Jensen v. Lehigh Valley R.

| S.D.N.Y. | Feb 1, 1919

LEARNED HAND, District Judge

(after stating the facts as

above). The change in the language of the third paragraph from that of the first is significant. In the first the order directs that all actions “shall” be thereafter brought against the Director General. In the third that the. existing pleadings “may” be changed. “May” does indeed at times mean “shall,” but hhrdly when the two words are in such immediate contrast. At least there is no presumption that way. Moreover, I think that, if the third section be construed as permissive only, it serves a sufficient purpose; it would give plaintiffs the right to substitute the Director General, which they might well wish to do, considering the prohibition of the statute against any process upon judgments against the carriers while the roads were in federal control. It is quite true that the third recital is to the effect that the" liability should be of the Director General, and that was certainly the meaning of the first paragraph. I think that that paragraph was enough to satisfy the recital, without carrying the meaning into1 the apparently permissive language of the third.

If, on the other hand, I were to construe the third paragraph as retroactive, at least a formal difficulty would arise, in that it would annul a liability once attached, and substitute another. Now, it is true that that substituted liability, though without express sanctions, has by implication the pledge of the public faith, when reduced to judgment against the Director General. Such a judgment would be probably as good a remedy as a judgment against the United States in the Court of Claims, which was held sufficient in cases of condemnation in Crozier v. Krupp, 224 U.S. 290" court="SCOTUS" date_filed="1912-04-08" href="https://app.midpage.ai/document/crozier-v-fried-krupp-aktiengesellschaft-97609?utm_source=webapp" opinion_id="97609">224 U. S. 290, 32 Sup. Ct. 488, 56 L. Ed. 771" court="SCOTUS" date_filed="1912-04-08" href="https://app.midpage.ai/document/crozier-v-fried-krupp-aktiengesellschaft-97609?utm_source=webapp" opinion_id="97609">56 L. Ed. 771. It is therefore not necessary to say that an explicitly retroactive order would be invalid, if the Director General had made one. I concede, moreover, that there is no presumption against retroactive interpretation, if the change be only in procedure. Yet even if this be possibly only a change in remedy, it' is an important change, and not under our traditional notions in such matters to be lightly assumed. I think there ought to be a more definite indication of such a purpose than ■the words contain.

It is, of course, true that normally we should expect the liabilities to be those of the Director General, who is in control; hut Congress has prescribed otherwise, and the general situation is not one in which the judgments need inevitably fall upon the carriers. A final settlement must be made, in which such claims may well be taken to’ the account of the Director General, whoever be the judgment debtor. Congress, which had to prescribe a modus vivendi, subject to changes on which the Director General might from time to time determine, appears to have found it easier to leave matters as they were till such time as he chose to act. It does not follow that he is to be assumed to mean to upset that status retroactively, when the just result can be later reached in the settlement. Indeed, it does not even follow that Congress meant to give him the power to do so if he should mean to. Since justice to the carriers may be accomplished without departing from our accustomed habits in relation to provisions of the kind, it seems to me better to follow them.

The only decisions upon the order which I know are two. Keefe v. Chicago, etc., Ry. Co., decided December 2, 1918, in the state district court of Minnesota, goes further than I need go here. Rutherford v. Union Pac. R. Co., 254 F. 880" court="D. Neb." date_filed="1919-01-11" href="https://app.midpage.ai/document/rutherford-v-union-pac-r-8810020?utm_source=webapp" opinion_id="8810020">254 Fed. 880, decided in January, 1919, by Judge Munger in the United States District Court for the District 'of Nebraska, is contrary. It must be conceded that the judicial opinion upon the validity and meaning of the order has not yet become definitely settled. It appears to me that Congress pretty clearly meant, by the term “carriers,” the corporations themselves, and that the right to sue them must remain certainly till it is changed by some valid provision.

The motion is denied.