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December 14, 1973


Before Sprecher, Circuit Judge, and Parsons and Marovitz, District Judges.

The opinion of the court was delivered by: Per Curiam.



This action is brought by the Attorney General of Illinois, four communities, and the Illinois Legislative Director of the United Transportation Union, to set aside an order of the Interstate Commerce Commission (Division Three), entered April 30, 1971 (served May 11). This order dismissed an investigation previously instituted by the Commission, which investigation concerned the proposed discontinuance of a pair of passenger trains operated by Chicago & North Western Transportation Company (CNW) between Clinton, Ia. and Chicago, Ill. The Commission proceeding was entitled Finance Docket No. 26256, Chicago and North Western Railway Company Discontinuance of Trains Nos. 1, 2, and 11 and 12 between Chicago, Ill., and Clinton, Iowa. Petitions for reconsideration were denied September 24, 1971 (served October 15) by Division Three, acting as an Appellate Division.

The trains were discontinued April 30, 1971, after a single-judge of this court declined to enter a temporary restraining order or a preliminary injunction. (Civil No. 71 C 1009, Marovitz, J.)


The underlying issue is whether these trains provide intercity rail passenger service or commuter and/or other short-haul service. 45 U.S.C. § 502. Plaintiff contends that the trains provide commuter or short-haul service under the Rail Passenger Service Act of 1970 and, therefore, cannot be discontinued without prior approval of the state or federal commerce commission. CNW contends that the trains provide intercity service under the new act and, therefore, may be discontinued pursuant to the provisions of that statute, 45 U.S.C. § 561, with which provisions defendant is in compliance.

The definition of intercity rail passenger service is set forth in 45 U.S.C. § 502(5):

  "all rail passenger service other than (A) commuter
  and other short-haul service in metropolitan and
  suburban areas, usually characterized by reduced
  fare, multiple-ride and commutation tickets, and by
  morning and evening peak period operations. . . ."

Commuter and other short-haul service is further characterized by frequent stops at short intervals within certain areas, equipment consisting of little more than ordinary coaches, and a mileage limitation of approximately 100 miles. Penn Central Transportation Company Discontinuance, 338 ICC 318, 325-26 (Feb. 10, 1971). Division 3 has indicated by its order that the principal characteristics of Trains 1, 2, 11, and 12 are "not such as would bring them under the `non-intercity' exclusion of Section 102(5), Rail Passenger Service Act, and that, therefore, they may be discontinued in accordance with the provisions of the said Act . . .".


The sole issue presently before the court is whether the order of April 30, 1971, entered by Division III, and which dismisses the Commission's investigation upon a finding that the principal characteristics of the service provided by the trains are not such as to bring them under the "non-intercity" exclusion of section 102(5)(A), must be set aside for insufficient findings and for absence of a report.

Plaintiffs argue that the I.C.C. order under discussion fails to meet the requirements of 5 U.S.C. § 557(c)(3)(A) that all decisions shall include a statement of findings and conclusions on all the material issues of fact, law, or discretion presented on the record, and that this reviewing court should therefore set aside the agency action for failure to observe the procedure required by law. 5 U.S.C. § 706(2)(D). The underlying evidence which supports the Division 3 order is not under attack; it is the contention of plaintiffs that an exploration of the evidence would be improper, because the Administrative Procedure Act requires the necessary findings, and it is these findings — here allegedly insufficient — which must be supported by substantial evidence.

We disagree that the Commission's findings are inadequate. Before one can make determinations as to adequacy, one must answer the foundation question, "Adequate to accomplish what purpose?" The Congressional policy in setting forth the requirements of 5 U.S.C. ยง 557(c)(3)(A) that findings be set forth would seem at least fourfold: (1) to prevent arbitrary and capricious decisions in a manner violative of due process, (2) as an explanation to the parties involved as to the basis for the decision, (3) to give guidance to parties similarly situated, and (4) to provide a basis for judicial review by the courts. This court finds the Commission report sufficient in all ...

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