Willing v. Chicago Auditorium Assn.
277 U.S. 274
SCOTUS
1928
Check Treatment

*1 274

county which is discriminatory, boards not an the meaning order within we 266, § have no occasion consider whether the lower court was holding county that treasurers not officers Nebraska,” State of or whether there are other reasons' why the scope suit is not within the of that section. discharged.

Rule WILLING et al. v. CHICAGO AUDITORIUM ASSO-

CIATION. Argued April 19, 20, No. 561. May 21, 1928. Decided 1928. 662, 663; (2d) 708; Fordson Coed 2 Maggard, Connecting Co. v. F. (2d) Imes, Gas Co. 11 F. 191,195. hand, Chicago, On the other Burlington Quincy Osborne, & 14, hearing R. R. Co. S. judges. below case, was before three In this, as in the Tax Com- joined missioner was defendant, apparently as a but no relief could given against injunction have been him. Where relief has been sought against state commissions, tax equalization, boards of members, practice their has been less uniform. The application injunction a temporary was single judge entertained á John- Wells, Fargo son v. 60, & 205 (prior Fed. U. S. 234 to the. 1913); Act of Louisville & Nashville R. Greene, R. Co. (see original papers); Greene, Illinois Central R. R. Co. (see original papers); U. S. 555 Louisville & Nashville R. R. Co. v. Bosworth, Fed. 380; Howe, Standard Oil Co. 257 Fed. United Mining Verde Extension Howe, (2d) Co. v. 209. F. In Chicago, Ry. Milwaukee & St. Paul Kendall, Co. v. 298, 278 Fed. 94, hearing judges. was before three See also Illinois Mississippi Central R. R. v.Co. Commission, Railroad 229 Fed. Chicago, Indianapolis Ry. & Louisville Lewis, (2d) 802; v.Co. 12 F. Pipe Cumberland Line Lewis, (2d) 167; Co. v. 17 F. Western Union Telegraph Ohio, Tax (2d) Co. Commission F. *2 Hughes, Mr. Evans Charles with whom Messrs. Samuel and Hbmer Topliff Cooper H. were on brief, for peti- tioners. law of the State must determine the respondent’s

title, or whether the title Smith, Guffey clouded. v. Challen, 101; Holland v. 15; Clark v. Smith, 13 Peters, 195; Pusey & Hanssen, Jones Co. v. S. 491. U. provisions ail own- Illinois,

Under the doubtful law an er’s muniment of title and oral hostile assertions a cloud claimant, adverse do not constitute v. Ill. McCarty, 573; Greenough title. v. McCarty Shirk, 411; Bigdon 284 Ill. 127 Ill. Greenough, Warren, Ill. Carr, Buckner 302 Ill. Warren v. Page, Ill. 217; First Church Congregational Angeles, Glos Devine People, Ill. 332. See v. Los 202 U. S. 313. ex-

Bills to validity clouds presuppose remove istence of. title, own and are directed plaintiff’s exclu- defendant, sively against invalid claim of a be shown facts to the own plaintiff’s invalid extrinsic Conklin, recorded evidence Wehrman title. U. S. Mining Phelps Lawson v. 1;S. *3 Harris, 101 S. 370. U.

The set up by case the is not respondent embraced with- any in or principle head of is an equity jurisprudence, and for application within declaratory judi- decree the not cial function. The essential justiciablé elements of a case over controversy,' which the jurisdiction of courts of the extends, United States in have been stated Muskrat v. States,

United 219 U. S. 346; United States Hamburg- v. Co., 466; Amerikanische 239 U. United States Alaska S. v. Co., Steamship 113; S. New Jersey Sargent, v. 269 U. S. 328.

