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

powers herein and heretofore conferred."

It gave him power to appoint a Director General. Section 8 (§ 3115 h). This was not an improper delegation of power. Rhodes v. Tatum, Tex. Civ. App. 206 S. W. 114; Cocker v. New York, O. & W. R. Co. (D. C.) 253 Fed. 676; Wainwright v. Pennsylvania R. Co. (D. C.) 253 Fed. 459; 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; Franke v. Murray, L.R.A.1918E, 1015, 160 C. C. A. 623, 248 Fed. 865, Ann. Cas. 1918D, 98.

To these express powers should be applied, under elemental rules of construction, the implied powers. Dooley v. Pennsylvania R. Co. (D. C.) 250 Fed. 142; Wilson v. Third Nat. Bank, 103 U. S. 770, 26 L. ed. 488. The orders, therefore, of the Director General, when made, had the force and effect of law, the same as if made by Congress.

Viewing, therefore, the Federal control and operation of the transportation systems as a Federal instrumentality, it is apparent that Congress had the power to provide how and in what manner actions might be maintained concerning alleged breaches of contract or of legal duties arising or occurring during and on account of the Federal administration and operation of such transportation systems. No attempt has been made, either by Congress or the Director General to change the cause of action. The Federal authority has simply provided against what representative of the Federal government the cause of action shall proceed. The majority opinion, in part, concedes that General Orders 18 and 26 might be sustained because procedural. Clearly, if these orders are valid, so likewise is General Order No. 50. If the action were one against a state official as such, concerning his official duties, there would be no difficulty in appreciating the right of the court to substitute his successor as

the party defendant, upon his death, resignation, or lapse of office.

Furthermore, it is to be recognized that, regardless of whether Congress or the President possessed the authority to take over the Federal control of the common carriers, and operate and manage the same, the fact is that they did, and that they have operated and managed the same without any participation, control, or supervision by the corporations in the performance of the common carrier duties theretofore performed by them. In consequence there is no cause of action alleged under the Federal Employers' Liability Act as against the defendant railway company.

But the majority opinion further contends that the trial court substituted the Director General as a party defendant without the consent of the plaintiff, and that the plaintiff had the right to have the court determine, as a judicial question, the liability or nonliability of the defendant railway company, and that the liability or nonliability of the defendant company is a judicial question, and not an administrative question to be determined by the Director General. True, it may be that it is for the court to determine who is liable upon the alleged cause of action, in accordance with the law applicable thereto. On the other hand, it is not the function of the courts to judicially legislate a defendant upon an alleged cause of action. Congress possessed the authority to legislate concerning the acts of negligence or breaches of duty or obligation that might occur during the period of control. It did legislate. The majority opinion draws its conclusions from this legislation, and the powers exercised under it. The judicial question arises upon the interpretation of the nature and extent of this legislation and the powers so exercised.

Under fundamental rules of procedure, the trial court possesses the power to make the substitution as it did in this case, and to dismiss the railway company as a party defend

ant. The trial court might have interpleaded the Director General upon principles of intervention. No objection, as heretofore stated, was made by the plaintiff to the action taken by the trial court. No claim was made by the plaintiff that the Director General ought to have been interpleaded and the railway company remain a party defendant. No attempt was made on the part of the plaintiff, by amendment of the complaint, by affidavit or showing of any kind, that there was a legal responsibility claimed against the railway company in the face of the undisputed motion and affidavit papers submitted by the defendant railway company. On the face of the record therefore, in connection with the matters of which this court takes judicial notice, there existed before the court no cause of action alleged against the railway company. Under elemental rules, "no person is liable to be sued for any injuries for which he is not the cause" and "no person can be sued who has not infringed upon the right in respect of which the action is brought." Dicey, Parties to Actions, rules 7, 96; 30 Cyc. 102.

No objection having been made by the plaintiff, the trial court therefore did not err in substituting the Director General as the party defendant.

Again, the determination of this court turns upon the opinion of Justice Robinson, who concurs only in the result of the opinion as written by Justice Birdzell, and who, in the fashion of an "ipse dixit," determines that the Director General was not made a dictator.


Bronson, J.:

Since the foregoing dissenting opinion was prepared, the majority opinion of this court, written by Justice Birdzell, has been changed somewhat. In this amended majority opinion the case of Schumacher v. Pennsylvania R. Co. 106 Misc. 564, 175 N. Y. Supp. 84, is quoted as

direct authority for the conclusion. reached in such majority opinion.

In the prior part of such majority opinion it is stated and held that Congress has said that suits may be brought against the carriers pursuant to § 10 of the Rail Control Act (as stated in the syllabus). Then the opinion quotes said New York case, holding such section to be unconstitutional, and the statement of that court that plaintiff might have asked for the substitution of the Director General, the action having been instituted prior to the promulgation of General Order No. 50.

