the suit falls within Title 28 U.S.C.A. 1331, the so-called 'Federal question' jurisdiction. For the reasons stated below, we feel that it does not.
It is an admittedly difficult question to determine when, and under what conditions, a 'Federal question' -- an action arising under the laws of the United States -- is involved in a claim for relief. Gully v. First National Bank, 1936, 299 U.S. 109, 57 S. Ct. 96, 81 L. Ed. 70. Like so many other questions of law which have been much considered in cases and textbooks, support may be gathered for either an affirmative or negative answer to its existence in any particular case. However, after a careful review of the authorities, we conclude that there is a negative test which is controlling on this question and which is clearly met here. That is, if the right, title or interest sought to be protected by the plaintiff does not arise out of Federal law (as opposed to State law, common or statutory), then the suit is not one 'arising under the * * * laws * * * of the United States'.
A case which perfectly illustrates this test, and which we feel is directly in point with our own case is Louisville & Nashville Ry. Co. v. Mottley, 1908, 211 U.S. 149, 29 S. Ct. 42, 53 L. Ed. 126. In that case suit was brought to compel specific performance of a contract whereby the defendant railroad, for valuable consideration, had agreed to issue to the plaintiff free railroad passes annually. The Circuit Court, 150 F. 406, overruled a lower court's decision sustaining a demurrer and granted specific performance. The Supreme Court on appeal reversed the Circuit Court and dismissed the case for lack of jurisdiction over the subject matter, despite the fact that the plaintiff alleged in his bill that the reason the defendant refused to perform the contract was because they interpreted a newly enacted Federal law as prohibiting the issuance of such passes.
A number of other Supreme Court and lower court cases in this area would lead us to the same result. Skelly Oil Co. v. Phillips Petroleum Co., supra; Gully v. First National Bank, supra, (in which Mr. Justice Cardozo stated, 'How and when a case arises 'under the Constitution or laws of the United States' has been much considered in the books. Some tests are well established. To bring a case within the statute, a right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff's cause of action.' 299 U.S. at page 112, 57 S. Ct. at page 97.) (Emphasis added); Puerto Rico v. Russell & Co., 1932, 288 U.S. 476, 53 S. Ct. 447, 77 L. Ed. 903. See also Beistline v. City of San Diego, 9 Cir., 1958, 256 F.2d 421, at page 423; Screven County v. Brier Creek Hunting & Fishing Club, 5 Cir., 1953, 202 F.2d 369; Hettenbaugh v. Airline Pilots Ass'n International, 5 Cir., 1951, 189 F.2d 319, at page 320; Andersen v. Bingham & G. Ry. Co., 10 Cir., 1948, 169 F.2d 328, at page 330, 14 A.L.R.2d 987; (but see St. Louis, I.M. & S.R. Co. v. Taylor, 1908, 210 U.S. 281, 28 S. Ct. 616, 52 L. Ed. 1061); Nello L. Teer Co. v. J. A. Jones Const. Co., D.C.M.D.N.C.1958, 160 F.Supp. 345; Allen v. Southern Ry. Co., D.C.W.D.N.C.1953, 114 F.Supp. 72; Jacobson v. New York, New Haven & H. Ry. Co., D.C.D.Mass.1953, 109 F.Supp. 513, at page 515.
In the present suit, as has been already pointed out, the right which the plaintiff asserts is in the nature of a contract right.
This right is enforcible, if at all, in the common law courts of the state in which the contract arose -- in this case, Pennsylvania. We find nothing in the recent Labor-Management Reporting and Disclosure Act which indicates an intention by Congress to enter such an area. The most liberal interpretation of that Act imaginable would not, in our view, encompass the right upon which the plaintiff relies. Accordingly, we must reject the theory that there is 'Federal question' jurisdiction here.
Since there appears to be no other basis on which to rest jurisdiction, we have no choice but to dismiss the action. This, of course, obviates any need for passing upon the other ground on which plaintiff based his suit.