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*110

FY OTHER.

(252 C. S. 109)

state court of Georgia jointly against a railLEE v. CENTRAL OF GEORGIA RY. CO. road and its engineer, and sought in a single et al.

count, which alleged concurring negligence, (Argued Jan. 16, 1920. Decided March 1, to recover damages from the company under 1920.)

the federal Employers' Liability Act (Comp.

St. $S 8657-8665), and from the individual No. 150.

defendant under the common law. Each de 1. COURTS en394(25)-JOINDER OF

fendant filed a special demurrer on the

CAUSES AND PARTIES ARE MATTERS OF STATE LAW, ground of misjoinder of causes of action and THOUGIL RIGHTS IN ISSUE ARE CREATED BY misjoinder of parties defendant. The deFEDERAL LAW.

Whether two causes of action may be joined *ururrers were overruled by the trial court in a single count, or whether two persons may

The Court of Appeals—an intermediate apbe sued in a single count, are matters of plead- pellate court to which the case went on exceping and practice, relating solely to the form of tions-certified to the Supreme Court of the the remedy, and when they arise in state courts state the question whether such joinder was the final determination of such matters ordina- permissible. It answered in the negative. rily rests with the state tribunals, even if the 147 Ga. 428, 94 S. E. 558. Thereupon the rights there being enforced are created by fed. Court of Appeals reversed the judgment of eral law.

the trial court (21 Ga. App. 558, 94 S. E. 888), 2. COURTS 394(25)—MATTERS NOMINALLY and certiorari to the Supreme Court of the

OF PROCEDURE IN STATE COURT REVIEWABLE state was refused. The plaintiff then applied ONLY WHEN IN FACT MATTERS OF SUBSTANCE. to this court for a writ of certiorari on the

It is only when matters nominally of pro- ground that he had been denied rights concedure are actually matters of substance, which affect a federal right, that the decision of the ferred by federal law, and the writ was state court becomes subject to review by the

granted. federal Supreme Court.

[1, 2] Whether two causes of action may be 3. MASTER AND

joined in a single count or whether two perSERVANT 311-FEDERAL EMPLOYERS' LIABILITY ACT DOES NOT MODI

sons may be sued in a single count are matRIGHTS OF EMPLOYÉS AGAINST EACH

ters of pleading and practice relating solely

to the form of the remedy. When they arise The federal Employers' Liability Act (Comp. in state courts the final determination of such St. &$ 8657–8665) does not modify in any re- matters ordinarily rests with the state trispect rights of employés against one another bunals, even if the rights there being enexisting at common law.

forced are created by federal law. John v. 4. Courts m394(25)-REFUSING TO PERMIT Paullin, 231 U. S. 583, 34 Sup. Ct. 178, 58 L.

JOINDER OF RAILROAD COMPANY AND EM- Ed. 381; Nevada-California-Oregon Railway PLOYÉ IN A SINGLE COUNT DENIED NO RIGHT v. Burrus, 244 U. S. 103, 37 Sup. Ct. 576, 61 L UNDER FEDERAL LAW.

Ed. 1019. This has been specifically held in The holding of a state court, that in an ac- cases arising under the federal Employers' tion under the federal Employers' Liability Act Liability Act. Minneapolis & St. Louis Rail(Comp. St. $88657–8665) plaintiff could not road Co. v. Bombolis, 241 U. S. 211, 36 Sup. sue the railroad company and its engineer Ct. 595, 60 L. Ed. 961, L. R. A. 1917A, 86, Ann. jointly in a single count, abridged no substan: Cas. 1916E, 505; Atlantic Coast Line Railtive right under the federal law, especially where the state court had adopted the same

road Co. v. Mims, 242 U. S. 532, 37 Sup. Ct. rule in an action under the state Employers' 188, 61 L. Ed. 476; Louisville & Nashville Liability Act.

