(dissenting).
I dissent. The majority view is that (1) this Court is without jurisdiction for lack of a substantial federal question, and (2) even were there jurisdiction the case is one in which federal abstention should apply.
In my view, a substantial federal question is presented and Public Service Commission of Utah v. Wycoff Co., 1952, 344 U.S. 237, 238, 73 S.Ct. 236, 97 L.Ed. 291, is distinguishable. That opinion, as I read it, simply holds that, since there had been no stated demand or threat, “this dispute has not matured to a point where we can see what, if any concrete, controversy will develop.” 344 U.S. at page 245, 73 S.Ct. at page 241.
Here there is no uncertainty as to the demand which the state may make, for the demand, through the Public Service Commission, has already been made: that Bonanza resume service at Hawthorne and Tonopah. We need not await action in the state courts to determine the nature or scope of the demand. Bonanza’s claim in this action is not a mere anticipatory defense to a claim which the State may make in the future. It is a present claim to relief against a present demand. If there be doubt as to *680Nevada’s position, it is not as to the nature or scope of the demand. Rather, it is whether Nevada, in the face of a contest or through state review, would withdraw or moderate its demand. The issue upon the merits is as to the legality under federal law of the demand the State has now officially made. To me, that is a federal question. I cannot agree that the possibility of a change of heart or of point of view on the part of the State should render that question not yet ripe for federal decision. If the rule is to be that in all cases the question of legality of state action under federal law is to be tried in the state courts, that rule, to my mind, has not yet been clearly announced.
Further, I feel that the injury alleged constitutes irreparable injury sufficient to confer equitable jurisdiction. If Nevada’s demand is to be met, Bonanza must incur substantial expense in restoring and maintaining its facilities at Hawthorne and Tonopah and in rendering the necessary service to these communities, no part of which expense is recoverable. Public injury, as alleged, through burden upon or interruption of interstate commerce should be sufficient to confer jurisdiction for declaratory relief.
This case would seem to me to be governed not by Wycoff, but by Public Utilities Commission of State of California v. United States, 355 U.S. 534, 78 S.Ct. 446, 2 L.Ed.2d 470. At pages 538-539 of 355 U.S., at page 450 of 78 S.Ct., the Wycoff case is distinguished in this language:
“The Commission has plainly indicated an intent to enforce the Act; and prohibition of the statute is so broad as to deny the United States the right to ship at reduced rates, unless the Commission first gives its approval. The case is, therefore, quite different from Public Service Commission vs. Wycoff Co., 344 U.S. 237 [73 S.Ct. 236, 97 L.Ed. 291], where a carrier sought relief in a federal court against a state commission in order ‘to guard against the possibility,’ id., 344 U.S. at page 244 [73 S.Ct. at page 240] that the Commission would assume jurisdiction. Here the statute limits transportation at reduced rates unless the Commission first gives approval. The controversy is present and concrete — whether the United States has the right to obtain transportation service at such rates as it may negotiate or whether it can do so only with state approval.”
I disagree also that this is a case for federal abstention. I feel that we may assume that the state courts would construe Nevada law as conferring upon the commission the authority to regulate to the full limit of the State’s constitutional powei*. Still the scope of that power will depend upon the extent of impact of federal law: whether the federal government has preempted the field. Construction of the applicable state law does not in anywise depend upon an exercise of state judgment on any matter of state policy, as in Harrison v. N. A. A. C. P., 1959, 360 U.S. 167, 79 S.Ct. 1025, 3 L. Ed.2d 1152. Rather, it depends upon the extent of exercise of federal legislative or administrative judgment. I fail to see why the federal courts should abstain in an area of the law which is their own peculiar concern. We should simply be holding off in order to be able to ascertain whether or not the state court had come up with the right answer from the federal point of view. As stated in United States v. Livingston, D.C.E.D.S.C.1959, 179 F.Supp. 9, 13, where the doctrine of abstention was held inapplicable:
“As we would defer to the state courts in cases involving questions of state law, we must perform our duty of decision in a case in which the only question is federal.”
I would accept jurisdiction and proceed to a consideration of the merits of this dispute.