theless I think the Court's decision lacks statutory basis, and I dissent from its opinion and judgment.

Since the Court's decision will be referred to as a precedent for solving administrative jurisdiction problems, it seems worth while to set out my reasons for disagreeing with the Court's opinion. We can foresee only a part of the complications that this ruling of exclusive primary jurisdiction may bring into the administration of the Railway Labor Act. The determination of what adjudicatory body has power to judge a controversy is basic to all litigation. Jurisdiction that has always been recognized to exist in state courts should not be taken from them by inference drawn with difficulty from the statute by this Court after contrary conclusions by two state courts.2 The passage of a federal law creating a forum for the enforcement of certain contract rights connected with commerce does not necessarily withdraw from state courts their recognized jurisdiction over these contract controversies. The purpose to limit enforcement to the federal forum must be found in the federal statute in express words or necessary implication.3

The Court calls attention to nothing to supply these requisites. There is not a line in the statute, and so far as I can ascertain, not a suggestion in the hearings that the creation of the Adjustment Board was intended by Congress to close the doors of the courts to litigants with otherwise justiciable controversies. The only expression in the statute which might conceivably support the Court is the general declaration of the Act's purpose "to provide for the prompt and orderly settlement of all disputes

2 Delaware, L. & W. R. Co. v. Slocum, 299 N. Y. 496, 87 N. E. 2d 532; Southern R. Co. v. Order of Railway Conductors, 210 S. C. 121, 41 S. E. 2d 774. See also Adams v. New York, C. & St. L. R. Co., 121 F.2d 808.

3 Cf. United States v. Bank of New York Co., 296 U. S. 463, 479; see Claflin v. Houseman, 93 U. S. 130, 136.

growing out of grievances or out of the interpretation or application of agreements covering rates of pay, rules, or working conditions." But this expression is as consistent with an intention to provide an alternative forum as to provide an exclusive one. Experience has not demonstrated that the settlement of grievances has been any the less prompt and orderly in the courts than it has been in the Board."

Neither the Act nor our precedents support the Court's ruling. In the section which conferred jurisdiction on the Board, §3 First (i), Congress provided that disputes "shall" be first handled by negotiations between the parties and on their failure "may be referred by petition of the parties or by either party to the appropriate division of the Adjustment Board . . . . The use of "may"and "shall" in the 1934 Railway Labor Act may not be decisive, but I fail to see how it can now be disregarded completely, when at the time of Moore v. Illinois Central R. Co., 312 U. S. 630, the use of "may" seemed an indication of congressional purpose sufficient to furnish

* 48 Stat. 1187, § 2 (5).

5 See Fifteenth Annual Report of the National Mediation Board, p. 12; Monograph of the Attorney General's Committee on Administrative Procedure, Part 4, Railway Labor, p. 16, S. Doc. No. 10, 77th Cong., 1st Sess. (1941).

648 Stat. 1191, § 3 First (i):

"(i) The disputes between an employee or group of employees and a carrier or carriers growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions, including cases pending and unadjusted on the date of approval of this Act, shall be handled in the usual manner up to and including the chief operating officer of the carrier designated to handle such disputes; but, failing to reach an adjustment in this manner, the disputes may be referred by petition of the parties or by either party to the appropriate division of the Adjustment Board with a full statement of the facts and all supporting data bearing upon the disputes."

a ground for holding that courts had concurrent primary jurisdiction."

The ruling in Texas & Pac. R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, does not support today's decision. In that case this Court held repugnant to the Interstate Commerce Act a suit in a state court to recover unreasonable carrier charges. The Act had given the Commission power to determine the reasonableness of rates filed and published under its provisions. It also prohibited explicitly preferences and discriminations in favor of shippers. The Court held that, if a shipper could recover in the courts part of a tariff charge, he would receive a discriminatory preference. Since this would be wholly inconsistent with the Interstate Commerce Act, state courts were without jurisdiction to entertain suits for the recovery of unreasonable charges. By necessary inference

7312 U. S. 630, 635-36: "It is to be noted that the section pointed out, § 153 (i), as amended in 1934, provides no more than that disputes 'may be referred . . . to the . . . Adjustment Board . . .' It is significant that the comparable section of the 1926 Railway Labor Act (44 Stat. 577, 578) had, before the 1934 amendment, provided that upon failure of the parties to reach an adjustment a 'dispute shall be referred to the designated Adjustment Board by the parties, or by either party . . .' This difference in language, substituting 'may' for 'shall,' was not, we think, an indication of a change in policy, but was instead a clarification of the law's original purpose. For neither the original 1926 Act, nor the Act as amended in 1934, indicates that the machinery provided for settling disputes was based on a philosophy of legal compulsion. On the contrary, the legislative history of the Railway Labor Act shows a consistent purpose on the part of Congress to establish and maintain a system for peaceful adjustment and mediation voluntary in its nature."

