| Miss. | Mar 15, 1919
delivered the opinion of the court.
The appellant filed a bill for attachment in the chancery court under section 536, Code of 1906 (section 293, Hemingway’s Code), against the Texas & Pacific Bailway Company, a foreign corporation operating between Ft. Worth, TexJ and Shreveport, La., and against the Vicksburg, Shreveport & Pacific Bailroad Company, a railway corporation operating between Shreveport, La., and Vicksburg, Miss., the Alabama & Vicksburg Bailway Company, the Louisville & Nashville Bailroad Company, the Gulf & Ship Island Bail-road Company, the Yazoo &'Mississippi Valley Bailroad Company, the Illinois Central Bailroad Company, and the Mobile & Ohio Bailroad Company, alleging that on the 10th day of October, 1.917, the Texas & Pacific Bailway Company agreed with complainant, in consideration of a freight rate paid therefor, to transport for the complainant from Ft. Worth, Tex., to Howison, Miss., ten carloads of cattle, the property of the complainant, and issued bill of lading therefor; that the cattle were transported over the Texas & Pacific Bail-way to Shreveport, La., and over the Vicksburg, Shreveport & Pacific Bailroad to Vicksburg, over the Alabama & Vicksburg Bailway to Jackson, Miss., and over the Gulf & Ship Island Bailroad to Howison, Miss.; that said cattle were unreasonably delayed in transportation, having been in transportation, for one hundred, ten and one-half hours, and they were only fed twice during the said period of time; that they were roughly handled in transit by the Texas & Pacific Bailway Company, and roughly handled to a certain extent by all the other carriers over which they moved, and as a result said cattle were injured and died in
The defendants severally answered the bill, the Illinois Central Eailroad Company, the Louisville & Nashville Eailroad Company, the Yazoo & Mississippi Yalley Eailroad Company, and the Mobile & Ohio Eail-road Company (being garnishees alone). Each, except the Mobile & Ohio Eailroad Company, answered that they were not indebted to the Texas & Pacific Eailway Company, but, on the contrary, that the said Texas & Pacific Eailway Company was indebted to said garnishees. The Mobile & Ohio Eailroad answered the bill, admitting an indebtedness on the 31st day of March, 1918, as follows: Unpaid vouchers, one thousand, one hundred forty-nine dollars and seventy-seven cents; interline ticket account, one hundred, fifty-one dollars and fifty-four cents; car service, nine hundred, eighty-three dollars and twenty cents; freight claims, forty-three dollars and sixty-eight cents — total, on March 31, 1918, two thousand, two hundred, thirty-
The answer of the defendant Mobile & Ohio Railroad Company set up:
That the respondent Mobile & Ohio Railroad Company is a corporation which was, until the 26th day of December, 1917, engaged in operating a railroad, a part of which was within the state of Mississippi; that on said date the President of the United States issued a proclamation and took possession and assumed control for the government of the United States of the transportation systems of the United States, including all of the property of the Mobile & Ohio Railroad Company and of the defendant Texas & Pacific Railway Company, used in transportation as common carriers, and the said proclamation was in part, as follows :
“Except with the prior written assent of said Director, no attachment by mesne process or on execution shall be levied on or against any of the property used by any of said transportation systems in the conduct of their business as common carriers.”
That the Congress of the United States ratified the said act of the President of the United States and provided for the control and operation of the railroads of the United States, including the property of the Mobile & Ohio Railroad Company and of the Texas & Pacific Railway Company by an act approved March 21, 1918, chapter 25, 40 Stat. — (TJ. S. Comp. St. 1918, sections 3115%a-3115%p), entitled :<
“An act to provide for the operation of transportation systems while under federal control, for the. just compensation of their owners and for other purposes.”
“But no process, mesne or final, shall be levied against any property under such federal control.”
