Moss v. Davis, Dir. Gen.

February 21, 1927. The opinion of the Court was delivered by This was an action for alleged overcharges and loss and damage to freight, while the railroads were under federal control, instituted on February 27, 1922, the day before the time for filing such suits expired. The action was brought originally by W.M. Brown Son against John Barton Payne, Director General of Railroads, as Agent, under Section 206 of the Transportation Act of 1920 (U.S. Comp. St., § 10071 1/4cc), and Blue Ridge Railway Company.

As a matter of fact, it appears that John Barton Payne, who had been Director General of Railroads, resigned on March 28, 1921, nearly a year before the action was commenced, and James C. Davis was appointed by the President immediately, as his successor, and was so acting when the action was commenced.

On November 28, 1922, the plaintiff, W.D. Moss, was appointed receiver of the affairs of W.M. Brown Son, and on October 25, 1924, nearly two years later, an order was signed by his Honor Judge Johnson, substituting the receiver for the original plaintiffs and James C. Davis, Director General, for the original defendant John Barton Payne. Amended pleadings accordingly were duly served.

A demurrer interposed by the Blue Ridge Railway Company to the complaint was sustained, and it passed out of the case. James C. Davis, Director General, as Agent, etc., answered the amended complaint, claiming that the action as against him was not brought within the time provided by the statute, and was barred.

The case came on for trial at the October term, 1925. The attorneys for Davis, acting upon authority contained in a letter, which they understood referred to this case, but which they found out later was another matter, permitted plaintiff to take a verdict for the amounts claimed in the first and third causes of action with interest at 7 per cent.

Notice of appeal was duly served upon plaintiff's attorneys.

The judgment was reported in the regular way for settlement, and, upon reaching Washington, was immediately turned down, and counsel notified that they had no authority to make settlement, and were directed by Andrew Mellon, Director General and Agent, as successor in office of James C. Davis, Director General and Agent, to move to set aside the void verdict and void judgment improperly entered up against his predecessor in office. This was done upon the affidavit and grounds set out in the "case."

Motion was heard by consent before Judge M.L. Bonham on June 4, 1926. Motion was denied. Notice of appeal from this order was duly served.

The sole question for decision is whether the Court which rendered judgment had jurisdiction of the cause at the time of the rendition of the judgment.

It is settled beyond controversy that an action at law which may be brought against the agent designated by the President under the Transportation Act of 1920 (41 Stat., 456) is in legal effect an action against the United States. U.S. ex rel. Rauch v. Davis, 56 App. D. C., 46; 8 F.2d 907. Dupon v. Davis, 264 U.S. 462;44 S.Ct., 364; 68 L.Ed., 788.

It is also true that, since the United States can be sued only with the consent of the Congress, the conditions imposed by Congress in respect to such actions must be strictly followed. U.S. ex rel. Rauch v. Davis, supra. McElrath v. U.S., 102 U.S. 426,26 L.Ed., 189. Schillinger v. U.S., 155 U.S. 163; 15 S.Ct., 85;39 L.Ed., 108. Davis v. Donovan, 265 U.S. 257;44 S.Ct., 513; 68 L.Ed., 1008.

Where the congressional consent to a suit against the United States specifies the time within which suit may be brought, the provision operates as a condition of liability, and not merely as a period of limitation.U.S. ex rel. Rauch v. Davis, supra. Finn v. U.S.,123 U.S. 227; 8 S.Ct., 82; 31 L.Ed., 128. Davis v.Cohen, 268 U.S. 638; 45 S.Ct., 633; 69 L.Ed., 1129.Stanley v. Schwalby, 162 U.S. 255; 16 S.Ct., 754;40 L.Ed., 960.

Neither the Director General nor his attorneys is authorized to waive the exemption of the United States from judicial process, or to subject the United States or its property to the jurisdiction of the Court in a suit brought against its officers. Cases cited above.

In order to give the Court jurisdiction, it was necessary to name the Director General as Agent, etc, and sue the person, and not the agent or agency; "the agent, not his official title alone, must be named as defendant."U.S. ex rel. Rauch v. Davis, supra. Davis v. Cohen,268 U.S. 638; 45 S.Ct., 633; 69 L.Ed., 1129.

The plaintiff attempted to comply with this requirement by naming John Barton Payne, who had resigned as Director General almost a year before the action was commenced, and did not name James C. Davis, who was at that time Director General. The attempt to amend the complaint against Payne, served on February 27, 1922, so as to make Davis a party on October 25, 1924, nearly three years after the action had been barred by the act was void, and breathed no life into the dry bones of the valley. Chrisp v. Davis, 263 U.S. 710; 44 S.Ct., 36;68 L.Ed., 518. It follows that the United States never became a party to the action, and that no valid judgment could be entered against it, and that the judgment entered is therefore void.

In Davidson v. Payne (C.C.A.), 289 F., 69, suit was brought against Payne, Director General, as Agent, on April 21, 1921, about three weeks after Payne had vacated office, and was succeeded by Davis. The Court (C.C.A.) said:

"It is a case where John Barton Payne has been sued as such Agent after he had resigned the office, and after his successor * * * had been appointed. * * * Appellant brought suit against the wrong party, and must abide the consequences of his mistake."

See, also, Davis v. Cohen, supra.

It is clear that, the matter being jurisdictional in character, the consent of the attorneys to the verdict and judgment cannot avail the plaintiff, and it is well settled that consent cannot confer jurisdiction. Hippv. Babin, 19 How., 271; 15 L.Ed., 633. St. Louis Co. v.Niv (C.C.A.), 272 F., 977. Finn v. U.S., 123 U.S. 227;8 S.Ct., 82; 31 L.Ed., 128. De Arnaud v. U.S.,151 U.S. 483; 14 S.Ct., 374; 38 L.Ed., 244. Phillips v. R.Co., 236 U.S. 662; 35 S.Ct., 444; 59 L.Ed., 774. Tutschv. Dir. Gen., 52 Cal.App. 650; 199 P., 861. Vassau v. R.Co., 69 Mont., 305; 221 P., 1069.

The judgment of this Court is that the judgment of the Circuit Court be reversed, and that the judgment of that Court upon the verdict be cancelled by the clerk.

MR. CHIEF JUSTICE WATTS, and MESSRS. JUSTICES BLEASE and STABLER, and MR. ACTING ASSOCIATE JUSTICE PURDY, concur.