MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
In cause No. 5341 the facts are as follows: On November 1, 1919, plaintiffs loaded seven cars with sheep at Alder, Montana, for shipment over the line of the Northern Pacific Railway to Wessington Springs, South Dakota. On September 12, 1921, an action was instituted by plaintiffs to recover damages for the alleged negligent handling of the livestock. In the action the defendants named were “Northern Pacific Railway Company, a corporation, and John Barton Payne, as Director-general of Railroads and as Agent appointed by the President under the Transportation Act of 1920.” [U. S. Comp. Stats. Ann., Supp. 1923, sec. 10071% et seq.; Fed. Stats. Ann. 1920, p. 77.] Defendant Payne appeared by general demurrer, and the railway company by demurrer, general and special. In the special demurrer it was pointed out that James C. Davis was then and since March 28, 1921, had been the agent designated by the President against whom the action should have been brought. On February 4, 1922, upon motion of plaintiffs, the title of the action was changed by inserting “James C.. Davis as Agent appointed by the President under the Transportation Act of 1920” in lieu of the designation of the defendants contained in the complaint originally.
In his answer Davis alleged that the sheep were delivered to the consignee at the point of destination on November 9, 1919. He also pleaded a provision of the shipping contract, as follows: “All actions to recover damages for delay in transit or for loss of or injury to any of the stock, or upon any claim under this contract, must be commenced within two years, after the delivery of such stock at destination.” In plaintiffs’ reply these allegations were admitted. Thereafter the court sustained Davis’ motion for judgment on the pleadings, and a judgment dismissing the complaint was rendered and entered, and plaintiffs appealed.
[312]*312From 12 o’clock noon on December 28, 1917, until 12:01 A. M. on March 1, 1920, the Northern Pacific Railway was under federal control, pursuant to an Act of Congress approved August 29, 1916 (39 Stat. 619), the proclamation of the President of December 26, 1917 (40 Stat. 1733 [U. S. Comp. Stats. 1918; U. S. Comp. Stats. Ann., Supp. 1919, §1974A]), the Federal Control Act of March 21, 1918 (40 Stat. 451 [U. S. Comp. Stats. 1918, 'U. S. Comp. Stats. Ann., Supp. 1919, §3115% et seq.; Fed. Stats. Ann. 1918, p. 757]), and the presidential proclamation of March 29, 1918 (40 Stat. 1763 [sec. 3115%h; Fed. Stats. Ann. 1918, p. 757]). The Act of March 21, 1918, provided that federal control might be exercised through such agencies as the President saw fit to select, and under that authority the President appointed William G. MeAdoo “Director-general of Railroads.” On October 28, 1918, the Railway Administration issued General Order No. 50, which directed that an action of this character should “be brought against William G. MeAdoo, Director-general of Railroads, and not otherwise.” On January 10, 1919, Mr. MeAdoo resigned and was succeeded by Walker D. Hines, who caused General Order No. 50a to be promulgated, by the terms of which such an action thereafter should be prosecuted against the “Director-general of Railroads.” By the Transportation Act, approved February 28’, 1920 (41 Stat. 456), federal control of railways terminated on March 1, 1920. Section 200 of that Act [U. S. Comp. Stats. Ann., Supp. 1923, sec. 10071%ee; Fed. Stats. Ann. 1920, p. 77], provided that an action of this character founded upon a cause of action arising during the period of federal control “may, after the termination of federal control, be brought against an Agent designated by the President for such purpose, which Agent shall be designated by the President within thirty days after the passage of this Act.” By proclamation of March 11, 1920, the President appointed “Walker D. Hines Director-general of Railroads and his successor in office” as such agent. On May 28, 1920, Hines was succeeded in office [313]*313by John Barton Payne, who in turn was succeeded by James 0. Davis on March 28, 1921.
From this history it appears that at the time the shipment in question was made the Northern Pacific Railway was under federal control, and that, at the time the action was commenced, James C. Davis was, and for nearly six months had been, the agent appointed by the President under the Transportation Act.
