Southern Pac. Co. v. City of Willow Glen, 6282.
| Decision Date | 08 May 1931 |
| Docket Number | No. 6282.,6282. |
| Citation | 49 F.2d 1005 |
| Parties | SOUTHERN PAC. CO. v. CITY OF WILLOW GLEN. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Louis Oneal, of San Jose, Cal., and Frank C. Cleary and E. J. Foulds, both of San Francisco, Cal. (Guy V. Shoup, of San Francisco, Cal., of counsel), for appellant.
L. D. Bohnett, of San Jose, Cal., for appellee.
Before RUDKIN, WILBUR, and SAWTELLE, Circuit Judges.
This is an appeal from the decree enjoining the appellant from proceeding with the construction of a double-track railway "or operating thereon any railroad" upon its land within the city of Willow Glen, a municipal corporation of Santa Clara, Cal., unless and until said appellant obtains from the city council of the city of Willow Glen by two-thirds vote thereof the grant of the right to so use said land. The action is predicated upon section 470 of the Civil Code of the state of California, which provides as follows: "No railroad corporation must use any street, alley, or highway, or any of the land or water, within any incorporated city or town, unless the right to so use the same is granted by a two-third vote of the town or city authority from which the right must emanate."
The action was brought in the superior court of the state of California in and for the county of Santa Clara and was removed to the United States District Court for the Northern District of California because of diversity of citizenship; the appellant being a corporation organized under the laws of the state of Kentucky. After removal the appellant answered the complaint admitting all the allegations thereof except the allegation that it was proceeding without lawful authority, and the allegation that irreparable injury would result from the proposed construction and operation. Appellant also set up affirmatively its alleged rights as an interstate commerce carrier acting under an authorization of the Interstate Commerce Commission to construct and operate the railroad in question. A motion was made by the plaintiff to strike out all these affirmative allegations of the answer and for judgment on the pleadings. The court, on May 31, 1930, granted the motion to strike and for judgment in favor of the plaintiff on the pleadings. The judgment enjoining the appellant was entered on July 18th. In view of the fact that the motion to strike was granted upon the ground that the affirmative allegations of the answer, if true, were immaterial, and there seems to be no question as to the truth thereof, we will assume them to be true, as did the parties and the court below. In the court below plaintiff contended that the appellant had no right to build a railroad through the city of Willow Glen without express authority thereto granted by the action of the city council of said city by two-thirds vote, although duly authorized so to do by the Interstate Commerce Commission. It appears from the allegations of the answer that the appellant has leased and is operating a railroad constructed by the Southern Pacific Company through the states of California, Arizona, and New Mexico, including a railroad extending from San Francisco via the city of San Jose, Santa Clara county, to Los Angeles, in California, and into and through the states of Arizona and New Mexico. This railroad is operated across and along certain streets in the city of San Jose, Santa Clara county, Cal., and the franchise for the use of said streets has expired. Appellant applied to the Interstate Commerce Commission for authority to obtain a portion of its railway in the city of San Jose and to shift the location of its main tracks approximately one mile westerly of the present location to traverse certain agricultural lands owned in fee by the appellant in the extreme southeasterly corner of the city of Willow Glen. Such location crosses no street or public property within the city of Willow Glen. The cost of the relocation of the lines will be approximately $3,000,000. The line in San Jose to be abandoned is about 1.12 miles long and the new mileage to be constructed is about 5.64. The segment of the line proposed to be abandoned was constructed in 1868 and 1869 and has been used continuously since March, 1869, for the movement of all classes of traffic. It is on Fourth street in San Jose, Cal., and is a part of the main coast line between San Francisco and Los Angeles, Cal. After due notice the Interstate Commerce Commission issued a certificate of public convenience and necessity for the construction by the applicants of the proposed new line of railroad and the abandonment of that portion of the railroad above mentioned. In pursuance of said authorization a material part of the cost of such changes has already been expended. The construction and operation of said line of railroad within the corporate limits of the city of Willow Glen is necessary to avoid interruption of the service to the public rendered by said railroad in state and interstate commerce. The certificate and order of the Interstate Commerce Commission provides for the commencement of the construction of the proposed new line of railroad on or before July 1, 1929, and its completion on or before June 30, 1931. The Transportation Act of 1920, § 402, amending the Interstate Commerce Act, § 1, provides, paragraph 20 (49 USCA c. 1, § 1, par. 20): "* * * From and after issuance of such certificate, and not before, the carrier by railroad may, without securing approval other than such certificate, comply with the terms and conditions contained in or attached to the issuance of such certificate and proceed with the construction, operation, or abandonment covered thereby."
The injunction prohibits the appellant from constructing the railroad as authorized by the Interstate Commerce Commission at any time unless the consent of the city council of the city of Willow Glen be first secured. Appellant, during the pendency of the action, made an application to the city of Willow Glen for permission to build its railroad in accordance with the terms of the certificate of convenience by the Interstate Commerce Commission through the city, but such request was refused.
At the threshold of the case appellant contends that jurisdiction of an action to enjoin the construction of the railroad tracks in accordance with the terms and provisions of the order of the Interstate Commerce Commission is in the United States District Court, and that such jurisdiction cannot be exercised by the state courts nor by the federal courts in an action removed therefrom by reason of a diversity of citizenship. This contention is based upon 28 USCA § 46: "Suits to enjoin, set aside, annul, or suspend any order of the Interstate Commerce Commission shall be brought in the district court against the United States."
This question has been frequently considered by the courts. The Supreme Court of Illinois, in People v. Ill. Cent. R. Co., 324 Ill. 591, 155 N. E. 841, 51 A. L. R. 1236, decided February 16, 1927, dealt with a similar case wherein the Southern Illinois & Kentucky Railroad Company (an interstate carrier) had been granted a certificate of convenience by the Interstate Commerce Commission, among other things, to construct a railroad extending from Edgewood to Metropolis paralleling the lines of the Illinois Central Railroad Company within thirty miles thereof. In that case it was claimed that the railroad was being constructed between Edgewood and Metropolis without an application to the Illinois Commerce Commission in violation of the laws of the state of Illinois with reference to the construction and ownership of parallel and competing lines. It was contended by the plaintiff therein that the bill to enjoin the construction of such new line "was not in effect a bill to enjoin, set aside, annul and suspend the orders of the Interstate Commerce Commission, but that it is merely a proceeding to enjoin the appellees from doing certain things which are not permitted by their charters and which are in violation of the constitutional laws of this state, and that despite the issuance of such an injunction the order of the commission will be unaffected." It was held by the Supreme Court of Illinois that the action was essentially one to enjoin the doing of the very thing permitted and authorized by the Interstate Commerce Commission and that exclusive jurisdiction of such an action had been vested by Congress in the United States District Court. In a later case the Supreme Court of Illinois (St. Louis Connecting R. Co. v. Blumberg, 325 Ill. 387, 156 N. E. 298, 302) again had occasion to consider the...
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