(concurring in part and dissenting in part).
I. agree that the court below was without authority to appoint a receiver and that the proper remedy was a mandatory injunction enjoining the railroad to resume operation. However, I do not agree with some of the reasoning of the majority opinion in connection with this latter proposition. I would hold that the cross-complaint was properly dismissed.
The complaint alleges that the defendant-company has failed since October 1, 1945 to furnish transportation to the plantififs and that since said date it has abandoned operation of the railroad. The court below made a finding of an abandonment as alleged, which I think should be accepted by this court. While the opinion approves of a mandatory injunction, I am unable to discern the basis therefor. The opinion appears to hold that there was no abandonment and that the railroad cannot be required to operate' in the face of unlawful conduct and the acts of violence on the part of the Brotherhoods. I do not agree with either premise. If the former is correct, I doubt if there is any authority for the issuance of a mandatory injunction, and if the latter is accepted its issuance would be futile. Such an injunction could serve no useful purpose if the railroad cannot be required to comply because of interference from the Brotherhoods or otherwise.
Sec. 1(4) of the Interstate Commerce Act, Sec. 1, Title 49 U.S.C.A., provides: “It shall be the duty of every common carrier subject to this chapter engaged in the transportation of passengers or property to provide and furnish such transportation upon reasonable request therefor * * Sec. 1(18) of the same Act provides: “No carrier by railroad subject to this chapter * * * shall abandon all or any portion of a line of railroad, or the operation thereof, unless and until there shall first have been obtained from the. commission a certificate that the present or future public convenience and necessity permit of such abandonment.” Sec. 1(20) of the same Act provides: “Any * * * abondanment contrary to the provisions of this paragraph or of paragraph (18) * * * may be enjoined by any court of competent jurisdiction at the suit of * * * any party in interest * * *.”
Thus there is imposed upon a railroad the positive duty to provide and furnish transportation of passengers or property, it is prohibited from abandoning all or any portion of its line or the operation thereof, and for failure to discharge this statutory duty may be enjoined at the suit of any party in interest. .
As already noted, Sec. 1(18) refers to two separate and distinct forms of abandonment, that is, (1) “of a line of railroad,” or (2) “the operation thereof.” Assuming that there was no abandonment under the first classification, I am of the view that there was under the second, and that the reason or excuse, whichever it may be, for the abandonment of operation is wholly immaterial. The majority opinion, so I think, places too much stress upon the labor controversy existing between the railroad and its employees and fails to ascribe sufficient importance to the rights of the plaintiffs, the shippers, for whose benefit and on whose behalf the law imposes a positive duty to provide and furnish transportation.
Thus the District Court, in case of abandonment (in this case of operation), is specifically authorized at the suit of any party in interest to command the railroad to comply with its duty as prescribed by statute. In other words, the court by statutory provision had the authority to issue a mandatory injunction. Moreover,' there are authorities which support the propriety of such an injunction. Toledo, A. A. & N. M. Ry. Co. v. Pennsylvania Co., et al., C.C., 54 F. 746; In re Lennon, 166 U.S. 548, 17 S.Ct. 658, 41 L.Ed. 1110; Lucking v. Detroit & C. Nav. Co., 265 U.S. 346, 44 S.Ct. 504, 68 L.Ed. 1047; People v. New York Central & H. R. R. Co., 28 Hun, N.Y., 543 ; McCran v. Public Service Ry. Co., 95 N.J.Eq. 22, 122 A. 205; Loader v. Brooklyn Heights Railroad Co., 14 Misc. 208, 35 N.Y.S. 996, 999; Stephens v. Ohio State Telephone Co., D.C., 240 F. 759.
The majority opinion appears to hold that in addition to the mandatory injunction a restraining order should be issued against the Brotherhoods for the purpose of enjoining interference with the railroad’s operation, the relief prayed for in the rail-*121road’s cross-complaint. The opinion, however, leaves me in doubt as to whether this restraining order is to be issued, upon the cross-complaint or merely as incidental to the issuance of the mandatory injunction. I think, however, such an order at this stage of the proceeding is improper, whichever be the basis for its issuance. Certainly the railroad is not entitled to an injunction against the Brotherhoods for the reason that it admittedly has not complied with the Railway Labor Act and the Norris-LaGuardia Act. In fact, the cross-complaint is not sworn to and its potency as a pleading is nothing more than a scrap of paper. The lower court rightly ordered it stricken.
