Writ of Certiorari Granted June 27, 1949. See 69 S.Ct. 1527.
STEPHENS, Chief Justice.
This is a special appeal allowed by this court from an order of the United States District Court for the District of Columbia granting a preliminary injunction. The appellant, a defendant below, is the Brotherhood of Locomotive Firemen and Enginemen, an unincorporated association, hereafter sometimes referred to as the Brotherhood. Other defendants were subordinate Lodge No. 7 (the "Potomac" Lodge) and Lodge No. 532 (the "National Capitol" Lodge) of the Brotherhood composed principally of members residing in the District of Columbia; Marvin M. McQuade, Recording Secretary and Financial Secretary of Lodge No. 7, and William E. Lacey, Recording Secretary of Lodge No. 532, residents of the District of Columbia; the Southern Railway Company, the Seaboard Air Line Railway Company, and the Atlantic Coast Line Railway Company, interstate carriers operating along the eastern seaboard, hereafter referred to as the carriers. Other railroad companies intervened. Neither they nor the "other defendants" mentioned above are parties to this appeal. The appellees, plaintiffs below, are 21 Negro firemen employees of the carriers. Their complaint in the District Court charged: that the Brotherhood by virtue of its constitution and practices restricts its membership to white locomotive firemen and enginemen; that its members have constituted the majority of the craft or class of locomotive firemen on most of the interstate railroads of the United States, including the defendant carriers, and that in consequence the Brotherhood has, pursuant to the provisions of the Railway Labor Act, 45 U.S. C.A. § 151, et seq.,
The venue statute applicable to the United States courts generally, 28 U.S. C. § 112 (1946), provides that "no civil suit shall be brought in any district court against any person by any original process or proceeding in any other district than that whereof he is an inhabitant . . .."
. . . Whether an individual is an "inhabitant" of any place other than his home we need not inquire; the word has no better defined outlines than "domicile", or "residence"; all we need say here is that it was used to indicate some more permanent attachment than that of "a regular and established place of business"; and in the case of individuals other ties than occupational were certainly included. In the case of a corporation we may assume that it can be an "inhabitant" only of the state of its incorporation, Neirbo Co. v. Bethlehem Shipbuilding Corporation, 308 U.S. 165, 60 S.Ct. 153,
An affidavit filed in support of the Brotherhood's motion to dismiss stated that the principal place of business of the Brotherhood is Cleveland, Ohio, and the constitution of the Brotherhood which was made a part of the record of the hearing on the motion to dismiss so provides. No counter-affidavit was filed. It may therefore be taken as established — it is indeed apparently not in dispute — that the principal place of business of the Brotherhood, and therefore its inhabitancy, is Cleveland, Ohio. It follows that if the Federal venue statute governs, the venue in the instant case was mischosen.
There is, however, a local statute, that is, one enacted by Congress under Article I, § 8, cl. 17, applicable to the District of Columbia alone, which provides that no action shall be brought in the United States District Court for the District of Columbia by original process against any person "who shall not be an inhabitant of, or found within, the District, except as otherwise specially provided." (Italics supplied) D.C.Code (1940) § 11-308. It is contended by the appellees that that statute may be looked to for support of the venue in the instant case and that it is satisfied on the facts, that is to say, that the Brotherhood may properly be said to be "found" within the District, by virtue of its having therein the office of its "national legislative representative." But we need not determine whether the Brotherhood is thus "found" within the District since, for the reasons set forth below, we think the Federal venue statute governs.