Changing circumstances, or hardships, or lack of com- return, mensurate do not nonperformance excuse the in leases, covenants and, petitioners áince are not in the least for responsible creation or development of these the if conditions, existent, such conditions are not legal wrongs for which respondent has any remedy against petitioners. Ingle Jones, 2 Wall. 1; Selden, v. Sheets v. Wall. 416; v. Pine Mt. Iron & Blake Coal 76 Fed. 624; Postal Co,v. Telegraph Western Union, Ill. 335. declaratory or other statute judgment Illinois has no suit, under can sustained. This which be. state considerations, would fail the upon the same Doughty, Seely 211; 185 Ill. Paine Baldwin, courts. Lewis, Ill. 396; Prather Ill. npt A can judgment remedy applied declaratory Grannis, Liberty the federal courts. Warehouse Co. v. 273 U. S. 70. rem equitable

There legal can be no substitution trial edies, whereby right by jury the constitutional L. R. Co. impaired. actions law is & N. R. v. West at Union, ern 234 U. S. 369. doubtful, the own title is a bill plaintiff’s

Where therefrom not lié. to remove clouds will Spitley, Phelps Harris, 370; S. Frost v. U. Conklin, 314; Seely S. 155 U. S. U. Wehrman v. Baldwin, Lewis, 287 Ill. 304. 185 Ill. Prather v. wrongfully prevented from liti- were petitioners State the erroneous refusals gating in courts of the federal courts to remand case. removable unless separable, controversy

There is and distinct cause action as separate there is a removal, can seeking be decided as defendants in the absence of all plaintiff them and between Torrence v. U. other defendants. S. Shedd, wall, Jennison, 191; Ayres v. Wis 106 U. S. Fraser v. Township, Oswego 151 U. S. 56. Wilson doubtful, to remove is the federal Where the *4 remand. Thomas v. Delta Land & uniformly courts Co., Co., Boykin v. Morris Fertilizer 258 Fed. Water Asphalt Coast Hansen v. Cement 257 Fed. Pacific Fed. 283. at court, of a federal whatever duty It becomes jurisdiction federal litigation it discerns that is stage of case, to in a removed remand the state lacking to. Co., court. Minnesota v. Northern Securities Corbin, Shedd, Graves 132 U. S. Torrence v. Fisher, Mr. Walter L. with whom Wm. C. Boy- Messrs. den and Wm. Case on the brief, respondent. W. were

When there is a legal to the beneficial right use of property, when prevent obstacles the present enjoyment right, that when the decree a court of equity would in fact remove those obstacles without violation of rights of private or individuals of any principles public policy, and when the courts of law afford no adequate remedy, jurisdiction of equity complete.

The doctrine that a is not cognizable by courts of justice if controverted, unless possessed of general validity for any purpose, pertains to the canons of the common law rather than equity. .to Trustees are constantly ap plying to the court for instructions, not because the de disagree fendants with them about the performance of their duties, but protect against themselves the possi bility of any such claim at some future time. In suits to title, establish to remove on clouds title, equity regu-1 larly intervenes rights protect a plaintiff about which no controversy exists. The owner of a title ac quired by adverse possession, evidence of which is not a matter record and might lost, is entitled to a decree his establishing against title as the holder of the patent title, though even such holder may have entirely abandoned the property.; does not de all pend any at adverse claim the defendant. See .on Tucker, Sharon S. 533.

In an ordinary suit, parties joined foreclosure as de- fendants on the mere allegation they have or claim junior some interest in the property. Such a defendant disclaimer, he file but cannot sustain a demurrer *5 asser- any that it fails to show ground the bill on the The apprehension on of an claim. part tion his adverse of claim, right and the the plaintiff he make a might that any free and clear from to the of the property enjoyment claim, is all that is needed to enable of such possibility him. against court to enter a decree wrong, case does fact disclose a present While the was of unfounded assertions made before suit consisting during pleading argument and reiterated begun equitable jurisdiction not believe that its we do progress, any or existence of such by the assertion is conditioned a right of includes to its wrong. ownership property is coeval with the use; right ownership that beneficial into the first time when some- being not come and does and it is one of the and most body it; ordinary disputes right of to render such a available useful functions enjoyment. obstacles to its The utmost .by the removal of that there must be in required can fact a real be Cf. Gavin enjoyment right. to the free obstacle McClun, Curtin, Fulwiler 285 Ill. 174. 171 Ill. as picture equity congeries error to a grave It is of action outside which its remedial forms stereotyped The issue thus raised to the goes cannot operate. powers jurisdiction. equitable very foundation label already stock, If the must bear a in. the suit bill title, one to remove be described as cloud on can best to remove from in the nature a bill cloud as a bill Challen, Holland Cyc. title. Co., v. Hood Rubber McArthur Rev,

