tackle, appurtenances, wharves, docks, warehouses, and other property as described and set forth in the proclamation of the President, dated April 11, 1918, as aforesaid, and restore the same to the possession of their respective owners.

For accounting purposes, this order may be treated as effective December first at 12:01 a. m.

Given under my hand as Director General of Railroads, this fifth day of December, 1918.

W. G. McADOO, Director General of Railroads.

OPINION SUSTAINING THE AUTHORITY OF W. G. MCADOO, DIRECTOR GENERAL OF RAILROADS, RE GENERAL ORDERS 18 AND 18-A, AND THEIR VALIDITY UNDER THE FEDERAL-CONTROL ACT APPROVED MARCH 21, 1918, AND THE CONSTITUTIONALITY OF SAID ACT, BY HONORABLE JACOB TRIEBER, UNITED STATES DISTRICT JUDGE FOR THE EASTERN DISTRICT OF ARKANSAS, SITTING IN THE EASTERN DIVISION OF THE EASTERN DISTRICT OF MISSOURI.

In the District Court of the United States for the Eastern Division of the Eastern District of Missouri.

NELLIE WAINWRIGHT, ADMINISTRATRIX, ETC., Plaintiff,

v.

PENNSYLVANIA RAILROAD COMPANY, Defendant.

No. 4893.

The plaintiff on May 6, 1918, instituted this action to recover damages under the employers' liability act for the death of her husband, alleged to have resulted from injuries sustained on December 26, 1917, while in the service of the defendant and while both were engaged in interstate commerce. The defendant filed a plea in abatement, alleging as causes:

1. The Pennsylvania Railroad Company, defendant herein, is a common carrier now under control of the United States Railroad Administration.

2. The plaintiff herein, and the deceased, John Wainwright, resided at the time of the accrual of the cause of action stated in the plaintiff's petition in the city of Pittsburgh, State of Pennsylvania. 3. That the place of trial, to wit: City of St. Louis, State of Missouri, is far removed from the place where the plaintiff was injured and resided at the time of the accrual of this action, to wit: City of Pittsburgh, Pa.; that the trial of this suit in the city of St. Louis, Mo., will necessitate the summoning of men, to wit: Engineman N. Carlson, Fireman W. J. Corbett, Conductor W. Baker, and Brakeman J. Wainwright, now operating trains in points distant from the place of trial and keep them for a considerable period of time from said work of operating trains, all of which will greatly prejudice the interests of the Government in maintaining railroad traffic for war purposes.

And the defendant further states that the above specifications of facts, enumerated above, constitute to all intents and purposes a case of abatement under General Order No. 26, promulgated by the United States Railroad Administration on May 23, 1918, and Gen

eral Order No. 18-A, promulgated by the United States Railroad Administration on May 18, 1918.

To this plea the plaintiff demurred.

The general orders pleaded by the defendant were promulgated by the Director General of the United States Railroad Administration. General Order No. 18, made on April 9, 1918, reads:

Whereas the act of Congress approved March 21, 1918, entitled “An act to provide for the operation of transportation systems while under Federal control," provides (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 with any order of the President, * *. But no process, mesne or final, shall be levied against any property under such Federal control"; and

Whereas it appears that suits against the carriers for personal injuries, freight and damage claims are being brought in States and jurisdictions far remote from the place where plaintiffs reside or where the cause of action arose, the effect thereof being that men operating the trains engaged in hauling war materials, troops, munitions, or supplies are required to leave their trains and attend court as witnesses, and travel sometimes for hundreds of miles from their work, necessitating absence from their trains for days and sometimes for a week or more, which practice is highly prejudicial to the just interests of the Government and seriously interferes with the physical operation of the railroads; and the practice of suing in remote jurisdictions is not necessary for the protection of the rights or the just interests of plaintiffs;

It is therefore ordered, That all suits against carriers while under Federal control must be brought in the county or district where the plaintiff resides or in the county or district where the cause of action arose.

On April 18, 1918, this general order was amended by General Order No. 18-A, as follows:

It is therefore ordered that all suits against carriers while under Federal control must be brought in the county or district where the plaintiff resided at the time of the accrual of the cause of action or in the county or district where the cause of action arose.

As this action was instituted after the promulgation of General Orders Nos. 18 and 18-A, and no question of limitation can possibly arise, it is unnecessary to refer to or pass upon the effect of General Order No. 26 in disposing of these pleas.

These general orders are claimed to have been made by authority vested in the President and the Director General designated by the President by the appropriation act of August 29, 1916, ch. 418, 39 St. 645 and the act of Congress 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 March 21, 1918.

