the words of § 10 of the Lever Act, that, "jurisdiction is hereby conferred on the United States district courts to hear and determine all such controversies." And § 2 of the Act of July 11, 1918, chap. 145, 40 Stat. at L. 898, Comp. Stat. § 514e, Fed. Stat. Anno. Supp. 1918, p. 907, permits suits against the United States on marine insurance "in the district courts of the United States sitting in admiralty." instead of one where the trial will be by the court alone, it is our duty to give effect to its designation. The writ of error is dismissed for want of jurisdiction in this court. Dismissed. MISSOURI PACIFIC RAILROAD COM- V. H. A. F. AULT. (See S. C. Reporter's ed. 554-565.) Carriers limiting liability effect of A survey of the war legislation permitting the seizure of property discloses that Congress has established three distinet jurisdictions for the purpose of suit against the [553] United States for compensation. In seventeen instances1 it definitely provided, by reference to the appropriate sections of the Judicial Code, for concurrent jurisdiction in the ation of railroads by the Director General, 1. No liability arising out of the opercourt of claims and the district courts, under the Federal Control Act of March 21, sitting as a court of claims. In the four 1918, was imposed by the common law upon instances above set forth it conferred the owner companies, since their interests jurisdiction only on the district courts. in and control of the railroads were comIn four instances it conferred jurisdic-pletely suspended. tion only on the court of claims.2 The Carriers established rule of statutory construction should lead us to give effect in every practicable manner to the distinctions which Congress has seen fit to make. Compare Penn Mut. L. Ins. Co. v. Lederer, 252 U. S. 523, 533, 64 L. ed. 698, 702, 40 Sup. Ct. Rep. 397. And where it designates a [554] jurisdiction in which the trial will be with a jury 1 Statutes which provide for suits for compensation against the United States in both the district courts and the court of claims in the manner provided by § 24, 20, and § 145 of the Judicial Code: Act of March 4, 1917, chap. 180, 39 Stat. at L. 1193, The Naval Emergency Fund Act; Act of June 15, 1917, chap. 29, 40 Stat. at L. 183, Emergency Shipping Fund Act; Act of August 10, 1917, chap. 53, §§ 12, 16, 25, 40 Stat. at L. 279, 282, 285, Comp. Stat. §§ 3115jj, 311511, 31151q, Fed. Stat. Anno. Supp. 1918, pp. 186, 189, 191; Act of October 6, 1917, chap. 79, 40 Stat. at L. 353, 371, 372, Comp. Stat. § 2804bbbb, land for ordnance proving ground and for naval construction; Act of March 1, 1918, chap. 19, 40 Stat. at L. 438, 439, Comp. Stat. § 8146t, Fed. Stat. Anno. Supp. 1918, p. 440, Shipping Board housing; Act of April 22, 1918, chap. 62, 40 Stat. at L. 535, Comp. Stat. § 3115d, Shipping Board trolleys or interurban railways; Act of April 26, 1918, chap. 64, 40 Stat. at L. 537, 538, Comp. Stat. § 2804bbbbb, Fed. Stat. Anno. Supp. 1918, p. 537, land for ordnance proving ground; Act of May 16, 1918, chap. 74, § 2, 40 Stat. at L. 551, Comp. Stat. § 3115b, Fed. Stat. Anno. Supp. 1918, p. 443, land for war housing; Act of July 1, 1918, chap. 114, § 5, fd, 40 liability ment operation. effect of govern 2. The owner companies were not made liable for acts or omissions of the Director General in operating the railroads under the Federal Control Act of March 21, 1918, carriers, while under Federal control, shall by the provision of § 10 of that act, that remain subject to all existing laws and liabilities, and may sue and be sued as heretofore. Stat. at L. 720, contracts for ships, war material, factories, etc.; Act of July 8, 1918, chap. 139, § 1, 40 Stat. at L. 826, buildings for War Department in District of Columbia; Joint Res. of July 16, 1918, chap. 154, 40 Stat. at L. 904, Comp. Stat. § 31153x, Fed. Stat. Anno. Supp. 1918, p. 834, telegraph systems; Act of July 18, 1918, chap. 157, § 14, 40 Stat. at L. 916, Comp. Stat. § 3115jj, dry docks, wharves, warehouses, terminals; Act of October 5, 1918, chap. 181, § 3, 40 Stat. at L. 1010, Comp. Stat. § 31151sss, minerals, ores, mines, smelters, etc.; Act of November 21, 1918, chap. 212, § 1, 40 Stat. at L. 1048, buildings for Department of Agriculture in District of Columbia. 