The following opinion was filed June 25, 1919:

Eschweiler, J.

The power and authority of Mr. Mc-Adoo as director general of railroads cannot exceed that which can be lawfully vested in him by proclamation or order of the President, and he in turn receives his power and authority over the subject matter here concerned by and through the legislative declaration embodied in the federal control act of March 21, Í918 (40 Ü. S. Stats, at Large, 451, ch. 25). Whatever general language is used in this act conferring power ón the President must be construed to be given for the purpose of enabling him to carry out the provisions of the act and not to enable him, either by him*76self or by any appointee of his, to set aside any provisions of the legislative will or to take away any rights or privileges granted to or recognized as validly existing in third persons by such legislation.

When Congress, in sec. 10 of that act, used the following language, “Actions at law or suits in equity may be brought by and against such carriers 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,” it either granted or recognized as then lawfully existing the right to or of any person situated as was the plaintiff herein to bring just such a cause of action against a defendant such as the Chicago & Northwestern Railway Company. Such rights so granted or recognized cannot be taken away or destroyed except by Congress.

We find no language in this act itself which warrants the conclusion that what was so expressly given or recognized by the quoted language above as a substantial right was to be destroyed or taken away by implication.

This provision of sec. 10 of the federal act and provisions of General Order No. 50 issued by the director general'of railroads and upon which the court below based its order, cannot both stand. The legislative declaration is the paramount authority and must control.

By the Court. — Order reversed.

Siebecker, Kerwin, and Vinje, JJ., dissent.

A motion for a rehearing was denied, with $25 costs, on November 4, 1919.