It is admitted by the pleadings that the sheep in question were delivered to the consignee at the point of destination on November 9, 1919; so that the period of two years during which an action of this character might be brought expired on November 9, 1921. Davis, as presidential agent, was not a party to the action until February 4, 1922, and the ultimate question for determination is: May he avail himself of the defense that the action was not commenced within the period limited by the contract?
It is contended by plaintiffs that the government of the United States was at all times the real party defendant— the party liable to respond to any judgment which plaintiffs might recover; that the government was made a party defendant when the action was commenced on September 12, 1921; hence the action was commenced within the period limited by the contract.
That the government of the United States was the sole responsible defendant in an action founded upon a cause of action arising out of the federal control of railroads has been settled beyond controversy. (Missouri Pac. R. Co. v. Ault, 256 U. S. 554, 65 L. Ed. 1087, 41 Sup. Ct. Rep. 593), and it follows that if the government was in fact made a party defendant on September 12, 1921, joining the Northern Pacific Railway Company and John Barton Payne, as Director-general of railroads as codefendants did not destroy plaintiffs’ right of action against the government; that those codefendants could be and were properly eliminated; that the addition of the name of James C. Davis was harmless surplusage; and that [314]*314the defense that the action was not commenced within the time limited in the contract was not available. On the contrary, if it were necessary that James C. Davis, as agent appointed by the President under the Transportation Act of 1920, be made a defendant in order that the government of the United States be brought in and given its day in court, then it follows that, as against the government, the action was not commenced until February 4, 1922, and the defense that the action was not commenced within the period limited by the contract was available.
The immediate question then arises: Was the government of the United States sued when the action was commenced on September 12, 1919? To sustain the affirmative of this proposition, counsel for plaintiffs insist that, if the title of the action be amended by striking out or disregarding the words, “Northern Pacific Railway Company, a corporation, and John Barton Payne as Director-general of Railroads and as,” a sufficient designation of the government remains. The title would then read: C. Y. Yassau and James H. West, Plaintiffs, v. Agent Appointed by the President under the Transportation Act of 1920, Defendant. The alternative contention advanced is that, if it were necessary that James C.
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MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
In cause No. 5341 the facts are as follows: On November 1, 1919, plaintiffs loaded seven cars with sheep at Alder, Montana, for shipment over the line of the Northern Pacific Railway to Wessington Springs, South Dakota. On September 12, 1921, an action was instituted by plaintiffs to recover damages for the alleged negligent handling of the livestock. In the action the defendants named were “Northern Pacific Railway Company, a corporation, and John Barton Payne, as Director-general of Railroads and as Agent appointed by the President under the Transportation Act of 1920.” [U. S. Comp. Stats. Ann., Supp. 1923, sec. 10071% et seq.; Fed. Stats. Ann. 1920, p. 77.] Defendant Payne appeared by general demurrer, and the railway company by demurrer, general and special. In the special demurrer it was pointed out that James C. Davis was then and since March 28, 1921, had been the agent designated by the President against whom the action should have been brought. On February 4, 1922, upon motion of plaintiffs, the title of the action was changed by inserting “James C.. Davis as Agent appointed by the President under the Transportation Act of 1920” in lieu of the designation of the defendants contained in the complaint originally.
In his answer Davis alleged that the sheep were delivered to the consignee at the point of destination on November 9, 1919. He also pleaded a provision of the shipping contract, as follows: “All actions to recover damages for delay in transit or for loss of or injury to any of the stock, or upon any claim under this contract, must be commenced within two years, after the delivery of such stock at destination.” In plaintiffs’ reply these allegations were admitted. Thereafter the court sustained Davis’ motion for judgment on the pleadings, and a judgment dismissing the complaint was rendered and entered, and plaintiffs appealed.
