Aberdeen & Rockfish Railroad v. United States , 301 F. Supp. 889 ( 1969 )

PER CURIAM:

On June 3, 1965, this Court denied plaintiffs’ application for an Interlocutory Injunction suspending and restraining the operation, enforcement and execution of the Order of the Interstate Commerce Commission dated February 3, 1965, Docket No. 29799, Akron, Canton & Youngstown R. Co., et al v. Aberdeen & Rockfish R. Co., et al, and Docket No. 29885, Official Southern Divisions. As a condition to the denial of injunctive relief, intervening defendants agreed to the protective provisions contained in Paragraph 3 of said Order dated June 3, 1965, by filing written consent with the Clerk of this Court. Conditions 3A and 3C of that Order provided that in the event plaintiffs were successful in permanently setting aside the Order of the Interstate Commerce Commission dated February 3, 1965, intervening defendants, The Baltimore & Ohio R. Co., et al, would resettle their accounts with plaintiffs on traffic covered by the Commission’s Order, on the basis of divisions in effect prior to the effective date of that Order, on all shipments made on or after April 20, 1965, with interest at the rate of five per cent (5%) per annum, and reimburse plaintiffs for their reasonable expenses for accounting changeovers resulting from denial of the application for Interlocutory Injunction.

This Court entered its Final Decree on August 8, 1967, which set aside the Order of the Interstate Commerce Commission dated May 18, 1965 (each as entered by the Commission in the cause under its Docket No. 29799, Akron, Canton & Youngstown R. Co., et al v. Aberdeen & Rockfish R. Co., et al, and Docket No. 29885, Official-Southern Divisions) and remanded the cause to the Commission for further proceedings consistent with the Opinion, findings of fact and conclusions of law of this Court.

We entered an Order staying our decree of August 8, 1967, by which the effective date of the Decree entered the same day was stayed until final disposition of an appeal to the Supreme Court of the United States. Paragraph 2 of said Order Staying Decree further provided that during the effective period of the stay the protective provisions contained in Paragraph 3 of the Order dated June 3, 1965, would continue in full force and effect.

On November 12, 1968, in No. 13, The Baltimore & Ohio R. Co., et al v. Aberdeen & Rockfish R. Co., et al, and No. 15, Interstate Commerce Commission v. Aberdeen & Rockfish R. Co., et al, 393 U.S. 87, 89 S.Ct. 280, 21 L.Ed.2d 219, the Supreme Court of the United States modified and affirmed this Court’s Final Decree filed August 22, 1967.

On December 6, 1968, intervening defendants, The Baltimore & Ohio R. Co., et al, filed with the Supreme Court a “Petition for Rehearing, Relating Solely to the Terms of the Judgment and Order to be Entered by this Court,” requesting that this Court be directed “to stay its final decree pending consideration by the Commission upon remand.” Plaintiffs and intervening plaintiffs were requested by the Supreme Court to file, and they did file, responses to the Petition for Rehearing. On March 3, 1969, the Supreme Court denied intervening defendants’ Petition for Rehearing, and the mandate of the Supreme Court was received by this Court on March 6, 1969.

On the foregoing history, the motion of intervening defendants for an order holding these proceedings in abeyance pending a further report of the Commission on remand should be denied without further oral argument. We attach herewith and make a part hereof an appropriate order.

ORDER DISSOLVING STAY, MODIFYING FINAL DECREE, AND ENFORCING PROTECTIVE CON- ' DITIONS

This Cause having come before the Court on motion of plaintiffs, joined by intervening plaintiffs, for an order dissolving the stay entered pending appeal, modifying the judgment of this Court in accordance with the judgment and order of the Supreme Court, and enforcing the terms of this Court’s order of June 3, 1965, and on intervening defendants’ motion for an order holding this proceeding in abeyance pending the report and order of the Interstate Commerce Commission on remand; the parties having appeared by their counsel of record; and the Court having considered the submissions of the parties and being fully advised in the premises;

It is hereby ordered:

1. The Order Staying Decree dated August 8,1967, is hereby dissolved.

2. In accordance with the Final Decree dated August 8, 1967, the Order of the Interstate Commerce Commission dated February 3, 1965, as supplemented by the third ordering paragraph of the Order of that Commission dated May 18, 1965 (each as entered by the Commission in the cause under its Docket No. 29799, Akron, Canton & Youngstown R. Co., et al v. Aberdeen & Rockfish R. Co., et al, and Docket No. 29885, Official Southern Divisions), and each of said orders, be and the same are hereby set aside and the cause is hereby remanded to the Commission for further hearings to show the nature, volume, and other characteristics of the North-South traffic in question and for the issuance of a report with findings and conclusions on all material issues, including issues as to which findings were specifically required by the opinion of this Court, as modified by the opinion of the United States Supreme Court entered on November 12, 1968, in No. 13, The Baltimore & Ohio R. Co., et al v. Aberdeen & Rockfish R. Co., et al; and No. 15, Interstate Commerce Commission v. Aberdeen & Rockfish R. Co., et al, 393 U.S. 87, 89 S.Ct. 280, 21 L.Ed.2d 219.

3. The motion of intervening defendants for an order holding this proceeding in abeyance is denied.

4. In accordance with the protective conditions set forth in Paragraphs 3A and 3C of this Court’s Order Denying Application of Plaintiffs and Intervening Plaintiffs for an Interlocutory Injunction and Dissolving the Temporary Restraining Order dated June 3, 1965, to which they consented, intervening defendant railroads are ordered to restore for application to current shipments the basis of divisions which was in effect prior to the effective date of the Commission’s order of February 3, 1965 (unless changed by agreement or until changed by a valid order of the Commission), and to resettle their accounts with plaintiffs and otherwise to satisfy the requirements of Paragraphs 3A and 3C of the order dated June 3, 1965, within ninety (90) days of the date of this order.