APPENDIX D

ADEQUACY OF RAILROAD
PASSENGER SERVICE

REPORT AND RECOMMENDED ORDER BY INTERSTATE COMMERCE COMMISSION HEARING EXAMINER JOHN S. MESSER, DATED APRIL 22, 1968, CONCERNING ADEQUACY OF THE SOUTHERN PACIFIC COMPANY'S PASSENGER SERVICE BETWEEN CALIFORNIA AND LOUISIANA

DOCKET NO. 34733

APRIL 22, 1969

Printed for the use of the Special Subcommittee on Investigations, Committee on Interstate and Foreign Commerce

COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE

HARLEY O. STAGGERS, West Virginia, Chairman

ADEQUACY OF RAILROAD PASSENGER SERVICE

INTERSTATE COMMERCE COMMISSION,

Served April 22, 1968.

NOTICE TO THE PARTIES

Exceptions, if any, must be filed with the Secretary, Interstate Commerce Commission, Washington, D.C., and served on all other parties in interest, within 30 days from the date of service shown above, or within such further period as may be authorized for the filing of exceptions. At the expiration of the period for the filing of exceptions, the attached order will become the order of the Commission and will become effective unless exceptions are filed seasonably or the order is stayed or postponed by the Commission. To be seasonably filed, exceptions must reach the Commission on or before the date they are due. If exceptions are filed, replies thereto may be filed within 20 days after the final date for filing exceptions. If the recommended order becomes effective as the order of the Commission, a notice to that effect, signed by the Secretary, will be served.

No. 34733

ADEQUACIES-PASSENGER SERVICE-SOUTHERN PACIFIC COMPANY BETWEEN CALIFORNIA AND LOUISIANA

Decided.

Upon investigation found that Southern Pacific Company is in violation of section 1(4) of the act by failing to provide and furnish transportation upon reasonable request therefor; and, in violation of section 1(5) of the act by charging and collecting unjust and unreasonable charges for services that are not available. Unlawful practices ordered discontinued.

David R. Larrouy and John C. Gilman for California Public Utilities Commission, E. T. "Eddie" Williams and Joy Abbey Esq. for Arizona Corporation Commission, Ralph B. Harlan for New Mexico State Corporation Commission, Joseph H. Kavanaugh for Louisiana Public Service Commission, and William D. Lynch for Texas Railroad Commission, petitioners.

Robert M. McHale for City of Lake Charles, La., Oliver G. Nordmarken for City of El Paso, Tex., James D. Webb and J. Dan O'Neill for City of Tucson, Ariz., and Anthony Haswell, interveners in support of petitioners.

William G. Mahoney, O. R. Lundborg, Herbert O. Paul, Billy R. Cowan, Robert R. Wheatley, Dean L. Gilliland, S. F. Walker, Clifford B. Chesser, James E. Howe, Charles H. Purkiss, Graham R. Mitchell, Donovian P. Anderson and George P. Lechner for railway labor interests. Herbert A. Waterman, Randolph Karr, Harry McCalls, Jr., Tom Martin Davis, Wyendham K. White, L. C. White, and Richard M. Bilby for the Southern Pacific Company respondent.

REPORT AND RECOMMENDED ORDER BY HEARING EXAMINER JOHN S. MESSER

By order dated June 21, 1966, the Interstate Commerce Commission instituted an investigation of the passenger service of the Southern Pacific Company under section 12(1) of the Interstate Commerce Act. The investigation was ordered upon consideration of petitions filed with this Commission by the Public Service Commission of the State of Louisiana (L.P.S.C.), the Public Utilities Commission of the State of California (C.P.U.C.), and the Corporation Commission of the State of Arizona (A.C.C.), filed April 11, 15, and 24, 1966, respectively; reply thereto by Southern Pacific Company (S.P.) filed May 2, 1966; and resolutions supporting petitioners filed by the State Corporation Commission of New Mexico (N. Mex. S.C.C.) and the Railroad Commission of Texas (Tex. R.R.C.). Subsequently petitions of intervention filed on behalf of Railway Labor Executives Association and the City of Tucson, Ariz., were granted.

The petitions for investigation allege that the S. P. has, over a period of years, consistently downgraded, discouraged the use of, and eroded the quality of its common carrier passenger train service. A number of Commission proceedings are cited which purport to show "flagrant abuses employed by S. P. to downgrade service and discourage passenger traffic. . .." They further allege that there is a systematic plan by S. P., the ultimate purpose of which is to create intolerable service conditions to discourage passenger traffic, and then to be able to use low traffic figures and declining passenger revenues to support its "petitions" to this Commission to discontinue various passenger trains, and ultimately all its passenger service.

