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(N. D., 172 N. W. 841.)

then customary formal relations of the common carriers to the public.

Thus, when the Federal control was first assumed, the actual form of the private management of such carriers, then existing, was continued; the same formal methods of securing redress for private suits were followed. Later, however, and progressively, as the acts, proclamations, and orders show, Federal control in form, as well as in fact, was assumed. It soon became necessary to restrict the right of levying execution against the properties of the transportation systems. It became necessary to limit the places where causes of action might be maintained. Also, it became proper to provide for delay or postponement of trials of action upon causes of action arising from the Federal operation of railways. It also became necessary to prescribe additional revenue through increased rates for the maintenance of such transportation systems, and the increased expenses and pay to railway employees. It became necessary, further, to direct substitution of the Director General in place of the transportation company as defendant. And finally, under General Order No. 50a, it has further been provided that no bond or security should be required of the Director General in prosecuting an appeal upon an action maintained against him. From the Act of Congress of August 29, 1916, down to the last order of the Director General, promulgated just a few months ago, there is discerned in the acts, proclamations, and orders of the Federal authority a progressive assumption, in form as well as in fact, of direct Federal control, and operation of the transportation systems. There is disclosed, without question, an intent and purpose to consider and to treat such transportation systems as a Federal instrumentality. There really is no question that the President and the Director General have so done. There is no question that they deemed the control a government control, a gov

ernmental operation in fact, and a government liability to exist therefor. In his report for 1918 the Director General stated: "It having been found that suits were being brought, and judgments and decrees rendered against carrier corporations on matter based on causes of action arising during Federal control, for which the carrier corporations

were not responsible, General Order No. 50 was issued on October 28, 1918, providing," etc.

Very recently the new Director General, Mr. Hines, before the Interstate Commerce Committee of the United States Senate, explained the reasons for the issuance of said order No. 50. In part he said: "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, 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 sued the corporation. It seemed a reasonable rule, and really in the interest of plaintiffs,—and it did not have any relation to anything else or cause any disturbing factors,

to provide that where these causes of action arose against the government, in effect that suits should be brought against the Director General."

It ought to plainly appear that the intent and purpose of our government has consistently displayed a course of action granting and intending to grant such authority as was needed and such as the occa

sion demanded for the operation and control of the transportation systems as a Federal instrumentality in fact. The majority opinion fundamentally fails to recognize that in war times, peculiar war powers necessarily exist to enable the sovereign power to carry on and devote its supreme powers to protect its sovereignty and its people in a successful prosecution of a great war, and that necessarily in the exercise of such powers civil rights in many and numberless instances become subordinate. If, in fact, the transportation systems were operated and controlled as a Federal instrumentality, pursuant to a power so conferred by Congress on the President, there ought to be no question that Congress had authority to authorize the President and the Director General to provide, by an order, when a cause of action could be instituted against it, founded upon a claim, in contract or in tort, accruing during the period and on account of Federal control. If the transportation systems are Federally operated as a Federal instrumentality, liabilities that arise therefrom are Federal liabilities, and causes of action, if any, that arise, are causes of action upon these Federal liabilities. The majority opinion, in attempting by narrow construction to reason out an intent of Congress providing for a suit against a carrier corporation, for acts of Federal control, is forced into a position which inferentially recognizes the right to hold responsible a railway corporation for a cause of action concerning which it had nothing to do, and for which it is not legally responsible, and it thereby presents the other situation which permits such carrier corporation to come in the court and show as a defense that it was not so legally responsible for the cause of action alleged on account of the roads being under eral control.

Accordingly, the cause of action which they are seeking so strongly to protect and preserve for the

plaintiff is merely a sham and a fiction, unless the railway company be deemed merely a nominal defendant for the government. Concerning the nature of these war powers exercised by the President, and the extent of the same, there are now several decisions interpreting these orders issued by the Director General, or involving the exercise of Federal powers over railroads. Thus, in Muir v. Louisville & N. R. Co. (D. C.) 247 Fed. 888, the cause of action arose on December 20, 1917, prior to the assumption of Federal control; the right of removal to the Federal courts upon the ground that the suit arose under the Constitution or laws of the United States was denied when suit was instituted on January 9, 1918, because a cause of action had theretofore vested. In Moore v. Atchison, T. & S. F. R. Co. 106 Misc. 58, 174 N. Y. Supp. 60, where a cause of action arose for damages to property in interstate commerce prior to the assumption of Federal control, the court denied the application of General Order No. 18 on the ground that the President had no power to make an order which would destroy or extinguish a right of action already existing against a railroad company. In Frieson v. Chicago, R. I. & P. R. Co. (D. C.) 254 Fed. 875, the acts of negli gence complained of arose on May 21, 1916, and the court held that the action could be maintained regard less of General Orders No. 18 and 18a, upon a cause of action not arising out of the railway company's duties as a common carrier. Judge Munger, in this case, in construing § 10 of the Act of March 21, 1918 (Comp. Stat. § 3115 j), which provides "that carriers while under Federal control shall be subject to all laws and liabilities as common carriers, whether arising under state or Federal laws or at common law, except in so far as may be inconsistent with the provisions of this act or any other act applicable to such Federal control, or with any order of the President," stated.

