delivered the opinion of the court.
The distribution of coal cars in times of car shortage has been a fertile field of controversy.. The subject has received much attention from Congress, the Interstate Commerce Commission and the courts.. Definite rules for distribution were promulgated by the Commission; and they remained in force for-many years, Among these
*379
was the so-called assigned car rule declared by the Commission in
Railroad Commission of Ohio
v.
Hocking Valley Ry. Co.,
12 I. C. C. 398, and
Traer
v.
Chicago & Alton R. R. Co.,
13 I. C. C. 451, and sustained by this court in
Interstate Commerce Commission
v.
Illinois Central R. R. Co.,
In June, 1920, the Lambert Run Coal Company, a West Virginia corporation, which owns and operates a mine in that State, brought, in the Circuit Court of Marion County, this suit against the Baltimore & Ohio Railroad Company, a Maryland corporation. The bill alleged that there was an acute car shortage; that the railroad had refused to make the distribution required by paragraph 12 of § 1 of the Act to Regulate Commerce and in violation thereof distributed cars in accordance with its own rules 8, 9 and 10, set out in the margin, 2 and that this course was resulting in irreparable injury to plaintiff. The bill *380 prayed that the railroad be restrained from observing these rules and that it be required to furnish cars in accordance with the established ratings.
/'■ The defendant removed the case to the federal court for the Northern District of West Virginia and there filed 'in a single pleading a motion to dismiss and an answer. Ns ¿grounds for the motion it alleged that the case was not orlé within the jurisdiction of the state court; that, .since it did not appear that the Commission had taken any action in respect to thé matter complained of, neither court had jurisdiction of the controversy; that the plaintiff had concealed the fact that the rules of the carrier complained of were, as plaintiff knew, rules which had been promulgated by the Commission; that the bill was thus one to restrain enforcement of an order of the Commission; and .that the United States and the Commission were indispensable parties. The answer set forth the facts supporting these allegations and, among other things, that the rules promulgated by the Commission and adopted by the carrier had been issued on April 15,1920, in pursuance of the emergency provision known as paragraph 15, inserted in § 1 of the Act to Regulate Commerce by the Transportation Act, 1920, supra. 41 Stat. 456, 476.
Plaintiff then moved in the District Court for an interlocutory injunction. The defendant, insisting that the
*381
proceeding was one to stay an 'order of the Commission, objected to a consideration of the motion in the absence of two other judges as provided by Act of October 22, 1913, c. 32, 38 Stat., 208, 220, Both this objection and the motion to dismiss were, overruled by the District Judge; and an interlocutory injunction in accordance with the prayer of the. bill was issued. From this order defendant appealed to the Circuit Court of Appeals for the Fourth Circuit. That. court stayed the injunction pending .the determination of the appeal; and later reversed the decree below with directions to dissolve the injunction and dismiss the bill.
The decree of the'District Court was properly reversed;, but we are of opinion that the Circuit. Court of Appeals had no occasion to pass upon the merits of the controversy and that the direction should have been to dismiss the bill for want of jurisdiction' and without prejudice. The rule of the railroad here complained of .was that prescribed by the Commission. To that rule the railroad was bound to conform unless relieved by the Commission or enjoined from complying with it by decree of a 6ourt having jurisdiction. By this suit such a decree was in effect *382 sought. The .appellate court was therefore correct in holding that in such a suit an injunction of the District Court could .be granted only by three judges.
But'there are in addition two fundamental objections to the jurisdiction. First, the'United States, an indispensable party to suits to restrain or set aside orders of the Commission, was not joined, and could not be, for-it has not consented to be sued in state courts. Secondly, such suits are required to be brought.in a federal District Court. Judicial Code, §§ 208, 211; Act of October 22, 1913, c. 32, 38 Stat. 208, 219.
Illinois Central R. R. Co.,
v.
State Public Utilities Commission,
Decree modified and affirmed.
Notes
See also
Rail & River Coal Co.
v.
Baltimore & Ohio R. R. Co.,
141. C. C. 86;
Hillsdale Coal & Coke Co.
v.
Pennsylvania R. R. Co.,
19 I. C. C. 356;
In re Irregularities in Mine Ratings,
25 I. C. C. 286;
Coal and Oil Investigation,
31 I. C. C. 193, 217;
In re Assignment of Freight Cars,
571. C. C. 760;
Southern Appalachian Coal Operators’ Association
v.
Louisville & Nashville R. R. Co.,
58 I. C. C. 348;
Corona Coal Co.
v.
Southern Ry. Co.,
“8. Private cars and cars placed for railroad fuel loading in accordance with the decisions of the Interstate Commerce Commission in Railroad Commission of Ohio et al. v. H. V. Ry. Co., 12 I. C. C. 398, and Traer v. Chicago & Alton Railroad Co. et al., 13 I. C. C. *380 451, will be .designated as ‘ assigned ’ ears. All other cars will be designated as ‘ unassigned ’ ears.
“ 9. If the number of assigned cars placed at a mine during- |ny period, as provided in Rule 6, equals or exceeds the mine’s pro rata share of the available car supply, it shall not be entitled to any unassigned cars. The assigned cars, together with the mine’s require-, ments, will be eliminated, and the remainder of the available car supply pro rated to the other mines, based .on a revised percentage by reason of such elimination.
“ 10. If the number of assigned cars placed at a mine during any period, as provided in Rule 6, is less than its pro rata share, based on a revised percentage, it shall be entitled to receive unassigned cars in addition thereto to make up its pro rata share.”
See also
Fidelity Trust Co.
v.
Gill Car Co.,