2 Statutes which provide for suits for compensation against the United States only in the court of claims: Act of October 6, 1917, chap. 106, § 10, 40 Stat. at L. 422, Comp. Stat. § 3115ee, Fed. Stat. Anno. Supp. 1918, p. 859, patents; Act of July 1, 1918, chap. 114, 40 Stat. at L. 705, patents used by United States; Act of March 21, 1918, chap. 25, § 3, 40 Stat. at L. 454, Comp. Stat. § 3115c, Fed. Stat. Anno. Supp. 1918, p. 760, railroads; Act of March 2, 1919, chap. 94, § 2, 40 Stat. at L. 1273, Comp. Stat. § 3115115b, war contracts, etc. Carriers Federal operation - liabil- Error to state court scope of review judgment which affirmed a judgment of the Circuit Court of Hot Springs County, in that state, in favor of plaintiff in an action to enforce a statutory penalty against a railway company and the Director General. Reversed. See same case below, 140 Ark. 572, 216 S. W. 3. The facts are stated in the opinion. Mr. Robert E. Wiley argued the cause, and, with Mr. Edgar B. Kinsworthy, filed a brief for plaintiffs in error: Judgment for any sum cannot lawfully be rendered against the Missouri Pacific Railroad Company on a cause of action arising out of the recent possession, control, and operation of its railroad by the United States government. 4. Whether, in a proceeding against the Director General, operating the railroads under the Federal Control Act of March 21, 1918, the liability imposed by state statutes for violations of those stat utes shall be deemed compensation or penalty, presents a question not of state but Northern P. R. Co. v. North Dakota, of Federal law, open to review in the Fed-250 U. S. 135, 63 L. ed. 897, P.U.R. eral Supreme Court on writ of error to a 1919D, 705, 39 Sup. Ct. Rep. 502, 18 [For other cases, see Appeal and Error, 2227-P. R. Co. 254 Fed. 880; Postal Teleg.N. C. C. A. 878; Rutherford v. Union state court. 2256, in Digest Sup. Ct. 1908.] Error to state court- Federal question validity of state statute. Cable Co. v. Call, 167 C. C. A. 178, 255 Fed. 850; Hines v. Dahn, 267 Fed. 105; 5. A judgment of the highest state Mardis v. Hines, 267 Fed. 171; Haubert court, imposing a penalty upon a railway v. Baltimore & O. R. Co. 259 Fed. 361; company and the Director General for vio-Nashville v. Southern P. Co. 260 Fed. lations of state statutes, over the objection 280; Hatcher & Snyder v. Atchison, T. by the defendants that such statutes, so applied, violated the Federal Constitution, is & S. F. R. Co. 258 Fed. 952; Dahn v. reviewable in the Federal Supreme Court McAdoo, 256 Fed. 549; Southern Cotton Oil Co. v. Atlantic Coast Line R. Co. 257 Fed. 138; Wood v. Clyde S. S. Co. 257 Fed. 879; Cravens v. Hines, Mo. App., 218 S. W. 912; Dooley v. Penn on writ of error. [For other cases, see Appeal and Error, 1645 1716, in Digest Sup. Ct. 1908.] [No. 252.] Argued and submitted March 22, 1921. sylvania R. Co. 250 Fed. 142; United IN Decided June 1, 1921. N ERROR to the Supreme Court of the State of Arkansas to review a Note.-On Federal control of public utilities-see notes to Dantzer Lumber Co. v. Texas & P. R. Co. 4 A.L.R. 1680; Peacock v. Detroit, G. H. & M. R. Co. 8 A.L.R. 969; Spring V. American Teleg. & Teleph. Co. 10 A.L.R. 956; Com. v. Louisville & N. R. Co. 11 A.L.R. 1450, and Pullman Co. v. Sweeney, 14 A.L.R. 234. On suit against railroad owned by United States-see note to Ballaine v. Alaska Northern R. Co. 8 A.L.R. 995. On the general subject of writs of error from the United States Supreme Court to state courts-see notes to Martin v. Hunter, 4 L. ed. U. S. 97; Hamblin v. Western Land Co. 37 L. ed. U. S. 267; Re Buchanan, 39 L. ed. U. S. 884, and Kipley v. Illinois, 42 L. ed. U. S. 998. States v. Kambeitz, 256 Fed. 247; Wain- On how and when questions must be raised and decided in a state court in order to make a case for a writ of error from the Supreme Court of the United States-see note to Mutual L. Ins. Co. v. McGrew, 63 L.R.A. 33. On what the record must show respecting the presentation and decision of a Federal question in order to confer jurisdiction on the Supreme Court of the United States on a writ of error to a state court-see note to Hooker v. Los Angeles, 63 L.R.A. 471. On what questions the Federal Supreme Court will consider in reviewing the judgments of state courts-see note to Missouri ex rel. Hill v. Dockery, 63 On what adjudications of state courts can be brought up for review in the SuL.R.A. 571. The operation and enforcement of a judgment against the Missouri Pacific Railroad Company for a cause of action arising out of Federal operation of its railroad would amount to taking its property without due process of law. Camp v. Rogers, 44 Conn. 291; Daugherty