primary jurisdiction vests some discretion in the Court with regard to the jurisdictional issue, the case of Minneapolis & St. Louis Railway Co. v. Pacific Gamble Robinson Co., supra, can be distinguished from the present case in that the railway there declined to furnish the shipper any cars. In the principal case the issue is not the refusal of the railway to furnish the shipper any cars. Rather, it is the adequacy of the service being rendered. In this regard the shipper's right to as many cars as are needed is not an absolute right and the law exacts only what is reasonable of the railway under all of the existing circumstances.

The Court is accordingly of the opinion that under the doctrine of primary jurisdiction, application to the Interstate Commerce Commission would be a prerequisite to the maintenance of this action in this court. An order will accordingly enter dismissing the lawsuit.

In the same vein, the court in Spence v. Baltimore & Ohio Railroad Company, 360 F. 2d 887 (7th Cir. 1966), reversed a lower court which had entered an injunction requiring the railroad to provide the shipper with not fewer than eight boxcars daily for the hauling of its soybeans. The lower court had asserted jurisdiction, presumably under section 1(4) of the act, and section 23, which permits a court to enter mandatory relief to assure shippers of obtaining equal facilities. The appellate court, quoting Balt. & Ohio R. R. v. Pitcairn Coal Co., 215 U.S. 481 (1910), said that there was no escape from the conclusion that the grievances complained of were primarily within the administrative competency of the Commission and not subject to be judicially enforced, at least until the Commission had been afforded the opportunity to exert its administrative functions.

In addition to the majority's views of what the court said in the Pennsylvania case and what the Commission has said with respect to sections 1(10) et seq. of the act, the third premise offered for the conclusions of the majority are the Commission's repeated assertions that it had no powers over the quality of passenger service and the acquiescence of Congress in this interpretation. Neither the belief nor the acceptance of that belief constitutes immutable barriers to overturning prior decisions. No administrative agency is inextricably tied to its past decisions by rigid rules of stare decisis, nor is its prior policy irreversible, for the very purpose which it serves is to be able to flexibly respond to new and changing circumstances. 2 K. Davis, Administrative Law Treatise 817.07, at 525 (1958). This Commission, in its piggyback case, sustained in Atchison, T. & S. F. Ry. Co. v. United States, 387 U.S. 397 (1967), construed the right of motor carriers to avail themselves of rail services quite differently than it had

previously. In that case, the Supreme Court disposed of prior inconsistent decisions of the Commission by stating (at page 416) that "in any event, we agree that the Commission, faced with new developments or in light of reconsideration of the relevant facts and its mandate, may alter its past interpretation and overturn past administrative rulings and practice." The Supreme Court also noted that the attention of the Congress had been called to the need for action to secure the relief which the Commission subsequently granted in its rules (at page 416). However, the court concluded at page 417 that "We do not regard this as legislative history demonstrating a congressional construction of the meaning of the statute, nor do we find in it evidence of an administrative interpretation of the Act which should tilt the scales against the correctness of the Commission's conclusions as to its authority to prescribe the present rules."

Even the majority concedes that disavowals of jurisdiction and requests for legislation do not close the door on later finding such jurisdiction. Without its interpretation of the Pennsylvania case, the majority's attempt to distinguish between the two recent Supreme Court decisions (U. S. v. Southwestern Cable Co., 392 U.S. 157 (1968) (CATV case), and the Permian Basin Area Rate Cases, 390 U.S. 747 (1968)), and the present situation obviously becomes strained. The mere statements that changing times do not create jurisdiction and that only Congress can create jurisdiction does not negate the language and import of the Permian Basin Area Rate Cases, which the majority cites.

On balance, I think that the majority has erred in claiming that the Pennsylvania case vitiates the Commission's asserting of jurisdiction under section 1(4). Bootstrapping its denial of jurisdiction with a parade of cases involving the car service provisions adds nothing of substance to the majority's report. Finally, persistent presentations of its views to Congress certainly does not close the door to change. The Commission cannot become inextricably wedded to its past decisions and views. Such obdurate fixations would render it a useless bureaucratic appendage-ineffective to solve new problems or to meet changing conditions. On the other hand, I believe that the railroads have a responsibility under section 1(4) to furnish adequate passenger service with their present equipment on existing trains, that the Commission has the power to enforce (under section 12(1)) this responsibility, and that the national transportation policy-which directs the Commission to enforce the act "to promote safe, adequate,

economical, and efficient service ***" dictates that considerations of efficiency and adequacy should govern such enforcement. The words of section 1(4) and the national transportation policy are plain and unambiguous.

II. Formulation and Application of Standards.

The fact that rail passenger service loses money cannot be stretched into an assumption that the lack of profitability makes that service immune from the ultimate purposes of the national transportation policy or that we should ignore the common carrier responsibilities of passenger carrying railroads. Neither adverse operating conditions nor the lack of a clear and vital future role can eliminate the railroads' obligation to provide an adequate quality of service on those trains which are still running. That obligation is not unlimited; carriers can seek relief under section 13a or the relevant State laws.

