his administrative appeals from decisions of subordinate divisions within the Commission as a prerequisite. This section provdes:

When an application for rehearing, reargument, or reconsideration of any decision, order, or requirement of a division, an individual Commissioner, or a board with respect to any matter assigned or referred to him or it shall have been made and shall have been denied, or after rehearing, reargument, or reconsideration otherwise disposed of, by the Commission . . . a suit to enforce, enjoin, suspend, or set aside such decision, order, or requirement, in whole or in part, may be brought in a court of the United States under those provisions of law applicable in the case of suits to enforce, enjoin, suspend, or set aside orders of the Commission, but not otherwise. [Emphasis added.]

Section 17 (6) provides procedure for appeal to the entire Commission from a division order, and Section 17 (7) authorizes the entire Commission to reverse, modify or change a division order when such action appears to be appropriate. Section 17 (8) requires the Commission to stay the effectiveness of any outstanding order pending disposition of a petition for reconsideration.

8

Thus, the statute provides that judicial review is confined to those orders having the requisite finality of action by the full Commission. Since appellants did not petition for reconsideration by the full Commission of the order

8 In the conference report on the bill that became the Transportation Act of 1940, which added $17 (9) to the Act, the Managers on the part of the House said (H. Rep. 2832, 76th Cong., 3d sess., p. 72):

"A new paragraph (9) is included providing that orders of a Division, an individual Commissioner, or a Board shall be subject to judicial review as in the case of full Commission orders, after an application for rehearing has been made and acted upon." [Emphasis added.]

We have been able to discover five instances, in addition to the one at bar, where the judicial process was resorted to without compliance with the terms of §17 (9). In two cases, the three-judge district courts held the provision to be jurisdictional and dismissed the complaints for failure of the plaintiffs to exhaust that administrative remedy. Idaho v. United States, not reported (In Equity No. 439, D. C. Utah, April 17, 1943); C. W. Hendley & Co., Inc. v. United States, not reported (Civil Action No. 581-47), D. C. Dist. Col., February 25, 1947). In two cases district courts have stated that Section 17 (9) did not require an application for reconsideration to the full Commission, but then have proceeded to dismiss the complaints on other grounds. Western Express Co., Inc. v. United States, not reported (Civil Action No. 3317, D. C. N. D. N. Y., July 21, 1949); J. B. Braswell v. United States, not reported (Civil Action No. 1059, D. C. W. D. Texas, El Paso Div., December 22, 1949). In the Western Express case, Circuit Judge Chase, in a concurring opinion, stated that §17 (9) imposed "an express limitation upon our jurisdiction" to review an order of a division of the Commission. In Texas v. United States, not reported (Civil Action No. 4004, D. C. W. D. Okla., January 26, 1949), affirmed, 337 U. S. 911, the applicability of §17 (9) was raised by the United States in the lower court. However, the complaint was dismissed on other grounds, the court not referring to $17 (9). In its motion to affirm the United States again raised the point, but this Court did not indicate its grounds for affirmance.

of March 10, 1949, they have failed to establish the statutory basis for judicial review.

Appellants' assertions that the order should be set aside on the ground that Section 20b is unconstitutional affords them no greater right. As the District Court stated "We cannot assume that upon petition for reconsideration the Commission would not have reversed the order of March 10, thereby eliminating the constitutional question here presented . . . Congress must have been aware that the constitutionality of various provisions of the Interstate Commerce Act would be challenged in suits to set aside orders of the Commission. The fact that the substantive issue here presented is constitutional cannot remove the barrier to this suit interposed by Section 17 (9).”

As the District Court points out, the Supreme Court in Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U. S. 752, ruled that constitutional questions will not be considered when they might have been, but were not, raised in the course of orderly administrative process, particularly where, as here, there is no showing either of inadequate opportunity for administrative relief or of irreparable injury.

United States v. Idaho, 298 U. S. 105, cited in the jurisdictional statement, is not controlling. That case was decided prior to the enactment of Section 17 (9), and at that time the Interstate Commerce Act did not require application for reconsideration of a division order by the entire Commission as a prerequisite of judicial review. Cf. United States v. Abilene R. R. Co., 265 U. S. 274.

