United States District Court, Northern District of Illinois, E.D
March 19, 1970
CITY OF CHICAGO ET AL., PLAINTIFFS,
UNITED STATES OF AMERICA ET AL., DEFENDANTS. TENNESSEE PUBLIC SERVICE COMMISSION ET AL., PLAINTIFFS, V. UNITED STATES OF AMERICA ET AL., DEFENDANTS.
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:
"* * * petitioners will have full right to pursue
their statutory appeal to this Court, and if this
Court should determine, upon full consideration,
that the question of the operation of the trains
should be examined by the Court below, the respondent
railroad company will be fully answerable. In other
words, the respondent railroad company will promptly
resume the operation of the trains if required to do
so by lawful order." (L&N Memorandum in Opposition to
the Application to Stay, p. 8)
The L&N also submitted to this three-judge court at the
September 12, 1968 hearing an affidavit stating:
"Trains Nos. 6 and 7 can be put back in operation
within a matter of less than twenty-four hours upon
the dissolution of the court's order, since none of
the equipment that is used in operating these trains
will now be disposed of, and it will be kept in
operating condition." (Affidavit of Jack Small,
9/10/68, pp. 1-2)
Defendants United States of America and I.C.C. have not
interposed any objection to the motion of plaintiffs and
intervening plaintiffs for reinstatement of the aforesaid
restraining order against the L&N.
The Court finds that in a recent (December 3, 1969) decision of
the I.C.C., 336 I.C.C. at 85, the Commission states:
"In Missouri Pac. R. Co.-Control-Chicago & E.I.R.
Co., 327 I.C.C. 279 (1965), sustained sub nom.
Illinois Central Railroad Company v. United States,
[D.C.] 263 F. Supp. 421, affirmed per curiam
385 U.S. 457 [87 S.Ct. 612, 17 L.Ed.2d 509] (1967), C&EI's
Chicago-Evansville line was awarded to L&N rather
than Illinois Central, one of the important
considerations in the Commission's determination
being the anticipated maintenance and improvement of
through passenger service between Chicago and the
South via the C&EI and L&N route * * *" (Emphasis
The Illinois Central Railroad continues to run trains to and
from the South and so should the L&N continue to operate the
"Hummingbird" trains pending final determination herein.
The Court finds that the I.C.C. is without jurisdiction to
order interim relief beyond a four month period in connection
with the "Hummingbird" trains pending the Commission's further
proceedings herein. The Court itself does have jurisdiction to
reinstate operation of the "Hummingbird" trains pending the
Commission's further proceedings herein.
It is, therefore, ordered that the restraining order entered
herein on September 6, 1968, and continued September 12, 1968, be
and the same is hereby reinstated to become effective within ten
(10) days of the date of this order.
The three-judge court also is of the opinion that the I.C.C.
should also reopen its investigations in the matter of the
"Georgian" trains (Chicago-Evansville) involved in case No. 68 C
956, with due and proper notice to all parties in interest, and
that the matters involved in cases 68 C 956 and 68 C 1666 should
be consolidated by the I.C.C. in further proceedings.
The Court finds that in the proceedings before the I.C.C.
relating to the discontinuance of the C&EI's "Georgian" trains
the public did not receive adequate notice from the railroads or
of the I.C.C. proceedings; and, further, although the residents
of the States of Kentucky, Tennessee and Georgia were vitally
interested in continued through passenger service by the
railroads and the respective governors of those States were
entitled to notice of the proceedings before the I.C.C., no
notice was given them beforehand.
The Court is of the view that through passenger service from
Chicago to and throughout the Southeastern part of the United
States might or could be vital to the general public interest and
that such service is so interwoven and entwined between the
various railroads that only in a consolidated proceeding can a
just and fair decision be reached.
It is, therefore, ordered that the orders of the I.C.C. in its
Finance Docket Nos. 24725 and 25047, in so far as such
orders discontinue the respective investigations, be and they
hereby are vacated and that both causes numbered 68 C 956 and 68
C 1666 be and they hereby are remanded to the I.C.C. and
consolidated for further proceedings in accordance with the
statutes so made and provided.
The Court enters the above orders in conformity with the
opinion of the Supreme Court of the United States and for the
purpose of carrying out the Supreme Court's mandate.
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