United States District Court, Southern District of Illinois, N.D
February 28, 1963
CHICAGO AND NORTH WESTERN RAILWAY COMPANY, PLAINTIFF,
TOLEDO, PEORIA & WESTERN RAILROAD COMPANY, J. RUSSELL COULTER, R.M. ESSLINGER, D.L. HUGHES AND H.E. KIPLING, DEFENDANTS. BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN, LOCAL LODGE 926, AND ROBERT J. STRAND, GENERAL CHAIRMAN, LOCAL LODGE 926, AND GARLAND F. BROWN, JOHN W. TOWLES AND LOCAL LODGE 1084 OF THE BROTHERHOOD OF LOCOMOTIVE TRAINMEN, INTERVENORS.
The opinion of the court was delivered by: Mercer, Chief Judge.
This suit arose upon a complaint by the Chicago and North
Western Railway Company, hereinafter plaintiff, against the
Toledo, Peoria & Western Railroad Company, hereinafter T.P. & W.,
and certain officers of T.P. & W., for an injunction restraining
T.P. & W., its officers, agents and employees from interfering
with, delaying or preventing plaintiff from operating its trains,
with its own crews, over a section of railroad track intervening
between Sommer, Illinois, and the industrial plant of
Archer-Daniels-Midland Company, hereinafter ADM.
Local Lodge No. 926 of the Brotherhood of Locomotive Firemen &
Enginemen, Local Lodge No. 1084 of the Brotherhood of Railroad
Trainmen and certain officers of the two local unions,
hereinafter referred to as intervenors, were permitted to
intervene as parties to the suit.
Plaintiff is a corporation organized under the laws of the
State of Wisconsin, having its principal place of business at
Chicago, Illinois, and is engaged as a common carrier in the
transportation of persons and goods by railroad in interstate
commerce. Defendant is a Delaware corporation, having its
principal place of business at East Peoria, Illinois, and is
engaged as a common carrier in the interstate transportation of
goods in commerce. The intervening Local Unions are the
collective bargaining agents for T.P. & W.'s operating employees.
Plaintiff alleges in its complaint that it obtained the right
under a 1957 joint-trackage agreement with T.P. & W., to operate
its engines and cars over tracks which permit it to serve ADM
own crews and power.*fn1 The movement required for such direct
service to ADM would run from plaintiff's main line over a
connecting track at Sommer, Illinois, to T.P. & W.'s main line
track, then over T.P. & W.'s main line track, to a place called
Kolbe Station and an industry track which leads from that point
on T.P. & W.'s main line to ADM.
On April 10, 1962, after advising T.P. & W. of its intention to
deliver a car directly to ADM and requesting T.P. & W.'s
cooperation and aid in clearing the movement, plaintiff sought to
deliver with its own power a loaded freight car consigned to ADM
on a waybill directing delivery by plaintiff. Plaintiff's train
was stopped by agents of T.P. & W. who refused to permit the
train to move over T.P. & W.'s main line to the industrial track
to ADM. On April 11, 1962, plaintiff sought to deliver four cars
consigned to ADM over the joint trackage. Agents of T.P. & W.
arrested a flagman of plaintiff's and stopped plaintiff's train
from proceeding to the ADM plant by stationing themselves, a
fusee and flag in hand, in the path of plaintiff's train and
between the rails of T.P. & W.'s main line. On April 12, 13 and
14, 1962, attempts were again made by plaintiff to deliver cars
to ADM. Each of those attempted deliveries was blocked by T.P. &
W.'s agents by divers means, including, on one occasion, the
device of placing a T.P. & W. engine and cars on T.P. & W.'s
tracks in the path of plaintiff's train.
This complaint followed. Plaintiff alleges that the defendants
have prevented and will continue to prevent the movement of goods
consigned over the plaintiff's line in interstate commerce to
plaintiff's irreparable injury and damage, unless defendants are
enjoined from further interference with plaintiff's claimed
rights under the 1957 contract.
Plaintiff's theory upon the merits of the case is that it has
an absolute right under the provisions of the 1957 joint-trackage
agreement to run its trains over a four-mile segment of T.P. &
W.'s line to serve, directly, industries located in the
industrial area to which the 1957 agreement refers.
T.P. & W. takes the position that the specific character of
reciprocal use of the joint-trackage segments, as delineated in
the 1957 agreement, is not fixed by that agreement, but is
subject to further negotiation and agreement between the parties.
On July 13, 1962, I denied a motion by Intervenors to dismiss
the complaint upon jurisdictional grounds. The ground
particularly urged by the union was its contention that this suit
involves or grows out of a labor dispute, and that jurisdiction
to enter an injunction is specifically
proscribed by the Norris-LaGuardia Act. 29 U.S.C.A. § 101.
