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SOUTH SUBURBAN SAFEWAY LINES v. CITY OF CHICAGO

June 10, 1968

SOUTH SUBURBAN SAFEWAY LINES, INC., PLAINTIFF,
v.
THE CITY OF CHICAGO; CHICAGO TRANSIT AUTHORITY; DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, ROBERT C. WEAVER AS SECRETARY OF HOUSING AND URBAN DEVELOPMENT, LEO J. CUSICK AS DIRECTOR OF THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, URBAN MASS. TRANSPORTATION ADMINISTRATION, AND WILLIAM HURD, DEPUTY DIRECTOR OF THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, URBAN TRANSPORTATION ADMINISTRATION, DEFENDANTS.



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, 295 (1964).

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.
  1943).

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).

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
  statute, ...

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