It further alleged that any money that may be due from the Mobile & Ohio Eailroad Company to the Texas & Pacific Eailway Company since the service of the writ upon the Mobile & Ohio Eailroad Company is property under the control of the federal government, within the. meaning of the said proclamation of the President and the said act of Congress, under the orders of the Director G-eneral of Eailroads. It is alleged further that the company was made a party simply as a garnishee, in order that any indebtedness of this defendant to the Texas & Pacific Eailway Company might be condemned to pay the demand of the complainant against the Texas & Pacific Eailway Company, and alleged that the writ served on this defendant for that purpose is mesne process within the meaning of the said act of Congress, and was in violation of law and void.
The defendant, after filing this answer, moved the court to dismiss the proceeding as to the Mobile & Ohio Eailroad Company and discharge it, which motion the trial judge sustained. The Texas & Pacific Eail-way Company did not answer, and decree pro confesso was taken, and proof of the amount of damage introduced. The Gulf & Ship Island, Alabama & Vicksburg, and Vicksburg, Shreveport & Pacific Eailroad Companies denied the allegations of the bill so far as their respective handling of the cattle is concerned, and answered that they had no information as to the allegations against the Texas & Pacific Eailway Company, except that they say that the delay in transportation was not unreasonable. After the court dismissed the case against the Mobile & Ohio Eailroad, the complainant moved for judgment against the Vicksburg, Shreveport & Pacific, Texas & Pacific, Alabama &
The principal question for determination is whether or not the Mobile & Ohio Bailroad Company could be garnished as a foundation to sustain the attachment against the Texas & Pacific Bailway Company; no other property belonging to the Texas & Pacific Bail-way Company than this indebtedness of the Mobile & Ohio Bailroad Company being found in the state. The bill was filed on the 25th day o'f March, 1918, and the garnishment served on the Mobile & Ohio Bailroad Company on the same date.
On the 29th of August, 1916, Congress enacted a law, one section of which only is pertinent to this cause, which reads as follows:
“Control of Transportation Systems in Time of War. —The President, in time of war, is empowered, through the Secretary of War, to take possession and assume control of any system or systems of transportation, or any part thereof, and to utilize the same, to the exclusion as far as may be necessary of all other traffic thereon, for the transfer or transportation of troops, war material and equipment, or for such other purposes connected with the emergency.as may be needful or desirable.” 39 Statutes at Large, 645, chapter 418, section 1 (U. S. Comp. St. 1918, Compact Edition, p. 274).
On the 26th day of December, 1918, the President issued a proclamation, reciting that it had become necessary in the national defense to take possession and assume control of certain systems of transportation and to utilize the same, to the exclusion so far as may be necessary of all other traffic thereon, for the transppr-tation of troops, war material, and equipment therefor, and for other needful and desirable purposes connected
“Until and except so far as said Director shall from time to time otherwise by general or special orders determine, such systems of transportation shall remain subject to all existing statutes and orders of the Interstate Commerce Commission, and to all statutes and orders of regulating commissions of the various states in which said systems or any part thereof may be situated. But any orders, general or special, hereafter made by said Director, shall have paramount authority and be obeyed as such.”
On the 11th day of April, 1918, the President issued another proclamation, taking possession and assuming-control, through Acting Secretary of War, at 12:01 a. m. on the 13th day of April, 1918, of each and every system of transportation, naming certain steamship and other transportation companies, to be exercised under the direction and control of William <GL McAdoo, Director General of Eailroads. After the promulgation of these orders or proclamations of the President, based upon the statute above quoted, the different transportation companies, took' the position that the railroads were under the control of the government and that they had the right to remove causes to the federal courts and that they could not be sued without the consent of the United States. On the 21st of March, 1918, by 40 Statutes at Large, chapter 25, Congress passed an additional act dealing with the subject of governmental control of railroads and other transportation concerns. In section 10 of said act of March 21, 1918, section 3115%j (U. S. Comp. St. 1918, Compact Edition, p. 458), it is provided:
“Liabilities of Carriers; Actions By and Against. —Carriers while under federal control shall be subject to all laws and liabilities as common carriers, whether arising under state or federal laws or at common law, except in so far as may be inconsistent with the pro*336 visions of this act or any other act applicable to such federal control or with any order of the President. Actions at law or 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 the carrier, no defense shall be made thereto upon the ground that the carrier is an instrumentality or agency of the federal government. Nor shall any such carrier be entitled to have transferred to a federal court any action heretofore or hereafter instituted by or against it, which action was not so transferable prior to the federal control of such carrier; and any action which has heretofore been so transferred because of such federal control or of any act of Congress or official order or proclamation relating thereto shall upon motion of either party bo retransferred to the court in which it was originally instituted. But no process, mesne or final, shall be levied against any property under such federal control.”
