Castle v. Southern Ry. Co.

• Decision Date: 15 July 1919
• Docket Number: 10244.
• Citation: Castle v. Southern Ry. Co., 112 S. C. 407, 99 S. E. 846 (S.C. 1919)
• Parties: CASTLE v. SOUTHERN RY. CO.
• Court: South Carolina Supreme Court

99 S.E. 846

112 S.C. 407

CASTLE v. SOUTHERN RY. CO.

No. 10244.

Supreme Court of South Carolina

July 15, 1919

Appeal from Common Pleas Circuit Court of York County; Ernest Moore Judge.

Action by Oliver Castle against the Southern Railway Company. From an order refusing to set aside the service of the summons and complaint, defendant appeals. Reversed.

McDonald & McDonald, of Winnsboro, for appellant.

Thomas F. McDow, of York, for respondent.

GARY C.J.

This is an appeal from an order refusing to set aside the service of the summons and complaint.

The defendant gave notice of a motion to set aside the service of the summons and complaint, on the grounds that the said corporation is not liable to be sued in this action, and that the alleged agent upon whom the service was made is not an agent of the defendant, but was an agent of the United States government, at the time of the alleged service.

His honor, the circuit judge, ruled, that the plaintiff had the right to bring his action, under section 10 of the act entitled "An act to provide for the operation of transportation systems while under federal control, for the just compensation of their owners, and for other purposes," approved the 21st of March, 1918 (chapter 25, 40 Stat. 456 [U. S. Comp. St. 1918, § 3115 3/4j]); and that the President of the United States did not have the power to delegate any of the powers, with reference to actions at law and suits in equity, to the Director General of Railroads.

The complaint alleges that the plaintiff was injured, through the negligence of the defendant, while riding on its line as a passenger, from Washington, D. C., to Salisbury, N. C., near Lynchburg in the state of Virginia. The appeal assigns error in the said rulings.

On the 29th of August, 1916, Congress enacted a statute entitled "An act making appropriations for the support of the Army, for the fiscal year ending June thirtieth, nineteen hundred and seventeen." Chapter 418, 39 Stat. 619. Section 1 thereof (U. S. Comp. St. 1918, § 1974a) is as follows:

"The President, in time of war is empowered, through the Secretary of War, to take possession and assume control of any system or systems of transportation, or any part thereof and to utilize the same, to the exclusion as far as may be necessary of all other traffic thereon, for the transfer or transportation of troops, war material and equipment, or for such other purposes connected with the emergency as may be needful or desirable. * * *"

This statute not only empowered the President of the United States to take possession and control of the systems of transportation for the transfer of troops and war material but also for such other purposes, connected with the emergency, as might be necessary in the exercise of his discretion. War was afterwards declared and the powers thus conferred upon the President fully authorized him to issue his proclamation, on the 26th of December, 1917, which, among other provisions, contains the following:

"It is hereby directed that the possession, control, operation, and utilization of such transportation systems hereby me undertaken shall be exercised by and through William G. McAdoo, who is hereby appointed and designated Director General of Railroads. Said director may perform the duties imposed upon him, so long and to such extent as he shall determine, through the boards of directors, receivers, officers and employés of said systems of transportation. Until and except so far as said director shall from time to time by general or special orders otherwise provide; the boards, of directors, receivers, officers, and employés of the various transportation systems shall continue the operation thereof in the usual and ordinary course of the business of common carriers, in the names of their respective companies.

"Until and except so far as said director shall from time to time otherwise by general or special orders determine, such systems of transportation shall remain subject to all existing statutes and orders of the Interstate Commerce Commission and to all statutes and orders of regulating commissions of the various states in which said systems or any part thereof may be situated. But any orders, general or special, hereafter made by said director, shall have paramount authority and be obeyed as such. * * *

"Except with the prior written assent of said director, no attachment by mesne process or on execution shall be levied on or against any of the property used by any of said transportation systems in the conduct of their business as common carriers; but suits may be brought by and against said carriers and judgments rendered as hitherto until and except so far as said director may, by general or special orders, otherwise determine." U.S. Comp. St. 1918, § 1974a, note.

When Congress passed the act approved the 29th of August, 1916, it knew that, if war was declared, the President would have a tremendous responsibility upon his shoulders and very many delicate duties to perform, which in large measure necessarily would have to be intrusted to other officials. It also knew that it would be necessary to resort to extraordinary methods during the emergency. The President's Proclamation on the 26th of December, 1917, embodied his policy in regard to the control and operation of the systems of transportation, at that time, as shown by the words which we have italicized. But realizing that it might become necessary to change that policy, he expressly ordered that it should only remain of force, "until and except so far as said director shall from time to time otherwise by general or special orders determine."

This was the situation on the 21st of March, 1918, when Congress passed the act hereinbefore mentioned, of which sections 8 and 9 (U. S. Comp. St. 1918, §§ 3115 3/4h, 3115 3/4i) are as follows:

"Sec. 8. That the President may execute any of the powers herein and heretofore granted him with relation to federal control, through such agencies as he may determine. * * *

"Sec. 9. That the provisions of the act entitled 'An act making appropriations for the support of the Army for the fiscal year ending June thirtieth, nineteen hundred and seventeen, and for other purposes,' approved August twenty-ninth, nineteen hundred and sixteen, shall remain in force and effect except as expressly modified and restricted by this act; and the President, in addition to the powers conferred by this act, shall have and is hereby given such other and further powers necessary or appropriate to give effect to the powers herein and heretofore conferred."

Congress knew, as we have already stated, the manner in which the provisions of the act of 1916 had been construed by the President; therefore the only reasonable inference is that it was the intention, not only to approve the policy which he had temporarily adopted as indicated by his proclamation, but to use such agencies as he might determine and that he should have such additional powers as might be necessary or appropriate to give effect to the powers therein or theretofore conferred.

"Sec. 10. That carriers while under federal control shall be subject to all laws and liabilities, as common carriers, whether arising under state or federal laws or at common law, except in so far as may be inconsistent with the provisions of this act or any other act applicable to such federal control or with any order of the President. 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. Nor shall any such carrier be entitled to have transferred to a federal court any action heretofore or hereafter instituted by or against it, which action was not so transferable prior to the federal control of such carrier; and any action which has heretofore been so transferred because of such federal control or of any act of Congress or official order or proclamation

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