Chicago & NW Ry. Co. v. Toledo, P. & WR Co.

• Decision Date: 05 December 1963
• Docket Number: No. 14166.,14166.
• Citation: 324 F.2d 936
• Parties: CHICAGO AND NORTH WESTERN RAILWAY COMPANY, a corporation, Plaintiff-Appellant, v. TOLEDO, PEORIA & WESTERN RAILROAD COMPANY, J. Russel Coulter, R. M. Esslinger, D. L. Hughes and H. E. Kipling, Defendants-Appellees, Robert J. Strand and Local Lodge 926, Brotherhood of Locomotive Firemen and Enginemen, Intervenors-Appellees, Garland F. Brown, Sr., John W. Towles, and Local Lodge 1084 of the Brotherhood of Railroad Trainmen, Intervenors-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

324 F.2d 936 (1963)

CHICAGO AND NORTH WESTERN RAILWAY COMPANY, a corporation, Plaintiff-Appellant, v. TOLEDO, PEORIA & WESTERN RAILROAD COMPANY, J. Russel Coulter, R. M. Esslinger, D. L. Hughes and H. E. Kipling, Defendants-Appellees Robert J. Strand and Local Lodge 926, Brotherhood of Locomotive Firemen and Enginemen, Intervenors-Appellees Garland F. Brown, Sr., John W. Towles, and Local Lodge 1084 of the Brotherhood of Railroad Trainmen, Intervenors-Appellees.

No. 14166.

United States Court of Appeals Seventh Circuit.

December 5, 1963.

Robert W. Russell, Chicago, Ill., Timothy W. Swain, Peoria, Ill., Jordan J. Hillman, Chicago, Ill., Mishael O. Gard, Peoria, Ill., James P. Daley, Chicago, Ill., for appellant.

John E. Cassidy, Sr., Peoria, Ill., Harold C. Heise, Cleveland, Ohio, Alex Elson, Chicago, Ill., Louis F. Knoblock, Peoria, Ill., Willard J. Lassers, Aaron S. Wolff, Elson, Lassers & Wolff, Chicago, Ill., Knoblock & Ott, Peoria, Ill., Heiss, Day & Bennett, Cleveland, Ohio, for appellees.

Before HASTINGS, Chief Judge, and DUFFY and KNOCH, Circuit Judges.

DUFFY, Circuit Judge.

Plaintiff, Chicago and North Western Railway Company (North Western) brought this action to enjoin Toledo, Peoria & Western Railroad Company et al. (TP&W), its officers, agents and employees, from interfering with and preventing plaintiff from operating its engines and cars, with its own crews, over a section of railroad track between Sommer, Illinois, and the industrial plant of Archer-Daniels-Midland (ADM).

Local Lodge No. 926, Brotherhood of Locomotive Firemen and Enginemen, and Local Lodge No. 1084, Brotherhood of Railroad Trainmen, and certain of their officers, were permitted by the District Court to intervene as parties to this suit.

The complaint alleges that plaintiff obtained the right under a 1957 joint-track agreement with TP&W to operate its engines and cars over tracks which permit it to serve ADM with its own crews and power. This agreement was executed July 27, 1957, and was approved by the Interstate Commerce Commission on October 28, 1958.

North Western's main line and TP&W's main line run parallel through Sommer, Illinois. TP&W has substantial real estate holdings lying northerly from Sommer closely adjacent to North Western's main line, and also southerly from Sommer closely adjacent to its own main line.

The 1957 agreement delimited a joint industrial area. Provision was made for the construction of an interchange track at Sommer connecting North Western's main line and the main line of TP&W. Provision was also made for the construction of an industry track into the area where ADM's plant is now located. About 5.9 miles of North Western's tracks extending northerly from Sommer, and approximately 4 miles of TP&W's track extending southerly from that point, together with certain industry tracks to be built, were designated in the agreement as joint-trackage.

The 1957 agreement gave TP&W the right to operate its engines and cars with its own crews over certain North Western tracks referred to in the agreement as the "North Western segment." It is the claim of North Western that it was given similar rights to operate its engines and cars with its own crews over tracks of TP&W referred to in the agreement as the "Toledo segment."

The locomotives, crews and cars of North Western have not, at any time, moved over the Toledo segment. The switching of cars to the Archer-Daniels-Midland plant commenced in March 1961. From that date to and including March 1962, North Western delivered to TP&W at Sommer, 160 cars which TP&W delivered to the ADM plant. During the same period, TP&W moved 152 cars from the ADM plant, delivering same to North Western at Sommer. TP&W received five dollars per car for the 312 cars thus handled.

On April 11, 1962, North Western, which had received cars moving in interstate commerce, attempted to make delivery of these cars to the ADM plant with its own engine and crew. TP&W, through its officers and agents, refused to permit North Western to operate on the Toledo segment. Such refusal was backed up with physical force including locked switches and the arrest of one of North Western's brakemen who had been sent ahead of the movement as flag protector.

Defendants admit that they refused to permit North Western to run its locomotives with North Western crews over the Toledo segment, but strenuously deny they interfered with interstate commerce, and assert that they stood ready to and did complete the movement of cars to the ADM plant.

On June 13, 1962, the District Court entered an order holding it had jurisdiction to hear and determine the case. Thereafter, the trial of the case was held. The District Court then concluded that its earlier determination as to jurisdiction was in error, and on February 28, 1963, filed an opinion and order holding that it did not have jurisdiction because there was no issue present in the case arising under any federal act regulating commerce.

The District Court relied upon Gully, State Tax Collector for Mississippi v. First National Bank in Meridian, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70, which emphasized that the federal right relied on for jurisdiction must be a paramount and not a collateral issue in the suit. The Court said in Gully, at 299...