[312]*312From 12 o’clock noon on December 28, 1917, until 12:01 A. M. on March 1, 1920, the Northern Pacific Railway was under federal control, pursuant to an Act of Congress approved August 29, 1916 (39 Stat. 619), the proclamation of the President of December 26, 1917 (40 Stat. 1733 [U. S. Comp. Stats. 1918; U. S. Comp. Stats. Ann., Supp. 1919, §1974A]), the Federal Control Act of March 21, 1918 (40 Stat. 451 [U. S. Comp. Stats. 1918, 'U. S. Comp. Stats. Ann., Supp. 1919, §3115% et seq.; Fed. Stats. Ann. 1918, p. 757]), and the presidential proclamation of March 29, 1918 (40 Stat. 1763 [sec. 3115%h; Fed. Stats. Ann. 1918, p. 757]). The Act of March 21, 1918, provided that federal control might be exercised through such agencies as the President saw fit to select, and under that authority the President appointed William G. MeAdoo “Director-general of Railroads.” On October 28, 1918, the Railway Administration issued General Order No. 50, which directed that an action of this character should “be brought against William G. MeAdoo, Director-general of Railroads, and not otherwise.” On January 10, 1919, Mr. MeAdoo resigned and was succeeded by Walker D. Hines, who caused General Order No. 50a to be promulgated, by the terms of which such an action thereafter should be prosecuted against the “Director-general of Railroads.” By the Transportation Act, approved February 28’, 1920 (41 Stat. 456), federal control of railways terminated on March 1, 1920. Section 200 of that Act [U. S. Comp. Stats. Ann., Supp. 1923, sec. 10071%ee; Fed. Stats. Ann. 1920, p. 77], provided that an action of this character founded upon a cause of action arising during the period of federal control “may, after the termination of federal control, be brought against an Agent designated by the President for such purpose, which Agent shall be designated by the President within thirty days after the passage of this Act.” By proclamation of March 11, 1920, the President appointed “Walker D. Hines Director-general of Railroads and his successor in office” as such agent. On May 28, 1920, Hines was succeeded in office [313]*313by John Barton Payne, who in turn was succeeded by James 0. Davis on March 28, 1921.
From this history it appears that at the time the shipment in question was made the Northern Pacific Railway was under federal control, and that, at the time the action was commenced, James C. Davis was, and for nearly six months had been, the agent appointed by the President under the Transportation Act.
It is admitted by the pleadings that the sheep in question were delivered to the consignee at the point of destination on November 9, 1919; so that the period of two years during which an action of this character might be brought expired on November 9, 1921. Davis, as presidential agent, was not a party to the action until February 4, 1922, and the ultimate question for determination is: May he avail himself of the defense that the action was not commenced within the period limited by the contract?
It is contended by plaintiffs that the government of the United States was at all times the real party defendant— the party liable to respond to any judgment which plaintiffs might recover; that the government was made a party defendant when the action was commenced on September 12, 1921; hence the action was commenced within the period limited by the contract.
That the government of the United States was the sole responsible defendant in an action founded upon a cause of action arising out of the federal control of railroads has been settled beyond controversy. (Missouri Pac. R. Co. v. Ault, 256 U. S. 554, 65 L. Ed. 1087, 41 Sup. Ct. Rep. 593), and it follows that if the government was in fact made a party defendant on September 12, 1921, joining the Northern Pacific Railway Company and John Barton Payne, as Director-general of railroads as codefendants did not destroy plaintiffs’ right of action against the government; that those codefendants could be and were properly eliminated; that the addition of the name of James C. Davis was harmless surplusage; and that [314]*314the defense that the action was not commenced within the time limited in the contract was not available. On the contrary, if it were necessary that James C. Davis, as agent appointed by the President under the Transportation Act of 1920, be made a defendant in order that the government of the United States be brought in and given its day in court, then it follows that, as against the government, the action was not commenced until February 4, 1922, and the defense that the action was not commenced within the period limited by the contract was available.
The immediate question then arises: Was the government of the United States sued when the action was commenced on September 12, 1919? To sustain the affirmative of this proposition, counsel for plaintiffs insist that, if the title of the action be amended by striking out or disregarding the words, “Northern Pacific Railway Company, a corporation, and John Barton Payne as Director-general of Railroads and as,” a sufficient designation of the government remains. The title would then read: C. Y. Yassau and James H. West, Plaintiffs, v. Agent Appointed by the President under the Transportation Act of 1920, Defendant. The alternative contention advanced is that, if it were necessary that James C. Davis be designated by name as the agent appointed by the President under the Transportation Act, the defect in the pleading was cured when Davis’ name was added on February 4, 1922, and that the effect of the addition was merely to amend the pleading by inserting the correct name of the responsible defendant, and did not constitute a substitution of parties defendant.
