United States v. Switchmen's Union of North America, Civ. No. 4638.

• Decision Date: 11 August 1950
• Docket Number: Civ. No. 4638.
• Citation: 97 F. Supp. 97
• Parties: UNITED STATES v. SWITCHMEN'S UNION OF NORTH AMERICA.
• Court: U.S. District Court — Western District of New York

97 F. Supp. 97

UNITED STATES v. SWITCHMEN'S UNION OF NORTH AMERICA.

Civ. No. 4638.

United States District Court W. D. New York.

August 11, 1950.

George L. Grobe, U. S. Atty., Buffalo, N. Y., Joseph M. Friedman, Sp. Asst. to Atty. Gen., and Jess H. Rosenberg, Attorney, Department of Justice, Washington, D. C. (Henry W. Killeen, Jr., Asst. U. S. Atty., Buffalo, N. Y., of counsel), for plaintiff.

Andrew B. Gilfillan, Jr., Buffalo, N. Y., Harold C. Heiss, and Charles W. Phillips, Cleveland, Ohio, for defendant.

KNIGHT, Chief Judge.

This is an action for an injunction restraining the Switchmen's Union of North America, and its members, from participating in and continuance of a strike against the Chicago, Rock Island & Pacific Railroad Company (hereinafter called the Rock Island). Originally a strike was called against five railroads, including the Rock Island.

Late last year conferences were held between the representatives of the union and of the railroad in an attempt to settle a dispute over hours of labor and wages. The National Mediation Board was called in and further conferences were held without results. The strike was withdrawn as to all of the five railroads except the Rock Island. On March 21st, 1950, the union announced withdrawal of all of its men from service on the last mentioned railroad. On March 20th, 1950, the President of the United States issued an executive order creating an Emergency Board to investigate and report the facts involved in the strike. The union had refused to submit to a hearing as to all five railroads. No further investigation by the Emergency Board was had but a report was made by that Board disallowing a forty hour work week with pay for forty-eight hours.

On July 8, 1950, the United States Government seized the Rock Island and the union refused to put its men back to work. A temporary restraining order was issued out of this court. Thereupon the men went back to work and the railroad has been continued to be run until this time under Government control. A hearing on this motion was had before this court on August 3rd, 1950. The expiration date of the temporary restraining order was August 4, 1950, but by stipulation of the parties that date is now advanced to August 14, 1950.

It is the contention of the defendant, (1) that jurisdiction of this court is denied by the Norris-La Guardia Act, 29 U.S.C.A. § 104; (2) that the Executive Order issued by the President directing the seizure of the railroad is not a valid exercise of the power granted to the President by the Act of August 29, 1916, 39 Stat. 619, 10 U.S.C.A. § 1361: and (3) that the Act of August 29, 1916, does not create an employer-employee relationship between the Government and defendant's members to justify relief under the circumstances of this case.

At the hearing before this court, on August 3rd, 1950, witnesses were sworn and examined and numerous documents were received in evidence.

The Rock Island is fifteenth in rank of the sixty-four Class 1 steam railways in the United States. In respect to mileage it ranks tenth. It owns 7,619 miles of road, operates 469.49 miles over other roads; in addition operates 651.37 miles of second and other main tracks and owns a large mileage of side tracks. This mileage is situated in fourteen states and 268 counties, with a total population of 15,772,057 persons. It has 509 steam locomotives, 285 Diesel engines, 26,956 freight train cars, and 761 passenger cars. It also has many units of service equipment. It has been operating 62 through trains in service, 110 suburban passenger trains daily and 338 freight trains daily, serving 785 stations on its line not served by any other railroad. In 1949 the total miles operated in the United States on main lines was 226,546, of which Rock Island operated 7619.11 miles.

This railroad serves the mid-west territory from Lake Michigan to the Rocky Mountains and from St. Paul and Minneapolis to Texas. Its tonnage carried consists generally of wheat, corn, oats and other grains, vegetables, cattle, meat, lumber and manufactured goods from the many large cities on its lines. Its annual report for 1949 states that the total tons of revenue freight was 38,507,960. The average tonnage for the last seven years has been approximately 41,300,000 tons and the passengers carried in 1949 numbered 11,930,925. The railroad employs 20,000 men and how many more are lost to employment or will be lost to employment by strike cannot be estimated.

