TOLEDO, P. & WRR v. BROTHERHOOD OF RR TRAINMEN, ETC.

• Decision Date: 15 January 1943
• Docket Number: No. 7951.,7951.
• Citation: 132 F.2d 265
• Parties: TOLEDO, P. & W. R. R. v. BROTHERHOOD OF RAILROAD TRAINMEN, ENTERPRISE LODGE NO. 27, et al.
• Court: U.S. Court of Appeals — Seventh Circuit

132 F.2d 265 (1942)

TOLEDO, P. & W. R. R. v. BROTHERHOOD OF RAILROAD TRAINMEN, ENTERPRISE LODGE NO. 27, et al.

No. 7951.

Circuit Court of Appeals, Seventh Circuit.

December 16, 1942.

Rehearing Denied January 15, 1943.

John E. Cassidy, of Peoria, Ill., for appellant.

John M. Elliott and Clarence W. Heyl, both of Peoria, Ill., for appellee.

Before SPARKS, and MINTON, Circuit Judges, and LINDLEY, District Judge.

LINDLEY, District Judge.

Defendants appeal from an order enjoining them from interfering with plaintiff "by violence or threats of violence" in the transportation of interstate freight and in handling goods essential to the prosecution of the war; assaulting or attempting to injure by violence any employee of plaintiff; interrupting or obstructing by force and violence movement of interstate shipments over plaintiff's lines, and committing various acts of violence condemned as destructive of or injurious to the persons of employees and officers of plaintiff and to plaintiff's property.

Plaintiff is an interstate carrier operating a railroad between Effner, Indiana and Keokuk, Iowa, through Illinois. Much of its freight is carried interstate, and a substantial portion constitutes goods to be used in the war effort.

In October, 1940, employees of plaintiff selected defendant unions to represent them under the provisions of the Railway Labor Act. 45 U.S.C.A. § 152(4). Following this plaintiff and the labor organizations submitted counterproposals for settlement of working conditions and rates of pay and negotiations were carried on, with the aid of the National Mediation Board, over a considerable period of time. After the parties failed to agree, plaintiff's request that the Brotherhoods suggest rates of pay under which they would accept plaintiff's proposed rules and working conditions was refused. On November 7, 1941, at a joint conference the mediator handed the parties arbitration proposals which each declined. The services of the Mediation Board were then terminated in accord with the act, November 21, 1941. Plaintiff then suggested that an impartial committee be appointed to examine the dispute and that an emergency board be appointed by the President. Nothing was done about either suggestion.

Defendants called a strike for December 9, 1941, but it was indefinitely postponed at the request of the Mediation Board. Conferences again occurred between the parties, terminating on December 21, 1941, when plaintiff gave notice that its proposed rates of pay, rules and working conditions were to be effective at midnight, December 29, 1941. On December 17 and 28 plaintiff received telegrams from the Mediation Board urging arbitration, but plaintiff refused. A strike was called at midnight, December 29, 1941.

Although the evidence is somewhat conflicting, it discloses continued violence on the part of the strikers. Plaintiff's workers were assaulted, moving trains stoned, trains derailed, windows and lights on the locomotives and cabooses broken, trains stopped, and many threats made against plaintiff's employees. On one occasion a bottle of inflammable liquid was thrown into the engine cab of a moving train, causing a fire and injuring the occupants.

On January 3, 1942, plaintiff filed complaint against defendants seeking to enjoin their acts, and the District Court issued a temporary restraining order. Within five days plaintiff began to present its evidence in support of its application for the temporary injunction. Due to the number of witnesses and voluminous testimony, the court extended the temporary restraining order on January 8, 1942 and again on January 16. After completion of the evidence, on January 19, 1942, the court issued a temporary injunction.

Defendants seek reversal on five grounds: (1) The court was without authority to extend the temporary restraining order beyond five days; (2) No federal question being involved, the District Court was without jurisdiction; (3) The evidence was insufficient to show that the public officers were unwilling or unable to furnish adequate protection for plaintiff's property; (4) Plaintiff failed to make every reasonable effort to settle the dispute as required under the Railway Labor Act and the Norris-La Guardia Act; (5) The evidence was insufficient to show that defendants had participated in or ratified any act of violence against or interference with plaintiff.