In principle each of these contentions is sustained by the supreme court of appeals of Virginia in Bailey v. Hines, 131 Va. 421, 109 S. E. 470, and the second contention finds support in the decision of the Arkansas supreme court in Arkansas Land & Lumber Co. v. Davis, 155 Ark. 541, 244 S. W. 730. We are unable to agree with either of these courts in its conclusion. We think that in each instance undue prominence [315]*315was given to local statutory provisions authorizing amendments of pleadings, and that the real question in controversy was either overlooked or passed with but slight notice. In the instant case, counsel for plaintiffs rely upon the decision in those cases and upon our statute of amendments (sec. 9187, Bev. Codes 1921). It is our opinion that the statute referred to has no application whatever to the question now before us.
It is elementary that the government of the United States could not be sued at all without its consent, that if it gave its consent it could do so upon such terms and conditions as it saw fit to impose, and that if it imposed any terms or conditions it could be sued only by a compliance with those terms and conditions, however unreasonable they might appear to be. (Hans v. Louisiana, 134 U. S. 1, 33 L. Ed. 842, 10 Sup. Ct. Rep. 504 [see, also, Rose’s U. S. Notes].) During the period [2-4] of federal control the government consented to be sued through the director-general of railroads. (Sec. 10, Federal Control Act; Dahn v. Davis, 258 U. S. 421, 66 L. Ed. 696, 42 Sup. Ct. Rep. 320.) By section 206 of the Transportation Act it consented that after the termination of federal control (March 1, 1920) an action of this character might be prosecuted against ‘ ‘ an Agent designated by the President for such purpose.” In our judgment, the solution of the question before us depends solely upon the proper construction to be placed upon the language just quoted.
By an Act of Congress approved February 8, 1899 (30 Stat. 822 [U. S. Comp. Stats., sec. 1594]): “No suit, action, or other proceeding lawfully commenced by or against the head of any department or bureau or other officer of the United States in his official capacity, or in relation to the discharge of his official duties, shall abate by reason of his death, or the expiration of his term of office, or his retirement, or resignation, or removal from office, but, in such event, the court, on motion or supplemental petition filed, at' any time within twelve months thereafter, showing a necessity for the survival thereof to obtain a settlement of the questions in[316]*316volved, may allow the same to be maintained by or against his successor in office, and the court may make such order as shall be equitable for the payment of costs. ’ ’
Subdivision (d) of section 206 of the Transportation Act provides: “Actions, suits, proceedings, and reparation claims of the character above described pending at the termination of federal control shall not abate by reason of such termination, but may be prosecuted to final judgment, substituting the Agent designated by the President under subdivision (a).”
By an Act of Congress approved March 3, 1923 (42 Stat. 1443) section 206 of the Transportation Act was amended by adding thereto subdivision (h), which provides: “(h) Actions, suits, proceedings, and reparation claims of the character described in subdivision (a), (e), or (d), properly commenced within the period of limitation prescribed, and pending at the time this subdivision takes effect, shall not abate by reason of the death, expiration of term of office, retirement, resignation, or removal from office of the Director-general of. Railroads or the Agent designated under subdivision (a), but may (despite the provisions of the Act entitled ‘An Act to prevent the abatement of certain actions,’ approved February 8, 1899), be prosecuted to final judgment, decree, or award, substituting at any time before satisfaction of such final judgment, decree, or award the Agent designated by the President then in office.”
