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will discharge such obligation or per- want of jurisdiction will be reversed mit the carrier to do so without ques- for new trial, and not affirmed for the tion.

reason that it was set down for hear[See 10 R. C. L. 880.]

ing less than four months after the Appeal - dismissal for want of juris- answer was filed, which, under the diction effect.

rules, requires the answer to be taken 8. A cause erroneously dismissed for as true.

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APPEAL by plaintiff from a decree of the Chancery Court for Harrison County (W. M. Denny, Jr., Chan.), dismissing a proceeding as to the garnishee railroad and as to certain other defendants, in an action brought to recover damages for injury to plaintiff's cattle while in defendant's possession for transportation. Reversed.

The facts are stated in the opinion of the court.

Messrs. White & Ford, for appel- County, 104 Miss. 752, 61 So. 703; lant:

Adams v. Yazoo & M. Valley R. Co. 75 The Mobile & Ohio Railroad could Miss. 275, 22 So. 824. not object to the proceeding against A branch or department of sovereignthe indebtedness.

ty, exercising governmental function, Moore v. Chicago, R. I. & P. R. Co. is not subject to service of writs of 43 Iowa, 385; Weaver Grocery Co. v. garnishment. Upon objection being Cain Mill. Co. 117 Miss. 781, 78 So. raised by such branch or department of 769; Thornley v. Lawbaugh, 31 N. D. governmental character, the writ of 651, 47 L.R.A.(N.S.) 1127, 143 N. W. garnishment will be quashed or dis348; Alabama G. S. R. Co. v. Crawley, missed. 118 Miss. 272, 79 So. 94; Exchange Dollman v. Moore, 70 Miss. 267, 19 Nat. Bank v. Clement, 109 Ala. 270, 19 L.R.A. 222, 12 So. 23; Clarksdale ComSo. 814; 12 R. C. L. p. 850.

press Co. v. Caldwell Co. 80 Miss. 343, Messrs. McDonald & Marshall, for 31 So. 790; Dollar v. Allen-West Comappellee Mobile & Ohio R. Co.:

mission Co. 78 Miss. 274, 28 So. 876; The plain purpose of the provision 20 Cyc. 990; 12 R. C. L. 841; 14 Am. & of § 10 was to prevent any interference Eng. Enc. Law, 2d ed. 814. with the operation of railroads under Messrs. Wells, May, & Sanders, Federal control by seizure of the prop- amici curiæ: erty used in the operation.

The court erred in holding that the Louisville & N. Ř. Co. v. Steele, 180 chancery court of Harrison.county, MisKy. 294, 202 S. W. 878.

sissippi, was invested with jurisdiction The unquestionable object of Con- to render a judgment or decree against gress and the President was to secure the property of the United States govas a war measure the free and unim- ernment. peded operation of the country's trans- Delta Ins. & Realty Co. v. Interstate portation systems.

F. Ins. Co. 113 Miss. 542, 74 So. 420. Dooley v. Pennsylvania R. Co. 250 The venue of actions is subject to Fed, 142; 18 R. C. L. 1267; Jacobs's legislative control, either Federal or Estate, 140 Pa. 268, 11 L.R.A. 767, 23 state, and Congress is invested with the Am. St. Rep. 230, 21 Atl. 318.

power to enact legislation upon this The tern "mesne process" is now subject, suspending and superseding used generally to distinguish all other state legislation upon the same subject, process from the final process.

particularly under the stress of an Birmingham Dry Goods Co. v. Bled

emergency of war. soe, 113 Ala. 418, 21 So. 403; Fletch- Wainwright v. Pennsylvania R. Co. er v. Morrell, 78 Mich. 176, 44 N. W. 253 Fed. 459; Legal Tender Cases, 12 133; Place v. Washburn, 163 Mass. 530, Wall. 457, 539, 20 L. ed. 287, 308; 40 N. E. 853; Hirshiser v. Tinsley, 9 Rhodes v. Tatum, Tex. Civ. App. Mo. App. 339; Pennington v. Lowen- 206 S. W. 114; New York C. R. Co. v. stein, Fed. Cas. No. 10,938; Love v. Winfield, 244 Ú. S. 147, 61 L. ed. 1045, Taylor, 26 Miss. 567; State Bd. of Edu. L.R.A.1918C, 439, 37 Sup. Ct. Rep. 546, v. Mobile & O. R. Co. 72 Miss. 236, 16 Ann. Cas. 1917D, 1139, 13 N. C. C. A. So. 489; McIntyre v. Ingraham, 35 680; New Orleans & N. E. R. Co. v. Har. Miss. 25; Wray v. Kelly, 98 Miss, 172, ris, 247 U. S. 368, 62 L. ed. 1169, 38 53 So. 492; Holly Springs v. Marshall Sup. Ct. Rep. 535; Adams Exp. Co. v.