If, however, the injunction directed at the Brotherhoods is to be predicated upon the premise that it is to issue as ancillary and for the purpose of protecting the court’s mandatory injunction, the position is still vulnerable. It likewise raises the question as to whether such an injunction may issue without compliance with the Railway Labor Act and the Norris-LaGuardia Act. Without deciding this question, I would leave the matter to the judgment of the District Court. Assuming that the court has the authority, the necessity for such a restraining order can better be determined after the issuance of the mandatory injunction. This court should not assume that either the Brotherhoods, the connecting carriers or anybody else will interfere with the railroad’s compliance therewith.
If, however, there should be interference I have no doubt but that the court is possessed of all the power and authority necessary to enforce compliance with its mandatory injunction. I think there is no limit to its power in this respect. Any person or corporation, whether it be management, employees or a connecting carrier, which obstructs or interferes with this mandatory injunction would be in contempt of court, and this irrespective of whether they are parties to the instant proceeding. Of course, the court is powerless to prevent the present employees from striking or refusing to work, but it has the power to prevent such employees from interfering with other persons who are desirous and willing to work.
This view finds support in Re Lennon, supra. There a certain railroad brought suit against certain other railroads, alleging that they had refused to accept an exchange of cars because the complainant’s employees were non-union. The complaint alleged that such refusal was in violation of a duty imposed by the Interstate Commerce Act. A mandatory injunction was issued against the defendant railroad directing a compliance with the duty thus imposed. (A detailed statement of the facts appears in Toledo, A .A. & N. M. Ry. Co. v. Pennsylvania Co. et al., C.C., 54 F. 746.) Certain employees of the defendant refused to obey the injunction by interference with its operation. Among such employees was Lennon, a locomotive engineer. He was cited for contempt, found guilty of disobeying the injunction, a penalty was imposed by the court and he was placed in the custody of the United States Marshal. Thereupon Lennon filed a petition in habeas corpus, alleging that he was unlawfully detained. As the opinion discloses (page 552 of 166 U.S., 17 S.Ct. 658, 41 L.Ed. 1110), the only question considered by the Supreme Court was the jurisdiction of the lower court in holding Lennon for contempt. It was held that the court had jurisdiction of the cause because it was an action brought to enforce compliance with a provision of the Interstate Commerce Act and it therefore was a case arising under the laws of the United States. It was also argued on behalf of the petitioner that the court had no jurisdiction over him inasmuch as he was not a party to the proceeding out of which the mandatory injunction issued. The court in denying this contention stated (page 554 of 166 U.S., page 660 of 17 S.Ct., 41 L.Ed. 1110): “To render a person amenable to an injunction it is neither necessary that he should have been a party to the suit in which the 'injunction was issued, nor to have been actually served with a copy of it, so long as he appears to have had actual notice.” The court found that Lennon had actual knowledge of the issuance of the injunction and affirmed the lower court. Thus this case is a direct authority upon two propositions material in the instant case, (1) that the court has the authority to en*122force compliance with a statutory requirement by means of a mandatory injunction, and (2) that any person, whether a party to such proceeding or not, who' interferes with such compliance would be guilty of contempt providing, of course, he had actual knowledge of the order. It is difficult in the instant case to discern any basis on which the Brotherhoods and their members could claim that they had no notice of such an order, inasmuch as they are actual parties to the proceeding. Moreover, when and if the mandatory injunction issues the lower court would be free to give such further notice as it might deem proper to the Brotherhoods, the connecting carriers or any other person or persons who might be likely to interfere with its mandate.
True, there may be difficulties attendant upon obtaining compliance with the mandatory injunction but that also may be true with any other form of injunction. Such difficulties cannot be aided by doing the novel and unusual thing of ordering one injunction for the purpose of enforcing another. The issuance of this additional injunction will not broaden or increase the power of the court to obtain compliance with its mandatory injunction and neither will it increase the hazard for those who interfere therewith.'
So I would reverse the order appointing a receiver, affirm the dismissal of the railroad’s cross-complaint and direct the issuance of a mandatory injunction, enjoining compliance by the railroad with its statutory duty to operate.