The opinion of the court was delivered by: FOLLMER
This suit is brought to set aside alleged actions of the Interstate Commerce Commission taken on February 8, 1962, and March 23, 1962, respectively.
This Court has jurisdiction by virtue of the provisions under 28 U.S.C. 2282 and 2284.
The case had its inception on November 29, 1960, when the defendant, The Pennsylvania Railroad Company (hereinafter called Pennsylvania) filed before the Pennsylvania Public Utility Commission (hereinafter called P.U.C.) its application to abandon the intrastate portion of its runs of trains Nos. 638 and 645 operating daily between Harrisburg, Pennsylvania, and Hagerstown, Maryland. The application called for abandonment of all passenger train service on its Cumberland Valley Branch between the City of Harrisburg and the Pennsylvania-Maryland line. After hearings and the filing of briefs, on August 7, 1961, the P.U.C. denied the application. No appeal was taken from that Order.
On January 25, 1962, Pennsylvania filed a Notice under Section 13a(1) of the Interstate Commerce Act as amended in 1958, 49 U.S.C. 13a(1), and the regulations of the Commission, 49 C.F.R. 43.1, et seq., proposing to discontinue the operation of the above-designated trains effective February 25, 1962. The Notice provides in part 'Persons desiring to object to the proposed discontinuance should promptly notify the Interstate Commerce Commission at Washington, D.C., of such objection and the reasons therefor before February 11, 1962.'
Several protests were filed with the Interstate Commerce Commission (hereinafter called I.C.C.) including one filed by the Railway Labor Executives' Association on January 31, 1962. On February 8, 1962, I.C.C., Division 3, concluded not to enter upon an investigation of the proposed train discontinuance, and a notice to that effect was served on February 12, 1962. The notice of the I.C.C. states that the action was taken 'Upon consideration of a notice and supporting data filed January 24, (sic) 1962, * * * and of protests received in opposition thereto, * * *'
In accordance with I.C.C.'s notice of February 8, 1962, Pennsylvania discontinued the two trains on February 25, 1962.
'* * * That section 13a(1) of the Interstate Commerce Act authorizes this Commission to institute an investigation of a proposed discontinuance thereunder only within the 30 days' notice period prior to the proposed effective date;
'* * * that the requests for reconsideration of the aforementioned decision were received after expiration of the 30 days' notice period, that the subject trains have been discontinued, and that this Commission is, therefore, without authority to grant the requested relief:'
On April 30, 1962, the Complaint in the instant action was filed seeking to set aside the action of the I.C.C. in concluding not to enter upon an investigation of the proposed discontinuance of trains as heretofore described in the proceedings initiated by Pennsylvania before the I.C.C. under the provisions of Section 13a(1) of the Interstate Commerce Act as amended. The Complaint alleged that the original action of February 8, 1962, under which Pennsylvania ceased operating the trains was void as having been entered without due process of law, without adequate notice, without permitting the interested parties an opportunity to be heard, and in violation of the due process clause of both the Fifth and Fourteenth Amendments of the Constitution of the United States; that the action of February 8, 1962, without any finding that the trains in question were a burden on interstate commerce, was an invasion of the power of the State of Pennsylvania to regulate its own intrastate train movements and hence is unconstitutional and void; and further, that a failure of I.C.C. to grant a hearing in proceedings of this character is in violation of the Full Faith and Credit Clause of the Constitution of the United States.
The Complaint and the Motions to Dismiss pose the following questions:
(1) Is the discretionary action of the I.C.C. concluding not to institute an investigation subject to judicial review?
(2) Has the Court jurisdiction to require the Commission to institute an investigation into the proposed discontinuance of train service?
(3) Is Section 13a(1) of the Interstate Commerce Act as amended in 1958 unconstitutional as the ...