Under the Act of February 8, 1899, this action, if properly commenced against John Barton Payne as director-general of railroads and agent appointed by the President under the Transportation Act of 1920, would have abated upon the expiration of one year after Mr. Payne’s resignation, unless in the meantime his successor in office had been substituted as party defendant in his stead. (Jackson v. Duluth, M. & N. Ry. Co., 155 Minn. 222, 193 N. W. 128; United States Railway Administration v. Slatinka, 260 U. S. 747, 67 L. Ed. 494, 43 Sup. Ct. Rep. 247.) Likewise under subdivision (d) of section 206 of the Transportation Act an action of this character against [317]*317the director-general of railroads pending in court on March 1, 1920, could be prosecuted to final judgment only by substituting the agent designated by the President in the place and stead of the director-general of railroads. Under the Act of March 3, 1923, if this action had been commenced while John Barton Payne was presidential agent, his resignation would not have caused the action to abate, provided James C. Davis, as presidential agent, was substituted as defendant in his place and stead before the judgment was satisfied. In other words, the effect of this last-mentioned Act is to extend the period designated in the Act of February 8, 1899, within which the substitution might be made in a proper case, but the substitution had to be made.
If the contention of plaintiffs that an action prosecuted against “Agent appointed by the President under the Transportation Act of 1920” is sufficient to bring the real defendant —the United States — into court is well founded, then the Act of March 3, 1923, is meaningless, for there could not be any substitution of parties defendant. The very fact that the Act provides for the substitution of one presidential agent for another demonstrates that it was the intention of Congress that under the Transportation Act of 1920 the government consented to be sued only in the name of the presidential agent in office at the time the action was commenced. While this construction of the Transportation Act by the Congress is not conclusive upon the courts, it is entitled to the most serious and respectful consideration, and particularly so in view of the fact that it is only by an Act of Congress that the government can give its consent to be sued.
Counsel for plaintiffs argue that since, during one period, the government could be sued in the name “Director-general of Railroads,” it could be sued in this instance in the name “Agent appointed by the President under the Transportation Act of 1920”; but counsel overlook the fact that under the Hines regime it was possible to sue the government in the name “Director-general of Railroads” only because General [318]*318Order No. 50a, which had the effect of a statute, so prescribed; whereas section 206 of the Transportation Act does not authorize suit against the government in the name “Agent appointed by the President under the Transportation Act of 1920.” On the contrary, as we have shown, the government consented to be sued after the termination of federal control, only in the name of the presidential agent in office at the time the action was commenced.
It is conceded, as it must be, that the Northern Pacific Railway Company was not the agent of the government, and that it was not liable to plaintiffs in this action. (Missouri Pac. Ry. v. Ault, above.) Likewise, at the time this action was commenced, John Barton Payne was not the agent of the President, end had not any authority whatever to represent the government in this action. The cause of action did not even arise during his incumbency in office. The complaint did not state a cause of action against either of the parties originally made defendants. The only means by which the responsible defendant — the United States — could be sued was by making James C. Davis, presidential agent, defendant, and this was not done until February 4, 1922. Plaintiffs chose to sue the wrong party and must abide the consequences of their error. (Davidson v. Payne (D. C.), 289 Fed. 69.) The effect of the order of February 4, 1922, was not merely to amend the pleading by correcting the name of the defendant, but to bring into the action for the first time the only responsible defendant, the United States. It will not do for plaintiffs now to say that an injustice will result by permitting Davis to interpose the defense that the action was not commenced, as against the United States, within two years from November 9, 1919. This record discloses that on October 1, 1921, plaintiffs were duly apprised of the fact that Davis was the proper and necessary party defendant, 'and yet apparently they obstinately refused to have him made a party until after the contract period for bringing an action against the government had expired. (Davis v. Crossman (Tex. Civ. App.), 249 S. W. 540.)
Rehearing denied January 15, 1924.
Plaintiffs cannot avail themselves of the provisions of the Act of March 3, 1923, for the reason that the action was not properly commenced in the first instance. (Roseland v. Minneapolis & St. Louis Ry. Co., U. S. Dist. Court, District of Minnesota, not published.)
So far as necessary to a determination of this controversy, the facts involved in cause No. 5342 are identical with the facts in cause No. 5341.
It is our conclusion that in each instance the United States was not a party to the action until Davis was brought into it on February 4, 1922, that the special defense was available and could not be waived by Davis (Tutsch v. Director-general of Railroads, 52 Cal. App. 650, 199 Pac. 861), and that the judgment dismissing the complaint was proper.
The judgment in each case is affirmed.
Affirmed.
Mr. Chief Justice Callaway and Associate Justices Galen and Stark concur.
Mr. Justice Cooper absent.