In section 13, chapter 25, 40 Statutes at Large (U. S. Comp. St. 1918, Compact Edition, section 3115%m, p. 459), it is provided: ,
“Pending Cases Against Carriers. — All pending eases in the courts of the United States affecting railroads or other transportaton systems brought under the act to regulate commerce, approved February fourth, eighteen hundred and eighty-seven, as amended and supplemented, including the commodities clause, so called, or under the act to protect trade and commerce against unlawful restraints and monopolies, approved July second, eighteen hundred and ninety, and amendments thereto, shall proceed to final determination as soon as may be, as if the United States has not assumed control of transportation systems; but in any such case the court having jurisdiction may, upon the application of the United’ States, stay execution of final judgment or decree until such time as it shall deem proper.”
“Existing Laws or Powers of States. — Nothing in this act shall he construed to amend, repeal, impair, or affect the existing laws or powers of the states in relation to taxation or the lawful police regulations of the several states, except wherein such laws, powers, or regulations may affect the transportation of troops, war materials, government supplies, or the issue of stocks and bonds.”
It will be noted from the sections above quoted of the Act of March 21, 1918, that while under federal control, the carriers shall be subject to all laws and liabilities as common carriers whether arising under state or federal laws or at common-law, except so far as may be inconsistent with the provisions of this act, or with any order of the President, and that actions may be brought against such carriers and judgment rendered as now provided by law; and that in any action at law, or suit in equity, against the carrier no defense shall be made thereto upon the ground that the carrier is an instrumentality or agency of the federal government. It will be seen from an analysis of this provision that the carrier when sued is forbidden to set up the very defense it attempts to set up in this case. Such defense can only, be made by the Director General intervening.
By referense to section 15, above quoted from it is provided that nothing in this act shall be construed to to amend, repeal, impair, or affect the existing law or powers of the states in relation to taxation or the lawful police regulation of the several states except wherein such laws, powers, or regulations may affect the transportation of troops, war materials, government supplies, or the issue of stocks and bonds. It is clear from this section that it was not the purpose of Congress in enacting these laws to displace the state control any
The right of trial by jury is preserved to every one accused of crime, who is not attached to the army, or navy, or militia in actual service.
“Martial law cannot arise from a threatened invasion. The necessity must be actual and present; the invasion real, such as effectually closes the courts and deposes the civil administration.”
Again:
“By the protection of the law human rights are secured; withdraw that protection, and they are at the mercy of wicked rulers, or the clamor of an excited people. It there was law to justify this military trial, it is not our province to interfere; if there was not, it is our duty to declare the nullity of the whole proceedings. The decision of this question does not depend on argument or judicial precedents, numerous and highly illustrative as they are. These precedents inform us of the extent of the struggle to preserve liberty and to relieve those in civil life from military trials. The founders of our government were familiar with the history of that struggle, and secured in a written Constitution every right which the people had*339 wrested from power during a contest of ages. By that Constitution and the laws authorized by it this question must be determined.”
Again:
“These securities for personal liberty thus embodied, were such as wisdom and experience had demonstrated to be necessary for the protection of those accused of crime. And so strong was the sense of the country of their importance, and so jealous were the people that these rights, highly prized, might be denied them by implication, that when the original Constitution was proposed for adoption it encountered severe opposition; and, but for the belief that it would be so amended as to ■ embrace them, it would never have been ratified.