Har. L. Mass. law, effect of Illinois authori-

As for the holding that a state statute only go to the extent ties to remove cloud on title creates enlarging enforced a federal substantive they no countenance to the that state court; lend claim courts or even nar- legislatures state can in manner any row the definition of a down cloud on title so as to cut *6 re- jurisdiction inherent- with the federal courts to spect Wright, the removal 121 McConihay thereof. v. 201; U. S. Guffey Smith, v. 237 Holland 101; U. S. v. Challen, Smith, Pusey 110 U. S. 15; 195; Clark v. 13 Pet. & Jones Hanssen, Co. v. 261 U. S. 491.

It is one thing to that an say impediment of some par ticular sort is not one which, alone, equity will standing jurisdiction assume remove, to quite say another to équity cannot remove it as relief to part which a suitor is distinction justly entitled. With this .kept view, we think to easy remedy show .that sought in present suit would have been accorded Shannon, Illinois courts. v. 121 Ill. 452; Parker Seely Baldwin, v. Ill. 211; Greenough Greenough, 185 v. 248 416; Ill. Owsley, Harrison v. 172 Ill. 629; Buckner Carr, v. 302 Ill. 378; McCarty v. 275 McCarty, 573; Ill. Warren, Warren McClun, v. 279 Ill. 217; Fulwiler v. 285 Ill. 174.

Equity is not from prevented jurisdiction of assuming merely meritorious case because it involves features which, isolated, when have pronounced been insufficient in themselves- to warrant jurisdiction. the exercise of Raich, 239 v. Thompson, U. S. Terrace 33; v. 263 Truax 197; Banton, U. S. Packard v. 140; Hygrade U. S. Sherman, Provision Co. v. 497; Cases, U. S. Ohio Tax 576; Carter, U. S. Risty v. Shaffer Railway Co., 270 U. S. 378.

As to ora? assertion adverse claims: That equity has inherent merely construe deeds of inter- pret contracts is a proposition which be accepted as axiomatic. That mere verbal assertions of an adverse claim are not enough, further incident, to without create a removable .cloud, proposition is a generally true. What equity jurisdiction to gives construe-deeds contracts in- volving only legal emergency titles is an actual its aid is to assure an indispensable owner the beneficial ” use of his and mere assertions will property, verbal not call into action relate to a similar they unless Thompson Irrigation District, situation. v. Emmett Fed. 560; ord-Bowling Oman v. Green Stone Bedf Marshall, Fed. 162 Minn. 18; Siegel Lovell v. Her bine, 148 Pa. St.

That there was affirmative assertion of claim is adverse shown this record. of removal of on clouds title: &

Illustrations N. Y. N. Ry Schuyler, H. 17 N. Y. 502; Co. v. Stebbins Perry County, H. 567; Levy 167 Ill. S. Kress Co., & 285 Fed. 836; Blair Chicago, Challen, Holland v. Shannon, Parker Ill. 452; Sharon v. *7 Tucker, 144 S. Contee 19 533; Lyons, Sup: U. v. Ct. D. C. Converse, 148 Ill. Co. Atchison 207; 622; Ry. Walker v. McArthur Hood 221 Stamp, 428; Co., v. 290 Ill. v. Rubber Rector, 201 N. 1, Rector Y. 130 372; App. Mass. Div. v. 166. .

