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the rule of construction: "It is elementary that what is implied in a statute is as much a part of it as what is expressed. Wilson County v. Third Nat. Bank, 103 U. S. 770778, 26 L. ed. 488-491; Little Rock v. United States, 43 C. C. A. 261, 103 Fed. 420. It is also elementary that, when a power is conferred by statute, everything necessary to necessary to carry out the power and make it effectual and complete will be implied. 26 Am. & Eng. Enc. Law, 2d ed. p. 614, and cases cited. This is the same principle that is well established in the law of agency. Mechem, Agency, 2d ed. 789."

In Schumacher v. Pennsylvania R. Co. 106 Misc. 564, 175 N. Y. Supp. 84, the plaintiff brought the action for the death of her husband, killed while working as a yardmaster near Buffalo in the month of May, 1918. The railway company alleged in its answer that its transportation system had been taken over by the Federal government, and that it was not legally responsible for the accident. The trial court overruled the objection, and a verdict resulted for the plaintiff. Upon motion for a new trial it was held that § 10 of the Act of March 21, 1918, authorizing actions and judgments against carriers for damages sustained by employees while the railroad is being operated by Federal authorities, was unconstitutional because it subjected to liability and seizure the property of the railway company for injuries to its former employee, while its property is under Federal control. It is also held that the act was also unconstitutional because taking private property for public use without just compensation, and because it deprived the railroad of the equal protection of the law in subjecting its property to liability and seizure for injuries to a former employee while its property was under Federal control. The court, in construing § 10 of the Act of March 21, 1918, stated as follows:

"Section 10 expressly authorizes 'judgments rendered as now pro

vided by law.' If this language means anything, it means a judg ment having all the essential features of ordinary judgments obtained in the usual way, and negatives the claim that such a judgment is merely a method of ascertaining the liability of the government. A judgment of a court of competent jurisdiction is something more than a mere declaration of liability. It necessarily carries with it the right of satisfaction, the right to resort to the usual and ordinary proceedings provided for its collection. It directs and decrees that the successful party 'recover' of the defeated party a sum stated and have execution therefor. Judgments not only establish a liability, but give the right to collect.

"The Federal government, in the control and operation of the railroad properties taken over, is in no sense the agent or representative of the railroad companies to whom the system belongs. By the twelfth section of the act the moneys and other property derived from the operation of the carriers during Federal control are 'declared to be the property of the United States.' If a profit is realized from such operation, the profit belongs to the United States. By § 8 the President is given the power to exercise the powers granted him with relation to Federal control 'through such agencies as he may determine, and may fix the reasonable compensation for the performance of services in connection therewith.' In other words, the Federal government, in the operation of the systems taken over, acts as the principal, and not as the agent of the owners of the transpor tation systems, becoming a lessee of the railroad on terms agreed upon between it and the companies. Where no agreements as to rentals are reached, and where no such formal leases are entered into, the government is to pay such a rental as may be thereafter determined reasonable and just by and in the methods prescribed. In short, the relation between the government

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

and the carrier is nothing more or less than that of lessor and lessee; the lessee operating the road for itself and on its own account. The employees engaged in operating the various systems are, for the time being at least, the government's servants and agents, subject to its directions, paid by the governgovernment, and subject to dismissal by it. This relation of the government and the carrier, between themselves and to their employees and to the general public, has been fully and repeatedly recognized by a series of orders issued by the Director General of Railroads under Federal control. We need but instance what is known as General Order No. 8, by which the Director General directs that all acts of Congress to promote the safety of employees and travelers must be complied with, and then proceeds in this language: 'Now that the railroads are in the possession and control of the government, it would be futile to impose fines for violations of said laws and orders upon the government; therefore it will become the duty of the Director General, in the enforcement of said laws and orders, to impose punishlaws and orders, to impose punishments for wilful and inexcusable ments for wilful and inexcusable violations thereof upon the person


persons responsible therefor, such punishment to be determined by the facts in each case.'

"The questions here presented are not whether the plaintiff has an adequate remedy for the death of her husband, but whether her judgment should be one against the Pennsylvania Railroad Company or against the Director General of Railroads. Her action was begun before Order No. 50 was promulgated. Still she might have asked for the substitution of the Director General as provided in the order. We are not prepared to say that, even at this date, after the trial and a verdict, she might not amend by substitution of the Director General. Certainly, if that official should consent to such an order, the plain

tiff ought not to raise serious objection."

With this case, again necessarily, the majority opinion herein must disagree.

In the case of Vaughn v. State, Ala. App. 81 So. 417, decided March 18, 1919, an appeal was taken from a verdict rendered by the jury, upon an indictment charging the defendant with concealing or receiving certain tobacco, the property of the railway company. Upon appeal it was contended in the bill of exceptions that there was a fatal variance between the averment and the proof, because the railway system at the time was under Federal control. The court held that the identity of the carrier was not destroyed, nor was it rendered wholly impotent in respect to its functions in the conduct of business; that it was sufficient to lay the ownership of the goods in question in the railway corporation in an indictment for the larceny thereof.