By the majority's own admission, the situation has radically changed since 1960, and it now presents a major defect in the Nation's passenger system. While some trains continue to provide reasonable passenger service, the operations of other trains have deteriorated to the point where the situation has plainly become intolerable.

I concur in the majority's explanation of what should constitute reasonable, adequate and efficient passenger service for legislative purposes. These same standards could have been implemented without recourse to the Congress since the power to enforce section 1(4) is present.

In setting standards for the quality of rail passenger service, the Commission's course need not travel unmarked paths, for it has previously dealt with the reasonableness of such service in proceedings under other sections of the act. For example, under section 13a(1), the quality of passenger service offered is a crucial determinant in judging whether public convenience and necessity justifies the proposed discontinuance. Where the evidence shows that a carrier has deliberately downgraded its passenger service or otherwise discouraged the use of its trains without regard to the public need for that service, the burdens of continued operation are considered to be voluntarily inflicted by the carrier to justify the discontinuance, and the train may be ordered continued for a 1-year period. See Southern Pac. Co. Discontinuance of Trains, supra.

The obligations of a passenger carrying railroad were further defined in New York, N.H. & H.R. Co.,-Discontinuance of Trains, 327 I.C.C. 151, 221 (1966), where the Commission emphasized the carrier's obligation to the public, stating that the "railroad must accord to promotion of its economically viable passenger service the same reasonable effort it would accord to promotion of its basic freight services***." In making such determinations, we must necessarily judge whether the quality of service has been reasonably maintained.

A similar judgment is required under section 15, which provides that whenever after full hearing, we are of the opinion that any carrier "practice whatsoever *** is or will be unjust or vnreasonable ***, the Commission is hereby authorized and empowered to determine what *** practice is or will be just, fair and reasonable ***"' [emphasis added] While this section applies primarily to regulations or practices affecting rates, it nevertheless requires us to determine the reasonableness of a particular practice, just as here we are determining the reasonableness of a particular service.

The Commission is, therefore, qualified to apply the standards contained in section 1(4) and the national transportation policy to rail passenger service, although it must be emphasized that these standards may vary from the particular requirements of sections 13a(1) or 1(15). Implicit in a common carrier's duty to furnish transportation upon reasonable request therefor is the duty to provide a reasonably adequate level of service. The railroads concede that the carrier obligation under section 1(4) is equivalent to that imposed by the common law, and that the common law required a common carrier to provide safe and efficient service to the traveling public. This duty is reiterated by the national transportation policy's requirement that the service offered by a regulated carrier be "safe, adequate, economical, and efficient"-a requirement broad enough to embrace such matters as the availability of seats, cleanliness, sanitation, proper heating, air conditioning, and eating facilities.

However, the Commission could not generalize as the examiner recommended, and prescribe uniform standards of service applicable to all passenger-carrying railroads. Such promulgation of industrywide standards would, on the record of this proceeding, violate fundamental concepts of fairness and due process. Southern Pacific was the only respondent to this proceeding. No notice was given to Southern Pacific or to any other railroad that rules

of conduct applicable to all railroads would evolve from this proceeding. Under the Administrative Procedure Act, the promulgation of uniform standards applicable to all railroads would require a rulemaking proceeding, with notice to all affected carriers and an opportunity for such carriers to participate therein through the submission of evidence, views or arguments. 5 U.S.C.A. 553. See Chicago, Burlington and Quincy Railroad Co. v. United States, 242 F. Supp. 414 (N.D. Ill. 1965). Since the instant proceeding was restricted by our order of June 21, 1966, to an investigation of the passenger service of Southern Pacific, it would be inappropriate to promulgate industrywide standards on the basis of the record developed herein. Any decision must, therefore, be confined to the passenger service of Southern Pacific.

Moreover, in my opinion, the rulemaking approach would not be practicable. Such factors as distance, geographic location, methods of operation, time of operation, passenger needs and costs militate against the promulgation of specific minimum standards on an industrywide basis. In fact, many of the carriers have presented sound reasons in their verified statements to show that specific minimum standards on an industrywide or systemwide basis would be unworkable, unreasonable, costly and in many instances unduly burdensome. For example, the Northwestern argued that the specific standards recommended by the examiner might require it to put sleeping cars on its Chicago area commuter trains operating after 10 p.m. The Milwaukee contended that it might be required to operate sleeping cars on a pair of trains that have operated without sleepers since the turn of the century. Other carriers, notably the Illinois Central and the CB&Q, stressed the costs that would be required in investing in sleeping cars and diners if industrywide standards were to be prescribed. On the present record, I agree with the railroads that specific standards that would be applicable to all the Nation's passenger carrying railroads would be unworkable, impractical, and, in many instances, unreasonable.

Having found jurisdiction and defined general standards of adequate service, I would then proceed to apply those standards to the specific trains in question-the Southern Pacific's Sunset. The records in this case and in the proposed discontinuance of that train, Southern Pac. Co. Discontinuance, 333 I.C.C. 783, 784; are replete with examples of a service designed without passengers in mind. The service has continually ebbed to lower and lower