Edward Hines Yellow Pine Trustees v. Davis

• Decision Date: 10 January 1927
• Docket Number: 25811
• Citation: 146 Miss. 174,111 So. 296
• Court: Mississippi Supreme Court
• Parties: EDWARD HINES YELLOW PINE TRUSTEES v. DAVIS, DIRECTOR GENERAL OF RAILROADS AND AGENT OF THE PRESIDENT. [*]

111 So. 296

146 Miss. 174

EDWARD HINES YELLOW PINE TRUSTEES v. DAVIS, DIRECTOR GENERAL OF RAILROADS AND AGENT OF THE PRESIDENT. ^[*]

No. 25811

Supreme Court of Mississippi

January 10, 1927

Division A

Suggestion of Error Overruled Feb. 21, 1927.

APPEAL from circuit court of Forrest county, HON. R. S. HALL, Judge.

Suit by Edward Hines Yellow Pine Trustees against James C. Davis Director General of Railroads, and agent of the President. Judgment dismissing the suit, and plaintiff appeals. Reversed and remanded.

Judgment reversed and cause remanded.

T. W. Davis, Wm. S. Bennett and H. Cassedy Holden, for appellants.

The question involved is the liability of the appellee under section 206 (a) of the transportation act of 1920 as the officer against whom by statute suit must be brought in causes of action arising out of the possession, use, or operation by the president of the railroad system or transportation of any carrier of such character as prior to federal control could have been brought against such carrier. For prior statutes involved, see statement in New Jersey Ship Building & Dredging Co. v. Davis, 11 F.2d 994 at 995.

Under section 206 (a) not only the appellant but all persons similarly injured have no redress against any person except the agent of the president appointed pursuant to that section. Under the ruling of the court below, neither the appellant, nor any other person similarly situated has, therefore, any recourse or redress under similar circumstances against any person. For this position of the court below there is no support in the decisions. New Jersey, etc., Co. v. Davis, 11 F.2d 994 at 997; Davis v. Newton Coal Co., 267 U.S. 292; Baggott v. So. R. R. Co., 300 F. 337; Amicon Fruit Co. v. Davis, 299 F. 120.

In each of these cases a duty was owing to the plaintiff by the railroad prior to federal control, just as here a duty was owing from the G. & S. I. Railroad Company to the lumber company. That duty was not discharged by the railroad. The director general came in and did not discharge it, and thus became liable for resulting damages. See Wyoming Sugar Co. v. Davis, Director General, 7 F.2d 622 at 624; Wilson v. Davis, 8 F.2d 484 at 486; McDaniel v. Hines, 239 S.W. 471; Nealy v. Payne (Miss.), 89 So. 669. As the section is so new, this comprises practically all of the important decisions under it and, as stated, in none of these decisions has jurisdiction been refused.

To hold the Director General liable for injuries caused by his failure to act is in line with the entire spirit and intent of all the acts passed in connection with private persons during the war period. See Missouri Pac. R. R. Co. v. Ault, 256 U.S. 554 at 557; Northern Pac. Ry Co. v. North Dakota, 250 U.S. 135 at 148.

T. J. Wills and Angus A. McLaughlin, for appellee.

I. Is the United States liable to the appellant on account of taking the railroad property of the Gulf & Ship Island Railroad Company and thus depriving the railroad company of ability to perform its contracts with appellant?

In determining the effect of the taking of the railroads by the government upon persons having relations through contracts or otherwise with carriers whose properties were taken, it will be well to consider briefly the character of the taking and the relation of the government after the taking, to the owners of the property taken. See North Carolina R. R. Co. v. Lee, 260 U.S. 16, 67 L.Ed. 104; Dupont-De Nemours & Co. v. Davis, 264 U.S. 456, 68 L.Ed. 788.

A logging railroad in process of construction, not then engaged in transportation, and judging from the contracts relied upon, not intended for general transportation, could by no process of reasoning or construction be deemed to be within the description of the property described in the president's proclamation. This thought is emphasized by the supreme court of Pennsylvania in Austin v. Hines, Director General, 123 A. 502-04.

The facts of this case make it peculiarly apt in reference to the case at bar. It was an incompleted project that could not aid in transportation in the emergency, and to burden the government with carrying same out would tend to defeat the purpose of taking over the railroads, which was to devote same exclusively, if necessary, to the prosecution of the war.

