### No. 12704 IN

### THE SUPREME COURTOF THE STATEOF MONTANA

WARRENBAILLIE, PlaintiffandAppellant,

J. W. ROLLINS,an individual,and BURLINGTON NORTHERN, INC., a 

### corporation, Defendants and Respondents.
Appeal from: District Court of the Eighth Judicial District, HonorableR. J. Nelson,Judgepresiding. Counsel ofRecord: 

### ForAppellant: 

### McKittrick and Duffy,Great Falls,Montana Joseph

## W. Duffy argued,Great Falls,Montana ForRespondents: 

### Gough, Booth, Shanahanand Johnson, Helena,Montana Ronald F. Waterman argued,Helena,Montana

Submitted: November 

### 18, 1974 Decided: 

## 1974Mr. Chief Justice James T. Harrison delivered the Opinion of the Court. On August 10, 1970 plaintiff-appellant Warren Baillie filed suit against defendants-respondents Burlington-Northern, Inc., 

### a corporation operating 

### a railway inMontana, and J. W. Rollins, an individual employed by Burlington-Northern. The complaint was couched intwo separate counts. The firstcount
was addressed primarily against Burlington-Northern and in substancemade these allegations: That prior toAugust 10, 1970 Bailliewas employed by Burlington-Northern asa railroad patrolman stationed inLivingston, Montana; that he 

### was also commissioned asa special deputy sheriff of Park County; and that he performed services for Burlington-Northern for six years, but that on August 10, 1970 the railroad, through 

### its agents and without just cause, terminated his employment contract, discharged him, and refused torehire him. The second count
was addressed primarily against Rollins. After realleging the employment relationship between Baillie and Burlington-Northern, this count alleged that Rollins, while actingwithin the course and scope of his employment, maliciously caused BurlingtonNorthern toterminate Baillie's contract of employment. Damages for lostwages, futurewage losses, general damages, and punitive damages were sought from both defendants. On September 18, 1973defendants filed a motion todis

### misson the grounds, among others, that the districtcourt lacked jurisdiction over the subject

### matter because the 

### same had been preempted by federal law. The record before the district court consisted exclusively of plaintiff's complaint, defendants' motion, and supporting briefs. After considering these documents, the district court on December 19, 1973 sustained themotion to dismiss and ordered the action dismissed with prejudice. Baillie appeals from thejudgment entered pursuant tothis order.The respective positions of the parties tothis appeal
can be fairly summarized as follows: Defendants contend that this 

### is a labor dispute between an employer-railroad and an employee and therefore 

### is exclusively within the jurisdiction of the National Railroad Adjustment Board (NRAB) under the provisions of the Railway Labor Act, 45 U.S.C.A. SS 151etseq. Baillie, however, maintains that the second count of his complaint alleges a tortious interference by Rollins, a third-party not privy tothe contract, inthe contractual relations between Baillie and Burlington-Northern, and that tort actions areoutsidethe jurisdiction of the NRAB. The numerous annotated cases under 45 U.S.C.A. S 153, wherein the NRAB derives 

### its authority, have construed this section of the Railway Labor Act tomean that the NRAB has exclusive jurisdiction over minor disputes involving interpretation of collectivebargaining agreements or contractsbetween employees and railroads. See, for example, Southern Ry. Co. 

### v. Brotherhood of Locomotive Firemen, 337 F.2d 127 (1964) and Brotherhood of Railroad Train. v. Denver & R. G. W. R. Co., 290 F.2d 266 (1961), certiorari denied 366 U.S. 966, 6 L ed 2d 1256, 81 S.Ct. 1925, rehearing denied 368 U.S. 873, 7 L ed 2d 73, 82 S.Ct. 28. Such disputes include claims for wrongful removal from service. Ferro

v. Railway Express Agency, Inc., 296 F.2d 847 (1961). The disposition of the present case, then, hinges upon the answer to
one question: Does Baillie's complaint sound incontract or in tort? On 

### its face the firstcount of the complaint sounds in contract. There simply 

### isno way toread it except asan allegation of wrongful discharge, which by 

### its nature must be a contractual breach. Concerning the second count, 

### aill lie urges that the tortof interferencewith contract 

### has been alleged

### and insists that the district court erred in failing to distinguish between the second count and the first. We 

### could not disagreemore, for the second count so contradicts itself as to be rendered meaningless. For instance, it is said that Rollins, in doing whatever he did to Baillie, acted within the course and scope of his employment with Burlington-Northern. We must note here that it is fundamental that a corporation can act only through its employees and officers, and the allegation in effect is directed to Burlington-Northern, not to Rollins individually. To charge the agent of the corporation is to charge the corporation. Then all that remains is an allegation that a party to
a contract--Burlington-Northern--tortiously 

### interfered with its
own contract. Different issueswould be presented had other torts, such as conversion or libel, been alleged, or had Rollins truly been sued in his own right, but they are not before us here. From the foregoing it ismanifest that this controversy is of the type Congress intended to be resolved only by the NRAB. The state courts lack jurisdiction over it; consequently, the judgment of the district dourtmust be and is affi$med.

Chief Justice