STEPHENS, Associate Justice (dissenting).

This is an appeal from an order of the District Court of the United States for the District of Columbia dismissing the complaint of the appellant. The complaint was for a declaration, under the powers given United States courts by the Declaratory Judgments Act (Act of June 14, 1934, 48 Stat. 955, as amended by Act of August 30, 1935, 49 Stat. 1027), of the rights of the appellant and the appellees under a certain collective bargaining contract of February 1, 1923. The appellees, defendants below, filed an answer setting up three defenses. The first was that the complaint failed to state a cause of action, the second, that it did not state a cause of action appropriate for the granting of a declaratory judgment. The court below considered these two defenses as in the nature of a motion to dismiss and its dismissal of the complaint was upon such motion. In view of the disposition of the case on the first and second defenses, the third defense was not considered. The case is thus before the court upon the facts set forth in the complaint as admitted by the first two defenses treated as a motion to dismiss. These facts are set forth in detail in the margin. Stated in general and summary terms they are as follows:

The appellant is a corporation which since 1907 has operated the Union Passenger Station, including an adjacent railroad yard and tracks, hereinafter sometimes called the Terminal, in Washington, District of Columbia. The appellees are enginemen and firemen employed by the appellant who operate switch engines over the tracks in the yards. These yards and tracks and the passenger station are facilities used by the Pennsylvania Railroad Company, the Baltimore and Ohio Railroad Company, the Southern Railway Company, the Richmond, Fredericksburg Potomac Railroad Company, and the Chesapeake and Ohio Railway Company — called the Tenant Lines — operating passenger trains from points outside of Washington to Washington, from Washington to points outside, and from points outside through Washington to other points outside. In addition to the movement of loaded passenger trains into, out of, and through the Terminal, certain other train or car movements — the right to make which is involved in this case — have since 1907 taken place and now take place over the tracks of the appellant: Empty passenger trains which have discharged their passengers at the station are moved to the storage yard; trains of empty passenger cars are moved from the storage yard to the station for the purpose of taking on passengers and leaving for their destination; where trains of passenger cars have come into the station one or more cars are sometimes cut off from the head end of the train and removed in a single movement to some designated track; where a train of passenger cars is standing in the station before departure one or more cars are sometimes moved from another track against the head end of such train and coupled on to form a part of the train on its journey over the road; when trains of passenger cars have come into the station and discharged their passengers, the empty trains are sometimes moved a sufficient distance to permit the road engine which has brought the train into the station to be uncoupled from the train and proceed by a cross-over movement to another track. Many movements of the kinds just described are and always have been, since the commencement of operation of the Terminal in 1907, performed (where in the judgment of the managing officers of the appellant efficiency or promptness in the operation of the Terminal is thereby promoted) by the use of the road engine which has brought the train into the station or is about to haul the train to its destination, incidental to the movement of the road engine between the station and the enginehouse. In making such movements the road engine is and always has been manned by the road engine crew which is required as a part of its duties to deliver the road engine to the enginehouse at the end of a run and to bring the road engine from the enginehouse to the station at the beginning of a run. The road engine crews are employees of the Tenant Lines.

On February 1, 1923, the yard enginemen and firemen, employees of the appellant, acting through the Brotherhood of Locomotive Engineers and the Brotherhood of Locomotive Firemen and Enginemen as collective bargaining representatives, entered into a seniority agreement defining the terms of employment of enginemen and firemen. This superseded several previous agreements on the same subject. After the passage of the Railway Labor Act of 1934 (Act of June 21, 1934, 48 Stat. 1185), which set up a National Railroad Adjustment Board, hereinafter sometimes called the Board, for the adjustment of disputes between carriers and their employees, the appellant's employees asserted that under the agreement of February 1, 1923, they were entitled to perform the train movements above described as involved in this case. The appellant rejected the claim. Thereafter the employees carried the dispute, as under the Railway Labor Act they might, to the Board, to which they submitted their claim in writing; and the appellant, as it was obliged to do under the statute, separately stated its contentions to the contrary of the claim. The Board, acting through its First Division of ten members, dead-locked, but, upon the selection of a referee as an eleventh member, it made an award on October 24, 1938, to the effect that the appellant's employees were entitled to perform the train movements in question. This award was made effective by an order of the Board of the same date. Except as the separate submissions filed with the Board may be regarded as such, the Board in considering the dispute received no pleadings or evidence and permitted no cross-examination; and it allowed no argument, written or oral, before the referee.

The appellant has never changed its operating practices to conform to the award. The Railway Labor Act authorizes a proceeding to enforce the award and order to be brought in an appropriate United States District Court by the persons for whose benefit the award was made, within two years from the time the cause of action accrues under the award. No such suit had been brought by the employees at the time of the filing of the instant action on December 29, 1938. Nevertheless, the employees, shortly after the date of the award and order of October 24, 1938, to wit, on November 23, following, made demands — and they continue to make such demands — upon the appellant for moneys alleged to be due them for the train movements in question although, since the appellant has not changed its operating practices, the employees do not actually perform these train movements. These demands amount for the period from November 23, 1938, to the date of filing the complaint to approximately $7,500, and they are accumulating at the rate of $80,000 per annum. The continuance of these demands and of the controversy concerning them may interrupt performance of the appellant's duty to serve the public. This action was filed by the appellant in the United States District Court to obtain a declaratory judgment of the rights and relations of the appellant and the appellees under the seniority agreement of February 1, 1923 — the appellant contending that the appellees have no right to the work in question under that agreement or otherwise and that the award purporting to confer any such right is invalid, and asserting that it has no other adequate remedy, that the enforcement proceeding is not such so far as a carrier is concerned.

But the question immediately involved in this appeal is not what are the rights of the parties under the contract. It is, broadly stated, whether or not a carrier, party to a collective bargaining agreement with its employees, may obtain a judgment in a United States District Court declaring the rights of the parties to the agreement, notwithstanding that a dispute arising out of the interpretation of the agreement has, at the instance of the other party, the employees, been submitted to the National Railroad Adjustment Board and made the subject of an award and order by the Board in the employees' favor. I think that the carrier is entitled to such a judgment.

I

The Federal Declaratory judgments Act provides, so far as immediately pertinent:

"(1) In cases of actual controversy except with respect to Federal taxes the courts of the United States shall have power upon petition, declaration, complaint, or other appropriate pleadings to declare rights and other legal relations of any interested party petitioning for such declaration, whether or not further relief is or could be prayed, and such declaration shall have the force and effect of a final judgment or decree and be reviewable as such." [Act of June 14, 1934, 48 Stat. 955, as amended by Act of August 30, 1935, 49 Stat. 1027.]

The facts stated in the appellant's complaint and admitted by the motion to dismiss constitute an orthodox cause for declaratory relief. From them there appears the existence of a dispute between the appellant and the appellees concerning the meaning of an agreement to which they are parties. The appellees have presented claims to the appellant for money — the theory of the claims being that the contract of February 1, 1923, entitled them to do certain work; the appellant contends that the contract does not entitle them to do that work. The demands of the appellees are made under the contract, not under the award or order of the Board. This was conceded by the appellees in the court below. Thus the complaint is one for declaration of "rights and other legal relations" of the parties to a contract. And the case is one of "actual controversy." It is "definite and concrete, touching the legal relations of parties having adverse legal interests." Ætna Life Ins. Co. v. Haworth, 1937, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617, 108 A.L.R. 1000. It is "a real and substantial controversy admitting of specific relief under a decree of a conclusive character." Idem. Cf. also Maryland Casualty Co. v. Pacific Oil Coal Co. and Joe Orteca, 1941, 312 U.S. 270, 61 S.Ct. 510, 85 L.Ed. 826. Under the facts stated, daily demands for money are being made by the appellees under the contract, and refusal of payment is being made by the appellant; and the continuance of the controversy without adjudication is an impediment to the fulfillment of the appellant's duty to serve the public which may interrupt performance of that duty.

Moreover, under the facts, the appellant is obliged, in the absence of a declaratory judgment, to maintain moneys in large sums to pay the appellees' demands if ultimately held liable therefor, and as these are accumulating each day for each employee for the day's wages for work not performed, the appellant must either have to pay the full accumulation of these demands, if eventually held liable therefor, or waive its rights once for all and immediately change its operating practices at greater expense and less efficiency; but if the appellant is presently advised of its duties, it could if necessary now change its operating practices and thus save the heavy penalty payments being demanded. In Ætna Life Ins. Co. v. Haworth, supra, the mere increase in the amount of insurance policy claims through the accrual of interest, and the inconvenience of having to be prepared to meet the claims at some future time, were held sufficient grounds for declaratory relief in respect of legal rights and obligations arising under insurance contracts. A fortiori the uncertainties and hazards to which the appellant under the facts stated in the instant case is subjected are sufficient to invoke exercise of declaratory jurisdiction. In E. Edelmann Co. v. Triple-A Speciality Co., 7 Cir., 1935, 88 F.2d 852, 854, Lindley, District Judge, speaking for the court, said, in respect of the purpose of the Declaratory Judgments Act:

". . . It was the congressional intent to avoid accrual of avoidable damages to one not certain of his rights and to afford him an early adjudication without waiting until his adversary should see fit to begin suit, after damage had accrued. . . .

