into a proposed discontinuance of train service is committed to the exclusive discretion of the Commission and is not subject to judicial review.
(2) Plaintiffs have no constitutional nor statutory right to a hearing before the Commission decides not to enter upon an investigation of the proposed discontinuance of train service.
(3) Mandamus will not lie to require a public official or agency to perform discretionary acts.
In this action plaintiffs have not only sought to have this Court set aside the February 8, and March 23, 1962 actions of the Commission but also request us to order and accordingly to enter a judgment forbidding the discontinuance of the interstate service.
The obvious weakness here in plaintiffs' request is that the action taken by the Commission on February 8, and March 23, 1962, did not in either instance qualify as an order within the meaning of 28 U.S.C. 1336 (I.C.C. orders), 28 U.S.C. 2325 (injunction three-judge court), nor 49 U.S.C. 17(9) (judicial relief from decisions). Neither action was final, both were completely gratuitous and in effect of no more technical significance than informal statements of Commission policy. Furthermore, Section 13a(1) is self-implementing. The Commission having failed to take affirmative investigatory action within the thirty day period, lost all authority to take such action and then at that point the carrier was vested with plenary power to effect the noticed discontinuance. Any order of the Commission after the expiration of the thirty day period would be completely gratuitous and of no consequence.
The opinion of the P.U.C. supporting its order concedes that the State of New Jersey case, supra, is controlling as to the issues raised therein, but distinguishes the present situation on the basis that while in the instant case there is both an interstate and intrastate aspect, in New Jersey there was only an interstate aspect. The P.U.C. concludes that Section 13a(1) is therefore unconstitutional in failing to condition a discontinuance upon a hearing and finding that the intrastate operation is a burden on interstate commerce and is thereby violative of the due process clause of the Constitution of the United States.
In the Minnesota Rate Cases, 230 U.S. 352, 398-400, 33 S. Ct. 729, 739, 57 L. Ed. 1511 (1913), Justice Highes speaking for the Court said, inter alia:
'(1.) The general principles governing the exercise of state authority when interstate commerce is affected are well established. The power of Congress to regulate commerce among the several States is supreme and plenary. It is 'complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution.' Gibbons v. Ogden, 9 Wheat. 1, 196 (6 L. Ed. 23). The conviction of its necessity sprang from the disastrous experiences under the Confederation when the States vied in discriminatory measures against each other. In order to end these evils, the grant in the Constitution conferred upon Congress an authority at all times adequate to secure the freedom of interstate commercial intercourse from state control and to provide effective regulation of that intercourse as the national interest may demand. * * *
'* * * It has repeatedly been declared by this court that as to those subjects which require a general system or uniformity of regulation the power of Congress is exclusive. In other matters, admitting of diversity of treatment according to the special requirements of local conditions, the States may act within their respective jurisdictions until Congress sees fit to act; and, when Congress does act, the exercise of its authority overrides all conflicting state legislation. * * *'
In Morgan v. Com. of Virginia, 328 U.S. 373, 380, 66 S. Ct. 1050, 1054, 90 L. Ed. 1317 (1946), the Court said, inter alia:
'* * * Because the Constitution puts the ultimate power to regulate commerce in Congress, rather than the states, the degree of state legislation's interference with that commerce may be weighed by federal courts to determine whether the burden makes the statute unconstitutional. The courts could not invalidate federal legislation for the same reason because Congress, within the limits of the Fifth Amendment, has authority to burden commerce if that seems to it a desirable means of accomplishing a permitted end.'
There can be no question that Congress is empowered to legislate with respect to the operation or discontinuance of operation of trains engaged in interstate commerce. The only factual determination required here was the interstate character of the train in question. That was not disputed, consequently a hearing to determine jurisdiction became totally unnecessary. That the exclusive dominion of this matter is vested by Congress in the Commission is well demonstrated in State of Colorado v. United States et al., 271 U.S. 153, 165, 46 S. Ct. 452, 70 L. Ed. 878. There the Court affirmed an order of the Commission permitting the carrier to abandon a totally intrastate branch line. The order was made under the authority of Paragraphs 18-20 of the Transportation Act of 1920, supra, 49 U.S.C. 1(18)-(20). The State of Colorado objected to the order of the Commission as an invasion of the State's right to control intrastate commerce. The Court while stating that the Transportation Act of 1920 did not purport to take from the State its powers to control intrastate commerce, nevertheless, the Act did impose on the Commission a duty to protect interstate commerce from undue burdens or discrimination. Excessive expenditures by the carrier may well affect interstate transportation adversely, hence, ( Pages 163, 165-166, 46 S. Ct. pages 454-455)
'The sole objective of paragraphs 18-20 is the regulation of interstate commerce. Control is exerted over intrastate commerce only because such control is a necessary incident of freeing interstate commerce from the unreasonable burdens, obstruction or unjust discrimination which are found to result from operating a branch at a large loss. Congress has power to authorize abandonment, because the State's power to regulate and promote intrastate commerce may not be exercised in such a way as to prejudice interstate commerce. * * *
'The exercise of federal power in authorizing abandonment is not an invasion of a field reserved to the State. The obligation assumed by the corporation under its charter of providing intrastate service on every part of its line within the State is subordinate to the performance by it of its federal duty, also assumed, efficiently to render transportation services in interstate commerce. There is no contention here that the railroad by its charter agreed in terms to continue to operate this branch regardless of loss. Compare Railroad Commission (of Texas) v. Eastern Texas R.R. Co., 264 U.S. 79 (44 S. Ct. 247, 68 L. Ed. 569). But even explicit charter provisions must yield to the paramount power of Congress to regulate interstate commerce. (State of) New York v. United States, 257 U.S. 591, 601 (42 S. Ct. 239, 66 L. Ed. 385). Because the same instrumentality serves both, Congress has power to assume not only some control, but paramount control, insofar as interstate commerce is involved. It may determine to what extent and in what manner intrastate service must be subordinated in order that interstate service may be adequately rendered. The power to make the determination inheres in the United States as an incident of its power over interstate commerce. The making of this determination involves an exercise of judgment upon the facts of the particular case. The authority to find the facts and to exercise thereon the judgment whether abandonment is consistent with public convenience and necessity, Congress conferred upon the Commission.'
It was specifically held in United States v. Wrightwood Dairy Co., 315 U.S. 110, 62 S. Ct. 523, 86 L. Ed. 726 (1942) that states cannot 'constitutionally thwart the regulatory power' of Congress when it is exercised with respect to intrastate commerce. Speaking for the Supreme Court, Chief Justice Stone there said ( Page 119, 62 S. Ct. 526):
'* * * The power of Congress over interstate commerce is plenary and complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution. Gibbons v. Ogden, 9 Wheat. 1, 196 (6 L. Ed. 23). It follows that no form of state activity can constitutionally thwart the regulatory power granted by the commerce clause to Congress. Hence the reach of that power extends to those intrastate activities which in a substantial way interfere with or obstruct the exercise of the granted power.'
In the light of the legislative history of the pertinent statute indicating that one of its purposes was to expedite the discontinuance of train service to alleviate the losses incurred in railroad passenger service, and that the intrastate portion of the service here in question is an integral part of a movement in interstate commerce, there can be no question but that the facts of this case bring it clearly within the scope of Section 13a(1).
Section 13a(1) is constitutional and deprives neither the State nor any individual of any right which the Constitution of the United States guarantees.
Motions of the United States of America, Interstate Commerce Commission, and The Pennsylvania Railroad Company to Dismiss the Complaint will be granted.