Given a to use primary beneficial of property, present enjoyment and an obstacle to its which would an appropriate removed decree, fact be lack of law is the sole adequate remedy at sufficient criterion and 1 equitable jurisdiction. Pomeroy, Eq. Jur., § 111; Co., Ry. Pennsylvania Toledo Co. 54 Fed. 746; Dodge v. (cid:127) Cole, 97 Ill. 338. v. else Waiting somebody chooses to start a lawsuit until adequate not an remedy this case at law. Modern jurisprudence require parties does not to hazard their en- tire fortunes the correctness their lawyers’ opin- Carpenter, Nat’l Bank v. 101 parte ions.. U. Ex 567; S. Young, Wadley 209 U. S. Southern 123; Ry. Co. v. Geor- gia, 235 Oklahoma 651; Operating Love, U. S. Co.. v. Thompson, Terrace 331; 252 U. S. v. 263 U. 197; S. Por Webb, 263 225; O’Brien, v. U. S. Webb v. 263 terfield 282 313; Webb, Society S. Fick v. 326; 263 U. Pierce S. v. Sisters, Waiting 268 U. S. 510. to is not ade- be sued an

quate for a remedy Murray, on title. 50 cloud Foss v. Oh. Stone, Challen, St. Holland Bank 19; v. 15; v. Fredenberg Whitney, Fed. 383; 819; v. Fed. Louis, Siegel Harbine, Schwab St. 310 Mo. 116; Pa. St.

As for declaratory judgments, is doubtless true courts ordinarily refuse to enter judgments declaring rights respect with present cause contro- versy exists; but this jurisdic- doctrine does not affect the tion of remove clouds from title.

The complicated social, problems incident to modern commercial, and industrial development often- make it very important that the rights parties be settled before they directly are in. litigation. Generally involved have courts not shirked the necessity task when the an adjudication they was but been sufficiently urgent, have and naturally ques- reluctant to take tions of remote or speculative character, and have they always not at been one the degree about of vexatiousness that will'warrant such intervention.

As to removability, separable controversy indis- pensable parties: Barney Latham, 205; U. S. Fraser Jennison, Executors, Russel v. Clarke’s Barrow, Cranch Shields v. City How. Sioux Co. Trust Fed. 124; Bankhead, Williams v. 19' 563; Raphael Trask, Wall. Brown v. *8 289; Trousdale, 138 U. Brown, S. Kendig v. 97 423; U. S. Louis Ry. Wilson, St. Co. 114 v. 60;, U. S. Crump v. Thurber, 56; Hagan Walker, 115 U. S. v. 14 29; How. Dummer, Wood 308; v. 3 Mason Sisson, Greene v. 10 Fed. Walkinshaw, Cas. No. Tobin v. 5768; 23 Fed. Cas. No. Fort, Martin v. 14068; 83 Fed. Wilson 19; Ohwego v. Township, 151 56; U. S. Construction Co. v. Creek Cane Township, 155 U. S. 283; Salem Trust Co. v. Mfrs.

283 Co., 264 182; Finance U. S. Waterman v. Canal-Louisiana Co., Bank Co., 215 33; U. S. Bitterman v. Louisville R. R. U. S. Elder 205; Mining Co., 966; v. Western 237 Fed. 207 Ashburn, Graves v. U. S. 311; 215 Commodores Point Hudnall, Terminal Co. v. 283 Schell Leander ; Fed. 150 v.

Clark 2 College, Tvedt, (2d) 41; F. Pirie v. 115 17; U. S. L. & Ide, R. 114 N. R. Co. U. Alabama Southern 52; v. Central, R. R. Thompson, 206; Co. 200 U. S. Illinois v. R. R. Sheegog, Co. v. 215 308; Chicago, R. I. P.& Ry. Dowell, Hay May Stores, 229 U. S. 271 102; Co. v. v. Works, S. 318 Geer v. ; 428; Alkali 190 Mathiesen Felt, Bacon v. 38 Fed. Venner 870; v. Southern Pacific Co., Lownsdale, 832; Fed. Field v. Fed. No. Cas. . Goodenough 4769; Warren, v. 5534; Cas. Fed. No. Gilliland, Goldsmith Stanbrough Cook, Fed. 154; 38 Fed. Carpentier, Bates 369; 452; Fed. Carothers McKinley Mining Co., Mining Fed. N. C. Westfeldt, Co. v. Fed. McMullen v. Halleck Fed; Co., Cattle Natural Gas Winfield Wichita Co., 267 Fed. Old Oil Superior Co. v. Oil Dominion Corp’n, 283 Fed. 636; Davidson Montana-Dakota Power (2d) F.