Railroad Co. v. Holloway, 246 U. S. 525, 38

Sup. Ct. 379, 62 L Ed. 867. It is only when On Writ of Certiorari to the Court of Apmatters nominally of procedure are actually peals of the State of Georgia.

matters of substance which affect a federal Action by B. C. Lee against the Central right, that the decision of the state court of Georgia Railway Company and another. therein becomes subject to review by this A judgment overruling demurrers to the peti- court. Central Vermont Railway Co. v. tion was reversed by the Georgia Court of White, 238 U. S. 507, 35 Sup. Ct. 865, 59 L. Appeals (21 Ga. App. 558, 94 S. E. 888), and Ed. 1433, Ann. Cas. 1916B, 252; New Orleans plaintiff brings certiorari. Affirmed.

& North Eastern Railroad Co. v. Harris, 217

U. S. 367, 38 Sup. Ct. 535, 62 L. Ed. 1167. Messrs. Alexander A. Lawrence and Wil. liam W. Osborne, both of Savannah, Ga., for does not modify in any respect rights of em

[3, 4] The federal Employers' Liability Act petitioner. Messrs. H. W. Johnson and T. M. Cunning- mon law. To deny to a plaintiff the right to

ployés against one another existing at comham, Jr., both of Savannah, Ga., for re- join in one count a cause against another emspondents.

ployé with a cause of action against the em

ployer in no way abridges any substantive Mr. Justice BRANDEIS delivered the opinion of the Court.

right of the plaintiff against the *employer. An injured employé brought an action in a The argument that plaintiff has been discrim

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*111

REVIEW.

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(40 Sup.Ct.) inated against because he is an interstate cial Code, $ 237, as amended by Act Sept, 6, 1916, employć is answered, if answer be necessary, c. 448 (Comp. St. § 1214), since an objection to by the fact that the Supreme Court of Geor- an exercise of authority under a statute, whose gia had applied the same rule in Western & validity is not attacked, is not sufficient. Atlantic R. R. et al. v. Smith, 144 Ga. 737, 87 2. COURTS m396(0)-FEDERAL QUESTION S. E. 1082 (22 Ga. App. 437, 96 S. E. 230),

RAISED ON REHEARING, .WILL NOT WARRANT where it refused under the state Employers' Liability Act (Civ. Code 1910, $ 2782 et seq.) A federal question, raised in a state court to permit the plaintiff to join with the em- by a petition for rehearing, will not support ployer another railroad whose concurrent proceedings in error in the federal Supreme negligence was alleged to have contributed Court, where no opinion was written on such in producing the injury complained of.

If motion, the Supreme Court of Georgia had in this case permitted the joinder, we might have

In Error to the Court of Appeals of the been required to determine whether, in view State of Kentucky. of the practice prevailing in Georgia, such

Suit by the City of Carrollton against the decision would not impair the employer's op- Jett Bros. Distilling Company. A judgment portunity to make the defenses to which it is for plaintiff was affirmed by the Kentucky entitled by the federal law. For, as stated by Court of Appeals (178 Ky. 561, 199 S. W. 37), its Supreme Court in this case (147 Ga. 428, and defendant brings error. Writ of error 431, 94 S. E. 553, 560):

dismissed. "If the carrier and its engineer were jointly liable under the conditions stated in the second Mr. Helm Bruce, of Louisville, Ky., for question, a joint judgment would result against plaintiff in error. them, and they would be equally bound, re- Mr. A. E. Stricklett, of Covington, Ky., for gardless of the fact that the duties imposed defendant in error. upon them are not the same. The jury would have no power in such a case to specify the particular damages to be recovered of each, *Mr. Justice DAY delivered the opinion of since Civil Code, 8 4512 [providing for verdicts the Court. in different amounts against the several defend

The city of Carrollton brought suit against ants), is not applicable to personal torts."

