possession, operation, use or control was to meet war needs by unification of of the company's property during Federal operation, common use of terminals, elimcontrol." Congress expressly gave the right to sue as thereto "provided by law" and the government and the carriers by contract recognized the right and the government agreed to "save harmless" the carriers from "judgments and decrees" which might result from the exercise of that right. The statute and the contracts expressly annulled any right to limit the bringing of suits otherwise than as theretofore provided by law, if there was such right, contained in the President's proclamation quoted above. Notwithstanding the statute and the contracts, the Director General ordered that suits should be brought against the Director General of Railroads and not otherwise.5 The statutory provision is so clear as to leave no room for construction. Some of the opinions holding valid the orders of the Director General have relied on the decisions of the Supreme Court holding the rate making power of the Director General exclusive over state power to prescribe intrastate rates." Such decisions have no support from the Supreme Court. The power to sue is expressly reserved "as now provided by law." In the same section the power to fix rates is expressly granted to the President in language as follows: "That during the period of Federal control, whenever in his opinion the public interest requires, the President may initiate rates, fares, charges, classifications, regulations, and practices." Other courts have said that the employes now operating the railroads are the agents of the Director General and not of the particular carrier owning the road and equipment. This reasoning disregards the statute and the purpose of Federal control. The purpose of taking over the railroads (5) Id., pp. 334, 335. (6) Northern P. Ry. Co. v. North Dakota, 250 U. S. 135, 39 Sup. Ct. 502, 63 L. ed. ination of unnecessary trains, and related methods having as their object to lessen the waste of energy and increase the effectiveness of the service. The statute did not make the government either owner or lessee, the government is merely an operator. The law, in effect, said to the railroads, "Unity of operation is a war necessity and therefore there shall be one head of the Board of Directors of all railroads." The corporate life was not affected, compensation was provided for, the continued right to file suits was stated and indemnity guaranteed for judgments that might be rendered against carriers. That execution cannot be issued to collect the judgments was a necessary protection, the power to sue existing. The provision for indemnity against judgments has no place in the statute, if there is no right to sue. Suits must precede judgments. Further, if no suit lies, it was unnecessary for Congress to say: "But no process, mesne or final shall be levied against any property under such Federal control." The two reasons answered above comprise the chief arguments holding valid the orders of the Director General. The decisions to the contrary are firmly grounded on the letter of the statute." (7) District Judge Walter Evans, March 2. 1918. Muir v. L. & N. R. Co., 247 Fed. 888: The Director General is "but the head of the Board of Directors of the railroad company, the property of which was taken into possession." District Judge Trieber, October 22, 1918, Wainwright v. Penn. R. Co, 253 Fed. 459, holding valid the order of the Director General fixing a venue. District Judge Mayer, June 15, 1918, Cocker v. New York, O. & W. Ry. Co., 253 Fed. 676, holding venue and stay orders (18, 18A. and 26) valid. District Judge Haight, November 30, 1918, United States v. Metropolitan Lumber Co., 254 Fed. 335, holding that federal control does not suspend Elkins Act or Act to Regulate Com merce. Judge Manton, June 12, 1918, Harwick v. Penn. R. Co., 254 Fed. 748, Order 26 authorizing stay of proceedings valid. District Judge Munger, December 27. 1918. Friesen v. Chicago, R. I. & P. Ry. Co., 251 Fed. 875, order fixing venue invalid. District Judge Munger, January 11, 1919, Rutherford v. Union Pac. R. Co., 254 Fed. 880, holding Director General may be substituted as a defendant in lieu of the carrier. In Transportation Act, 1920, Congress by Section 206, Paragraph a, has provided that actions at law, suits in equity, and proceedings in admiralty based on causes of action arising out of Federal control shall be brought against an agent to be desig District Judge Hand, Feb. 1, 1919, Jensen v. Lehigh Valley R. Co., 255 Fed. 795, denying a motion to substitute the Director General as a defendant and saying: "It is, of course, true that normally we should expect the liabilities to be those of the Director General, who is in control, but Congress has prescribed otherwise." Circuit Judges Walker and Batts and District Judge Grubb, Feb. 13, 1919, Postal TelegraphCable Co. v. Call, 255 Fed. 850, C. C. A., *** right to condemn land of railroad for use of telegraph company not suspended by federal control. In discussing the controlling statute, that of March 21, 1918, the Court said: "It permits actions at law or in equity to be brought against the carriers, and judgments to be rendered as now provided by law and prohibits the carrier from defending upon the ground