The Railway Labor Act confers upon the National Mediation Board
certain duties respecting mediation or arbitration of labor
controversies on railroad carriers subject to the Interstate
Commerce Act, with the proviso that the term "carrier" shall not
include any street, interurban, or suburban electric railway not
operating as a part of a general steam railroad system of
transportation, etc., and directs the Interstate Commerce
Commission, upon request of the Mediation Board or upon complaint
of any party interested, to determine after hearing whether any
line operated by electric power falls within the proviso.
Held:
1. That a decision of the Commission finding a railway not to be
a street, interurban, or suburban electric railway within the
meaning of the proviso was not an "order," either in form or in
substance, but a determination of fact, negative in character, and
not enforceable by the Commission or by the Board. Therefore it was
not reviewable under the Urgent Deficiencies Act of 1913. P.
303 U. S.
599.
Page 303 U. S. 597
2. The argument that the decision is reviewable as an "order"
under the Urgent Deficiencies Act because it fixes the status of
the carrier as subject to obligations of the Railway Labor Act,
willful failure to comply with which is made a misdemeanor, is
considered and rejected. P.
303 U. S.
601.
20 F. Supp. 1002 affirmed.
Appeal from a decree of a three-judge District Court dismissing
for want of jurisdiction a bill to set aside an alleged order of
the Interstate Commerce Commission.
MR. JUSTICE BRANDEIS delivered the opinion of the court.
The sole question for decision is whether the District Court had
jurisdiction of this controversy under the Urgent Deficiencies Act
of October 22, 1913. [
Footnote
1]
The Chicago South Shore & South Bend Railroad is an
interstate electric railway subject to the Interstate Commerce Act.
On August 9, 1934, the National Mediation Board requested the
Commission to determine whether that carrier fell within the
exemption from the scope of the Railway Labor Act, as amended June
21, 1934, 48 Stat. 1185, c. 691, § 1, 45 U.S.C. § 151. That act
confers upon the National Mediation Board certain duties in respect
to carriers by railroad subject to the Interstate Commerce Act,
with the following exception:
"
Provided, however, that the term 'carrier' shall not
include any street, interurban, or suburban electric railway
Page 303 U. S. 598
unless such railway is operating as a part of a general steam
railroad system of transportation, but shall not exclude any part
of the general steam railroad system of transportation now or
hereafter operated by any other motive power. The Interstate
Commerce Commission is hereby authorized and directed, upon request
of the Mediation Board, or upon complaint of any party interested,
to determine, after hearing, whether any line operated by electric
power falls within the terms of this proviso."
After due hearing had at which the South Shore introduced
evidence and filed its brief, the matter was argued orally before
the Commission, which, on February 14, 1936, made its report and
the following determination (214 I.C.C. 167, 173):
"We find that the line of the Chicago South Shore and South Bend
Railroad is not a street, interurban, or suburban electric railway
within the meaning of the exemption proviso in the first paragraph
of Section 1 of the Railway Labor Act, as amended June 21, 1934,
and it is therefore subject to the provisions of that act."
No order was entered thereon by the Commission.
Shannahan and Jackson, who had been appointed trustees of the
South Shore by the federal court of Northern Indiana, and had filed
their appearance in the proceeding, applied for a rehearing. An
order was entered denying the same. Thereupon, the trustees filed
this suit against the United States, invoking the jurisdiction of
the court under the Urgent Deficiencies Act of October 22, 1913, to
set aside the alleged order. They do not deny that the South Shore
is an interstate carrier subject to the jurisdiction of the
Commission, and that the act is constitutional. Their contention is
that:
"A correct application of the law to the undisputed facts leads
to the conclusion that the lines of the railroad of appellants are
an electric interurban railway under the
Page 303 U. S. 599
exemption proviso of the first division of Section 1 of the
Railway Labor Act, and that there is no substantial evidence to
support the conclusion and determination of the Commission."
The Commission intervened. Its answer and that of the United
States challenged the jurisdiction of the court on the ground that
the determination of the Commission was not an "order" within the
meaning of the Urgent Deficiencies Act. The case was heard before
three judges on the pleadings and evidence, and a decree was
entered dismissing the bill for want of jurisdiction, one judge
dissenting. 20 F. Supp. 1002. The Trustees appealed.
First. The function of the Commission is limited to the
determination of a fact. Its decision is not, even in form, an
order. It "had no characteristic of an order, affirmative or
negative."