Jett Bros. Distilling Company to recover balBut we have no occasion to consider this ances alleged to be due as taxes upon disquestion. Refusal to permit the joinder didtilled spirits belonging to the company held not deny any right of plaintiff conferred by in a bonded warehouse in that city. The federal law. Cases upon which petitioner taxes sued for were those for the years 1907 most strongly relies (Southern Railway Co. to 1916, inclusive. It appears that during v. Carson, 194 U. S. 136, 24 Sup. Ct. 609, 48 L. those years the city assessor undertook to asEd. 907; Alabama Great Southern Railway sess for taxation the distilled spirits in the Co. v. Thompson, 200 U. S. 206, 26 Sup. Ct. bonded warehouse and the city taxes were 161, 50 L Ed. 441, 4 Ann. Cas. 1147; South- paid as thus assessed. This suit was brought ern Railway Co. v. Miller, 217 U. S. 209, 30 to recover taxes for the above-mentioned Sup. Ct. 450, 54 L. Ed. 732) are inapplicable years upon the theory that during that perito the situation at bar.

od the spirits should have been valued by the Affirmed.

state board of valuation and assessment as provided by the statutes of Kentucky. Ky.

St. 88 4105, 4114. It was alleged that the (252 U. S. 1) JETT BROS. DISTILLING CO. v. CITY OF valuation by the city assessor was without

authority of law, by mistake, and for a much CARROLLTON.

less sum than that fixed for each of said (Argued Dec. 19, 1919. Decided March 1, years by the state board. It was also alleg1920.)

ed that the company had notice of the valua

tion fixed by the state board; that the city No. 108.

was without authority to assess 1. COURTS 394(18)-CLAIM OF DISCRIMINA- spirits in bonded warehouses; that the value TION IN ASSESSMENT FOR TAXATION WILL fixed by him was an inconsiderable sum, and NOT SUPPORT WRIT OF ERROR TO STATE COURT. much less than that fixed by the state board

The claim of a distilling company that it in accordance with the Kentucky Statutes. was discriminated against, because distilled The Distilling Company took issue upon the spirits were assessed for taxation at 100 per petition. It pleaded the original levies for cent. of their fair cash value, while other prop- the years in question and the payment of the erty was assessed at 30 or 40 per cent. of its value, did not draw in question the validity of taxes for each and all of the said years. It a statute or authority exercised under a state, pleaded that the whisky which it was sought on the ground of repugnancy to the Constitu- to tax under the new levy of 1915–1916 had · tion, etc., of the United States, so as to support been removed from the bonded warehouse of & writ of error to a state court, under Judi- the company, and was no longer its proper

assessor

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*6

ty, and that it could no longer protect itself | (Comp. St. § 1214), became effective, that act as it could have done had the tax been levied must determine the right to have a review in while the spirits were in its possession. this court. *In the nineteenth paragraph of the answer it is because there was drawn in question the

If the case can come here by writ of error, a defense was set up upon a ground of feder- validity of a statute, or authority, exercised al right under the Constitution. It was aver | under the state on the ground of their being red that during all the years covered by the amended petition it had been the rule, cus-ties of the United States. Before the peti

repugnant to the Constitution, laws, or treatom, habit, practice and system in the city of tion for rehearing the contentions based upon Carrollton to assess and cause to be assessed constitutional grounds, by the plaintiff in erthe real estate therein at an average of not more than 40 per cent. of its fair cash val- ror, were those embraced in the nineteenth ue, and to assess and cause to be assessed referred, and such as were deemed to be be

paragraph of the answer, to which we have personal property in that city at an average fore the Court of Appeals of Kentucky in the of not more than 30 per cent of its fair cash portion of the opinion from which we have value; that the assessment made by the state board upon which taxes were sought to of the Court of Appeals shows that any claim

quoted. Neither the answer nor the opinion be recovered was made at 100 per cent. of the fair cash value of the whisky, and that sailing the validity of a statute of the state,

under the federal Constitution was made asthe attempt of the plaintiff to collect the

or of an authority exercised under the state, same, was in violation of the defendant's rights under the Constitution of the state of on the ground of repugnancy to the federal

