Concurring.
I concur in the decision and opinion in this case, except in so far as it holds that the Director General of Railroads by filing a demurrer to the declaration, lost his right to enforce General Order No. 18a of April 18, 1918, by a plea in abatement.
This order is as follows: “ ‘ It is therefore ordered that all suits against carriers while under Federal control must be brought in the county or district where the plaintiff resided at the time of the accrual of the cause of action, or in the county or district where the cause of action arose.’ ”
There is a notable distinction in suits between private parties, and suits of this character against the Director General of Railroads. The ■ United States Government had taken over and was operating this railroad at the time *448the cause of action accrued. No right of action existed against the Government for any loss or damage resulting from its operation of the railroad, and suit could only be maintained if the Government consented thereto, and then only in the jurisdiction, and under such circumstances and conditions as it saw fit to require.
Under General Order No. 18a the Government through the Director General of Railroads consented to be sued only “in the county or district where the plaintiff was residing at the time of the accrual of the cause of action, or any county or district where the cause of action arose. ’ ’
There is a wide difference between a plea in abatement as to venue, when filed by an ordinary litigant and when filed by the Government of the United States. In the one, the right to have the cause tried in a particular place is a privilege which a private person may avail himself of or not as he sees fit. In the other, the consent of the Government to be tried at all, and then only in a particular place, is an absolute right as distinguished from a privilege, and General Order No. 18a in which the Government asserts its right, is not to be taken as modified or waived by anything less than another order of the Director General to that effect.
I think that the right and power of the Director General of Railroads to prescribe the venue in which he would permit himself to be sued was absolute, and was not waived or affected by his interposing a demurrer to the declaration, before filing his plea in abatement, and that the demurrer to the plea in abatement should have been overruled.
When this question was before the Judge of the Circuit Court for Duval County he had for consideration the *449decisions of State and inferior Federal courts that seeded to support his ruling on the demurrer to the plea in abatement. Among these was the Supreme Court of Mississippi in the case of Alabama & V. Ry. Co. v. Journey, 122 Miss. 742, 84 South. Rep. 706. In that case there was a plea in abatement to an action brought in the 2nd District of Hinds County, wherein it was claimed that the suit should have been begun in the 1st District of Hinds County, the place where the cause of action accrued, or in the Circuit Court of Attala County, of which county the plaintiff was a resident citizen at the time the alleged cause of action accrued.
A demurrer to the plea in abatement was sustained, and on appeal to the Supreme Court of Mississippi the judgment was affirmed. The court said: ‘ ‘ The question raised by the plea in abatement is of some interest, and we have decided to express our views thereon. The concrete question is about this: ‘Did Congress confer upon the President of the United States or the Director General of Railroads the power to fix the venue , of actions against the railroads, while -the same were under Federal control?’ ”
After discussing this question which the court said was the crucial one, it was said: “It seems clear to us that Congress did not delegate to the executive the power claimed by appellant, but in apt language left the law as it was before the passage of the statute. Affirmed.”
The case went to the Supreme Court of .the United States and was there reversed. The court said: “The Supreme Court, of Mississippi overruled the plea in .abatement on the ground that Order No. 18 exceeded the powers conferred by Congress on the President and by him on the Director General. Whether the state court *450erred in so holding is the only question before us. That it did err is clear from what we said in Missouri P. R. Co. v. Ault (U. S. Adv. Ops. 1920-21, p. 647), 255 U. S. --, 65 L. Ed. -, 41 Sup. Ct. Rep. 593, decided since entry of the judgment under review. Section 10 of the Federal Control Act of March 21, 1918, Chap. 25, 40 Stat. at L. 451, 456, Comp. Stat. 3115 % a, 31153,4 j, Fed. Stat. Anne. Supp. 1918, pp. 757, 762, permitted enforcement of liabilities against carriers while under Federal control only ‘in so far as not inconsistent * * * with any order of the President.’ It was within the powers of the Director General to prescribe the venue of suits; and the facts set forth in the order show both the occasion for it and that the venue prescribed was reasonable.” Alabama & V. R. Co. v. Journey, Adv. Opinions U. S. Supreme Court No. 2, Dec. 1, 1921, p. 15.
It matters not how the error in making the Florida East Coast Railway Company instead of the Director General of Railroads, the party defendant was brought to the attention of the court, the order substituted the Director General of Railroads for the Florida East Coast Railway as defendant, and when that was done further proceedings were governed by General Order 18a of the Director General of Railroads.
In an action brought by an employee against the Missouri Pac. R. Co., a motion was made by the Railroad Company to substitute as defendant the Director General of Railroads. This substitution the court refused to make; but joined the Director General of Railroads as defendant. This the Supreme Court of the United States held to be error, and that the application of the Missouri Pac. R. Co. to be dismissed from the action and the Director General of 'Railroads substituted in its place should have been *451granted. Missouri Pac. R. Co. v. Ault, U. S. Sup. Ct. Adv. Opinions No. 16, July 1, 1921, p. 647.
It is contended by defendant in error that tbe Transportation Act approved February 26, 1920, authorized the bringing of this suit in Duval County.
Section 206 of the Transportation Act does not deal with venue but specifically refers to jurisdiction.
There is no question that the Circuit Court of the Fourth Judicial Circuit of Florida had jurisdiction to try this cause if the venue were properly laid, but as General Order No. 18a of April 18, 1918, contains a specific requirement that all suits shall be brought “in the county or district where plaintiff resided at the time of the accrual of the cause of action, or in the county or district where the cause of action arose,” the jurisdiction did not attach because the General Order was pot complied with as to the venue. Where a suit shall be instituted is a matter of venue only, and is not jurisdictional. Crystal River Lumber Co. v. Consolidated Naval Stores Co., 63 Fla. 119, 58 South. Rep. 129.
As applied to courts, jurisdiction is the power to try and determine a cause properly brought and prosecuted.
Venue relates to the rights of parties to a litigated cause as to the vicinage or place, i. e., the State, county or district, wherein the action should be maintained. Curtis v. Howard, 33 Fla. 251, 14 South. Rep. 812.
Section 206 of the Transportation Act, treating of jurisdiction, cannot be construed to nullify General Order No. 18a, that regulates and determines the venue where the Federal Government elects to be sued.