United States v. Illinois Cent. R. Co.,
244 U. S. 82,
244 U. S. 89;
United States v. Atlanta, B. & C. R. Co., 282 U.
S. 522,
282 U. S.
527-528.
Compare Lehigh Valley R. Co. v. United
States, 243 U. S. 412,
243 U. S. 414.
But even if this difficulty is overlooked, others are insuperable.
The decision neither commands nor directs anything to be done. "It
was merely preparation for possible action in some proceeding which
may be instituted in the future."
United States v. Los Angeles
& S.L. R. Co., 273 U. S. 299,
273 U. S. 310.
The determination is thus not enforceable by the Commission; the
only action which could ever be taken on it would by by some other
body. It is as clearly "negative" as orders by which the Commission
refuses to take requested action.
United States v. Griffin,
ante, p.
303 U. S. 226.
[
Footnote 2] As such, it is not
reviewable under the Urgent Deficiencies Act.
Page 303 U. S. 600
Second. Moreover, the determination of the Commission
is not even a decision which the Mediation Board, by whom it was
sought, is empowered to enforce. The act confers upon the Board no
power over any carrier. It merely imposes upon the Board possible
duties in respect to interstate carriers by railroad not exempted
by the proviso. The Board's duties, in case of dispute between
carrier and employees, require it:
(1) To "promptly put itself in communication with the parties to
[the] controversy, and . . . use its best efforts, by mediation, to
bring them to agreement." When a dispute is settled through these
efforts, a mediation agreement is signed, and, should any question
arise subsequently regarding the meaning or application of such an
agreement, the Board is required, upon request of either party "and
after a hearing of both sides, [to] give its interpretation within
thirty days."
(2) If the mediating efforts prove unsuccessful, it is the
Board's duty to "at once endeavor as its final required action . .
. to induce the parties to submit their controversy to arbitration,
in accordance with the provisions of" the Act. If arbitration is
agreed upon, it may become the Board's duty to name a third
arbitrator if the two named by the parties fail to select him.
(3) If arbitration is refused and the dispute threatens
"substantially to interrupt interstate commerce to a degree such as
to deprive any section of the country of essential transportation
service," then the Board is required to notify the President.
(4) If, in selecting representatives to deal with the carriers,
disputes arise among employees as to what organization they desire
to represent them, it is the duty of the Board, on request of
either party, to investigate
Page 303 U. S. 601
and to certify in writing to the parties and to the carrier the
names of the individuals or organizations that have been designated
and authorized to represent the employees.
(5) If the National Railroad Adjustment Board undertakes
arbitration and it fails to select a referee, the Mediation Board
has the duty of doing so.
In order not to fail in the performance of these duties, the
Mediation Board had to satisfy itself whether the South Shore was a
railroad within the exemption proviso. To that end, it applied to
the Commission for its determination. If it had omitted to do so,
the application might have been made "upon complaint of any party
interested." The determination, whether applied for by the Board,
by a carrier, or by employees, is clearly not an order enforceable
within the meaning of the cases construing and applying the Urgent
Deficiencies Act. It is a decision on a controverted matter,
comparable to that considered in
United States v. Los Angeles
& Salt Lake R. Co., 273 U. S. 299, in
Great Northern Ry. Co. v. United States, 277 U.
S. 172, in
United States v. Atlanta B. & C. Ry.
Co., 282 U. S. 522, and
in
United States v. Griffin, ante, p.
303 U. S. 226,
which were held not to be subject to review under the Urgent
Deficiencies Act.
Third. The trustees argue that the determination of the
Commission is an affirmative "order, because it fixed for the first
time, by the only body authorized by law to do so, the status of
the carrier;" that, by fixing the status, the obligations of the
Railway Labor Act are fixed upon the carrier, and that willful
failure or refusal of any carrier to comply with certain of the
obligations is made a misdemeanor. [
Footnote 3]
Page 303 U. S. 602
Lehigh Valley R. Co. v. United States, supra, shows
that the determination of a status or similar matter is not action
subject to review under the Urgent Deficiencies Act even if
disregard of the determination may subject the carrier to criminal
prosecution. [
Footnote 4] The
Panama Canal Act, 37 Stat. 560, 566, § 11, prohibited, after July
1, 1914, any ownership by a railroad in any common carrier by water
where the railroad might compete with the water carrier; prescribed
a heavy penalty for any violation of the prohibition, and conferred
upon the Commission jurisdiction:
"to determine questions of fact as to the competition or
possibility of competition, after full hearing, on the application
of any railroad company or other carrier. Such application may be
filed for the purpose of determining whether any existing service
is in violation . . . of this section and pray for an order
permitting the continuance of any vessel or vessels already in
operation. . . ."
