Where a carrier, having discontinued some of its interstate
trains without first applying to the state commission, under
Ala.Code (1923) § 9713, for permission to abandon the
intrastate service which they had furnished, applied to the federal
court for an injunction against infliction of heavy penalties
prescribed by the statute, claiming that to deny the right to
discontinue without such permission would violate the commerce
clause of the Constitution and that to require reinstatement of the
service without prior hearing would violate due process, and where
the admitted facts made it clear that no constitutional right would
have been impaired or serious financial loss incurred by applying
first to the commission, and that there had been no emergency
requiring immediate action,
Held:
1. That the carrier should not have discontinued the intrastate
service without applying to the commission for permission. P.
279 U. S.
563.
2. That its discontinuance of the intrastate service without
such application does not justify exposing it and its officers and
employees to the statutory penalties.
Id.
3. The Commission should give the carrier an opportunity to
present facts, and, if the application is made promptly, should
determine the matter without subjecting the carrier to any
prejudice because of its failure to apply earlier.
Id.
4. To this end, a decree denying a preliminary injunction should
be vacated, and a restraining order be kept in force, leaving
the
Page 279 U. S. 561
case open for further proceedings in the District Court if the
Commission should insist on having the intrastate service restored.
P.
279 U. S.
563.
27 F.2d 893 reversed.
Appeal from a decree of a district court which denied an
interlocutory injunction in a suit by the Railway against the
above-named commission and divers Alabama officials.
MR. JUSTICE BRANDEIS delivered the opinion of the Court.
Section 9713 of the Code of Alabama (1923) prohibits a railroad
from abandoning
"any portion of its service to the public . . . unless and until
there shall first have been obtained from the [Public Service]
Commission a permit allowing such abandonment."
Very severe penalties, including punishment of officers, agents
and employees are prescribed in case the abandonment is willful.
Sections 9730, 9731, 5350, 5399. Without obtaining such permission
or applying therefor, the St. Louis-San Francisco Railway
discontinued two interstate trains by means of which it had long
furnished intrastate service between several cities and towns in
Alabama. Then it brought, in the federal court for the middle
district of that state, this suit against the Commission, the
Attorney General, and other officials to enjoin the commencement of
proceedings to enforce the penalties prescribed. An application for
an interlocutory injunction, heard before three judges
Page 279 U. S. 562
under § 266, was denied, 27 F.2d 893. A restraining order,
issued upon the filing of the bill, was continued in force pending
the determination of this appeal.
The bill alleges that the operation of the interstate trains by
which the intrastate service had long been furnished had involved
the carrier in losses; that the service still furnished by other
trains is adequate to supply the reasonable needs of the
communities; that, upon learning of the discontinuance of the
service, the Commission demanded that it be restored without first
hearing the carrier; that, if § 9713, Code Ala.1923, is
construed as requiring the carrier to obtain the Commission's
permission before discontinuing intrastate service rendered by
means of an interstate train, or as prohibiting such discontinuance
although an unreasonable burden is thereby imposed upon the
carrier, the statute violates the Commerce Clause of the federal
Constitution; that, if construed as requiring, without a prior
hearing, reinstatement of the service so discontinued, it violates
also the due process clause, and that the matter in controversy
exceeds the jurisdictional amount. The prayers are for an
injunction against enforcing any penalty for discontinuance of the
service or for failure to reinstate the same, and for a declaration
that the statute, if construed as stated, is void under the federal
Constitution. The answer denies many of the allegations of the
bill.
The railway contends that it had no way of testing the
constitutionality of the statute, otherwise than by this suit. It
urges that, if it had applied to the Commission for permission to
discontinue the service, it would have thereby recognized its
jurisdiction, and that, since the Commission did not, before
directing reinstatement of the service, issue any order to the
carrier to appear, there was no action by the Commission which
could form the basis
Page 279 U. S. 563
for a review in courts of the state. We have no occasion to
consider the issues of fact or to determine whether the Alabama
statute, if construed as suggested, is obnoxious to the federal
Constitution. Upon facts admitted, it is clear that the carrier
should not have discontinued the intrastate service without first
applying to the Commission for permission. No constitutional right
could have been prejudiced by so doing. No emergency existed
requiring immediate action. And no serious financial loss would
have been incurred by the slight delay involved.
Western &
Atlantic R. Co. v. Georgia Public Service Commission,
267 U. S. 493,
267 U. S. 496;
Lawrence v. St. Louis-San Francisco Ry. Co., 274 U.
S. 588,
274 U. S.
595.
The past failure of the railway to apply for leave to
discontinue the service does not, however, justify exposing it, and
its officers and employee s, to the severe penalties prescribed by
the statute. It may be that, upon full presentation of the facts,
the Commission would find that to continue the service would
subject the carrier to an unreasonable burden; or the carrier may
suggest some satisfactory substitute for the specific service now
demanded of it. The Commission should give to the railway the
opportunity of presenting the facts, and, if an application is made
promptly, the matter should be determined by the Commission without
subjecting the railway to any prejudice because of its failure to
ask leave before discontinuing the service.
Compare Lawrence v.
St. Louis-San Francisco Ry. Co., 278 U.
S. 228. To this end, the decree will be vacated and the
restraining order will be continued.
Compare Ohio Oil Co. v.
Conway, post, p. 813. If, after such hearing the Commission
insists that the service objected to be restored, further
proceedings appropriate to the situation may be had in the cause in
the district court.
Decree vacated.