“Time has proven the discernment of our ancestors; for even these provisions, expressed in such plain English words, that it would seem the ingenuity of man could not evade them, are now, after the lapse of more than seventy years, sought to be avoided. Those great and good men foresaw that troublous times would arise, when rulers and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper, and that the principles of constitutional liberty would be in peril, unless established by irrepealable law. The history of the world had taught them that what was done in the past might be attempted in the future. The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine; involving more pernicious consequences, was ever invented by the wit of man than-that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers*340 granted to it, which are necessary to preserve its existence, as has been happily proved by the result of the great effort to throw off its just authority.”
Again:
“But it is said that the jurisdiction is complete under the Caws and usages of war.’
“It can serve no useful purpose to inquire what those laws and usages are, whence they originated, where found, and on whom they operate; they can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed. This court has judicial knowledge that in Indiana the federal authority was always unopposed, and its courts always open to hear criminal accusations and redress grievances; and no usage of war could sanction a military trial there for any offense whatever of a citizen in civil life, in no wise connected with the military service. Congress could grant no such power; and to the honor of our national legislature he it said, it has never been provoked by the state of the country even to attempt its exercise. One of the plainest constitutional provisions was, therefore, infringed when Milligan was tried by a court not ordained and established by Congress, and not composed of judges appointed during good behavior. ’ ’
Again:
“The discipline necessary to the efficiency of the army and navy, required other and swifter modes of trial than are furnished by the common-law courts; and, in pursuance of the power conferred by the Constitution, Congress has declared the kinds of trial, and the manner in which they shall be conducted, for offenses committed while the party is in the military or naval service. Every one connected with these branches of the public service is amenable to the jurisdiction which Congress has created for their government, and, while thus serving, surrenders his right to be tried by the*341 civil courts. All other persons, citizens of states where the courts are open, if charged with crime, are guaranteed the inestimable privilege of trial by jury. This privilege is a vital principle, underlying the whole administration of criminal justice; it is not held by sufferance, and cannot be frittered away on any plea' of state or political necessity. When peace prevails, and the authority of the government is undisputed, there is no difficulty in preserving the safeguards of liberty; for the ordinary modes of trial are never neglected, and no one wishes it otherwise; but if society is disturbed by civil commotion — if the passions of men are aroused and the restraints of law weakened, if not disregarded —these safeguards need, and should receive, the watchful care of those intrusted with the guardianship of the Constitution and laws. In no other way can we transmit to posterity unimpaired the blessings of liberty, consecrated by the sacrifices of the Bevolution.
“It is claimed that martial law covers with its broad mantle the proceedings of this Military Commission. The proposition is this: That in a time of war the commander of an armed force (if in his opinion the exigencies of the country demand it, and of which he is to judge) has the power, within the lines of his military district, to suspend all civil rights and their remedies, and subject citizens as well as soldiers to the rule of his will; and in the exercise of his lawful authority cannot be restrained, except by his superior officer or the President of the United States.
“If this position is sound to the extent claimed, then when war exists, foreign or domestic, and the country is subdivided into military departments for mere convenience, the commander of one of them can, if he chooses, within his limits, on the plea of necessity, with the approval of the executive, substitute military force for and to the exclusion of the laws, and punish all persons, as he thinks right and proper, without fixed or certain rules.
*342 “The statement of this proposition shows its importance; for, if true, republican government is a failure, and there is an end of liberty regulated by law. Martial law, established on such a basis, destroys every guaranty of the Constitution, and effectually renders the ‘military independent of and superior to the civil power’ — the attempt to do which by the king of G-reat Britain was deemed by our fathers such an offense, that they assigned it to the world as one of the causes which impelled them to declare their independence. Civil liberty and this kind of martial law cannot endure together; the antagonism is irreconcilable and, in the conflict, one or the other must perish.