It is difficult indeed to understand the reasoning by which the majority opinion

assumes that these holdings of that court are au thority for the conclusion adopted by the majority in this case. The New York case directly states and holds that the plaintiff has no cause of action against the railway company upon acts or liabilities occurring during and on account of Federal control, and so necessarily it would hold in this case. It suggests to the plaintiff that he might have asked for substitution of the Director General, and if that officer should consent the plaintiff ought not to raise serious question. The court in that case suggests the very thing that was done in this case, with the consent of the railway company and the Director General, by the order of the court and without the objection of the plaintiff.

The majority opinion, therefore, is simply forced into the position of holding to a technical course of procedure, namely, that a party cannot be substituted in place of a party defendant, by order of court, unless the plaintiff so requests or consents thereto on the face of the record, even though such plaintiff has no cause of action on the face of the complaint against the defendant named, even though the Director General is the proper defendant, and even though, further, the plaintiff should have requested and asked for a substitution of such Director

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

General. Through two courts already this action has dragged. Now, perchance, the action will proceed to demurrer or some other form of special motion, and again proceed to this court for another construction, while the party plaintiff still awaits his ultimate remedy. The majority opinion practically concedes, by its suggestion to the appellant that a substitution ought to be had, the validity of General Order No. 50. If it were a statutory rule of this state, such opinion would have no difficulty in sustaining the substitution. Clearly it has this force and effect in this action brought under the Federal Employers' Liability Act. In our opinion, clearly, the order should be affirmed.

Grace, J., concurs.


As is shown in subdivision II. d, 3, of the annotation beginning at page 1680, post, on the general subject of Federal control of public utilities, there is a diversity of opinion among the courts as to the validity and effect of General Order No. 50, promulgated by the Director General of Railroads,

which the court in the reported ease (MCGREGOR v. GREAT NORTHERN R. Co. ante, 1635) holds invalid and unwarranted by the Rail Control Act of March 21, 1918, so far as it purports to be applicable to causes of action already vested. Various subsidiary and argumentative points made in the opinion in the reported case are also discussed in the annotation referred to.




Minnesota Supreme Court — June 13, 1919.

(- Minn. 172 N. W. 918.)

Railroad-action against Director General validity.

The Act of Congress of March 21, 1918, providing for the operation of transportation systems while under Federal control, provides that actions at law may be brought against carriers, and judgment rendered, "as now provided by law." Order No. 50, issued by the Director General of Railroads October 28, 1918, required that actions for death or injury to person growing out of the possession, control, or operation of any railroad by the Director General shall be brought against the Director General, and not otherwise. In so far as such order prohibits the maintenance of such an action against the railroad company, it is in conflict with Act of Congress March 21, 1918, § 10, and is void.

[See note on this question beginning on page 1680.]

Headnote by HALLAM, J.

APPEAL by plaintiff from an order of the District Court for Washington County (Searles, J.) granting a motion for dismissal of the action as to the defendant company, and for the substitution of the Director General as defendant, in an action brought to recover damages for personal injuries, alleged to have been caused by defendant's negligence. Reversed. The facts are stated in the opinion of the court.

Messrs. John J. Keefe and T. D. Sheehan, for appellant:

Congress has not the power to confer authority to issue General Order No. 50, and that part of the Act of March 21, 1918, is in conflict with article I. § 1, of the Federal Constitution.

State ex rel. Hahn v. Young, 29 Minn. 474, 9 N. W. 737; Re Wilson, 32 Minn. 145, 19 N. W. 723; State ex rel. Railroad & Warehouse Commission v. Chicago, M. & St. P. R. Co. 38 Minn. 281, 37 N. W. 782; Anderson v. Manchester Fire Assur. Co. 59 Minn. 182, 28 L.R.A. 609, 50 Am. St. Rep. 400, 60 N. W. 1095, 63 N. W. 241; State v. Great Northern R. Co. 100 Minn. 445, 10 L.R.A. (N.S.) 250, 111 N. W. 289; Williams v. Evans, 139 Minn. 32, L.R.A.1918F, 542, 166 N. W. 504; United States v. United Verde Copper Co. 196 U. S. 207, 49 L. ed. 449, 25 Sup. Ct. Rep. 222; United States v. George, 228 U. S. 14, 57 L. ed. 712, 33 Sup. Ct. Rep. 412; The Aurora v. United States, 7 Cranch, 383, 3 L. ed. 378; Marshall Field & Co. v. Clark, 143 U. S. 680, 36 L. ed. 306, 12 Sup. Ct. Rep. 495.

General Order No. 50, as to this action, is retroactive.

Gaston v. Merriam, 33 Minn. 271, 22 N. W. 614; Western U. Teleg. Co. v. Brown, 234 U. S. 543, 58 L. ed. 1457, 34 Sup. Ct. Rep. 955, 5 N. C. C. A. 1024; Dunn v. Galloway, 62 Minn. 380, 64 N. W. 924, 65 N. W. 348; Cuba R. Co. v. Crosby, 222 U. S. 473, 56 L. ed. 274, 38 L.R.A. (N.S.) 40, 32 Sup. Ct. Rep. 132; Dartmouth College v. Woodward, 4 Wheat. 696, 4 L. ed. 673.