(119 Mi88. 328, 80 8o. 770.) Croninger, 226 U. S. 491, 57 L. ed. 314, tion, having been in transportation, 44 L.R.A.(N.S.) 257, 33 Sup. Ct. Rep. for one hundred and ten and one148.

half hours, and they were only fed No court, and particularly no state twice during the said period of time; court, can order an appropriation of

that they were roughly handled in money of the Federal government or

transit by the Texas & Pacific Railany agency thereof.

way Company, and roughly handled Stanley v. Schwalby, 147 U. S. 508,

to a certain extent by all the other 37 L. ed. 259, 13 Sup. Ct. Rep. 418;

carriers over which they moved, and Carr v. United States, 98 U. S. 438, 25 L. ed. 211; The Siren, 7 Wall. 152, 19

as a result said cattle were injured L. ed. 129; The Davis (United States

and died in transit to the value of v. Douglas) 10 Wall. 15, 19 L. ed. 875. $600, and other cattle were damaged

Messrs. R. H. Thompson, J. H. in the sum of $5,600; and that by Thompson, and B. E. Eaton also for said damage a number of cattle died appellees.

after being unloaded, and others Ethridge, J., delivered the opinion

were so injured and diseased that it of the court:

took expensive treatment for them

to recover from said injuries. It The appellant filed a bill for at

was alleged in the bill that the tachment in the chancery court un

Louisville & Nashville Railroad der § 536, Code of 1906 ($ 293, Company, the Illinois Central RailHemingway's Code), against the

road Company, the Yazoo & MissisTexas & Pacific Railway Company, sippi Valley Railroad Company, and a foreign corporation operating be

the Mobile & Ohio Railroad Comtween Ft. Worth, Texas, and Shreve

pany, and also the carriers over port, Louisiana, and against the which the shipment moved, were inVicksburg, Shreveport, & Pacific debted unto the Texas & Pacific RailRailroad Company, a railway cor

road Company, and will be further poration operating between Shreve- indebted to said defendant in the port, Louisiana, and Vicksburg, future, and pending the trial of this Mississippi, the Alabama & Vicks

cause, and process was brought ville & Nashville Railroad Company, against each of defendants to an

swer said bill and to disclose in the Gulf & Ship Island Railroad

what sums and what amounts Company, the Yazoo & Mississippi

each was indebted to the Texas & Valley Railroad Company, the Illinois Central Railroad Company,

Pacific Railway Company. This bill and the Mobile & Ohio Railroad

was filed March 25, 1918, and sumCompany, alleging that on the 10th mons issued to all the defendants, day of October, 1917, the Texas & except the Texas & Pacific Railway Pacific Railway Company agreed Company, for which publication was with complainant, in consideration made. of a freight rate paid therefor, to

The defendants severally antransport for the complainant from swered the bill, the Illinois Central Ft. Worth, Texas, to Howison, Mis- Railroad Company, the Louisville sissippi, ten carloads of cattle, the & Nashville Railroad Company, property of the complainant, and is- the Yazoo & Mississippi Valley sued bill of lading therefor; that the Railroad Company and the Mobile cattle were transported over the & Ohio Railroad Company (being Texas & Pacific Railway to Shreve- garnishees alone). Each, except port, Louisiana, and over the Vicks- the Mobile & Ohio Railroad Comburg, Shreveport, & Pacific Railroad pany, answered that they were to Vicksburg, over the Alabama & not indebted to the Texas & PaVicksburg Railway to Jackson, Mis- cific Railway Company, but, on sissippi, and over the Gulf & Ship the contrary, that the said Texas Island Railroad to Howison, Mis- & Pacific Railway Company was insissippi; that said cattle were un- debted to said garnishees. The Moreasonably delayed in transporta- bile & Ohio Railroad answered the bill, admitting an indebtedness on tion of Their Owners and for Other the 31st of March, 1918, as follows: Purposes." Unpaid vouchers, $1,149.77; inter- That by § 10 of the said act ( line ticket account, $151.54; car 31153j) it was provided: “But no service, $983.20; freight claims, process, mesne or final, shall be $43.68,_total, on March 31, 1918, levied against any property under $2,232.19; and that, accruing from such Federal control." March 31 to April 30, 1918, there It further alleged that any money were unpaid vouchers, $2,227.64; that may be due from the Mobile & interline ticket account, $109.17; Ohio Railroad Company to the Texcar service, $661.35; freight claims, as & Pacific Railway Company since $55.78.