that it is an instrumentality or agency of the federal government." District Judge Reed, April 16, 1919, Dahn v. McAdoo, 256 Fed. 549, holding that the Director General may be sued and that Order No. 50 is valid. District Judge Beverley D. Evans, May 2, 1919, Southern Cotton Oil Co. v. Atlantic Coast Line R. Co., 257 Fed. 138, holding that service on an employe during federal control was no service on the railroad. See, also, District Judge Call, Wood v. Clyde S. S. Co., 257 Fed. 879. District Judge West, April 15, 1919, Nueces Valley Townsite v. McAdoo, 257 Fed. 143, injunction improper under Act, March 21, 1918. District Judge Foster, May 8, 1919, Johnson v. McAdoo, 257 Fed. 757, holding: "It was competent for the federal Director General of Railroads to stipulate in what jurisdiction he might be sued, but his authority to make rules and regulations did not authorize the setting aside of the plain provisions of Act, March 21, 1918 (Comp. St. 1918, § 3115 4 a 3115 4 p, as to the railroad companies)." District Judge Foster, May 8, 1919, Witherspoon & Sons v. Postal Tele. & Cable Co., 257 Fed. 758. Suits can be brought against the company, not withstanding federal control. District Judge Youmans, July 17, 1919, Mardis v. Hines, 258 Fed. 945. No suit can be brought other than against the Director General. District Judge Lewis, June 25, 1919, Hatcher & Snyder v. Atchison, T. & S. F. Ry. Co., 258 Fed. 952, company not liable for negligence of employe during federal control. District Judge Westenhaver, October 3, 1919, Haubert v. Baltimore & O. R. Co., 259 Fed. 361, railroads not subject to liability for acts of agents operating them during federal control. District Judge Westenhaver, October 3, 1919, Smith v. Babcock & Wilcox. Actions to enforce liabilities incurred during Federal Control may be maintained in such courts and only such courts as had jurisdiction in the absence of the Federal Control Act. Suits against carriers may properly be served on an employe of the railroad, although the railroad is under Federal control. Circuit Court of Appeals, 5th Circuit, January 19, 1920, Vicksburg S. & P. Ry. Co. v. Anderson-Tully Co., 361 Fed. 741-744. District Judge Van Fleet, August 13, 1919, Nash v. Southern Pac. Co., 260 Fed. 280, Order No. 50 valid and not inconsistent with § 10 of Act, March 21, 1919. The Supreme Court has held that intrastate rates during federal control cannot be regulated by the states. Northern Pacific v. North Dakota, 250 U. S. 135, 63 L. ed., 39 Sup. Ct. 502. nated by the President, in that court in which the action might have been brought against such Carrier, had there been no Federal control. This is definite and reference need only be had to state and Fedcral statutes to determine where suits shall be filed in the future. Paragraph b of the same section provides a method for service in suits to be filed. Paragraph c provides how complaints for reparation shall be filed and prosecuted. In paragraph d, of Section 206, it is provided, "Actions, suits, proceedings and reparation claims, of the character above described pending at the termination of Federal control shall not abate by reason of such termination, but may be prosecuted to final judgment, substituting the agent designated by the President under subdivision (a)." Pending actions, suits and proceedings connote the legality thereof. If such actions, suits, or proceedings have not been filed in the proper court and venue, they are not legally "pending." The question, therefore, of the proper construction of Section 10 of the Federal Control Act is still open. Congress, in Paragraph g of Section 206 of the Transportation Act, 1920, has furnished further corroboration of the position. taken above in this article. By Paragraph g Congress prohibits execution, or process on Lands not used in federal control may be reached by execution. U. S. R. R. Administration v. Burch, 254 Fed. 140. Suits may continue to be prosecuted against the railroads notwithstanding Order No. 50. Louisville & Nashville R. Co. v. Steel, 202 S. W. 878. Lavalle v. Northern Pac. Ry. Co., 172 N. W. 918. McGregor v. Great N. R. Co., 172 N. W. 841. Vaugh v. State, 81 So. Rep. 417. West v. New York, N. H. & R. Co., 123 N. E. 621. Orders of Director General do not apply to suits antedating the orders. Scarborough v. Louisiana Ry. Nav. Co., 82 So. Rep. 286. Orders not applicable to mandamus proceedings. Re Morris Avenue Bridge, 174 N. Y. Supp. 682. Statute, § 10, Act March 21, 1918, authorizing suits against railroads invalid. Shumacher v. Penn. R. Co., 175 N. Y. Supp. 84. A consideration of the history, theory and the law of property down and through the annals of history, both sacred and profane, from the days of primeval man whose primitive modes of production were hunting and fishing and the yields thereof were shared in common, then the gradual development of the family and family rights, the roving bands, the clans and later the parcelling of lands held by the overlords with their retainers, the gradual development of individual rights, the separation of property and its recognized ownership, is a most interesting study. In a study of the evolution of property right we must look first to the fundamental principles and the thing we style property and its development. Production and ownership are so closely associated and intermingled, as it were, with the more modern term capital and the basic term, or foundation, labor that neither can be treated or discussed without the association of the *This article is by Hon. George H. Wark, one of the three judges of the new Court of Industrial Relations recently established by the legislature of Kansas. We shall be very glad to hear further from Judge Wark, especially with respect to the work of the new tribunal in which all of us are interested.