We respectfully submit, therefore, that the appellants present no substantial question for the decision of this Court, and that the judgment and decree of the District Court should be affirmed.

FEBRUARY 1950.

Counsel for Appellees.

The fact that one appellant had petitioned for reconsideration of the earlier interlocutory order of December 9, 1948, did not fulfill this statutory requirement. The order of December 9, 1948, is not the one here sought to be enjoined. No petition for reconsideration was made as to the order of March 10, 1949.

C.

ORIGINAL CASES AND

EXTRAORDINARY WRITS

1. ORIGINAL Case-ComplaINT AND MOTION for Leave TO FILE

MOTION FOR LEAVE TO FILE COMPLAINT

The United States of America, by its Attorney General and its Solicitor General, asks leave of the Court to file its complaint against the State of Wyoming and The Ohio Oil Company submitted herewith.

(Date)

Counsel for Plaintiff.

STATEMENT IN SUPPORT OF MOTION

This is an action by the United States against the State of Wyoming and The Ohio Oil Company proposed to be instituted in this Court under authority of Article III, Section 2, Clause 2, of the Constitution of the United States. The purpose of the proposed action is to establish the Government's title to lands comprising a section 36 in Wyoming and to recover the value of gas, oil, and other petroleum products taken from that section. Wyoming claims that under Section 4 of the Act of July 10, 1890, c. 664, 26 Stat. 222, admitting it to the Union, it was granted sections 16 and 36 of public lands in each township for the support of common schools. The other defendant, The Ohio Oil Company, claims under leases from the State. The Government contends that prior to the acceptance of the survey of the section 36 in controversy the lands were withdrawn by order of the President and included in Petroleum Reserve No. 41 and therefore were not public lands within the grant of 1890 to the State. The original jurisdiction of this Court is invoked since both the United States and the State of Wyoming claim title to the same land and full and complete relief is possible only in this Court.

A survey to identify the sections within the township in which section 36 lies was authorized in 1914, the survey was made in 1915, and was accepted by the Commissioner of the General Land Office on July 27, 1916. On December 5, 1915, about seven months before the survey was accepted, the President under authority of the Act of June 25, 1910, c. 421, 36 Stat. 847, withdrew from location, settlement, sale, or entry all of section 36 for classification and in aid of legislation and placed the section along with other lands in Petroleum Reserve No. 41.

While section 36 was not surveyed until 1916, the township in which it lies was surveyed prior to that date. The north line of the township is a part of the Montana-Wyoming state line surveyed in 1880. The east, south, and west boundaries of the township were run in 1892 and the survey was accepted by the Commissioner of the General Land Office on December 20, 1892.

The State, it is believed, may contend that title to section 36 passed to it upon acceptance of the 1892 survey of the township and therefore section 36 was not "public land" available for withdrawal by the President under authority of the Act of June 25, 1910. The grant of school lands made by the 1890 Act admitting the State expressly exempted "all mineral lands" from its operation and authorized lieu selections (Section 13 of the Act of July 10, 1890). If as a matter of law the township survey satisfied the requirements of the 1890 grant as to identity of the sections within the township the question will arise as to whether section 36 was known to be mineral land in 1892 when the township survey was completed and accepted. In that event the Government will contend that in 1892 the land was known to be mineral and therefore did not pass to the State.

In addition, the State may claim that title to section 36 passed to it by reason of the Act of January 25, 1927, c. 57, 44 Stat. 1026, as amended by the Act of May 2, 1932, c. 151, 47 Stat. 140, 43 U.S.C., sec. 870, extending the school land grant to include mineral lands not "included within the limits of existing reservations of or by the United States ***." The Government's position is that since section 36 is a part of Petroleum Reserve No. 41 it did not fall within the purview of the 1927 Act.

The United States of America, by its Attorney General and its Solicitor General, brings this suit in equity against the defendants, the State of Wyoming and The Ohio Oil Company, and for its cause of action states:

I

The jurisdiction of this Court is invoked under Article III, Section 2, Clause 2, of the Constitution of the United States.

II

The Ohio Oil Company is a corporation organized, existing and doing business under and by virtue of the laws of the State of Ohio with its prin... cipal office and place of business at Findlay, Ohio.