# Toledo, P. & W. R. R. v. Brotherhood of Railroad Trainmen

> Court of Appeals for the Seventh Circuit · December 16, 1942 · 132 F.2d 265

URL: https://www.frixlaw.com/law-library/cases/9637711

## Case

- **Full name:** TOLEDO, P. & W. R. R. v. BROTHERHOOD OF RAILROAD TRAINMEN, ENTERPRISE LODGE NO. 27, Et Al.
- **Court:** Court of Appeals for the Seventh Circuit
- **Decided:** December 16, 1942
- **Citations:** 132 F.2d 265; 1942 U.S. App. LEXIS 4635
- **Precedential status:** Published
- **Opinion:** Dissent by Minton
- **Judges:** Sparks, Minton, Lindley
- **Cited by:** 29 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed on other grounds by Brotherhood of Railroad Trainmen v. Toledo, Peoria & Western Railroad, 321 U.S. 50 (1944).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9637711

## Opinion text

MINTON, Circuit Judge
(dissenting).
I am unable to agree with the majority opinion. In the first place, I do not think the District Court had any jurisdiction. This is not a case where diversity of citizenship forms the basis of jurisdiction. Here jurisdiction depends upon whether or not the controversy arises under the Constitution or laws of the United States. It is not a question of whether Congress could have taken cognizance of this kind of controversy; it is a question of whether or not it has taken such cognizance.
To give jurisdiction, the controversy must arise under the Constitution or Jaws of the United States. What is the controversy here? It is the right of the plaintiff to conduct its business of interstate carrier free from interference and violence at the hands of its striking employees. That right does not stem from the Constitution or any law of Congress. It does not even arise out of the interstate character of the business. The same identical right to be free from interference and violence in the conduct of its business runs to those engaged in intrastate business. The right violated is a common law right given by the State of Illinois and the other States through which the plaintiff’s road runs. The right could have been enforced in any one or all of the States through which the plaintiff’s road ran. The fact that the plaintiff was engaged in interstate commerce and some Federal statutes imposed some duties pertaining thereto, or that the plaintiff was carrying defense materials, is of no consequence on the question of jurisdiction. Such mátters are only incidental. If the plaintiff can invoke the jurisdiction of the United States courts because its striking employees are interfering with its business as an interstate carrier, then every one who is engaged in interstate commerce has the right to claim the jurisdiction of the Federal courts to protect his common law rights. It takes no great imagination to *273 envisage what that would mean to the expansion of Federal jurisdiction in this day and age, when the concept of what constitutes interstate commerce under the Constitution has been so greatly extended.
As I understand the basis of the jurisdiction here claimed, the controversy which it is sought to resolve must stem from the Constitution or some act of Congress. Whenever the Constitution or an act of Congress gives rise to a right of action, a suit brought to enforce that right may be said to arise under the Constitution or laws of the United States so as to satisfy the jurisdictional requirement, and not otherwise.
This has been the accepted interpretation since .the days of Chief Justice Marshall. In Cohens v. Virginia, 6 Wheat. 264, 379 , 5 L.Ed. 257, 285 , he said: “A case in law or equity consists of the right of the one party, as well as of the other, and may truly be said to arise under the constitution or a law of the United States, whenever its correct decision depends on the construction of either.”
A case whose correct decision depends upon the' construction of the Constitution or laws of the United States is what gives jurisdiction. The case at bar depends ,upon no construction of any part of the Constitution or laws of the United States. It seeks only the enforcement of a common law right.
Again in Osborn v. Bank of United States, 9 Wheat. 738, 821, 822 , 6 L.Ed. 204, 224 , Chief Justice Marshall said: “A cause may depend on several questions of fact and law. Some of these may depend on the construction of a law of the United States; others on principles unconnected with that law. If it be a sufficient foundation for jurisdiction, that the title or right set up by the party, may be defeated by one construction of the constitution or law of the Unitéd States, and sustained by the opposite construction, provided the facts necessary to" support the action be made out, then all the other questions must be decided as incidental to this, which gives that jurisdiction.”
