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(232 Mass, 465, P.U.R.1919D, 49, 122 N. E. 567.) 564, 39 L. ed. 1092, 15 Sup. Ct. Rep. needful or desirable for the duration 900; Ex parte Siebold, 100 U. S. 371, of the war." [40 Stat. at L. 904, 25 L. ed. 717; People v. Hudson River

chap. 154, Comp. Stat. § 31154x.] Connecting R. Corp. 104 Misc. 19, 171

The President exercised the power
N. Y. Supp. 971; Atchison, T. & S. F. R.
Co. v. United States, 225 U. S. 640, 649,

thus conferred by his proclamation 56 L. ed. 1236, 1239, 32 Sup. Ct. Rep.

of July 22, 1918. Its relevant pro702; Missouri Pub. Utilities Co. v.

visions were that “I

do Poplar Bluff (Mo.) P.U.R.1915D, 974; hereby take possession and assume White Oak Light, Heat & P. Co. v. control and supervision of each and Benson (Pa.) P.U.R.1916A, 811; Re every telegraph and telephone sysSouth Side Gas & E. Co. (Ariz.) P.U.R. tem, and every part thereof, within 1918A, 493; Re Southern California

the jurisdiction of the United States, Mountain Water Co. 11 A, T. & T. Co.

including all equipment thereof and Com. L. 83.

appurtenances thereto whatsoever Messrs. C. M. Bracelin for the Post

and all materials and supplies. It master General, and T. J. Boynton, United States District Attorney, amici

is hereby directed that the supercuriæ.

vision, possession, control, and oper

ation of such telegraph and teleRugg, Ch. J., delivered the opinion phone systems hereby by me underof the court:

taken shall be exercised by and This is a bill in equity brought through the Postmaster General, under Stat. 1913, chap. 784, § 28, to

Albert S. Burleson. Said Postenforce by injunction an order of

master General may perform the the Public Service Commission dat

duties hereby and hereunder imed January 20, 1919, relative to toll

posed upon him, so long and to such telephone rates within the common

extent and in such manner as he wealth. The case comes before us

shall determine, through the ownby reservation for determination

ers, managers, boards of directors, upon the bill and receivers, officers, and employees of Pleading

answer.

The case equity cause

said telegraph and telephone sysAllegation must be considered

tems. Until and except so far as upon the footing said Postmaster General shall from that the averments of the answer

time to time by general or special are true where in conflict with those

orders otherwise provide, the ownof the bill and that the allegations

ers, managers, boards of directors, of the bill are true only so far as

receivers, officers, and employees of admitted or not at variance with

the various telegraph and telephone facts well pleaded in the answer.

systems shall continue the operation Perkins v. Nichols, 11 Allen, 542; thereof in the usual and ordinary American Carpet Lining Co. v.

course of the business of said sysChipman, 146 Mass. 385, 16 N. E. 1, tems, in the names of their respecThe pertinent facts thus ascertained are that before July 31, 1918, the izations, owners, or managers, as

tive companies, associations, organdefendant was a corporation operate the case may be.

From and ing within the commonwealth an extensive system for the transmission

taken as true.

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after 12 o'clock midnight on the of intelligence by telephone. On

31st day of July, 1918, all telegraph July 16, 1918, during the continu

and telephone systems included in ance of the great war, the Congress

this order and proclamation shall of the United States in the exercise

conclusively be deemed within the of its war powers passed a resolu- possession and control and under the tion empowering the President dur- supervision of said Postmaster Gening the war "to supervise or to take

eral without further act or notice." possession and assume control of [40 Stat. at L. 163]. any telegraph, telephone, marine On August 1, 1918, the Postcable, or radio system or systems, or master General issued a bulletin any part thereof, and to operate the wherein he declared: “Pursuant to same in such manner as may be the proclamation of the President of

4 A.L.R.-105.

DD.

