Washington Terminal Co. v. Boswell , 124 F.2d 235 ( 1941 )

RUTLEDGE, Associate Justice.

The Declaratory Judgments Act, 48 Stat. 955, was enacted June 14, 1934.¹ One week later the Railway Labor Act, Act of June 21, 1934, 48 Stat. 1185, 45 U.S.C.A. § 151 et seq., was passed. The latter established the National Railway Adjustment Board for settlement of disputes arising under collective agreements between the carriers and their employees. The Board’s awards are not enforceable by it. But awards in favor of employees may be enforced by suit in the district courts begun within two years from accrual of the causes of action under them. 45 U.S.C.A. § 153, First (p), (q).

In such a suit the Act gives the employee definite and substantial advantages. Id. (p). It does not expressly make the enforcement suit exclusive of others to determine rights arising under collective agreements. The question in this case is whether it has done so impliedly, as to a carrier and employees who have utilized the adjustment procedure and procured an award. Stated otherwise, the issue is whether a carrier, which has been unsuccessful before the Board, can maintain a suit for a declaratory judgment of rights under the original collective agreement during the two years which the Act allows for the employees’ enforcement suit. We think the answer should be negative, and therefore the District Court was right in dismissing the complaint of the carrier, appellant here.

The decision in Moore v. Illinois Central R. Co., 1941, 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089, rendered since this case was argued, has put beside the point much of the argument here. The case held that the Railway Labor Act does not preclude an employee from bringing a suit for damages for alleged wrongful discharge contrary to a collective agreement. The plaintiff employee, however, had begun his suit before the administrative machinery had been set in motion. The decision establishes that in such circumstances the Act has neither excluded the general jurisdiction of the courts nor made exhaustion of the administrative remedy prerequisite to its exercise, for decision of controversies which might be determined by the statutory method. At the threshold of controversy accordingly, the disputants have alternate routes which they may follow. One is entirely judicial, without regard to the Railway Labor Act. The other is administrative and judicial, according to its terms.

But the Moore case neither presented nor decided the question whether, when one party has put the adjustment procedure in operation, the other may disregard it entirely and at any subsequent stage have a judicial determination of the issues other than that provided by the Act. From the fact that either party may go directly into court in the beginning for relief independent of the statute, it does not follow that he or the other may short-circuit the administrative proceeding while it is in progress or the statutory enforcement suit during the two years allowed for bringing it.² That is true, whether the matter be regarded as involving the existence of jurisdiction in the courts independently of the Act or merely sound judicial discretion in its exercise.

In this case the dispute arose under a collective agreement made February 1, 1923, between the plaintiff carrier and two labor unions,³ which represented the employees who are the defendants. The agreement fixed seniority rights and other terms of employment of enginemen and firemen. In 1934 defendants asserted they were entitled under the agreement to perform certain work which others previously had done. This consisted chiefly in moving empty passenger cars from the storage yard to the Union Terminal Passenger Station in Washington, D. C., and vice versa, preceding and following, respectively, the departure and arrival of trains on interstation runs. The regular train crews had done and still do this work. They are employees of the railroads — called the tenant lines — which use the station’s terminal facilities.

Plaintiff rejected defendants’ claim. Thereafter they invited it to make a joint submission of the dispute to the Board. Plaintiff declined. But, as the Act entitled them to do,⁴ defendants submitted it. Plaintiff thereupon appeared in the proceedings and made full submission on the merits in accordance with the statutory provisions.⁵

The Board, acting by its First Division, deadlocked. A referee was appointed as the Act requires in such an event and, with his participation, the Board’s award was made October 24, 1938. It held that the contract entitled the employees to perform the work in question. The same day the Board ordered the employer to make the award effective within thirty days. Plaintiff has not complied. Instead, on December 29, 1938, it filed this suit. It was begun, therefore, slightly more than one month from the day on which the employees’ cause of action arose on the award, although the Act gave them two years to sue upon it and made no provision for an employer’s suit to set it aside or restrain its enforcement.⁶

I.

The suit asks for an adjudication of rights under the original contract. It seeks also a declaration that the Board’s award and order are void. Whether or not the issues in suit and those of the administrative proceeding are identical in all respects,⁷ they are so to the extent that each involves the question whether the collective agreement, rightly interpreted, gives the employee defendants the right to do the work in dispute. That is the fundamental issue presented in both. The effect, therefore, of a declaratory judgment favorable to plaintiff would be to nullify the award. Consequently this suit is essentially one to review it. Whether the judgment were in plaintiff’s favor or otherwise, allowing the suit to be maintained would deprive the employees of the special advantages which the Act' confers upon them in the enforcement suit.

We do not think that Congress intended the Board’s awards to be reviewable in this manner. The Railway Labor Act makes nq provision for review as such. But it does set forth a definite and special scheme for securing judicial determination that the award is or is not in accordance with the legal rights of the parties. If the scheme is adequate, constitutionally, as we think it is, we do not believe Congress intended that it. should be circumvented by free resort to other forms of judicial review or determination de novo of the merits of the controversy.

If Congress had made no provision for judicial review, in the broad sense we have indicated, the general applicability of the Declaratory Judgments Act, adopted almost simultaneously, might be regarded as supplying the omission. But the matter was not an omitted one. This is shown conclusively by the presence in the Railway Labor Act of the detailed plan for review. It is shown further by the character of the plan’s details. We think these things show, too, that the method of review provided was intended to be exclusive. If Congress had intended the Declaratory Judgments Act to be generally available to the parties, regardless of the fact that an award had been made and of its terms, there could have been no substantial reason for including in the Railway Labor Act the complex and detailed provisions for the enforcement suit or, for that matter, any special method of review. More especially, there could have been no such reason for writing into the statute the unusual and highly important special advantages given to the employee seeking enforcement.