Having reconsidered the jurisdictional issues subsequent to a
trial of the case, I adhere to my prior decision insofar as
Norris-LaGuardia is concerned. The most that can be said for
intervenors' position is that the intervening local unions
represent T.P. & W.'s operating employees and they have indicated
to T.P. & W. that a strike is probable if plaintiff is permitted
to operate over T.P. & W. lines with its own crews. At most, a
conditional threat of a labor dispute lurks, collaterally, in the
background of this litigation. I think it clear that no labor
dispute within the intendment of Norris-LaGuardia is
The critical jurisdictional question is posed by the contention
of defendants and intervenors that there is no issue arising
under any federal act regulating commerce, and, thus, no
statutory basis for federal jurisdiction over this suit.*fn3 In
my memorandum filed July 13, 1962, I said, "The existence of
federal jurisdiction in cases of this nature is sustained" by
Toledo, Peoria & Western Railway Company v. Brotherhood of
Railroad Trainmen, 7 Cir., 132 F.2d 265, and other cases. After
mature reflection and reappraisal of the pertinent authorities, I
am convinced that my statement was in error and that federal
jurisdiction does not exist.
Section 1337 of the Judicial Code, 28 U.S.C.A. § 1337, provides
that "[t]he district courts shall have original jurisdiction of
any civil action or proceeding arising under any Act of Congress
regulating commerce * * *."
The courts have not always agreed upon the question of what is
a suit arising under a federal statute, but with the passage of
time certain guidelines have been established. Paramount among
these is the postulate that a right or immunity created by a
federal statute must be involved before a federal question is
presented. The federal nature of the right is decisive, and
jurisdiction cannot be determined by the source of the authority
to establish the right. Gully v. First National Bank,
299 U.S. 109, 116, 57 S.Ct. 96, 81 L.Ed. 70. The federal right must be a
paramount, not collateral, issue in the suit. "The right or
immunity must be such that it will be supported if the
Constitution or laws of the United States are given one
construction or effect, and defeated if they receive another."
Ibid, 299 U.S. at 112, 117, 57 S.Ct. at 97, 99.
In Toledo, P. & W.R. Co. v. Brotherhood of Railroad Trainmen,
etc., 7 Cir., 132 F.2d 265, reversed on the merits 321 U.S. 50,
64 S.Ct. 413, 88 L.Ed. 534, the court said in pertinent part:
"The mere fact that Congress has paramount power to
legislate in certain fields is not alone sufficient
to confer jurisdiction. Thus the fact that a patent
is involved will not result in federal jurisdiction
if the real issue concerns merely title to the
patent, for that is not a matter arising under a
federal law. * * *
Similarly, if one of the parties is engaged in
interstate commerce and subject to regulation under a
federal statute, the court has no jurisdiction of
matters concerned solely with a contract between the
adverse parties. * * * To give rise to federal
jurisdiction, the basis of the suit must be concerned
with the validity, construction, enforcement or
effect of the statute; anything less is insufficient.
"We well know that the mere fact that Interstate
Commerce is involved and may be affected, is not
sufficient to justify jurisdiction of a private suit
seeking protection of such commerce. * * * But if the
suit directly concerns an Act of Congress a carrier
may seek relief in a federal court. * * *
"* * * Our question then is whether plaintiff has
rights and obligations under Federal Acts, the
enjoyment and discharge of which defendants are
preventing. If so a statute of the United States is
directly involved and the District Court had
jurisdiction." 132 F.2d at 268.
In State Automobile Insurance Ass'n v. Parry, 8 Cir.,
123 F.2d 243, in which interpretation of an endorsement in a policy of
insurance was the issue, the court held that federal jurisdiction
did not exist, notwithstanding the fact that the particular
endorsement was inserted to conform the policy to the
requirements of the Motor Carrier Act and an order of the
Interstate Commerce Commission.
In Association of Westinghouse Salaried Employees v.
Westinghouse Electric Corp., 348 U.S. 437, 450, 75 S.Ct. 489,
495, 99 L.Ed. 510, the court said, in pertinent part:
"Almost without exception, decisions under the
general statutory grants of jurisdiction * * * have
tested jurisdiction in terms of the presence, as an
integral part of plaintiff's cause of action, of an
issue calling for interpretation or application of
federal law. Although it has sometimes been suggested
that the `cause of action' must derive from federal
law, it has been found sufficient that some aspect of
federal law is essential to plaintiff's success. The
litigation-provoking problem has been the degree to
which federal law must be in the forefront of the
case and not be remote, collateral or peripheral."
The issue, here, is whether plaintiff's claim relates to rights
and obligations arising under the Interstate Commerce Act, "the
enjoyment and discharge of which defendants are preventing."
