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be made thereto upon the ground that the carrier is an instrumentality or agency of the Federal government."

Reasoning in harmony with the above has recently been employed by the court of appeals of Alabama, in a criminal case, Vaughn v. State -Ala. App. -, 81 So. 417, in which 81 So. 417, in which a judgment of conviction was dependent upon the sufficiency of an indictment, which, in turn, according to the view of the court, depended upon the invalidity of General Order No. 50. The conviction was affirmed.

There are some minor questions which are so elementary that it would be unnecessary to refer to them were it not for the fact that they are made the basis of considerable discussion in the dissenting opinion of Mr. Justice Bronson. They relate to procedure. It is strongly intimated that the record does not show that the plaintiff objected to the entry of the order. Suffice it to say that the order is one which necessarily "affects the judgment," and it is one which apthe "upon pears necessity of record transmitted from the district court." It is therefore deemed ex



cepted to, and it becomes the duty of this court, upon appeal, to review it. Comp. Laws 1913, § 7842.

It is suggested that the plaintiff did not claim that the Director General should be interpleaded. The order, which it is contended is law, does not provide for interpleading the Director General. It provides for substitution and dismissal.

It is also suggested that the plaintiff, by amendment of the complaint, or by affidavit, might have attempted to show that there was a legal responsibility claimed against the railway company. The complaint needed no amendment in this respect. If it did not state a cause of action against the defendant railway company, it was, of course, subject to demurrer, and the suggestion that a complaint may be aid

ed in its allegations by an affidavit. which is not part of Pleading-aidit is so novel as to ing complaint amount to an in- by affidavit. vention in pleading. It is not at all surprising, therefore, that counsel would not attempt it.

Since the foregoing opinion was written, a pamphlet has been received containing the statements of Mr. Walker D. Hines, Director General of Railroads, before the Interstate Commerce Committee of the United States Senate, concerning the extension of tenure of government control of railrcads. At page 21, Mr. Hines refers specifically to General Order No. 50, as follows: "At this point I want to refer to General Order No. 50. That refers to suits brought against the Director General. There, again, we had a situation which was developing confusion. Of course, General Order No. 50 is designed to deal with certain classes of causes of action that arise against the government while the government is in control of the railroads, causes of action for which the government is liable and for which the corporation is not liable. Claims were beginning to be made in various parts of the country that the corporation itself was not liable for a cause of action arising against the government while it was in control, and plaintiffs were being embarrassed because they were not certain where

they were going to come out if they they were going to come out if they reasonable rule, and really in the sued the corporation. It seemed a interest of plaintiffs, and it did not have any relation to anything else or cause any disturbing fac tors,-to provide that where these causes of action arose against the government, in effect that suits should be brought against the Director General. It still left the plaintiffs free to sue just as they could sue before, and to make serv ice of process on the local railroad agents just as they could make it before. It did not, as we see it, impair the rights of plaintiffs at all, but it cleared up the situation by

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(N. D. —, 172 N. W. 841.)

making it perfectly clear that they would have a procedure that would be free from attack. Of course, that does not apply to suits brought against the corporation for causes of action arising prior to Federal control. These would be brought as heretofore; but as to suits arising under Federal control, where it was perfectly clear that the corporation was in no way liable, it was believed that it was in the interest of the plaintiffs themselves to give them a clear-cut procedure; and General Order No. 50, so far as I understand it, does not embarrass their opportunity to sue in any locality. Of course, that is affected by General Order No. 18, which I have already explained."

The validity of the order, in so far as it is compulsory upon the plaintiff, does not depend upon the propositions advanced by the Director General. Even assuming the correctness of the two propositions: (1) That the government is liable; and (2) that the corporation is not liable, the order cannot be supported, for it does not appear that the Director General has been vested with any authority to control the action of plaintiff, who seeks to establish the liability of carriers, nor with the right to intercede on behalf of the carrier corporations. The right to intervene, however, to protect the interests of the government, is not here involved, and is not considered. A plaintiff who is desirous of testing merely the liability of a carrier corporation cannot be made to test unwillingly the liability of the government.

The nonliability of the carriers is, as elsewhere indicated in the opinion, a judicial, not an administrative, question, and can only be decided by a court when the defense is properly raised. As illustrative of the character of the difficulties involved in the final determination of this question, we call attention to the fact that prior to August 1, 1918, the Director General exercised possession and control exclusively through the officers, di

rectors, and agents of the railway corporations, thus recognizing their agency to act for the corporations under his directions, while, since August 1st, all administration of transportation has been effected through officers and agents directly appointed by the Director General. These are not recognized as agents of the corporations. The legal effect of these different methods under the acts of Congress is clearly for courts to determine as the questions properly arise, unless Congress has prescribed a different mode. It appears to us that it has not done so.

