ACTIONS AGAINST THE AGENT OF THE PRESIDENT UNDER THE TRANSPORTATION ACT OF 1920.

Under the above act of Congress of February 28, 1920, it is provided that Federal control of all railroads shall terminate on the 1st day of March, 1920. A fund of $200,000,000 was appropriated in addition to the balance already in the revolving fund created by the Federal Control Act, to compensate the owners of the railroads and for other purposes. The act provides that actions at law, suits in equity and proceedings in admiralty, based on causes of action arising out of the possession, use and operation by the President of the railroads under the Federal Control Act, of such a character as prior to the Federal control could have been brought against such carriers, may, after the termination of Federal control be brought against an agent designated by the President for such purpose.

Provision is made for service of process upon any agent or officer of the carrier related to the cause of action if a contract has been made with it by or through the President for the conduct of litigation arising out of Federal control. Where no contract has been made process must be served upon such agent or officers as may be designated by or through the President. On termination of Federal control the designated agent of the President is required to file in the office of the Clerk of each District Court of the United States a statement of all carriers he has made contracts with and what agents or officers shall be served in respect to the carriers with whom he does not have contracts. The act directs that final judgments rendered against the designated agent be paid out of the revolving fund. Provision is also made that pending actions shall not abate but may be prose

cuted to final judgment by substituting the designated agent of the President.

The President has designated John Barton Payne as his agent under the act. The office of Walker D. Hines as Director General of Railroads has been abolished. In no legal sense is John Barton Payne a successor of Walker D. Hines. The Transportation Act as far as actions are concerned is very similar to the Federal Control Act, and by analogy it would follow that under this act the Government again gives its consent to be sued; that plaintiff is limited to a right of action against the agent named in the act and that any judgment recovered reaches only such sources of payment as provided for in the act. If it is true that any judgment obtained against the agent of the President is collectable only out of the revolving fund, a suit filed against the agent would certainly be more in the nature of a suit in rem rather than a suit in personam. If this is the correct theory of the action some complications may be avoided by reason of the fact that one of the parties to the suit is the United States Government and further by reason that the suit is against an agent who had no connection whatever with the facts sued on. The action being in rem the Court should declare the claim established and declare that same constitutes a lien on the revolving fund. Whether the judgment declares the lien or not it is probable the courts would hold that a judgment against John Barton Payne, Agent of the President under the Transportation Act of 1920, would constitute an equitable lien on said fund and be entitled to payment in its due order irrespective of later judgments declaring specific liens.

"It is probably not too much to say that this is the most important juristic work undertaken in the United States since the adoption of the Federal Constitution. By all means let this work go on. Every state should take part in formulating uniform laws, and then in enacting them. The State Bar Associations should lend their powerful influence in their own states to make this first attempt successful. But at the best the work of the State Commission, so long as it is confined to a few disconnected subjects, however successfully the laws of the states may be harmonized on these few subjects, will be only a partial consummation of the unification of the law which the people of the country demand and will ultimately obtain. The State Commissions have begun the work in the only way in which it could be begun, but the next step is in the formulating and enacting of codes upon several topics of the law, which shall be not only the codes of the states but of the nation."

President Kibler, of the Ohio State Bar Association, speaking to the same. subject, said:

"This body of eminent men, not elected but appointed upon merit, who, without a vestige of legislative power or authority, by the sheer worth of their accomplishments as to matters of vital importance to the welfare of the whole people are, in fact, legislating for the federal good, are in a sense greater than Congress itself."

And quoting from Judge Simeon E. Baldwin:1

"The existence of the American Conference as a permanent body was one of the causes that encouraged the Netherlands to call the first Hague Conference. Its work ought to be forwarded by all who are interested in advancing the unity of American jurisprudence."

(1) 17 Harvard Law Review 403.

And speaking of the general subject, Judge Brewster of Connecticut, said:

"The argument for greater legal unity lies in the national unity, Our people today in their business, contractural and commercial relations, are one people-one, just as they are one and homogeneous in language, education, literature, and in their whole civic and social life. They are one in a unity such as never before existed in this, or any other great country. The constantly increasing interstate trade and traffic, interstate migration, and the wonderful development of the means of intercommunication, fuse and unite all interests and localities. Variance, dissonance, subdivision of the one American people, in the general laws affecting the whole people in their business and social relations cannot but produce perplexity, uncertainty and damage. Such diversity, always an annoyance, is often a nuisance. It is harmful and injudicious in the same way, in kind if not in degree, as it would be for us to have fifty different languages, or fifty different metric systems. The business man may well ask why should not the meaning and effect of a promissory note, a bill of lading, or a guaranty be as certain and definite and practically identical in all the states as the meaning of words in an American dictionary and for the same reason, the common convenience of all."

But how can the full fruition of the example and labors of this body be best attained, for as commendable and exalting as its labors and efforts are, it must be conceded that its achievements have not been commensurate with its deserts. One writer, John L. Scotts suggests that under the power vested in the federal constitution to provide for general welfare, Congress should establish a bureau of commissioners for the purpose of devising uniform laws for recommendation to the different states. This was fifteen years ago, but up to date no bureau has been established. Another proposition of similar import was presented the year previous by the late Leonard A. Jones of

(2) 25 American Law Review 832. (3) 52 Albany Law Journal 61.