-ED. other and the mental picture of the one is synonymous of both. The term capital is really a modern one, it is a product and the result of labor and one of the first instances of the securing of the thing called capital is illustrated by the story of the crafty savage who possessed two bows and arrows and loaned one of them to a neighbor on condition that he receive one-half of the game slain. The struggles, and I use the term in its broadest sense, which at times have seemed to the people hopeless, down through the ages of civilization, a continual battle of theory, facts, ideas and ideals have had to do with and have been the guiding force and the resultant end is the law of our modern property rights and a candid perusal and study of the legal lore on this subject might lead to the use of the term, in a very literal sense, the revolution in property rights in place of evolution. Certain authorities in considering the forms of property both common and private, and in this discussion we will deal with the latter, classify it as follows: First, (a) Common property of ancient origin, the types of which are the communal lands exposed for centuries past to the ownership of the nobility and the bourgeoisie. (b) Common property of modern origin administered by the state, comprised under the term Public Service (as the mint, post office, public roads, national libraries, museums, etc.). Second, Forms of private property, (a) Property of personal appropriation, (b) property-instruments of labor, (c) property-capital. But through all, from the very beginning of things, there runs a thread of reason and progress, though no doubt at the time, to the individuals then living, it seemed a hopeless tangle. Still we must bear in mind that many of the things and events stamped as perfectly correct and just by the verdict. of history when divorced from the heat and prejudice that were associated with the events now seem the most logical solution and conclusion but at the time of their occurrence were no doubt construed to be diametrically opposed to all established customs and traditions. With our high degree of civilization and development of government there are now greater chances and opportunities for advancement in any field by orderly and sane legislation, wise executive action and the fairness on the part of our courts, than under the old system of right by force and might. For long ago man by and through organized society, styled government, found that unless he had law, order and respect for the rights and property of others there could be no government. The right of ownership and control of property is the first step in the civilization of mankind. And while men give up many of their natural rights and their independence to live under political laws they have given up natural community of goods to live under civil laws, for in the early stages of civilization all property owned in common. By the first they acquired liberty, by the second property. The public good consists in every man having his individual property which is given him. by the civil laws and invariably preserved. was We find that property and law were born together and die together. Before laws were made there was no property. Take away law and property ceases. We cannot have property without law for through law possession ripens into property; this is a true theory but stated thus it is insufficient because there must be just and public order and moral law behind the statute law. The manner of the distribution of property has for a long time been a favorite topic of discussion with the modern sociologist and schemes without number are suggested to remedy evils, some fancied but many real, which have arisen from it. It is clear that the fundamental law of supply and demand cannot be set aside, that all men are not created equal when it comes to the ability to acquire property or pre serve that which they inherit. It is impossible to deny the laboring man the right to determine the number of hours he shall work and the wages he is willing to accept, that is his privilege and right and likewise no legislation can compel an employer to pay more than he is able to pay or carry on his business at a loss. The price of labor thus becomes the price of everything that labor produces. Legislation is powerless to permanently affect this law of supply and demand and the conditions that we are now facing in the controversy affecting property of every nature and between capital and labor is no new question, in fact it is as old as governments themselves and has always been a factor in the growth and development of property rights and distribution thereof, indeed, it is ages old and these controversies have occurred from a time whence the oldest historical records run not to the contrary. One of the earliest recorded in