Browning, Mason & Altman, of St. Louis, Mo., for plaintiff. Fordyce, Holliday & White, of St. Louis, Mo., for defendant. Mr. E. H. Seneff and Mr. D. P. Williams, of Pittsburgh, Pa., by leave of the court filed a brief as amici curiæ.

TRIEBER, district judge, after stating the facts as above.
The demurrer to the plea raises two questions of law:

1. Assuming that the act of Congress authorizes the President and the agencies appointed by him to make these regulations, Is the act warranted by the Constitution?

2. Does the act vest the power to make these regulations in the President or the Director General?

At the outset of this opinion, it is proper to state that, as this action was originally instituted in a court of the United States, the question whether Congress may authorize the general orders in question to apply to the courts of the States is not involved, and therefore can not be determined in this proceeding. What is stated in this opinion is necessarily intended to apply solely to actions instituted in the national courts. Whether, under the war power, Congress may enact laws affecting the maintenance of actions in the State courts, can only be determined when it properly comes before the court. To express an opinion on that question in the instant case would be clearly obiter, and the court, for this reason, limits this opinion to actions instituted in the national courts.

HAS CONGRESS THE POWER TO ENACT THIS LEGISLATION, ASSUMING THAT IT VESTS THE POWER CLAIMED ON BEHALF OF THE DEFENDANT?

That Congress possesses the power to enact legislation of this nature, under the Constitution, can not be questioned at this day. There are several grounds upon which it must be sustained.

1. In McCulloch v. Maryland, 17 U. S. 316, 421, Chief Justice Marshall delivering the opinion of the court, it was held as a proper canon of the interpretation of the powers of Congress under the National Constitution, among others: "Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to the end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional."

This rule of construction has never been doubted or questioned by any subsequent decision, but has been uniformly followed, whenever it has been before the courts, and must, therefore, be accepted as elementary in the construction of the National Constitution. That there is nothing in the Constitution prohibiting Congress from determining the venue in civil actions is beyond question.

Article 1, section 8, clause 11, of the Constitution grants Congress the power to declare war, and clause 12 of that section empowers it to raise and support armies. That by virtue of these provisions of the Constitution, Congress may use all means which are, in its opinion, appropriate to that end and not prohibited by some provision 105889°-19-3

of the Constitution has, under the rule established in McCulloch v. Maryland, been settled in Miller v. United States, 78 U. S. 268; Stewart v. Kahn, 78 U. S. 493, 506, 507; reaffirmed in Mayfield v. Richards, 115 U. S. 137. In Stewart v. Kahn, it was held: “The measures to be taken in carrying on war and to suppress insurrection are not defined. The decision of all such questions rests wholly in the discretion of those to whom the substantial powers involved are confided by the Constitution.

"In the latter case the power is not limited to victories in the field and the dispersion of the insurgent forces. It carries with it inherently the power to guard against the immediate renewal of the conflict and to remedy the evils which have arisen from its rise and progress.

The same principle was recognized in the Legal Tender cases, 79 U. S. 457, 539, where it was held: "Before we can hold the legal tender acts unconstitutional, we must be convinced they were not appropriate means, or means conducive to the execution of any or all of the powers of Congress, or of the Government, not appropriate in any degree (for we are not judges of the degree of appropriateness), or we must hold that they were prohibited. This brings us to the inquiry whether they were, when enacted, appropriate instrumentalities for carrying into effect, or executing any of the known powers of Congress, or of any department of the Government. Plainly to this inquiry, a consideration of the time when they were enacted, and of the circumstances in which the Government then stood, is important. It is not to be denied that acts may be adapted to the exercise of lawful power, and appropriate to it, in seasons of exigency, which would be inappropriate at other times." See also the address of former Justice Hughes on the "War powers under the Constitution," volume 42, American Bar Association, 232.

Whether the exigencies existed when Congress enacted this statute was for that body to determine and can not be questioned by the courts, if there is any substantial ground therefor. McCulloch v. Maryland, supra, Lottery cases, 188 U. S. 321, 355; McDermott v. Wisconsin, 228 U. S. 115, 128. That there was substantial ground for the enactment of the statute requires no argument. The conditions so graphically described in the Legal Tender cases (p. 540) prevail now, and it will conduce to brevity to refer to what was there said, without quoting it in this opinion.

That the act was enacted under the war power is not only apparent from its content, but it is expressly declared in section 16 of the act, "to be emergency legislation, enacted to meet conditions growing out of the war," and section 14 provides that the Federal control of railroads shall continue not exceeding one year and nine months after the ratification of the treaty of peace.