, 102

the United States, I have assumed the amount of such compensation is possession, control, and supervision not in any respect dependent upon of the telegraph and telephone sys- the financial result of the operation tems of the United States.

of its system by the United States Until further notice the telegraph government, and the defendant has and telephone companies shall con- no pecuniary interest in the profits tinue operation in the ordinary or losses resulting from such operacourse of business through regular tion. The resolution of Congress of channels. Regular dividends here- July 16, 1918, conferred ample tofore declared and maturing inter- power upon the President to deterest on bonds, debentures, and other mine the amount of just compensaobligations may be paid in due tion to be paid to the owner for such course, and the companies may re- possession, supervision, control, and new or extend their maturing obli- operation. gations unless otherwise ordered by The defendant has pleaded that the Postmaster General. All officers, the United States, the President, the operators, and employees of the tele- Postmaster General, or some one or graph and telephone companies will more of them, are necessary parties continue in the performance of their to this proceeding, and further that present duties, reporting to the the proceeding is in substance same officers as heretofore and on · against the United States, and that the same terms of employment." the relief prayed for, which relates

The proclamation of the Presi- exclusively to toll rates for intradent and the bulletin of the Post- state telephone service, will in efmaster General have been put into fect restrain the United States in effect and operation according to its control, possession, and operatheir terms, and are still in force tion of the telephone system belongunrevoked and unmodified. The an- ing to the defendant and formerly swer avers further that, pursuant to operated by it, and that it has not this proclamation and bulletin, the been since July 31, 1918, a common entire telephone system of the de- carrier or otherwise furnishing as a fendant, including all its equip- corporation any service for public ment, appurtenances, material, sup- use so as to be subject to the jurisplies, and property of every descrip- diction of the Public Service Com tion, has been taken possession of mission under Stat. 1913, chap. 784. by the government of the United It is conceded by both parties States and is vested in the President hereto that the resolution of Conand is controlled and operated ex- gress of July 16, 1918, was a conclusively by him, and that in conse- stitutional exercise of the war powquence thereof the defendant has ers of the Federal government, and been devested of all its telephone that the proclamation of the Presisystem and all its property of every dent and the bulletin of the Postkind thereto appertaining and of all master General have been pursuant power, management, and control thereto and are operative according over the same, and retains only the to their terms. legal title thereto. Just compensa- The order of the Public Service tion for the supervision, possession, Commission here sought to be encontrol, and operation by the gov- forced purported to suspend the takernment of the United States of the ing effect of substantial increases in defendant's telephone system in an the rates of toll charges to users of amount satisfactory to it has been the telephone between places within determined upon and awarded to the commonwealth, in accordance and accepted by it, and an agree- with a "basic toll-rate schedule" isment has been entered into whereby sued by an order of the Postmaster the entire compensation to be re- General of the United States. ceived by it from July 31, 1918, to It seems manifest from this narthe end of the period of govern- ration of facts and recital of official mental control has been fixed, and documents that the United States is (232 Ma88. 465, P.U.R.1919D, 49, 122 N. E. 567.) vitally interested and is alone con- now the sole financial affair of the cerned in the toll rates to be collect- United States. ed for telephone service over the The reasonableness and amount of system belonging to the defendant. the rates to be charged for intraThe resolution of Congress of July state toll telephone service are of 16, 1918, is most comprehensive in direct concern to the United States. scope. It authorized the President As was said in Wells v. Roper, 246 to take full, complete, absolute, and U. S. 335, at page 337, 62 L. ed. unqualified possession of the defend- 755, 760, 38 Sup. Ct. Rep. 317: ant's system. It seems to us that "That the interests of the governthe proclamation of the President ment are so directly involved as to according to its true construction make the United States a necessary was coextensive in its sweep with party and therefore to be considthe power conferred by the resolu- ered as in effect a party, although tion. By express words the Presi- not named in the bill, is entirely dent took possession and assumed plain.” control of every part of each and In Louisiana v. McAdoo, 234 U. every telephone system, including all S. 627, at page 629, 58 L. ed. 1506, equipment and appurtenances and 1507, 34 Sup. Ct. Rep. 939, are all materials and supplies. It would found these words: "That the be difficult to employ words of United States is not named on the broader reach or wider embrace record as a party is true. But the than those in which the proclama question whether it is in legal effect tion is couched. The phrasé of the a party to the controversy is not bulletin of the Postmaster General always determined by the fact that is equally comprehensive in its it is not named as a party on the grasp. The effect of these docu- record, but by the effect of the judgments was not a mere public super- ment or decree which can here be vision of an operation by private rendered. Minnesota v. Hitchcock, owners. It was a complete assump- 185 U. S. 373, 387, 46 L. ed. 954, tion of entire possession and un- 962, 22 Sup. Ct. Rep. 650." qualified control, to the exclusion of These statements but summarize

every private inter- the effect of earlier and exhaustive Telephoneassumption of est. No distinction discussions of the principles appliauthority by is made by their cable to states of facts so similar President-eleot.

