BROTHERHOOD OF LOCOMOTIVE FIREMEN, ETC. v. Graham

• Decision Date: 26 October 1948
• Docket Number: No. 9716.,9716.
• Citation: 175 F.2d 802
• Parties: BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN v. GRAHAM et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

175 F.2d 802 (1948)

BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN v. GRAHAM et al.

No. 9716.

United States Court of Appeals District of Columbia Circuit.

Argued April 13, 1948.

Decided October 26, 1948.

Writ of Certiorari Granted June 27, 1949.

Mr. Milton Kramer, with whom Mr. Lester P. Schoene, who entered an appearance, and Messrs. Harold C. Heiss and Russell B. Day, were on the brief, for appellant.

Mr. Joseph L. Rauh, Jr., with whom Mr. Irving J. Levy, who entered an appearance, and Messrs. William W. Kramer and Henry Epstein, were on the brief, for appellees Graham, et al.

Mr. Henry L. Walker for appellee Southern Railway Company. Mr. Sidney S. Alderman also entered an appearance for appellee Southern Railway Company.

Messrs. Robert R. Faulkner and Thomas W. Davis entered appearances for appellee Atlantic Coast Line Railway.

Before STEPHENS, Chief Justice, and EDGERTON and CLARK, Associate Justices.

Writ of Certiorari Granted June 27, 1949. See 69 S.Ct. 1527.

STEPHENS, Chief Justice.

This is a special appeal allowed by this court from an order of the United States District Court for the District of Columbia granting a preliminary injunction. The appellant, a defendant below, is the Brotherhood of Locomotive Firemen and Enginemen, an unincorporated association, hereafter sometimes referred to as the Brotherhood. Other defendants were subordinate Lodge No. 7 (the "Potomac" Lodge) and Lodge No. 532 (the "National Capitol" Lodge) of the Brotherhood composed principally of members residing in the District of Columbia; Marvin M. McQuade, Recording Secretary and Financial Secretary of Lodge No. 7, and William E. Lacey, Recording Secretary of Lodge No. 532, residents of the District of Columbia; the Southern Railway Company, the Seaboard Air Line Railway Company, and the Atlantic Coast Line Railway Company, interstate carriers operating along the eastern seaboard, hereafter referred to as the carriers. Other railroad companies intervened. Neither they nor the "other defendants" mentioned above are parties to this appeal. The appellees, plaintiffs below, are 21 Negro firemen employees of the carriers. Their complaint in the District Court charged: that the Brotherhood by virtue of its constitution and practices restricts its membership to white locomotive firemen and enginemen; that its members have constituted the majority of the craft or class of locomotive firemen on most of the interstate railroads of the United States, including the defendant carriers, and that in consequence the Brotherhood has, pursuant to the provisions of the Railway Labor Act, 45 U.S. C.A. § 151, et seq.,¹ continuously acted as sole bargaining agent for the entire class of locomotive firemen, including Negro firemen; that as such sole bargaining agent the Brotherhood has negotiated agreements and arrangements with the carriers, including an agreement of February 18, 1941, between the Southeastern Carriers' Conference Committee and the Brotherhood, discriminating against colored firemen and depriving them of rights and job assignments to which their seniority entitled them; that pursuant to these agreements and arrangements seniority rights to favored job assignments have been denied the appellees and other Negro firemen. The appellees sued on their own behalf and on behalf of all others similarly situated. Their complaint expressly founded the action upon the Railway Labor Act and the Constitution of the United States. The complaint sought: a determination of the appellees' rights and the rights of others similarly situated; a permanent injunction against any further discriminatory practices; an order directing restoration of jobs from which appellees and other Negro firemen had been unlawfully displaced; a permanent injunction restraining the Brotherhood from purporting to act as representative of the appellees or as representative of the class or craft of locomotive firemen under the Railway Labor Act so long as it does not fairly represent all members thereof, including the Negro firemen; damages for loss of employment and wages by reason of the discriminatory practices; and a preliminary injunction pending final hearing and determination of the cause. The appellees supplemented their complaint by a motion for a preliminary injunction restraining further discrimination and loss of job assignments pending final determination of the action. The appellant Brotherhood moved to dismiss the action upon the grounds that venue was improperly chosen, that the Brotherhood was not properly served, and that other actions in which the subject matter and parties were the same as in the instant case were pending in other district courts. The trial court denied this motion and entered an order issuing the preliminary injunction prayed for. The present appeal is from that order. In addition to urging that the court erroneously denied the motion to dismiss, the Brotherhood asserts also on the appeal that the preliminary injunction was issued in defiance of the Norris-LaGuardia Act, 29 U.S.C.A. § 101, et seq., and that it was erroneously issued also in that it altered rather than preserved the status quo existing prior to the commencement of the suit. In the view we take it is necessary to rule only upon the question of the propriety of the venue of the action. Further facts relating to a determination of that question are stated below.

