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July 6, 1965

George W. LEGGE and Co-Operative Legislative Committee, Railroad Brotherhoods in the State of Pennsylvania
UNITED STATES of America, Interstate Commerce Commission and the Monongahela Connecting Railroad Company

The opinion of the court was delivered by: ROSENBERG

 This action is brought pursuant to the provisions contained in 28 U.S.C.A. §§ 1336, 1398, 2284, 2321-2325, 49 U.S.C.A. § 17(9) and 5 U.S.C.A. § 1009 and § 25 of the Interstate Commerce Act, as amended.

 It is brought here by George W. Legge *fn1" and Cooperative Legislative Committee, Railroad Brotherhoods in the State of Pennsylvania, as plaintiffs, and based upon a decision of the Interstate Commerce Commission granting the application of the defendant, Monongahela Connecting Railroad Company, to remove 46 interlocking signals, switch machines from all switches, crossovers and movable point crossing frogs, interlocking machine from the tower and all interlocking appurtenances at the location of the Monongahela Connecting Railroad Company. The plaintiffs seek to annul and set aside the actions of the Interstate Commerce Commission and its final order of June 16, 1964.

 The defendants, the United States of America and the Interstate Commerce Commission, filed a joint answer, and the Monongahela Connecting Railroad Company filed its separate answer denying, generally, the averments of the plaintiffs and any need for relief in this connection. A hearing was thereafter set and the parties heard. From all that was presented which included the record of the proceedings before the Interstate Commerce Commission, this determination is made.

 On August 23, 1962, the defendant Monongahela filed its application with the Commission for permission to modify the railroad's signal control system at its 29th Street Tower on the South Side of Pittsburgh and to discontinue the interlocking plant there. The application was based upon the railroad's level of present and predicted business as not justifying the continuing use of the system, as well as that preceding the application when there had been a continuous and significant reduction in the operations of the Pittsburgh Works of the Jones and Laughlin Steel Corporation, the railroad's principal customer.

 The Brotherhoods Committee and its Chairman Legge objected to the change of operations and an initial hearing was held February 21, 1963. Factual questions were raised after testimony was taken and the Hearing Examiner recommended that the application be denied. The Examiner's finding was that the "applicant has not made the requisite showing and that the application should be denied."

 The Examiner pointed out in his report that "[the] truth of the matter is that applicant did not on this record get to the hard core of this matter and indicate with adequate specificity the actual number of movements it now has through the involved interlocking. "

 On July 3, 1963, the Monongahela filed with the Commission a petition requesting further hearing for the purpose of introducing additional evidence relating to daily movements, etc. In the petition it set forth a number of factual matters which it desired to present at the hearing. At the same time, Monongahela requested "that the time for filing exceptions to the recommended report of the Hearing Examiner be modified to thirty days following the Commission's action respecting the foregoing petition for further hearing."

 On July 8, 1963, the Commission postponed until further order the time for filing exceptions. No exceptions were filed at any time. On July 31, 1963, further hearings were ordered. These were held on October 24 and December 13, 1963. At these later hearings additional evidence was introduced showing the density of movements through the interlocking area, the amount of and the factors responsible for the substantial decline in tonnage, and the safety aspects of the proposed modification.

 On April 7, 1964, the Hearing Examiner made a second report and order, in which he incorporated the original report and order, and made findings of fact and a recommendation that the application be granted. Thereafter, the Committee and its chairman filed various exceptions. These were dismissed with the comment that

"The heart of this case is that applicant conducts only a slow speed switching operation. All operations are conducted on yard tracks, at speeds not to exceed 12 miles per hour, and in addition, are prepared to stop short of other movements, obstruction or switch not properly lined."

 In the brief and at the argument, counsel for the plaintiffs raised three contentions: (1) the Commission in reopening the case on July 31, 1963 violated Rule 197(A) of the Interstate Commerce Commission Rules of Practice and the provisions of 49 U.S.C.A. § 17(5); (2) the Commission misread the testimony in determining traffic density between the first and second hearings so as to treat a substantial traffic increase as a traffic decrease; and (3) the Commission misconstrued the objective of the Safety Appliance Act and imposed an unnecessary peril to life and limb upon the employees.

 In its brief, the plaintiffs' counsel conceded "* * * that this Court does not have the power or the right to substitute its discretion for that of the Interstate Commerce Commission and that, in fact, this Court should only reverse in a case like this, if in fact, the Interstate Commerce Commission either acted contrary to law or exercised its discretion in an arbitrary and capricious manner."

 First, was the Commission bound by its order of June 6, 1963? There is a distinction between the time when an order becomes effective and the time when it is final and no longer subject to ...

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