Congress intended these advantages to mean something. They mean nothing if such a suit as this can be maintained. They are very substantial advantages. They are conferred by Section 3, First (p) of the Act, 45 U.S.C.A. § 153, First (p), which is set out in full below.⁸ Their purpose and effect, as will be seen, is to equalize the burden, financial and otherwise, of ex-, tended litigation as between employees and the carriers. The Act contemplates suits by individual employees as well as by labor unions. It recognizes the unequal financial position of the litigants when a railway laborer pits his strength against his employer’s in court. Whatever may be true of unions, individual employees do not maintain corporate legal departments, sustained by revenues derived from the public. They cannot charge off attorneys’ fees to business expense. Often their own resources would be inadequate to secure competent counsel. The relief sought often does not include recovery of money, so that a contingent fee payable .only from the proceeds of recovery or the employee’s resources frequently would not be attractive. Congress recognized this inequality and undertook to reduce it. Hence, the Act provides for recovery of an attorney’s fee, if the employee is successful in the suit. 45 U.S.C.A. § 153, First (p). Costs of litigation alone are prohibitive, particularly to laboring people suing as individuals. Hence the petitioner in an enforcement suit is exempted from their payment, except those that accrue upon his appeal. Situs of litigation may be highly important, also as a matter of expense, to the complaining employee. Hence he may sue where he resides or where the carrier’s principal operating office is located. Choice of venue in litigation which is unequal because of the financial advantage of the other party may mean the difference between asserting one’s rights in court and foregoing them altogether. All these advantages, choice of venue, exemption from payment of costs, and recovery of attorney’s fees if successful, are intended to make less unequal than in ordinary or general litigation the- contest between employee and carrier over work and the terms on which it is done. The latter is equipped for litigation, to the last resort. The former is not. In equalizing the struggle somewhat, Congress has recognized that justice too often is blind to financial inequality between the parties in litigation, especially when they are employer and employee, and has determined that it shall not be entirely so in these disputes.

The statute also relieves the employee of another burden. It provides that the enforcement suit “shall proceed in all respects as other civil suits, except that on the trial * * * the findings and order of the division of the Adjustment Board shall be prima facie evidence of the facts therein stated.” 45 U.S.C.A. § 153, First (p). The burden of proof, in making a prima facie case, may be financial as well as procedural, and it may be heavy. The statute relieves the employee of this, at least to some extent, when he introduces the findings and order in evidence. Though they may not make his case finally, they do so initially. They also bring to the court the weight of decision on facts and law by men experienced in contracts, disputes and proceedings of this special and complicated character. The whole adjustment procedure up to the point of award, findings and order by the Board, appears to be constructed upon the idea that it is not the business of lawyers, but is the business of railroad men, workers and managers alike.⁹ That does not make their findings and decisions less probative; rather it should make them more so. They know the language,¹⁰ functions and purposes of railroads and of their collective agreements. Their judgment is informed by experience in negotiating and administering these contracts. Because of this they, perhaps better than lawyers, are qualified to interpret and apply them. Whether so or not, their judgment should carry weight when the judicial stage of controversy is reached. It cannot be assumed, therefore, that the findings have no substantive effect, merely because they were not given finality, as to either facts or law. They are probative, not merely presumptive in value, having effect fairly comparable to that of expert testimony.

All these advantages the statute makes incident to the enforcement suit. They cannot be had in any other. We have no power to grant them in this one. Yet the argument that it can be maintained brushes them aside, as if they were mere matters of procedure, not affecting the substance of decision or right. With that we cannot agree. In many cases their absence would mean the denial of decision and of right. In others the burden of securing these would be increased. When Congress created the advantages, we think it intended they should be available in all suits essentially for review of the Board’s awards, at any rate during the two years allowed for bringing enforcement suits. We do not believe it meant to set up a race of diligence between employer and employees to see which could beat the other into court after an award is made. The terms of the Act, particularly Section 3, First (p), clearly negative such an idea. Yet that will be the inevitable result of allowing other than enforcement suits during the period of limitations. Congress had no purpose to give the statutory advantages to the employee if' he should beat his employer to the courthouse, but to take them away if he should come in second. That is true whether the employer’s suit is one to restrain enforcement of the award, set it aside, declare it void, or reinterpret the original contract with the same effects upon the award. If a carrier can have full advantage of the administrative proceeding,¹¹ on the chance it will be successful, yet when the event is otherwise relieve itself of all its disadvantages, circumventing the employee’s rights by judicial proceedings in which they are not available, the Railway Labor Act will have become, finally, a dead letter. The Board’s awards would amount to nothing more than innocuous advice to the disputants, like that provided for under the Railway Labor Act of 1920, 41 Stat. 473 (1920), 45 U.S.C.A. § 144 (1926), or mere proposals for a new agreement, having not even the force of an offer in the law of contracts. If that is the result of the Act and of an award, Congress went to much ado about nothing. The chief effect of the legislation would be'to create much complicated machinery, capable of producing only delay and confusion in settlement of disputes which it was the avowed object of the Act to end with expeditious decision. We do not believe that Congress intended any such conseqüences.

As against thes.e views, the extreme argument is made that Congress did intend the Act to provide nothing more, prior to institution of suit to enforce an award, than an elaborate and complicated method of private, voluntary negotiation. In this conception the Board becomes a mere private go-between, without arbitral or quasi-judicial powers, not a public institution. The argument ignores the language, purposes and effects of the statute, both in its administrative provisions and in those for judicial enforcement of awards. It disregards, too, the basic, progressive and integral structure of the statute.

The entire statutory process has three distinct and primary stages: (1) direct negotiation between the disputants; (2) administrative determination; (3) judicial enforcement.¹² While these are distinct, they are not independent. Each is related to the others as links in a chain or successive steps in a stairway leading to decision. The first stage is private and voluntary. The second is voluntary, though in our view not private. The third is public and we think exclusive, though not compulsory.¹³ Despite these 'differences, each stage has special relation to and effects upon the other.

The language of the Act regarding the second phase is not that of private negotiation. Section 3 establishes the Adjustment Board and gives its first division “jurisdiction over disputes involving train- and yard-service employees.” 45 U.S.C.A. § 153, First (h). The dispute is referred to the Board, after unsuccessful private negotiation, “by petition of the parties or 'by either -party.” Id.(i) Awards must be stated in writing and “shall be .final and binding upon both parties” except as to money awards¹⁴ Id.(m). When the award favors the petitioner-employee, the Board must make “an order, directed to the carrier, to make the award effective.” Id.(o). “Jurisdiction,” “petition * * * by either party,” “final and binding upon both parties,” “an order, directed to the carrier,” these are not words of polite suggestion. They are terms of duty, if not of force. They describe power and decision, not mere advisory intermediation. That is true though the Board has no power to enforce its orders otherwise than by decision. In that respect the awards and orders may be said to constitute a kind of administrative declaratory judgment. This view is consistent, too, as the other is not, with the Act’s expressly declared objects, “to avoid any interruption to commerce * * * and to provide for 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.” 45 U.S.C.A. § 151a. (Italics in this paragraph supplied)

