroad Co. v. Dillon, 118 U.S.App.D.C. 257, 335 F.2d 292,
If the statute had allowed judicial review of administrative
decisions by "persons or parties aggrieved," then perhaps the
plaintiff would have been under the doctrine of Federal
Communications Commission v. Sanders Brothers Radio Station,
309 U.S. 470, 60 S.Ct. 693, 84 L.Ed. 869 (1940). In that case,
the Supreme Court determined that a radio station, by virtue
of its status as an economic competitor with another applicant
station in the same area, had standing under the "person
aggrieved" section of the Communications Act, 47 U.S.C. § 402
(b), in order to raise questions of public importance. Federal
Communications Commission v. National Broadcasting Co., Inc.
(KOA) et al., 319 U.S. 239, 247, 63 S.Ct. 1035, 87 L.Ed. 1374
(1943). The Communications Act expressly made it clear that
judicial review was desired and encouraged. The only question
for the court there was whether Sanders Brothers' injury was
legally cognizable under the terms of that Act. Where there is
no such provision for judicial review, the Sanders Brothers
doctrine does not apply. As the Second Circuit Court of Appeals
said in dealing with this point:
"There can be little doubt * * * that if this
[Bituminous Coal] Act made no provisions for
review in a Court of Appeals and if (without any
statutory provision covering the mode of bringing
such actions) petitioner had brought a suit in a
district court, * * * dismissal of the suit [on
the ground of lack of standing] would have been
necessary." Associated Industries of New York
State, Inc. v. Ickes, 134 F.2d 694, 702 (2nd Cir.
This consideration renders many of the cases cited by the
plaintiff inapplicable as to this point to the case before
this court: Federal Communications Commission v. National
Broadcasting Co., Inc. (KOA) et al., supra; Scripps-Howard
Radio, Inc. v. Federal Communications Commission, 316 U.S. 4,
62 S.Ct. 875, 86 L.Ed. 1229 (1942); National Coal Association
v. Federal Power Commission, 89 U.S.App.D.C. 135, 191 F.2d 462
(1951); Associated Industries of New York State, Inc. v.
Ickes, supra, and Seatrain Lines, Inc. v. United States of
America, 152 F. Supp. 619 (D.Del. 1957).
The plaintiff's contention that it has standing because
there is a mention of private companies and the need to
include them in a mass transit plan, would, therefore, need
more support in the statute than such a mention: There would
have to be a judicial review section which
could be construed to include the plaintiff in its terms. The
court in Atchison, Topeka and Santa Fe Ry. Co. v. Summerfield,
97 U.S.App.D.C. 203, 229 F.2d 777 (1955), made it quite clear
that, although there was no provision for judicial review,
that the action of the defendant was not simply one which
created competition. There were specific statutes that
required the railroads to purchase certain equipment, and the
defendant's actions actually and directly called for
retirement of much of this equipment. Also see Pennsylvania
Railroad Co. v. Dillon, supra. In the absence of such a
provision for judicial review, the plaintiff must look
elsewhere to find support for its claim to standing.
Another statute which plaintiff argues gives it standing is
Section 10 of the Administrative Procedure Act (A.P.A.),
5 U.S.C. § 702. That section provides:
"A person suffering legal wrong because of
agency action, or adversely affected or aggrieved
by agency action within the meaning of a relevant