Supreme Court of South Carolina, 1920

Walker v. Atlantic Coast Line Railroad

Supreme Court of South Carolina · Decided February 23, 1920 · Watts, Memminger, Charleston, Summer

102 S.E. 513; 113 S.C. 448; 1920 S.C. LEXIS 65 (South Eastern Reporter)

Counsel

Messrs. FitzSimons FitzSimons and Douglas, McKay , for appellant. Messrs. FitzSimons FitzSimons submit: This action cannot be maintained against the Atlantic Coast Line Railroad Company because the railroad was under Federal control and operation, and it was error to strike out this defense: 99 S.E. 846 . It was error to strike out paragraph 7 and Circular No. 4 of the United States Railroad Administration, as the same constituted a complete defense to this action. It is submitted that the representative of an officer of the army killed while on duty by a railroad operated by the United States in time of war can recover no greater compensation than the representative of any other officer killed in war and is limited to the compensation provided by the act of Congress through the War Risk Bureau. This precise question has recently been decided in the cases of Bryson, Admr., v. A.C.L.R. R. Co. et al. and Emma C. Swann, Admx., v. A.C.L.R. R. Co. et al., by the United States District of North Carolina. The opinion of the Court in the Castle case (99 S.E.R. 846) is conclusive of the question. We refer briefly to a few decisions upon the question of the powers of the President under the acts of Congress: 250 Fed. 42; Northern P.R.R. Co. v. North Dakota, ex rel. Langer (Advance Opinions) U.S. Supreme Court, June 2, 1919, p. 533); 143 U.S. 649 ; 56 L.Ed. 294 ; 192 U.S. 470 ; 48 L.Ed. 525 ; 254 U.S. 476 ; 58 L.Ed. 1408 , and the authorities therein cited; 244 U.S. 416 ; 61 L.Ed. 1233 ; 245 U.S. 366 ; 253 Fed. 549; 206 S.W. (Tex.) 114. Administrative or executive functions may 8 Cyc. 1018, and cases cited. Messrs. Logan Grace , for respondent, concede: That exceptions one, two and three must be sustained (99 S.E. Reporter 846), but contend that plaintiff was not remitted under Circular No. 4, exclusively to the Bureau of War Risk Insurance for compensation, and she can claim compensation from railroad defendant. For this Court to sustain the position contended for by appellant would be to hold that the Director General could deprive Mrs. Walker of property without due process of law and to deny her the equal protection of the law in violation of the Fourteenth Amendment to the Constitution of the United States. The Director General could not discriminate against men in uniform: Cooley's Principles of Constitution Law 240; 6 R.C.L., sec. 390, p. 395; 75 S.C. p. 62 . The Director General cannot make an order which Congress itself could not make as a law, and as Congress cannot deny a citizen the right of access to the Courts for the purpose of bringing and maintaining actions (6 R.C.L., sec. 272, pp. 285-286, and cases cited), then certainly the Director General would not have this right. "Among the privileges and immunities are included the right of access to Courts for the purpose of bringing and maintaining actions, and this includes the right 6 R.C.L., sec. 272, title Congressional Law, pp. 285-286, and cases cited.

Opinion of the Court

The opinion of the Court was delivered by

Mr. Justice Watts.

This is an appeal from an order of Judge Memminger striking out certain portions of appellant’s answer; said order filed June 25, 1919.

The exceptions are six in number. Exceptions 1, 2, and 3 are sustained. Respondent’s attorney concedes that they must be sustained, under Castle v. Railway Co., 99 S. E. 846, manuscript decision of this Court. The remaining exceptions make the point under the circular known as No. 4, issued by Mr. McAdoo, the Director General of Railroads. Plaintiff was remitted exclusively to the Bureau of War Risk Insurance for compensation, and cannot claim compensation from railroad defendant.

If these exceptions are sustained, it ends the case; if overruled, the case can be amended and trial'had. As the parties ask the decision of this question, we.will do so, even though the Director General is not bound thereby; he not being before the Court.

These exceptions must be overruled. Circular No. 4 never intended to apply to a case such as the one at bar, but was intended to be effective where men in uniform were killed or injured while actually traveling on railroad trains under orders of government, or while engaged in actual military duty — such as being transported from one camp- to another. It does not apply to any soldier where he was traveling as a member of the general public.

It is inconceivable that it should be attributed to the patriotic, distinguished Director General that by his circular he intended such a glaring injustice to a soldier not traveling *453 actually in railroad trains under orders of the government or while engaged in actual military duty. Such a decision would stigmatize the Director General as having made an arbitrary and unjust discrimination against a soldier, a man in uniform, as compared to a citizen. To relegate him to insurance which he carried and paid‘for would be a glaring and outrageous injustice, and neither the spirit nor words of the circulars, relied on as being issued by the Director General, warrants .any such unjust and preposterous inference.

There is absolutely no merit in appellant’s exceptions, and the order .appealed from is affirmed. *

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