In O'Donoghue v. United States, 1933, 289 U.S. 516, 53 S.Ct. 740, 77 L.Ed. 1356, the Supreme Court held that the Supreme Court of the District of Columbia and the Court of Appeals of the District of Columbia (now the United States District Court for the District of Columbia and the United States Court of Appeals for the District of Columbia Circuit) are constitutional courts of the United States ordained and established under Article III of the Constitution. This holding is predicated upon recognition that those courts are "courts of the United States, vested generally with the same jurisdiction as that possessed by the inferior federal courts located elsewhere in respect of the cases enumerated in § 2 of Art. III,"
The appellees contend, however, that the instant suit may, as against the Brotherhood, be regarded as a class suit brought against the two local lodges of the Brotherhood and McQuade and Lacey as representatives within Rule 23(a), Federal Rules of Civil Procedure, 28 U.S.C.A., providing that "If persons constituting a class are so numerous as to make it impracticable to bring them all before the court, such of them, one or more, as will fairly insure the adequate representation of all may, on behalf of all, sue or be sued, when the character of the right sought to be enforced for or against the class is (1) joint, or common, or secondary . . .." And the appellees assert that since the two local lodges and McQuade and Lacey are inhabitants of the District, the inhabitancy requirement of the Federal venue statute, 28 U.S.C. § 112 (1946), is satisfied. The appellees rely upon Tunstall v. Brotherhood of Locomotive Firemen and Enginemen, 4 Cir., 1945, 148 F.2d 403. Therein an action against the same Brotherhood as was a defendant and is the appellant in the instant case, to restrain it and the Norfolk Southern Railway Company from enforcing, among others, the same allegedly discriminatory collective bargaining agreement as is involved in the instant case, was held to be sustainable as a class action by virtue of its having been brought against a local lodge of the Brotherhood and one Munden, the chairman of that lodge, who were sued as defendants and served. But the action was sustained as a class suit because the Court of Appeals was of the view that as a matter of fact the subordinate lodge and the individual sued and served were fairly representative of the membership of the Brotherhood. It said: "It cannot be contended with any show of reason that Munden and the subordinate lodge, who were admittedly served, were not fairly representative of the membership of the brotherhood or that service upon them would not give adequate notice to the class sued to come in and defend . . .." (148 F.2d at 406) This view of the Court of Appeals in the Tunstall case was warranted because the record in that case discloses that members of the local lodge which was sued and served and the chairman sued and served were employees of the Norfolk Southern Railway Company which was itself a party to the allegedly discriminatory collective bargaining agreements. They, therefore, had an interest in the outcome of the suit coextensive with that of the Brotherhood itself. They were among the employees concerning whom the agreements were made.
It follows from the foregoing that, in view of the law as it stood at the time of the trial court's action, the motion of the appellant Brotherhood for dismissal of the instant suit for lack of proper venue should have been granted and therefore that the order issuing the preliminary injunction should not have been entered. But an addition to the Judicial Code, 28 U.S.C.A. § 1406(a), effective September 1, 1948, provides that "The district court of a district in which is filed a case laying venue in the wrong division or district shall transfer such case to any district or division in which it could have been brought." Except where vested interests have intervened an appellate court must decide a case according to the law as it exists, whether in statutory form or in the form of judicial decision, at the time of its decision rather than according to the law as it existed at the time of the decision below. Ruppert v. Ruppert, 1942, 77 U.S.App.D.C. 65, 134 F.2d 497. Accordingly the ruling of the trial court that venue was properly laid in the District of Columbia is held erroneous and the order issuing the preliminary injunction is reversed and the case remanded to the trial court and that court is directed to transfer the case to the northern district of Ohio in which is situated the city of Cleveland wherein, as above pointed out, the Brotherhood has its inhabitancy.
Reversed and remanded.
The Reviser's Notes to § 1391 state: "Word `reside' was substituted for `whereof he is an inhabitant' for clarity inasmuch as `inhabitant' and `resident' are synonymous. (See Ex parte Shaw, 1892, 12 S.Ct. 935, 145 U.S. 444, 36 L. Ed. 768; Standard Stoker Co., Inc. v. Lower, D.C., 1931, 46 F.2d 678; Edgewater Realty Co. v. Tennessee Coal, Iron & Railroad Co., D.C., 1943, 49 F.Supp. 807.) Reference to `all plaintiffs' and `all defendants' were [sic] substituted for references to `the plaintiff' and `the defendant,' in view of many decisions holding that the singular terms were used in a collective sense. (See Smith v. Lyon, 1890, 10 S.Ct. 303, 133 U.S. 315, 33 L.Ed. 635; Hooe v. Jamieson, 1897, 17 S.Ct. 596, 166 U.S. 395, 41 L.Ed. 1049; and Fetzer v. Livermore, D.C., 1926, 15 F.2d 462.)"
We think that the rephrasing in 28 U. S.C. § 1391 (b) (1948) of 28 U.S.C. § 112 (1946) makes no substantive change in respect of venue of the United States courts generally, and since the decision of the trial court in the instant case was rendered and the briefs on appeal written in terms of the venue provision as phrased in Section 112, we refer in this opinion to that phrasing rather than to the phrasing of Section 1391 (b).