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Opinion of the Court.

268 U.S.

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Plaintiff's right to file his claim with the commission had expired several months before the passage of the Transportation Act. But, if the period of federal control is to be excluded, the complaint was filed within time. During the period between such expiration and the passage of the Transportation Act, plaintiff had no right to file a claim with the commission and had no cause of action. It is settled by the decisions of this court that the lapse of time not only barred the remedy but also destroyed the liability of defendant to plaintiff. Phillips v. Grand Trunk Ry., 236 U. S. 662, 666; Louisville Cement Co. v. Interstate Commerce Commission, 246 U. S. 638, 642; Kansas City Southern Ry. v. Wolf, 261 U. S. 133, 139. On the expiration of the two-year period, it was as if liability had never existed. And this court applying the rule of construction that all statutes are to be considered prospective unless the language is express to the contrary or there is a necessary implication to that effect, recently has held that ş 206 (f) does not apply to causes of action which were barred by a state statute of limitations before the passage of the Transportation Act. Fullerton Company v. Northern Pacific, 266 U. S. 435, 437.

Plaintiff suggests that the only period of limitations applicable to claims for reparation is that prescribed by § 16 (3), and argues that, as the period of federal control exceeded two years, $ 206 (f) must be construed retrospectively or given no effect.

We need not re-examine the doctrine of Campbell v. Holt, 115 U. S. 620, as it is plain that case does not apply. That was an action on a contract for the recovery of money. By a state statute of limitations, the right of action had been barred. The statute was repealed before the action was commenced. It was held that the action could be maintained and that such repeal did not deprive the debtor of his property without due process of law in violation of the Fourteenth Amendment. The decision

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rests on the conception that the obligation of the debtor to pay was not destroyed by lapse of time, and that the statute of limitations related to the remedy only, and that the removal of the bar was not unconstitutional. The opinion distinguishes the case from suits to recover real and personal property. That case belonged to the class where statutory provisions fixing the time within which suits must be brought to enforce an existing cause of action are held to apply to the remedy only. But such provisions sometimes constitute a part of the definition of a cause of action created by the same or another provision, and operate as a limitation upon liability. Such, for example, are statutory causes of action for death by wrongful act; The Harrisburg, 119 U. S. 199, 214; and those arising under the Federal Employers' Liability Act, c. 149, 35 Stat. 65. Central Vermont Ry. v. White, 238 U. S. 507, 511; Atlantic Coast Line R. R. v. Burnette, 239 U. S. 199, 201; Kannellos v. Great Northern Ry. Co., 151 Minn. 157, 160; Jones v. D. L. & W. R. R. Co., 96 N. J. L. 197. See also Daris v. Mills, 194 U. S. 451, 454. This case belongs to the latter class. Section 206 (f) will not be construed retroactively to create liability. To give it that effect would be to deprive defendant of its property without due process of law in contravention of the Fifth Amendment. Cf. Levy v. Wardell, 258 U. S. 542, 544; Forbes Boat Line v. Board of Commissioners, 258 U. S. 338, 340; Union Pacific R. R. v. Laramie Stock Yards, 231 U. S. 190, 200; Winfree v. Northern Pacific Ry. Co., 227 U. S. 296, 301.

Judgment affirmed.

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DAVIS, AGENT, v. L. L. COHEN & COMPANY, INC.

ERROR TO THE SUPERIOR COURT OF BRISTOL COUNTY, STATE

OF MASSACHUSETTS.

No. 331. Argued April 21, 1925.—Decided June 8, 1925.