In March alone of this year, its lines carried 50,000 lineal feet of mail; 833 — 60 foot sized cars or about 27 cars a day; 8 — 60 foot railroad post office cars daily, 52 — 30 foot department cars and 18 — 15 foot department cars.

Mr. Aitchison, a member of the Interstate Commerce Commission, and Mr. Miller, Deputy Assistant Postmaster General, have given testimony in great detail as to the above and many other activities or operations of the Rock Island.

In times of peace or in times of war, one can readily understand how a failure in the operation of this great railroad system affects the economy of the nation. In times of war continued operation is necessary to the military success of the country.

The complaint alleges these bases for an injunction: obstruction of interstate commerce in transmission of the mails; obstruction of the performance of vital and necessary governmental functions; the imperiling of the nation's security and irreparable injury for which the Government has no adequate remedy at law. The testimony is barren of any denial of these allegations in the complaint and, indeed, they are undeniable.

It is the claim of the Government in the circumstances of the present case that the issuance of an injunction is within the equity jurisdiction of this court. If there is no statute limiting the power under the circumstances shown here, this court is concluded by the decision of the Supreme Court In re Debs, 158 U.S. 564, 15 S.Ct. 900, 912, 39 L.Ed. 1092. That suit was brought to compel the Pullman Palace Car Company to adjust certain differences with the American Railway Union. It is a well known case and the decision has never been overruled. In that case it was said: "Summing up our conclusion, we hold that the government of the United States is one having jurisdiction over every foot of soil within its territory, and acting directly upon each citizen; that, while it is a government of enumerated powers, it has within the limits of those powers all the attributes of sovereignty; that to it is committed power over interstate commerce and the transmission of the mail; that the powers thus conferred upon the national government are not dormant, but have been assumed and put into practical exercise by the legislation of Congress * * *; that the proceeding by injunction is of a civil character, and may be enforced by proceedings in contempt".

In that case it was charged that the defendants attempted to create a boycott and it prevented the operation of certain trains.

The opinion by Judge Brewer is almost classical in argument and citation of applicable authorities. See also State ex rel. Hopkins v. Howat, 109 Kan. 376, 389, 198 P. 686, 25 A.L.R. 1210.

In United States ex rel. Greathouse v. Dern, 289 U.S. 352, 53 S.Ct. 614, 77 L.Ed. 1250, it was said that the "Allowance of mandamus is controlled by equitable principles". In Virginian Ry. Co. v. System Federation No. 40, 300 U.S. 515, 57 S.Ct. 592, 601, 81 L.Ed. 789, the court said that controversy affecting interstate commerce "is a matter of public concern" and "Courts of equity * * * go much farther * * than * * * when only private interests are involved". Texas & N. O. R. Co. v. Brotherhood of Railway & Steamship Clerks, 281 U.S. 548, 50 S.Ct. 427, 74 L.Ed. 1034.

In the Debs case the court definitely held that the court has jurisdiction to issue an injunction in the aid of the performance of its governmental affairs.

It is believed that this court can take judicial notice of the United Nations' conflict over Korea. Vol. 31 Corpus Juris Secundum, Evidence, § 62, page 639. This greatly emphasizes the necessity for the continued operation of this railroad. However, neither the war with Germany nor Japan has ever been dissolved and no treaty of peace has followed these wars. The statutes effective only "in time of war" continue in force until a formal statement of peace is declared. Hamilton v. Kentucky Distilleries Co., 251 U.S. 146, 40 S.Ct. 106, 64 L.Ed. 194. In Commercial Cable Co. v. Burleson, D.C., 255 F. 99, 101, the joint resolution adopted July 16, 1918, authorizing the President during the continuation of war to take possession and control of telegraphs and marine cables was held constitutional and was an appropriate war measure. It also held it is not affected by the "armistice". In United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 546, 70 S.Ct. 309, 94 L.Ed. 317, a decision handed down January 16, 1950, it was held that a state of war still exists.

The Act of August 29, 1916, 39 Stat. 645, 10 U.S.C.A. § 1361, which empowers the President "to take possession and assume control" in an emergency as exists at present on the Rock Island was invoked during actual hostilities. In United States v. Brotherhood of Locomotive Engineers, D.C., 79 F.Supp. 485, the question of there being actual hostilities then was not involved, but the seizure was held valid by virtue of Executive Order No. 9957, 13 F.R. 3875.

The Act of August 29, 1916, provides:

"The President, in time of war, is empowered, through the Secretary of War, to take possession and assume control of any system or systems of...