Me. Justice delivered of the opinion Béandeis Court. suit,: begun

This which was a state of Illinois court by the Auditorium Association, is said to be Chicago title; the nature of a bill to remove a cloud All of except of the parties a few defendants are citizéns Illinois. These claimed that as to them there was a separable controversy, they and secured removal whole causé to the federal Illinois. court northern There Willing and other on defendants moved dismiss, the ground that,the bill not within the was óf a court juris that the court is without subject of the case, diction matter made or at *9 of ópin made the bill.” The court was tempted, to .be de ion should be presented questions that the case mo only denied the upon proofs; termined and answers question to raised dismiss, prejudice any tions to without the touching motions; either the and directed party on fully to the hearing defendants answer. After case bill for evidence, the Court dismissed the the. District grant equity any of in to relief want the court preju without pleadings évidenee, the the but and have . . . rights dice to the plaintiff whatever asserted, appropriate other any proceeding when in (2d) wise.” 8 F. *was Appeals

The Circuit Court of held that the suit one to remove a cloud cognizable a court of as in with the decree direction upon title; and reversed the the to hear the evidence and determine District Court (2d) granted Court involved, issues F. 837. This and certiorari, by Willing writ U. S. 519. Motions court had been others to remand the case to the state ground the on the that the contro- made in District Court all de- versy single involved and entire the was as denied, were motions, fendants. The which that court again and denied. Appeals in Circuit Court of renewed alleged whether the con- We occasion to consider have opinion For are of troversy separable. we was or controversy not a case present proceeding-does within ,as in Article III defined range judicial decision Constitution. the. Federal The proved facts and these: Associa- organized corporation, was for the

tion, an Illinois constructing and..maintaining Chicago a purpose auditorium, for containing large, galleries building rooms;.to and of-art, pro- offices other works exhibition music, for the thereby otherwise, cultivation of. vide and Chicago arts, fine and for holding and the .drama and to use conventions; premises other political any and all To purposes profit. end, this the As- *10 became, 1887, adja- sociation in the lessee ground of five cent for parcels of the term of 99 under years, land five separate, substantially similar indentures. Three of the were leases later year extended to the On this land the built, single Association the 1889, before monumental structure standing, now Build- known as the Auditorium ing, which the contains, besides a recital auditorium, hall, studios, a hotel, many and business offices. of The cost construction and maintenance defrayed was is- by stock sues and aggregating $2,000,000, issues bonds which $1,375,000 outstanding.

The in building fairly is now good and con- condition, tinues serve well the for purposes which it was con- The structed: payments of rent and been interest have made regularly. Thus public, neither the the landlords, dissatisfaction; nor the have bondholders cause for But, stockholders, for the the investment has never been (cid:127) (cid:127) financially remunerative. In forty years divi- only one. has dend been and that one paid; was and a half per cent. investment, Considered as a financial the- is now building in design; incapable obsolete and it is of alteration with- unjustifiable out expense. and highest best use of for the property gain the financial of the tenant would replacement the now be of this structure aby modern one for business. Association adapted desires to erect a .The large modérn commercial building of greatly increased may the height, cost which be as much $15,000,000, as in changes Appropriate powers its charter have been Recently some of made. the stock has acquired been corporation the at small President fraction of its par valué.