For the foregoing reasons, we hold that the order in question is void as involving an unwarranted deprivation of the plaintiff's alleged cause of action, and as being contrary to the governing acts of Congress passed to meet the war emergencies. It follows that the order appealed from must be reversed. It is so ordered.

Christianson, Ch. J., concurs.
Robinson, J., concurring:

I fully concur in the syllabus and in the result of the decision as written by Mr. Justice Birdzell. The Director General was not made a dictator. He had no legislative power or authority to establish a special code of civil procedure. His orders concerning the court procedure in civil actions is manifestly dictatorial and wholly void. Indeed, in this land of liberty and constitutional law, it is amazing that any person of ordinary intelligence should ever think of making or regarding such orders.

Bronson, J., dissenting:

In order to give full consideration to the determination made by the majority opinion of this court. it is deemed necessary and proper to restate the facts of the record herein.

This action was instituted in the name of Vallie Hanson, as administratrix, by service of process on March 2, 1918, upon the agent of the Great Northern Railway Com

pany and on March 4, 1918, upon Nels Nelson and Edward Hall, additional defendants named in the action. The complaint alleges that the deceased, Chris Hanson, while employed as a carpenter by the Great Northern Railway Company, and while engaged in interstate commerce, was run over by a locomotive of the railway company, on June 22, 1918, occasioning injuries which resulted in his death; that then the defendants Nels Nelson and Edward Hall were each, respectively, a locomotive engineer and a fireman in the employ of such railway company; that at such time the railway company was a common carrier engaged in interstate commerce, and that this action was brought in the state court under the Federal Employers' Liability Act.

On October 9, 1918, notice of motion was served on the attorneys for the railway, returnable October 24, 1918, to dismiss the action as against said Nelson and said Hall, and to substitute McGregor, as administrator, in place of said Vallie Hanson. Pursuant to such motion the court did dismiss the action as against said Nelson and said Hall without prejudice, and substituted said McGregor in place of said Hanson, as administrator. On November 27, 1918, an amended complaint was verified, the same being filed in the trial court on December 20, 1918, setting forth a cause of action upon the grounds herein before stated against the railway company alone. On November 29, 1918, the attorneys for the railway company served a notice of motion, returnable December 10, 1918, to substitute the Director General as the party defendant in such action and to dismiss the said railway company as a party defendant. This motion was supported by an affidavit setting forth that the railway company was under government control, and had been since January 1, 1918, that its property and its business were not now subject to the jurisdiction, management, or possession of

such railway company, but that the same was under the exclusive management and control of the United States government; that the cause of action stated in the complaint arose during the period of Federal control and operation, and grew out of the possession, use, control, and operation of such railway by the Director General. The affidavit further quotes the provisions of General Order No. 50, issued by the Director General. To this motion so made, no counter affidavit, nor objection of any kind, was made by the plaintiff. On December 10, 1918, the trial court ordered the Director General substituted as the party defendant instead of the railway company, and dismissed the railway company as a defendant therein.

On December 19, 1918, the plaintiff appealed to this court from the order so made. For the purpose of consideration of the principles of law applicable, the following acts of Congress, proclamations of the President, and orders of the Director General are pertinent:

The Act of Congress of August 29, 1916, granting authority to the President in time of war to assume Federal control of railroad transportation systems.

The Act of Congress of March 21, 1918, further providing for Federal control of railway transportation systems.

The proclamation of the President dated December 26, 1917, assuming Federal control of railway transportation systems.

The proclamation of the Presi dent of April 11, 1918 (40 Stat. at L. 125, Comp. Stat. 1918, p. 275), with reference to such Federal control.

General Orders No. 18 and 18a, dated, respectively, April 9, 1918, and April 18, 1918, issued by the Director General, providing that suits against carriers, while under Federal control, must be brought in the county or district where the plaintiff resides at the time of the accrual of the cause of

(— N. D. —, 172 N. W. 841.)

action, or in the county or district where the cause of action arose.

General Order No. 26, dated May 23, 1918, providing for a stay of the trial of the actions against carriers under Federal control under certain circumstances.

General Order No. 50, of the Director General, dated October 28, 1918, providing for substitution of the Director General instead of the carrier, and dismissing the company as the defendant in causes of action arising out of the operation of the railway under Federal control.

This court will take and has taken judicial notice of these acts, proclamations, and orders. The appeal, therefore, is before this court upon such record.

The majority opinion, denying the right of the Director General to be substituted as the party defendant, is based broadly upon the propositions that plaintiff's cause of action had vested prior to the issuance of General Order No. 50, and hence could not be affected by such order, and, further, that, under the Rail Control Act (Act March 21, 1918), the Director General was not authorized to appear and defend suits against carrier corporations under Federal control upon causes of action which arose through, or on account of, Federal control or operation.

