Sheridan, after hearing witnesses for plaintiffs and the railroad, entered a temporary restraining order the evening of July 18, 1969, preventing discontinuance of the trains.
A Three-Judge Court was duly convened. The railroad moved that the temporary restraining order be dissolved. Meanwhile, plaintiffs and intervening plaintiffs petitioned the Commission for reconsideration of the agency's report. After hearings, the motion to dissolve the temporary restraining order was denied.
The petition for reconsideration was denied by Division 3 of the Interstate Commerce Commission, acting as an Appellate Division, on September 19, 1969 (served September 23, 1969). Plaintiffs and intervening plaintiffs thereupon filed an amended complaint with this Court, and the agency's action became ripe for judicial review. 49 U.S.C. § 17(9).
Penn Central operates two pairs of trains daily in each direction between New York, New York, and St. Louis, Missouri. These two sets of trains are known as the "Penn Texas" (No. 3 westbound and No. 4 eastbound) and the "Spirit of St. Louis" (No. 31 westbound and No. 30 eastbound). The trains operate via intermediate points, such as Trenton, New Jersey; Philadelphia, Harrisburg and Pittsburgh, Pennsylvania; Columbus and Dayton, Ohio; Terre Haute and Indianapolis, Indiana and Effingham, Illinois, a distance of about 1,050 miles in each direction. Both trains have coaches, sleeping car, and dining car equipment.
The instant proceeding involves the proposed discontinuance of Train No. 3 (the westbound Penn Texas) and Train No. 30 (the eastbound Spirit of St. Louis). Penn Central, or its predecessor, Pennsylvania Railroad Company, for a number of years has attempted to discontinue two of its four trains operating between St. Louis and New York. It first attempted to discontinue Trains Nos. 30 and 31 by a Section 13a(1) notice filed October 25, 1964. After hearing and decision in an investigation instituted by the Commission, discontinuance was denied and continued train operation required for the maximum one-year statutory period provided by Section 13a(1). Pennsylvania R. Co. Discontinuance of Trains, 328 I.C.C. 921 (1965). The second attempt to discontinue Trains Nos. 30 and 31 was likewise unsuccessful, the Commission again requiring continued operation for a year. Pennsylvania R. Co. Discontinuance of Trains, 330 I.C.C. 458 (1966). The carrier then proposed to discontinue Trains Nos. 3 and 30 by notice filed December 20, 1967, but subsequently withdrew its notice prior to the hearings. (Finance Docket No. 24873). The fourth attempt was also to discontinue Trains Nos. 3 and 30, and the Commission denied discontinuance after hearing and decision in its investigation. Penn Central Co. Discontinuance of Trains, 333 I.C.C. 736 (1968). This decision was by a divided two-to-one vote of the Commission's Division 3, and continued operation was ordered for a four-month period.
The fifth attempt, which resulted in the decision and order (see footnote 1 above) allowing discontinuance of the two trains, gives rise to this action. Penn Central filed its notice proposing discontinuance of the trains prior to 11:00 A.M. on February 18, 1969, stating that the discontinuance would become effective March 20, 1969, and setting forth a schedule of the trains which showed that the eastbound train started at 12:10 P.M. and the westbound train at 6:45 P.M.
The notice posted on February 17, and filed with the Commission prior to 11:00 A.M. on February 18, reads as follows:
"Notice of Proposed
Discontinuance of Service