(— N. D. —, 172 N. W. 841.)

"It will be noted that by the that by the terms of § 10 the carriers are not made subject to all Federal and state laws, but are subject only to all laws and liabilities 'as common carriers.' In many relations to the public, carriers are governed, not by the rules applicable to common carriers, but by rules relating to them merely as corporations, as contracting parties, or as owing duties. apart from the carriage of goods or passengers. The use of the words 'common carriers' is thus distinguished from the word 'carriers,' which is used in the first sentence of this section and in many places in the same section and in other sections of the act. The probable effect of the discrimination in the use of these words was pointed out in the debate in the Senate. 56 Cong. Rec. 3576, 3580. If Congress had desired to leave to the President the entire control and management of the railways of the United States by executive orders, the former act of Congress did not require amendment; or, if Congress desired to continue the grant notwithstanding the careful restrictions in the second act, it could have employed the words 'carriers' or 'railway companies,' instead of the words 'common carriers,' and omitted the words 'except so far as may be inconsistent with the provisions of this act.'

"The plain meaning of the words used in this section is that the laws then existing, governing the relationship of the railways as common carriers, were to remain in effect except when they were inconsistent with the terms of that act of Congress or of any other act applicable to Federal control or with any order of the President. Orders of the President relating to the carriers' duties and liabilities, other than as common carriers, were not authorized by this portion of § 10. The authorization of the bringing of an action at law, as then provided by law, against the railway company upon a cause of action, not arising against it as a common carrier, was 4 A.L.R.-104.

therefore not subject to an order of the President limiting the districts in which such an action could be commenced, because of anything contained in this section of the act of Congress."

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In United States R. Administration v. Burch (D. C.) 254 Fed. 140, where an execution was levied upon railway property not used or essential to the performance of the duties of the railway company or of the Federal government as a common carrier, it was held that the Federal government was not in possession of such property, and that therefore the exemption from execution, under the Act of Congress of March 21, 1918, did not apply. In Rhodes v. Tatum, Tex. Civ. App., 206 S. W. 114, a cause of action arose on January 23, 1917, when the plaintiff was injured while crossing the tracks, in the switchyards of the defendant railway companies. The action was commenced in August, 1918. The defendant railway companies filed pleas in abatement, alleging Federal control, and supporting their motions by General Orders Nos. 18 and 18a and 26. It was held that these orders were authorized by the congressional acts, and acts, and that they applied to the instant case, the plaintiff's right to sue not being infringed. In Rutherford v. Union P. R. Co. (D. C.) 254 Fed. 880, an action for damages was brought against the railway company, sustained by a passenger after December 31, 1917. The suit was instituted on October 26, 1918. The railroad company presented a motion. to substitute the Director General as the defendant pursuant to General Order No. 50. The plaintiff claimed that under the terms of § 10 of the Act of March 21, 1918, which provides "actions at law or suits in equity may be brought against such carriers and judgment rendered as now provided by law," he was entitled to maintain such action, and that Order No. 50 violated this provision. With this decision, the majority opinion necessarily

must and does disagree. Judge Munger, in part, stated:

"From and after the taking possession of the railroads by the President, the corporations or persons who had previously controlled them ceased their functions and obligations as carriers. While goods and passengers continued to be carried, the carriage was conducted by the Director General. The acts of the former officers and employees, who retained their positions and conducted the details of operation, were the acts of the Director General. The part of § 10 of the Act of March 21, 1918, on which the plaintiff relies, did not provide that actions at law might be brought by and against the railway corporations, but did provide that they might be brought against 'such carriers,' and this referred to the 'carriers while under Federal control,' mentioned in the first part of the section. It would have been an anomaly to have given the actual control of the railroads to the Director General, and to have provided that suits arising out of his acts should be brought against the corporations who had been devested of authority over those acts. Moreover, the language which immediately follows that portion of the statute relied on by plaintiff demonstrates that the 'carrier' who is subject to suit is the agent of the President who is operating the railroads. The language is: 'And in any action at law or suit in equity against the carrier no defense shall be made thereto upon the ground that the carrier is an instrumentality or agency of the Federal government.'

"The corporations or persons who had lost control and possession of the railroads would have no occasion to assert the defense that they were instrumentalities or agents of the government as to acts which occurred after their control had terminated.

