Sandsberry v. Gulf, C. & SF Ry. Co., Civ. A. No. 1611.

• Court: United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
• Citation: 114 F. Supp. 834
• Docket Number: Civ. A. No. 1611.
• Parties: SANDSBERRY et al. v. GULF, C. & S. F. RY. CO. et al.
• Decision Date: 31 July 1953

114 F. Supp. 834

SANDSBERRY et al.
v.
GULF, C. & S. F. RY. CO. et al.

Civ. A. No. 1611.

United States District Court N. D. Texas, Amarillo Division.

July 31, 1953.

114 F. Supp. 835

Simpson, Clayton & Fullingim, Amarillo, Tex., for plaintiffs.

J. C. Gibson, R. S. Outlaw, and William J. Milroy, Chicago, Ill., Adkins, Folley, Adkins, McConnell & Hankins, Amarillo, Tex., Wigley, McLeod, Mills & Shirley, Galveston, Tex., Lewis Jeffrey, Amarillo, Tex., for defendant railroads.

Mullinax & Wells, Dallas, Tex., Schoene & Kramer, and Mulholland, Robie & Hickey, Washington, D. C., for union defendants.

DOOLEY, District Judge.

The plaintiffs, natural persons of Texas, being three employees of Atchison, Topeka and Santa Fe Railway Company and eleven employees of the Panhandle and Santa Fe Railway Company, all save one nonunion employees, brought this suit in a district court of Texas against the said two companies and Gulf, Colorado and Santa Fe Railway Company, as well as sixteen labor

114 F. Supp. 836

unions or associations and numerous natural persons sued both individually and as local, division, system and general representatives of said unions and associations respectively, alleging that the nonunion plaintiffs had attained certain seniority respectively, wished to continue at work in said employment, but were unwilling to join and become liable for the dues, assessments, and other charges as a member of some one or another of the defendant unions, and that their employment security and right to work were in jeopardy by the fact that negotiations of collective bargaining were imminent between the defendant railroads and the defendant unions in which the said unions would demand from the railroads a union shop contract, with a threat of strike otherwise, and that confronted with the pressure of such an alternative the railroads, though disinclined, would be coerced into such a contract, and that the nonunion plaintiffs, in spite of their natural right of freedom to work, as further guaranteed by the Texas Right to Work Law¹, would be wrongfully forced to quit their employment or else against their will join some one of the defendant unions, all in violation of their legal and constitutional rights, and the prayer was for a temporary restraining order enjoining the railroad defendants from signing such a union shop contract and the labor unions, their officers and representatives, from demanding the contract and from attempting to force the railroad defendants to sign said contract by the means of any slow-down, work stoppage, local or national strike, or any other concerted activity, and that said restraining order, after notice, be superseded by a temporary injunction, and later by a permanent injunction upon final trial

The plaintiffs in their petition also took anticipatory notice of the 1951 Amendment of the Railway Labor Act, now reflected in Title 45 U.S.C.A. § 152 being new paragraph Eleventh thereof, as sufficiently copied in the margin², but this was done

114 F. Supp. 837

only to point out at the outset the plaintiffs' counts against the constitutional validity of said statutory amendment

The defendant railroads made no contest of plaintiffs' suit by their answer in the State court, but by cross-claim against the same labor unions and associations and some of the same individual representatives of said unions named in the plaintiffs' petition, and also a number of additional individual representatives thereof, alleged the course of some collective bargaining negotiations between representatives of the defendant unions and certain railroads, including the defendant railroads, initiated on February 5, 1951, marked on July 1, 1952 by a demand of the unions for a blanket union shop agreement with all of the said railroads as a group, which was rejected, and that said unions then undertook to deal separately with the railroads, and on May 5, 1953 in a meeting between representatives of the defendant unions and the defendant railroads the unions renewed the demand for a union shop contract, being a contractual provision that as a condition of continued employment the employees of the defendant railroads would be compelled to become members of some one or another of the unions by craft classification, regardless of their own rights, desires or convictions, and that the railroads being disinclined to yield to said demands, the unions then threatened a strike, and upon information and belief that but for the restraining order entered herein by the State court the unions would have forced the railroads to sign said proposed contract, or would have immediately carried out their threat by calling a strike against the railroads, and that such purposes are fraught with irreparable damage to the railroads, and the prayer of said cross-claim sought injunctive relief substantially similar to that prayed for by the plaintiffs against the defendant unions and individual representatives of the unions respectively, and in addition the railroads also prayed for a declaratory judgment pertaining to the Texas Right to Work Law and certain other statutes of Texas.