Section 7 of the Norris-La Guardia Act, 29 U.S.C.A. § 107, is in part: "A complainant shall also allege that, unless a temporary restraining order shall be issued without notice, a substantial and irreparable injury to complainant's property will be unavoidable, such a temporary restraining order may be issued upon testimony under oath, sufficient, if sustained, to justify the court in issuing a temporary injunction upon a hearing after notice. Such a temporary restraining order shall be effective for no longer than five days and shall become void at the expiration of said five days."

Defendant contends that, since, under this language a restraining order may be effective for five days only, the two extensions were beyond the court's jurisdiction.

The obvious purpose of the five-day limit was to prevent restraint without a hearing on the question whether substantial and irreparable injury has been done to the employer, for so long a time as to affect materially the effort of the striking employees. But to hold that the provision denies the power of the court to continue the restraining order more than five days regardless of whether the hearing on application for temporary injunction is completed, would completely destroy the purpose of the legislation. There is ordinarily no reason why such hearing can not be begun within five days, but not infrequently it can not be completed within that time. Here, it required approximately two weeks. Obviously if the order had been dissolved within five days, there would have been a period of over a week during which defendants' acts, if unrestrained, might well have caused further irreparable damage. The purpose was to prevent possibility of irreparable damage and to preserve the existing status until an early hearing would determine whether a temporary injunction should be issued.

Furthermore if the order for a temporary injunction granted by the District Court was proper, any error in extending the restraining order is not before this court, for that order merged in the injunction. City of Reno v. Sierra Pacific Power Co., 9 Cir., 44 F.2d 281, 283. The question involved here is the propriety of the injunction. If it was proper, the restraining order was proper. If it was improper, plaintiff's case fails and the propriety of the restraining order is of no importance.

Defendants question the jurisdiction of the District Court. Under the Judicial Code, the District Court has original jurisdiction in controversies exceeding $3,000 which arise under the Constitution or laws of the United States, 28 U.S.C.A. 41 (1), and of all suits and proceedings arising under any law regulating commerce, 28 U.S.C.A. 41 (8). Since no diversity of citizenship is involved, the question depends upon whether the proceedings arise under the Constitution and laws of the United States, or, more narrowly, constitute a suit under any law regulating commerce. Plaintiff is a common carrier of freight by railroad in interstate commerce. It insists that it is subject to and entitled to protection under the Interstate Commerce Act, 49 U.S.C.A. § 1 et seq.; the Railway Labor Act, 45 U.S. C.A. §§ 151-160 and the War Utilities Act, 50 U.S.C.A., §§ 101-105.

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. Laning v. National Ribbon & Carbon Co., 7 Cir., 125 F.2d 565. 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. Louisville & N. Ry. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126; State Auto Ins. Ass'n v. Parry, 8 Cir., 123 F.2d 243. 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. Shulthis v. McDougal, 225 U. S. 561, 32 S.Ct. 704, 56 L.Ed. 1205; Sharp v. Barnhart, 7 Cir., 117 F.2d 604; Stenger v. Stenger Broadcasting Corp., D.C.Pa., 28 F.Supp. 407; Partridge Lumber Co. v. Michigan Central Ry., 8 Cir., 26 F.2d 615; Peyton v. Railway Express, 5 Cir., 124 F.2d 430; Postal Telegraph v. Nolan, D.C.Mont., 240 F. 754.

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. Sharp v. Barnhart, 7 Cir., 117 F.2d 604; Postal Telegraph v. Nolan, D.C.Mont., 240 F. 754. But if the suit directly concerns an Act of Congress a carrier may seek relief in a federal court. Thus, In re Lennon, 166 U.S. 548, 17 S.Ct. 658, 41 L.Ed. 1110, arose out of a labor dispute in which defendant railroads and employees refused to interchange traffic with plaintiff so long as the latter employed nonunion labor. The Commerce Act provides that carriers must provide reasonable facilities for such interchange. The court held that the acts of defendants directly affected a right and duty of plaintiff arising from the Commerce Act and that the Circuit Court had jurisdiction, since it was the duty of all railroads to furnish reasonable facilities for the interchange of interstate traffic. Toledo, A., A. & N. M. Ry. v. Pennsylvania Co., C.C.Ohio, 54 F. 730, 19 L.R.A. 387. See, also, Wabash Ry. v. Hannahan, C.C.Mo., 121...