There is in provision the leases in which gives terms tear the Association the down building this and in erect another It place. its be that may the building, ,and as constructed, and when became, is, now property Smith, 2 Wall. Kutter Compare of the lessors. Railway Side Elevated Metropolitan West Bass The leases contain certain provisions 82 Fed. 857. right to implication, any denying, by be construed as byit a better building replace even to one. tear down the security building payment declare that the They of all other im covenants performance and for rent “keep tenant tenant; shall upon the posed in premises demised ... building situated said ,a condition, in and . and safe secure . . good repair, safe, clean and building good; all rooms said and during entire term repair. -the condition tenantable or repair that the tenant shall rebuild ”; of this lease by fire, upon destruction building, damage event *11 original as was followed structure plan the same the lessors; the upon plans approved by or such other as are shall the the pay appraised that'the landlords -tenant and the end of improvements valúe of the at the term. . opinion are of that it has Counsel for the Association building down legal, to tear the and to construct right the without, of obtaining the new first the consent the one, bondholders, of the trustee for the pro- lessors and several security furnished for the of adequate payment is vided the-ground pending completion rent the of the new build- But ing. the deemed advisable to obtain Association qf the lessors of the end,- the consent arid trustee. To that negotiations opened Willing were one other with and of and there was talk of their lessors, the some purchasing In the course an friendly, interests. private of infprmal, conversation, Willing to the President of the Asso- stated counsel that that his had the lessee had ciation advised the Auditorium Building to tear down without the and trustee of the lessors of the for the bondhold- consent any- approached by of the were never ers. Several lessors of the Association. was the trustee for behalf .Nor one-on a, Willing, year After this talk with the bondholders. passed without further Then, occurrence. bar the suit at w,as begun against lessors all the for the and the trustee bondholders. bill alleged that under the proper construction , and of interpretation the terms, covenants and conditions seyeral your

of said leases, fully orator and empowered the right has tear down im- and remove the present to. provement the,erection as a of part and incidental a new improvement equal or greater value not impair- in any way the ing security property right and the said lessors or their successors and assigns, furnishing upon and proper adequate security during the removal of the present until improvement completion and the of the new but the defendants improvement; hereinafter named, some of them, claim assert, nevertheless and reason with, of such claim and assertion certain persons whom your orator is obliged to deal in financing of its afore- said plans are fearful, present building cannot be removed without a violation of the terms, covenants and of said conditions leases . . The . claims, aforesaid fears respecting rights and uncertainties of the parties leases, to said based terms, covenants and condi- tions, property, leases said have greatly impaired the value your the leasehold interests of orator, and have made unmarketable, them and have prevented your from, orator its exercising rights respect with to said lease- *12 hold interests so as to secure therefrom the highest and best use of its in land; interest the the terms, and cove- and of nants conditions the said in so leases, far as they give claims, color to said fears and uncertainties, upon your clouds the of for orator, title the removal of relief against your and which orator adequate has no in a of remedy court law.” The bill prayed that this court will from the remove your several interests of the orator above men- leasehold tioned claims clouds based upon alleged and the force and conditions, of afoie- the terms, covenants and of the

effect of title and establish the fully quiet and will leases, said right full with properties to the said leasehold orator your any and remove to tear down of orator your the part on upon being time which for the buildings all and and security ; . . . giving proper premises, upon said enjoined and may also be restrained that said defendants tear- your orators from to steps prevent taking any from building present the removing or ing. down ... evidence, sug- a bill, or in the even in the is not There any- had ever done of the defendants that any gestion present full the enjoyment the hampered which thing by. authorized premises of the demised occupancy use and hostile act nor a threat. neither There was the leases. any any by a kind made evidence of claim There is no by Willing, in an expression amica- defendant, except the a conversation, opinion question of an on ble, private in the orally declined to merely he concur Then, law. right it has the asserted. of the Association opinion reason, the other several defend- that, or For some project. to further the Association’s had refused ants nor anything neither done said defendants had Other Indeed, far anyone, appears. matter to as the so about answers, expressing m their from refrained, even several legal rights parties. as any opinion agree refusal a landlord to with a Obviously, mere lease, effect of his mere as a meaning tenant to.'the fulfillment of the ten- remove obstacles to the failure.to at law desires, is not an actionable either wrong, ant’s elements essential to the And lacks equity. case of a a cloud federal court bill remove maintenance as to under plaintiff’s doubt title. of the on the face instruments leases arises fact, derives title. Because of that the doubt the plaintiff cloud, and the to re- contemplation bill legal not is not It true that plight does lie. it as such move *13 which the cannot complains Association be remedied an action at But it law. does not follow that Associa- the in tion relief have a federal court. What the is plaintiff seeks a To simply declaratory judgment. grant that is beyond relief the power the conferred Grannis, federal judiciary.' Liberty Warehouse Co. v. 70, S. Compare Liberty Burley

U. Warehouse v.Co. Ass’n, statehient, Tobacco Growers S. 71. The U. made Chicago, 400, at the that Blair bar, 450, U. S. supports jurisdiction, thé is unfounded.