The majority opinion also holds, as an incidental proposition, that such carrier corporations, while their transportation systems are under Federal control, are still capable of suing and being sued concerning matters involved or occurring during the Federal operation of such transportation system, and that the question of their liability is a judicial question.

The nature and extent of the Federal authority and control exercised in war time for war purposes over the railway transportation systems is the sole question involved.

In the recent rate case (State ex rel. Langer v. Northern P. R. Co. N. D. —, 172 N. W. 324), decid

ed by this court, the writer, in a dissenting opinion, discussed at some length the war powers of Congress, and nature and extent of the war powers conferred by it upon the President, under the Acts of August 29, 1916, and March 21, 1918. Reference, therefore, is herewith made to that case without restating the same in this opinion.

It is deemed proper, however, to state broadly the general considerations or principles of law that obtain, in my opinion, in interpreting or construing the war powers of the President or of the Director General, in the Federal operation of railways.

In the Federal management and operation of the railway transportations by the President, pursuant to the acts of Congress, one of two legal conceptions must obtain: Either it was the intent and purpose of Congress and our government, in the exercise of these war powers, to make the transportation systems involved a Federal instrumentality, in fact, operated by and under governmental authority; or it was the intent and purpose to use the railroads in the war emergency as private instrumentalities, for the purposes needed, leaving the railroad corporations owning the same responsible either in contract or in tort upon causes of action arising on such transportation systems during the period of, and while under the operation of, Federal control.

The reasoning of the majority opinion in this case, as well as in the rate case (State ex rel. Langer v. Northern P. R. Co.), adopts, in effect, the second conception. By a narrow construction the majority opinion first finds, in effect, that Congress has not authorized the Director General to relieve the railway corporation of a liability for a cause of action arising during and on account of Federal control. Then it finds that Congress, under the Act of August 29, 1916, legislated, and the President, pursuant thereto, by his proclamation, declared, that a cause of action would exist

and vest in a plaintiff against the railway company for acts of alleged negligence that might arise during the period of, and on account of, Federal control and operation. In effect the majority of the court treat the railway corporations as still in control and responsible for the operation of the railway transportation systems, even though managed and absolutely controlled in fact by the Federal government. They assert, and hold, that such corporations may sue and be sued as formerly, and that judgments obtained give rise to the same remedies for enforcement, except that their transportation systems are not subject to levy or seizure. Then, by way of possible concession, the majority opinion further finds that it is barely possible that the railway company is not liable for alleged causes of action that may arise as the result of the government control, but that this is a matter of defense for the railway company. And so the suitor is placed between the rocks of Scylla and the shoals of Charybdis, with the court denying the right to maintain an action against the Director General, and the railway companies asserting that they are not liable for acts over which they had no control, and which they did not commit. Thus, by narrow construction are the railway transportation systems treated as private agencies.

Readily, perhaps, through such grounds of narrow construction, and from such viewpoint, may the conclusion be reached that the Director General possessed no authority to issue General Order No. 50. and that a cause of action did vest in the plaintiff in the month of January, 1918, against the railway corporation, irrevocable and with no right of substitution, for alleged acts of negligence occasioned by and under the Federal control and operIation of the transportation systems formerly operated and controlled by the corporation.

If, on the other hand, the Federal control and operation of the trans

portation systems taken be regarded as Federal instrumentalities operated for and by the government, if, further, the acts of Congress and the powers conferred thereby upon the President be construed in accordance with the elemental rules that what is implied in a statute is as much a part of it as what is expressed, and that when a power is conferred by statutes, everything necessary to carry out the power and make it effectual and complete will be implied (Dooley v. Pennsylvania R. Co. (D. C.) 250 Fed. 142; Wilson County v. Third Nat. Bank, 103 U. S. 770, 26 L. ed. 488), and if, further, the surrounding circumstances and exigencies then exist ing, with an approaching and pending great crisis in this nation's existence, in a time of war, be considered in understanding the intent and purpose of Congress and the objects sought to be accomplished, little difficulty is experienced in determining the nature and extent of the Federal power, and the Federal control over the transportation systems.

The assumption of Federal control over railway transportation systems, theretofore operated by private corporations as individual machinery then applicable to acunits, with no general Federal law tual operation, was necessarily a large undertaking.

If, upon the assumption of Federal control, radical changes were then made in the form of the methods and dealings of such transportation systems, then existing in their relations with the public, the Federal administration might have been seriously embarrassed, as well as the co-operation of our people hindered and impaired, in the prosecution of the war, then threatening and almost pending.

A mere review of the acts of Congress, of the President, and of the Director General serves to show that the Federal government tried to assume Federal control with as little disturbance as possible to the

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