The causa proxima of the petitions is that in February 1966 the S. P. discontinued sleeping cars on Trains Nos. 1 and 2 between New Orleans, La., and El Paso, Tex., and discontinued accepting reservations on those trains between New Orleans and Los Angeles, Calif., and intermediate points.

In its reply the S.P. argues that this Commission lacks jurisdiction to institute this investigation under section 12(1) since the subject matter is not "cognate and germane to its regulatory powers."; that in the absence of a filing under section 13a(1), matters pertaining to passenger-car service and passenger-train service do not fall within the regulatory jurisdiction of the Commission; that sleeping-car service is not now and has never been a necessary part of land transportation; that previous decisions of the Commission support the contention that sleeping-car services do not come within the Commission's jurisdiction under section 1(4); and a general denial that the Commission's decisions cited in the petitions (footnote 1) finds a pattern of discouraging, downgrading, and eroding service.

By order dated August 4, 1966, rules of special procedure were adopted because of the nature of the instant investigation. That order provided that: (1) Petitioners and all interested parties in support thereof would file with the Commission, with copies to all parties, on or before September 26, 1966, prepared testimony, in

1 F.D. No. 23800, Discont. of Trains, etc., in N. Mex. and Ariz.; F.D. No. 23272, S. P. Co.-Discont. of Pass. Trains Nos. 39 and 40 Bet. La., and Pheonix, Ariz.; F.D. No. 23117, S.P. Co.-Discont. Trains Nos. 126 & 141 Bet. San Jose & Monterey, Calif.; F.D. No. 23756, S.P. Co. Discont. Trains Nos. 9 and 10 Bet. Portland, Oreg. and Oakland, Calif.

writing, including all exhibit thereto; (2) respondents and all interested parties in support thereof would file with the Commission, with copies to all parties, on or before October 24, 1966, their prepared rebuttal testimony, in writing, including exhibits thereto; (3) parties desiring cross-examination must have given notice on or before November 7, 1966; and (4) notice of desire to become a party of record and participant in the proceeding would be filed on or before September 19, 1966. These various action dates were subsequently extended an additional 8 months by order dated September 8, 1966, January 3, 1967, March 9, 1967 and April 13, 1967. A petition of the C.P.U.C. for leave to file rebuttal testimony to certain testimony and exhibits of the Southern Pacific Company was granted by order dated September 13, 1968.

Hearings were held before the examiner beginning November 27, 1967, at New Orleans, La., Houston and El Paso, Tex., Tucson, Ariz., and Los Angeles, Calif., for the purpose of cross-examination, evidence in rebuttal thereto, and for such other pertinent evidence which the examiner deemed necessary to complete the record. Briefs were filed by Southern Pacific Company, California Public Utilities Commission and Railway Labor Executives Association.

JURISDICTION

As to the carrier's contention that this Commission lacks jurisdiction under section 12(1) of the act to institute this investigation, the examiner can think of no better reply than that of the Supreme Court in Smith v. Interstate Com. Comm., 245 U.S. 33, 43, where it said

It would seem to be an idle work to point out the complete comprehensiveness of the language of these sections (sections 12, 13 and 20), and we are not disposed to spend any time to argue ***.

The respondent contends that this Commission lacks the authority to require sleeping-car accommodations and dining facilities on interstate passenger trains under section 1(4) of the Interstate Commerce Act. It further argues that "in the absence of a filing under section 13a(1)2 of the act, it is clear from the unbroken line of historical precedents that such matters as passenger-car service and passengertrain service do not fall within the regulatory jurisdiction of this Commission," and "these are service details over which the Commission has, from its inception, declined to assert jurisdiction."

Section 1(4) reads, in part, as follows:

It shall be the duty of every common carrier subject to this part to provide and furnish transportation upon reasonable request therefor * * *

The same section then continues to set forth further duties of such carriers: to establish reasonable through routes and just and reasonable rates, fares, charges, and classifications applicable thereto; to provide reasonable facilities for operating such routes; and to establish reasonable and equitable divisions of joint rates, fares, or charges. Thus, section 1(4) imposes four distinct lawful obligations on the rail carriers subject to the Act, with each separated from the other by use of the conjunction "and". It should also be noted that the word "fares," which denotes charges assessed on passenger transportation, is used three times throughout this section of the act, and indicates

2 Appendix A.