“This nation, as experience has proved, cannot always remain at peace, and has no right to expect that it will always have wise' and humane rulers, sincerely attached to the principles of the Constitution. Wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln; and if this right is conceded, and the calamities of war again befall us, the dangers to human liberty are frightful to contemplate. If our fathers had failed to provide for just such a contingency, they would have been false to the trust reposed in them. They knew — the history of_ the world told them — the nation they were founding, be its existence short or long, would be involved in war; how often or how long continued, human foresight could not tell; and that unlimited power, wherever lodged at such a time, was especially hazardous to freemen. For this, and other equally weighty reasons, they secured the inheritance they had fought to maintain, by incorporating in a written Constitution the safeguards which time had proved were essential to its preservation. Not one of these safeguards can the President, or Congress, or the judiciary disturb, except the one concerning the writ of habaes corpus.”
“The illustrious men who framed that instrument were guarding the foundations of civil liberty against the abuses of unlimited power; they were full of wisdom, and the lessons of history informed them that a trial by an established court, assisted by an impartial jury, was the only sure way of protecting the citizen against oppression and wrong. Knowing this, they limited the suspension to one great right, and left the rest to remain forever inviolable. But, it is insisted that the safety of the country in time of war demands that this broad claim for martial law shall be sustained. 'If this were true, it could be well said that a country, preserved at the sacrifice of all the cardinal principles of liberty, is not worth the cost of preservation. Happily, it is not so.”
Again:
“Martial law cannot arise from a threatened invasion. The necessity must be actual and present; the invasion real, such as effectually closes the' courts and deposes the civil administration.” Ex parte Milligan, 4 Wall. 2" court="SCOTUS" date_filed="1867-01-22" href="https://app.midpage.ai/document/ex-parte-milligan-1528394?utm_source=webapp" opinion_id="1528394">4 Wall. 2, 18 L. Ed. 281 et seq.
The war powers of national government have been elaborately discussed by the United States supreme court in the Milligan Case, supra; Texas v. White, 7 Wall. 700" court="SCOTUS" date_filed="1869-04-12" href="https://app.midpage.ai/document/texas-v-white-88061?utm_source=webapp" opinion_id="88061">7 Wall. 700, 19 L. Ed. 227 et seq.; Ex parte Lange, 18 Wall. 163" court="SCOTUS" date_filed="1874-01-30" href="https://app.midpage.ai/document/ex-parte-lange-88804?utm_source=webapp" opinion_id="88804">18 Wall. 163, 21 L. Ed. 875; Ochoa v. Morales, 230 U.S. 139" court="SCOTUS" date_filed="1913-06-16" href="https://app.midpage.ai/document/ochoa-v-hernandez-y-morales-97958?utm_source=webapp" opinion_id="97958">230 U. S. 139, 33 Sup. Ct. 1033, 57 L. Ed. 1427" court="SCOTUS" date_filed="1913-06-16" href="https://app.midpage.ai/document/ochoa-v-hernandez-y-morales-97958?utm_source=webapp" opinion_id="97958">57 L. Ed. 1427.
Under section 10 of the Amendments of the Constitution of the United States, all powers not granted to the national government and not prohibited to the states are reserved to the states respectively or to the people. Under this provision it has been decided by the United States supreme court that all powers relating merely to municipal legislation or to internal police are not surrendered by the states, and in relation to these the power of a state is unqualified and exclusive (New York v. Miln, 11 Pet. 102" court="SCOTUS" date_filed="1837-02-16" href="https://app.midpage.ai/document/mayor-of-new-york-v-miln-86014?utm_source=webapp" opinion_id="86014">11 Pet. 102, 9 L. Ed. 648; United
Construing the statutes above quoted from, and the proclamation of the President, in connection with the decisions of the supreme court’ we are bound to conclude that it was not the purpose of either the President or Congress to prohibit the state courts from entertaining jurisdiction and proceeding to judgment in all cases as heretofore, but that the only purpose was to prevent states from seizing property necessary to be used in the maintenance of the transportation system of the country for the use of the national government.
