1. A suit by a shipper to enjoin a railroad company from
following rules for car distribution which ave been prescribed by
the Interstate Commerce Commission under par. 15 of § 1 of the Act
to Regulate Commerce as amended by the Transportation Act of 1920,
is a suit to stay an order of the Commission, and can be brought
only in the district court, where the application must be heard by
three judges and the United States is an indispensable
Page 258 U. S. 378
party. Act of October 22, 1913, c. 32, 38 Stat. 208, 220;
Jud.Code, §§ 208, 211. P.
258 U. S.
381.
2. Jurisdiction of a suit to restrain a railroad company from
following rules for car distribution prescribed by the Commission
cannot be acquired by a state court, or by the district court upon
removal therefrom, through the plaintiff's concealment of the fact
that the rules were so prescribed. P.
258 U. S. 382.
Healy v. Sea Gull Specialty Co., 237 U.
S. 479, distinguished.
267 F. 776 modified and affirmed.
Appeal from a decree of the circuit court of appeals reversing
an order of the district court which granted an interlocutory
injunction, and directing that the injunction be dissolved and the
bill dismissed for want of jurisdiction in a suit by the appellant
to restrain the appellee from following certain rules of car
distribution, and to require it to furnish cars upon another
basis.
MR. JUSTICE BRANDEIS delivered the opinion of the Court.
The distribution of coal cars in times of car shortage has been
a fertile field of controversy. The subject has received much
attention from Congress, the Interstate Commerce Commission, and
the courts. Definite rules for distribution were promulgated by the
Commission, and they remained in force for many years. Among
these
Page 258 U. S. 379
was the so-called assigned car rule declared by the Commission
in Railroad Commission of Ohio v. Hocking Valley Railway Co., 12
I.C.C. 398, and Traer v. Chicago & Alton Railroad Co., 13
I.C.C. 451, and sustained by this Court in
Interstate Commerce
Commission v. Illinois Central Railroad Co., 215 U.
S. 452.{1} As an incident of the war this rule was
modified by the Railroad Administration acting in conjunction with
the Fuel Administration, and the assignment of cars for railroad
fuel was abandoned. When, by the Transportation Act, 1920,
provision was made for restoring the railroads to private control,
§ 1 of the Act to Regulate Commerce was amended, among other
things, by inserting a paragraph numbered 12, which deals
specifically with the distribution of coal cars. Act Feb. 28, 1920,
c. 91, § 402, 41 Stat. 456, 476.
In June, 1920, the Lambert Run Coal Company, a West Virginia
corporation, which owns and operates a mine in that state, brought,
in the Circuit Court of Marion County, this suit against the
Baltimore & Ohio Railroad Company, a Maryland corporation. The
bill alleged that there was an acute car shortage; that the
railroad had refused to make the distribution required by paragraph
12 of § 1 of the Act to Regulate Commerce, and in violation thereof
distributed cars in accordance with its own rules 8, 9, and 10, set
out in the margin,{2} and that this course was resulting in
irreparable injury to plaintiff. The bill
Page 258 U. S. 380
prayed that the railroad be restrained from observing these
rules and that it be required to furnish cars in accordance with
the established ratings.
The defendant removed the case to the federal court for the
Northern district of West Virginia, and there filed in a single
pleading a motion to dismiss and an answer. As grounds for the
motion, it alleged that the case was not one within the
jurisdiction of the state court; that, since it did not appear that
the Commission had taken any action in respect to the matter
complained of, neither court had jurisdiction of the controversy;
that the plaintiff had concealed the fact that the rules of the
carrier complained of were, as plaintiff knew, rules which had been
promulgated by the Commission; that the bill was thus one to
restrain enforcement of an order of the Commission, and that the
United States and the Commission were indispensable parties. The
answer set forth the facts supporting these allegations and, among
other things, that the rules promulgated by the Commission and
adopted by the carrier had been issued on April 15, 1920, in
pursuance of the emergency provision known as paragraph 15,
inserted in § 1 of the Act to Regulate Commerce by the
Transportation Act, 1920,
supra, 41 Stat. 456, 476.
Plaintiff then moved in the district court for an interlocutory
injunction. The defendant, insisting that the
Page 258 U. S. 381
proceeding was one to stay an order of the Commission, objected
to a consideration of the motion in the absence of two other judges
as provided by Act Oct. 22, 1913, c. 32, 38 Stat. 208, 220. Both
this objection and the motion to dismiss were overruled by the
district judge, and an interlocutory injunction in accordance with
the prayer of the bill was issued. From this order defendant
appealed to the Circuit Court of Appeals for the Fourth Circuit.
That court stayed the injunction pending the determination of the
appeal, and later reversed the decree below with directions to
dissolve the injunction and dismiss the bill. 267 F. 776. The
reasons given by the circuit court of appeals for its decision are,
in substance, that the car distribution rule complained of appeared
on uncontroverted facts to be that prescribed by the order of the
Commission issued April 15, 1920; that this order was issued under
paragraph 15 of § 1 of the Act to Regulate Commerce; that it was
within the emergency powers there conferred; that the rights and
duties prescribed by paragraph 12 of that section were not
absolute, but were subject to suspension or modification by the
Commission in case of emergency, as provided in paragraph 15, and
that therefore the bill should have been dismissed. It added that
the district court erred in issuing the injunction for the further
reason that, since the relief sought was to enjoin an order of the
Commission, it could be granted only by a court of three
judges.
