All of the members of the Court agree that the petition for rehearing should be denied.
In their concurring opinions on rehearing, Judges Bootle and Ainsworth take the position that since there is “ample statutory authorization for the maintenance of this suit” they do not reach the question whether the United States would have standing to sue under the Commerce Clause.
The district court’s decision in this case was based in part on the fact that the nondiscrimination clauses in the Interstate Commerce Act, the bus regulations of 1961, and the rail order of 1955 in terms refer only to carriers and not to state or city officials. The district court also interpreted the Elkins Act, 49 U.S.C. §§ 42, 43 as inapplicable to non-carrier defendants. As is evident from the opinion on the original hearing, this Court disagreed with the district court and held that the United States and the Interstate Commerce Commission had statutory standing to sue. It seemed to the Court, however, that the answer was not so clear as to require the Court to ignore consideration of standing to sue under the Commerce Clause. Judge Wisdom holds to that view. That view underlies the decisions in United States and ICC v. Lassiter, W.D.La.1962, 203 F.Supp. 20, aff’d 1962, 371 U.S. 10, 83 S.Ct. 21, 9 L.Ed.2d 47 and United States v. City of Montgomery, M.D.Ala.1962, 201 F.Supp. 590. Although the Court relied on the Elkins’ Act in Lassiter and on the Federal Aviation Act in the City of Montgomery case in finding that the United States had standing to sue to prevent discrimination, the Court felt impelled to decide also that the United States had standing to maintain the actions under the Commerce Clause.
It is ordered that the petition for rehearing filed in the above styled and numbered cause be, and the same is hereby
Denied.