"Under these acts of Congress and the proclamation of the President, the Director General is a carrier. He conducts the business of

receiving and transporting goods and passengers for hire. A receiver of a railway company is a carrier as to the goods and passengers transported (United States v. Nixon, 235 U. S. 231, 234, 59 L. ed. 207, 208, 35 Sup. Ct. Rep. 49; United States v. Ramsey, 42 L.R.A. (N.S.) 1031, 116 C. C. A. 568, 197 Fed. 144), and the office of the Director General is analogous to that of a receiver of the railway companies.

"By the acts of Congress, the President was given authority to exercise the control of the railroads by such agencies as he should determine. He may appoint one or many persons, or one or many partnerships or corporations to carry out his will and to perform the business of carriage of goods and passengers over the several railroads. The purpose of Congress in giving the right to bring suits against the carriers was to give the right of suit by or against any of such agencies as should be engaged in the actual control of the operations of the railroad after the President assumed control. The order of the Director General therefore does not conflict with the language of this statute, but is pursuant to and in execution of it, and was authorized by the power conferred on him."

In Cocker v. New York & W. R. Co. (D. C.) 253 Fed. 676, the cause of action arose on August 9, 1916. The action was commenced against the railway company in the Federal court in New York contrary to the provisions of General Orders No. 18 and No. 18a. The plaintiff's ward was injured at Scranton, Pennsylvania. Motion was made in June, 1918, to stay the trial under General Order No. 26.

The court assumed that the Director General had the power to make these general orders and that they had the force and effect of law, and granted the motion. In Wainwright v. Pennsylvania R. Co. (D. C.) 253 Fed. 459, the plaintiff brought an action under the Federal Employers' Liability Act for the death of her husband on December

(N. D., 172 N. W. 841.)

26, 1917, while engaged as an employee of the railway company, through its alleged negligence. The action was instituted May 6, 1918, in the Federal court of Missouri. The deceased resided and the cause of action arose in Pittsburgh. The defendant entered a plea of abatement, setting up General Orders Nos. 18a and 26. It was held that Congress had authority to authorize the General Orders in question to apply to the Federal courts; that the right to maintain an action in any particular court is subject to the legislative will; that it is only when one is deprived of all right to maintain an action for redress of his wrongs that the statute would be obnoxious to the Fifth Amendment of the Constitution. The court cites for illustration the Carmack Amendment, authorizing an action against the receiving carrier regardless of the fact that the loss or damage sued for was covered by the damage of a connecting common carrier. Also the Act Feb. 24, 1905, chap. 778, 33 Stat. at L. 811, Comp. Stat. § 6923, 8 Fed. Stat. Anno. 2d ed. p. 375, vesting exclusive jurisdiction of actions on bonds of contractors for the construction of public works in the courts of the district in which said contract was to be performed and executed. It was further held that the act of Congress was not void because vesting administrative officers with legislative discretion or power, citing Selective Draft Law Cases (Arver v. United States) 245 U. S. 366, 62 L. ed. 349, L.R.A.1918C, 361, 38 Sup. Ct. Rep. 159, Ann. Cas. 1918B, 856.

The court construes § 10 of the Act of March 21, 1918, with reference to the General Orders in question, and as to whether Congress granted power so to make, as follows:

"Counsel for plaintiff contend that it does not, relying upon that part of § 10 of the act, which reads: 'Actions at law or suits in equity may be brought by and against such

carriers and judgments rendered as now provided by law."'

"In the opinion of the court all this quotation means is that any person having a cause of action shall not, by reason of this act or any regulation made thereunder, be deprived of the right to maintain it in a proper court if, under the state, Federal, or common law, he is entitled to a legal remedy. It does not mean, as claimed, that, having a cause of action against the carrier, he has the right to institute it in any forum in which he could have brought it before the passage of this

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In Dooley v. Pennsylvania R. Co. (D. C.) 250 Fed. 142, decided May 10, 1918, garnishment process was served on certain railway companies on January 29, 1918. The disclosure showed that the garnishees had certain traffic balance in their hands belonging to the defendant railway company. The defendant company and the garnishees had been taken under Federal control prior to the garnishment. Motion to quash was made under provision of the proclamation of the President dated De

cember 26, 1917 (40 Stat. at L. 91, Comp. Stat. 1918, p. 275), providing as follows: "Except with the prior written assent of said Director, no attachment by mesne process or on execution shall be levied on or against any of the property used by any of said transportation systems in the conduct of their business as common carriers; but suits may be brought by and against said carriers and judgments rendered as hitherto until and except so far as said director may, by general or special orders, otherwise determine.

It was held that the President, under the Act of August 29, 1916, authorizing Federal control, was fully authorized and warranted to prohibit levies by attachment or execution upon properties used by transportation systems in the conduct of their business of common carriers while under Federal control. trol. The court said concerning

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