The court discusses General Order No. 50, and questions whether the making of the same is within the scope of the Director General's authority. The court said that, assuming that such order was within his authority, it was sustainable on no other theory than that the transportation companies themselves are under Federal control. Also the court stated that the apparent theory of General Order No. 50 is that, while the carriers are operating under Federal control, they are mere agents of the government, and if liabilities for their torts and the torts of the employees exist it is against the government, and not the carrier. The court further said:

"There is no proof in this case that the Railroad Administration, in the exercise of Federal control, has excluded the transportation companies from the exercise of their functions in the operation of their respective systems, and we cannot assume that it has done so contrary to the manifest purpose and spirit of the authority conferred by the

act of Congress and the proclamations of the President.

"The foregoing considerations lead us to hold that the Louisville & Nashville Railroad Company is under Federal control and is exercising its functions and operating system as an agency of the government and as such was bailee of the property alleged to have been stolen, and the ownership thereof was properly laid. This disposes of all questions presented by the record, and, finding no error therein, the judgment will be affirmed."


The court further states: such companies are in no way connected with the operation of their respective transportation systems, we submit that it would not be within the power of Congress to subject them to liability and suits thereon for the torts, miscarriages, and defaults of the employees of the Federal government. Such an act would be an arbitrary exercise of legislative power, contrary to the established principles of private rights and distributive justice, and tantamount to a denial of due process of law."

This case is cited and relied upon by the majority opinion.

In Commercial Club v. Chicago, M. & St. P. R. Co. S. D., P.U.R. 1919C, 52, 170 N. W. 149, decided December 31, 1918, the question involved was the right of the Board of Railroad Commissioners to compel the railway company to construct and maintain a connecting track. Upon appeal the court directed the commissioners to withhold action during such time as the government retained control of the railroads, unless the consent of the government be secured. The court said: "As a war emergency act, the United States government has assumed control and management of most of the railroads of the country, including those involved in this case, as well as the material and labor necessary for the construction and extension thereof. So long as this condition exists, the order of the Board of Railroad Commissioners

cannot be enforced without the consent of the government, and, so long as this condition exists, any attempt by this court to enforce such order would be futile."

We now come to a consideration of the main proposition, upon which the majority opinion rests, that a cause of action had vested in the plaintiff, prior to the issuance of this order involved herein. Pray, what cause of action did the plaintiff possess against the railway corporation in the month of Januuary, 1918? The accident occurred through alleged negligence of operatives employed by the Federal government, and on account of alleged negligence occurring during Federal control. At that time the railway corporation had then no control or domination over the management or the operation of its transportation line. It then had no control over its employees. The mere fact that Congress or the President, prior thereto, had permitted an action to be brought against such railway corporation, does not mean that Congress legislated that the corporation should be liable for acts over which it had no control. If so, there is no reason why the cause of action should not now proceeed to trial against the defendant railway company; why judgment may not be rendered and execution enforced out of the private property of such railway company not used for transportation purposes.

It is apparent that such reasoning is not sound. The unsoundness thereof is practically admitted by the majority opinion when it further asserts that possibly the de fendant railway company may not be liable for such acts, but that the right to sue such defendant company thereby should not be denied. Ordinarily, if a cause of action is vested the same is termed a property right, and the plaintiff is entitled to pursue it and to recover and enforce a judgment against the party against whom such cause of action is vested. Clearly, in the majority opinion, the so-termed vesting

(—— N. D. —, 172 N. W. 841.)

of the cause of action has not been considered.

If the majority opinion means by the term "cause of action" a claim which may be enforced, subjectmatter for which an action may be brought, the subject-matter of the controversy, the ground or reason for the action, or the ground upon which an action may be maintained, as sometimes defined in the abstract, or as the facts which give rise to an action, or the existence of those facts which give a party the right to judicial interference in his behalf, as often defined in reference to pleadings (1 C. J. 936), Congress or the Director General have not attempted to deny plaintiff his cause of action. The question whether Congress could so deny the plaintiff his cause of action, being in effect against the sovereign power, and its consent therefore being necessary, is not before us, because Congress and the Director General have specifically permitted such cause of action to be maintained.