The enforcement provisions also show that the administrative phase is not merely advisory or simply “private negotiation.” As has been shown, awards are given substantial legal effects in the enforcement phase. In addition to those mentioned previously awards favoring employees create causes of action in their favor. 45 U.S.C.A. § 153, First (q). Mere private go-betweens have no such power, unless they are agents.¹⁵ It is true that the award is not a conclusive legal determination. That is true also of any decision, administrative or judicial, which is reviewable or determinable de novo by the courts. But that does not mean that the decision has no legal effect or that it amounts to mere private advice. If we assume that Congress could attach to the advisory action of mere private intermediaries the consequences which it has given to awards favoring employees, their character is such as to make improbable its intention to do so. That it has done so indicates rather that it regarded the Board as a public agency performing public functions. There would have been no point in resorting to Congress to establish the Board and define its jurisdiction and powers if it had been intended to be a merely private agency and its functions merely advisory. That could have been done by private arrangements. And experience with the 1920 Act demonstrated that such procedures were a failure.

The view that the Board is a public agency doing public work derives support also from the long legislative history of the Railway Labor Acts.¹⁶

But it is said the decision in Moore v. Illinois Central R. Co., supra, and language of the opinion, establish that Congress intended the Board to be a private agency and its awards to have private, advisory character. This conclusion is drawn because, according to the opinion, the Railway Labor Acts have not been “based on a philosophy of legal compulsion,” but were intended to create “a system for peaceful adjustment and mediation voluntary in its nature.” ¹⁷

The argument confuses private quality with voluntary character. It also ignores the always present limitation upon judicial language imposed by the facts concerning which it is used. It is one thing to hold that Congress intended an administrative remedy to be voluntary in nature, not based upon a philosophy of legal compulsion. It is another, and entirely different one, to hold that it intended the remedy to be legally ineffective when resorted to voluntarily by the disputants. Keeping open the usual channels of judicial relief before the administrative procedure has been set in motion is entirely consistent with and fully satisfies the statutory scheme’s voluntary character and absence of compulsion. Choice has its play for or against it. But when choice has been exercised and the statutory methods have been employed, it does not follow, from the statute or the Moore case, that Congress intended their consequences, declared by itself, to be wholly ignored by the parties or the courts as they might be if they were mere private advice or suggestion. The Moore decision holds that Congress has not compelled disputants to go before the Board. It does not hold that, having gone, they can disregard the award and its consequences at will. That would be too much to imply from the decision or the court’s language. That language has full meaning when applied to the facts of that case. In our view it is perverted when fitted to the facts of this one.

We think, therefore, that Congress intended the Board to be and to act as a public agency, not as a private go-between; its awards to have legal effect, not merely that of private advice. It intended the employees, when successful before the Board, to have definite and substantial probative and financial advantages in suits to enforce awards, which they cannot have in other suits. Because this is so, and because the Act. gave the employees two years in which to sue for enforcement, we think Congress intended the courts' during that period to keep hands off these controversies except in the manner specified in the Act. This would be true if it were necessary to regard the issue now presented as involving the existence of jurisdiction to entertain other forms of suit. . It is equally true, when the issue is considered as presenting a question of sound judicial discretion in declining to exert jurisdiction, more especially since this is a suit for a declaratory judgment. To permit maintenance of this suit would short-circuit both the administrative proceeding and the special statutory suit. It would make the Railway Labor Act a dead letter so far as legal effect is concerned, perhaps also as a “voluntary, private system of negotiation.” ¹⁸ So far as the intention of Congress goes, therefore, we cannot believe these results were contemplated.

II.

It remains to consider the constitutional questions. They are closely related to those concerning Congress’ intent. It is argued that the Act must be construed as creating merely a private, nonobligatory system of negotiation, because otherwise considered the administrative procedure is wanting in the essentials of due process of law and the remedy afforded the employer by defense to the employee’s enforcement suit is inadequate. Thus it is said that to give the Act the effect of preventing the maintenance of the present suit will deny to the carrier constitutionally guaranteed protection of its rights.

Much of the argument has been built around the alleged inadequacy of the administrative proceeding as complying with the requirements of due process, particularly in the absence of formal pleadings, opportunity for examining witnesses, and cross examining them, opportunity for representation by counsel and for oral argu-: ment. These things would be important, if the Board’s decisions were final in the legal sense and for purposes of enforcement, as to either facts or law. But, as has been shown, they have no such quality. Though the effects of an award- favorable- to an employee are substantial, they do not conclude the employer’s rights.' The Board, cannot enforce its awards. That is left fdf the courts to do. It can be done only in a suit de novo.¹⁹ In the Suit the cause of action is upon the award, to secure its enforcement. But the parties are not limited by its provisions in the trial. The iem-: ployee must set forth “the causes for. which he claims relief” and the Board’s-order. 45 U.S.C.A. § 153, First (p). The, suit must “proceed in-, all respects as other civil suits,” except that the order and findings “shall be prima facie evidence of the facts therein stated.” . Ibid. The carrier is limited in no way. as to its defenses or the evidence it may wish to -present. Its day in court in the enforcement suit is a full one. That is hardly disputed. . The short answer, therefore, to the argument that the administrative proceeding is wanting in due process is that, if so, this is entirely immaterial.²⁰ Any failure in this respect is cured by the full and complete opportunity which the carrier 'is given in the enforcement suit to make its defense under all procedural and substantive guaranties of the Constitution.²¹

That is true, unless, as plaintiff contends, the fact that its day in court under the statute is one of defense rather than offense, or both, renders its remedy or protection inadequate. It complains that the statute balances the scales of justice unevenly by permitting the employees to sue and not giving to itself the same right.

If the statute creates inequality in this respect, it is perhaps the other way. When an award is unfavorable to an employee, the statute makes no provision for him to challenge it by suit to set it aside or otherwise. So far as appears from the Acts explicit terms, the Board’s decision is final. We need not determine whether the statute is conclusive in this respect or, if so, whether it would be so far invalid. In other words, the question is not before us whether an employee can maintain a suit for relief independent of the statute and of the award, after he has submitted his case to the Board and received its adverse decision. That the statute, if applied literally in this respect, might be invalid as to the employee and that he might therefore have independent relief, does not mean that it would be invalid as to the carrier or that it should have such relief from the Board’s adverse decision. Their situations are entirely different and so are the effects upon their rights of the award and of absence of opportunity to institute suit to review it. The employee’s rights would be foreclosed, if the award against him were final. The employer’s position, on the other hand, is much different.

