feels that such review has been profitable.18 Against these later facts, the earlier reliance, prior to 1926, on voluntary action to enforce the railway labor statutes has little significance.

Nor in view of the statements and the decision in the Clerks case, do we think that the omission of statutory review from the provisions of § 2, Ninth, is important.

Firemen & Enginemen v. Kenan, 87 F. 2d 651; Nashville, C. & St. L. Ry. v. Railway Employees' Dept., 93 F. 2d 340; Brotherhood of Clerks v. Nashville, C. & St. L. Ry. Co., 94 F. 2d 97.

18 Annual Report of the National Mediation Board, 1938, p. 5: "The two cases decided by the courts clarifying the discretion vested in the National Mediation Board in connection with representation disputes both arose on the Nashville, Chattanooga & St. Louis Railway, and both were decided by the United States Circuit Court of Appeals for the Sixth Circuit. The first case [Nashville, C. & St. L. Ry. v. Railway Employees Department, A. F. of L., 93 F. 2d 340] settled the issue concerning the right of furloughed employees retaining an employment status to vote in representation elections. The second decision [Brotherhood of Clerks v. Nashville, C. & St. L. Ry. Co., 94 F.2d 97] held that the National Mediation Board, when establishing eligible lists of voters and conducting elections in order to determine the representative of employees of a carrier by craft or class must do so with due regard for all of the facts, historical and otherwise, which have cperated to shape the craft or class of employees on the carrier concerned as well as on railroads generally. Both decisions are very helpful to the Board in that they serve to settle issues which, in the past, have frequently arisen to trouble the orderly and prompt adjustment of disputes over representation between different factions among employees."

Id., 1942, p. 7:

"During the 8-year experience of the Board under the representation provisions of the law it is gratified to be able to report that in all but a few instances its actions in interpreting and applying these provisions. of the law have been sustained by the courts. In all instances, however, the Board has benefited by court review and analysis of its actions and the facts of the disputes. The court rulings and opinions have clarified and settled many disputed points of the law and the Board's authority. Thus they constitute a valuable contribution in the solution of labor disputes."

552826-44-25

The requirement of that very subsection that "the carrier shall treat with the representatives so certified" was construed as an affirmative command open to judicial enforcement without specific statutory authority. Virginian Ry. Co. v. System Federation, 300 U. S. 515, 544.

Butte, A. & P. Ry. Co. v. United States, 290 U. S. 127, is cited as authority for a conclusion that delegation of an administrative duty carries to the appointee the authority to finally construe the statute since such authority was "'essential to the performance of the duty imposed upon the Commission' and since 'Congress did not provide a method of review,' the Government, as well as the carrier, was 'remediless whether the error be one of fact or of law.' This was a case in which the Government ordered payments to carriers as compensation for deficits incurred during federal operation of the railways. It was determined that Congress intended to leave finally the determination of the beneficiaries to its agent, the Interstate Commerce Commission. This intention is far easier to deduce when the Congress is dealing with its own money than where it creates rights of suffrage for citizens to exercise for the improvement of their economic condition.

The Virginian Railway case presents a much closer analogy to the present controversy. As pointed out above, it dealt with the carrier's duty to "treat with" employees declared by § 2, Ninth. Employees sought and obtained a judicial order directing the railroad to negotiate on the ground that new duties, requirements and rights were created "mandatory in form and capable of enforcement by judicial process.' ." Despite the absence of statutory authority for court action it was held Congress intended legal sanction. A prohibition of negotiation, such as petitioners seek here, is a fortiori, within judicial competence.'

19

19 Compare Sunshine Anthracite Coal Co. v. Adkins, 310 U. S. 381, 391, where this Court took cognizance of a suit seeking judicial review

One factor to test the intention of Congress, it is suggested in the M. K. T. opinion of today, post, p. 323, is whether Congress was willing to crystallize the problem into "statutory commands." The statutory command for which determination is sought here is that the Board exercise its discretion. In the same opinion, it is said, "the command of the Act should be explicit and the purpose to afford a judicial remedy plain before an obligation enforcible in the courts should be implied." Here, Congress has unequivocally provided that "employees shall have the right to organize and bargain collectively through representatives" chosen by the majority of each "craft or class." The special competence of the National Mediation Board lies in the field of labor relations rather than in that of statutory construction. Of course the judiciary does not make the administrative determination. "The functions of the courts cease when it is ascertained that the findings of the Commission meet the statutory test." Sunshine Coal Co. v. Adkins, 310 U. S. 381, 400. Likewise, the National Mediation Board may be conceded discretion to make any reasonable determination of the meaning of the words, "craft or class." Cf. Gray v. Powell, 314 U. S. 402. By requiring a plain sanction for a judicial remedy, the court authorizes the Mediation Board to determine not only questions judicially found to be committed to its discretion, as in Gray v. Powell, supra, but the statutory limits of its own powers as well. It seems more consonant with the genius of our institutions 20 to assume,

of administrative action without such authority in the statute under attack. See § 6, Bituminous Coal Act, 50 Stat. 85. Review was had under Judicial Code § 24 (1) and 28 U. S. C. § 380 (a).

