257 F. 138 | S.D. Ga. | 1919
These cases were heard on the same day, and, as the point for present decision is identical, they will be considered together. That point arises on a traverse of the entry of service, wherein service on the defendant corporation is stated as having been made by serving a designated individual as an agent of the defendant corporation. I find as a conclusion of fact, based on an agreement in the first case and upon a consideration of 1he evidence submitted in the other, that the cause of action in each case originated prior to the Act for Federal Control of Railroads (Act March 21, 1918, c. 25, 40 Stat. 451 [Comp. St. 1918, §§ 3115%a to 3115%p]), and each suit was brought after the passage of that act and the taking over of the railroads thereunder by presidential proclamation, and service was had on an agent in the employment of the government of the United States at the time of the service. The legal question presented is whether service on the agent of the government, engaged in the operation of the railroad of the carrier, under the facts stated above, constitutes service on the defendants, because of their former employment hy them.
Under the presidential proclamation of December 26, 1917, the possession, control, and operation of the railroads shall be exercised by and through William G. McAdoo as Director General. When the Director General assumed control, the acts of the former officers and employes, who retained their positions and conducted the details of operation of the railroads, were the acts of the Director General. Rutherford v. Union Pac. R. Co. (D. C.) 254 Fed. 880. Their employment by the Director General made them exclusively the servants or agents of the employer. There could be no divided allegiance as agents of the railroad corporation and of the Director General, so as to accomplish the purpose of Congress. The acts of Congress, the proclamation of the President, and the general orders of the Director General neither expressly nor by implication contemplated a dual agency of employes engaged in the operation of the railroads. All moneys derived from the operation of carriers during federal control was declared to be the property of the United States. Act March 21,
It has been held by the Supreme Court of Georgia that an agent employed in the operation of a railroad under a receiver, who has possession of the road, in consequence of a seizure by the Governor for nonpayment of interest on bonds which the state had indorsed, is not the agent of the corporation. Cherry v. North & South Railroad Co., 59 Ga. 446; Steamship Co. v. Wilder, 107 Ga. 226, 33 S. E. 179.
The agents sought to be served in these cases had ceased to act for the corporation in the operation of the railroad. The corporation was out of control of the railroad, was out of possession, and had nothing for a superintendent or station agent to do. The former agents had ceased to be agents of the corporation pending federal control, and had become agents of the government. Hence service on the government’s agents was not service on the corporation’s agents, and the corporation has not been served under the Georgia statute, which permits service on a corporation by serving its agent.
An appropriate order will be taken in each case