In the case before us there is no effort to impair the railroad service by taking any of the property used in operation of railroads, and specially for the purposes named in the statutes above quoted from, and it is therefore unnecessary to say whether an execution could be levied or not. No effort is here made to levy an execution against the property used in transportation, but the garnishment here merely brings the Mobile & Ohio Railroad Company into court to answer whether it is indebted to the Texas & Pacific Railway Company, and, if so, that the court may render proper judgment fixing the rights of the parties with reference to such fund, but does not involve the seizure of any
The proclamation of the President, prohibiting execution or other mesne process, does not prevent, and was not intended to prevent, a proceeding of the character here involved. The word “mesne” means intermediate'; intervening; the middle between two extremes. Black’s Dictionary. As defined by the circuit court of the United States in Moredock v. Kirby, 118 F. 180" court="None" date_filed="1902-10-28" href="https://app.midpage.ai/document/moredock-v-kirby-9302519?utm_source=webapp" opinion_id="9302519">118 Fed. 180, at page 185, Judge EvaNS, in delivering this opinion, says: ’
“In Goldey v. Morning News, 156 U. S. 519, 15 Sup. Ct. 559, 39 L. Ed. 517" court="SCOTUS" date_filed="1895-03-04" href="https://app.midpage.ai/document/goldey-v-morning-news-94117?utm_source=webapp" opinion_id="94117">39 L. Ed. 517, allusion is made by the court to the service of ‘mesne process’ upon the ‘authorized agent’ of a defendant, but mesne process and original process and final process are very different things. Bouvier, in his Law Dictionary, defines the former by saying that ‘process which is issued in a suit between the original and final process is called “mesne process.” ’ The court, of course, used the word advisedly, and had nothing in view except an interlocutory notice, or something of a kindred nature.”
The fifteenth section of chapter 25, 40 Statutes at Large (Act March 21, 1918), in express terms reserves the lawful police regulations in the several states, except as to regulations which may affect the transportation of troops, war material, government supplies, or the issuance of bonds. This recognition of police regulations means to reserve to the states all the police power of the state unimpaired, except as to the subjects excepted in the statute, and in volume 6, "Words and Phrases (1st Ed.) p. 5438, we find the following:
“Police regulations are such provisions of law as are designed to protect the lives, limbs, health, comfort, and quiet of citizens, and secure them in the enjoyment of their property, which can be invoked only for an interference with one’s dominion over his own property to prevent such use of it by him, or its con*346 tinuance in such conditions as- would be detrimental to the community.”
Again:
“Laws and ordinances relating to the safety, comfort, health, convenience, good order, and general welfare of the inhabitants are styled ‘police regulations.’ ”
In Cooley on Constitutional Limitations,' star page 574, we find the following definition by that distinguished author:
“In the American constitutional system, the power to establish the ordinary regulations of police has' been left with the individual states, and cannot be assumed by the national government. Neither can the national government, through any of its departments or officers, assume any supervision of the police regulations of the states, so long as they do not invade the sphere of national sovereignity, and obstruct or impede the exercise of any authority which the Constitution has confided to the nation.”
It is unnecessary now to decide whether an execution could issue after final judgment or not. That question can be decided when it arises properly. We are satisfied that it was not the meaning of Congress, nor of the President, to undertake to prohibit the states from administering justice and to compel the discharge of lawful obligations or to protect private rights. It is clear to us that the garnishee is not entitled to'plead the question presented by its answer in this cause, and that it was the purpose of Congress to prohibit these questions being presented by the railroads. It is presumed that, when the judgment is established in a court of competent jurisdiction, that the Director General operating the carriers, will discharge such obligations against such carriers, or permit such carriers to do so without question. We are satisfied that Congress and the President did not intend to suspend the collection of debts against carriers, or to grant the
We think the learned court below erred in discharging the.. Mobile & Ohio Eailroad Company as garnishee, and in holding that it had no jurisdiction to proceed to determine the controversy before it.
It is urged here, by the appellees Vicksburg, Shreveport & Pacific Eailroad and the Alabama & Vicksburg Eailway, that the judgment should be affirmed as to them? because the cause was set down for hearing less than four months after the answer was filed, and therefore the answer must be takn as true.' Inasmuch as the chancellor held that he had no jurisdiction, we think the cause should be reversed and remanded in accordance with law, and the case is accordingly reversed and remanded.
Reversed and remanded.