(concurring and dissenting):
I concur in the majority opinion to the extent that it remands the case to the Interstate Commerce Commission with directions, in the light of the Penn Central reorganization, to consider the form of the consideration which the New Haven estate is to receive. However, I dissent from the view that the Connecticut reorganization court lacks jurisdiction to review the fairness and equity of the consideration to be paid by the Penn Central to the New Haven estate. In my view the unusual factual and legal background of this dispute suggests that the Connecticut and Pennsylvania reorganization courts have concurrent jurisdiction over that subject matter.
I agree with the majority that once the Penn Central Railroad was placed in reorganization pursuant to § 77 of the Bankruptcy Act the Pennsylvania court was vested by § 77(a) with exclusive jurisdiction over its properties, including those that had been transferred to it by the New Haven pursuant to the Connecticut court’s authorization. Thereafter the Connecticut court was barred from taking any action which might have the effect of interfering with the Pennsylvania court’s operation of the railroad in reorganization under its jurisdiction. Although the creation of a lien and a con-*692struetive trust upon assets of the Penn Central might not have the immediate effect of disrupting that court’s operation of the railroad, such action could pose the threat of doing so. For example, if the Pennsylvania court wished to raise money for operation of the railroad by further mortgaging its properties, it might be frustrated unless it had the power to disregard or set aside the lien and trust declared by the Connecticut court.
Although the Connecticut court may not take any action which would have the effect of interfering with the Pennsylvania court’s operation of the railroad, I do not agree that the Commission and the Pennsylvania court have the power, unilaterally and without approval of the Connecticut court, to determine the form of the consideration that is to be paid to the New Haven estate and its creditors for the assets transferred to the Penn Central. The Connecticut court continues to function as a § 77 reorganization court and has been vested by the Supreme Court with the powers of a reviewing court under § 5 of the Interstate Commerce Act. 399 U.S. at 430, 90 S.Ct. 2054, 26 L.Ed.2d 691. As such it has a vital interest in the final determination of the terms and conditions of the New Haven’s inclusion in the Penn Central. Indeed the Supreme Court, after careful review, accepted the Connecticut court’s formulation of those terms. It remanded only because the “impact of recent events,” which I construe to mean the Penn Central’s bankruptcy (expressly referred to by the Court at page 399 n. f, 90 S.Ct. 2054), had rendered unrealistic the provisions for the Penn Central’s underwriting, at $87.50 per share, of the stock to be transferred by it to the New Haven pursuant to the plan, thereby depriving the New Haven and its creditors of the purchase price to which they were constitutionally entitled.
The reorganization of the New Haven Railroad and its merger into the Penn Central will not have been completed until the fairness and equity of the terms and conditions of the transfer of its assets to the Penn Central, including the form of the consideration that is to be received, have finally been determined. The Connecticut court continues to have the power and the duty as a reviewing court under § 5 of the Interstate Commerce Act and as a reorganization court under § 77 of the Bankruptcy Act, to participate in that determination. If the New Haven estate had become in effect a mere subsidiary or ward of the Pennsylvania court for reorganization purposes, the Supreme Court, which knew that the Penn Central was in reorganization and which was aware of the provision of § 77(a) giving “exclusive jurisdiction” to a reorganization court over properties in its possession, see 399 U.S. at 420, 90 S.Ct. 2054, would have held that the form of the consideration to be paid by the Penn Central must thereafter be determined by the Pennsylvania court as part of the reorganization of the Penn Central, and it would have directed that upon remand the Connecticut court must transfer the case to the Commission and the Pennsylvania court. Instead it remanded the case to the Connecticut court, stating:
“Further proceedings before the Commission and the appropriate federal courts will be necessary to determine the form that Penn Central’s consideration to New Haven should properly take and the status of the New Haven estate as a shareholder or creditor of Penn Central.” 399 U.S. at 489, 90 S.Ct. at 2108.
The Supreme Court’s remand of the case to the Connecticut court without further qualifications, coupled with the use of the plural term “courts,” confirms the view that the Connecticut court was not to be stripped of its powers as a reviewing court.