And in this lies a stronger answer. It is the fact that unless the employee institutes an enforcement suit, the carrier cannot be prejudiced in any legal sense by the absence of an opportunity to sue. The only purpose of such a suit would be to set aside or nullify the award. But this is not necessary for adequate protection of the carrier’s rights. The award is not self-enforcing or enforceable by the Board. It is merely a decision that the carrier should change its operating practice in the manner specified. It has the power of management and if it regards the award as contrary to its rights it can maintain the existing practices. The Act confers upon the employer the powerful advantage of defensive position in respect to the award. It places the burden of enforcement upon the employee. It limits the time within which he may act. The period allowed is not unreasonable. If he does not act within it, presumably his right to do so is gone.²² If not, he loses at any rate the special advantages of the statutory suit.

In all this there is no essential unfairness. Certainly there is none beyond the power of Congress to create in the regulation of such complex economic matters. The carrier is at full liberty to accept and comply with the award, or to reject and disregard it. If it chooses the latter course, the award has no effect upon its rights unless the employee institutes and succeeds in a suit to enforce it. If he does so, the carrier receives full constitutional protection in the suit.

A further argument remains. It is that unless the carrier can maintain such a suit as this, the employees will elect not to institute enforcement suits, but to rely upon their economic bargaining power, that is, the right to strike, to secure enforcement or acceptance of awards. Thus, it is said, .the carrier will be deprived of its day of defense, and so of its only day in court. It is urged that the court should look at the facts of industrial and railroad life and determine the effects of the statutory provision for suit in their light. If that is done, the further fact cannot be ignored that carriers, as well as labor unions and employees, have economic bargaining power. They are not entirely defenseless in-the face of threat of strike. Nor are railroad strikes so easily and readily called and put in effect that they are everyday occurrences. Employees, as well as employers, have a stake in avoiding them.²³ And there is elaborate provision in Section 2 of the Act for meeting the contingency of a strike.

There is nothing to show that the consequence feared will follow, except the unsupported and argumentative assertion that it will and the fact that few enforcement suits have been instituted.²⁴ This might mean that the carrier supinely accepts all adverse decisions of the Board, though believing them erroneous. On the other hand, it may mean that the Board has done its work well or with reasonable satisfaction to the disputants.²⁵ That this may be true is shown to some extent by the fact that a large percentage of its decisions have been favorable to the carrier.²⁶ The provisions for majority vote of the bi-partisan Board and for selection of referees in cases of deadlock go far to assure fair hearing and decision. It is entirely possible that both carriers and employees prefer acceptance of decisions so rendered to incurring the heavy expense and long delay incident ordinarily to final judicial decision in enforcement suits.²⁷ It is not alleged that strikes or threats of strike to secure employees’ demands of this character have been more frequent than they were before the amendments of 1934 which created the National Railway Adjustment Board and its procedures.

Finally, even if the argument were more persuasive factually, it is hardly sufficient to establish the unconstitutionality of the legislation. The Railway Labor Act was designed, not to outlaw the right to strike, but merely to prevent the necessity for its exercise. That it has done, as the results attest.²⁸ The argument assumes that a strike, or threat of one, to secure acceptance of an award would be unlawful. That it would be so has not been established, and the question need not now be determined.²⁹ Whether such action would be lawful ,or unlawful, the mere possibility that employees may resort to it rather than to suit is not enough to make the latter inadequate constitutionally as protection for the carrier’s rights. The weight of that possibility is properly within the discretion of Congress in determining whether the initiative in litigation shall be given to one party or the other, particularly where as here it has given no final or conclusive effect, as against the party put upon the defensive, to the cause of action to be asserted. The fact that one party to a dispute which is litigable may undertake to settle it illegally does not render a legal remedy, adequate within itself, inadequate.

It is urged also that the statutory suit is inadequate because, if no other remedy is available, the employer will face a dilemma, namely, to obey the award, thereby risking a suit for breach of contract by the tenant lines’ road engine crews; or to disobey it, thus incurring the risk of having to pay both the road engine crews for doing the work or for not letting them do it and defendants’ accumulated demands for the same work, though they will not have done it. Accordingly, plaintiff says it must build up a large fund to guard against these contingencies and should be relieved from this burden.

We are not impressed with the force of the argument as establishing either the constitutional inadequacy of the enforcement suit or (since the two come to substantially the same thing in these circumstances) the intention of Congress not to make it exclusive.

In the first place, if we assume that the dilemma is presented in the full force of plaintiff’s statement, we do not agree that permitting plaintiff to maintain the present suit would give it certain escape. The contrary argument assumes that the decision on the merits would be in plaintiff’s favor and would be rendered more promptly than plaintiff could secure final determination of its rights under the provisions of the Railway Labor Act. Neither assumption can be made. Of course, defendants’ claims would be disposed of and the dilemma would be resolved by a decision in plaintiff’s favor. But it is hardly probable that this could be ■ accomplished in the ordinary course of litigation within the two years allowed the employee to bring his enforcement suit.³⁰ After that time the statutory bar against his suit would appear to make recourse to the courts by the carrier unnecessary.³¹ We cannot assume that the decision on the merits would be in the employer’s favor. If it were otherwise, it is true that the rights existing under the contract would be adjudicated as between the plaintiff and the defendants. But that would not be true as to any rights of the tenant lines’ crews against the plaintiff. They are not parties to this suit, the collective agreement or the award. The contract or arrangement under which they do the disputed work is not in evidence or in issue. Their rights, therefore, could not be determined in this suit. Cf. Nord v. Griffin, 7 Cir., 1936, 86 F.2d 481. .Consequently, a decision in favor of the defendants could not relieve the plaintiff from its dilemma. The tenant lines’ crews could assert their claims in other litigation. It is therefore highly questionable whether permitting plaintiff to have declaratory relief would give it a more prompt and certain escape than is afforded under the Railway Labor Act. If the enforcement procedure, including the statutory bar, is inadequate for failure to afford relief from the dilemma, the declaratory judgment suit, as it is sought to be maintained here, is hardly less so. Constitutional inadequacy of one remedy is not cured by substitution of another which is equally inadequate or substantially so.