This statement is borne out by the legislative history of the Act. The Judiciary Committee of the Senate, in recommending its passage, said:

"It enables disputes arising out of written instruments, or otherwise, to be adjudicated without requiring a destruction of the status quo and of the social and economic fabric. Experience has shown that a dispute can be adjudicated as effectively, if not more usefully, before the status quo has been destroyed." [Sen. Rep. No. 1005, 73rd Cong., 2d Sess., 1934]

In Borchard on Declaratory Judgments (1934), the leading text on the subject, it is stated that one of the important functions of declaratory judgment statutes is to afford an opportunity for determination of rights and liabilities under contracts. The author says (p. 405):

". . . The opportunity to adjudicate such disputes without disruption of the relations between the parties, whether before or after purported breach, has demonstrated the utility and efficacy of the declaratory action, for it has enabled the parties to weather the storm of dispute without wrecking their legal craft and, on the contrary, to continue on the course with a clearly defined chart. Especially in long-term contracts has this proved an exceptional advantage, for it must be conceded that the traditional method of suing for damages on the first suggestion of breach frequently makes the continuation of the relation impossible. . . ."

And see 16 American Jurisprudence 305, § 31, to the same effect.

Presumably declaratory judgment actions concerning contracts have in the majority of instances had to do with business contracts. But the suitability of declaratory relief for the determination of rights and liabilities under collective bargaining agreements is not to be doubted; it is indeed especially appropriate because of the public interest indirectly affected by such agreements. And both before and since the enactment of the Railway Labor Act of 1934 the courts have entertained proceedings for declaratory judgments as an appropriate remedy in respect of disputes arising out of agreements between carriers and their employees. See Piercy v. Louisville N.R. Co., 1923, 198 Ky. 477, 248 S.W. 1042, 33 A.L.R. 322; Burton v. Oregon-Washington R. Nav. Co., 1934, 148 Or. 648, 38 P.2d 72; Louisville N.R. Co. v. Bryant, 1936, 263 Ky. 578, 92 S.W.2d 749.

Since the appellant's complaint thus states a case appropriate for the exercise of the declaratory judgment jurisdiction of a United States District Court, and since under the due process clause of the Fifth Amendment to the Constitution the courts are open to all who present a controversy which is the proper subject of judicial action, it follows necessarily that the trial court should not have dismissed the appellant's complaint unless some expression of Congressional intent, some principle or policy of law of which Congress must be said to have known, some necessary implication of statutory language, or of legislative history, forbade exercise of the jurisdiction. The question is one of Congressional intent. Was it the intent of Congress that the declaratory judgment jurisdiction of the District Courts should not be exercised under the circumstances of the instant case?

II

No language of Congress in the Declaratory Judgments Act expressly excepts any cases of actual controversy, save those with respect to Federal taxes, from the jurisdiction of the District Courts to declare rights and other legal relations. No language of the Railway Labor Act of 1934 expressly forbids exercise of the declaratory judgment jurisdiction of the District Courts in respect of disputes arising out of collective bargaining agreements between carriers and their employees, or expressly vests in the District Courts, in the judicial enforcement proceedings provided for by paragraph (p) of Section 3 of the Labor Act, exclusive jurisdiction to determine or adjudicate the rights under such a collective bargaining agreement. One must therefore look to principles or policies of law, implications of statutory language, and legislative history, for an answer to the question in the case.

III

Declaratory relief is not new. It dates — so far as Anglo-American legal history alone is concerned — from several centuries ago in Scotland and from the middle of the nineteenth century in England. There was a declaratory judgments statute in Rhode Island in 1876, in Maryland in 1888, in New Jersey in 1915; and by 1934, the year in which the Federal act was passed, some thirty-four American states and territories had adopted declaratory judgments acts. See Borchard, op. cit. supra, 237-245. In the course of the growth of declaratory judgments law, principles or policies of limitation were judicially recognized; and it is to be assumed that Congress, in passing the Federal act, intended that the exercise of jurisdiction for declaratory relief should be subject to such limitations of principle or policy as had prior to the passage of the Act been judicially recognized. The appellees urge as one such limiting principle or policy that a remedy by declaratory judgment cannot be invoked as a substitute for any special statutory proceeding. This is put by Borchard, 156-7, thus:

"Where . . . a special statutory method for the determination of the particular type of case has been provided, it is not proper to permit that issue to be tried by declaration. This would amount to ousting of its jurisdiction a statutory court prescribed for the particular case, and it was not intended that a declaration should be employed for such a purpose. This, however, is quite different from refusing a declaration merely because a general or common-law remedy might have been invoked."

To similar effect see 16 American Jurisprudence 295, § 21. Does the Railway Labor Act of 1934 provide a special statutory method or prescribe a statutory tribunal for the determination of the particular type of case presented in the appellant's complaint — with the effect of forbidding declaratory relief?

The Railway Labor Act of 1934 includes within its enumerated purposes that of providing "for the prompt and orderly settlement of all disputes growing out of grievances or out of the interpretation or application of agreements covering rates of pay, rules, or working conditions." To this end the Act provides in substance and effect as follows: It is the duty of carriers and their employees to exercise every reasonable effort to make and maintain agreements concerning rates of pay, rules and working conditions, and to settle all disputes whether arising out of application of such agreements or otherwise, in order to avoid interruption to commerce or to the operation of a carrier. All disputes between a carrier and its employees are to be considered and if possible decided in conferences between representatives designated and authorized so to confer by the carrier and employees interested in the dispute respectively. The Act further states:

"The disputes between an employee or group of employees and a carrier or carriers growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions, including cases pending and unadjusted on the date of approval of this Act, shall be handled in the usual manner up to and including the chief operating officer of the carrier designated to handle such disputes; but, failing to reach an adjustment in this manner, the disputes may be referred by petition of the parties or by either party to the appropriate division of the Adjustment Board with a full statement of the facts and all supporting data bearing upon the disputes. [Section 3(i)]"

The Act then sets up an Adjustment Board, composed as a whole of thirty-six members, eighteen selected by the carriers and eighteen by the national labor organizations of the employees, each member to be compensated by the party or parties he is to represent. The Board is composed of four divisions. The first (with which we are here concerned) has jurisdiction over disputes involving train and yard service employees of carriers, and consists of ten members, five designated by the carriers and five by the national labor organizations of the employees from the membership of the full Board. Upon failure of any division to agree upon an award because of a deadlock or inability to secure a majority vote of the division members, such division is forthwith to agree upon and select a neutral person to be known as "referee" to sit with the division as a member and make an award. Should the division fail to agree upon and select a referee within ten days of the date of the deadlock, a referee is to be selected and named by the National Mediation Board — which also fixes and pays the compensation of the referee. The awards of the several divisions of the Adjustment Board are to be stated in writing and a copy furnished the respective parties to a controversy; and the awards are made "final and binding upon both parties to the dispute, except insofar as they shall contain a money award." The Act provides that in case an ward is made in favor of a petitioner, the division of the Board making it shall also make an order directed to the carrier to make the award effective and, if the award includes a requirement for the payment of money, to pay to the employee the sum to which he is entitled on or before a day named. Finally, the Act provides:

"If a carrier does not comply with an order of a division of the Adjustment Board within the time limit in such order, the petitioner, or any person for whose benefit such order was made, may file in the District Court of the United States for the district in which he resides or in which is located the principal operating office of the carrier, or through which the carrier operates, a petition setting forth briefly the causes for which he claims relief, and the order of the division of the Adjustment Board in the premises. Such suit in the District Court of the United States shall proceed in all respects as other civil suits, except that on the trial of such suit the findings and order of the division of the Adjustment Board shall be prima facie evidence of the facts therein stated, and except that the petitioner shall not be liable for costs in the district court nor for costs at any subsequent stage of the proceedings, unless they accrue upon his appeal, and such costs shall be paid out of the appropriation for the expenses of the courts of the United States. If the petitioner shall finally prevail he shall be allowed a reasonable attorney's fee to be taxed and collected as a part of the costs of the suit. The district courts are empowered, under the rules of the court governing actions at law, to make such order and enter such judgment, by writ of mandamus or otherwise, as may be appropriate to enforce or set aside the order of the division of the Adjustment Board. [Section 3(p)]

"All actions at law based upon the provisions of this section shall be begun within two years from the time the cause of action accrues under the award of the division of the Adjustment Board, and not after. [Section 3(q)]"

It thus appears that within the literal terms of the limiting principle as stated in the text of Borchard and American Jurisprudence, supra, the Congress has in the Labor Act provided a special statutory method and prescribed a statutory tribunal for the determination of the type of dispute involved in the instant case. And it is urged by the appellees that it is not proper to permit the instant dispute, because it is of the type referred to in the statute, to be made the subject of declaratory relief.