Certain injunctive orders were issued in this case by the State court.

In due time all of the defendants and cross-defendants, except the railroad defendants, filed a petition for removal of this cause from the State court to the Federal court, resting on the theory that this is an action of a civil nature, with the amount in dispute exceeding $3,000, exclusive of interest and costs, of which the district courts of the United States have original jurisdiction, and arises under the Constitution and laws of the United States, and moreover that it arises under an Act of Congress regulating commerce between the states, namely, the Railway Labor Act, so that same is removable in each of said aspects under the terms of the removal statute.³

The plaintiffs on their part and the defendant railroads on their part respectively, duly filed their separate motions to remand this suit to the State court.

The question of when a case arises under the laws or Constitution of the United States has been dealt with in a multitude of decisions in the lower Federal courts as well as the Supreme Court. Originally the courts did not use so strict a test, but in the last 75 years, along with the policy of constricting Federal jurisdiction, the courts have taken a more exacting attitude. Justice Holmes has said tersely, "A suit arises under the law that creates the cause of action." American Well Works Company v. Layne & Bowler Company, 241 U.S. 257, 36 S.Ct. 585, 586, 60 L.Ed. 987. Very much depends on the cast of the allegations in the complaint. "Of course, the party who brings a suit is master to decide what law he will rely upon, and therefore does determine whether he will bring a `suit arising under' the * * * law of the United States by his declaration or bill. That question cannot depend upon the answer, and accordingly jurisdiction cannot be conferred

114 F. Supp. 838

by the defense, even when anticipated and replied to in the bill." The Fair v. Kohler Die & Specialty Company, 228 U.S. 22, 33 S.Ct. 410, 411, 57 L.Ed. 716. The determinative allegations however must be clear, distinct and positive, not simply enough to raise inferences argumentatively⁴, so it follows that a mere formal statement that such question exists will not suffice⁵, and likewise mere references to the Federal Constitution, laws or treaties are not adequate to disclose such a case⁶, but instead the pleadings must spell out a claim integrated with a Federal statute or the Constitution.⁷ The alleged cause of action put in suit must be claimed under a Federal statute or the Constitution.⁸ The leading case by common recognition on the subject under discussion is Gully v. First National Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70, and there the Supreme Court thoroughly analyzed the decisions and expounded the criteria in a definitive way, and in synopsis version the holding is that a case to arise under the laws and Constitution of the United States must disclose such nature of the suit upon the face of the complaint, unaided by the answer or the petition for removal, and a genuine and present controversy, not merely a possible or conjectural one, must exist with reference to said laws or constitution, and a right or immunity created by such laws or constitution must be an element, and an essential one, of the cause of action, which will be supported if said laws and constitution are given one construction or effect, and defeated if there is a different construction. Some of the other principal decisions of the Supreme Court defining the tests of a case arising under the laws or Constitution of the United States are noted below.⁹

Now the standing of the present case will be examined. The plaintiffs' suit primarily rests on the natural right to work as buttressed by the Texas Right to Work Law. The removing defendants, however, strenuously argue that the plaintiffs under some dispersed allegations in the complaint rely on the protection of the guarantees in the Constitution of the United States, and in that way make their suit one arising under such Constitution. Of course it must be remembered that, "The question whether a party claims a right under the constitution or laws of the United States is to be ascertained by the legal construction of its own allegations, and not by the effect attributed to those allegations by the adverse party." Central Railroad Company of New Jersey v. Mills, 113 U.S. 249, 5 S.Ct. 456, 459, 28 L.Ed. 949. Some of the allegations pointed out by the removing defendants are no more than mere undefined references

114 F. Supp. 839

to the laws and Constitution of the United States, and the only one definite enough to merit further attention states that the inevitable result of a union shop contract will be to confiscate plaintiffs' property rights and impair their contracts...