v. Thomas, 174 Mich. 371, 45 L.R.A. (N.S.) 699, 140 N. W. 615, Ann. Cas. 1915A, 1163; Schumacher v. Pennsylvania R. Co. 106 Misc. 564, 175 N. Y. Supp. 84; United States R. Adminis tration v. Burch, 254 Fed. 140. The penalty denounced by the Arkansas statute for failure to pay wages when due is not recoverable against the Director General of Railroads. Hines v. Taylor, Fla. 84 So. 381; Ginn v. United States R. Administration, 114 S. C. 236, 103 S. E. 548; Owens v. Hines, 178 N. C. 325, 100 S. E. 617. Mr. Frank Pace submitted the cause for defendant in error. Messrs. D. D. Glover and Jabez M. Smith were on the brief. Mr. Justice Brandeis delivered the opinion of the court: A statute of Arkansas provides that whenever a railroad company, or a receiver operating a railroad, shall discharge an employee, with or without cause, it shall pay him his full wages within seven days thereafter, and that if payment is not duly made, "then as a penalty for such nonpayment the wages of such servant or employee shall continue from the date of the discharge or refusal to further employ, at the same rate until paid." Kirby's Digest, § 6649, as amended by Act of 1905, No. 210. Proceeding under this statute, in August, 1918, Ault brought suit before a justice of the peace against the [556] Missouri Pacific Railroad Company, alleging that he had been employed by the company at the rate of $2.50 per day, that he had been discharged on July 29, 1918, and that $50 was then due him as wages, but had not been paid. He recovered judgment by default. The company appealed to the circuit court and there moved, in January, 1919, to substitute as defendant the Director General of Railroads. This substitution the court refused to make; but it joined the Director General as defendant, and entered judgment against both him and the company upon a verdict that Ault recover the sum of $50 as debt and $390 as penalty. That judgment was affirmed by the supreme court of Arkansas. 140 Ark. 572, 216 S. W. 3. The President had taken possession and control of the Missouri Pacific Railroad on December 28, 1917, pursuant to the Proclamation of December 26, 1917 (40 Stat. at L. 1733), under the Act of August 29, 1916, chap. 418, 39 Stat. at L. 619, 645, Comp. Stat. § 1974a.1 He was operating it through the Director General under the Federal Control Act (March 21, 1918, chap. 25, 40 Stat. at L. 451, Comp. Stat. § 3115a, Fed. Stat. Anno. Supp. 1918, p. 757) when Ault was employed, when he was discharged, and when the judgment under review was entered. See Transportation Act 1920, Act of February 28, 1920, chap. 91, 41 Stat. at L. 456. The company had claimed seasonably that, under the acts of Congress, it could not be held liable either for the wages or the penalty; and that, if the state and Federal statutes should be construed as creating such liability, they were in that respect void as to it, under the Federal Constitution. The Director General did not contest liability for wages actually due, [557] but claimed that, under the legislation of Congress, he was not liable for the penalty, and that the state statute, as applied to him, was void under the Federal Constitution. The claims of both defendants having been denied by the highest court of the state, they brought the case here by writ of error. First. The company is clearly not answerable in the present action if the ordinary principles of common-law liability are to be applied. The Railroad Administration established by the President in December, 1917, did not exercise its control through supervision of the owner-companies, but by means of a Director General, through "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." Northern P. R. Co. v. North Dakota, 250 U. S. 135, 148, 63 L. ed. 897, 902, P.U.R.1919D, 705, 39 Sup. Ct. Rep. 502. This authority was confirmed by 1 "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." (39 Stat. at L. 645.) It the Federal Control Act of March 21, for acts or omissions of the Railroad 1918, chap. 25, 40 Stat. at L. 451, and Administration, although they are dethe ensuing Proclamation of March 29, prived of all power over the properties 1918, 40 Stat. at L. 1763. By the estab- and the personnel. And it is said that lishment of the Railroad Administra- this construction would not result in tion and subsequent orders of the Direc- hardship upon the companies, since the tor General, the carrier companies were just compensation provided by the act completely separated from the