The taking of the railroad was then a taking of property of the railroad company, engaged in general transportation, for public use, as an aid in the prosecution of war by the government under its power of eminent domain, with the obligation of the government to make just compensation to the owner of the property, but without any obligation of the government to compensate third parties whose property was not taken but who suffered consequential injury because of the taking by the government of the property of the carrier.

That the government did not thus become liable to third persons does not need extended discussion in view of the very complete discussion in the recent opinion of the supreme court of the United States in Omnia Commercial Co. v. U.S. 261 U.S. 502, 67 L.Ed. 773 (1923) In this case the taking of the entire product of the steel company's plant and forbidding the steel company to carry out the contract with appellant, absolutely prevented the appellant from receiving any of the benefits of the contract. While the amended declaration alleges that the taking of the railroad by the government rendered the Gulf & Ship Island Railroad Company unable to carry out the contract, there are no allegations supporting such conclusion. There is nothing in the amended declaration to indicate the Gulf & Ship Island Railroad company was financially able to continue the carrying out of its contract, and we are inclined to the view that such statement is but a mere legal conclusion which is not admitted by demurrer. See St. L. R. R. Co. v. U.S. 267 U.S. 346 at 349.

II. Did the United States, by reason of taking the property of the Gulf & Ship Island Railroad Company, adopt and become liable to appellant upon the contracts in controversy? There is no allegation in the amended declaration supporting such contention. From the carefully circumscribed description of the property taken, as set forth in the president's proclamation, it would seem perfectly clear that obligations of this character were not within the contemplation of the president as obligations to be assumed because of the taking of the railroads. Martin v. Richmond, F. & P. R. Co., 3 F.2d 26.

We say, therefore, that the mere taking of the railroad of the Gulf & Ship Island Company, even though we assume such taking had the effect of rendering the railroad company unable to carry out its contracts with appellants, did not place upon the government or the director general the obligation to perform such contracts and the circuit court was right in adopting such view and in following the Omnia Commercial Company decision.

III. Did the United States, by reason of partial performance of said contracts by the Director General, become liable for failure to completely perform such contracts?

The amended declaration nowhere suggests that the starting of the work, by the Director General, caused appellant any damage. The mere fact that the Director General did in part what the Gulf & Ship Island Railroad Company had obligated itself to do, will not, without more, create a liability on the part of the Director General to complete such contracts.

IV. Is the cause of action alleged in the amended declaration of the character described in section 206-a, Transportation Act, 1920, for which a suit is authorized to be brought against agent to be appointed by the president? A suit against the agent to the appointed by the president under section 206-a of the transportation act of 1920 is a suit against the United States. See Mo. Pac. R. R. Co. v. Ault, 256 U.S. 554; Dahn v. Davis, 258 U.S. 421; E. I. Dupont de Nemours & Co. v. Davis, 264 U.S. 456; Davis, Agent, v. Donovan, 265 U.S. 257.

Since the suit is one against the government, the familiar rule applies that the government cannot be sued without its consent and when the government consents to be sued, the consent must be strictly followed and complied with. Beers v. Arkansas, 61 U.S. 20; Carr v. U.S. 98 U.S. 433; Hans v. State of Louisiana, 134 U.S. 1; Stanley v. Schwalby, 162 U.S. 255.

The cause of action here sued on is not one arising out of the operation of the railroad by the president and is not one for which suit, prior to federal control could have been brought against the carrier. It is not, therefore, a suit of the character that Congress consented might be brought against an agent appointed by the president.

Argued orally by Wm. S. Bennett, for appellants, and T. J. Wills and Angus A. McLaughlin, for appellee.

OPINION

COOK, J.

This is an appeal from the judgment of the circuit court of Forrest county sustaining a demurrer of the appellee to the amended declaration of the appellant. The material averments of the declaration are substantially as follows:

The organization of the appellant, the successor of the Edward Hines Yellow Pine Lumber Company, Wyatt Lumber Company, the Champion Lumber Company, and the Wolf River Lumber Company is set forth, and the appellee is averred to be the present duly appointed Director General of Railroads and Agent of the President of the United States, who was appointed, prior to the commencement of this action, pursuant to an act of Congress, approved February 28, 1920, known as the Transportation Act of 1920 (Comp. St., section 100711 1/4 et seq.), and is still serving as such Director General of Railroads and Agent of the President; that, by virtue of said act of February 28, 1920, and his appointment, he is the official designated by law...