84 So. 910 | Miss. | 1920
Lead Opinion
delivered the opinion of the court.
The appellee, Mrs. Love Jobe, sued and recovered judgment against the Mobile & Ohio Railroad Company for two hundred and fifty dollars penalty for failure to make and maintain a plantation crossing, as provided by section 4058, Code 1906' (Hemingway’s Code, section 6686). The railroad company appeals.
This suit was instituted against' the railroad company, not the Director General, after it had been taken over by the government, under act of Congress of March 21, 1918, and after General Order No. 50 was promulgated by the Director General, William G. McAdoo.
The railroad company filed a special plea to the declaration, setting up the acts of Congress authorizing the President to take possession and assume control of the railroad company; the proclamation of the President taking possession of the railroads including the appellant railroad company; the act of Congress of March 21, 1918, known as the Federal Control A;ot. The plea averred as a fact that the appellant railroad company’s property had been continuously, from the 20th day of December, 1917, under the complete control and direction of the said Director General; that at the time of the grievance complained of in the declaration the appellant railroad company had nothing whatever to do with the management and control of the appellant rail
To this special plea the appellee interposed a demurrer upon the general ground that the plea did not state a good defense to the action, because the fact that the Mobile & Ohio Railroad was being operated by the Director General is no defense to a suit at law against it; and that Geheral Order No. 50 issued by the Director General, which provided that suits should be brought against him, excepted suits for the recovery of fines, penalties, and forfeitures, and that this suit being, for the recovery of a state statutory penalty, is specially excepted from General Order No. 50, and is properly brought against the railroad company. The court sustained the demurrer, and, the appellant refusing to plead further, judgment was entered against the railroad company for the statutory penalty.
The Federal Control Act of M'arcli 21, 1918, provides that actions at law and suits in equity may be brought by or against such carriers and judgment 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.
General Order Ño. 50, of October 28, 1918, promulgated by the Director General, William) G. McAdoo, reads, in part, as follows:
“Whereas, 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 be brought directly
“It is therefore 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.”
The contention of the appellant is, in substance, that the present suit cannot be maintained against the railroad company, since it was in the complete possession and control of the Director General and had nothing to do with 'the act that incurred the penalty; and that General Order No. 50; precluded the appellee from suing the railroad company for the state statutory penalty, but that' such suit could be instituted if at all only against the Director General in control of the railroad property and its operation when the act complained of occurred; that a separate suit for actual damages for the failure to maintain the plantation crossing having’ also been filed against the Director General, if the Control Act gives the appellee the right to sue the railroad company in this case, then the act is unconstitutional, in that it denies the equal protection of the laws, and deprives appellant of its property without due process of law. After a. careful consideration of the questions presented we have reached the conclusion that the position taken by the appellant is untenable under the law.
It will be observed that the Federal Control Act of March 21, 1918, provides that actions at law may be brought against such carriers and judgments rendered as now provided by law. The meaning of the act seems to be that all suits which could be brought against a railroad company before the passage of the Control Act could be brought thereafter the same as if there had been no act of Congress authorizing the taking over of the railroads by the government. This being true, we see nothing in the act that prevents the filing of the suit against the railroad company in this case.
It will he noted that General Order No. -50 by the Director General attempts to enact a rule requiring that suits shall he brought against the Director General instead of the railroads; however, this order expressly provides that it shall not apply to actions for the recovery of fines, penalties and forfeitures. We do not think General Order No. 50 can save the appellant from defeat in the position taken. In the first place, General Order No. 50 seems to be in conflict with the Federal Control Act, in that Congress plainly provided that suits might continue to be filed against the railroad company the same as before the Control Act was passed, whereas the General Order No. 50 requires that certain suits shall not be filed against the railroad, but must be brought against him. There being a conflict between the act and the order, one must give way to the other, and we do not hesitate to hold that the act of Congress must prevail .over the official order of the Director General. Franke v. C. & N. W. R. R. Co. (Wis.), 173 N. W. 702; Benjamin Moore & Co. v. A., T. & S. F. R. R. Co. (Sup.), 174 N. Y. Supp. 63; McGregor v.
However, if it be conceded that General Order Nio. 50 of the Director General is valid and controlling, still it availeth nothing for the appellant, because the order itself expressly excepts all suits for the recovery of fines, penalties, and forfeitures. The recovery here is for a state statutory penalty, and is therefore within the exception named in the order.
It is interesting to note, further, that the General Order' No. 50 impliedly, if not expressly, provides that the suit here for a penalty could not be brought against the Director General, as he particularly excepted this character of suit in the order. Now, if the penalty could not be recovered against the Director General, as he provides that it cannot be in his order, and the appellee could not maintain this suit against the railroad for the penalty because the railroad had been taken over by the Director General, the appellee would ' be left without a remedy for the penalty for the injury inflicted. It was not contemplated or intended by Congress or the Director General that any such situation should arise.
We decline to hold that the Federal Control Act of Congress is unconstitutional. It does not deny the equal protection of the laws, nor take property without due process. The appellant Railroad Company appeared and contested the suit. The Federal Government through its representative, the Director General, is liable to appellant, and will doubtless reimburse the appellant against the amount of the recovery here, which was caused by the acts of the Director General in full control of the railroad property at the time of the injury complained of.
The judgment of the lower court holding that the suit was properly filed against the railroad company is correct, and is affirmed.
Affirmed.
Concurrence Opinion
(concurring specially).
I concur in the decision of this case for the reason that General Order No. 50] providing for suits to be brought against the Director General, expressly excepts from its provision suits for the recovery of fines, penalties, and forfeitures. - This is a suit for the recovery of a penalty, and under this order does not have to be brought against the Director General of Railroads. I express no opinion upon the question of whether or not General Order No. 50 is in conflict with the Federal Control Act and therefore void.
The Chibe Justice joins me in this concurring opinion.