the annals of the race is that of the exodus of the Israelites from Egypt which seems to have been a national protest against the oppression of capital and to have possessed the substantial characteristics of a modern strike. How far this revolt was due to the order of Pharaoh that the Israelites should provide their own straw to make bricks and how far to the hereditary adversion of the Jewish race to manual labor we shall never know at least not until we hear the Egyptians' side of the story. It is true they despoiled the Egyptian, a fact not wholly un known to our modern strikes but there is no evidence that the Israelites ever claimed a proprietorship in the cities they had built. or used any violence to prevent others from working at the same rate of wages. The boycott had not then been invoked. The Egyptians are said to have been reluctant to let the strikers go and pursued them across the Red Sea but the pursuit was fruitless and attended by somewhat unpleasant consequences to the pursuers. A later manifestation of the same spirit. was shown by the Romans who in the early days of the republic, driven to despair by the oppressive patricians, withdrew in a body to the sacred hill whence they declared their own terms and obtained the appoint ment of Tribunes of the people for their protection from the cruelty of the bour geoisie. The Romans were pre-eminently an industrious and progressive people. Trade unions and guilds existed from the time of the Kings and were often in trouble with the patricians who though hating the plebian at the same time found him indispensable. The history of the middle ages is replete with the accounts of conflicts of feudal lords who descended from their castles, waylaid the traveler and plundered him of his property, seized his person and unless ransomed sold him as a slave. The merchant dared not risk his person and property in foreign parts. If shipwrecked it was the universal practice to confiscate his goods and property as belonging to the lord on whose land he was thrown. Indeed for some hundred of years the seas were so infested by pirates and commerce and all kinds of property subjected to such exactions and the crews of shipwrecked vessels were so cruelly treated that intercourse between nations practically ceased, commerce was abandoned and the laws regulating it forgotten or lost. From this brief analysis it is apparent, first, that strikes so far as being peculiar to modern enterprise, as is generally supposed, are as old as civilization itself, second, that they prevail most extensively in the most enlightened and wealthy communities and as far as being an indication of extreme poverty are equally as frequent in times of general prosperity. Property exists because it promotes the general welfare and by the general welfare its development is directed. As society has As society has developed there has been a corresponding evolution in the development of property rights, for it is only through law that possession ripens into property and ownership. Public property again into public property, and extensive forms of property make way for intensive forms because all this evolution promotes a general welfare. As an example or evidence of changes in property rights let us consider some of the irrigation laws of our country. Irrigation in a crude form can be traced back to a period which in our new world would be called a remote past, probably seven hundred years. The Pueblo Indians occupied and irrigated lands long ago, so also did the Mexicans and years before the settlement of the west by the Americans the Spanish missions in California employed irrigation. But these early methods were very largely happy-go-lucky. The use of water was a very extensive one rather than an intensive one and there were no highly developed systems. developed systems. The Mormons in the middle of the nineteenth century and the colony at Greeley, Colorado, twenty years later began modern irrigation in the United States. Where mere possession existed it had to make way for full property into which it often ripened. The old common law doctrine of riparian rights stood in the way of the extensive and intensive use of water and in the irri gated sections of our country this doctrine has been abolished either explicitly as in Colorado or by modification through statute law and judicial decisions until it has become essentially a different thing. The doctrine of riparian rights was regarded in England as a “natural right.” It seemed to the Englishman a thing right in itself not requiring statute law to establish it, that the owner of land should receive the uninterrupted flow of streams crossing his fields but the so-called natural right has had to yield to the necessities of social co-existence. Less extensive uses constantly yielded to more and are yielding to more intensive uses. The cattlemen of the plains were satisfied with mere possession for flocks and herds and waged many bloody battles to prevent the development of full property rights by permanent settlers but the general welfare demanded a more intensive tenure and the permanent settler fought a winning fight. The common grazing grounds have for the most part disappeared and the remainder are rapidly dwindling. The Texas Trail of the cattlemen has become a thing of the past. |