Wicks v. Southern Pacific Co., 14483

• Decision Date: 28 May 1956
• Docket Number: No. 14483,14484.,14483
• Citation: 231 F.2d 130
• Parties: George C. WICKS, Plaintiff and Appellant, v. SOUTHERN PACIFIC CO. (Pacific Lines), Defendant and Appellee; Brotherhood of Maintenance of Way Employees, Intervenor and Appellee. Philip F. JENSEN, Plaintiff and Appellant, v. UNION PACIFIC RAILROAD CO., a Corporation, Defendant and Appellee; Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees, Intervenor and Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

231 F.2d 130 (1956)

George C. WICKS, Plaintiff and Appellant, v. SOUTHERN PACIFIC CO. (Pacific Lines), Defendant and Appellee;

Brotherhood of Maintenance of Way Employees, Intervenor and Appellee.

Philip F. JENSEN, Plaintiff and Appellant, v. UNION PACIFIC RAILROAD CO., a Corporation, Defendant and Appellee;

Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees, Intervenor and Appellee.

Nos. 14483, 14484.

United States Court of Appeals Ninth Circuit.

March 6, 1956.

Writ of Certiorari Denied May 28, 1956.

Hill, Farrer & Burrill, Ray L. Johnson, Jr., Carl M. Gould, Mark E. True, Los Angeles, Cal., for appellants.

Burton Mason, W. A. Gregory, Jr., San Francisco, Cal., for appellee Southern Pacific Co.

Edward C. Renwick, Los Angeles, Cal., for appellee Union Pacific R. Co.

P. H. McCarthy, Jr., San Francisco, Cal., Lester P. Schoene, Milton Kramer, Washington, D. C., for intervenor and appellee Brotherhood of Maintenance of Way Employees.

Irl D. Brett, Los Angeles, Cal., Mulholland, Robie & Hickey, Washington, D. C., for appellee Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees.

Clarence M. Mulholland, Toledo, Ohio, Edward J. Hickey, Jr., Washington, D. C., James L. Crawford, Cincinnati, Ohio, for intervenors-appellees.

Before BONE, LEMMON and CHAMBERS, Circuit Judges.

Writ of Certiorari Denied May 28, 1956. See 76 S.Ct. 845.

BONE, Circuit Judge.

By stipulation of the parties these two cases arising in California where appellants reside¹ were consolidated on this appeal since they involve the same issues arising out of ultimate facts similar in nature. The facts are not in dispute.

Each appellant has long been an employee of one of the appellee railroads here involved, Wicks since 1914, Jensen since 1917; each has been continuously so employed except for a short time during the First World War; each is presently able, ready and willing to continue his service; the railroads are willing to continue that employment; each appellant has "built up" through his period of employment certain valuable benefits in terms of seniority, retirement rights (including a pension for the remainder of their natural lives after attaining the age of 65), hospital and medical care for the rest of their lives upon retirement at 65, and free railroad transportation in the United States, Canada and Mexico upon retirement. (The last named transportation privilege is granted by grace of company policy and not by right of any employment contract.) By reason of each appellant's refusal to join the union representing the appropriate bargaining unit in which his work places him, the intervening unions have ordered the employing railroads to dismiss both appellants. This procedure is in accordance with the terms of union shop clauses in the collective bargaining agreements which each union has with the railroads.

Appellants' refusal to join the union is apparently motivated solely by religious principles. However, they have offered to pay the required amount of the union fees, dues and assessments to some recognized charity, such as the Cancer Fund, or American Red Cross, but the unions found this offer unacceptable. To meet such a situation both unions entered into a supplemental agreement with the railroads under which any employee in their respective union bargaining units having genuine religious beliefs against joining a union, might avoid dismissal from railroad employment pursuant to the union shop clause by simply paying the normal and regular union fees, dues and assessments into the union treasury. Under this arrangement appellants would avoid the necessity of becoming members of the unions, thereby escaping (what to them) would be the stigma of being identified as an "active member" of a union.

This proposed solution was rejected by appellants as also being in violation of their religious beliefs.²

Appellants exhausted available remedies under the grievance machinery established by the collective bargaining agreements between the unions and the railroads, and thereafter commenced this action against appellee railroads seeking to have Subsection Eleventh of section 2 of the Railway Labor Act, infra, permitting a union shop, declared to be unconstitutional, and to permanently restrain defendant railroads, their officers, agents, representatives and employees, from terminating the employment and seniority rights of appellants. They also sought a preliminary injunction to restrain the discharge of appellants until a final determination of the action, a temporary restraining order pending hearing for a preliminary injunction, and for an order to show cause why such a preliminary injunction should not issue, and if for any reason it became impossible or impractical for the court to so restrain defendants, then the court to grant a judgment restoring appellants to their employment without loss of seniority or other rights, together with damages.

