of the Interstate Commerce Commission. Necessarily, the Department may not be on both sides of the case. Yet an examination of the petition filed by the United States, and of the answer filed in its behalf, indicates that both pleadings were signed by the same Assistant Attorney General.
No person may sue himself, Lord v. Veazie, 8 How. 251, 12 L. Ed. 1067; Cleveland v. Chamberlain, 1 Black 419, 66 U.S. 419, 17 L. Ed. 93; Wood-Paper Co. v. Heft, 8 Wall. 333, 19 L. Ed. 379. This principle is applicable to the United States. The Government may not sue itself. This is true even if the nominal plaintiff is a party who is subrogated to the rights of the Government Globe & Rutgers Fire Ins. Co. v. Hines, 2 Cir., 273 F. 774, 777; Defense Supplies Corporation v. United States Lines Co., 2 Cir., 148 F.2d 311.
In Globe & Rutgers Fire Ins. Co., v. Hines, supra, the court stated, 273 F.page 777: 'It is elementary that the same person cannot be both plaintiff and defendant at the same time in the same action. It is incongruous that the same person should direct and conduct both the prosecution and the defense of the same suit, no matter in what capacity he may appear.'
It may be observed in this connection, that the United States of America always acts in a sovereign capacity. It does not have separate governmental and proprietary capacities, Graves v. People of State of New York ex rel. O'Keefe, 306 U.S. 466, 477, 59 S. Ct. 595, 83 L. Ed. 927, 120 A.L.R. 1466.
The foregoing rules are but applications of the general doctrine that Federal courts may deal only with actual cases and controversies, Muskrat v. United States, 219 U.S. 346, 31 S. Ct. 250, 55 L. Ed. 246; Aetna Life Ins. Co. of Hartford, Conn., v. Haworth, 300 U.S. 227, 239-241, 57 S. Ct. 461, 81 L. Ed. 617, 108 A.L.R. 1000. Naturally there cannot be a controversy if the same party is both plaintiff and defendant. If attorneys representing the Department of Justice appear on both sides of the same case, there is no actual controversy, but merely a discussion or debate of a moot question.
It is the view of this court, therefore, that this action may not be maintained, as the United States of America is both plaintiff and defendant. This conclusion is accentuated by the fact that it is the duty of the Department of Justice under the statute to defend the action of the Interstate Commerce Commission.
The cases on which the Government relies are not in point. In Interstate Commerce Commission v. Mechling, 330 U.S. 567, 573, 67 S. Ct. 894, 91 L. Ed. 1102, the plaintiffs in the action brought before the three-judge court were A. L. Mechling, a water carrier, the Inland Waterways Corporation, and the Secretary of Agriculture. The latter was authorized by a specific statutory provision to seek judicial relief with respect to rates and charges for the transportation of farm products. Consequently, it was not a case in which the United States was both plaintiff and defendant.
In United States v. Public Utilities Commission, 80 U.S.App.D.C. 227, 151 F.2d 609, a direct appeal was taken from an order of an administrative agency. This case, too, did not involve a situation in which the same party, the United States of America, was both plaintiff and defendant.
It is further urged that an order of the Interstate Commerce Commission of the type involved in this case is not reviewable in an action brought before a three-judge statutory court. This position is clearly sustained by Ashland Coal & Ice Co. v. United States, D.C., 61 F.Supp. 708; affirmed 325 U.S. 840, 65 S. Ct. 1573, 89 L. Ed. 1966, in which Judge Dobie wrote an exhaustive and persuasive opinion. It is argued, however, that this decision has been, in effect, overruled in El Dorado Oil Works v. United States, 328 U.S. 12, 66 S. Ct. 843, 90 L. Ed. 1053. The opinion in the El Dorado case does not refer to the Ashland case. Whether the Ashland case must be deemed overruled, need not be decided, in view of the disposition heretofore indicated.
It has been suggested that unless the United States of America may maintain this action, it is without a remedy. This contention is hardly well founded, because the United States has the opportunity of electing the other alternative remedy provided by the statute, namely, to bring suit against the common carriers in the United States District Court. Under any circumstances, this Court must enforce the will of the Congress, which clearly did not contemplate or intend to permit a suit by the United States of America against the United States of America, to review an order of the Interstate Commerce Commission. If the situation here presented is a casus omissus, the remedy lies solely with the legislative branch of the Government.
In view of the foregoing considerations, we do not reach the merits of the case.
Judgment dismissing the complaint.