In Niles-Bement-Pond Co. v. Iron Moulders’ Union, 254 U.S. 77, 82 , 41 S.Ct. 39, 41 , 65 L.Ed. 145 , a suit to enjoin striking employees from interfering with a corporation’s business so as to cause delay in the fulfillment of its contracts with the Government to furnish war supplies and so as to impede its interstate business, the Supreme Court, speaking by Mr. Justice Clarke, said:
“The allegations of the bill that the contracts which the petitioner had with the United States government were of a character which must be given priority under section 120 of the National Defense Act, approved June 3, 1916 (39 Stat. pp. 166, 213 [ 50 U.S.C.A. § 80 ]), and that they involved interstate commerce, are much too casual and meager to give serious color to the claim now made that the cause of action asserted is one arising under the laws of the United States.”
In Gully v. First National Bank, 299 U.S. 109, 112, 114 , 57 S.Ct. 96, 97 , 81 L.Ed. 70, 72 , an action was brought in the State court by the State Collector of Taxes against the defendant bank that had assumed the debts and obligations of another bank. Among the debts assumed were taxes levied upon the shares of stock of the bank. Because the right of the State to assess the stock of a national bank was granted by an act of Congress, a petition of removal was granted to the District Court on the ground that it was a suit arising “under the Constitution or laws of the United States.” The Supreme Court held there was no Federal jurisdiction, and remanded the case to the State court. Mr. Justice Cardozo said:
“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. * * *
“ ‘A suit to enforce a right which takes its origin in the laws of the United States is not necessarily, or for that reason alone, one arising under those laws, for a suit does not so arise unless it really and substantially involves a dispute or controversy respecting the validity, construction, or effect of such a law, upon the determination of which the result depends.’ Shulthis v. McDougal, 225 U.S. 561, 569 , 32 S.Ct. 704, 706 , 56 L.Ed. 1205 . * * * ‘the federal nature of the right to be established is decisive — not the source of the authority to establish it.’ ” [People of Puerto Rico v. Russell & Co., 288 U.S. 476, 483 , 53 S.Ct. 447 , 77 L.Ed. 903 .]
What law of the United States if given one construction will sustain the plaintiff’s right, and if given another will deny it? Obviously, the construction of no law of the United States is involved in the right the plaintiff asserts. It is a common law *274 right, not a Federal right, that is asserted. "The federal nature of the right to be established is decisive,” the Supreme Court says. There can be no Federal nature in a common law right.
In McGoon v. Northern Pacific Ry. Co., D.C., 204 F. 998, 1001, 1005 , the court lays down the rule thus: “Whenever federal law grants a- right of property or of action, and a suit is brought to enforce that right, such a suit arises under the law creating the right, within the meaning of statutes defining the jurisdiction of federal courts.”
After reviewing numerous cases, the same court says: “The line of distinction which it seems to me will go far to harmonize the cases is this: When the complaint shows a case which arises out of a contract or a common-law right of property, and only indirectly and remotely depends on federal law, such a case not only does not, but cannot properly, turn upon a construction of such law.”
From the rules enunciated so clearly in these cases, it seems apparent to me that no case under the Constitution or laws of the United States is presented, and the court is without jurisdiction and the case should be dismissed.
If, however, I am mistaken on the question of jurisdiction, there is a ground upon which the judgment of the District Court should be reversed and the plaintiff denied the relief sought.
