#### J. L. HILL, Administrator of R. B. HILL, Deceased, v. SEABOARD AIR LINE RAILWAY COMPANY and WALKER D. HINES, Director General of Railroads.

(Filed 24 November, 1920.)

1. War — Railroads—Powers—State Government — National Government.

The authority, where war exists, to exercise all those extreme sovereign ' powers under the rule of war, recognized by the civilized world, is vested in Congress by the Constitution of the United States, with all means, not prohibited, that are appropriate to that end; and where it, legally exercised, comes in conflict with a State regulation, the power of the National Government is paramount.

3. Same — Courts—Conflict of Powers.

It is within the peculiar province of the courts to see that the Federal and State Governments, in their original dual form, each exercise the *429powers and duties solely apportioned to it, so that the one will not interfere with the other where it is supreme, and the courts, wherever possible, will adopt a rule of construction which will prevent conflict between National and State authority.

3. War — Railroads—Powers—Federal Government — State Government— Statutes — Venue—Orders of Director General.

The act of Congress placing common carriers under the control of the United States Government as a war measure, by providing that “actions at law or suits in equity may be brought by and against such carrier and judgments rendered as now provided by law; and in any action at law or suit in equity against the carrier-no defense be made thereto upon the ground that the carrier is an instrumentality or agency of the Federal Government,” does not conflict with our State statute as to venue in a civil action against the carrier, Rev., 424; and if the orders of the Director General, Nos. 18 and 18a, requiring all suits or actions against carriers to be brought in the county or district of the plaintiff’s residence are not authorized by the act of Congress, they are void as in contravention of the State law.

Appeal by defendants from Finley, J., at January, 1920, Criminal Term, of UNION, by consent.

Tbis is an action to recover damages for wrongful death, caused, as alleged, by the negligence of the defendants, the Seaboard Air Line Railway Company, and Hines, Director General.

Tbe plaintiff was appointed administrator in Richmond County, where the intestate lived; the death occurred in Anson County, and this action was instituted in Union County.

The defendants moved that the action be removed to Richmond or Anson for trial, relying principally on the following order of the Director General, known as Order 18, as amended by Order 18-a:

“It is, therefore, ordered that all suits against carriers while under Federal control must be brought in the county or district where the plaintiff resides, at the time of the accrual of the cause of action, or in the county or district wherein the cause of action arose.”

The motion was denied, and the defendants excepted and appealed.

Stacie, Parleer & Graig for plaintiff.

Cansler & Cansler and Armfield & Vann for defendant.

AlleN, J.

It is conceded that this action is properly instituted in the county of Union under section 424 of the Revisal, which permits actions against railroads to be brought in “some county adjoining the county in which the cause of action arose,” a statute enacted at the instance of the railroads and for their convenience, unless the statute is superseded by Order 18, as amended by Order 18-a of the Director General, above set out.

*430As said in North Pac. Ry. Co. v. North Dakota, 250 U. S., 135: “Tbe complete and undivided character of tbe war power of tbe United States is not disputable,” and “When war exists tbe Government possesses and may exercise all those extreme powers which any sovereignty can wield under the rules of war recognized by the civilized world.” Cooley Constitutional Law, 89.

The power is, however, vested in Congress by the Constitution, which alone has power to declare war and to provide for its prosecution; all agencies act under its authority, and if there is a conflict between a State regulation and congressional authority, legally exercised, the power of the National Government is paramount. North Pac. Ry. Co. v. North Dakota, supra.

It is also true that what was said by Chief Justice Marshall, in McCullough v. Maryland, 4 Wheat., 316, is applicable to the different powers of government.

> “Let the end be legitimate. Let it be within the scope of the Constitution, and all means which are appropriate which are adapted to that end, which are not prohibited, but consist with the' letter and spirit of the Constitution, are constitutional.”

These principles must, however, be considered in connection with our form of government.

“We have in this republic a dual system of government — National and State — each operating within the same territory and upon the same persons, and yet working without collision, because their functions are different. There are certain matters over which the National Government has absolute control, and no action of the State can interfere therewith, and there are others in which the State is supreme, and in respect to them the National Government is powerless. To preserve the even balance between these two governments, and hold each in its separate sphere, is the peculiar duty of all courts. ... In other words, the two governments — National and State — are each to exercise their powers so as not to interfere with the free and full exercise by the other of its powers.” South Carolina v. U. S., 199 U. S., 110.

Let us then consider the order of the Director General, remembering that it is the duty of the courts to adopt a rule of construction which will prevent conflict between National and State authority, if possible, and that the Director General derives his power from the acts of Congress.

The order requires actions to be brought “in the county or district where the plaintiff resides at the time of the accrual of the action, or in the county or district where the cause of action arose,” and while the Director General probably had in mind Federal Districts, it does no violence to the spirit and purpose of the order, which was to avoid *431expense and tbe annoyance and inconvenience of having witnesses and parties carried to distant places, to bold that judicial districts are included, and if so, tbe counties of Eiehmond, Anson, and Union, being in tbe same judicial district, tbe action bas been brought in tbe “district where tbe plaintiff resides,” and in tbe “district wherein tbe cause of action arose.” .

But, however this may be, tbe act of Congress, after placing carriers under Federal Control, expressly provides that “Actions at law on suits in equity may be brought by and against such carriers, and judgments rendered as now provided by law; and in any action at law or suit in equity against tbe carrier, no defense be made thereto upon tbe ground that tbe carrier is an instrumentality or agency of tbe Federal Government,” and tbe action bas been brought as was provided by law when tbe act of Congress was adopted, and tbe statute of tbe State cannot be set aside by tbe order of tbe Director General not in accord with congressional action.

There are very few authorities dealing with tbe question, but two of those relied on by the plaintiff are directly in point, Friesen v. R. R., 254 F., 875; R. R. v. Lovick, 210 (Tex.) S. W., 283.

In tbe first it was held that “Under act of 21 March, 1918, paragraphs 8, 10, and despite section 9, held that orders of tbe Director General of Eailroads, through whom tbe President assumed control of tbe railroads pursuant to act 29 August, 1916 (Comp. St., 1916, paragraph 197-a), that suits against carriers while under Federal control should be brought in tbe county or district where tbe plaintiff resided at tbe time of tbe accrual of tbe action, were not effective to so limit that right, and where authorized by State law, a plaintiff might sue in a district other than that in which be resided at tbe time of accrual of tbe action, upon a cause of action not arising out of tbe railway company’s duties as a common carrier,” and in tbe other: “Orders No. 18 and 18-a of tbe Director General of Eailroads, dated 9 and 18 April, 1918, in so far as they require all suits against carriers under Federal control to be brought in county of district where plaintiff resides or resided at tbe time of tbe accrual of tbe cause or in tbe county or district where tbe cause arose, is inconsistent with and contrary to this section, providing ‘actions at law or suits in equity may be brought by and against such carriers and judgments rendered as now provided by law.’ ”

In Wainwright v. R. R., 153 F., 461, on which the defendant relies, tbe Court declines to pass on tbe power to regulate actions in tbe State courts, which is tbe question before us.

In our opinion there is no error.

Affirmed.