Appellants made an application for a three-judge court to hear the claimed constitutional issues as provided in 28 U.S.C.A. § 2282. The railroad unions sought and were permitted to intervene in each case. Temporary restraining orders against dismissal were issued, but upon further proceedings in the cases these orders were dissolved and the applications for permanent injunctions were denied. Motions for summary judgments and dismissals of appellants' actions were granted. From this final action appellants prosecuted this appeal.

The dispute in these cases stems from the fact that by an amendment of January 10, 1951 to the Railway Labor Act, 45 U.S.C.A. § 152, Eleventh, a so-called 60 day "union shop" agreement provision is permissible. Prior to this amendment union security agreements were invalid under 45 U.S.C.A. § 152, Fourth and Fifth, of this Act.³

At oral argument here appellants for the first time raised the question of the jurisdiction of this Court to hear and decide an appeal from the action of the lower court in these cases. As to this phase of the cases they assert that since the constitutionality of an Act of Congress was in issue the lower court was required to convene a three-judge court to hear their demands for a permanent decree restraining operation of an allegedly unconstitutional Act of Congress (i. e., Subsection Eleventh), as apparently required by 28 U.S.C.A. § 2282.⁴ The gist of their argument is that a single district court judge lacks jurisdiction to grant the motions for summary judgments and dismissals, with the result that this Court also has no jurisdiction to hear an appeal from such an action by the lower court.

Appellants buttress their argument on the issue of lack of our jurisdiction on this appeal by reliance on four cases, Stratton v. St. Louis S. W. Ry. Co., 1930, 282 U.S. 10, 51 S.Ct. 8, 75 L.Ed. 135; Ex parte Poresky, 1933, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152; Grigsby v. Harris, D.C. S.D.Tex.1928, 27 F.2d 945; and Waddell v. Chicago Land Clearance Commission, 7 Cir., 1953, 206 F.2d 748. All of these cases arose under 28 U.S.C.A. § 2281, a statute providing for a three-judge court when the validity of a state statute is at issue on federal constitutional grounds.⁵

On authority of Stratton v. St. Louis S. W. Ry. Co., supra, it is urged to us that a single district judge acts without jurisdiction when he grants summary judgment and dismissal of an action where the complaint raises the question of constitutionality of an Act of Congress by seeking relief in the form of "an interlocutory or permanent injunction restraining the enforcement, operation or execution of any Act of Congress for repugnance to the Constitution of the United States * * *." 28 U.S.C.A. § 2282. In reliance upon the Stratton case, supra, appellants now urge that the appropriate procedure following such action by the lower court was for them not to appeal to this Court (since it would lack jurisdiction in such an appeal) but rather to directly petition the Supreme Court for mandamus directing the district court judge to convene a three-judge court.

We have found no case which adequately discusses and disposes of the precise issue thus tendered here, that is to say, the power of this Court to entertain an appeal from the refusal by the lower court to convene a three-judge court, and the granting of summary judgments and dismissals by the district judge. But we conclude that the cases called to our attention fail to sustain the jurisdictional contentions of appellants.

From a reading of the Stratton and Poresky cases, supra, we are of the opinion that the trial judge sitting alone may initially determine if there is a "substantial" federal constitutional issue presented by a complaint which seeks an interlocutory or permanent injunction restraining the enforcement, operation or execution of any Act of Congress as being repugnant to the United States Constitution. We believe that a single district judge may dismiss a complaint if he decides that a substantial constitutional issue is not raised therein. It is only where a single district judge decides that a complaint raises a substantial constitutional issue and proceeds to decide that issue on its merits, that he acts without jurisdiction. The remedy for such action is to seek mandamus from the Supreme Court to compel the convening of a three-judge court to hear and decide the substantial constitutional issue in the case on its merits.

Our view of the four cases cited above by appellants is supported by California Water Service Co. v. City of Redding, 1938, 304 U.S. 252, 58 S.Ct. 865, 82 L.Ed. 1323, a case involving 28 U.S.C.A. § 2282, in which the Supreme Court said: "We have held that section 266 of the Judicial Code now 28 U.S.C.A. § 2281, does not apply unless there is a substantial claim of the unconstitutionality of a state statute or administrative order as there described. It is therefore the duty of a district judge, to whom...