But an examination of the authorities cited by the two texts as evidencing the existence of this limiting principle demonstrates that by a "special statutory method" and a "statutory court prescribed" is meant an exclusive procedure or court. See Moore v. Louisville Hydro-Electric Co., 1928 226 Ky. 20, 10 S.W.2d 466; Mayor of Devonport v. Tozer, 1902, 2 Chancery 182; Smeeton v. Attorney-General, 1920, 1 Chancery 85; Flint v. Attorney-General, 1917, 1 Chancery 216; Haan v. Haan, 1928, 133 Misc. 197, 231 N.Y.S. 58; Mutrie v. Alexander, 1911, 23 Ont.L.R. 396; N.Y. O. Ry. Co. v. Township of Cornwall, 1913, 29 Ont.L.R. 522; Wight v. Board of Education, 1926, 99 N.J. Eq. 843, 133 A. 387; Union Trust Co. v. Georke Co., 1928, 103 N.J. Eq. 159, 142 A. 560 (modified, in other respects, in 1929, 105 N.J. Eq. 190, 147 A. 439). And scrutiny of the authorities cited by these two texts also demonstrates certain grounds of decision which may be the necessary basis of distinction in respect of the instant case. Thus the following involve rights and liabilities not derived from the common law but from statute: Moore v. Louisville Hydro-Electric Co.; Mayor of Devonport v. Tozer; Smeeton v. Attorney-General; Flint v. Attorney-General; and Haan v. Haan, supra. In the following declaratory relief was refused upon the ground of the existence of another adequate remedy: Oldham County ex rel. Wooldridge, County Attorney, v. Arvin, County Road Engineer, 1932, 244 Ky. 551, 51 S.W.2d 657; Grand Junction Waterworks Company v. Hampton Urban District Council, 1898, 2 Chancery 331; Washington-Detroit Theater Co. v. Moore, 1930, 249 Mich. 673, 229 N.W. 618, 68 A.L.R. 105; Stenzel v. Kronick, 1929, 102 Cal.App. 507, 283 P. 93; G. Goldberg Sons v. Gilet Bldg. Corp., 1929, 135 Misc. 158, 237 N.Y.S. 258; In re Sterrett's Estate, 1930, 300 Pa. 116, 150 A. 159; Kaaa v. Waiakea Mill Co., 1926, 29 Haw. 122; Ætna Life Ins. Co. v. Richmond, 1927, 107 Conn. 117, 139 A. 702; and Kimmell's Appeal, 1929, 96 Pa. Super. 488 . And in the following declaratory relief was refused because the subject of the dispute was either pending in another action or was res judicata: Proctor v. Avondale Heights Co., 1923, 200 Ky. 447, 255 S.W. 81; State v. Board of Com'rs of Wyandotte County, 1924, 117 Kan. 151, 230 P. 531; Leafgreen v. La Bar, 1928, 293 Pa. 263, 142 A. 224; and Shearer v. Backer, 207 Ky. 455, 269 S.W. 543.

Cases especially cited by the appellees in support of the limiting principle above stated also variously deny declaratory relief for reasons similar to those above set forth: City of Erie v. Phillips, 1936, 323 Pa. 557, 187 A. 203, and Bell Telephone Co. v. Lewis, 1934, 313 Pa. 374, 169 A. 571, are rulings in terms of the proposition that a proceeding for a declaratory judgment will not be entertained where another statutory remedy has been specially provided for the character of case in hand. Petition of Kariher, 1925, 284 Pa. 455, 131 A. 265, contains a dictum to the same effect. But there was a special statute in Pennsylvania which governed the decision in these cases. Act of March 21, 1806, P.L. 558, 559, 4 Smith's Laws, pp. 326, 332 (46 P.S.Pa. § 156). That act provided in Section 13: "In all cases where a remedy is provided, or duty enjoined, or anything directed to be done by any act or acts of assembly of this commonwealth, the directions of the said acts shall be strictly pursued, and no penalty shall be inflicted, or anything done agreeably to the provisions of the common law, in such cases, further than shall be necessary for carrying such act or acts into effect." And it has been held in Pennsylvania that, by reason of the operation of this act, where a remedy or method of procedure is provided by statute it is exclusive. Ermine v. Frankel, 1936, 322 Pa. 70, 185 A. 269; White v. Old York Road Country Club, 1935, 318 Pa. 346, 178 A. 3; In re Stetson's Estate, 1931, 305 Pa. 62, 155 A. 856. Thus the statutory remedies, the existence of which were the foundation for the refusal of declaratory relief in Petition of Kariher, City of Erie v. Phillips, and Bell Telephone Co. v. Lewis, were necessarily exclusive. In McCalmont v. McCalmont, 1928, 93 Pa. Super. 203, there was an attempt to secure a declaratory judgment annulling a marriage. The Pennsylvania legislature had prescribed detailed procedural requirements necessary to be followed for divorce and annulment. Declaratory relief was therefore refused upon the ground that the statutory remedy was exclusive and that the safeguards thereof to the interests of the state were not to be swept away by the Pennsylvania declaratory judgments act. In Ætna Casualty Surety Co. v. Quarles, 4 Cir., 1937, 92 F.2d 321, the refusal of a declaratory judgment was upon the ground that there was another action pending involving the same issue, and upon the further ground that the declaratory judgment sought would not dispose of the entire controversy. Young v. Bridges, 1933, 86 N.H. 135, 165 A. 272, Stewart v. Herten, 1933, 125 Neb. 210, 249 N.W. 552, and Moore v. Louisville Hydro-Electric Co. (already briefly commented upon), again illustrate the proposition that by "special statutory remedy" is meant an exclusive remedy. In Young v. Bridges there was an attempt in a court of general jurisdiction to obtain a declaratory judgment as to the inheritance of personal estate. Jurisdiction to determine such inheritance had been committed to a probate court. In Stewart v. Herten it was sought to obtain by declaratory judgment a direction for a united corporate guardianship. The county courts in Nebraska had by statute exclusive jurisdiction in guardianship proceedings. These two cases recognize that declaratory judgment statutes do not enlarge judicial jurisdiction in the substantive sense, but only procedurally. This is of course correct, and was recognized in Ætna Life Ins. Co. v. Haworth, and Ætna Casualty Surety Co. v. Quarles, both cited supra. In Moore v. Louisville Hydro-Electric Co. declaratory relief in respect of rights under a Workmen's Compensation statute was refused upon the ground that declaratory judgment procedure did not supplant that of the Workmen's Compensation Board upon which the legislature of Kentucky had conferred exclusive jurisdiction in respect of industrial injuries.

It is urged by the appellees as a further limitation upon the exercise of declaratory judgment jurisdiction that it may not be used as a means for the review of administrative orders. Such a limitation is phrased by Borchard, op. cit. supra, 181, thus:

". . . The declaratory action is not a substitute for a new trial, or an appeal from a former judgment deciding identical issues or issues which the court believes were passed upon."

In 16 American Jurisprudence 295-296, § 23, the limitation is more explicitly stated as follows:

"Questions already adjudicated by a court having jurisdiction of the subject matter and the parties cannot thereafter be the subject, between such parties and their privies, of an actual controversy within the meaning of this term in the Declaratory Judgments Act. The act is not intended to be used to elucidate or interpret judicial decrees or judgments already entered or to modify or declare rights thereunder. Hence, a declaratory judgment proceeding is not an appropriate method of obtaining the vacation of a judgment; and it would be entirely beyond the purpose and scope of the statute as well as contrary to fundamental principles for a court to attempt, in such a proceeding, to review and determine the validity of a judgment of a court of co-ordinate jurisdiction."

These statements are correct. But an examination of the authorities upon which they rest makes clear that they apply only where the prior judgment has been rendered by a judicial or at least quasi-judicial body. See: Shearer v. Backer, supra; Back's Guardian v. Bardo, 1930, 234 Ky. 211, 27 S.W.2d 960; Ladner v. Siegel, 1928, 294 Pa. 368, 144 A. 274; Williamsport v. Williamsport Water Co., 1930, 300 Pa. 439, 150 A. 652; Trustees of Columbia University v. Kalvin, 1929, 226 App. Div. 775, 235 N YS. 4. This is made clear also by a reading of the cases especially cited by the appellees in this particular connection (which include Back's Guardian v. Bardo, just mentioned). In Back's Guardian v. Bardo an action had been filed by an executor to sell certain real estate, to secure an order construing a will, and for partition of property, and a judgment had been rendered granting the relief prayed for. Subsequently, a declaratory judgment suit was brought by one of the parties. This suit propounded certain questions relating "to the construction of the will and the regularity of the partition proceedings in the prior action brought for that purpose, and to the proper distribution of the estate." Declaratory relief was refused upon the ground that "The purpose of the [Kentucky] Declaratory Judgment Act was to have a declaration of rights not theretofore determined, and not to determine whether rights theretofore adjudicated had been properly adjudicated." But the prior adjudication had been by a validly constituted judicial tribunal, the Circuit Court of Campbell County, Kentucky. In Ferree v. Ferree, 1938, 273 Ky. 238, 115 S.W.2d 1055, Back's Guardian v. Bardo was followed in a ruling that a declaratory judgment proceeding was not to be availed of to pronounce void a divorce and alimony decree with incidental disposition of lands. But again the decree had been rendered by a validly constituted court exercising judicial powers, the Circuit Court of Hardin County, Kentucky. In Grooms v. Grooms, 1928, 225 Ky. 228, 7 S.W.2d 863, infants, through a next friend, attempted to attack by a declaratory judgment proceeding a prior judgment rendered in another court authorizing the sale of their property. The Court of Appeals of Kentucky, ruling that the previous judgment was voidable only, not void, held that it could not be collaterally attacked in a declaratory judgment proceeding. Here again the prior judgment had been rendered in a tribunal of competent jurisdiction exercising judicial power, the Greenup County Circuit Court. In Kings County Trust Co. v. Melville, 1926, 127 Misc. 374, 216 N.Y.S. 278, a declaration as to the validity of a lease was refused where the lease had already been authorized by the judgment of a competent court, to wit, the Supreme Court of Kings County, New York. In Haan v. Haan, more briefly referred to supra, a petition was filed for a declaration that the infant plaintiff was the illegitimate child of the defendant and as such entitled to support. The petition was refused because in New York proceedings relating to a child born out of wedlock were within the special jurisdiction of the Court of Special Sessions of the City of New York, where a determination had already been had, which determination, never having been reversed, was held res judicata.

In Central High School Athletic Association v. City of Grand Rapids, 1936, 274 Mich. 147, 264 N.W. 322, also cited by the appellees, the Supreme Court of Michigan affirmed the action of the Superior Court of Grand Rapids, in Chancery, which in the exercise of its discretion had declined to issue a declaratory judgment determining rights which had already been passed upon by a Board of Zoning Appeals. But in that case an ordinance, the competency of which was not questioned, had made the decision of this Board final so far as it involved discretion or the finding of facts; and the decision of the Board had involved the exercise of discretion. It is to be noted also that zoning boards have jurisdiction to determine a class of rights created by statute, rather than having source in the common law, and assigned for adjudication to such boards as special tribunals.

The foregoing discussion of cases thus indicates that declaratory relief may be refused upon any of the following five grounds: First, that the prior determination sought to be attacked by declaratory judgment is of a judicial or quasi-judicial nature; second, that the subject of dispute is pending in another action or is res judicata; third, that another remedy is adequate; fourth, that the rights and liabilities involved in the dispute and with which another tribunal is authorized to deal derive not from the common law but have statutory origin; fifth, that a "statutory court prescribed" for the determination of a particular type of case has been given by the sovereign exclusive jurisdiction.

I think it clear that the refusal of declaratory relief in the instant case cannot properly be based on any of the first four of such grounds. As to the first ground — that the prior determination is of a judicial or quasi-judicial nature — that does not exist in the instant case, for the Adjustment Board is not a tribunal which either in composition or procedure is of judicial or quasi-judicial nature; and it did not in the instant case render its award upon such a hearing as entitles the award to be considered as having been judicially arrived at. The Board is bi-partisan in composition, one-half of the members being selected and designated by and for the purpose of representing the carrier and paid by the carrier, and the other half by and for the purpose of representing the employees and paid by them. It was conceded by the appellees before the trial court — and the concession is a part of the record on appeal — that:

". . . The jurisdiction of the Board is to handle the dispute, not to make an interpretation of the agreement. The full significance of this distinction will be more apparent, we believe, when we consider the nature of the decision which the Board is empowered to make in relation to a dispute before it.

"The function of a court is to render a judgment between parties who are before it as litiigants. Such a judgment has the effect of establishing the parties' present rights. With their future relations the Court has no concern, save to supervise the enforcement of its decree if necessary. It is a matter of common knowledge that while the adversary character of the proceedings of the courts, and the uncompromising nature of their decrees are well adapted to the decision of cases, they are not conducive to the establishment of cordial relationships between the parties in the future.

"In this regard the National Railroad Adjustment Board performs a function entirely different from that of the courts. The parties before it, carrier and employees, are parties to a continuing relationship. The future of that relationship is a matter of prime concern to the Board. The handling of a present dispute may involve incidentally a consideration of present legal rights, but the Board's function is not to adjudicate as to the rights, but to adjust the dispute regarding them in such manner that the parties may in the future be enabled to conduct the business of interstate commerce without friction, and without interruption.[]

* * *

"Both in personnel and in organization this Board departs somewhat from traditional judicial concepts. Judicial tribunals are non-partisan and the litigant is protected in his cause by the impartiality of the judge. The Adjustment Board is bi-partisan rather than non-partisan, and one appearing before it is protected by the fact that half of its members are predisposed in his favor. If he can maintain this advantage and, in addition, secure the approval of one or more members whose natural predisposition is against him, his cause must surely be just and he will prevail.[]"

In the instant case, under the facts as pleaded and admitted by the motion to dismiss, when the dispute was before the Board there were no pleadings joining issue in the judicial sense of the term, but simply an ex parte submission by each side without reference to the submission of the other; no witnesses were called; no evidence was received except the ex parte submissions, if they may be called evidence, and these were without right of cross-examination; no record was made of the proceedings; the referee who cast the deciding vote in respect of the award considered no evidence except the ex parte submissions, and there was no argument before him, oral or written, by the parties or their representatives. The "findings" of the Board cannot properly be called findings of fact. The composition of the Board is in accordance with the statute, and the procedure is in accordance with the established practice of the Board as provided for by its rules. The procedure does not satisfy the definition of quasi-judicial procedure as outlined by the Supreme Court of the United States in Morgan v. United States, 1936, 298 U.S. 468, 480, 56 S.Ct. 906, 911, 80 L.Ed. 1288:

"There must be a full hearing. There must be evidence adequate to support pertinent and necessary findings of fact. Nothing can be treated as evidence which is not introduced as such. . . . Facts and circumstances which ought to be considered must not be excluded. Facts and circumstances must not be considered which should not legally influence the conclusion. Findings based on the evidence must embrace the basic facts which are needed to sustain the order. . . .

"A proceeding of this sort requiring the taking and weighing of evidence, determinations of fact based upon the consideration of the evidence, and the making of an order supported by such findings, has a quality resembling that of a judicial proceeding. Hence it is frequently described as a proceeding of a quasi-judicial character. The requirement of a `full hearing' has obvious reference to the tradition of judicial proceedings in which evidence is received and weighed by the trier of the facts. The `hearing' is designed to afford the safeguard that the one who decides shall be bound in good conscience to consider the evidence, to be guided by that alone, and to reach his conclusion uninfluenced by extraneous considerations which in other fields might have play in determining purely executive action. The `hearing' is the hearing of evidence and argument. If the one who determines the facts which underlie the order has not considered evidence or argument, it is manifest that the hearing has not been given."

In respect of the second ground of refusal of declaratory relief: The subject of dispute in the instant case, to wit, the meaning of the collective bargaining agreement, is not pending in another action and is not res judicata. It is not pending in another action because the award has been made, and no enforcement proceeding commenced. It is not res judicata because the award was not an adjudication of the legal rights and liabilities arising under the agreement. This is not disputed in this appeal, and the discussion just concluded demonstrates it.

As to the existence of another adequate remedy, the third ground for refusing declaratory relief: Assuming that there is a remedy under the Railway Labor Act adequate to protect the rights of the appellant carrier, under Rule 57 of the Rules of Procedure for the District Courts of the United States, 28 U.S.C.A. following section 723c, "The existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate." I discuss in topic IV (1) the question of adequacy of the remedy under the Railway Labor Act.

Concerning the fourth of the grounds above set forth as warranting refusal of declaratory relief: The rights and liabilities involved in the instant case do derive from the common law, that is to say, they are rights arising out of contract, not out of the Railway Labor Act. This is conceded in the instant case, as has been pointed out above, and is confirmed by the fact that before the Railway Labor Act of 1934 was passed, labor agreements of the character involved here were the subject of controversy in the courts under applicable principles of common law and equity and the courts took jurisdiction of their interpretation or enforcement. McGregor v. Louisville N.R. Co., 1932, 244 Ky. 696, 51 S.W.2d 953; Panhandle S.F. Ry. Co. v. Wilson, Tex.Civ.App. 1932, 55 S.W.2d 216; Gregg v. Starks, 1920, 188 Ky. 834, 224 S.W. 459; Rentschler v. Missouri Pac. R. Co., 1934, 126 Neb. 493, 253 N.W. 694, 95 A.L.R. 1; McCoy v. St. Joseph Belt R. Co., 1934, 229 Mo.App. 506, 77 S.W.2d 175; George T. Ross Lodge v. Brotherhood of R.R. Trainmen, 1934, 191 Minn. 373, 254 N.W. 590; Gary v. Central of Georgia R. Co., 1928, 37 Ga. App. 744, 141 S.E. 819; Long v. Baltimore O.R. Co., 1928, 155 Md. 265, 141 A. 504.

The fifth ground said by the cases to warrant the refusal of declaratory relief where another procedure or tribunal has dealt or may deal with the case, to wit, that the "special statutory method" or "statutory court prescribed" has been given by the sovereign exclusive jurisdiction, remains for consideration. If Congress intended that the procedure for adjustment of disputes under the Railway Labor Act, including the statutory enforcement proceeding provided by Section 3(p), should be a "special statutory method," or if Congress intended the Adjustment Board to be an exclusive "statutory court prescribed," then the trial court was warranted in dismissing the appellant's complaint seeking declaratory relief.

IV

I am thus brought to a discussion of the question whether by some necessary implication of statutory language there is indicated a Congressional intent that the procedure before the Board and the statutory enforcement proceeding provided by the Railway Labor Act shall be exclusive. In this aspect of the case it is contended that: (1) the Labor Act provision of an enforcement proceeding in the District Courts implies that there should be no other access to courts for carriers for the reason that this statutory suit is adequate protection for them; (2) employees who fail to win an award by the Board are themselves disabled to have recourse to the courts; this implies that the carriers may not proceed in court except by defense to the statutory enforcement proceeding; (3) the provisions of the Labor Act imply an intention by Congress that the remedy under the Act shall be exclusive, for otherwise the employees will be deprived of procedural advantages afforded by the statutory remedy; (4) judicial construction of analogous language in the reparations provision of the Interstate Commerce Act and of the Packers and Stockyards Act requires the conclusion that the provisions of the Labor Act imply that the procedure and remedy thereunder are exclusive; (5) judicial construction of provisions for review of orders of the Securities and Exchange Commission, the Communications Commission, and the National Bituminous Coal Commission, requires the conclusion that the provisions of the Labor Act imply that the procedure and remedy thereunder are exclusive; and (6) it is a necessary implication of the provisions of the Labor Act that the remedy under Section 3(p) is exclusive, for otherwise recourse to the courts by carriers would increase litigation and would render the Act unworkable.

(1) The argument under this contention is that an award and order of the Adjustment Board impose no legal compulsion upon the carrier, so that until the statutory suit is brought and won by the employees the carrier's rights remain unaltered; therefore the carrier can afford to wait, and is adequately protected if and when the employees bring suit. I think this contention is not supportable. An award under the Labor Act may take the form not of an order for the payment of money but of a finding that a claimant group is entitled to do certain work. Such a finding in effect serves notice on a carrier that it may, as the result of the statutory suit which the employees are empowered to bring, be required to change its operating practices, with the consequence not only of thus assigning the work described in the award to the claimant group but also of taking it away from others — since the claim on which such an award is based would not be made unless others were already performing the work in question. That is the type of award in the instant case. Thus the appellant is faced with a dilemma: On the one hand, if it disobeys the award and order and awaits the suit of the employees and loses that suit, it will then be obliged to pay the accumulated demands of the employees for the work which they in the meantime will not actually have done, together with the wages of the road engine crews of the Tenant Lines, who in the meantime have been performing the train movements in question. That the expense of the service of the road engine crews of the Tenant Lines in performing the train movements in question is ultimately borne by the appellant appears inferentially in the facts and is stated in the appellant's brief on appeal and not disputed by the appellees, and was admitted by the appellees in their third defense below. In the meantime also the appellant will have subjected itself to the risk of strike by its own employees. For it is contended by the appellant and not disputed by the appellees in their brief on appeal, and it was stated by the appellees in the trial court, that the primary sanction of an award in favor of employees is not the statutory enforcement proceeding provided in the Labor Act, but the economic bargaining power of the employees. On the other hand, if the appellant obeys the award and changes its operating practices, it subjects itself to the danger of suit for breach of contract by the road engine crews of the Tenant Lines, who will thus have been deprived of the work which they have been performing. So long as the appellees do not bring the statutory suit this dilemma will continue unsolved — in the absence of a declaratory judgment. Nothing but the latter, unless the employees sue — and the appellant has no means of compelling them to sue — can determine the rights of the parties under the agreement of February 1, 1923, and thus enable the appellant, if necessary, to make present readjustments of its operating arrangements so as to fulfill its obligations to the appellees at less expense than by incurring the penalty payments which they are now demanding. Therefore the argument that the statutory remedy is exclusive by implication because it adequately protects the carrier's interest is not sound. On the contrary of the carrier's being given by the statute the protection to which it is justly entitled, it is exposed to consequences which it is the purpose of legal institutions to avoid, to wit, coercion without such legal recourse as will afford a reasonably prompt judicial determination of rights and relief from the hazards of conflicting demands.

The appellees rely upon Federal Trade Commission v. Claire Furnace Company, 1927, 274 U.S. 160, 47 S.Ct. 553, 71 L.Ed. 978, and Federal Trade Commission v. Maynard Coal Company, 1927, 57 App.D.C. 297, 22 F.2d 873. In the first of these cases the Federal Trade Commission had served a notice on companies in the coal, steel, and related industries ordering them to furnish the Commission with monthly reports concerning costs of production and the like. The Commission was acting under Sections 6 and 9 of the Federal Trade Commission Act of September 26, 1914 (38 Stat. 717, 721, 722, 15 U.S.C.A. §§ 46, 49), empowering it to gather and compile information concerning companies engaged in interstate commerce and to require the filing of reports or answers to specific questions, and giving the Commission power to require the production of documentary evidence. The companies disregarded the orders and filed in a United States District Court (the then Supreme Court of the District of Columbia, now the District Court of the United States for the District of Columbia) a bill alleging that the Commission had exceeded its powers and praying for an injunction against the effectiveness of the orders. The Federal Trade Commission Act in Section 10 (38 Stat. 723) provided penalties for failure to file the reports, but the penalties were not effective until thirty days after notice of default, which in this case had not been given. The only method provided by the statute for enforcement of the Commission's orders was, under Section 9, the institution by the Attorney General upon the request of the Commission of a mandamus action, and, under Section 10, the institution under the direction of the Attorney General of a proceeding in a District Court to recover the penalties. The District Court granted the injunction and this was affirmed by the Circuit Court of Appeals (the then Court of Appeals for the District of Columbia, now the United States Court of Appeals for the District of Columbia). 52 App.D.C. 202, 285 F. 936. On appeal by the Commission to the Supreme Court of the United States the lower courts were reversed. The Supreme Court held that there was nothing that the Commission could have done to secure enforcement of the challenged orders, except to request the Attorney General to institute proceedings for mandamus or to supply him with the necessary facts for an action to recover the penalties, and that therefore until the Attorney General acted the companies could not suffer, and that when he did act they would then have full opportunity to contest the legality of any prejudicial proceeding against them, and that that right to contest was adequate and that hence they were not in a position to seek relief by injunction. In Federal Trade Commission v. Maynard Coal Company a similar question was presented, except that in that case the thirty-day notice had been served and the penalties were therefore running, although again no action had been taken by the Attorney General. The ruling followed the decision in the Supreme Court just discussed. But these two cases are not relevant to the instant situation. The orders involved were mere orders to file reports. They were made by the Federal Trade Commission acting as an arm of Congress to secure information for legislative purposes. They involved no contract rights and no adjustment of a dispute arising out of contract rights as does the instant case. Also, the orders were enforceable only upon the action of a governmental authority, to wit, the Attorney General, rather than being left, as is an award and order of the Adjustment Board, to the sanction of the economic bargaining power of an adversely interested private party, or to enforcement proceedings optional to such a party.

(2) Under this topic it is said by the appellees that one who has elected to pursue an administrative remedy is bound by the result, and for this reason and also because the statutory enforcement action provided by the Labor Act is available only to one who wins an award, the employees who fail to win an award are without further recourse, that is, may not themselves invoke the jurisdiction of the courts. Hence, argue the appellees, it is implied that the carriers may not proceed in court except by defense to the statutory enforcement proceeding. Assuming, arguendo, that the position taken by the appellees — that employees who fail to win an award before the Board cannot have access to the courts upon the collective bargaining contract itself out of which a dispute grows — is correct, it is I think irrelevant to the further question whether or not the procedure before the Board and the statutory enforcement proceeding afforded by the Labor Act are exclusive so far as a losing carrier is concerned. It would seem more logical to conclude that it could hardly have been the intention of Congress to exclude either the employees or the carrier from recourse to the courts for a determination of their contract rights, whether or not they lost before the Board. Indeed the argument that the carrier cannot have recourse to the courts because employees losing before the Board cannot sue either under the Act or at all begs the very question in issue, to wit, whether the procedure provided for by the Labor Act is exclusive.

(3) The contention that the language of the Labor Act implies an intent by Congress that the statutory enforcement proceeding provided for therein shall be exclusive, for otherwise the employees would be deprived of procedural advantages afforded by the statutory remedy, is based upon those portions of Section 3(p) of the Act having to do with the selection by the employees of a forum, the allowance to them of attorney's fees and costs, and of a two-year period of time within which they may commence the statutory suit. The argument here made would conceivably be appropriate before Congress against the enactment of a declaratory judgment statute, but it has no more relevance to the instant case than to any other case. For it is a necessary consequence of the declaratory judgment procedure that it shall deprive a defendant of special advantages that he might have obtained by acting first and suing as plaintiff. It is the purpose of the Declaratory Judgments Act to enable a plaintiff to relieve himself of embarrassments arising from the failure of his opponent to make the declaratory judgment plaintiff a defendant in another proceeding. In any declaratory judgment suit brought to determine rights not yet sued upon by the defendant as plaintiff, the declaratory judgment suit plaintiff may choose to sue in the residence of the defendant, who might himself, had he brought action as plaintiff, have chosen another forum. In respect of attorney's fees and costs — many contracts provide for these in the event of suit by one of the parties. But the opposite party can cut off this advantage if, in a declaratory judgment action first brought to determine the rights and duties under such a contract, he obtains a determination that he has no duty. So in respect of the statute of limitations, a potential defendant occupying a situation which may be the proper subject of a declaratory judgment action may, by commencing such an action prior to the bringing of suit by the potential plaintiff upon his claimed cause of action, cut down the statute of limitations applicable thereto. Thus it is apparent that the objection made in this aspect of the case to the declaratory judgment procedure is an objection to that procedure generally. If it applies here it must apply generally. If it does not apply generally, it cannot be urged here unless the statutory remedy under the Labor Act, including its special venue, attorney's fees and costs, and statute of limitations provisions, is exclusive — which is the very question in issue. If the remedy is exclusive there is no need to rely upon the objection. If it is not exclusive, the objection fails.

(4) Equal justice requires that similar terms of statutes enacted for like purposes should have like interpretations. In respect of proceedings in courts to enforce reparations orders made in favor of shippers and against carriers under Section 16(1), Section 16(2) of the Interstate Commerce Act, 34 Stat. 590 (1906), as amended by 36 Stat. 554 (1910), 36 Stat. 1167 (1911), and 41 Stat. 491 (1920) provides:

"If a carrier does not comply with an order for the payment of money within the time limit in such order, the complainant, or any person for whose benefit such order was made, may file in the district court of the United States for the district in which he resides or in which is located the principal operating office of the carrier, or through which the road of the carrier runs, or in any state court of general jurisdiction having jurisdiction of the parties, a petition setting forth briefly the causes for which he claims damages, and the order of the commission in the premises. Such suit in the district court of the United States shall proceed in all respects like other civil suits for damages, except that on the trial of such suit the findings and order of the commission shall be prima facie evidence of the facts therein stated, and except that the petitioner shall not be liable for costs in the district court nor for costs at any subsequent stage of the proceedings unless they accrue upon his appeal. If the petitioner shall finally prevail he shall be allowed a reasonable attorney's fee, to be taxed and collected as a part of the costs of the suit."

There is a similarly worded provision in the Packers and Stockyards Act, Section 309(f), 42 Stat. 166 (1921). The appellees urge that under judicial interpretation of these statutes the enforcement proceedings provided for are exclusive, and the appellees say that Section 3(p) of the Labor Act is similarly worded and should be similarly construed.

I do not read the cases as holding that the reparations remedy of the Interstate Commerce and Packers and Stockyards Act is exclusive in the sense in which that term is being used in the instant case. In Brady v. Interstate Commerce Commission, D.C.N.D.W.Va. 1930, 43 F.2d 847, affirmed Brady v. United States, 1931, 283 U.S. 804, 51 S.Ct. 559, 75 L.Ed. 1424, a shipper attempted to obtain an order setting aside and correcting findings made by the Commission in a reparations suit and requiring the Commission to make a supplemental order on the basis of the corrected findings. The action was brought in a United States District Court, under 36 Stat. 539 (1910), as amended by 38 Stat. 219 (1913), as one "to enjoin, set aside, annul or suspend in whole or in part any order of the Interstate Commerce Commission," 28 U.S.C.A. § 41(28), and a special court of three judges was asked for under the Urgent Deficiencies Act (38 Stat. 220 (1913), 28 U.S.C.A. § 47). But it was held that the action must fail, first because it was not brought to set aside an order of the Commission but only to correct alleged errors in the findings on which the order was based, and second because a reparations order of the Commission was not within the class of orders which Congress intended might be enjoined under the Urgent Deficiencies Act in a three-judge court. Baltimore O.R. Co. v. United States, 3 Cir., 1937, 87 F.2d 605, also held that a three-judge District Court has no jurisdiction to enjoin a reparations order of the Interstate Commerce Commission. But these two cases, in holding that the remedy of injunction by a three-judge court is not available to a shipper against a reparations order of the Commission, hold nothing concerning the exclusiveness of the reparations remedy so far as other recourse to the courts by either shipper or carrier is concerned. In Baltimore Ohio R. Co. v. Brady, 1933, 288 U.S. 448, 53 S.Ct. 441, 77 L.Ed. 888, relied upon by the appellees, an action was brought by a shipper against a carrier in a United States District Court in consequence of the failure of the carrier to comply with a reparations order of the Interstate Commerce Commission for damages found to have been sustained by reason of discrimination by the carrier in furnishing cars for the transportation of coal from the shipper's mine. The action was brought under Section 16(2) of the Interstate Commerce Act to enforce the Commission's order made under Section 16(1). In this suit the shipper sought and obtained judgment for a sum greater than the reparations award of the Commission. This judgment was affirmed in the Circuit Court of Appeals, but on certiorari to the Supreme Court there was a reversal. The Supreme Court pointed out that while Section 3, 24 Stat. 380, 49 U.S.C.A. § 3 (1887) of the Interstate Commerce Act makes it unlawful for a carrier to subject any person or traffic to unreasonable disadvantage, and while Section 8, 24 Stat. 382, 49 U.S.C.A. § 8 (1887) imposes upon carriers liability for the full amount of damage sustained in consequence of a violation of the Act, and while under Section 9, 24 Stat. 382 (1887) a person so injured may either make a complaint to the Commission (under Section 16(1) or bring suit for damages in a District Court, such a person, because of the further provisions of Section 9, "shall not have the right to pursue both remedies, and must select which method he will adopt." 288 U.S. at page 456, 53 S.Ct. at page 442, 77 L.Ed. 888. And the Court held that the shipper, having elected to seek relief through the Commission under Section 16(1) and (2) was not entitled to recover more than the amount of the award made under that section. Terminal Warehouse Co. v. Pennsylvania R. Co., 1936, 297 U.S. 500, 56 S.Ct. 546, 80 L.Ed. 827, and Western New York P.R. Co. v. Penn Refining Co., 3 Cir., 137 F. 343, affirmed, 1908, 208 U.S. 208, 28 S.Ct. 268, 52 L.Ed. 456, also cited by the appellees, reflect the same rule as that laid down in the case just discussed. But these three cases rest upon the provisions of Section 9 of the Interstate Commerce Act which confers an election of remedies upon the shipper. They hold nothing concerning the exclusiveness of the statutory remedy so far as the carrier is concerned. Minds v. Pennsylvania R. Co., D.C.E.D.Pa. 1916, 237 F. 267, 270, affirmed, 3 Cir., 1917, 244 F. 53, and, 1919, 250 U.S. 368, 39 S.Ct. 531, 63 L.Ed. 1039, cited by the appellees for the statement therein contained that "the complainant, being a volunteer, is concluded by what the [Interstate Commerce] Commission does," — from which the appellees draw the inference that if the shipper fails to win an award he has no recourse to the courts — is but dictum so far as that statement is concerned, because on the facts of the case the shipper prevailed. No cases are cited and I know of none which construe the reparations provision of the Packers and Stockyards Act in respect of exclusiveness.

But even assuming the existence of a judicial interpretation of the reparations provisions of the Interstate Commerce Act and the Packers and Stockyards Act to the effect that the reparations remedy is exclusive, in the sense that it forbids other recourse to the courts by either shipper or carrier, such an interpretation would, because of dissimilarity between the provisions and purposes of those two acts on the one hand and of the Railway Labor Act on the other, have no persuasive value in the instant case. The Labor Act contains no section expressly requiring an election of remedies. Again, the reparations remedy of the Interstate Commerce Act and the Packers and Stockyards Act is made available only in case of non-compliance of the carrier "with an order for the payment of money," whereas the remedy provided by Section 3(p) of the Labor Act is available in respect of any order of the Adjustment Board, including a direction to a carrier, as in the instant case, in respect of its operating practices. As has been pointed out in part (1) of this topic IV, the award in the instant case in effect says to the appellant that it must henceforth permit certain men, to wit, the appellees, to perform certain train movements, and thereby not allow other men to do that work. A legal proceeding to compel obedience to an award of this kind is much different in its incidents and consequences from a suit to recover money; and the grounds on which it might be held that a statutory action to recover money is by implication exclusive of all other forms of judicial relief, would have no necessary relevance to the question whether or not a statutory proceeding to enforce a claim to do certain work is exclusive. Still further, an interpretation of exclusiveness in the reparations remedy of the Interstate Commerce Act and the Packers and Stockyards Act would lack persuasive value in the instant case because the rights involved are different from those involved under such Acts. In the instant case the rights are common law rights arising out of a contract; under each of the other two Acts the rights are of a statutory character — the right to be charged in accordance with a schedule of rates — the right not to be made the subject of unreasonable preferences or prejudices. In respect of rights so created and assigned to the protection of a given tribunal, it might well be held that a special remedy provided by statute for enforcement of the rights was exclusive. Such a conclusion does not follow in the instant situation where the Adjustment Board has no authority to make a determination of contract rights as such, but only to adjust disputes arising out of the interpretation or application of collective bargaining agreements. Still further, the assumed judicial interpretation of exclusiveness in the reparations remedy of the Interstate Commerce and Packers and Stockyards Acts would not be persuasive in the instant case for the reason that the proceeding before the Adjustment Board differs vitally in nature from that before the Interstate Commerce Commission and the Department of Agriculture. The proceeding before these bodies is quasi-judicial in nature. It has been demonstrated above that this is not the case in respect of the Adjustment Board proceeding. I conclude that the rule that similar terms of statutes enacted for like purposes should receive like interpretation is inapplicable to the statutes compared in the instant case, "because the evils to be remedied, the objects to be accomplished, and the enactments requisite to attain them are radically different." United States v. Colorado N.W.R. Co., 8 Cir., 157 F. 321, 330, 15 L.R.A., N.S., 167, 13 Ann.Cas. 893, certiorari denied 1908, 209 U.S. 544, 28 S.Ct. 570, 52 L.Ed. 919.