I find no such rights and obligations involved. The issue upon
the merits, reduced to essentials is what rights, if any,
plaintiff obtained under the 1957 agreement with T.P. & W. to
operate its trains over the T.P. & W. segment of joint-trackage.
Plaintiff's rights in the premises, whatever they are or may be,
arise out of that agreement, not out of the provisions of the
Interstate Commerce Act. 49 U.S.C.A. § 1 et seq.
Of course, plaintiff does have the obligation to furnish
transportation upon request over reasonably established through
routes in interstate commerce at reasonable rates, Section 1(4),
under reasonable regulations and practices, Section 1(6), and to
furnish safe and adequate car service under reasonable rules and
practices. Section 1(11). There is, however, no allegation of
defendants' interference with plaintiff's performance of those
obligations. The Act contemplates that the obligation imposed by
those subsections can be fulfilled by the utilization of
interchange connections with other carriers. There is no
allegation that the cars consigned to and from ADM will reach
their terminal destination only if plaintiff's power and
plaintiff's crews serve ADM directly. On the contrary, it is
uncontradicted that, prior to April 10, 1962, all cars moving on
plaintiff's line to ADM were interchanged at Sommer for terminal
delivery by T.P. & W. It is likewise undisputed that service to
ADM will continue unfettered, irrespective
of the interpretation of this contract, and irrespective of
whether terminal delivery is effected by plaintiff or by T.P. &
The fact of approval of the agreement by the Interstate
Commerce Commission has no significant bearing upon the
jurisdictional question. No mandatory order of the I.C.C. is
involved. Although the Sommer connection and the joint-trackage
arrangement could not legally be undertaken without I.C.C.
approval, 49 U.S.C.A. § 5(2)(a) (ii), its approval was
permissive only. The project might have been abandoned by the
parties and the agreement never made without penalty. The fact
that the Sommer connection was constructed and the agreement made
may well create additional rights in the shipping public, but it
does not have the effect of incorporating the contract into the
Commerce Act insofar as the respective rights of plaintiff and
T.P. & W. are concerned.*fn4
What has been said above largely disposes of the contention
that defendants' acts constitute a forced abandonment of service
by plaintiff in violation of Section 1(18) and 1(19) of the Act.
There is no allegation that plaintiff has ever rendered the
service of terminal delivery to ADM or has ever operated its
trains over the segment of track involved. In short, an analysis
of the situation and its bearing upon this contention leads,
ultimately, to the proposition that plaintiff claims the denial
to it of a contractual right which, in fact, it has not to date
enjoyed.*fn5 Terminal delivery to, and pickup from, ADM by T.P.
& W., which T.P. & W. asserts to be the proper interpretation of
the contract, would not constitute a violation of the Act. In
that posture of the situation, it is specious to suggest that the
defendants' actions have precipitated a forced abandonment of any
portion of railroad line or service.
The situation presented by this complaint is unlike the factual
background existing in Toledo, P. & W.R. Co. v. Brotherhood of
Railroad Trainmen, etc., 7 Cir., 132 F.2d 265, reversed on the
merits, 321 U.S. 50, 64 S.Ct. 413, 88 L. Ed. 534, and Brotherhood
of Railroad Trainmen, etc. v. New York C.R. Co., 6 Cir.,
246 F.2d 114, upon which plaintiff principally relies.
In the T.P. & W. case, a rupture in collective bargaining
between T.P. & W. and the union had led to violence against the
employees and equipment of T.P. & W. to such extent that the
railroad had been obliged to discontinue a substantial part of
its operations. Against that background of violence, the Court of
Appeals for the Seventh Circuit held that the defendants were
preventing T.P. & W. from performing the duties imposed upon it
by the Interstate Commerce Act. The court held that federal
jurisdiction was present.*fn6
In the New York Central case, the union called a strike to
protest the closing by Central of one of its railroad yards at
Toledo, Ohio, pursuant to authority granted to Central by the
Interstate Commerce Commission. The court found that that strike
had the effect of halting a substantial part of Central's
operations, precipitating the lay-off of substantial numbers of
employees on Central's western division, interfering with the
of several other railroads which use Central's passenger
terminals and precluding Central from carrying out its statutory
duties as a carrier.
Here, by contrast, there is no interference with plaintiff's
statutory obligations to the public. If, indeed, defendants' acts
are illegal, the illegality arises from a breach of a contract
not a statutory violation.
Judgment will be entered for the defendants dismissing the
complaint for want of federal jurisdiction.
In discussing the jurisdictional question, no expression of any
opinion as to the proper interpretation of the 1957 contract is
intended by the court. Nothing said in this memorandum should be