Hugo Black

“ The Act, as we said in Atchison, gives the railroads, not the city, the 'discretion to determine who may transfer interstate passengers and baggage between railroad terminals.' Id., at 84-85, 78 S.Ct., at 1068. That power, that discretion, is precisely what the comprehensive licensing scheme of the amended ordinance purports to reserve to the city. It matters not that the city no longer seeks to exercise that power by requiring a showing of public convenience and necessity. ”

“ That was enough in Atchison to enable Transfer to attack the public-convenience-and-necessity requirement, even though the city there disclaimed any power to deny a license because of economic considerations. It is enough here. It is difficult to imagine a controversy more actual, alive, and ripe than this one. It has lasted for more than a decade. Though Transfer obtained its 1960 licenses after it filed this lawsuit to challenge the ordinance, it has continued to operate only by paying the license fees into court. ”

“ In 1959, after our decision in Atchison, the city repealed the invalid section, added some new provisions, and amended or left unchanged others which clearly applied to Transfer but were not specifically dealt with in our Atchison opinion. The amended ordinance, still making it unlawful for Transfer to operate without obtaining licenses from the city, [1] provides that an applicant for a license must, among other things: [2] pay a license fee, [3] hire only Chicago residents as its drivers, [4] maintain its principal place of business in Chicago, [5] and file a detailed written application. ”