the service of the writ upon the The answer of the defendant Mo- Mobile & Ohio Railroad Company is bile & Ohio Railroad Company set property under the control of the up:

Federal government, within the That the respondent Mobile & meaning of the said proclamation Ohio Railroad Company is a cor- of the President and the said act of poration which was, until the 26th Congress, under the orders of the day of December, 1917, engaged in Director General of Railroads. It is operating a railroad, a part of which alleged further that the company was within the state of Mississippi; was made a party simply as a garthat on said date the President of nishee, in order that any indebtedthe United States issued a procla- ness of this defendant to the Texas mation and took possession and as- & Pacific Railway Company might sumed control for the government be condemned to pay the demand of of the United States of the trans- the complainant against the Texas portation systems of the United & Pacific Railway Company, and alStates, including all of the property leged that the writ served on this of the Mobile & Ohio Railroad Com- defendant for that purpose is mesne pany and of the defendant Texas & process within the meaning of the Pacific Railway Company, used in said act of Congress, and was in viotransportation as common carriers, lation of law and void. and the said proclamation was in The defendant, after filing this part as follows: "Except with the answer, moved the court to dismiss prior written assent of said Director, the proceeding as to the Mobile & no attachment by mesne process or Ohio Railroad Company and dison execution shall be levied on or charge it, which motion the trial against any of the property used by judge sustained. The Texas & Paany of said transportation systems cific Railway Company did not anin the conduct of their business as swer, and decree pro confesso was common carriers."

taken, and proof of the amount of That the Congress of the United damage introduced. The Gulf & States ratified the said act of the Ship Island, Alabama & Vicksburg, President of the United States and

and Vicksburg, Shreveport, & Paprovided for the control and opera

cific Railroad Companies denied the tion of the railroads of the United allegations of the bill so far as their States, including the property of the respective handling of the cattle is Mobile & Ohio Railroad Company concerned, and answered that they and of the Texas & Pacific Railway had no information as to the allegaCompany, by an act approved March tions against the Texas & Pacific 21, 1918, chap. 25, 40 Stat. at L. 451- Railway Company, except that they 458, Comp. Stat. $$ 31152a-31153p, say that the delay in transportation Fed. Stat. Anno. Supp. 1918, pp. was not unreasonable. After the 757-766, entitled: "An Act to Pro- court dismissed the case against the vide for the Operation of Trans- Mobile & Ohio Railroad, the comportation Systems While under Fed- plainant moved for judgment against eral Control, for the Just Compensa- the Vicksburg, Shreveport, & Pacific, (119 Mi88. 328, 80 80.770.) Texas & Pacific, Alabama & Vicks- and except so far as said Director burg, and Gulf & Ship Island Rail shall from time to time otherwise road Companies; but the court below by general or special orders deterheld that it had no jurisdiction, and mine, such systems of transportation dismissed the bill. From this judge shall remain subject to all existing ment the L. N. Dantzler Lumber statutes and orders of the Interstate Company appealed here.

Commerce Commission, and to all The principal question for deter- statutes and orders of regulating mination is whether or not the Mo- commissions of the various states in bile & Ohio Railroad Company could which said systems or any part be garnished as a foundation to sus- thereof may be situated. But any tain the attachment against the Tex- orders, general or special, hereafter as & Pacific Railway Company, no made by said Director, shall have other property belonging to the paramount authority and be obeyed Texas & Pacific Railway Company as such." [40 Stat. at L. 90.] than this indebtedness of the Mobile On the 11th day of April, 1918, & Ohio Railroad Company being the President issued another proclafound in the state. The bill was mation, taking possession and asfiled on the 25th day of March, 1918, suming control, through Acting Secand the garnishment served on the retary of War, at 12:01 A. M. on Mobile & Ohio Railroad Company the 13th day of April, 1918, of each on the same date.

and every system of transportation, On the 29th of August, 1916, Con naming certain steamship and other gress enacted a law, one section of transportation companies, to be exwhich only is pertinent to this cause, ercised under the direction and conwhich reads as follows: Control of trol of William G. McAdoo, Director transportation systems in time of General of Railroads. After the war.--"The President, in time of promulgation of these orders or war, is empowered, through the Sec- proclamations of the President, retary of War, to take possession based upon the statute above quoted, and assume control of any system or

the different transportation comsystems of transportation, or any panies took the position that the part thereof, and to utilize the same, railroads were under the control of to the exclusion as far as may be the government, and that they had necessary of all other traffic there- the right to remove causes to the on, for the transfer or transporta. Federal courts, and that they could tion of troops, war material and not be sued without the consent of equipment, or for such other pur- the United States. On the 21st of poses connected with the emer- March, 1918, by 40 Stat. at L. 451, gency as may be needful or desir- chap. 25, Congress passed an addi