But we do not believe the dilemma is as strong as plaintiff makes it .appear. The record does not show that it is under any contractual obligation to the tenant lines or their employees to have the latter perform the work. As the dissenting opinion points out, it may be inferred from statements in the pleadings and the briefs on appeal that the expense of the service done by the train crews is borne by the plaintiff. But it is not shown that this is pursuant to any contract which gives them the right to do this work. It appears merely that there has been a “practice to keep a strict accounting between the parties of the amount and value of such services, and periodically the plaintiff is required to pay, and does pay to the Tenant Lines, sums equal to the reasonable value of said services.” (Italics supplied.) It does not appear that the tenant lines’ employees have any personal claims against the plaintiff or that they or the tenant lines themselves have any contractual right to do or continue doing this work. The largest permissible inference is that the tenant lines have a right, under the practice which has been followed, to be reimbursed by pláintiff for the value of the services actually rendered by their employees. On the record before us plaintiff could change its operating practice at will and without further liability than to pay the tenant lines the value of the work done prior to the change. The supposed dilemma, therefore, is not one created by inconsistent contractual obligations giving others the right to do the work or serious probability that they will be asserted. It is entirely immaterial that the work has been done by the tenant lines rather than by plaintiff in some other way. Whether it is done by plaintiff itself or by others, plaintiff must bear its cost. That is an inevitable consequence of its decision not to put the award into effect. So is the risk that the employee may succeed in an enforcement suit and thus subject plaintiff to possible liability for damages for breach of the collective agreement.

The dilemma therefore boils down to the fact that plaintiff will have to bear the expense of having the work done, consequent to its own election not- to accept the award, and, if an employee succeeds in an enforcement suit, whatever damages for breach of the collective agreement may be claimed and proved. These consequences of its election to maintain the status quo cannot have been without the contemplation of Congress when it adopted the enforcement procedure. They hardly present the difficulties which would arise from independent agreements allocating the work to. different persons or groups. We do not think the enforcement procedure is made constitutionally inadequate merely because the carrier prefers, as is its right, not to put the award in force, but to follow an advantageous practice which it could change at will and, consequently, to incur the necessary expense of doing so.

But, if it were shown that the carrier had bound itself by conflicting contracts allocating the work, and thus the dilemma were complete, it would not follow that the enforcement suit is inadequate or was not intended to be exclusive or that declaratory relief would be appropriate. We know of no constitutional protection against the consequences of making inconsistent contracts concerning the same subject matter nor of any which renders inadequate a proceeding, otherwise sufficient, merely because others not parties to it may assert claims inconsistent with its result and perhaps succeed in sustaining them by independent litigation. The risk of multiple liability, that is, the possibility that two or more claimants may assert, severally and independently, similar causes of action covering identical subject matter, is an everyday occurrence. That risk presents a common and peculiarly appropriate situation for declaratory relief when it can remove the risk and other adequate relief is not available. But so to apply the declaratory judgment procedure is vastly different from applying it where, as here, it could not remove the risk and where it would displace a special remedy provided for decision of highly complex and specialized questions. The primary purpose of the Declaratory Judgments Act is to give relief in situations in which it was not previously available, not to displace existing and, particularly, special remedies devised for peculiar situations. Nor is it intended to remove all risk of multiple liability. That, unfortunately, is a function not covered as yet, by legal invention.

Finally, if it were clear that allowing plaintiff to maintain this suit would eliminate or minimize its risk of multiple liability, that advantage to plaintiff still would have to be weighed against the corresponding disadvantages created for the employees and the adverse effects upon the whole statutory plan. Plaintiff’s disadvantage under that plan comes down to having the initiative in litigation concerning awards given to the employees for two years. That price hardly seems unreasonable for Congress to exact in exchange for the strong defensive position given the employer with respect to the award and the prompt disposition of disputes which the Act has made possible. The statute denies the employee the more usual advantages of administrative decision, namely, immediate effectiveness unless stay is secured, limitation of judicial review to' questions of law, enforcement by public authority, etc. It gives him only decision, not action, by the Board. It puts upon him the whole burden of enforcement. In view of all these relative advantages and disadvantages, we find no essential unfairness in leaving to the employee the decision whether the award shall be enforced and limiting the period in which his decision can be made to two years. Certainly there is no discrimination beyond the power of Congress to create. Suspension of the carrier’s initiative in litigation for that period of time is not an infringement of constitutional right. As we have said, to hold otherwise would disrupt the working of the Railway Labor Act, as well as deprive the employee of the statutory special advantages in the enforcement suit. These consequences forbid the implication that Congress intended them.

The foregoing considerations are reinforced by the fact that the carrier, under the decision in Moore v. Illinois Central R. R., supra, can bring its suit on the contract, independently of the statute, prior to the time when the dispute is submitted to the Board. Until then, at least, it has its election to pursue the exclusively judicial remedy or to follow the administrative and judicial one provided by the Railway Labor Act. When it chooses the latter, we think it is bound to follow it through to the conclusion prescribed by the statute. Such a choice is made, we think, not only when the carrier submits or joins in submitting the dispute to the Board, but, when under submission by an employee, it appears before the Board and participates in a full hearing on the merits. Having done these things, had the chance of a favorable decision, and finally, when it has lost, been confronted only with an order not enforceable except by a suit which has not been brought, which it seeks in effect to forestall by this one, and in which, if begun, it would have had a full day in court, plaintiff cannot complain that it has not had complete opportunity to protect it rights or that they have not been protected adequately.

What plaintiff attacks, fundamentally, is the whole idea of the enforcement suit plan. The provisions for the enforcement suit are unusual. Some of the features of the administrative phase of the statute are unique. But enforcement suits are not unknown,³² and neither the fact that they are unusual nor the other that the administrative provisions and procedure are unique renders the Act unconstitutional. It is the total effect of the two phases, not the segmented effect of the first, which must determine that question. The administrative phase has been criticized. On the other hand, it has been commended. No doubt there is room for considerable improvement.³³ But these matters are for Congress’ judgment. The present Act has evolved from a long legislative history. Many of its unique features are derived for that.³⁴ Though the administrative features are frankly not in the accustomed traditions and methods of courts and lawyers,³⁵ the enforcement suit follows them except possibly as to the initiative in litigation. That it may not do so in this single respect does not, as has been shown, deprive the carrier of legal protection according to due process of law.

