route operates on its own account, with its own motive power, and the applicable rate or charge is divided among the participating carriers.
Unlike many manufacturing industries which do a nationwide business, and ship merchandise into the territories where they solicit business, a railroad does not by its operations enter the State where it merely solicits. On the contrary, its solicitation merely invites the customer to make use of a service which can only be enjoyed elsewhere.
The railroad is different from a seller of machinery, which is shipped into the forum, and may require the entry of technicians to install it or service it, or require contracts or other local contacts to be made in the area in order to provide a satisfactory product or service to customers in the forum territory.
Suppose a Florida resort hotel solicited business in Western Pennsylvania by advertising in the New York Times (or in the Pittsburgh papers), and then bought a carload of maple syrup in Vermont, but refused to pay for it, alleging defective quality. Does reason or fair play require that a suit by the Vermont seller against the Florida hotel should be litigable in Pittsburgh, by reason of the alluring advertisements inviting Pittsburghers to forsake their own bailiwick and enjoy the facilities provided in Florida for their enjoyment and comfort? Surely not.
Railroad solicitation resembles such a situation more than the usual situation where merchandise is shipped into an area in response to solicitation in the forum.
It is also particularly desirable in the railroad industry, with its complex customs and practices, that a definite and clear-cut rule be adopted, susceptible of easy application, both by the parties themselves, their counsel and the courts. The "solicitation without more" rule is of such a character.
It should be possible for litigants to know whether they are in the right court without first preliminarily litigating that issue in every case. It may be satisfactory with respect to the merits of litigation to sue first and then find out whether you have a case,
but with respect to jurisdiction this should not ordinarily be necessary.
Railroad litigation should not be subjected to the uncertainties formerly prevailing with respect to the validity of jurisdiction to grant divorces. "Such jurisdiction, it was formerly held, was vested only in the court where the 'matrimonial domicile' was located. This was the last common domicile where both spouses lived together as man and wife. The wife's domicile was presumed to be the same as her husband's; hence if she deserted him, he could get a valid divorce at the matrimonial domicile; but if he abandoned her, his subsequent domicile was not a new matrimonial domicile and he could not obtain an ex parte divorce there. The wife, however, could obtain such a divorce at her subsequent domicile if she were not the party at fault in causing the separation. This doctrine made the jurisdiction or power of the state to grant a divorce dependent upon the merits of the case. It required determination of the domestic dispute between the spouses regarding which one was at fault as a preliminary condition precedent to establishment of the court's jurisdiction."
Finally, it must be emphasized that the problem before us is simply one of statutory construction. The International Shoe rule deals with constitutional due process, under the Fourteenth Amendment. Presumably the same constitutional scope would prevail under the Fifth Amendment. We are concerned here merely with the question of how far Congress meant to go when it adopted the present statutory wording in 1910. United States v. Scophony Corp., 333 U.S. 795, 804, 68 S. Ct. 855, 92 L. Ed. 1091 (1948).
Congress could, perhaps, as a matter of constitutional power, have provided that the judicial power of any District Court could be exercised throughout the entire nation. But it has not chosen to do so.
In a case under federal law, just as in a diversity case, the constitutional question is not reached until the scope of the statutory provision as to venue has been determined. Partin v. Michaels Art Bronze Co., 202 F.2d 541, 543 (C.A. 3, 1953); Bomze v. Nardis Sportswear, 165 F.2d 33, 35 (C.A. 2, 1948). If the International Shoe doctrine effected any extension of the constitutional power of Congress (which seems unlikely, if the power of Congress was already plenary), it is clear that Congress has done nothing since 1910 to expand the meaning of "doing business" within the meaning of the FELA venue provision here involved. The courts therefore should not extend the scope of that provision, in the absence of a new "strong arm" statute enacted by Congress.
The controlling question, therefore, is: What did Congress mean to include within the scope of the term "doing business" when in 1910 it enacted 45 U.S.C. § 56 in its present wording? The legislative history, as reviewed in the Kepner and Miles cases,
indicates that Congress meant to enable suits to be brought wherever the railroad was operating, that is to say was "not merely soliciting business but actually carrying on railroading by operating trains and maintaining traffic offices within the territory of the court's jurisdiction." 315 U.S. at 702, 62 S. Ct. at 829. Congress felt that a plaintiff should be able to sue in any place "served by the railroad." Ibid. 707, 62 S. Ct. 827. See also Ibid. 715-716, 62 S. Ct. 827; and 314 U.S. at 49-50, 57, 62 S. Ct. 6. Prior to the 1910 amendment, a plaintiff had to sue the carrier at its "residence".
Since railroads, as has been seen above, are often multistate corporations operating lengthy rail lines, this was deemed an undue hardship upon a plaintiff. Rather than being forced to sue the railroad at the place where it was incorporated or had its principal office, a plaintiff should be allowed (Congress felt in 1910) to bring suit wherever its rail operations were being conducted.
Being satisfied that Congress in 1910 did not intend to disturb the "solicitation without more" doctrine, we conclude that plaintiff here can not maintain the instant action against the C. & O. Railway in this District.
And now, this 23rd day of January, 1969, after argument, for the reasons set forth in the foregoing opinion,
It is ordered that the complaint in the above-styled case be dismissed for lack of venue jurisdiction under 45 U.S.C. § 56.