terms between in- to those presented in the case at terstate service and intrastate serv- bar as to be indistinguishable. Belice. Both alike are taken into the pos- knap v. Schild, 161 U. S. 10, 40 L. session of the United States. Pow. ed. 599, 16 Sup. Ct. Rep. 443, and ers so extensive as were thus as

cases there reviewed by Mr. Justice sumed can be exercised only through Gray; Louisiana v. Garfield, 211 U. various governmental agencies.

S. 70, 77, 53 L. ed. 92, 29 Sup. Ct. But the right and power of the gov- Rep. 31; Oregon v. Hitchcock, 202 U. ernment are paramount and admit S. 60, 50 L. ed. 935, 26 Sup. Ct. Rep. of no associates. In execution of the

568; Naganab v. Hitchcock, 202 U. authority conferred by the resolution of July 16, 1918, just compensa

S. 473, 50 L. ed. 1113, 26 Sup. Ct. tion for that which has been taken

Rep. 667. The circumstance that

the United States is not the owner from the defendant has been awarded by the President and accepted by of the system of the defendant, but the defendant. Its interest has

only lawfully in possession of it with come to an end as to the matter of

the right to collect reasonable tolls, charges to be exacted for the service

is immaterial in this connection. rendered by the United States for

“It has a property, a right in rem, the use of the property of the de

which, though less extensive fendant. The government has ut- than absolute ownership, has the terly supplanted the defendant in same incident of a right to use." this field. The matter of rates is International Postal Supply Co. v.

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Bruce, 194 U. S. 601, 606, 48 L. ed. the lawful police regulations of the 1134, 1137, 24 Sup. Ct. Rep. 821. several states, except wherein such

We think the case at bar is dis- laws, powers, or regulations may aftinguishable from Kaufman v. Lee, fect the transmission of government 106 U. S. 196, 27 L. ed. 171,

ed. 171, communications, or the issue of 1 Sup. Ct. Rep. 240; Tindal v. stocks and bonds by such system or Wesley, 167 U. S. 204, 42 L. ed. systems." [40 Stat. at L. 904, chap. 137, 17 Sup. Ct. Rep. 770; Ameri- 154, Comp. Stat. § 31154x.] can School v. McAnnulty, 187 U. That proviso does not seem to us S. 94, 47 L. ed. 90, 23 Sup. Ct. Rep. reasonably susceptible of being 33; Philadelphia Co. v. Stimson, 223 stretched by implication to include U. S. 605, 56 L. ed. 570, 32 Sup. a consent to be impleaded in the Ct. Rep. 340, and similar cases state courts in such a proceeding as where relief was granted against of- this. Such consent is not commonly ficers of the United States acting inferable from such remote and outside of their authority. There is equivocal phrase having direct and nothing on this record to indicate adequate reference to another matthat the defendant, if and so far as ter. Troy & G. R. Co. v. Com. it is an agency of the Federal gov 127 Mass. 43. Therefore it appears ernment, upon which we express no to us unnecessary to consider or disopinion, is exceeding the limits of cuss the merits of the question power conferred by the resolution, whether the proviso of the resoluproclamation, and bulletin.

tion of July 16, 1918, under its reser. It is a fundamental principle of vation of "lawful police regulations law that “the United States,

of the several states" "justifies rate like all sovereigns, cannot be im- regulation by a state in the exercise

United States.

pleaded in a judicial of its police power" (Union Dry Parties

tribunal, except so Goods Co. v. Georgia Pub. Service

far as they have Corp. 248 U. S. 372, 375, 63 L. ed. consented to be sued." Belknap v.

309, 311, - A.L.R. -, P.U.R.1916C, Schild, 161 U. S. 10, 16, 40 L. ed.

60, 39 Sup. Ct. Rep. 117) because we 599, 601, 16 Sup. Ct. Rep. 444; Mc

do not reach it. As was said by Mr. Arthur Bros. Co. y. Com. 197 Mass.

Justice Holmes in United States ex 137, 83 N. E. 334. We are aware of no statute where

rel. Goldberg v. Daniels, 231 U. S. by the United States has consented 218, 221, 222, 58 L. ed. 191, 192, 34 either to become a party to rate

Sup. Ct. Rep. 84: "There is another fixing proceedings before the Pub

that comes earlier lic Service Commission or before

in point of logic. Pablle Service

The United States is regulation of this court under Stat. 1913, chap. 784. No such statute has been

in posses- company in called to our attention.

sion..

It can-' possession of

government.

not be interfered It is the contention of the attorney general in behalf of the Public

with behind its back, and as it canService Commission that the reso

not be made a party this suit must lution of Congress of July 16, 1918,

fail.” reserved to the states the right to Petition dismissed. regulate intrastate rates to the same extent as that power

Affirmed by the Supreme Court of existed before Fed the United States June 2, 1919. 250

eral control. That U. S. 195, 63 L. ed. 934, 39 Sup. Ct. contention is founded upon the final Rep. 511. clause of the resolution, which is in these words: "Provided further, that nothing in this act shall be con

NOTE. strued to amend, repeal, impair, or affect existing laws or powers of The United States Supreme Court, the states in relation to taxation or in affirming the decree in the reported

rates of

-consent to be sued.

(232 Ma88. 465, P.U.R.1919D, 49, 122 N. B. 567.) case (PUBLIC SERVICE COMMISSION V. way affected the control and decisive NEW ENGLAND TELEPH. & TELEG, Co. result, upon every issue in the case, ante, 1662), under the title Macleod v. of the ruling announced in DAKOTA New England Teleph. & Teleg. Co. CENT. TELEPH. Co. v. SOUTH DAKOTA, (1919) 250 U. S. 195, 63 L. ed. 934, 39 ante, 1623. That case denied as a matSup. Ct. Rep. 511, referred to the deci- ter of substantive law the power of sion of the state court to the effect the state to regulate intrastate rates that the suit was virtually one against of telephone companies under Federal the United States, which the court was control. without power to entertain, and to the The general subject of Federal confact that the decree was one of dis- trol of public utilities is treated in missal for want of jurisdiction, and the annotation beginning at page 1680, said that the form of the decree in no post.

L. N. DANTZLER LUMBER COMPANY, Appt.,

V.
TEXAS & PACIFIC RAILWAY COMPANY et al.

MOBILE & OHIO RAILROAD COMPANY et al., Garnishees.

Mississippi Supreme Court (Div. B) - March 3, 1919.

(119 Miss. 328, 80 So. 770.)

Garnishment -- railroad account - Federal control - power of state court.

1. Railroads are not exempted from garnishment in a state court of an account due from a nonresident road, for the purpose of securing jurisdiction over the latter, by the act of Congress and proclamation of the President taking over the roads for war purposes.

[See note on this question beginning on page 1680.] Railroads - taking by government entertaining jurisdiction to and propurpose.

ceeding to judgment in all cases as be2. It was not the purpose of Con- fore, but were merely prevented from gress, in enacting the laws permitting seizing property necessary to be used the President to take over the railroad in the maintenance of the transportalines for war purposes, to displace the tion system of the country for the use state control any further than was of the national government. necessary to enable the government to Garnishment effect of proclamation. carry on war activities, transporting

5. The proclamation of the Presithe troops, war materials, government

dent in taking over the railroads for supplies, and issuing the bonds.

war purposes, prohibiting execution or Constitutional law - power of state. other mesne process, does not prevent

3. Under the amendment to the Fed- a garnishment in a state court of an eral Constitution providing that all account in the hands of a local road powers not granted to the Federal gov- against a foreign one, for the purpose ernment are reserved to the state, all of securing jurisdiction over the latter. powers relating merely to municipal

Definition - mesne. legislation or the internal police are not

6. The word “mesne" means intersurrendered by the state.

mediate; intervening; the middle be[See 6 R. C. L. 136.]

tween two extremes. Railroads — purpose of possession of general government.

Evidence presumption action of 4. State courts were not prohibited

official. by the act of Congress and proclamation 7. The court presumes that if a judg. of the President taking possession of ment is entered against a railroad unthe railroads for war purposes from der control of the Director General, he

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