The venue statute applicable to the United States courts generally, 28 U.S. C. § 112 (1946), provides that "no civil suit shall be brought in any district court against any person by any original process or proceeding in any other district than that whereof he is an inhabitant . . .."² An unincorporated association — the Brotherhood, as above stated, is such — is an "inhabitant" only of the district in which is located its principal place of business. It was so ruled in Sperry Products v. Association of American Railroads, 2 Cir., 1942, 132 F.2d 408, 145 A.L.R. 694, where the meaning of the word inhabitant for determination of venue for the commencement of patent infringement suits under the provisions of 28 U.S.C. § 109 (1940), was in issue in respect of the defendant American Association of Railroads, an unincorporated association.³ Recognizing that inhabitancy should be attributed to such an association "as though it were a single jural person and not an aggregate," the court in that case, speaking through Learned Hand, Circuit Judge, said:

. . . Whether an individual is an "inhabitant" of any place other than his home we need not inquire; the word has no better defined outlines than "domicile", or "residence"; all we need say here is that it was used to indicate some more permanent attachment than that of "a regular and established place of business"; and in the case of individuals other ties than occupational were certainly included. In the case of a corporation we may assume that it can be an "inhabitant" only of the state of its incorporation, Neirbo Co. v. Bethlehem Shipbuilding Corporation, 308 U.S. 165, 60 S.Ct. 153, 84 L.Ed. 167, 128 A.L.R. 1437; but even so, that will not serve as a test if there be several judicial districts in that state. Since a corporation can have no other activities than occupational, we are forced to choose among these; and it seems to us that we can only choose that place where its principal activities take place: its principal place of business. If so, the same test must apply to an unincorporated association with the added limitation that as to it no state of incorporation exists to disturb the test in application. . . . 132 F.2d at 411

An affidavit filed in support of the Brotherhood's motion to dismiss stated that the principal place of business of the Brotherhood is Cleveland, Ohio, and the constitution of the Brotherhood which was made a part of the record of the hearing on the motion to dismiss so provides. No counter-affidavit was filed. It may therefore be taken as established — it is indeed apparently not in dispute — that the principal place of business of the Brotherhood, and therefore its inhabitancy, is Cleveland, Ohio. It follows that if the Federal venue statute governs, the venue in the instant case was mischosen.

There is, however, a local statute, that is, one enacted by Congress under Article I, § 8, cl. 17, applicable to the District of Columbia alone, which provides that no action shall be brought in the United States District Court for the District of Columbia by original process against any person "who shall not be an inhabitant of, or found within, the District, except as otherwise specially provided." (Italics supplied) D.C.Code (1940) § 11-308. It is contended by the appellees that that statute may be looked to for support of the venue in the instant case and that it is satisfied on the facts, that is to say, that the Brotherhood may properly be said to be "found" within the District, by virtue of its having therein the office of its "national legislative representative." But we need not determine whether the Brotherhood is thus "found" within the District since, for the reasons set forth below, we think the Federal venue statute governs.

In O'Donoghue v. United States, 1933, 289 U.S. 516, 53 S.Ct. 740, 77 L.Ed. 1356, the Supreme Court held that the Supreme Court of the District of Columbia and the Court of Appeals of the District of Columbia (now the United States District Court for the District of Columbia and the United States Court of Appeals for the District of Columbia Circuit) are constitutional courts of the United States ordained and established under Article III of the Constitution. This holding is predicated upon recognition that those courts are "courts of the United States, vested generally with the same jurisdiction as that possessed by the inferior federal courts located elsewhere in respect of the cases enumerated in § 2 of Art. III,"⁴ which provides that "The judicial power shall extend to all cases, in law and...