Hatcher & Snyder v. Atchison, T. & S.F. Ry. Co.

• Decision Date: 25 June 1919
• Docket Number: 6849.
• Parties: HATCHER & SNYDER v. ATCHISON, T. & S.F. RY. CO.
• Court: U.S. District Court — District of Colorado

258 F. 952

HATCHER & SNYDER v. ATCHISON, T. & S.F. RY. CO.

No. 6849.

United States District Court, D. Colorado.

June 25, 1919

Melville & Melville, of Denver, Colo., for plaintiff.

Henry T. Rogers and Erl H. Ellis, both of Denver, Colo., for defendant.

LEWIS District Judge.

This is an action brought to recover a large amount as damages on account of the alleged negligence of the railroad company in an interestate shipment of about ten thousand sheep.

The plaintiffs resist the motion of the defendant to substitute the Director General of Railroads in its stead, in accordance with General Orders Nos. 50 and 50a, made by the Director General. The plaintiffs have signified their consent to the Director General of Railroads coming in as a defendant, but oppose the dismissal of the case against the railroad company. He has not asked to come in as a codefendant.

The complaint sets out a verbatim copy of the contract for shipment. It appears to have been executed by the railroad company and the shipper; and the answer admits the execution of the contract and the receipt of the sheep. It, however denies all allegations of negligence on its part and that of its employes, as charged in the complaint. When the motion was called up the question arose between counsel and the court as to whether there could be any liability on the part of the railroad company for acts complained of in operation of the road during Federal control, it appearing from the complaint that the shipment was made during that time to-wit, June 10, 1918. The court expressed a doubt as to such liability, and plaintiffs' counsel have filed a brief. At that time the construction of the applicable Acts of Congress (Act Aug. 29, 1916, c. 418, 39 Stat. 619 and Act March 21, 1918, c. 25, 40 Stat. 451 (Comp. St. 1918, Secs. 3115 3/4a-3115 3/4p)) by the Supreme Court in Northern Pacific v. North Dakota, 250 U.S. 135, 39 Sup.Ct. 502, 63 L.Ed. . . ., was not at hand. Court and counsel were in agreement that if the Congressional Acts only gave the right and power of a superintending unification and control to the President over railway companies and their properties, and if the President and the Director General went no further, and left the operation of the roads to the companies that owned them, there could be no doubt of liability in such a case as this. But if the Acts contemplated more, and gave to the President and through him to the Director General, either expressly or by necessary implication, the right to take exclusive possession of the roads and operate them for the time being as a Governmental agency, or if such exclusive possession and operation had been taken even without Congressional authority, liability would be seriously doubted.

But since the opinion in the North Dakota case there is no further doubt as to the extent of the power given the President by the Congressional Acts. In construing the Acts and the Proclamation of the President of December 26, 1917 (Comp. St. 1918, Sec. 1974a, note), the court in that case said:

'No elaboration could make clearer than do the act of Congress of 1916, the proclamation of the President exerting the powers given, and the act of 1918 dealing with the situation created by the exercise of such authority, that no divided but a complete possession and control were given the United States for all purposes as to the railroads in question. But if it be conceded that despite the absolute clarity of the provisions concerning the control given the United States, and the all-embracing scope of that control, there is room for some doubt, the consideration of the general context completely dispels hesitancy. How can any other conclusion be reached if consideration be given the comprehensive provisions concerning the administration by the United States of the property which it was authorized to take, the financial obligations under which it came and all the other duties and exactions which the act imposed, contemplating one control, one administration, one power for the accomplishment of the one purpose, the complete possession by governmental authority to replace for the period provided the private ownership theretofore existing.'

And we know, as a matter of public information, that the construction there given as to what was intended by Congress should be done has in fact been done. The railroad companies have been entirely excluded from participation in the operation of their properties. They receive none of the income from them. It goes to the Government. They have no voice in the employment and discharge of men engaged in the upkeep and repair of their roads and rolling stock, and the operation of trains. All of their properties, of every kind,...