Messrs. Charles Donnelly and D. F. Lyons, for respondent:

The first paragraph of § 10 of the Federal Control Act is constitutional.

Legal Tender Cases, 12 Wall. 457, 20 L. ed. 287; Wainwright v. Pennsylvania R. Co. 253 Fed. 459; Cook v. Burnquist, 242 Fed. 321; State ex rel. Railroad & Warehouse Commission v. Chicago, M. & St. P. R. Co. 38 Minn. 281, 37 N. W. 782; Buttfield v. Stranahan, 192 U. S. 470, 48 L. ed. 525, 24 Sup. Ct. Rep. 349; McCray v. United States, 195 U. S. 27, 49 L. ed. 78, 24 Sup. Ct. Rep. 769, 1 Ann. Cas. 561.

General Order No. 50 is not invalid because of any retroactive feature it may contain.

Cooley, Const. Lim. pp. 442, 443; 4 Enc. U. S. Sup. Ct. Rep. 444.

Hallam, J., delivered the opinion of the court:

On August 29, 1916, Congress enacted that "the President, in time of war, is empowered. ... to take possession and assume control of any system or systems of transpor tation, or any part thereof, and to utilize the same, to the exclusion as far as may be necessary of all other traffic thereon, for the transfer or transportation of troops, war material and equipment, or for such other purposes connected with the emergency as may be needful or desirable." Act August 29, 1916, chap. 418, § 1, 39 Stat. at L. 645, Comp. Stat. § 1974a, 9 Fed. Stat. Anno. 2d ed. p. 1095.

By proclamation dated December 26, 1917, the President took over the transportation systems of the country and ordered that "all transportation systems covered by said proclamation and order shall be operated as a national system of transportation, the common and national needs being, in all instances, held paramount to any actual or supposed corporate advantage."


Relative to actions and legal proceedings, the proclamation said: "Except with the prior written assent of said Director, no attachment by mesne process or on execution shall be levied on or against any 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."

On March 21, 1918, Congress passed an act "to provide for the operation of transportation systems while under Federal control.

"Act March 21, 1918, chap. 25, 40 Stat. at L. 456. The act was declared to be "emergency legislation enacted to meet conditions growing out of the war, Comp. Stat. § 3115j. It recited that the President had, "in time of war, taken over the possession, use,

(― Minn. 172 N. W. 918.)

control, and operation of the railroads." It authorized the President to make all reasonable provisions, not inconsistent with the acts of Congress, "that he may deem necessary or proper for such Federal control," and, in addition to the powers expressly granted, gave to the President "such other and further powers necessary or appropriate to give effect to the powers heretofore conferred."

Section 10 provided: "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. Actions at law or suits in equity may be brought by or against such carrier and judgments rendered as now provided by law; 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.

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But no process, mesne or final, shall be levied against any property under such Federal control."

On October 28, 1918, the Director General issued General Order No. 50, which recited that "since the Director General assumed control of said systems of transportation, suits are being brought and judgments and decrees rendered against carrier corporations on matters based on causes of action arising during Federal control, for which the said carrier corporations are not responsible, and it is right and proper that the actions, suits, and proceedings hereinafter referred to, based on causes of action arising during or out of Federal control, should be brought directly against the said Director General of Railroads and not against said corporations," and ordered "that actions at law, suits in equity, and proceedings in admiralty hereafter brought in any court

based on contract, binding upon the Director General of Railroads, claim for death or injury to person, or for loss and damage to property, arising since December 31, 1917, and growing out of the possession, use, control, or operation of any railroad or system of transportation by the Director General of Railroads, which action, suit, or proceeding, but for Federal control, might have been brought against the carrier company, shall be brought against William G. McAdoo, Director General of Railroads, and not otherwise: Provided, however, that this order shall not apply to actions, suits, or proceedings for the recovery of fines, penalties, and forfeitures."

As to pending suits, the order provided that "the pleadings in all such actions at law, suits in equity, or proceedings in admiralty, now pending against any carrier company for a cause of action arising since December 31, 1917, based upon a cause of action arising from or out of the operation of any railroad or other carrier, may on application be amended by substituting the Director General of Railroads for the carrier company as party defendant and dismissing the company therefrom."

This action was brought in September, 1918. tember, 1918. After the issuance of Order No. 50, defendant moved that the Director General of Railroads be substituted as defendant and that the action be dismissed as to the railroad company. The trial court granted the motion. Plaintiff appeals.

The assumption of Federal control was in effect a mobilization under one head of the persons and corporations engaged in the business of transportation, as a means of meeting the emergencies imposed by a state of war. Vaughn v. State, Ala. App., 81 So. 417. Viewed in this light, the assumption of control was without doubt within the power granted by the Constitution to the Federal government, and was an appropriate instrumentality for

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