Before Knoch, Circuit Judge, and Perry and Robson, District
The opinion of the court was delivered by: Per Curiam.
Following the filing of a copy of the mandate of the Supreme
Court of the United States herein with the Clerk of the District
Court, this three-judge court on February 5, 1970 entered an
order wherein it (1) remanded both causes numbered 68 C 956 and
68 C 1666 to the Interstate Commerce Commission ("I.C.C.") for
further proceedings and (2) held under advisement the motion made
by plaintiffs and intervening plaintiffs to reinstate the
temporary restraining order in case 68 C 1666 until the
conclusion of the proceedings before the I.C.C.
Thereafter the various parties filed various motions and the
three-judge court now has before it (1) motion of defendant
Chicago & Eastern Illinois Railroad Company ("C&EI") for
rehearing or amendment of said order of February 5, 1970; (2)
motion of defendant Louisville and Nashville Railroad Company
("L&N") for rehearing and amendment of said order; (3) motion of
defendants United States of America and I.C.C. for a new trial in
both cases with memorandum in support thereof; (4) motion of
plaintiffs and intervening plaintiffs for reconsideration and
amendment of said February 5 order with memorandum in support
thereof; (5) response of plaintiffs and intervening plaintiffs to
the aforesaid motions of defendants; (6) response of defendant
C&EI to plaintiffs' and intervening plaintiffs' motion, and (7)
response of defendant L&N to plaintiffs' and intervening
The Court has considered all the foregoing motions, the
responses and memoranda of the parties hereto and the opinion of
the Supreme Court herein and is of the opinion that it should
reconsider its order of February 5, 1970 and should modify and
amend said order as hereinafter set forth in view of the
additional facts and law presented to the Court.
It is, therefore, ordered, that the order of this Court entered
herein on February 5, 1970 be and the same is hereby vacated.
The Court also has before it a motion by plaintiffs to
consolidate cause No. 68 C 1666 with cause No. 68 C 956 on the
ground that the two actions involve a common question of law and
fact. Said motion was filed September 6, 1968, briefed and argued
before the three-judge court on November 4, 1968. The Court
reserved its ruling on same. The Supreme Court of the United
States consolidated these cases for hearing and it is the opinion
of this Court that the plaintiffs' motion to consolidate should
now be granted.
It is, therefore, ordered that cause No. 68 C 956 and cause No.
68 C 1666 be and they are hereby consolidated.
The Court is of the opinion that it is equitable and in the
best interest of the general public to maintain the status quo
which existed on September 6, 1968 until further determination of
these causes, as was originally done by entry of a restraining
order in case No. 68 C 1666 by Judge Edwin A. Robson on that
date, immediately after the filing of this suit, and which
restraining order against discontinuance of the "Hummingbird"
trains by the L&N was continued in full force and effect on
September 12, 1968 by Judge Joseph Sam Perry. The temporary
restraining order was heretofore dissolved by the Court in its
order of January 8, 1969 granting the motion of L&N to dismiss.
Plaintiffs and intervening plaintiffs allege in their
memorandum, filed February 16, 1970, that the L&N promised
"restoration of the train service to the Circuit Justice" and
that allegation has not been denied.
The Court finds that the L&N, in its Memorandum in opposition
to application to stay, represented to the Circuit Justice on
January 10, 1969 the following: