146 F. 403 | U.S. Circuit Court for the District of Northern Iowa | 1906
(after stating the facts). The removal of the case by the’defendant from the state court, even if its appearance in that court'had not been limited to such purpose, does not preclude it from challenging in this court the jurisdiction of the state court or of this court of its person, or from claiming exemption from being sued in a state other than that of its residence. Wabash Western Railway Co. v. Brow, 164 U. S. 271, 17 Sup. Ct. 126, 41 L. Ed. 431; Murray v. Wilcox, 122 Iowa, 188, 97 N. W. 1087, 64 L. R. A. 534, 101 Am. St. Rep. 263.
The contention of the plaintiff is that the defendant by moving to quash the attachment, though appearing specially for that purpose, thereby invoked the judgment of the court upon a question other than that of its jurisdiction of the person of the defendant, and that by so doing it has appeared generally to the action. The question of the ' jurisdiction or right of a court to attach property at all-, and that of its right to determine what disposition shall be made of property that it has the right to and has in fact attached, are quite distinct. In ■the one case the court can only determine its jurisdiction or right to attach the property, and, if it has not such right, then to order its release in case it has been attached; but if it has the right to attach the same, and has in fact done so, then it.may and must determine the rights of claimants thereto if any are presented. The motion of the defendant to quash the attachment presents the former of the above questions, and challenges the jurisdiction of the court to
“In enacting this statute, and in authorizing suit against a nonresident in ■arty county of the state where found, the Legislature had no thought of interfering with a rule concerning exemption from service of notice.” .
See, also, Wilson v. Donaldson, 117 Ind. 356, 20 N. E. 250, 3 L. R. A. 266, 10 Am. St. Rep. 48, and cases cited, and Atchison v. Morris (C. C.) 11 Fed. 582-585.
In Harkness v. Hyde, 98 U. S. 476-479, 25 L. Ed. 337, it is said:
“Illegality in a proceeding by which jurisdiction is to be obtained is in no case waived by the appearance of the defendant for the purpose of calling the attention of the court to such irregularity. Nor is the objection waived when being urged it is overruled, and the defendant is thereby compelled to answer. * * * It is only when he pleads to the merits in the first instance, without insisting upon the illegality, that the objection is deemed to be waived.”
In Goldey v. Morning News, 156 U. S. 518-523, 15 Sup. Ct. 559, 39 L. Ed. 517, it is said:
“The removal of a suit into the Circuit Court of the United States does not admit that it was rightly pending in the state court, or that the defendant*408 could have been compelled to answer therein, but enables the defendant to avail himself in the Circuit Court of the United States of any and every defense duly and seasonably reserved and pleaded to the action, in the same manner as if it had been originally commenced in said Circuit Court.”
. And in Railway Co. v. Brow, 164 U. S. 271-278, 17 Sup. Ct. 126, 41 L. Ed. 431, it is said:
“We regard it as not open to doubt that the party has a right to the opinion of the federal court on every question that may arise in the case, not only in "relation to the pleadings and merits, but to the service of process; and it would be contrary to the manifest intent of Congress to hold that a party who has the right to remove a cause is foreclosed as to any question upon which the federal court can be called upon under the law 'to decide.”
Construction Co. v. Fitzgerald, 137 U. S. 98, 11 Sup. Ct. 36, 34 L. Ed. 608, is clearly distinguishable from the above cases; for in that case the defendant appeared generally to the action and proceeded into the third day of the trial before raising the question of the jurisdiction of the court over the person, and its jurisdiction over the attached property was at no time challenged. Held, that by such appearance and participation in the trial the defendant waived all questions of service of process, and converted into a personal suit that which before was but a proceeding in rem.
The defendant appeared specially in the state court for the purpose of removing the cause fo this court, and in this court limits its appearance to the purpose of showing that the state court acquired no jurisdiction of its person by the service of process upon it in the state of Ohio, and that its property attached under the process of the state court was not subject to such attachment. Such.appearancé, under the authorities above cited, is not a general appearance to the action.
The remaining question is, was the property of the defendant subject to attachment by the state court?
Section 3876, Code Iowa 1897, provides:
“That the plaintiff in a civil.action may cause the property of the defendant not exempt from execution to be attached at the commencement of or during the progress of the proceeding * * *.
“Section 3877. * * * And in all cases the proceedings relative to the attachment are to be deemed independent of the ordinary proceedings, and only auxiliary thereto.”
“Section 3929. A motion may be made to discharge the attachment or any part thereof at any time before trial * * * for any cause making it apparent of record that the attachment * * * should not have been levied upon all or on some of the property held.”
Under this last-named section it is held by the Supreme Court of Iowa that it may be made “apparent of record that the attachment should not have been levied upon all or some of the property” by affidavits in support of the motion to discharge. Wilson v. Stripe, 4 G. Greene, 551, 61 Am. Dec. 138; Hastings v. Phœnix, 59 Iowa, 394, 13 N. W. 346; Cox v. Allen, 91 Iowa, 462, 50 N. W. 335.
It very clearly appears from the affidavit in support of the motion to quash the attachment that at the time the cars of defendant were delivered to the several garnishees there were existing agreements between the defendant and said garnishees for the continuous carriage
"Whereas the Constitution oí the United States confers upon Congress in express terms, the power to regulate commerce among the several states, and to establish post roads, * ⅞ * ; Therefore;
Be it enacted that every railroad company in the United States whose road is operated by steam * * * is hereby authorized to carry upon and over its road, boats, bridges, and ferries, all passengers, * ⅜ * mails, freight, and property on their way from any state to another state, and to receive compensation therefor; and to connect with roads of other states, so as to form continuous lines for the transportation of the same to the pla<*e of destination. * ⅜ *” Act June lo, I8(5(i, c. J24, 14 Stat. lid.
It is said that this act is permissive only, and does not impose any obligation upon carriers of the class described to enter into such agreements, or, if such agreements are made, does not relieve them from an_v liability to which they would otherwise'be subject. But the question is, are the cars or other instrumentalities of the companies forming such continuous lines when used in interstate traffic so used pursuant to the authority of Congress? Tf they are, then such use cannot be rightly burdened or interfered with by or under the authority of state legislation. Brown v. Maryland, 12 Wheat. 419, 6 L. Ed. 678; McCulloch v. Maryland, 4 Wheat. 316, 4 L. Ed. 579; Prigg v. Pennsylvania, 16 Pet. 539, 10 L. Ed. 1060; Leisy v. Hardin, 135 U. S. 100, 10 Sup. Ct. 681, 34 L. Ed. 128; Bowman v. Railway Co., 125 U. S. 465, 8 Sup. Ct. 689, 31 L. Ed. 700; Easton v. Iowa, 188 U. S. 220, 23 Sup. Ct. 288, 47 L. Ed. 452.
The plain purpose of section 5258, is an exercise by Congress of the power conferred upon it by the commerce clause of the federal Constitution; and this it does by permitting the owners of connecting lines of steam railroads to arrange for the formation of continuous Hues for the transportation of persons and property over their respective roads from one state to and through others without change of cars, and to receive compensation therefor.
In Railroad Co. v. Richmond, 19 Wall. 584, 23 L. Ed. 173, this section and the act of July 25, 1866, authorizing the construction of bridges over navigable waters, were under consideration. The court said in reference thereto;
“These arts were passed under power vested in Congress to regulate commerce among the several states, and were designed to remove trammels upon transportation between different states which had previously existed, and to prevent the creation of such trammels in future, and to facilitate railway*410 transportation by authorizing the construction of bridges oyer the navigable waters of the Mississippi. But they were also Intended to reach trammels interposed by state enactments or by existing laws of Congress.”
' In Bowman v. Railroad Company, 125 U. S. 465, 485, 8 Sup. Ct. 689, 31 L. Ed. 700, the court in referring to the same sections says:
“So far as these regulations made by Congress extend, they áre certainly indieátions óf its intention that the transportation of commodities between the states shall be free, except where it is positively restricted by Congress itself, or by. the states in particular cases by the express permission of Congress. * * * ■ The subjects upon which Congress can act under this power are of. infinite variety, requiring fpr their successful management different plans or modes of treatment. Some of them are national in their character, and admit and require uniformity of regulation, affecting alike all the states others are local. Of the former class may be mentioned all that portion of commerce * * * between the states which consists in the transportation, purchase, sale, and exchange of commodities. Here there can of necessity be only one system or plan of regulation, and that Congress can alone prescribe. Its non-action in such cases with respect to any particular commodity or mode of transportation is a declaration of its purpose that the commerce in that commodity or by that means of transportation shall be free. * <■ * Commerce with foreign countries and among the states, strictly considered, consists in intercourse and trafile, including in these terms * * * the transportation and transit of persons and property, as well as the purchase, sale, and exchange of commodities. For the regulation of commerce as thus defined, there can only be one system of rules applicable alike to the whole country, and the authority which can act for the whole country can alone adopt such a system.”
By the Act of Congress of February 4, 1887 — the act to regulate commerce — it is provided that the provision of this act shall apply to any common carrier or carriers engaged in the transportation of persons and property wholly by railroad, or partly by railroad and partly by water, when both are used under a common control, management, or arrangement far a continuous carriage or shipment from one state or territory of the United States to another state or territory, shall be subject to the provisions of this act; and it shall be unlawful for any such carrier to enter into any agreement, express or implied to prevent, by change of time schedules, carriage in different cars, or by any other means or device, the carriage of freight from being continuous from the place of shipment to its destination; and the term “transportation” shall include all instrumentalities .of shipment or carriage. 24 Stat. 379, c. 104 [U. S. Comp. St. 1901, p. 3154]. This law was enacted to further regulate that part of commerce which consists in the transportation of property by means of railway and water lines between the states, and to subject carriers engaged in such transportation to the provisions of the act. That the states may not burden instrumentalities of interstate commerce has been frequently determined by the Supreme Court of the United States. The exact limit of lawful legislation by states upon this subject cannot be definitely defined. It can only be illustrated from decided cases, and from the principles announced in them it will be determined in the particular 'case under investigation whether or not the legislation of the state under consideration, when carried into effect, imposes any burdens or restrictions upon interstate commerce that may directly . "‘erfere therewith. Wabash Railway Co. v. Illinois, 118 U. S.
The burden imposed by such legislation is slight as compared with that which would authorize the seizure upon attachment of an entire train of cars, or of any part thereof, carrying freight from one state to or through another. When the defendant and its connecting carriers, the several garnishees, entered into the agreements shown by this record, they became subject to the acts of Congress'regulating commerce, and it would have been unlawful for any of them to have refused to accept the cars of others loaded with interstate freight destined to points on their respective lines, and carry the same to their destination, and in case of such refusal they might have been compelled by mandatory injunction to perform the public duties imposed upon them by these acts of Congress. Act March 2, 1889, § 10, c. 382, 25 Stat. 862 [U. S. Comp. St. 1901, p. 3172]; Union Pac. Co. v. Hall, 91 U. S. 343, 23 L. Ed. 428; In re Lennon, 166 U. S. 548, 17 Sup. Ct. 658, 41 L. Ed. 1110; C., B. & Q. Ry. Co. v. Railway Co. (C. C.) 34 Fed. 481; Toledo & A. Ry. Co. v. Pennsylvania Co. (C. C.) 54 Fed. 730-746, 19 L. R. A. 387.
. The formation of continuous lines of transportation, whereby each road, instead of remaining a separate line, becomes a part of a great railway system extending into all parts of the country, upon any part of whicli cars may be loaded with freight to be transported from one state to or through another, without unloading, to its destination on any part of the system, is authorized by Congress. This greatly sub-serves the public convenience, lessens the cost of transportation and delays in carriage, and to authorize cars while being so used to be seized upon attachment under authority of state laws at the suit of an individual would greatly inconvenience the public and directly interfere ‘with interstate commerce and with the authority of Congress in providing for such continuous lines of transportation..
The execution or attachment laws of the several states doubtless were not primarily intended as burdens upon or as an interference with interstate commerce. But, if the instrumentalities of such commerce when being lawfully used therein may be seized and held under such laws, then when enforced they would in fact be a most serious burden upon or interference with that commerce, and to the extent that they so authorize they are just as obnoxious as if that had been their primary purpose. The validity of a law of the state, so far as it relates to or may operate upon matters within the exclusive control of Congress, is determined by its effect upon such matters when enforced, and not by the purpose for which it may have been enacted. Easton v. Iowa, 188 U. S. 220-231, 238, 23 Sup. Ct. 288, 47 L. Ed. 452.
It is further urged that some of the cars were when attached empty, and had not started on the return trip, and were not therefore then engaged in interstate transportation. In Johnson v. Southern Pac. Ry. Co., 196 U. S. 1-21, 25 Sup. Ct. 158, 49 L. Ed. 363, a like contention was made as to a dining car, which was regularly used to furnish meals to passengers between San Francisco and Ogden. The car was waiting at a point near Ogden for a train to carry it back to San Francisco. It was contended that until the car had actually started upon the return trip it was not used in interstate traffic, within the meaning of the safety appliance law of Congress. The Supreme Court said of this contention:
“Counsel urge that the character of the car at the time and place of the injury was local only, and could not be changed until the car was actually engaged in interstate movement, or being put into a train for such purpose. * * * Confessedly this car was under the control of Congress while in the act of making its interstate journey, and in our judgment it was equally so when waiting for the train to be made up for the next trip. It was being regularly used in the movement of interstate traffic, and so within the law.”
The cars of defendant when brought into the state of Iowa to complete an interstate shipment of property were being used in interstate commerce, and were so being used while waiting at least a reasonable time to be loaded for the return trip.
Finally, it is urged that the debts, if any, owing by the several garnishees to the defendant for its share of the price- of the carriage, which may have been collected by them as the terminal carriers of the shipment, are subject to garnishment under the Iowa Code. Section 3897 of that Code provides:
*413 “That property of the defendant in the possession of another, or debts due the defendant, may be attached by garnishment. * * *”
“Sec. 3935. The mode of such attachment is by serving upon the garnishee a notice in the manner required for the service of original notice, that he must not pay any debt owing by him to the defendant,” etc.
Of course, it is only debts that are within the jurisdiction of the state that can be thus attached. Whether the situs of a debt for the purpose of attachment is at the domicile or residence of the garnishee or his creditor is a question upon which the authorities are not in accord. In Mooney v. Railway Co., 60 Iowa, 347, 14 N. W. 343, Hannibal, etc., Ry. Co. v. Crane, 102 Ill. 249, 40 Am. Rep. 581, and in some other cases it is held that such debts may be attached wherever legal process may be served upon the garnishee defendant, though the principal defendant and his creditor both reside in another jurisdiction, where the debt was contracted and is payable. The contrary is held in Central Trust Co. v. Railway Co. (C. C.) 68 Fed. 685; Nye v. Liscombe, 21 Pick (Mass.) 263; Gold v. Railway Co., 1 Gray (Mass.) 424; Wright v. Railway Co., 19 Neb. 175, 27 N. W. 90, 56 Am. Rep. 747; Singer v. Fleming, 39 Neb. 679, 686, 58 N. W. 226, 23 L. R. A. 210, 42 Am. St. Rep. 613; Drake v. Railway Co., 69 Mich. 168, 37 N. W. 70, 13 Am. St. Rep. 382; Railway Co. v. Smith (Miss.) 12 South. 461, 19 L. R. A. 577, and notes, 35 Am. St. Rep. 651.
It is not necessary to determine this question in this case, for the defendant’s share of the compensation for the carriage of the freight in question is as much a part of interstate commerce, within the meaning of the acts of Congress regulating commerce and as defined by the Supreme Court, as the actual carriage of the property. If a debt due to a nonresident carrier for such transportation upon its own line, when collected by the terminal or final carrier may be thus attached in any state where the cars may go to complete an interstate shipment of property, then the owner of such cars will be compelled to follow them into such state, to there litigate with whomever may be authorized to attach such debt. If this is permissible, owners of cars could not safely permit them to go beyond their own lines, nor could connecting carriers receive them, or collect the cost of the entire shipment, without being drawn into litigation in which they have no interest, and be subject to much inconvenience and expense because thereof. The effect of such proceedings upon interstate transportation is apparent. M. C. Ry. Co. v. M. & L. S. Ry. Co., 1 Ill. App. 399, above. And see Nazro v. Cragin, 3 Dill. 474, Fed. Cas. No. 10,062.
The conclusion, therefore, is, that the cars of the defendant company and the debts, if any, 'owing it by the several garnishees for its share of the carriage of the interstate shipments in question were not subject to attachment in Iowa, and that such attachment and the several garnishees should be discharged, and it is so ordered.