Nor does it that Congress may have intended to discourage resort to the courts for enforcement of awards and settlement of these disputes after the initial stages of private negotiation and administrative decision, thus securing the prompt disposition which the Act avowedly sought.³⁶ If that was Congress’ intent, its constitutional power over the jurisdiction of the federal court sustains it both in providing the remedy which it has given and in excluding others. Though some of them were decided before, and at least one after the Moore decision was rendered, the decisions cited below, or their implications, appear to bear this out.³⁷

Finally, this is a suit for a declaratory judgment. The remedy is discretionary. ³⁸ We do not believe a carrier, consistently with the Railway Labor Act, could maintain a suit in equity to set aside an award or enjoin its enforcement. The statute seems clearly to exclude such suits by specifying enforcement suits solely as a method of review, and the absence of reported cases showing attempts to maintain other types of suit supports this view. The declaratory action has much of equitable quality in regard to the discretion which should be exercised in allowing relief. Its effect here, if plaintiff should be successful, would be substantially the same as setting aside the award or enjoining enforcement. Consequently, we can see no valid reason for excluding these remedies which does not apply with equal force to that by declaratory judgment, whether as a matter of congressional intent or one of judicial discretion in allowing that relief. To allow it also would deprive the employee of his special advantages in litigation. It would displace another, and in our view, an adequate judicial remedy specially devised for the particular situation. When this is the effect, courts generally deny declaratory relief. ³⁹ The doctrine of “primary jurisdiction” [See Note (1938) 51 Harv.L.Rev. 1251] and considerations of comity toward a specialized administrative tribunal charged to deal with such matters lend weight to the view that it should be denied in these circumstances. The former has been applied most frequently when the administrative body has exclusive jurisdiction, or where exhaustion of the administrative remedy is required, to prevent the suit from being premature or to give the court the benefit of the administrative judgment in advance of its own action. The present case is one appropriate for the same attitude, even though it was not regarded as appropriate for the situation in Moore v. Illinois Central R. R., supra. Furthermore, the railroad employees who are now doing the disputed work, or their union representatives, have not been made parties to the action. Their rights may be affected by the result. In these circumstances also declaratory relief ordinarily is refused.⁴⁰ All these considerations apply not only to show the intention of Congress, but also to guide the court’s discretion toward denial of declaratory relief.

The reasons we have stated support the view that the court did not have jurisdiction to entertain the present suit. But, whether or not it had jurisdiction, the action was premature. For practical purposes it matters little whether one or the other reason constitutes the basis for decision. The important thing is that the statute gave the initiative in litigation to review the award to the employee for two years. For disposing of this case, it is immaterial whether this amounted to a mere suspension, for that period, of the employer’s right to sue or was intended, with other provisions of the Act, to bar it altogether. It seems clear that the limitation upon the employee’s right to sue was intended to bar action by him after the two years expire; otherwise it would be meaningless. ⁴¹ That being true, his failure Í0 sue within the time might be regarded reasonably as disposing finally of his claims determined by the award. Correspondingly, it might be held, with reason, that there would be no need for suit by the carrier after that time, and therefore that the court was deprived of jurisdiction. But we need not and do not decide whether either the employee or the employer could sue after expiration of the two years. The facts do not present these questions. But, in any event, if it is assumed that the employer may wait until the period of limitations has passed and then bring its action, its right to bring it within that time is clearly barred. If that were not true the statute would be meaningless in giving the employee the initiative in litigation and the special statutory advantages, as well as in placing a limitation upon the time for his suit.

There is no escape from this conclusion in the assertion that this suit is one to enforce rights arising under the original agreement, not to review or nullify the award, and therefore the statutory bar or suspension does not operate against it. As we have said, the fundamental issue presented in this action is identical with thatdetermined by the award and with that which would be decided by an enforcement suit, namely, whether the employees have the right under the contract to do the work in dispute. That issue cannot be decided in independent litigation and in favor of plaintiff without nullifying the award and the consequences which the statute attaches to it in the enforcement suit. To assert therefore that the only rights involved in this suit are rights arising at common law under the contract, and that the rights given to the employee by the statute are not affected or involved,-is either to beg the question or to ignore the inescapable effects of this suit, and the relief it would afford, upon the latter. What the plaintiff really seeks to do is to have all of the advantage of the statutory plan up to the point of the award and enforcement, and to escape from its disadvantages thereafter. We do not think it is so entitled to have its legal cake and eat it too.

Limiting the decision therefore squarely to the facts and the issues which they present, we find no constitutional inadequacy in the ' protection afforded to the plaintiff under the provisions of the Railway Labor Act, merely by reason of the fact that its right to initiate litigation to nullify an award is barred'or suspended for a period of two years.

The judgment is affirmed.

1 The Act was amended by Act of August 30, 1935, 49 Stat. 1027, 28 U.S.C. § 400.

2 The facts do not require us to be concerned with the question whether suit independent of the statute could be instituted by either party after the expiration of the two-year period. But cf. infra this opinion.

3 The Brotherhood of Locomotive Engineers and the Brotherhood of Locomotive Firemen and Enginemen.

4 Section 3, First (i), 45 U.S.C.A. § 153, First (i), requires private negotiation up to the carrier’s chief operating officer for handling disputes, and provides: “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 * *

5 Although plaintiff declined to make a joint submission, when defendants submitted the dispute plaintiff made no objection to the Board’s jurisdiction but appeared and participated in the proceedings throughout without questioning the Board’s power to make an award. It need not be decided whether plaintiff might have refrained from appearing or participating. It elected to do so, and thus had the full benefit of the proceeding. If the proceeding had been a suit in court, the appearance would have been a general one.

6 The facts have been stated only in essential outline. A more detailed statement appears in the able dissenting opinion, to which reference is made in the interest of economy of space.

7 Under Section 3, First (p), 45 U.S.C.A. § 153, First (p), the employee’s petition in the enforcement suit must set forth “the causes for which he claims relief, and the order of the division of the Adjustment Board in the premises.” He is not limited to matters stated in the award, nor is the carrier in its defenses. But those matters necessarily are in issue, and generally they are the only ones when the dispute, the administrative proceeding and the award involve interpretation, and application of agreement. The suit is de novo, not merely one for review proper.

8 “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 spit 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, or as may be appropriate to enforce or , set aside the order of the division of the Adjustment Board.”

9 As will be shown, infra, the Act appears designed to reduce resort to the courts for determination of these controversies to a minimum, consistent with adequate constitutional protection for the rights of the disputants.