I further disagree with the majority’s view that Warren v. Palmer, 310 U.S. 132, 60 S.Ct. 865, 84 L.Ed. 1118 (1940), “is determinative of this ease” or that it has the effect of precluding the Connecticut court from having a voice in the fairness and equity of the consideration to be received by the New Haven and its creditors from the Penn Central. Al*693though that decision did involve a question of competing jurisdiction between two § 77 reorganization courts, it turned on a provision of the Bankruptcy Act not applicable here, § 77(c) (6), which specifically requires a reorganization court that has rejected a leased line to operate it if the lessor is incapable of doing so, in which case continued operation is for the account of the lessor. The Supreme Court interpreted that section as giving “the court charged with operation the fullest ability to secure the necessities of operation,” 310 U.S. at 140, 60 S.Ct. at 868. In short the Supreme Court understandably decided that a reorganization court operating a leased line must have the power to impose a lien for deficits resulting from its being compelled to operate the line for the benefit of the lessor. The decision hardly precludes the existence of concurrent jurisdiction in an appropriate case.
Thus it appears to me that this case, which is sui generis, involves dual or concurrent jurisdiction with respect to the fairness and equity of the consideration to be paid by the Penn Central in reorganization to the New Haven. While the Pennsylvania court has exclusive jurisdiction over the operation of the Penn Central, including the New Haven Division, the fairness of the consideration to be paid to the New Haven, including the form of that consideration and the status of the New Haven as a creditor in the Penn Central reorganization, as initially formulated by the Commission as the common denominator, is subject to approval by both courts.
That there is nothing novel or unusual about the existence of concurrent jurisdiction in railroad reorganization proceedings is demonstrated by the Supreme Court’s recognition at an earlier stage in these proceedings that the Connecticut court, as a § 77 reorganization court, and the three-judge district court sitting in the Southern District of New York as a reviewing court under § 5 of the Interstate Commerce Act, each had jurisdiction to review the fairness and reasonableness of the terms for inclusion of the New Haven in the Penn Central. See 399 U.S. at 419-430, 90 S.Ct. 2054. There the Supreme Court concluded, for reasons set forth in detail, that the three-judge court should have deferred to the Connecticut court. Although there is always the danger that exercise of overlapping or concurrent jurisdiction by two courts may lead to conflict or wasteful duplication of effort, this seems to me to be an instance where “two heads are better than one.” An important reason for holding that the Connecticut court should not defer here, which the Supreme Court implicitly recognized in the New Haven Inclusion Cases, is that over the years of the New Haven’s reorganization the Connecticut court has become intimately familiar with the complicated factual and legal issues arising out of the New Haven’s reorganization, thereby gaining a manifest expertise in the valuation of its assets. While I have no doubt about the competence of the highly respected Pennsylvania court to review the matter, it seems to me that in a matter of such importance both courts, working cooperatively and with the aid of the Commission, can function effectively to produce a result that will assure all parties a greater degree of fairness and equity than might otherwise be realized.
Thus none of the conditions mandating that one court defer to the other seems to exist here. The issue cannot be resolved in favor of the Pennsylvania court on the ground that it first acquired jurisdiction through possession of the New Haven properties (the basis used by the Supreme Court in the New Haven Inclusion Cases). The Connecticut court was the first to acquire possession as a reorganization court and it continued thereafter in possession for years, participating in the formulation of the inclusion terms that were approved by the Supreme Court. Nor can it be said that the Connecticut court, by transferring the New Haven properties to the Penn Central, implicitly agreed to defer to the Pennsylvania court. On the contrary, the Connecticut court, in ordering the transfer of the New Haven property to *694the Penn Central, expressly reserved jurisdiction to pass upon the fairness and adequacy of the consideration and the other terms of inclusion of the New Haven in the Penn Central. Unlike the circumstances surrounding the concurrent jurisdiction of the Connecticut court and the three-judge district court in the Southern District of New York, nothing in the background of the present jurisdictional overlap suggests that either forum here is better equipped for the task than the other. Nor is there any reason to believe that both courts would not cooperate in their review of the terms formulated by the Commission, eventually reaching an agreement. If they should disagree, however, I have no doubt that upon ultimate review of the Penn Central reorganization plan, including the form of consideration to be paid to the New Haven estate, the Supreme Court would appreciate having the recorded views of the Connecticut court, which has become a respected veteran in this protracted and complicated matter.