39 Stat. at L. 645, chap. 418, tional act dealing with the subject of $ 1, Comp. Stat. $ 1974a, 9 Fed. Stat. governmental control of railroads Anno. 2d ed. p. 1095.

and other transportation concerns. On the 26th day of December, In § 10 of said Act of March 21, 1918, 1917, the President issued a procla- Comp. Stat. § 31154), it is provided : mation, reciting that it had become Liabilities of carriers; actions by necessary in the national defense to and against.-"Carriers while untake possession and assume control der Federal control shall be subject of certain systems of transportation to all laws and liabilities as common and to utilize the same, to the ex- carriers, whether arising under clusion, so far as may be necessary, state or Federal laws or at common of all other traffic thereon, for the law, except in so far as may be intransportation of troops, war ma- consistent with the provisions of this terial, and equipment therefor, and act or any other act applicable to for other needful and desirable pur- such Federal control or with any poses connected with the prosecu- order of the President. Actions at tion of the war. In this proclama- law or suits in equity may be tion is found the following: “Until brought by and against such car

able.”

riers and judgments rendered as strued to amend, repeal, impair, or
now provided by law; and in any ac- affect the existing laws or powers of
tion at law or suit in equity against the states in relation to taxation or
the carrier, no defense shall be the lawful police regulations of the
made thereto upon the ground that several states, except wherein such
the carrier is an instrumentality or laws, powers, or regulations may af-
agency of the Federal government. fect the transportation of the
Nor shall any such carrier be en- troops, war materials, government
titled to have transferred to a Fed- supplies, or the issue of stocks and
eral court any action heretofore or bonds."
hereafter instituted by or against It will be noted from the sections
it, which action was not so trans- above quoted of the Act of March 21,
ferable prior to the Federal control 1918, that while under Federal con-
of such carrier; and any action trol, the carriers shall be subject to
which has heretofore been so trans- all laws and liabilities as common
ferred because of such Federal con- carriers, whether arising under
trol or of any act of Congress or state or Federal laws or at common
official order or proclamation relat- law, except so far as may be incon-
ing thereto shall upon motion of sistent with the provisions of this
either party be retransferred to the act, or with any order of the Presi-
court in which it was originally in- dent, and that actions may be
stituted. But no process, mesne or brought against such carriers and
final, shall be levied against any judgment rendered as now provid-
property under such Federal con- ed by law; and that in any action at
trol.”

law, or suit in equity, against the In § 13, chap. 25, 40 Stat. at L. 458, carrier, no defense shall be made Comp. Stat. § 31154m, Fed. Stat. thereto upon the ground that the Anno. Supp. 1918, p. 765, it is pro- carrier is an instrumentality or vided: Pending cases against car- agency of the Federal government. riers.--"All pending cases in the It will be seen from an analysis of courts of the United States affecting this provision that the carrier when railroads or other transportation sued is forbidden to set up the very systems brought under the Act to defense it attempts to set up in this Regulate Conmerce, approved Feb

case.

Such defense can only be ruary fourth, eighteen hundred and made by the Director General intereighty-seven, as amended and sup- vening. plemented, including the commodi- By reference to § 15 above quoted ties clause, so called, or under the from, it is provided that nothing in Act to Protect Trade and Commerce this act shaìl be construed to amend, against Unlawful Restraints and repeal, impair, or affect the existing Monopolies, approved July second, law or powers of the states in relaeighteen hundred and ninety, and tion to taxation or the lawful police amendments thereto, shall proceed regulation of the several states exto final determination as soon as cept wherein such laws, powers, or may be, as if the United States has regulations may affect the transpornot assumed control of transporta- tation of troops, war materials, govtion systems; but in any such case ernment supplies, or the issue of the court having jurisdiction may, stocks and bonds. It is clear from upon the application of the United this section that it was not the purStates, stay execution of final judg

pose of Congress in enacting these ment or decree until such time as it laws to displace the shall deem proper."

state control any taking by Section 15, chap. 25, 40 Stat. at L. further than

than was 458 of the Act of March 21st, 1918,

necessary to enable Comp. Stat. $ 311520, Fed. Stat. the government to carry on war acAnno. Supp. 1918, p. 765, provides: tivities, transporting the troops, Existing laws or powers of states. war materials, government supplies, "Nothing in this act shall be con- and issuance of bonds. In all other

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