10 An instance of railroad vocabulary is cited in Garrison, The National Railroad Adjustment Board: A Unique Administrative Agency (1937) 46 Yale L. J. 567, 569, note 10: “The following bulletin was issued by a superintendent of the Southern Pacific Ry. in San Jose, Cal., on Dec. 20, 1928: ‘All Yardmasters: Effective date, all yardmen in cannon-ball service bringing drags in yard from outside points will bleed and cut own cars.’ ”

11 According to statistics available in 1938, approximately one-third of the Board’s awards were in favor of the carrier. Of a total of 3,134 decisions rendered, petitions were sustained in 1,745 cases, denied in 888, sustained in part in 394, and dismissed or remanded in 107. Spencer, The National Railroad Adjustment Board (1938) 50. Since the Act makes no provision for suit by the employee to set aside or review unfavorable awards, it is at least doubtful whether such a remedy exists. Of. infra this opinion. If none exists, the carrier has the advantage, when successful before the Board, of a conclusive determination. If, on the contrary, the employee may have review independently of the statute, lit. would be without benefit of the statutory advantages.

12 The negotiating phase is covered by Sections 2 (First to Tenth), 3, First (i), 48 Stat. 1186, 1191, 45 U.S.C.A. §§ 152, 153, First (i) (1934); that of administrative determination by Sections 3, First (a-o), 48 Stat. 1189-92, 45 U.S.C.A. §§ 153, First (a-o) (1934); and that of judicial enforcement by Sections 3, First (p), (q), 48 Stat. 1192, 45 U.S.C.A. §§ 153, First (p), (q) (1934).

13 The Act permits, but does not require, the employee to bring an enforcement suit. Section 3, First (p).

14 This provision is qualified by the absence of provision for enforcement by the Board and by the provision of Section 3, First (p), that the findings and order shall be prima facie evidence of the facts stated, in the enforcement suit. Cf. note 36 infra.

15 The Board is bi-partisan, 45 U.S.C. § 153, First (a), as are its divisions [Id. (h)], and the members are paid by the parties who select them. But awards can be made only by a majority and, when the members deadlock, a referee participates to break it. There is, of course, something of partisan representation, but it is not that of private agency. The Board and its divisions act in their official capacities when making awards. Cf. Final Report of the Attorney General’s Committee on Administrative Procedure (1941) 185, 186.

16 For this see Spencer, The National Railroad Adjustment Board (1938); Garrison, The National Railroad Adjustment Board: A Unique Administrative Agency (1937) 46 Yale L. J. 567.

17 312 U.S. at pages 635, 636, 61 S.Ct. at page 756, 85 L.Ed. 1089.

18 It is doubtful whether parties would resort to a procedure which could be discarded at any moment without some adverse legal effect. In that event, the only certain result would be delay in the final settlement.

19 Because of its prima facie factual effect, the award may give the suit something more than the character of a normal suit de novo. But the suit may be classified thus more accurately than as one for review proper.

20 Cf. note 32 infra. See also the enforcement suit provisions of the Federal Trade Commission Act, Sections 9 and 10, 38 Stat. 723, 15 U.S.C.A. §§ 49, 50, held to provide adequate, and as we construe the decisions, exclusive, remedies in Federal Trade Commission v. Claire Furnace Co., 1927, 274 U.S. 160, 47 S.Ct. 553, 71 L.Ed. 978, and Federal Trade Commission v. Maynard Coal Co., 1927, 57 App.D.C. 297, 22 F.2d 873. In bur view, the enforcement procedure prescribed by Sections 9 and 10 of the Federal Trade Commission Act is not distinguishable from that presently involved, either by the fact that in the former the suit was instituted by the Attorney General, in his discretion and at the request of the Commission, or by the fact that the orders were to file reports with it rather than decisions concerning contract rights and adjustment of private disputes. As to the first asserted ground of distinction, the Attorney General’s discretion was a limitation upon the Commission^ power to institute the enforcement suit, not a grant of power to the complainant to set it aside. Plaintiff complains here, not because defendant can institute the enforcement suit or because his power to do so is not limited by a discretion given to a public official, but because it is not given the right to sue to set aside the award. As to the second ground, it may be doubted whether persons are entitled to greater protection, in the constitutional sense, respecting contract rights and disputes concerning them than they -are with respect to inquisition concerning private business affairs and possible publication of the information derived from it. .

Except in respect to the initiative in litigation, analogies to the enforcement procedure presently before us may be found in the procedure prescribed by Section 4915, R.S., 35 U.S.C.A. § 63, for obtaining a patent, in which the issues are triable de novo on all the competent evidence, General Talking Pictures Corp. v. American Tri-Ergon Corp., 3 Cir., 1938, 96 F.2d 800, but the adverse decisions of the Patent Office, by reason of its expert technical knowledge, are entitled to great weight, Abbott v. Coe, 1939, 71 App.D.C. 195, 109 F.2d 449; and also in proceedings before the Board of Tax Appeals, in which the determination of facts by the Commissioner of Internal Revenue is regarded as prima facie correct. Flynn v. Commissioner of Internal Revenue, 5 Cir., 1935, 77 F.2d 180; Mente v. Commissioner of Internal Revenue, 5 Cir., 1935, 76 F.2d 965; Green’s Advertising Agency v. Blair, 9 Cir., 1929, 31 F.2d 96; cf. Phillips v. Commissioner of Internal Revenue, 1931, 283 U.S. 589, 51 S.Ct. 608, 75 L.Ed. 1289.

21 Cf. Nickey v. Mississippi, 1934, 292 U.S. 393, 54 S.Ct. 753, 78 L.Ed. 1323; Pike v. Walker, 1941, 73 App.D.C. 289, 121 F.2d 37; Montana Power Co. v. Public Service Commission, D.C.Mont.1935, 12 F.Supp. 946, reversed on other grounds, Mountain States Power Co. v. Public Service Comm., 1936, 299 U.S. 167, 57 S.Ct. 168, 81 L.Ed. 99; Cook v. Des Moines Union Ry., D.C.S.D.Iowa 1936, 16 F.Supp. 810; 16 C.J.S., Constitutional Law, § 628, p. 1280. See also Crowell v. Benson, 1932, 285 U.S. 22, 52 S.Ct. 285, 76 L.Ed. 598.

22 Otherwise the limitation of Section 3, First (q), 45 U.S.C. § 153, First (q), would be meaningless. It is not contended that the remedy afforded the employee when the award is in his favor is inadequate. It may have been the philosophy of the Act to provide a reasonable period for litigation following the award and when that has passed to make an end of the whole matter by barring the employee’s asserted claims.

23 Cf. Spencer, op. cit. supra note 11, at 64: “It is true, of course, that the controversies over which the Board has jurisdiction are not of such a character, generally speaking, that they produce strikes and other serious consequences. At the same time an accumulation' of these minor controversies which cannot be settled quickly and equitably tends to breed suspicion and distrust on the part of employees, and, of course, may result in major controversies.” The major causes of strikes, i. e., those involving questions of representation for collective bargáining, making of collective agreements, etc., are committed to the Mediation Board rather than the Adjustment Board, by Section 2 of the Act. Cf. Spencer, op. cit. supra, at 30.

24 So far as we have discovered the only reported case thus far brought to enforce an award is Estes v. Union Terminal Co., 5 Cir., 1937, 89 F.2d 768. It is understood that other cases are now pending in the courts to secure enforcement.

25 Cf. Garrison, op. cit. supra note 10, at 592, 593. See also Final Report of the Attorney General’s Committee on Administrative Procedure (1941) 185-8; Spencer, op. cit. supra note 11, 49 ff., 63; Administrative Procedure in Government Agencies, Sen. Doc. No. 10, Part IV, 77th Cong., 1st Sess. (1941).

26 Cf. note 11 supra.

27 For instance, Moore v. Illinois Central R. Co., 1941, 312 U.S. 630, 61 S.Ct 754, 85 L.Ed. 1089, though not .an enforcement suit, illustrates th.e possibilities for delay in judicial disposition of these controversies. The litigation originated in the state courts of Mississippi in October, 1932, though the suit in which that decision was rendered was not begun until 1936. Since then, through nine years, it has wended its tortuous way, back and forth through state and ■ federal courts, until it reached the Supreme Court and was decided on March 31, 1941. Now it is on its way back again for another round. This circle of litigation, reminiscent of that pointed out in the dissent in McCart v. Indianapolis Water Co., 1938, 302 U.S. 419, 423, 437, 58 S.Ct. 324, 82 L.Ed. 336, hardly comports with the promptness required by purposes of the Railway Labor Act as stated in Section 2, though it may afford a maximum of orderliness. The present litigation might he cited also to the same effect.

28 It is not alleged that any strike has been instituted to enforce an award. In one instance a strike ballot was taken. Garrison, op. cit. supra note 10, at 591, note 94. See also First Annual Report of the National Mediation Board (1935) 29; Second Annual Report (1936) 34.

29 Possibly the answer would depend on whether the award conforms to the employees’ rights as finally determined judicially. If so, and the two should coincide, the strike would not be unlawful.

30 Cf. note 27 supra.

31 Cf. note 22 supra.

32 Cf. Sections 16(1), 16(2) of the Interstate Commerce Act, 34 Stat. 590 (1906), as amended by 36 Stat. 554 (1910) and 41 Stat. 491 (1920), 49 U.S.C. § 16(1,2), and Section 309 (f) Packers and Stockyards Act, 42 Stat. 166, 7 U.S.C. § 210(f) (1921). As to the former, see 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; Baltimore & O. R. Co. v. United States, 3 Cir., 1937, 87 F.2d 605; Baltimore & O. R. Co. v. Brady, 1933, 288 U.S. 448, 53 S.Ct. 441, 77 L.Ed. 888, in the last of which the Court held that claimant, having elected to pursue his administrative remedy before the Commission, was not entitled to recover more than the amount of the award, though he might have done so by suing originally in the district court. See also Meeker v. Lehigh Valley R. Co., 1915, 236 U.S. 412, 35 S.Ct. 328, 59 L.Ed. 644, Ann.Cas. 1916B, 691, and St. Louis & S. F. R. Co. v. Spiller, 1927, 275 U.S. 156, 48 S.Ct. 96, 72 L.Ed. 214; 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. Compare note 20, supra.

33 Cf. Garrison, op. cit. supra, note 10, at 593-598; and the guarded recommendations of the Attorney General’s Committee on Administrative Procedure, Final Report (1941) 185-188.

34 Cf. Spencer, op. cit. supra, note 11, at 8-12; Garrison, op. cit. supra, note 10, at 568-576; and the Final Report, cited in the preceding note, at 185.

35 Cf. Garrison, op. cit. supra, note 10, at 598: “It is difficult to conceive of the Board’s being able to discharge its functions under any set-up which would fit within these traditional legal concepts.”

36 Cf. Meeker v. Lehigh Valley R. Co., 1915, 236 U.S. 412, 35 S.Ct. 328, 59 L.Ed. 644, Ann.Cas.l916B, 691; St. Louis & S. F. R. Co. v. Spiller, 1927, 275 U.S. 156, 48 S.Ct. 96, 72 L.Ed. 214. In Cook v. Des Moines Union Ry., D.C.S.D.Iowa 1936, 16 F.Supp. 810, 813, Dewey, District Judge, said, with reference to the provision of the Act that the award “shall be final and binding upon both parties”:

“It is unnecessary to determine whether or not this might be a depriving of due process in certain cases * * *. The purport of the act may be to provide that the award made by an Adjustment Board shall be final so long as it is not attempted to be enforced. * * * Therefore there is no deprivation * * * of any . rights unless and until the suit is filed in the District Court * * *. When this is done it becomes an action at law with the right of a jury. The entire case is open for trial as a law action on the original suit.”

37 See Railroad Yardmasters of North America v. Pittsburgh & Lake Erie R. Co., D.C.N.D.Ohio 1940, 39 F.Supp. 876. See also Adams v. New York, Chicago & St. L. R. Co., 7 Cir., 1941, 121 F.2d 808, decided after the decision in the Moore case was rendered, and distinguishing Nord v. Griffin, 7 Cir., 1936, 86 F.2d 481. However, on June 24, 1941, the opinion was withdrawn, to the extent that it conflicted with the Moore decision, and a judgment of reversal was substituted for the previous one affirming the action of the District Court in refusing to exercise declaratory jurisdiction, 1941, 121 F.2d 808.

38 Cf. Borchard, Declaratory Judgments, 2d Ed. 1941, 293-314.

39 Id. at 342-346, and authorities cited; 16 Am.Jur. 295, § 21.

40 Cf. Borchard, op. cit. supra note 38, at 255, 299, 304. See also Section 6, Uniform Declaratory Judgments Act.

41 Cf. note 22 supra.