Constitution. The answer, in the nineteenth Kentucky and the Fourteenth Amendment of

paragraph, set up discrimination because of the Constitution of the United States.

different valuations of the property of others, The circuit court gave judgment in favor of the city for the amounts claimed under the claimed to violate *rights secured by the new levy of 1916, giving credit for the Fourteenth Amendment to the Constitution of amounts paid under the original levies for the United States. The opinion of the Court the preceding years. The company appealed of Appeals likewise discussed the discrimina'to the Court of Appeals of Kentucky, where tory action alleged by the plaintiff in error. the judgment of the circuit court was affirm- Drawing in question the validity of a stated. 178 Ky. 561, 199 S. W. 37. There was ute or authority as the basis of appellate reno other reference to the federal Constitution view has long been a subject of regulation in than that contained in the answer, so far as statutes of the United States, as we had ocwe have been able to discover, and the Court casion to point out in Champion Lumber Co. of Appeals dealt with the federal question, v. Fisher, 227 U. S. 445, 450, 451, 33 Sup. Ct. deemed to be before it, as follows (178 Ky. | 329, 57 L. Ed. 591. What is meant by the 566, 199 S. W. 39):

validity of a statute or authority was dis"It is further asserted that the recent cases cussed by this court in Baltimore & Potomac of Green v. Louisville & Interurban Railway Railroad Co. v. Hopkins, 130 U. S. 210, 9 Sup. Company and Green v. Louisville Railway Com- Ct. 503, 32 L. Ed. 908, in which this court, pany, decided by the Supreme Court of the speaking by Mr. Chief Justice Fuller, said: United States and reported in 37 Supreme Court

“Whenever the power to enact a statute as Reports, 673, uproot the contention that the it is by its terms, or is made to read by conact is constitutional, and hold that the state board of valuation, and the city assessor and struction, is fairly open to denial and denied,

the validity of such statute is drawn in quesboard of supervisors, acting independently of

tion, but not otherwise.” cach other, and fixing different valuations *of

And the Chief Justice added, upon the authe same property, work a discrimination, inimical both to the federal and state constitutions. thority of Millingar v. Hartupee, 6 Wall. 258, In this, however, appellant is in error. It 261, 262, 18 L. Ed. 829, that the word "aumust be borne in mind that complaint is only thority” stands upon the same footing. made of the assessment. The warehouseman In order to give this court jurisdiction by had his remedy, in case of an excessive or un- writ of error under amended section 237, Jufair valuation, by appearing before the board of dicial Code, it is the validity of the statute valuation and assessment at the time he re

or authority which must be drawn in quesreceived notice of the valuation fixed, and there tion. The mere objection to an exercise of make complaint as provided in section 4107, Kentucky Statutes. This appellant failed to do authority under a statute, whose validity is but acquiesced in the assessment by paying not attacked, cannot be made the basis of a taxes both to the county and state on the valua- writ of error from this court. There must be tion fixed by the state board. This being true, a substantial challenge of the validity of the it cannot be heard to complain now."

statute or authority upon a claim that it is

repugnant to the federal Constitution, trea[1] The case is brought here by the allow- ties, or laws, so as to require the state court ance of a writ of error. As the judgment to decide the question of validity in disposwas rendered after the Act of September 6, ing of the contention. Champion Lumber Co. 1916, C. 448, 39 Stat. 726, Judicial Code, & 237 'v. Fisher, 227 U. S. supra and cases cited.