control would include any loss from judgments and management of their systems. Man- [559] of this sort. Such a radical deaging officials were "required to sever parture from the established concepts of their relations with the particular com- legal liability would at least approach panies and to become exclusive repre- the verge of constitutional power. sentatives of the United States Railroad should not be made in the absence of Administration." U. S. R. R., Adm. compelling language. United States ex Bulletin No. 4, pp. 113, 114, 313. The rel. Atty. Gen. v. Delaware & H. Co. 213 railway employees were under its direc- U. S. 366, 408, 53 L. ed. 836, 848, 29 tion, and were in no way controlled by Sup. Ct. Rep. 527. There is none such their former employers. See Bulletin here. No. 4, p. 168, §§ 5, 198 et seq., 330 et seq. It is obvious, therefore, that no liability arising out of the operation of these systems was imposed by the common law upon the owner-companies, as their interest in and control over the systems were completely suspended. The contention that the company is liable for acts or [558] omissions of the Director General in operating the Missouri Pacific Railroad rests wholly upon the following provision of § 10 of the Federal Control Act:2 The plain purpose of the above provision was to preserve to the general public the rights and remedies against common carriers which it enjoyed at the time the railroads were taken over by the President, except in so far as such rights or remedies might interfere with the needs of Federal operation. The provision applies equally to cases where suits against the carrier companies were pending in the courts on December 28, 1917; to cases where the cause of action arose before that date "That carriers while under Federal and the suit against the company was control shall be subject to all laws and filed after it; and to cases where both liabilities as common carriers, whether cause of action and suit had arisen or arising under state or Federal laws or might arise during Federal operation. at common law, except in so far as may The government was to operate the carbe inconsistent with the provisions of riers, but the usual immunity of the this act or any other act applicable to sovereign from legal liability was not to such Federal control or with any order prevent the enforcement of liabilities of the President. Actions at law or ordinarily incident to the operation of suits. in equity may be brought by and carriers. The situation was analogous against such carriers and judgments to that which would exist if there were rendered as now provided by law; and a general receivership of each transporin any action at law or suit in equity tation system. Operation was to be against the carrier no defense shall be continued as theretofore, with the old made thereto upon the ground that the personnel, subject to change by execucarrier is an instrumentality or agency tive order. The courts were to go on of the Federal government. But entertaining suits and entering judgments under existing law, but the property in the hands of the President for war purposes was not to be disturbed. With that exception, the substantial legal rights of persons having dealings with the carriers were not to be affected by the change of control. no process, mesne or final, shall be levied against any property under such Federal control." It is urged that, since § 10, in terms, continues the liability of "carriers while under Federal control," and permits suit against them, it should be construed as subjecting the companies to liability 2 The provision in § 10 concerning suits is in substance the same as that contained in the following paragraph of the Proclamation of the President of December 26, 1917: "Except with the prior written assent of said Director, no attachment by mesne process or on execution shall be levied on This purpose Congress accomplished 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." by providing that "carriers while under Federal control" should remain subject to all then-existing laws and liabilities, and that they might sue and be sued as theretofore. Here the term "carriers" was used as it is understood in common [560] speech,-meaning the transportation systems, as distinguished from the corporations owning or operating them. Congress had, in § 1, declared that such was its meaning. The President took over the physical properties, the transportation systems, and placed them under