2284(3). It appears clear that Greyhound will not show a loss by
reinstituting the Mt. Hood through-bus. All that might happen is
that Greyhound might make a somewhat smaller, though completely
unspecified amount of profit. But this is contested by the data
set forth by Mt. Hood, and by the court's own calculations.
Greyhound's average cost on its routes is about 70 cents per
bus mile. If we multiply this figure by the distance on the
Portland route (390 miles), we arrive at an estimated operating
cost on this run of about $265. Multiplying this figure by the
28-passenger figure per bus averaged over the last four years, we
reach a revenue figure (assuming three cents per mile per
passenger) of $315, or about $40 over cost. If the more relevant
figure of 24.5 passengers per bus is used, the average for 1968,
Greyhound's revenue is cut to only about $286, or only $21 over
If we compare these cost figures with the Mt. Hood route, there
are some surprising results. Mt. Hood previously paid Greyhound
about 20 cents per bus mile as a fee for leasing the buses. Since
the distance over the Mt. Hood route is about 278 miles, this
means an added $55.60 in revenue to the Greyhound. Add to this
the saving of 112 miles (and the consequent reduction in payment
for drivers at 20 cents a mile) and the saving of about three
hours travel time, it appears to this court that, even if
Greyhound discontinues the Portland route, it could conceivably
make as much, if not more profit on the Mt. Hood run, even given
the two or three passenger reduction per bus, according to the
1968 statistics presented by Greyhound. This is far from
In addition, this court must consider the impact of a temporary
restraining order on Mt. Hood and on the general traveling
public. Although one case has said that there can be no balancing
of the equities in considering a temporary restraining order
under Section 2284(3), Tennessee Public Service Commission v.
United States, supra, this court is of the opinion that the
general equitable nature of this type of injunction order and the
better reasoning in other cases show that a balancing of the
equities is not only desirable, but necessary. E.g.,
Cincinnati, New Orleans & Texas Pacific Railway Co. v. United
States, 220 F. Supp. 46, 48 (S.D.Ohio, 1963); Campbell Sixty-Six
Express, Inc. v. United States, 253 F. Supp. 613, 615 (W.D.Mo.
1966). Cf. Stott v. United States, 154 F. Supp. 389 (S.D.N Y
Mt. Hood has submitted the affidavit of its president and
owner, William Niskanen. He states that Mt. Hood is losing about
$700 each day, and, for the first five months of 1969, has
suffered an operating loss already of about $100,000. Greyhound
correctly stated at the hearing that, in 1966, after the
cancellation of the contract, Mt. Hood's revenues rose. However,
as the brief for Mt. Hood points out, this was the year of
strikes against several airlines and a strike against Greyhound.
Since that time, Mt. Hood's revenues have declined substantially.
In addition, revenues for 1965 declined by $96,000 over the
revenues in the last contract year of 1964.
Greyhound contends that Mt. Hood's belonging to the National
Trailways organization, Greyhound's principal competitor, shows
that its cries of loss of revenue should not be weighed very
heavily. However, the nature of the Trailways' organization is
vastly different from that of Greyhound's corporate setup. The
National Trailways Bus System is "a voluntary, nonprofit
association of some 44 motor common carriers of passengers,
formed in 1936 for the purpose of promoting travel over their
lines, improving their service, effecting economies in operation,
and fostering safety practices, through the establishment of
joint terminals, coordination of schedules, transportation of
passengers with minimum interchange of buses, joint advertising
of service, joint purchase of supplies and use of
common color schemes and trademarks." (Emphasis added) Mt. Hood
Stages, Inc., Petition for Modification — Greyhound Mergers
(Western Division), 104 M.C.C. 449, 464-465 (Division 3, 1968),
Exhibit A, Complaint. It does not appear, nor does Greyhound
suggest, that there would be any financial help forthcoming from
Trailways. In any event, even if Trailways did assist monetarily,
the damage to Mt. Hood is still quite substantial and would not
alter this court's opinion as to the propriety of granting a
temporary restraining order.
Mr. Niskanen's affidavit quotes some very relevant portions of
the I.C.C. staff's Division 3 opinion. That opinion states,
inter alia, that Greyhound's cancellation of the contract and
subsequent revision of time schedules "were inspired by a desire
to stifle competition," and that "Greyhound has created a
situation which is no longer consistent with the public interest
because it deprives passengers of the best available service."
The I.C.C. itself, in unanimously affirming the Division 3 order,
concluded that the order should go into effect "without
unreasonable delay which may cause petitioner (Mt. Hood)
irreparable damage." This order was effective January 15, 1969,
but Greyhound by filing another petition for reconsideration,
which was ultimately denied, delayed the final entry of the order
to April 14, 1969. This suit was filed on May 27, 1969, but
Greyhound waited until the end of June before moving for this
temporary restraining order, thus delaying the final decision on
the merits even further.
Greyhound further contends that if it is forced to comply with
the I.C.C. order, it might lose its chance for judicial review on
the ground that the case might be moot. In support of this
contention, Greyhound cites American Book Co. v. State of Kansas
ex rel. Nichols, 193 U.S. 49, 24 S.Ct. 394, 48 L.Ed. 613 (1904).
This case, however, did not deal with the situation confronting
this court. Here we have a clear statutory right of judicial
review by a three-judge federal court, and it is quite often the
case that an I.C.C. order would be in effect, absent a temporary
restraining order, before a decision on the merits could be
rendered. See 28 U.S.C. § 2324. It is therefore clear that, even
though the I.C.C. has made provision for what it termed
"voluntary" compliance, Greyhound will not be prejudiced thereby,
since compliance is "voluntary" in name alone, and not in fact.
To the extent that this court can protect Greyhound's right to
judicial review, this court will specifically include in its
order that such conduct by the Greyhound in compliance with the
orders of the I.C.C. shall not prejudice Greyhound's right to
review of those orders.
Greyhound further argues that an injunction should issue to
preserve the status quo. It is true that this is one factor that
this court should weigh in deciding whether or not a temporary
restraining order should be entered. E.g., Cincinnati, New
Orleans & Texas Pacific Railway Co. v. United States, supra. Even
though the present status quo has been in effect over four years,
the fact that Mt. Hood has been suffering serious losses as a
result of Greyhound's cancellation, more than outweighs the
effect to be given the status quo. Mt. Hood attempted to alter
Greyhound's decision immediately after the cancellation, but it
has taken more than four years to reach the present stage of this
case. It is this court's opinion that the delay should end here.
It is therefore ordered that the motion of plaintiffs Greyhound
Lines, Inc. and The Greyhound Corporation for a temporary
restraining order be, and it is hereby denied.
It is further ordered that whatever actions plaintiffs take in
compliance with the orders of the Interstate Commerce Commission
pending decision by the three-judge court to be convened in this
case be, and they are hereby deemed not prejudicial to
plaintiffs' rights of judicial review.
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