The decree of the district court was properly reversed, but we
are of opinion that the circuit court of appeals had no occasion to
pass upon the merits of the controversy, and that the direction
should have been to dismiss the bill for want of jurisdiction and
without prejudice. The rule of the railroad here complained of was
that prescribed by the Commission. To that rule the railroad was
bound to conform unless relieved by the Commission or enjoined from
complying with it by decree of a court having jurisdiction. By this
suit, such a decree was, in effect,
Page 258 U. S. 382
sought. The appellate court was therefore correct in holding
that in such a suit an injunction of the district court could be
granted only by three judges.
But there are, in addition, two fundamental objections to the
jurisdiction: first, the United States, an indispensable party to
suits to restrain or set aside orders of the Commission, was not
joined, and could not be, for it has not consented to be sued in
state courts. Secondly, such suits are required to be brought in a
federal district court. Judicial Code, §§ 208, 211; Act Oct. 22,
1913, c. 32, 38 Stat. 208, 219;
Illinois Central R. Co. v.
Public Utilities Commission, 245 U. S. 493,
245 U. S. 504;
State ex rel. Lemke v. Chicago & Northwestern Railway
Co., 257 U. S. 485;
Texas v. Interstate Commerce Commission, ante,
258 U. S. 158. The
fact that this was a suit to set aside an order of the Commission
did not appear on the face of the bill; but it became apparent as
soon as the motion to dismiss was filed. Jurisdiction cannot be
effectively acquired by concealing for a time the facts which
conclusively establish that it does not exist. As the state court
was without jurisdiction over either the subject matter or the
United States, the district court could not acquire jurisdiction
over them by the removal. The jurisdiction of the federal court on
removal is, in a limited sense, a derivative jurisdiction. If the
state court lacks jurisdiction of the subject matter or of the
parties, the federal court acquires none, although it might, in a
like suit originally brought there, have had jurisdiction.
Courtney v. Pradt, 196 U. S. 89,
196 U. S. 92;
American Well Works v. Layne, 241 U.
S. 257,
241 U. S.
258.{3} To the situation here presented,
Page 258 U. S. 383
cases like
Healy v. Sea Gull Specialty Co.,
237 U. S. 479,
relied upon by appellant, have no application. For, while it is
true that a plaintiff, by his first pleading, determines what right
he will sue on and that the defenses, set up either anticipatorily
by him or in due course by the defendant cannot affect the
jurisdiction when it depends on that right, yet the plaintiff may
not, by alleging a frivolous claim or a fictitious situation,
confer upon a court jurisdiction which, as determined by the
plaintiff's real cause of action, it has not.
The Fair v.
Kohler Die Co., 228 U. S. 22,
228 U. S. 25.
And the vital interest of the United States was one which the
plaintiff could neither ignore nor prejudice by indirection.
Compare International Postal Supply Co. v. Bruce,
194 U. S. 601;
Naganab v. Hitchcock, 202 U. S. 473;
Goldberg v. Daniels, 231 U. S. 218;
Louisiana v. McAdoo, 234 U. S. 627. The
district court should therefore have dismissed the bill as soon as
it became apparent that the suit was one to set aside an order of
the Commission.
Robinson v. Anderson, 121 U.
S. 522;
Excelsior Wooden Pipe Co. v. Pacific Bridge
Co., 185 U. S. 282,
185 U. S. 287;
Devine v. Los Angeles, 202 U. S. 313,
202 U. S. 338.
And the circuit court of appeals, in remanding the cause to the
district court, should have directed a dismissal for want of
jurisdiction and without prejudice.
Decree modified and affirmed.
MR. JUSTICE CLARKE took no part in the decision of this
case.
See also Rail & River Coal Co. v. Baltimore &
Ohio R. Co., 14 I.C.C. 86; Hillsdale Coal & Coke Co. v.
Pennsylvania R. Co., 19 I.C.C. 356; In re Irregularities in Mine
Ratings, 25 I.C.C. 286; Coal & Oil Investigation, 31 I.C.C.193,
217; In re Assignment of Freight Cars, 57 I.C.C. 760; Southern
Appalachian Coal Operators' Association v. Louisville &
Nashville R. Co., 58 I.C.C. 348;
Corona Coal Co. v. Southern
Ry. Co., 266 F. 726.
"8. Private cars and cars placed for railroad fuel loading in
accordance with the decisions of the Interstate Commerce Commission
in Railroad Commission of Ohio et al. v. H. V. Ry. Co., 12 I.C.C.
398, and Traer v. Chicago & Alton Railroad Co.
et al.,
13 I.C.C. 451, will be designated as 'assigned' cars. All other
cars will be designated as 'unassigned' cars."
"9. If the number of assigned cars placed at a mine during any
period, as provided in Rule 6, equals or exceeds the mine's
pro
rata share of the available car supply, it shall not be
entitled to any unassigned cars. The assigned cars, together with
the mine's requirements, will be eliminated, and the remainder of
the available car supply pro rated to the other mines, based on a
revised percentage by reason of such elimination."
"10. If the number of assigned cars placed at a mine during any
period, as provided in Rule 6, is less than its
pro rata
share, based on a revised percentage, it shall be entitled to
receive unassigned cars in addition thereto to make up its
pro
rata share."
See also Fidelity Trust Co. v. Gill Car Co., 25 F. 737,
738-740;
Swift v. Philadelphia, etc., R. Co., 58 F. 858,
861;
Summers v. White, 71 F. 106, 109;
Auracher v.
Omaha & St.L. R. Co., 102 F. 1, 2;
Crowley v. Southern
Ry. Co., 139 F. 851;
Zikos v. Oregon Ry. & Nav.
Co., 179 F. 893, 899;
R. J. Darnell, Inc. v. Illinois
Central R. Co., 190 F. 656, 658;
Philadelphia &
Reading Ry. Co. v. Sherman, 230 F. 814.