(5) The judicial decisions in respect of review of orders of the Securities and Exchange Commission, the Federal Communications Commission, and the National Bituminous Coal Commission cited by the appellees for the proposition that where a statute establishing an administrative tribunal provides an adequate method of review in the courts for its orders, such method is exclusive, and urged by the appellees as requiring the conclusion, by parity of reasoning, that the provisions of the Labor Act imply that the statutory enforcement proceeding thereunder is exclusive, are Securities Exchange Commission v. Andrews, 2 Cir., 1937, 88 F.2d 441; Sykes v. Jenny Wren Co., 64 App.D.C. 379, 78 F.2d 729, 104 A.L.R. 864, certiorari denied, 1935, 296 U.S. 624, 56 S.Ct. 147, 80 L.Ed. 443; Monocacy Broadcasting Co. v. Prall, 1937, 67 App.D.C. 176, 90 F.2d 421; and Utah Fuel Co. v. National Bituminous Coal Commission, 1938, 69 App.D.C. 333, 101 F.2d 426, affirmed, 1939, 306 U.S. 56, 59 S.Ct. 409, 83 L.Ed. 483. In Securities Exchange Commission v. Andrews the Commission had filed a bill of complaint in a United States District Court under Section 21(e) of the Securities and Exchange Act of 1934 (48 Stat. 881, 889, 15 U.S.C.A. § 78u(e), to enjoin the defendants — Andrews and others — from violating the provisions of Section 9 (48 Stat. 889, 15 U.S.C.A. § 78i) with respect to stock of Dictograph Products Company. While the suit was pending upon the bill, answer, and the Commission's motion for a preliminary injunction, the Commission made an order pursuant to Section 21(a) (48 Stat. 899) of the Act for an investigation to determine whether to suspend unlisted trading privileges in Dictograph stock pursuant to Section 12(f) (48 Stat. 892), as amended (49 Stat. 1375 (1936), 15 U.S.C.A. § 78 l(f); and a subpœna duces tecum was issued by a Commission investigating officer directing the Company to appear before him. Thereupon the defendants filed a cross-bill of complaint to enjoin the Commission and its agents "from all activity with respect to" Dictograph stock. The trial judge dismissed the cross-bill for want of jurisdiction and want of equity. The Circuit Court of Appeals affirmed on the ground that the trial court was without jurisdiction to entertain the cross-bill, the theory of the decision being that a suit against the Commission, an administrative agency of the United States, can be maintained only in the courts and upon the terms specified in the statute. The court pointed out that Section 25(a) (48 Stat. 901, 15 U.S.C.A. § 78y(a) of the Securities and Exchange Act provides that "any person aggrieved by an order issued by the Commission . . . may obtain a review of such order in the Circuit Court of Appeals." It held that the order to appear before the investigator was interlocutory and not reviewable under Section 25, but that even if it were reviewable, review could be had only in the Circuit Court of Appeals. But the case is not apposite, for the instant case is not a suit against the National Railroad Adjustment Board. Moreover, the statutory appellate procedure afforded under the Securities and Exchange Act is available to both parties. Still further, the Securities and Exchange Commission is a governmental body whose hearings are of a quasi-judicial nature. Similar distinctions exist in respect of Sykes v. Jenny Wren Co., Monocacy Broadcasting Co. v. Prall, and Utah Fuel Co. v. National Bituminous Coal Commission.

(6) In respect of the last argument in this aspect of the case — that it is a necessary implication of the provisions of the Railway Labor Act that the remedy under Section 3(p) is exclusive for otherwise recourse to the courts by a carrier would increase litigation and would render the Act unworkable: It is not to be doubted that if there is access to the courts for declaratory relief, carriers which, in view of a contract entered into with employees, regard an Adjustment Board award as unjust, will seek relief in the courts where the statutory suit is not promptly brought by the employees. And it is not to be doubted that this will in some degree lessen the effectiveness of awards which might otherwise be enforceable through the sanction of economic bargaining power. But the argument is one to Congressional intent. It is urged that the Adjustment Board is adapted to the settlement of disputes growing out of collective bargaining agreements between carriers and their employees, and that it has performed its function of settling such disputes with a high degree of success. It is asserted that an interpretation of a statute which must lead to weakening the success of an agency created by it is inadmissible if the statute is susceptible of another interpretation by which such a consequence can be avoided, for Congress will not be presumed to have intended a nugatory thing. 59 C.J. 961-4, § 571. But it is also cardinal that Congress will not be presumed to have intended a mischief or injustice. 2 Sutherland, Statutory Construction (2d ed. 1904) §§ 488-90; 25 R.C.L. 1022, § 258. And if a choice must be made between an interpretation which would lessen the effectiveness of a statute and one which would result in unfairness, the former ought to prevail, for it ought not to be taken that Congress would intend to gain an end at the price of fairness. Such I think would be the consequence of the interpretation of the statute urged here by the appellees. For the consequence of the conclusion that recourse to the courts for a determination of the meaning of a collective bargaining contract between a carrier and its employees was not intended is that Congress did intend to set up a system of compulsory arbitration whereunder either party to a dispute arising out of a collective bargaining agreement could force the other into a proceeding before the Adjustment Board, and whereunder the award, when made, would be immunized against judicial relief unless the employees, having won, elected to bring a statutory enforcement proceeding instead of relying upon their economic bargaining power as the primary sanction of the award. And the further consequence is that Congress intended to give the Board in effect final power to determine contract obligations — since the disputes which it is to consider are of a legal nature "growing out of the interpretation or the application of agreements" (Section 2) — notwithstanding the fact that the Board is concededly an adjustment board rather than one to adjudicate legal rights and obligations, and notwithstanding that if the Board, rather than giving effect to the actual legal obligations of a contract, should disregard them, the award would in effect abolish actual obligations and substitute new ones, thus reducing collective bargaining agreements to virtual nullity — a result as unfortunate for employees as for carriers. Thus to hold that the statutory remedy must be construed as excluding other forms of judicial relief in order to make the provisions of the Railway Labor Act workable would require giving a definition to workable which Congress cannot be presumed to have intended.

I think it is not warranted to hold that the Railway Labor Act provisions necessarily imply an intent to deny right of access to the courts except in the enforcement proceeding of Section 3(p) because if not thus interpreted the effect will be, as the appellees urge, to increase litigation. The establishment of collective bargaining has resulted in the execution of a very large number of contracts between carriers and their employees governing rates of pay, rules and working conditions. These contracts, being the source of rights and obligations of importance to the parties, will inevitably lead to litigation. This Congress must be taken to have understood.

I thus conclude that by no necessary implication of statutory language is there indicated a Congressional intent that either the procedure before the Board or the statutory enforcement proceeding provided by the Railway Labor Act of 1934 shall be exclusive. Moore v. Illinois Central Railroad Company, 1941, 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089, although not directly in point on the facts for the reason that therein there had not been, as in the instant case, recourse to the Adjustment Board and an award and order, nevertheless interprets the Labor Act in a manner which I think tends to confirm the conclusion I reach. In that case the petitioner Moore, a member of the Brotherhood of Railroad Trainmen, brought suit for damages against the respondent Railroad Company, claiming that he had been wrongfully discharged contrary to the terms of a contract between the Trainmen and the Company. Originally commenced in the state courts, the action was ultimately removed to a United States District Court, which rendered judgment against the Company; but this was reversed by the Circuit Court of Appeals. Inter alia, the Company contended that the judgment in its favor should be sustained because both the District Court and the Circuit Court of Appeals "erred in failing to hold that Moore's suit was prematurely brought because of his failure to exhaust the administrative remedies granted him by the Railway Labor Act. . . ." But the Supreme Court held otherwise. It said:

". . . But we find nothing in that Act which purports to take away from the courts the jurisdiction to determine a controversy over a wrongful discharge or to make an administrative finding a prerequisite to filing a suit in court. In support of its contention, the railroad points especially to § 153(i) [Section 3(i), 48 Stat. 1191], which, as amended in 1934, provides that disputes growing out of grievances or out of the interpretation or application of agreements `shall be handled in the usual manner up to and including the chief operating officer of the carrier designated to handle such disputes; but, failing to reach an adjustment in this manner, the disputes may be referred by petition of the parties or by either party to the appropriate division of the Adjustment Board with a full statement of the facts and all supporting data bearing upon the disputes.' . . . It is to be noted that the section pointed out, § 153(i), as amended in 1934, provides no more than that disputes `may be referred . . . to the . . . Adjustment Board. . . .' It is significant that the comparable section of the 1926 Railway Labor Act (44 Stat. 577, 578) had, before the 1934 amendment, provided that upon failure of the parties to reach an adjustment a `dispute shall be referred to the designated Adjustment Board by the parties, or by either party. . . .' This difference in language, substituting `may' for `shall', was not, we think, an indication of a change in policy, but was instead a clarification of the law's original purpose. For neither the original 1926 Act, nor the Act as amended in 1934, indicates that the machinery provided for settling disputes was based on a philosophy of legal compulsion. On the contrary, the legislative history of the Railway Labor Act shows a consistent purpose on the part of Congress to establish and maintain a system for peaceful adjustment and mediation voluntary in its nature. The District Court and the Circuit Court of Appeals properly decided that petitioner was not required by the Railway Labor Act to seek adjustment of his controversy with the railroad as a prerequisite to suit for wrongful discharge. . . . [312 U.S. at pages 634-636, 61 S.Ct. at page 756, 85 L.Ed. 1089]"

The appellees cite Railroad Yardmasters of North America, Inc., v. Pittsburgh Lake Erie Railroad Company, D.C.N.D. Ohio 1940, 39 F. Supp. 876. In that case the individual defendants had obtained favorable awards from the National Railroad Adjustment Board, Fourth Division, granting them a higher status on a yardmasters' seniority roster in the East Youngstown yard. Compliance with these awards by the Railroad would place other employees whose names appeared on the same roster in a less favorable seniority position. The Railroad Yardmasters of North America, Inc., on behalf of employees whose seniority rights would be thus adversely affected, filed a complaint for a preliminary injunction enjoining all of the defendants from putting the award into effect, and prayed upon final hearing a permanent injunction. The complaint asserted that in making the awards the Board acted without jurisdiction and that its proceedings were in violation of the statutes establishing it and governing its procedure. The answers of the individual defendants asserted that the court had no jurisdiction, and on this ground the court dismissed the complaint. The theory of the decision was that the enforcement proceeding provided for by Section 3(p) of the Railway Labor Act was exclusive, and that no indirect review or collateral attack of the Board's awards, such as was sought in the complaint, was permissible. This case, although it involves a form of action different from that in the instant case, is nevertheless contrary, so far as its ratio decidendi is concerned, to the position I take herein. But I think it not persuasive. On the contrary, in my opinion, it illustrates the unfortunate results attendant upon a conclusion that the Railway Labor Act provides an exclusive remedy for determining disputes arising under agreements between carriers and their employees. If the Railroad was willing to comply with the awards — which it apparently was, in view of the injunction suit — there would be no necessity for the successful seniority right claimants to institute an enforcement proceeding under Section 3(p), and yet the Railroad's compliance with the awards might diminish or destroy the rights of other employees, and this whether or not they were given notice of the proceedings before the Board or an opportunity to be heard. And since under the decision of the District Court they are forbidden access to the courts, except in the event of an enforcement proceeding, they are effectually denied all judicial determination of their rights.