It is case, true that this is not a moot like Singer Manu Wright, 141 facturing 696, Co. v. U. and United S. States Co., v. Alaska S. S. that, S. Keller unlike Co., 261 428, 444, Potomac Electric and Postum Co., Fig Cereal Co. v. Nut 693, S. the U, California which is here sought matter it determined not is have an bill a administrative that the case' question; presents if which, subject judicial cognizance, would were jurisdic of equity form under a familiar head come States, U. tion; that, 697, Gordon v. United S. unlike might that, Spring final unlike judgment given; South Mining Mining Hill Gold v. Amador Gold Medean Co. 300, the adverse in interest; that, 145 U. S. are parties Hughes, 126, unlike Fairchild S. and Massachu Mellon, setts v. 262 U. S. there is 447, here no lack of a plaintiff the question substantial interest that; it seéks to adjudicated; Jersey have unlike New Sargent, 328, interest of plain-, tiff is here and that is specific; definite there here no' attempt to secure abstract determination court by the an there validity statute, as was in Muskrat v. of.the States, 346, 361, United 219 U. S. and Texas v. Interstate Commission, 258 U. 158, Commerce 162. But still the a case or controversy not within proceeding the meaning III of Article Constitution. The fact the plain tiff’s desires thwarted by doubts, its own by the No a cause of action. others,

fears of does not confer *14 to or has threatened plaintiff wronged defendant has pro to remove doubts is a equity do Resort to such so. or American ceeding English unknown to either which was of the Constitution adoption courts at time of the De Cross v. a century thereafter, and for more than half Valle, 1 1 Turnley, Jackson v. 1, Compare Wall. 14 — 16. Kensington, Rooke v. Lord 2 K. 617, 627; & J. Drew. Langdale Briggs, ; Lady 753, 391, 760 8 DeG. M. & G. v. 427.

As the not a suit within the of proceeding meaning is 28 Code, § of the Judicial the motions to remand the cause to the state court should granted. been have Virginia, Upshur Stewart 117 U. County v. S. Rich, Live Stock U. Oregon Co. v. S. Pacific Board, Water 440, 447. Whether, as the re spondent contends, remedy it has under the law of Illi nois, we no occasion to consider. Fulwiler v. Mc have Clun, 285 Ill. 174. Compare McCarty McCarty, . Greenough, 573; Greenough Ill Devine Ill. Angeles, v. Los 313, 202 U. S. 334-335. Even a statute the,State of could not confer a remedial to proceed in a federal court in a suit of this character. Hanssen, Pusey & Jones Co. U. S. 491.

Reversed. opinion of Me. Concurring Stone, Justice I concur in the result. It suffices to say that the suit one plainly equity jurisdiction not within the conferred 24, 28, of the Judicial Code. §§ But unnecessary, is. and I am therefore not go further prepared,'to and say anything support Congress view that may not constitutionally confer on the federal courts where,that render declaratory judgments in cases form judgment would an appropriate remedy, or that this such constitutional to review power Court is without a federal involve they of state courts when judgments Trust Co. Fidelity National Bank & question. Compare “ Swope, 123, 130-134. It is not the habit S. constitutional nature questions the court to decide necessary to a decision the case.” absolutely unless States, 295. See Blair Burton v. United 283, States, Tracy United Flint v. Stone 273, U. S. 177; Light States,. v. United 107, S.U. ” 523, certainly 538. There is case or controversy requiring power us an on the opinion Congress before judgment incorporate declaratory into our federal And jurisprudence. the determination now made seems very to me similar itself to a declaratory judgment to the *15 not constitutionally effect we could be authorized to give judgments is, addition, such prospective, —but unasked, and unauthorized under any statute.

BALTIMORE & OHIO RAILROAD COMPANY

UNITED STATES et al. Argued April 11, No. May 1928. Decided 21, 1928.