The opinion of the court was delivered by: CURRAN
This is a civil action arising under the Interstate Commerce Act, 49 U.S.C.A. §§ 1(4), 3(4), 5(2), 5(4), 5(7) and 15(3), brought by the plaintiff, Railway Labor Executives' Association (hereinafter called Association), to set aside and annul orders of the Interstate Commerce Commission (hereinafter called Commission), entered March 5 and July 16, 1956, in a proceeding entitled Railway Labor Executives' Association, et al. v. Chicago and North Western Railway Company, et al., 298 I.C.C. 69, docket number 31876, and number 31876 (subno. 1), Same v. Same, and to compel the Commission to consider and rule on the merits of the controversy. Jurisdiction is claimed under 28 U.S.C., §§ 1336, 1398, 2284 and 2321-2325.
The order of March 5, 1956, which dismissed the two complaints by the plaintiff, is based upon the Commission's conclusion set forth in its Report, which states in part as follows:
The order of July 16 is the final action of the Commission denying plaintiff's petition for reconsideration.
Pursuant to 28 U.S.C. §§ 2284, plaintiff, on November 21, 1956 filed a motion asking the District Court to request the Chief Judge of the United States Court of Appeals for the District of Columbia Circuit, to designate a three-judge court to hear and determine the complaint. This motion was granted on December 10, 1956 and a three-judge statutory court was designated on December 13, 1956.
On November 15, 1956 the District Court granted the joint motion of the Chicago and North Western Railway Company (hereinafter called North Western) and the Chicago, St. Paul, Minneapolis and Omaha Railway Company (hereinafter called St. Paul) to intervene as defendants in the proceeding. Similar motions were granted on November 20, 1956 permitting the intervention of the Chicago, Milwaukee, St. Paul and Pacific Railroad Company (hereinafter called Milwaukee) and the Union Pacific Railroad Company (hereinafter called Union Pacific) as defendants, and on November 28, 1956 the Court granted the motion of the Southern Pacific Company (hereinafter called Southern Pacific) to intervene as a defendant. Each of these intervenors filed answers to the complaint. The Interstate Commerce Commission filed its answer to the complaint on December 7, 1956 and the United States of America filed its answer on January 7, 1957.
The plaintiff is a voluntary, unincorporated association with which are affiliated standard, national and international railway labor organizations. Certain of these organizations are the duly designated representatives, under the Railway Labor Act, 45 U.S.C.A. § 151 et seq., for the purposes of collective bargaining, of the employees of the railroads, which are intervening defendants, and the plaintiff is acting on behalf of these employees. The complaints filed before the Commission, purporting to invoke certain provisions of Section 5 and Sections 1(4), 3(4) and 15(3) of the Interstate Commerce Act, sought to prevent North Western from discontinuing the interchange and operation over its line between Chicago, Illinois and Omaha, Nebraska, of cars composing certain passenger trains operated over connecting railroads between Chicago and various western cities, including Los Angeles and San Francisco, California, Portland, Oregon and Denver, Colorado. The purpose of the complaints was to prevent or to obtain compensation under Section 5(2)(f) of the Interstate Commerce Act for alleged adverse effects of such discontinuance of interchange of the cars composing the trains upon employees of North Western engaged directly or indirectly in the operation of the trains over its line between Chicago and Omaha.
For years prior to October 1955, North Western Union Pacific and Southern Pacific interchanged and operated certain through passenger train service between Chicago and San Francisco, and North Western and Union Pacific interchanged and operated passenger trains between Chicago and Los Angeles, California and Denver, Colorado and Portland, Oregon. Until October, 1955 the trains involved operated over the tracks of North Western between Chicago and Omaha, where crews of Union Pacific took charge of the trains. Similar arrangements existed for the trains which were entered upon Southern Pacific tracks further west. Each of the railroads operated the trains over its own tracks but not over the tracks of either of the other railroads. Each of the railroads furnished its own locomotives and crews for operation of the trains over its own tracks except one train operated by North Western between Chicago and Omaha and by Union Pacific between Chicago and Denver, which train was hauled by the same locomotive over the lines of both railroads between Chicago and Denver. In October, 1955 the routing of the trains involved was changed in that the line of Milwaukee was used to transport the trains over its lines between Chicago and Omaha. The plaintiff alleges that the changes in routes have affected certain employment rights of the employees of their labor organizations, in that the substitution of Milwaukee for North Western has resulted in hardship for between 700 and 1250 employees of North Western.
After filing complaints before the Commission the plaintiff instituted action in the United States District Court in Chicago in which it sought an injunction from that Court to restrain the railroads from changing the said routing, pending decision by the Commission on the complaints. The District Court in Chicago entered findings of fact and conclusions of law on October 27, 1955 in which it denied the injunction and found that the consistent opinions of the Commission over a long period of years had held that the Commission lacked jurisdiction of the subject matter of the complaints.
Plaintiff contends here that the arrangements between the connecting railroads for the operation of through passenger train service by means of an interchange of equipment belonging to each of the carriers require Commission approval under Section 5(2)(a) of the Interstate Commerce Act; and that the Commission erred in dismissing, on the basis of legal insufficiency and without a hearing on the merits, the application of plaintiff for continuance of the existing train service.
The defendants contend that the order of the Commission to dismiss the complaints is lawfully correct in every respect, that the Commission has no jurisdiction over the operation, discontinuance or curtailment of passenger service, and was therefore without authority to prevent North Western from discontinuing, or Milwaukee from commencing, interchange and operation of the subject trains over their respective lines between Chicago and Omaha; that neither the prior interchange between North Western, Union Pacific and Southern Pacific, nor the present interchange with Milwaukee of the cars composing the passenger trains operated by each of the railroads over its own line, was a 'transaction' involving consolidation, merger, purchase, contract to operate or acquisition of control or management of the property of the three railroads in a common interest, subject to the Commission's jurisdiction under Section 5(2)-(7) of the Interstate Commerce Act; that the Commission did not act arbitrarily or unlawfully in dismissing the plaintiff's complaint; that the Commission's Report shows that it recognized alleged possible adverse effects that North Western's discontinuance of operating the trains might have upon some of its employees, but that it did not err in failing to make 'specific findings' concerning such effects on employees or public interest in their welfare, particularly since it had no jurisdiction of such discontinuance, and that there was no further factual data presented from which the Commission could have made 'specific findings' with respect to the alleged adverse effects upon the employees; that the construction sought by plaintiff would do violence to the intent and purpose of the Interstate Commerce Act; that plaintiff has no real legal theory of its case; that the railroads here have done no more than they are required by law to do; that the Commission has traditionally conceded that carriers must be allowed wide latitude in the operation of passenger service; that the Commission reached the only conclusion possible in dismissing the plaintiff's complaints and that plaintiff is bound by the decision of the Commission.
According to the plaintiff, two basic questions are presented:
II. Do the provisions of Section 1(4), 3(4) and 15(3) of the Act authorize the Commission to direct, as necessary and desirable in the public interest, the continuance of an existing through passenger train service serving through routes when the discontinuance of such service will deprive a substantial number of railroad ...