or burdensome to require the use of brakes on movements that are true switching operations; that is to say movements of a small number of cars, for short distances, frequently interrupted by the need to pick up or drop off individual cars at particular locations, in connection with the assembling or breaking up of line-haul trains. Therefore, the lack of a Congressionally-imposed requirement for the use of airbrakes in these movements is indicative of a Congressional intent that no such regulation be required. This precludes the exercise of State authority with respect to a genuine switching movement involving interstate commerce.
Most of what has been said up to this point, however, is simply dictum. It is also largely brutum fulmen. In the interest of procedural regularity, we are impelled to decide that this case is not properly before this Court for decision. The questions regarding occupation of the field and pre-emption could and should have been raised before the P.U.C. and the Superior Court. The doctrine of pre-emption is not a novel concept which has recently and suddenly sprung, Minerva-like, from the cerebral organs of the Supreme Court of the United States. It is not an issue of which the P.U.C. first took cognizance in the current proceedings relating to safety devices to control locomotives operated by a single crew member, Investigation Docket No. 75, wherein it made the order of July 19, 1965, 42 Pa. P.U.C 247, which apparently suggested the pre-emption issue to plaintiff's counsel in the case at bar. The P.U.C. is not subject to the administrative limitations by which the New Jersey Public Utility Commissioners felt themselves bound in Pennsylvania Greyhound Lines v. Board of Public Utility Commissioners, 107 F. Supp. 521, 529 (D.N.J.1952).
Conscientious application of federal law by State tribunals is to be expected. United States District Courts do not sit as appellate tribunals to review (or to by-pass) the determinations of State courts on federal questions. The proper procedure for ensuring uniform interpretation of federal law is through the appellate route leading to the Supreme Court of the United States. Baker Driveaway Co., Inc. v. Hamilton, 29 F. Supp. 693, 694 (M.D.Pa.1939); Cunningham v. Aberman, 252 F. Supp. 602, Western District of Pennsylvania, opinion by Judge Sorg, dated March 25, 1965; Dairy Distributors, Inc. v. Western Conference of Teamsters, 294 F.2d 348, 352 (C.A. 10, 1961); Alabama Public Service Commission v. Southern Railway Co., 341 U.S. 341, 349, 71 S. Ct. 762, 95 L. Ed. 1002 (1951); Atlantic Coast Line R.R. Co. v. City of St. Petersburg, 242 F.2d 613, 615-616 (C.A. 5, 1957); West Virginia Motor Truck Ass'n. v. Public Service Comm'n of West Virginia, 123 F. Supp. 206, 216 (S.D.W.Va.1954); Angel v. Bullington, 330 U.S. 183, 189, 67 S. Ct. 657, 91 L. Ed. 832 (1947); Chicot Co. Drainage District v. Baxter State Bank, 308 U.S. 371, 378, 60 S. Ct. 317, 84 L. Ed. 329, 378 (1940); East Crossroads Center v. Mellon-Stuart Co., 245 F. Supp. 191, 194 (W.D.Pa.1965); Grubb v. Public Utilities Comm'n, 281 U.S. 470, 475, 50 S. Ct. 374, 74 L. Ed. 972 (1930).
If it be thought that as a result of our decision, collusive or ill-advised action by litigants might have the effect of frustrating or frittering away a fundamental federal policy [cf. Kalb v. Feuerstein, 308 U.S. 433, 438-439, 60 S. Ct. 343, 84 L. Ed. 370 (1940); United States v. United States F. & G. Co., 309 U.S. 506, 514, 60 S. Ct. 653, 84 L. Ed. 894 (1940); Louisville & N.R.R. Co. v. Mottley, 219 U.S. 467, 476, 31 S. Ct. 265, 55 L. Ed. 297 (1911); Pennsylvania R.R. Co. v. Sharfsin, 240 F. Supp. 233, 236 (M.D.Pa.1965); Lewis v. Harcliff Coal Co., 237 F. Supp. 6, 8 (W.D.Pa.1965)], the answer is that the flexibility of administrative procedures and the fact that the present situation involves the continuous regulation of a matter (similar to the level of railroad rates or the most suitable custody of a minor child) will suffice to insure that subsequent proceedings will be available in appropriate tribunals should there be need thereof.
In fact, it would seem that in any case "in which the powers and authority of the [Public Utilities] Commission to act are called in question" an injunction can be sought under 66 P.S. § 1441 in the Common Pleas Court of Dauphin County even after an appeal from the P.U.C. to the Superior Court has been taken under 66 P.S. § 1431. York Rys. Co. v. Driscoll, 331 Pa. 193, 196, 200 A. 864 (1938). See also Blythe Twp. Mun. Authority v. Pennsylvania Public Utilities Comm'n, 191 Pa. Super. 542, 546, 159 A.2d 256 (1960).
Perhaps logically the first question which should have been considered is the matter of venue. In view of our other conclusions, however, it is unnecessary to discuss this question. Two members of the Public Utilities Commission are residents of this District and were served here. But the instant cause of action is based entirely upon their official acts, doings, and proceedings as members of the P.U.C. The individual defendants are simply fifth wheels insofar as being sued individually is concerned; this practice is simply a measure of caution dictated by the conservative habits of the legal profession. The suit really should have been brought at the official residence, rather than the personal domicile, of the members of the P.U.C. United Office and Professional Workers of America v. Smiley, 75 F. Supp. 695, 699-700 (E.D.Pa.1946). Cf. Northern Indiana Public Service Co. v. Public Service Commission of Indiana, 1 F. Supp. 296, 297 (N.D.Ind.1932). In that case (affirmed by the Supreme Court per curiam) venue in the Northern District of Indiana was sustained upon the ground that one of the members of the Commission lived in that district, although the office of the Commission was at Indianapolis, in the Southern District of Indiana.
However, there is no need in the case at bar to attempt to reconcile the variances discoverable in the decisions regarding the niceties of venue. We prefer to rest our decision upon a clearer and stronger ground, to wit, the impropriety of intrusion by this Court upon the province of the administrative and judicial "magistracies" of Pennsylvania. We entertain no doubt that "these authorities will in their respective functions do what is right and just" in a manner warranting "the respect and confidence due to those magistracies, and sincerely believed by me to be justly due to them."
Accordingly, plaintiff's complaint in this Court is dismissed.
AND NOW, this 18th day of April, 1966, upon consideration of cross motions for judgment, after argument, for the reasons set forth in the foregoing opinion,
It is ordered, adjudged, and finally decreed that plaintiff's motion for judgment be and the same hereby is denied, and that defendants' motion for judgment be and the same hereby is granted, and that plaintiff's amended complaint and action be and the same hereby is dismissed.