Thereupon in January, 1914, the Lehigh Valley filed with the
Commission a petition for a hearing on the question whether the
services of a steamboat line owned by it would be in violation of
the above section and for an extension of time. The Commission held
that, by virtue
Page 303 U. S. 603
of the arrangements found to exist, the railroad did or might
compete with its boat line, and dismissed the petition. This Court
held that the risk to which the railroad was left subject did not
come from the order, but from the statute which contained the
prohibition and provided a penalty; that therefore it was not an
affirmative order, and that the District Court was without
jurisdiction under the Urgent Deficiencies Act.
Compare also
Piedmont & Northern Ry. Co. v. United States, 280 U.
S. 469,
280 U. S.
476-477.
Fourth. Whether the determination of the Commission is
reviewable in a district court by some judicial procedure other
than that of the Urgent Deficiencies Act we have no occasion to
consider.
Compare United States v. Griffin, supra, and
Lehigh Valley R. Co. v. United States, supra. [
Footnote 5]
Affirmed.
MR. JUSTICE CARDOZO took no part in the consideration or
decision of this case.
[
Footnote 1]
Chapter 32, 38 Stat. 208, 219, 220, 28 U.S.C. §§ 41(28), 46,
47.
[
Footnote 2]
See also Procter & Gamble Co. v. United States,
225 U. S. 282;
Hooker v. Knapp, 225 U. S. 302;
Lehigh Valley R. Co. v. United States, 243 U.
S. 412,
243 U. S. 414;
Manufacturers' Ry. Co. v. United States, 246 U.
S. 457,
246 U. S.
482-483;
Atchison, T. & S.F. Ry. Co. v. United
States, 279 U. S. 768,
279 U. S. 781;
Piedmont & No. Ry. Co. v. United States, 280 U.
S. 469,
280 U. S.
475-477;
Standard Oil Co. v. United States,
283 U. S. 235,
283 U. S. 238;
United States v. Corrick, 298 U.
S. 435,
298 U. S.
438.
[
Footnote 3]
45 U.S.C. § 152(10). That declares:
"The willful failure or refusal of any carrier, its officers or
agents, to comply with the terms of the third, fourth, fifth,
seventh, or eighth paragraph of this section shall be a
misdemeanor."
The third paragraph prohibits interference, influence, or
coercion in the designation of representatives. The fourth assures
the right of employees to bargain collectively through
representatives of their own choosing, and forbids carriers to
maintain or financially assist any labor organization. The fifth
prohibits carriers from requiring any person seeking employment to
sign any contract to join or not to join a labor union. The seventh
prohibits carriers from changing rates of pay, rules or working
conditions of employees as a class except as prescribed in § 156.
The eighth requires carriers to notify its employees by printed
notices in such form as shall be specified by the Mediation Board
that all disputes will be handled in accordance with the
requirements of the act.
[
Footnote 4]
For details,
see opinion of the District Court for
Eastern Pennsylvania, 234 F. 682.
[
Footnote 5]
In
Utah-Idaho Cent. Ry. v. Shields (unreported), D.
Utah, Oct. 15, 1936, and in
Hudson & Manhattan Ry. Co. v.
Hardy, 22 F. Supp. 105 (where jurisdiction under the Urgent
Deficiencies Act was specifically denied), the electric railways
involved were declared in proceedings before single judges to be
within the proviso excluding them from the application of the act,
and final injunctions against prosecution for penalties were
granted, although the Interstate Commerce Commission, in Utah-Idaho
Central Railroad Co., 214 I.C.C. 707, and Hudson & Manhattan R.
Co., 216 I.C.C. 745, respectively, had reached the opposite
conclusion. In
Texas Electric Ry. v. Eastus (unreported),
N.D.Tex. June 4, 1936, a preliminary injunction was likewise
granted in spite of the Commission's decision in Texas Electric
Ry., 208 I.C.C.193. From informal sources it has been learned that
similar proceedings have been instituted in other cases.
Chicago Warehouse & Term. Co. v. Igoe, and
Chicago
Tunnel Co. v. Igoe, to review 214 I.C.C. 81;
Hudson &
Manhattan Ry. v. Quinn, to review 216 I.C.C. 745;
New
York, W. & B.R. Co. v. Hardy, S.D.N.Y. to review 218
I.C.C. 253.