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(40 Sup.Ct.) [2] In the present case no such claim of the

• 148

*Messrs. Alexander Britton and Evans invalidity of a state statute or authority was raised in a manner requiring the court below Browne, both of Washington, D. C., for ap

pellant. to pass upon the question in disposing of the

Mr. Assistant Attorney General Spellacy, rights asserted. As we have said, whatever the effect of a petition for rehearing, it came

for the United States

.. too late *to make the overruling of it, in the Mr. Justice CLARKE delivered the opin. absence of an opinion, the basis of review by ion of the Court. writ of error. It follows that the allowance The appellant, in its petition, alleges: That of the writ of error in the present case did in June, 1906, it entered into contracts with not rest upon a decision in which was drawn the Post Office Department to transport the in question the validity of a statute of the mails over three designated routes “upon the state or any authority exercised under it be- conditions prescribed by law and the regucause of repugnancy to the federal Constitu- lations of the Department applicable to railtion, and the writ of error must be dismiss road mail service"; that during the fiscal ed; and it is so ordered.

year 1907 (the petition was not filed until Dismissed.

December 19, 1912) the Department withheld from its stipulated pay $3,355.48, “as a penalty imposed on account of late arrivals

of trains, and failure to perform (252 U. S. 147)

service on the

mail routes"; and KANSAS CITY SOUTHERN RY. CO. v. that such deductions were "unlawfully withUNITED STATES.

held.” The prayer was for judgment for (Submitted Jan. 19, 1920. Decided. March 1,

the full amount of the deductions, which are 1920.)

also designated in the record as fines or pen

alties. The petition was dismissed by the No. 154.

Court of Claims. 1. PosT OFFICE Om 21(4)-FAILURE TO IMPOSE

The appellant acquiesced in the deducFINES FOR DELAYS IN CARRYING MAILS NOT A

tions when they were made, accepted the reCONSTRUCTION OF THE STATUTE PREVENTING duced compensation without protest or obTHEIR IMPOSITION.

jection, except in one instance, when the The failure of the Postmaster General for item complained of was adjusted to its satismany years to impose fines or deductions for faction, and continued to perform the condelays of less than 24 hours in the arrival of mail trains at their destination was not a con

tracts to the end of their *four-year periods struction by the Department of Rev. St. $$ without complaint as to the reasonableness 3962 and 4002 (Comp. St. $8 7450, 7483), pre- of the deductions involved. And thus it venting such deductions, especially where becomes admitting that it freely entered into the fore a contract to carry the mails was made contracts, fully performed them and accepted the Departme had announced that deductions would be made for delays of 15 minutes or more, ment for deductions which it avers were

pay for such performance, but asking judgand also in view of Act June 26, 1906, as to finding railroads for failure to comply with their "unlawfully withheld” more than five years contracts respecting the time of arrival and before the petition was filed. departure of mails.

The contracts were of the type, familiar

in many reported cases, evidenced by "dis 2. POST OFFICE Om 21(4)-POSTMASTER GENER

tance circulars," orders establishing the AL AUTHORIZED TO IMPOSE FINES FOR DE

routes, specific agreements on the part of LAY IN ARRIVAL OF MAIL TRAINS. Under a contract to carry the mails upon service "upon the conditions prescribed by

the contractor that it would perform the the conditions prescribed by law and the regulations of the Post Office Department and pro- law and the regulations of the Department viding that the adjustment should be subject to applicable to railroad service" and that the future orders and to fines and deductions, and "adjustment” should be “subject to future under Rev. St. $$ 3962 and 4002 (Comp. St. orders and to fines and deductions." 88 7450, 7483) and Act June 26, 1906, as to de- Among the applicable "conditions preductions, and fines, the Postmaster General had scribed by law” were: R. S. 3962 (Comp. St. authority to make deductions from a compa- $ 7450), that the Postmaster General might ny's compensation for carrying mails on

"make deductions from the pay of contraccount of late arrivals of trains, and was not limited to delays of 24 hours in such arrival.

tors, for failure to perform service accord

ing to contract, and impose fines upon them Appeal from the Court of Claims.

for other delinquencies”; R. S. 4002 (Comp.