8204 U. S. 426, 440-41: "For if, without previous action by the Commission, power might be exerted by courts and juries generally to determine the reasonableness of an established rate, it would follow that unless all courts reached an identical conclusion a uniform standard of rates in the future would be impossible, as the standard would fluctuate and vary, dependent upon the divergent conclusions reached as to reasonableness by the various courts called upon to

the Commission was found to have the sole power to entertain originally proceedings which might result in the alteration of an established schedule. But the Court was careful to say that a statute was not to be construed as taking away a common-law right unless it were found that it was "so repugnant to the statute that the survival of such right would in effect deprive the subsequent statute of its efficacy." The Railway Labor Act has no rule of law, similar to that against preferences, that would be controverted if different courts in different states should construe identical collective-bargaining agreements differently. If, to preserve uniformity in the rulings of the Board, it were necessary that it have exclusive primary jurisdiction over grievance disputes, Congress would hardly have provided, as it did, that carriers and railroads by agreement might set up system and regional boards independent of the National Board. The Abilene case was pressed by four dissenters as controlling authority consider the subject as an original question. Indeed the recognition of such a right is wholly inconsistent with the administrative power conferred upon the Commission and with the duty, which the statute casts upon that body, of seeing to it that the statutory requirement as to uniformity and equality of rates is observed.”

9204 U. S. 426, 436-37: "As the right to recover, which the court below sustained, was clearly within the principles just stated, and as it is conceded that the act to regulate commerce did not in so many words abrogate such right, it follows that the contention that the right was taken away by the act to regulate commerce rests upon the proposition that such result was accomplished by implication. In testing the correctness of this proposition we concede that we must be guided by the principle that repeals by implication are not favored, and indeed that a statute will not be construed as taking away a common law right existing at the date of its enactment, unless that result is imperatively required; that is to say, unless it be found that the preëxisting right is so repugnant to the statute that the survival of such right would in effect deprive the subsequent statute of its efficacy; in other words, render its provisions nugatory." 1o 48 Stat. 1193, § 3 Second.

to compel the conclusion that the Board had exclusive jurisdiction in Elgin, J. & E. R. Co. v. Burley, 325 U. S. 711." But on the tacit assumption that courts were not ousted of their jurisdiction, we upheld the right of employees to sue the carrier although the employment relationship still existed.

The case before us is quite different from Switchmen's Union v. Mediation Board, 320 U. S. 297, and General Committee v. M.-K.-T. R. Co., 320 U. S. 323. Those concerned controversies of a kind unfamiliar to courts, and they involved the Mediation Board, which could impose sanctions only when the parties agreed to accept its awards.12 We held that the issues in those cases were not justiciable in the federal courts, since the "concept of mediation is the antithesis of justiciability." 13 Here, the controversy relates to the interpretation of contracts, a function courts have always performed, and "it is not

11325 U. S. 711, dissent, 759. The dissenters insisted, p. 760: "The considerations making for harmonious adjustment of railroad industrial relations through the machinery designed by Congress in the Railway Labor Act are disregarded by allowing that machinery to be by-passed and by introducing dislocating differentiations through individual resort to the courts in the application of a collective agreement."

12 48 Stat. 1195, § 5 First; 44 Stat. 584, § 8.

13 General Committee v. M.-K.-T. R. Co., 320 U. S. 323, 337. Not long after these decisions were handed down we explained them as follows: "This result was reached because of this Court's view that jurisdictional disputes between unions were left by Congress to mediation rather than adjudication. 320 U. S. 302 and 337. That is to say, no personal right of employees, enforcible in the courts, was created in the particular instances under consideration. 320 U. S. 337. But where rights of collective bargaining, created by the same Railway Labor Act, contained definite prohibitions of conduct or were mandatory in form, this Court enforced the rights judicially. 320 U. S. 330, 331. Cf. Texas & N. O. R. Co. v. Brotherhood of Clerks, 281 U. S. 548; Virginian Ry. Co. v. System Federation, 300 U. S. 515." Stark v. Wickard, 321 U. S. 288, 306-307. See Steele v. Louisville & N. R. Co., 323 U. S. 192, 207.