This is a complaint for an injunction and other equitable relief from orders of the Interstate Commerce Commission of December 12, 1939, April 2, 1940, and June 7, 1943, made by the Chicago and North Western Railway Company, acting on behalf of its stockholders, to a statutory three-judge court constituted under Chapter 32, 38 Stat. 220, the Urgent Deficiencies Act, 28 U.S.C.A. § 47. Plaintiff’s objective in this action is to gain the right to re-open proceedings which resulted in the Commission’s orders approving a plan of reorganization. This is the latest attempt 1 to change the plan so as to make provision for plaintiff’s stockholders, and the principal argument now put forward as justification for the alleged stockholders’ right to have an interest in the reorganized corporation is based on increased earnings from wartime traffic.
In view of the fact that the orders complained of were entered under Section 77 of the Bankruptcy Act, 11 U.S.C.A. § 205, the only issue which we find it necessary to decide is whether this court has jurisdiction to review them under the limited power given to us by Chapter 32 of the Urgent Deficiencies Act, 28 U.S.C.A. §§ 41(28), 46, 47.
*67 Section 77 of the Bankruptcy Act contains detailed provisions governing the procedure to be followed after the Interstate Commerce Commission has approved a plan of railroad reorganization. These provisions, 11 U.S.C.A. § 205, subs, b, d, e, f, make it clear that appeal from Commission orders in connection with bankruptcy proceedings lies only to a district court (of one judge) sitting in bankruptcy, not to a district court (of three judges) assembled under the Urgent Deficiencies Act. After an order of the Commission has been approved by the bankruptcy court, submitted to vote of creditors and subsequently confirmed by the district court sitting as a court of bankruptcy, the order is no longer merely an order of the Commission, but has the character of a valid judicial decree of the bankruptcy court. Section 77 sub. f, 11 U.S.C.A. § 205 sub. f, which states that the provisions of the plan and of the order of confirmation shall be binding “subject to the right of judicial review,” clearly intends that the “judicial review” shall be by the circuit court of appeals and thence to the Supreme Court, not to a three-judge district court. The prescribed procedure was followed in this case, and now, having failed in its attempts to win judicial support for its contentions in the designated forums, plaintiff seeks reconsideration of its arguments by a still further procedure which is not open to it.
Recent opinions of the Supreme Court state the functions of the Commission in formulating plans of reorganization, Ecker v. Western Pac R. Corp.,
Despite the seemingly applicable language of the Urgent Deficiencies Act to “any order of the Interstate Commerce Commission,” the Supreme Court has ruled that it does not apply where the Commission’s order is issued, not under the Interstate Commerce Act, 49 U.S.C.A. § 1 et seq., but under some other Act, where the Urgent Deficiencies Act is not made specifically applicable, and where some other means of review is open. United States v. Griffin,
Reason, as well as authority, supports this view that appeal from Commission orders in bankruptcy proceedings should be limited to the district court sitting in bankruptcy. If an appeal were allowed to a three-judge court, that court would probably be unfamiliar with the reorganization plan, which would result in delay, expense, and confusion. Since these were the very evils which Section 77 of the Bankruptcy Act was aimed to reduce, Group of Institutional Investors v. Chicago, Milwaukee, St. Paul & Pacific R. Co.,
The motion of the defendants to dismiss the complaint is hereby granted and it is ordered that judgment be entered in favor of the defendants.
Notes
On June 28, 1935, plaintiff filed a petition in the District Court of the United States for the Northern District of Illinois containing its desire to effect reorganization under Section 77 of the Bankruptcy Act, 11 U.S.C.A. § 205. On December 12, 1939, the Commission entered its order approving a plan of reorganization. In re Chicago & N. W. R. Co., 236 I. C. C. 575. On April 2, 1940, this plan was modified and approved.