United States v. City of Chicago/Dissent Harlan

by John Marshall Harlan II

United States Supreme Court

400 U.S. 8

United States  v.  City of Chicago

Mr. Justice HARLAN, with whom Mr. Justice BLACK joins, dissenting.

I think these cases do not lend themselves to summary disposition.

The Chicago & Eastern Illinois Railroad Co. and the Louisiville & Nashville Railroad Co. jointly operated a train known as the 'Georgian' which provided passenger service between Chicago, Illinois, and Atlanta, Georgia. At Evansville, Indiana, between the two terminal points on the 'Georgian' run, the railroad companies switched engines and train crews; passengers, however, could remain in the railroad cars and continue through to the end of the run. The Chicago & Eastern Illinois sought ICC approval of its discontinuance of the Chicago-Evansville portion of the run; notice of the proposed discontinuance proceedings was not served on the Governors and residents of the States served by the Evansville-Atlanta portion of the 'Georgian' run. After our remand in City of Chicago v. United States, 396 U.S. 162, 90 S.Ct. 309, 24 L.Ed.2d 340 (1969), the District Court held that notice of the ICC discontinuance proceedings should have been given to the Governors and residents of all the States served by the 'Georgian' run. The Court, in Nos. 386 and 410, now summarily reverses that decision, holding that § 13a(1) of the Interstate Commerce Act, 49 U.S.C. § 13a(1), requires that a carrier seeking to discontinue passenger service give notice only in those States having regulatory authority over the carrier. ^[1]

The issue, in my opinion, is not one justifying summary resolution, as an examination of the Court's opinion indicates. The Court relies in the first instance on the absence of an explicit provision in § 13a(1) of the Act for notice to States served by 'connecting railroads.' However, the statutory provision in question is manifestly highly ambiguous with regard to the scope of the notice obligation in situations where two carriers, though subject to different state regulatory authorities, offer their services to the public in a manner which, from the consumer standpoint, is indistinguishable from passenger service offered by a single carrier. Section 13a(1) provides in relevant part:

'A carrier or carriers * * * if their rights with respect to the discontinuance or change, in whole or in part, of the operation or service of any train * * * operating from a point in one State to a point in any other State * * * are subject to any provision of the constitution or statutes of any State or any regulation or order of (or are the subject of any proceeding pending before) any court or an administrative or regulatory agency of any State, may, but shall not be required to, file with the Commission, and upon such filing shall mail to the Governor of each State in which such train * * * is operated, and post in every station, depot or other facility served thereby, notice at least thirty days in advance of any such proposed discontinauance or change. * * *'

Appellants in Nos. 386 and 410 argue that since § 13a(1) accords carriers a right to commence discontinuance proceedings before the ICC if their rights with respect to the operation of train service are subject to any state regulatory authority, the scope of the notice requirement should be limited by the reach of the state regulatory power giving rise, in the first instance, to the carrier's right to go before the ICC. Appellees in Nos. 386 and 410, for their part, contend that the notice requirement is geared to the areas through which 'such train' is operated, not merely the areas reached by a State's regulatory power over the carrier. For my part, I find the language and structure of the statutory provision singularly opaque; and I am not aided in my choice between these competing constructions by the Court's observation that § 13a(1) makes no provision for notice in States served by 'connecting railroads.'

In view of the structural and linguistic ambiguity of the statutory provision, the Court's reliance on the absence of an explicit reference to carrier arrangements of this sort would carry weight only if the legislative policy underlying § 13a(1) of the Act solidly supported the result reached today. Lacking that, the description of congressional policy in n. 3 of the Court's opinion, ante, at 11, hardly warrants the Court's inference in the text of its opinion that the statutory purpose underpinning § 13a(1) is served by a limitation of the notice requirements according to the reach of the State's regulatory power over the carrier filing with the ICC. ^[2] Indeed, the concern with state regulatory parochialism, and the resulting burden on interstate commerce caused by economically wasteful passenger service arrangements, argue with at least equal force for an interpretation of the notice requirements of § 13a(1) as reaching beyond the relatively narrow parochial interests likely to be called forth by only a particular State's participation in a hearing on the discontinuance of multicarrier service.

Apparently, the Court recognizes the inherent ambiguity of the statute. Thus, its opinion finally comes to rest on the principle of deference to the administrative agency's construction of the statute. Suffice it to say that I am not persuaded by the deference argument as applied to the agency's pro forma finding of adequate notice in this very litigation where the notice issue evidently was not before the agency at the time of its ruling. See 331 I.C.C. 447, 448.

The above considerations are not meant to reflect any conclusions concerning the merits of the statutory construction issue presented in these cases. To the contrary, my point is simply that, without briefs and oral argument by the parties on the merits of the question, I would refrain from choosing between the conflicting constructions of § 13a(1) pressed upon the Court by the parties. Therefore, I would note probable jurisdiction in Nos. 386 and 410. I would withhold action in No. 387 pending dispositions in Nos. 386 and 410. In No. 396, I would note probable jurisdiction, limited to the questions concerning the District Court's action in reinstating the restraining order of September 6, 1968.

Notes

1. Nos. 387 and 396 are appeals by the Government, the ICC, and the Louisville & Nashville Railroad Co. challenging the District Court's holding that the issues involving the discontinuance of the Louisville & Nashville Railroad Co.'s 'Hummingbird' train are so factually related to the discontinuance of the 'Georgian' run that the 'Hummingbird' discontinuance should be remanded in light of the projected reconsideration of the 'Georgian' discontinuance. In addition, the Louisville & Nashville Railroad Co., in No. 396, challenges the District Court's action in reinstating the September 6, 1968, restraining order entered by Judge Robson; that restraining order prohibited discontinuance of the 'Hummingbird' trains pending resolution of the case in the District Court. On April 3, 1970, this Court stayed the District Court's action in reinstating the earlier restraining order. 397 U.S. 1019, 90 S.Ct. 1255, 25 L.Ed.2d 529. The effect of today's opinion on the status of that restraining order is unclear.
2. The disconnected nature of the Court's reasoning is nicely illustrated in n. 3 of its opinion, ante, at 11. We are offered two quotations-one from the Senate Report and the other from the Association of American Railroads-as legislative history supporting the Court's construction of § 13a(1). The substance of both clearly supports the view of § 13a(1) as seeking to remedy state regulatory parochialism. Unfortunately, neither quotation speaks to the question put in issue by the Court's rationale for summarily disposing of these cases; i.e., whether the congressional decision to proffer an alternative national forum as a remedy for state parochialism is to be construed solely in light of the carrier interest in escaping state regulatory agencies. Yet the Court, after reciting these quotations, chooses to draw the inference that the statute cannot be easily construed to do more than serve that interest of the carriers. I must respectfully submit that this is a rather obvious non sequitur.