DAVIS, Agent of the President, etc., v. SLOCOMB.

263 U.S. 158 (44 S.Ct. 59, 68 L.Ed. 226)

DAVIS, Agent of the President, etc., v. SLOCOMB.

No. 530.

Decided: NotFound

Submitted on Motion to Dismiss Oct. 1, 1923.

Decided Nov. 12, 1923.

Mr. Arthur E. Griffin, of Seattle, Wash., for defendant in error.

Messrs. F. G. Dorety, of St. Paul, Minn., and Edwin C. Matthias, of Seattle, Wash., for plaintiff in error.

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Mr. Justice BRANDEIS delivered the opinion of the Court.

This suit was brought in 1921 by a citizen of Washington in a court of that state to recover, under a state statute, for death caused by the negligence of the Great Northern Railway while under federal control. The government had surrendered possession February 28, 1920. The railway, a Minnesota corporation, and James Cox Davis, as Agent designated by the President pursuant to title 2, § 206a, of Transportation Act Feb. 28, 1920, c. 91, 41 Stat. 456, were made defendants. Removal to the federal court was prayed for, and granted, on the ground of diversity of citizenship and also on the ground that the suit was one arising under the laws of the United States. The District Court ordered that the suit be dismissed as against the railway; and later entered judgment against Davis. That judgment was affirmed by the Circuit Court of Appeals and is brought here by writ of error under section 241 of the Judicial Code (Comp. St. § 1218). Respondent moves to dismiss the writ of error on the ground that under section 128 (Comp. St. § 1120) the judgment below is final.

The cause of action for a death was created by state statute. But the case is one arising under the laws of the United States; for it is only by reason of the federal law that any suit may be brought against this defendant. Sonnentheil v. Moerlein Brewing Co., 172 U. S. 401, 404, 405, 19 Sup. Ct. 233, 43 L. Ed. 492; Matter of Dunn, 212 U. S. 374, 29 Sup. Ct. 299, 53 L. Ed. 558. The amount in controversy exceeds $1,000, besides costs. The ground of removal set out in the petition is both diversity of citizenship and that the case arises under federal law. It may, therefore, be brought here under section 241 (Southern Pacific Co. v. Stewart, 245 U. S. 359, 38 Sup. Ct. 130, 62 L. Ed. 345; Id., 245 U. S. 562, 38 Sup. Ct. 203, 62 L. Ed. 472), unless the case is one of those arising under federal law in which Congress has denied the right of removal to the federal court, and/or is one of those so arising in which the judgment of the Circuit Court of Appeals has been made final. The question presented is one of construction.

The right to sue the government for injuries arising under federal control rests on section 10 of the Federal Control Act of March 21, 1918, c. 25, 40 Stat. 451 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 3115 3/4j), Missouri Pacific R. R. Co. v. Ault, 256 U. S. 554, 41 Sup. Ct. 593, 65 L. Ed. 1087. That section provides that 'actions at law * * * may be brought by and against such carriers * * * as now provided by law,' but that there shall not be 'transferred to a federal court any action * * * which * * * was not so transferable prior to the federal control.' Therefore, if, during federal control, this suit had been begun against the Director General he could not have removed it to the federal court on the ground that it is a suit arising under the laws of the United States; and, since the jurisdiction of the District Court would have rested wholly on diversity of citizenship, the judgment of the Circuit Court of Appeals would have been final. Upon the termination of federal control it was necessary to make provision for suits then pending, and also for such as might thereafter be brought based on causes of action arising during the period of operation by the government. This was done in Transportation Act 1920, by section 206, subdivisions (a), (b), (c), (d), and (f), which provide, among other things, that an agent to be designated by the President shall be substituted for the Director General in suits then pending; and that the agent shall be made the defendant in suits thereafter commenced. That act contains no provision relating to the removal of causes to the federal courts. There is no reason to suppose that Congress intended to make a change in this respect and give the right of removal in suits then pending, merely because the representative of the government was, after February 28, 1920, to be designated agent and to have limited powers, instead of being the Director General who possessed broad powers. Nor is any reason suggested why Congress should have desired to confer upon such agent larger rights of removal, or of review by this court, than had been enjoyed theretofore by the Director General. In the absence of specific provision to that effect we must assume that Congress intended to leave the law unchanged.

The only ground for removal in this case was diversity of citizenship. Hence the judgment of the Circuit Court of Appeals is final.

Writ of error dismissed.

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