After mediation had failed, the mediator proposed arbitration. The plaintiff refused to arbitrate. The majority opinion neglected to state that the defendants offered to arbitrate. Voluntary arbitration is provided for by statute. 45 U.S.C.A. § 157 et seq. When negotiations between the parties and through the National Railroad Adjustment Board and the National Mediation Board have failed, the statute provides for voluntary arbitration. It is the purpose and the spirit of the Railway Labor Act to use all means of negotiation, mediation'and arbitration to the end that controversies between the carriers and their employees may be resolved without conflict or strikes. The plaintiff was willing to pursue all the voluntary procedures set up by the Railway Labor Act which carried no sanction, but it refused to take the step into voluntary arbitration, because the award of the arbitrators was enforceable in a court of law. So the plaintiff refused to arbitrate.
The plaintiff exercised its right to refuse to arbitrate, and it did it without any excuse or justification. The District Court made no finding that it would have been useless or unreasonable for the parties to attempt to arbitrate their differences. The plaintiff stood upon its right to refuse to arbitrate, and this refusal, without justification or reason, brought into play another provision of law known as Section 8 of the Norris-LaGuardia Act, 29 U.S.C.A. § 108 , which provides:
Ҥ 108. Noncompliance with obligations involved in labor disputes or failure to settle by negotiation or arbitration as preventing injunctive relief.
. “No restraining order or injunctive relief shall be granted to any complainant who has failed to comply with any obligation imposed by law which is involved in the labor dispute in question, or who has failed to make every reasonable effort to settle such dispute either by negotiation or with the aid of any available governmental machinery of mediation or voluntary arbitration. Mar. 23, 1932, c. 90, § 8, 47 Stat. 72 .”
As we said before, the plaintiff did not have to arbitrate. One does not have to register for a ration card, but if one does not, one gets no sugar. Plaintiff could spurn, as it did without rhyme or reason, the offer to arbitrate, but if it did, it lost the right to come into a court of the United States to obtain relief by injunction.
I am not prepared to agree that this court has held that where violence and threats of violence are committed, Section 108 has no application. Cater Const. Co. v. Nischwitz, 7 Cir., 111 F.2d 971, 977 , and the cases it relies upon go only to the extent of holding that Section 108 does not apply if it is found or is apparent from the proceedings that negotiation would be useless. That takes the place of a reasonable effort to settle by negotiation, mediation and arbitration. The law does not require a futile thing, and if there is a finding to the effect that efforts to negotiate, mediate or arbitrate would be futile, that would be one thing. No such finding is present in the case at bar.
Neither am I prepared to agree that a reasonable effort to do either one of three things, to wit, negotiate, mediate or arbitrate, will satisfy the provisions of Section 108. Mayo v. Dean, 5 Cir., 82 F.2d 554 , relied upon by the majority, holds that Section 108 is not applicable to the *275 case before them, but if it were applicable, they would hold its requirements had been met by mediation. Such a limited construction does not meet the situation Congress intended to remedy. The whole purpose of the Railway Labor Act is to induce settlement by voluntary negotiation, mediation and arbitration of all questions in dispute between employer and employee. It is the purpose of the Norris-LaGuardia Act to deny the aid of a Federal court of equity to one who has not exhausted his remedies for voluntary adjustment. Why should the courts of equity be open to a party who spurns the machinery for the voluntary adjustment of the dispute? There never would have been a strike in the case at bar if the plaintiff had accepted the offer of the employees to arbitrate. Once both parties had entered into arbitration, they were bound by the ultimate award of the arbitrators. 45 U.S.C.A. § 159 .
One cannot in the absence of statutory authority claim the equitable jurisdiction of a Federal court until all administrative remedies have been exhausted. Myers v. Bethlehem Corp., 303 U.S. 41 , 58 S.Ct. 459 , 82 L.Ed. 638 ; Natural Gas Co. v. Slattery, 302 U.S. 300 , 58 S.Ct. 199 , 82 L.Ed. 276 .
Since arbitration would have averted a strike, this means should have been exhausted before resort to a court of equity was claimed. The plaintiff’s property was in no way molested or in danger until after the strike was called. The strike was called after the plaintiff refused to arbitrate. The plaintiff was in no position to demand the aid of a court of equity.
In this view of the case, the judgment should be reversed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9637711. Public record. Not legal advice.