St. § 7483), authorizing contracts for the conClaim by the Kansas City Southern Rail- | veyance of the mails "with due frequency way Company against the United States. and speed"; and the act of June 26, 1906 The petition was dismissed (53 Ct. Cl. 630), (34 Stat. 467, 472), commanding the Postand the claimant appeals. Affirmed.

master General to require all railroads car

149

ac

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
40 SUP.CT.-17

rying mail to comply with the terms of their | railroads to comply with the terms of their contracts "as to time of arrival and depar-contracts with respect to the time of arrival ture of mails" and "to impose and collect and departure of mails. This act was rereasonable fines for delay" when not caused pealed in the following year, but the subby unavoidable accidents or conditions. stance of it was immediately re-enacted in

It is conceded by the appellant that the a more adaptable form. Postmaster General had authority under R. Thus the appellant had notice before it S. 3962, to make deductions from the pay

•151 when a “trip was not performed” within 24 made the con*tracts under discussion that hours of the stipulated time for performance. failure to maintain train schedules was re But it is contended that he had no authority garded by Congress and the Department as to make deductions or impose fines for short- a violation of mail-carrying contracts, justier delays, and this is the sole question upon fying the imposition of fines or deductions, which this appeal is pursued into this court. and that both believed there was authority

under the customary contracts and the law to • 150 *It is argued for the appellant: That pow- impose such deductions. The act of June 26, er to make the disputed deductions must be 1906, was not a grant of new power to the found, if at all, in the provision of R. S. Postmaster General to impose such fines or 3962,, that the Postmaster General may deductions, but was an imperative direction “make deductions from the pay of contrac- to him to exercise the power which, it as tors for failure to perform service accord- sumes, he already had for that purpose. ing to contract, and impose fines upon them This action of Congress and of the Departfor other delinquencies”; that when the ment is sufficient answer to the claim, if it contracts were made long departmental con- were otherwise sound, that failure to exerstruction had limited the failure to perform cise the power to impose fines for such a service, described in the act, to 24 hours of cause amounted to a departmental declaradelay in the arrival of trains; and that fail- tion that no such power existed. ure, from 1872, when the section was enact- [2] But the contention is not sound, Failed, to 1907, to impose fines or deductions for ure, within moderate limits, to maintain shorter delays, amounted to a construction train schedules, may well have been regardby the Department that authority to impose ed by the Postmaster General as a necessary fines upon contractors for delinquencies did evil to be tolerated and not to call for the not warrant deductions for failure to main-exercise of his power to impose fines under tain train schedules when the delay was less the statute, when more flagrant neglect to than 24 hours.

maintain such schedules might very justly [1] We need consider only this last con- require him to exercise such authority in ortention, and in reply it is pointed out that der to prevent intolerable public inconven. the findings of fact show: That the amount ience. We cannot doubt that the contracts of and rates of compensation were determined the appellant, and the law which was a part by the Department for the various routes be- of them, furnished ample authority for the tween the 10th and 26th of September, 1906, action of the Department in this case and though effective as of the 1st day of the pre- that omission to exercise such power did not ceding July; that in October, 1905, the Post- make against the proper use of it when, in master General, “on account of the failure to the judgment of the Postmaster General, observe schedules on routes or parts of adequate occasion for its use should arise. routes," issued an order that deductions We need not pursue the subject further. should be made, in sums stated, after De- The principles involved are adequately and cember 31, 1905, when trains arrived at ter- admirably discussed by the Court of Claims mini or junction points 15 or more minutes in its opinion rendered in the case of Louislate, a designated number of times in a quar- ville & Nashville R. R. Co. v. United States, ter; and that the act of Congress approved 53 Ct. Cl. 238, upon authority of which this June 26, 1906, referred to, declared it to be case was decided. the duty of the Postmaster General to impose The judgment of the Court of Claims is and collect reasonable ines for failure of affirmed.

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