Whalen Paper & Pulp Mills v. Davis
| Decision Date | 03 April 1923 |
| Docket Number | 3904. |
| Citation | 288 F. 438 |
| Parties | WHALEN PAPER & PULP MILLS, Limited, v. DAVIS, Director General of Railroads. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Submitted February 7, 1923.
Appeal from the Supreme Court of the District of Columbia.
E. C Brandenburg and L. M. Denit, both of Washington, D.C., for appellant.
John C Brooke and John F. Finerty, both of Washington, D.C., for appellee.
Before SMYTH, Chief Justice, ROBB, Associate Justice, and MARTIN Judge of the United States Court of Customs Appeals.
This is a special appeal from an order of the Supreme Court of the District of Columbia, quashing the service of summons in the case. The action was begun by the Whalen Pulp & Paper Mills, Limited, against James C. Davis, Director General of Railroads and Agent of the President. The plaintiff averred that it had shipped certain consignments of crude sulphur from Bryanmound, Tex., to Prince Rupert, Canada, over the Houston & Brazos Valley Railroad and other systems of transportation, then under federal control, and that an excessive rate of freight had been exacted thereon, for which overcharge plaintiff prayed judgment.
A writ of summons was issued to the marshal, who made a return of personal service upon the defendant. The defendant thereupon filed a motion to quash the service aforesaid, claiming that a contract had been made under the statute with the Houston & Brazos Valley Railroad, for the conduct by it of litigation arising out of its operation during federal control, and accordingly that no valid service of process could be made upon the defendant herein except only by service upon an agent or officer of the said railroad, authorized by law to be served with process in actions brought against it. The motion was sustained by the trial court, and the service was quashed. This appeal is brought to challenge that ruling.
The issue thus presented is governed by paragraphs (a) and (b) of section 206, Transportation Act 1920, 41 U.S.Stat. 461. The first of these paragraphs provides that certain classes of actions, like this one, arising out of the operation of railroads while under federal control, may, after the termination thereof, be brought against an agent to be designated by the President for that purpose, and that such actions may be brought in any court which, but for federal control, would have had jurisdiction of the action, had it arisen against the carrier. The defendant is the duly appointed and acting statutory agent thus provided for, and no objection is made by him upon that point.
The second paragraph relates to the method of serving process upon the defendant in such cases, and reads as follows:
'Sec. 206. (b) Process may be served upon any agent or officer of the carrier operating such railroad or system of transportation, if such agent or officer is authorized by law to be served with process in proceedings brought against such carrier and if a contract has been made with such carrier by or through the President for the conduct of litigation arising out of operation during federal control. If no such contract has been made process may be served upon such agents or officers as may be designated by or through the President. The agent designated by the President under subdivision
(a) shall cause to be filed, upon the termination of federal control, in the office of the clerk of each District Court of the United States, a statement naming all carriers with whom he has contracted for the conduct of litigation arising out of operation during federal control, and a like statement designating the agents or officers upon whom process may be served in actions, suits and proceedings arising in respect to railroads or systems of transportation with the owner of which no such contract has been made; and such statements shall be supplemented from time to time, if additional contracts are made or other agents or officers appointed.'
It may be said in brief that paragraph (a) provides for the bringing of actions like this, after the termination of federal control, and prescribes the venue thereof, while paragraph (b) specifies the manner in which service of process may be made upon the defendant in such cases. For the latter purpose the carriers are divided into two classes: First, those with whom contracts have been made for the...
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Thompson v. Clifford
...15 S.Ct. 378, 39 L. Ed. 450 (1895). See also Ballou v. Kemp, 68 App.D.C. 7, 10, 92 F.2d 556, 559 (1937); Whalen Paper & Pulp Mills v. Davis, 53 App.D.C. 84, 86, 288 F. 438, 440 (1923). But see Hecht Co. v. Bowles, 321 U.S. 321, 326-327, 64 S.Ct. 587, 88 L.Ed. 754 (1944) (holding that the us......
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Walton v. United States
...process is pointed out by statute" Amy v. Watertown, 130 U. S. 301, 9 S. Ct. 530, 536, 32 L. Ed. 946; Whalen Paper & Pulp Mills, Ltd., v. Davis, 53 App. D. C. 84, 288 F. 438; Reid Wrecking Co. v. United States (D. C.) 202 F. 314; National Casket Co. v. United States (D. C.) 263 F. 246; Crea......
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...v. United States, 265 F. 326 (D.C.M.D.Pa.); Reid Wrecking Co. v. United States, 202 F. 314 (D. C.N.D.Ohio); Whalen Paper & Pulp Mills v. Davis, 53 App.D.C. 84, 288 F. 438; Miller v. United States, 11 F.Supp. 924 (D.C.W.D.N.Y.). In others, where the question was the same as in the case at ba......
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Davis v. Hagen
...the Transportation Act of February 28, 1920, section 206, paragraph (b). And also cite the case of Whalen Paper & Pulp Mills, Ltd., v. Davis, Director General of Railroads, 288 F. 438, which also follows the same rule and requires that service must be had as provided by the federal act, and......