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January 28, 1955

Arthur E. SUMMERFIELD, Postmaster General, Defendant

The opinion of the court was delivered by: KIRKLAND

In the case of the Atchison, Topeka and Santa Fe Railway Company, Great Northern Railway Company, Northern Pacific Railway Company, Southern Pacific Company, Union Pacific Railroad Company, plaintiffs, versus Arthur E. Summerfield as the Postmaster General, defendant, in Civil Action No. 4958-54, extremely capable and excellent lawyers on both sides of the trial table, fully prepared and with very substantial, well-documented points and authorities and briefs in support of their position have argued very ably and in the finest traditions of the legal profession for their particular adversary positions.

Generally a court will immediately go into the question of jurisdiction and venue since it is essential to any determination, but in this particular case the Court will, in order that the record shall run chronologically, begin by referring to the pleadings which constitute the issues.

 There was filed at the outset on November 20, 1954, a complaint by the plaintiffs who are the five major railroad trunk lines running westward from the Middle West to the extreme Far West to the continental limits of the United States, and they are in the main the five trunk lines that furnish the bulk of the service as far as rail service is concerned, along the entire stretch of the Pacific slope of the United States.

 In this complaint for declaratory judgment and injunctive relief they have set forth that since October, 1953, the defendant has been conducting an experimental operation in the transportation of first-class mail matter, and by the definition the Court makes reference to the fact that it is the sealed envelope type of mail on which there is presently affixed a 3-cent stamp.

 The present postmaster has been most efficient, and in his experiments and other fields has demonstrated an efficiency, and has, as the Court recalls, in one very recent instance, been able to demonstrate that tube-transported mail about Manhattan Island of New York is not only inefficient but actually wasteful, and by substituting truck delivery has accomplished a saving. His is to be regarded only as a commendatory endeavor, and the Court in nowise indicates that an able administrator is to be short-circuited by any remarks the Court should make.

 That experiment began originally by testing out the possibility of using surplus space on aircraft common carriers, and it originally ran in a very short area between Washington, D.C., and New York City, a distance of approximately some 200 miles. It was then extended and by way of experiment ran between the City of New York and Chicago, Illinois, a distance of approximately 800 miles. It was afterwards extended in the Southeast and ran between points emanating beyond that area but to Jacksonville, Florida, Miami, Florida, as well as Tampa, Florida.

 This has been done through experiment. It has also been done through authorization from the Civil Aeronautics Board and there has been an extension of that endeavor so that it has at least on the face of matters at least another year to go.

 On October 6, 1954, the defendant filed with the Civil Aeronautics Board a petition to inaugurate such service between points as indicated by the Court, and on the 8th day of November, 1954, the defendant petitioned the Civil Aeronautics Board to fix a temporary rate of compensation.

 The present plaintiffs in this cause have been granted the right to participate in those proceedings.

 It is to be noted that in his application for the rate the Postmaster General almost indicated a ceiling beyond which this Government agency could not or should not grant that rate.

 On November 10, 1954, the defendant announced the institution of the present proposed service to take effect on November 22, 1954.

 This is somewhat of a different character. It has been represented to the Court that the three experimental areas had to do with feasibility of expediting mail matter, though it be first class, as well as conserving space on aircraft common carriers. The argument is advanced that this particular experiment is to test the feasibility over a long mountainous terrain with intervening points of transfer, and it is to be noted that this experiment is going to cover approximately a thousand miles.

 This particular case is especially interesting because of the kaleidoscopic view which one gets from the four corners of the record. One sees the rapidly changing and modernization of American transportation; one sees the biting edges of competition as new forms of transportation come in, and it throws into relief that there are points in competition in which even the railroads because of their peculiar make-up may enjoy an advantage over air transportation.

 It has been argued to the Court, and the Court is somewhat astounded by it, that in the transportation area between the Nation's Capital and New York City, the nation's financial capital, the railroad under some conditions is actually faster than travel by air, though I assume the standard speed of the standard trains in those directions does not exceed 60 miles an hour on the average, and the aircraft has now developed until it is cruising at almost 350 miles an hour, and the distance is but 200 miles. But that comes about because of the terminal conditions at either end.

 It has also been demonstrated that at times of great weather stress the railroad has something of an advantage over the aircraft carrier.

 As against the allegations made in the complaint and the prayer for declaratory judgment and injunctive relief, there was opposition filed to a preliminary injunction which had been prayed for, and that matter in the regular course of the court's business came before my brother Judge Alexander Holtzoff. There has been a hearing on that and Judge Holtzoff has denied the motion for the temporary injunction.

 The defendant has answered to the cause and the complaint and both sides have moved for summary judgments, and accordingly the issue is squarely before this particular Court as a tryer of the facts and judge of the law.

 Factually, the Court finds that the plaintiffs are five railway corporation common carriers, citizens of the United States, and that they are the principal trunk rail lines between the Mid West and the Far West. The Court finds that the defendant is the Postmaster General of the United States and charged with the handling of mail matter. And the Court specifically finds that the Constitution of the United States under Section 8 of Article 1 in the delegation of authority to the Government of the United States, the people have given Congress the power 'to establish Post Offices and post Roads.'

 As is natural, the Congress has seen fit to put the administration of its delegated authority into the hands of the Postmaster General.

 The Postmaster General by his theory of the case points to the fact that he seeks to correct existing deficiencies in the postal transportation system, and that he had the approval of the Comptroller General to institute certain special transportation arrangements to use excess air cargo space for the movement of first-class mail, and again, so we won't misunderstand, the 3-cent mail type, over selected routes.

 It is true, and the Court finds as a fact, that the Comptroller General in passing upon the status of the grant of moneys under appropriation acts has ruled, and he is quite correct, that the general grant of funds to run, maintain and operate the Post Office Department do not negate against the experimental use of some ...

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