If the majority opinion means by the term "cause of action" the right to maintain the same against the railway company, whether it be liable or not, whether there is any liability under the terms of the Federal Liability Act or not, simply because the plaintiff has the right to sue whom he pleases, then the answer is that such alleged cause of action never did vest in the plaintiff. For under any fundamental consideration there first had to be a right in the plaintiff and a breach of duty or a wrong in relation thereto by the defendant. 1 C. J. 938. No breach of duty is predicated in the majority opinion on the part of the defendant railway company. On the contrary, the opinion entertains doubt whether there is any liability. It asserts that Congress has legislated a cause of action; that the state court will not deny the plaintiff the right to maintain it against such company. Thus do we proceed around the circle. The only cause of action possessed in any event by the plaintiff in the month of Jan

uary, 1918, upon the face of the complaint, was a cause of action against a common carrier engaged in interstate commerce under the Federal Employers' Liability Act. Under the terms of this act which could be maintained only pursuant to congressional authority, a cause of action exists only when the defendant is a common carrier by railroad, then engaged in interstate commerce, and while the employee is so engaged. Note in 47 L.R.A. (N.S.) 74; Taylor v. Southern R. Co. (C. C.) 178 Fed. 380. Under its authority to regulate interstate commerce, Congress legislated concerning the liability of such common carriers, and upon the passage of such act it superseded all state legislation or authority of the state concerning such subject-matter. Note in 47 L.R.A. (N.S.) 47; Second Employers' Liability Cases (Mondou v. New York, N. H. & H. R. Co.) 223 U. S. 1, 56 L. ed. 327, 38 L.R.A. (N.S.) 44, 32 Sup. Ct. Rep. 169, 1 N. C. C. A. 875.

In the Second Employers' Liability Cases, supra, it was contended that this act was not in accord with the policy of the state respecting the liability of employers to employees for injuries received by the latter while in the service of the former; in other words that the act interfered with the local laws of the state as well as the local jurisdiction of the courts. In that case the court said: court said: "The suggestion that the act of Congress is not in harmony with the policy of the state, and therefore that the courts of the state are free to decline jurisdiction, is quite inadmissible, because it presupposes what in legal contemplation does not exist. When Congress, in the exertion of the power confided to it by the Constitution, adopted that act, it spoke for all the people and all the states, and thereby established a policy for all. That policy is as much the policy of Connecticut as if the act had emanated from its own legislature, and should be respected accordingly in the courts of the state."


Then again, under the very terms of the Employers' Liability Act, the state court is given a concurrent jurisdiction with that of the Federal courts upon the cause of action created thereunder. Fed. Stat. Anno. Supp. 1916, p. 761; Second Employers' Liability Cases, supra; note in 47 L.R.A. (N.S.) 72. Although matters related to procedure and practice are generally governed by state laws, yet the state courts may not so proceed as to work a change in the terms of the Federal statutes or in the enactments of Congress with relation thereto. Stat. Anno. Supp. 1916, p. 768. Accordingly the plaintiff's cause of action exists only pursuant to congressional authority. The Federal government upon assuming Federal control did not become an agent or representative of the railway company. Schumacher v. Pennsylvania R. Co. 106 Misc. 564, 175 N. Y. Supp. 84. The majority opinion of this court concedes that the Director General does not act as the agent of the railway company. Therefore, the conclusion inevitably follows that the acts of the government in the Federal control exercised, in fact, are government acts, are the acts of Federal instrumentalities, are government acts as common carriers, in place of the corporations formerly acting and operating as common carriers. Consequently, on the face of the complaint, no cause of action exists as against the defendant railway company as such. The common carrier engaged in interstate commerce in the month of January, 1918, was a Federal instrumentality, the government control then operative, a control that reached not only to the employment and pay of the employees, but reached also into every action of the transportation system in its opera



It therefore ought to appear that the duties and obligations of common carriers were assumed by the Federal government in law as they were and have been assumed in fact. No other logical conclusion can be

drawn from the acts of Congress and the acts of the President and the Director General thereunder unless it must be assumed that the former carrier corporations are to be held responsible for acts and obligations not of their making and over which they had no control.

It therefore follows that in the month of January, 1918, the plaintiff possessed no cause of action, on the face of his complaint, against the defendant railway company, excepting such right as Congress and the President had theretofore prescribed for bringing an action to determine the liability of the Federal control. In other words, the only reason why the defendant railway company could be sued nominally as a defendant, prior to General Order No. 50 was through the express consent of Congress, providing for such a method of bringing a cause of action that arose during the period and on account of Federal control to trial and determination. If the alleged cause of action had existed in ordinary times against such company, prior to Federal control, there would have been no question of the right of the court to substitute the receiver of such corporation as a party defendant in place of such company, or, if another corporation had succeeded to all of its rights and liabilities, to substitute such corporation as the party defendant.

The power of Congress to provide for a change of the party defendant ought to appear clear. Its authority to confer this power upon the President likewise ought to appear clear. That it did grant this power to the President can be drawn from the express and implied provisions of the Act of March 21, 1918. In the act it granted to him all necessary powers to make effective a Federal control and operation of railroads. Section 9 (Comp. Stat. 1918, § 3115i) of the act, in part, states: "The President, in addition to the powers conferred by this act, shall have and is hereby given such other and further powers necessary or appropriate to give effect to the

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