264 F. 1005 | W.D. Va. | 1920
This action was originally instituted in this court on the 26th day of February, 1919, against “Walker D. Hines, Director General of Railroads, and the Norfolk & Western Railway Company,” for a cause of action arising after- the Norfolk & Western Railway had been taken under federal control.
(1) Dismissal as to Norfolk & Western Railway Company.
The conclusion to dismiss as to the Norfolk & Western Railway Company seems to be sustained by Rutherford v. Union Pac. R. Co. (D. C.) 254 Fed. 880; Dahn v. McAdoo (D. C.) 256 Fed. 549, 550;
(2)Federal Jurisdiction.
No matter how clear the implication of section 10 that the citizenship of the carrier might control the question of federal jurisdiction of actions by or against a carrier, there is in the statute no possibility of any implication of intent in regard to actions by or against the Director General; for such actions were not contemplated. Every word in section 10 relates to one definite and complete scheme or plan of procedure. However anomalous and unheard of this plan was, it
A different conclusion is reached in Smith v. Babcock Co. (D. C.) 260 Fed. 679; but I am unable to accede to the soundness of that opinion. See, also, Johnson v. M’Adoo (D. C.) 257 Fed. 757.
If the reasoning of Chief Justice Marshall in Osborn v. Bank, supra, is sound (and no subordinate federal court can permissibly hold otherwise), it seems to follow that the case at bar is one arising under a law of the United States. The officer, the artificial being known as the Director General, like a federal corporation, was created by* federal law and derives his every power from federal law. There is also some analogy between an action against the Director General and an action against a receiver of a national bank appointed (section 5234, R. S. [Comp. St. § 9821]) by the Comptroller of the Currency. In Auten v. United States National Bank, 174 U. S. 125, 141, 19 Sup. Ct. 628, 43 L. Ed. 920, an action against such receiver was held to be one arising under a law of the United States. The Director General is as clearly an officer of the United States as is a receiver of a national bank.
Admitting that there is also analogy between a federal court receiver and the Director General, and admitting that an action bjr or against a federal receiver is not one arising under a law of the United States merely because the receiver was appointed by a federal court (Gableman v. Peoria Ry. Co., 179 U. S. 335, 340, 21 Sup
The only way that occurs to me of avoiding the force of the strong and nearly perfect analogy between this action against the Director General and an action for tort against a federal corporation (Pacific Railroad Removal Cases, supra) is to deny the soundness of Osborn v. Bank, supra. As has been said, this is not permissible. It seems, therefore, necessary to hold that the case at bar is one arising under a law of the United States. See Nueces Valley Co. v. McAdoo (D. C.) 257 Fed. 143, 146. In three recent cases in the Circuit Court of Appeals for this circuit, federal jurisdiction seems to have been assumed without discussion. Hines v. Henaghan (C. C. A.) 265 Fed. 831 (No. 1725); Hines v. Atlantic Refining Co. (C. C. A.) 265 Fed. 839 (No. 1731); Waldron v. Director General (C. C. A.) 266 Fed. - (No. 1777).
I have read the Act for the Termination of Federal Control, of February 28, 1920. Section 206 is most in point; but it seems to me to throw no light on the point we have in hand. At most it is but a recognition of the jurisdictional difficulties created by the Control Act, and an effort to prevent such difficulties in the future.