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CHICAGO & N.W. RY. CO. v. TOLEDO

February 28, 1963

CHICAGO AND NORTH WESTERN RAILWAY COMPANY, PLAINTIFF,
v.
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 with its 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 involved.*fn2

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. ...


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