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. ...