V

Is there some implication of legislative history to the effect that exercise of declaratory judgment jurisdiction of the United States District Courts is forbidden in such cases as the instant case because the procedure before the Board and the statutory remedy provided for in the Railway Labor Act of 1934 are exclusive? I find none. The Reports of the House and Senate Committees recommending the bill which became that Act (H.R. Rep. No. 1944; Sen. Rep. No. 1065, 73rd Cong., 2d Sess., 1934) show it to be an outgrowth of the Railway Labor Act of May 20, 1926 (44 Stat. 577) and indicate that it was designed inter alia to correct two defects in that Act: one, the possibility left open by the language of the 1926 Act that adjustment boards would cover only a part of the national railroad system; the other, the contingency of a deadlock. The House Committee Report stated:

"The second[] major purpose of the bill is to provide sufficient and effective means for the settlement of minor disputes known as `grievances', which develop from the interpretation and/or application of the contracts between the labor unions and the carriers, fixing wages and working conditions. The present Railway Labor Act provides for the establishment of boards of adjustment by agreement. In many instances, however, the carriers and the employees have been unable to reach agreements to establish such boards. Further, the present act provides that when and if such boards are established by agreement, the employees and the carriers shall be equally represented on the board.

"Many thousands of these disputes have been considered by boards established under the Railway Labor Act; but the boards have been unable to reach a majority decision, and so the proceedings have been deadlocked. These unadjusted disputes have become so numerous that on several occasions the employees have resorted to the issuance of strike ballots and threatened to interrupt interstate commerce in order to secure an adjustment. This has made it necessary for the President of the United States to intervene and establish an emergency board to investigate the controversies. This condition should be corrected in the interest of industrial peace and of uninterrupted transportation service. This bill, therefore, provides for the establishment of a national board of adjustment to which these disputes may be submitted if they shall not have been adjusted in conference between the parties. The provisions as to the national board of adjustment are as follows:

* * *

"( g) If any division of the Board should deadlock on a dispute, then the representatives on the Board will endeavor to select a neutral or impartial person; and if they are unable to agree upon the selection of such neutral person, then the United States Board of Mediation will appoint a neutral person. The dispute will then be again considered and a majority decision reached."

While the foregoing language makes clear that the Committee regarded the compromise or adjustment, through the means provided, of minor disputes known as "grievances," arising from the interpretation of collective bargaining agreements between carriers and their employees, as desirable, it neither expresses nor implies disparagement of the right of judicial determination of legal issues. The Supreme Court in Pennsylvania R. Co. v. United States Railroad Labor Board, 1923, 261 U.S. 72, 84, 43 S.Ct. 278, 67 L.Ed. 536, said of an earlier adjustment board (the adjustment board established under title III of the Transportation Act of 1920):

"But Title III was not enacted to provide a tribunal to determine what were the legal rights and obligations of railway employers and employees, or to enforce or protect them. Courts can do that. The Labor Board was created to decide how the parties ought to exercise their legal rights so as to enable them to coöperate in running the railroad. It was to reach a fair compromise between the parties without regard to the legal rights upon which each side might insist in a court of law. . . ."

Undoubtedly the function of the Board in facilitating compromise of disputes is useful and important, but it is not to be implied from an indication by the Committee that settlements are desirable or from the fact that Congress set up an agency of adjustment, that it was the intention of Congress to forbid the adjudication of legal rights by the courts.

No intention to affect or change the provisions defining the nature and functions of the National Railroad Adjustment Board appears in the legislative history. Under the 1934 Act a group of carriers and their employees may still establish a separate board, and if they do so, the National Board has no function in respect of disputes which are subject to the separate board. The language of the 1934 Act concerning the functions of the National Board is substantially that of the 1926 Act except that the latter said that disputes "shall be referred" whereas the 1934 Act says "may be referred" to the Board. I think it clear from the parallelism between the two Acts that the function and place of the 1934 Board were intended by Congress to be identical with the function and place of the adjustment boards under the 1926 Act. This is confirmed by the statement of the Supreme Court quoted supra from Moore v. Illinois Central Railroad Company. And there has been no suggestion in the instant case that there was any intention by Congress under the 1926 Act to substitute adjustment board proceedings for those of the courts, that is, to deny to parties to adjustment proceedings access to the courts for the determination of their legal rights under collective bargaining agreements out of which disputes have arisen.

Not only do I find no indication in the legislative history in respect of the 1934 Act as a whole of an intention to make the Adjustment Board and its procedure exclusive, but also I find no legislative history indicating that Congress intended that the special statutory suit made available under the 1934 Act to employees who have succeeded in obtaining a favorable award, was intended to be an exclusive remedy and thus to cut off access to the courts for the carriers for declaratory or other relief. There is no reference in the Committee Reports on the 1934 Act, or in the discussion on the floor, to the statutory action provided for by Section 3(p); and neither of the Reports mentions Section 3(p) as introducing any change over the 1926 Act. And yet if that section forbids access to the courts in other forms of action, the 1934 Act represents a serious change over the 1926 Act. It would seem likely that, if it had been the intention of the Committees to accomplish such a change, they would have said so.

VI

It is a settled rule of statutory construction that courts will if possible avoid such an interpretation of a statute as will raise serious doubts as to its constitutionality. I think the construction which the appellees put upon the Railway Labor Act would threaten its validity. For the position of the appellees can hardly be limited to declaratory relief. The argument is that Congress has made the adjustment procedure and statutory enforcement proceeding, in the event of an award, exclusive. The consequence must then be that there is no access to the courts whatever either for damages or by way of injunction or for declaratory relief. The last is but remedial. Declaratory judgments statutes add nothing to the substantive jurisdiction of the Federal courts. Ætna Life Ins. Co. v. Haworth and Ætna Casualty Surety Co. v. Quarles, both cited supra. There is of course no constitutional right to a declaratory judgment as such, but if the Labor Act is construed to bar all judicial relief to the carrier party to a collective bargaining agreement this would deny the carrier due process of law, since deprivation of remedy in the courts would destroy the character of collective bargaining agreements as contracts for the carrier. For the reasons stated in topic IV (1), the remedy afforded the carrier by way of defense to the enforcement proceeding available to employees only under Section 3(p) is in effect no protection. "Without the remedy" — meaning an adequate remedy — "the contract may, indeed, in the sense of the law, be said not to exist, and its obligation to fall within the class of those moral and social duties which depend for their fulfilment wholly upon the will of the individual. The ideas of validity and remedy are inseparable." Von Hoffman v. Quincy, 1866, 4 Wall. 535, 552, 18 L.Ed. 403. Therefore a contract right will have been taken without due process of law.

It is elementary constitutional law that when the legislature provides a remedy but interposes such conditions precedent to its availability that the hazards and burdens incident to its use can reasonably be expected to deter resort to it, the courts will provide relief in an appropriate proceeding even though the statutory remedy is plainly intended to be exclusive. Oklahoma Operating Co. v. Love, 1920, 252 U.S. 331, 40 S.Ct. 338, 64 L.Ed. 596. In the instant case the power to institute judicial proceedings under the remedy provided in Section 3(p) is placed solely in the hands of the other party to the controversy, to wit, the appellees. The appellant is powerless under the statute to take action itself to set in motion the judicial machinery said to be available to it for relief And in the interval it is subjected to hazards so great and cumulative that, from the judicial notice which will be taken of what is to be expected from reasonable persons, it is apparent that it will prefer not to wait but to yield. Under such circumstances the judicial remedy apparently held out by the language of the statute is illusory. It is denied by the actualities of the situation of the parties.

A further constitutional threat to the statute through the appellees' construction of the Labor Act is this: If the hazards of waiting for employees to bring the statutory action are so serious and deterrent that a carrier has no choice in actuality but to obey the award of the Board, then the result in effect is to give the Board final authority to determine contract rights. That is an exercise of judicial power. There can be no valid delegation of governmental power to nongovernmental agencies. Carter v. Carter Coal Co., 1936, 298 U.S. 238, 56 S.Ct. 855, 80 L.Ed. 1160. The Adjustment Board, consisting of bi-partisan groups paid by and set up to represent the employees and carriers respectively, is not a governmental agency.

In summary, I am of the opinion that: The appellant's complaint states a case appropriate for the exercise of declaratory judgment jurisdiction of a United States District Court. No expression of Congressional intent, no principle or policy of law, no necessary implication of statutory language or of legislative history, forbids exercise of the jurisdiction under the circumstances of the instant case. Under the due process clause of the Fifth Amendment the courts are open to all who present a controversy which is the proper subject of judicial action. No impediment to the appellant's action appearing, the trial court should not have dismissed the complaint.

AWARD

Claim sustained. NATIONAL RAILROAD ADJUSTMENT BOARD By order of First Division Attest(s) T.S. McFarland Secretary."