Boston in an address to the Virginia State Bar Association, proposing an enactment by Congress of a statute providing for the appointment of commissioners whose duties it would be to frame codes for all the states to be submitted to the state commissioners, and after receiving the approval of the commissioners of two-thirds of the states, should then be submitted to the different legislatures for their adoption. This suggestion likewise has failed in receiving favorable action. A similar article by William L. Snyderk read before the American Bar Association in 1892 (46 Albany Law Journal, 185) contains the statement that "the reform must be secured by the voluntary action of the states." Taking the course of the entire matter, and viewing all that has been said, written and accomplished, this sentence spoken at the time of the organization of the commission it seems to me to carry with it the final word on the whole subject, for I believe it is futile to look to Congress for favorable action. While it is true the object is of importance to the people of the nation, it is the states themselves which must finally act; and this action it seems to me should be along the line of organization of a more permanent body than the present one. For, as Mr. Jones in the article referred to, says:

"It is hardly possible for state commissioners as now constituted to undertake to frame such codes as are necessarythese codes would require years of constant labor and this would be a work of vast difficulty."

Therefore, profiting by and continuing the valued example set by the present commission, and in no degree offering a criticism, I would suggest a uniform statute to be presented to the different legislatures of the states of the nation providing for the appointment of a permanent Uniform Interstate Legislative Commission of not exceeding three in each state (and possibly two would be

sufficient) who should hold their positions for life or during good behavior or at any rate for a term of considerable length and whose salary would be sufficient to attract to its service the best legal talent of that state. This commission should be required to meet for two sessions annually of sixty days each or for such further period as they might themselves elect, at such times and places as they might fix. For instance, its sessions in the winter might be held. at some southern and in the summer at some northern capital, and their duties in such sessions would be to formulate and recommend to the different state legislatures of the nation uniform codes upon all general subjects of the law, the scope being largely left to their own discretion. With the completion of each specified act it should be transmitted to the different state legislatures with the recommendation of these official commissioners accompanied by an argument for its adoption. These men from their previous training and the experience they would acquire in performing the duties. of their office, would attain the highest possible degree of proficiency in the art and science of legislation and rapidly bring order out of the chaos which now exists in our state statute laws. In addition to the great relief which would come to the social and business interests of the nation as a result of their labors, there would be an immense time salvage in every state legislature at its every session. The beneficial effects by reason thereof would be felt throughout the nation. Moreover, if uniform. statutes could be submitted for the consideration of fifty appellate courts instead of as many different statutes to as many different courts, there would naturally grow up a body of uniform construction upon these statutes and each state would thereby secure the full benefits of the labors of the courts of all the other states, rather

than merely their own, for as was said by Mr. Amasa M. Eaton, President of the Commissioners of Uniform State Laws (July, 1909):

"In the decision of cases arising under uniform laws, courts of last resort are showing a tendency to follow the decisions on the same question in other states that have adopted the same laws."

Under such a system, then, when a prospective litigant presented his case to the counsel in any state in the union, basing his right for recovery upon a uniform statute, his counsel would have at his hand a chance for its construction by forty-nine courts where in many instances today he would have but his own,

and that one oftener than otherwise would never have reached it. His counsel discovering that the statute had been passed upon by some court would advise. with more certainty than where as frequently happens today, he finds conflicting statutes with conflicting decisions. and is able to advise only upon conjecture and speculation. Should he find it construed and against his client's claims, no suit would likely be brought, or should the statute be found construed favorable, and suit brought, counsel for his adversary would doubtless speedily advise his client to compromise, and thus there would be one less case tried and one less reported case would find its way into the books. Thus, this system would get for each state the full measure of benefit of the adjudication of the courts of all other states. Furthermore, if courts in the preparation of opinions were not confronted with the eternal question of where lay the weight of authority on any proposition, the opinion which they prepare could be reduced more than onehalf their present length, for where the principles in the instant case had been passed upon by some court whose judgment and logic recommended its opinion as sound, but little more than a reference thereto would be necessary.

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tainly courts considering a statute simultaneously, on refusing to follow a previous decision by another court, might break the current of uniformity, but this is just where a permanent official commission would prove its greatest worth, for at its next session an amendment could be considered adopted, passed, and recommended to all the state legislatures harmonizing the conflict and thus uniformity be again established and maintained. Nor, in my judgment, are the virtues of this proposition exhausted in the foregoing considerations. These state commissioners should be required to attend upon each session of their own legislatures for the purpose of advising on the uniform acts recommended and of aiding in formulating and preparing laws peculiar to each state and advising the different legislators in the proper formulation of measures to the end that internal conflicts in the statutes might be avoided. Being adepts and skilled in law making, there would be no good reason for a measure to pass the legislature with a defective title or embodying more subjects than were constitutionally permitted or in any other way leave patent constitutional defects on its face, which would bring about litigation to determine its validity. Here again would be a salvage of vast proportions to the people of the state not only in the character of the laws proposed and passed, but in the time saved to the great body of law makers at their different sessions as well as to litigants and the courts. Moreover, this commission would, through its skill and experience, possess the highest possible talent which the state could command for the codification and annotation of its laws and it should stand as a permanent code commission.

So that, surveying the entire field of duties which would naturally follow the commission and the high order of service which it would be qualified to ren