239 Mass. 80 | Mass. | 1921
These two suits were brought under R. L. c. 159, § 3, cl. 7, to reach and apply certain property or interests of the defendant in payment of its overdue bonds held by the plaintiff. The records in the two suits are identical except that the first was brought upon bonds of the total face value of $42,000, and the second upon bonds totalling $6,000. The cases are here on the plaintiff’s- appeal from decrees of the Superior Court, sustaining the defendant’s demurrers, and dismissing the bills.
The bills allege in substance, that under the “ Transportation Act, of 1920 ” the Interstate Commerce Commission, as soon as practicable after September 1, 1920, is required to ascertain and certify to the Secretary of the Treasury the amounts necessary to make good to carriers certain guarantees of the railway operating income provided for by that act; that said Secretary is directed “ thereupon to draw warrants in favor of each- such carrier;” and that the commission has certified to the Secretary of the Treasury that the sum of $200,000 is necessary to make good said guarantee to the defendant.
The bills further allege that under the federal control act of March 21, U. S. St. 1918, c. 25, § 1, the defendant is entitled to certain compensation in lieu of its railway operating income, — the precise nature of which is unknown to the plaintiff. He prays that these claims against the United States be reached and applied in payment of his debt; that the defendant be ordered to prosecute said claims until the issue of warrants based thereon; and to assign such warrant if and when issued to some person to be appointed by the court; that enough of the proceeds be retained by that person to satisfy the plaintiff’s claim; and that the debt due to the plaintiff be established, and the defendant ordered to pay the same.
The federal control act of 1918 provided that during the period of such federal control the carrier making the agreement provided for in § 1 “ shall receive as just compensation an annual sum, payable from time to time in reasonable installments, for each year and pro rata for any fractional year of such federal control, not exceeding a sum equivalent as nearly as may be to its average annual railway operating income for the three years ended June thirtieth, nineteen hundred and seventeen. That any railway operating income accruing during the period of federal control in
The jurisdiction to reach and apply property under the statute depends upon the fact that the property is of such a nature that it “ cannot be reached to be attached or taken on execution in an action at law.” Hoshor-Platt Co. v. Miller, 190 Mass. 285. It is urged by the defendant, however, that the compensation coming to it could be reached by trustee process in an action at law, if it were due from a private person; because the statute relating to trustee process expressly provides that “money or any other thing which is due to the defendant absolutely and without any contingency may be so attached before it has become payable.” R. L. c. 189, § 23 (G. L. c. 246, § 24.) It is unnecessary to pass upon this defence, as a conclusive objection to the bill is that the United States, in whose possession the property is alleged to be, and which is materially interested in the issues of its indebtedness
The plaintiff contends that he can maintain the bill in its present form under the language of the statute which authorizes suits although “. . . the property sought to be reached and applied is in the hands, possession or control of the debtor independently of any other person.” Under this amendment (St. 1884, c. 285) of the original statute it has been held that letters patent of the United States in the possession and control of the debtor can be reached. Wilson v. Martin-Wilson Automatic Fire Alarm Co. 149 Mass. 24; S. C. 151 Mass. 515. McCann v. Randall, 147 Mass. 81, decided that a United States treasury draft, which was issued upon the award of the Court of Commissioners of Alabama Claims, and was found here unindorsed in the custody of the payee’s agent, could be reached by a creditor of the payee. But in the present case no treasury warrant has been issued. The obligation of the government of the United States, which according to the allegations of the bill was largely undetermined, clearly was not property “in the hands, possession, or control of the debtor independently of any other person,” when the suit was brought. See Amy v. Manning, 149 Mass. 487,489,490; Hopedale Manuf. Co. v. Clinton Cotton Mills, 224 Mass. 193.
It is unnecessary to consider the applicability of U. S. Rev. Sts. § 3477, prescribing the forms for assignments of claims against the United States. See Jennings v. Whitney, 224 Mass. 138, 143; Price v. Forrest, 173 U. S. 410. As bearing on the question of assignability, however, we cannot overlook the fact that the government of the United States is substantially interested in the amounts payable to the defendant under the statutes and contracts in question; and that the evident purpose of Congress was
In each case, the interlocutory decree sustaining the demurrer, and the final decree dismissing the bill, must be affirmed, with costs.
Ordered accordingly.