20 An erroneous order of the Secretary of the Interior was similarly canceled when, without statutory authority, he struck the name of an enrollee from the rolls of an Indian Nation. This Court said: "But, as has been affirmed by this court in former decisions, there is no place in our constitutional system for the exercise of arbitrary

not that the purpose to apply a legal sanction must be plain, but that in the absence of any express provision to the contrary, Congress intended the general judicial authority conferred by the Judicial Code to be available to a union and its members aggrieved by an administrative order presumably irreconcilable with a statutory right so explicitly framed as the right to bargain through representatives of the employees' own choosing.21

The petitioners assert their rights as rights arising under the Railway Labor Act, which is stated to be a law of the United States relating to interstate commerce. If this allegation is correct, and we think it is, there is jurisdiction of the subject matter of the suit under Judicial Code, § 24 (8): "The district courts shall have original jurisdiction as follows: ... Eighth. Of all suits and proceedings arising under any law regulating commerce." The general purpose of the Act is to avoid interruption to commerce by prohibition of interference with the employees' freedom of association and by provision for collective bargaining to settle labor disputes.22 This regulates

commerce.

power, and if the Secretary has exceeded the authority conferred upon him by law, then there is power in the courts to restore the status of the parties aggrieved by such unwarranted action." Garfield v. Goldsby, 211 U. S. 249, 262. Cf. Ness v. Fisher, 223 U. S. 683, 694. Compare Ickes v. Fox, 300 U. S. 82; West v. Standard Oil Co., 278 U. S. 200, 220; Work v. Louisiana, 269 U. S. 250, 254.

21 When Congress has intended to bar access to the courts, in whole or in part, it has understood how to express its determination. Emergency Price Control Act of 1942, § 204, 56 Stat. 23; chap. 335, 23 Stat. 350; § 4 (b), 44 Stat. 828.

22 48 Stat. 1185, 1187, § 2:

"First. It shall be the duty of all carriers, their officers, agents, and employees to exert 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 the application of such agreements or otherwise, in order to avoid any interruption to commerce or to the operation of any carrier growing out of any dispute between. the carrier and the employees thereof." See note 5.

The right to select representatives with whom carriers must bargain was created by the Act and the remedy sought here arises under that law. Since the cause of action "had its origin and is controlled by" the Railway Labor Act, it arises under it. Peyton v. Railway Express Agency, 316 U. S. 350; Muljord v. Smith, 307 U. S. 38, 46; Turner Lumber Co. v. Chicago, M. & St. P. Ry. Co., 271 U. S. 259, 261; Louisville & Nashville R. Co. v. Rice, 247 U. S. 201.

Since the Court declines federal jurisdiction, it is useless to discuss either the merits or the other procedural questions such as jurisdiction in equity to grant the injunction requested, the power to vacate the order of the Mediation Board or the effect of the Norris-La Guardia Act.

MR. JUSTICE ROBERTS and MR. JUSTICE JACKSON join in this dissent.

GENERAL COMMITTEE OF ADJUSTMENT OF THE BROTHERHOOD OF LOCOMOTIVE ENGINEERS FOR THE MISSOURI-KANSAS-TEXAS RAILROAD v. MISSOURI-KANSAS-TEXAS RAILROAD CO. ET AL.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT.

No. 23. Argued October 14, 1943.-Decided November 22, 1943. Between a labor organization which was the duly designated bargaining representative for the craft of engineers employed by certain carriers, and another which was the duly designated bargaining representative for the craft of firemen employed on the same lines, a dispute arose relative to the calling of men for emergency service as engineers. Efforts to settle the dispute having failed, the matter was submitted to the National Mediation Board, and a mediation agreement between the Firemen and the carriers resulted. The Engineers then brought an action in the federal District Court for a declaratory judgment that the agreement was in violation of the Railway Labor Act and that the Engineers should be declared to be