a single directing head; but he took them over as entities, and they were always dealt with as such (Bull. No. 4, p. 113). Each system was required to file its own tariffs. General Order No. 7, Bull. 4, p. 151. Each was required to take an inventory of its materials and supplies. General Order No. 10, id. p. 170. Each Federal treasurer was to deal with the finances of a single system; his bank account was to be designated "(Name of Railroad), Federal Account." General Order No. 37, id. p. 313. Each of 165 systems was named individually in the order promulgating the wage awards of the Railroad Wage Commission. General Order No. 27, id. pp. 198, 200. And throughout the orders and circulars there are many such expressions as "two or more railroads or boat lines under Federal control." See General Order No. 11, id. p. 170.3 It is this conception of a transportation system as an entity which dominates § 10 of the act. The systems are regarded much as ships are regarded in admiralty. They are dealt with as active, responsible parties, answerable for their own wrongs. But since levy or execution upon their property was precluded as inconsistent with the government's needs, the liability of the transportation [561] system was to be enforced by allowing suit to be brought against whoever, as the party operating the same, was legally responsible under existing law, although it be the government. 3 By § 12 of the act receipts from the operation of each carrier are the property of the United States, and, unless otherwise directed by the President, they are to be kept in the custody of the same officers, and accounted for in the same way, as before Federal control. Disbursements are to be made from this fund without appropriation, in the manner provided by the accounting regulations of the Interstate Commerce Commission. Under those regulations judgments for damages are charge able to the operation of the railroad, and are payable out of the general receipts. Thus, under § 10, if the cause of action arose prior to government control, suit might be instituted or continued to judgment against the company as though there had been no taking over by the government, save for the immunity of the physical property from levy, and the power of the President to regulate suits in the public interest, as by fixing the venue, or the time for trial. If the cause of action arose while the government was operating the system, the "carrier while under Federal control" was, nevertheless, to be liable and suable. This means, as a matter of law, that the government or its agency for operation could be sued, for under the existing law the legal person in control of the carrier was responsible for its acts. See Gracie v. Palmer, 8 Wheat. 605, 632, 633, 5 L. ed. 696, 703. The title by which suit should be brought-the person who should be named as defendant-was not designated in the act. In the absence of explicit direction, it was perhaps natural that those wishing to sue the carrier should have named the company as defendant when they sought to hold the government liable. It doubtless seemed, as suggested in McNulta v. Lochridge, 141 U. S. 327, 331, 332, 35 L. ed. 796, 799, 800, 12 Sup. Ct. Rep. 11, that suit should be brought against the transportation company "by name "in the hands of' or 'in the possession of' a receiver," or Director General. All doubt as to how suit should be brought was cleared [562] away by General Order No. 50, which required that it be against the Director General by name.5 As the Federal Control Act did not impose any liability upon the companies on any cause of action arising out of the operation of their systems of transportation by the government, the provision in Order No. 50, authorizing the substitution of the Director General as defendant in suits then pending, was within his power; the application of the Missouri Pacific Railroad Company that it 4 Muir v. Louisville & N. R. Co. 247 Fed. 888; Wainwright v. Pennsylvania R. Co. 253 Fed. 459; Di Tommaso v. R. Co. 28 Pa. Dist. R. 473; Bolton v. Hines, 143 Ark. 601, 221 S. W. 459; Le Clair v. Montpelier & W. River R. Co. 93 Vt. 92, 106 Atl. 587; Benjamin Moore & Co. v. Atchison, T. & S. F. R. Co. 106 Misc. 58, 174 N. Y. Supp. 60; Re Announcements & Special Rules of Practice, 50 Inters. Com. Rep. 797, 798. 5 "It is therefore ordered, that actions at law, suits in equity, and proceedings in admiralty hereafter brought in any court based on contract, binding upon the Direct |