1. A judgment entered in the Superior Court in Massachusetts in

accordance with a rescript from the Supreme Judicial Court on exceptions reserved, held reviewable on writ of error directed to

the Superior Court. P. 639. 2. The cause of action for damage to goods in transport over a rail

road under federal control was against the Director General of

Railroads exclusively. P. 640. 3. When such an action was erroneously brought against the railroad

company, it could not be treated as an action against the Director General; and service of process did not bring 'him into court though made on an agent of the company who might have been

properly served in an action against the Director General. Id. 4. Where such an action against a railroad company was pending at

the termination of federal control, held, (a), that substitution, as defendant, of the Agent appointed by the President under the Transportation Act, 1920, is not permissible under $ 206(d) thereof, which relates only to suits previously brought against the Director General; (b), that such substitution is in effect the commencement of a new action, and a state statute construed as allowing this by amendment later than two years from the date of the Transportation Act is repugnant to the time limitation in

§ 206(a) of that Act and void. P. 642. 247 Mass, 259, reversed.

ERROR to a judgment entered in a Superior Court of Massachusetts upon a rescript from the Supreme Judicial Court, in an action for damages, begun against a railroad company, in which the Agent appointed by the President under the Transportation Act was substituted as party defendant.

Mr. Arthur W. Blackman for plaintiff in error.

Mr. Louis Swig for defendant in error.

638

Opinion of the Court.

a

MR. JUSTICE SANFORD delivered the opinion of the Court.

This writ of error is brought to review a judgment in favor of Cohen & Co., entered in the Superior Court of Bristol County, Massachusetts, against James C. Davis, as Agent designated by the President under the Transportation Act, 1920. After a verdict had been rendered, but before entry of judgment, the case was reported by the Superior Court to the Supreme Judicial Court for instructions upon exceptions that had been reserved by both parties; and thereafter, in accordance with a rescript from the Supreme Judicial Court (247 Mass. 259), the judgment in question was entered in the Superior Court. Under the Massachusetts practice that was followed, the judgment is to be regarded as the final decision of the highest court of the State in which a decision could be had; and the writ of error was therefore properly directed to the Superior Court. McGuire v. Commonwealth, 3 Wall. 382, 386. And see Joslin Co. v. Providence, 262 U. S. 668, 673.

A petition for certiorari has also been filed, but as the case is properly here on writ of error, that petition is denied.

The sole question here presented is whether the provisions of the Massachusetts General Laws, c. 231, SS 51, 138, authorizing amendments in any process, pleading, or proceeding at any time before final judgment, as construed and applied in this case, are invalid because of repugnancy to $ 206 of the Transportation Act.

The suit was brought by Cohen & Co., in January, 1920, against the New York, New Haven & Hartford Railroad Co., to recover for damages to a carload of scrap iron shipped over the railroad in 1918, when it was under Federal Control. While the Railroad Company was described

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1 Act of Feb. 28, 1920, c. 91, 41 Stat. 456.

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in the writ as a corporation “operated and controlled by the United States Railroad Administration," the writ was directed to, and served upon, the Railroad Company alone, and the declaration was filed against it alone; no effort being then made to sue the Director General. The Railroad Company appeared and filed an answer denying the allegations of the declaration.

No further proceedings were had until September, 1922, when on the ex parte motion of the plaintiff, the writ and declaration were amended by striking out the name of the Railroad Company, and substituting the name of James C. Davis, Agent, and the Director General of Railroads, as the party defendant. An order of notice was then served upon Davis, who appeared specially, and moved that such service be set aside and the action against him dismissed, on the grounds that the service was void and the court was without jurisdiction to entertain the action against him, because the proceeding against him had not been instituted within the time prescribed by $ 206 of the Transportation Act; and that any provisions of the Massachusetts laws purporting to authorize such proceeding were repugnant to the Transportation Act and void. This motion was denied, and Davis was required to answer. The case, in which, at every stage, he preserved his original objections, finally resulted in the judgment against him which it is now sought to review.

Our conclusions may be briefly stated. The Railroad Company was not liable for the cause of action that had arisen during Federal Control; the sole liability being that of the Director General as the representative of the Government. Missouri Pacific Railroad v. Ault, 256 U. S. 554, 557. The original suit against the Railroad Company was not a suit against the Director General, and the service of the original writ upon the Railroad Company did not bring him before the court. While originally, after the passage of the Federal Control Act, it was sometimes

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