(119 Miss. 328, 80 So. 770.) independent of and superior to the civil power,'-the attempt to do which by the King of Great 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 habeas corpus." Again: "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, 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, 19 L. ed. 227 et seq.; Ex parte Lange, 18 Wall. 163, 21 L. ed. 872; Ochoa v. Hernandez y Morales, 230 U. S. 139, 57 L. ed. 1427, 33 Sup. Ct. Rep. 1033. of state. Under 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 lating merely to Constitutional municipal legisla- law-power tion 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, 9 L. ed. 648; United States v. Cruikshank, 92 U. S. 542, 23 L. ed. 588; Butchers' Union, S. H. & L. S. L. Co. v. Crescent City L. S. L. & S. H. Co. 111 U. S. 746, 28 L. ed. 585, 4 Sup. Ct. Rep. 652); that the purpose of this Amendment is to put beyond all dispute that the powers not granted by the Constitution to the Federal government are re Garnishmentrailroad account -Federal control-power of state court. 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 unto necessary 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 money or other property in such way as to interfere with the Director General's direction of the railroads. The proclamation of the Presi dent, prohibiting execution or other mesne process, does proclamation, not prevent, and effect of was not intended to prevent, a proceeding of the character here involved. The word "mesne" means intermediate; intervening; the mid mesne. dle between two ex- Definitiontremes. Black's Dictionary. As defined by the cir cuit court of the United States in Moredock v. Kirby, 118 Fed. 180, at page 185, Judge Evans, in delivering this opinion, says: "In Goldey v. Morning News, 156 U. S. 519, 39 L. ed. 517, 15 Sup. Ct. Rep. 559, 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 dif ferent 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 15th section of chapter 25, 40 Stat. at L. 458, Comp. Stat. § 31150, Fed. Stat. Anno. Supp. 1918, p. 765 (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 continu (119 Miss. 328, 80 So. 770.) "Laws and ordinances relating to the safety, comfort, health, convenience, good order, and general welfare of the inhabitants are styled 'police regulations."" ance in such conditions as would be is presumed that, when the judgdetrimental to the community." ment is established EvidenceAgain: in a court of com- presumptionaction of official. petent jurisdiction, 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 carriers immunity from judgments and the payment of their own obligations. In Cooley on Constitutional Limitations, *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 sovereignty, 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 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 We think the learned court below erred in discharging the Mobile & Ohio Railroad 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 Railroad and the Alabama & Vicksburg Railway, that the judgment should be affirmed as to them, because the cause was set down for hearing less than four months after Appeal- dismissal for answer was want of jurisdiction be reversed and remanded in accordance with law, and the case is accordingly reversed and remanded. Stevens, J., took no part in the consideration and decision of this case. Petition for suggestion of error denied May 5, 1919. ANNOTATION. Federal control of public utilities. I. Introductory, 1680. II. Validity of measures for Federal control: a. Acts of Congress, 1680. b. Joint Resolution of Congress, 1684. c. Presidential proclamations: 1. Proclamations of December 26, 1917, 1685. 2. Proclamation of July 22, 1918, 1687. 3. Proclamation of November 2, 1918, 1687. d. Orders of Director General of Railroads: 1. Orders Nos. 18 and 18a, 1689. 1. Introductory. On the 29th of August, 1916, the Congress of the United States enacted a law (9 Fed. Stat. Anno. 2d ed. p. 1095) which empowered the President, in time of war, to take possession and assume control of any system or systems of transportation and utilize them for the transportation of troops and materials of war. Pursuant to this act, the President, on the 26th day of December, 1917, assumed control of the railroads of the United States and appointed William G. McAdoo, the then Secretary of the Treasury, and designated him to be the Director General of Railroads, under whose direction the control of the transportation systems was to be carried out. On March 21, 1918, a second act on the same subject was passed by Congress (Fed. Stat. Anno. Supp. 1918, p. 757), which in detail recited how the control so granted the President should be exercised. Certain general orders were issued by the Director General in the course of his administration. A joint resolution of Congress was passed on July 16, 1918 (Fed. Stat. Anno. Supp. 1918, p. 834), authorizing the President to take over and control the telephone, telegraph, and marine cable systems of the country. The authority thus granted was exercised by the President as to the telegraph and telephone companies by proclamation of July 22, 1918, and as to the marine II. d.-continued. 2. Order No. 26, 1694. III. Extent of Federal control, 1702. V. Right of action against public util ity, 1710. VI. Jurisdiction of action by or against public utility, 1714. VII. Service of process, 1715. VIII. Removal of cause to Federal court, 1715. IX. Execution of process against public utility, 1716. cables on November 16, 1918, each naming the Postmaster General as the agent intrusted with such control. In the present note it is proposed to discuss the validity, interpretation, and effect of these acts, proclamations, and orders. II. Validity of measures for Federal control. a. Acts of Congress. The Act of Congress of August 29, 1916, to which the President's proclamation assuming Federal control of railroads is referable, provides: "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 Stat. at L. 645, chap. 418, Comp. Stat. § 1974 a, 9 Fed. Stat. Anno. 2d ed. p. 1095. The act of Congress of March 21, 1918 (40 Stat. at L. 456, chap. 25, § 10, Comp. Stat. § 31151 j, Fed. Stat. Anno. Supp. 1918, p. 762), provides in part as follows: "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 provisions 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 any 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 be 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. . . Nothing in this act shall be 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." That Congress had authority in time of war to enact the legislation placing certain public utilities under Federal control is now generally conceded, and the constitutionality of the acts cannot be seriously questioned. Northern P. R. Co. v. North Dakota (1919) 250 U. S. 135, 63 L. ed. 897, P.U.R. 1919D, 705, 39 Sup. Ct. Rep. 505; Nueces Valley Town-Site Co. v. McAdoo (1919) 257 Fed. 143; Dahn v. McAdoo (1919) 256 Fed. 549; Wainwright v. Pennsylvania R. Co. (1918) 253 Fed. 459; Vaughn v. State (1919) Ala. App. —, 81 So. 417; West v. New York, N. H. & H. R. Co. (1919) Mass. 123 N. E. 621; LAVALLE v. 4 A.L.R.-106. -- NORTHERN P. R. Co. (reported herewith) ante, 1659. Thus it has been said: "The complete and undivided character of the war power of the United States is not disputable. Selective Draft Law Cases (Arver v. United States) (1917) 245 U. S. 366, 62 L. ed. 349, L.R.A. 1918C, 361, 38 Sup. Ct. Rep. 159, Ann. Cas. 1918B, 856; Ex parte Milligan (1867) 4 Wall. (U. S.) 2, 18 L. ed. 281; Legal Tender Cases (1871) 12 Wall. (U. S.) 457, 20 L. ed. 287; Stewart v. Kahn (Stewart v. Bloom) (1871) 11 Wall. (U.S.) 493, 20 L. ed. 176. On the face of the statutes it is manifest that they were in terms based upon the war power, since the authority they gave arose only because of the existence of war, and the right to exert such authority was to cease upon the war's termination. To interpret, therefore, the exercise of the power by the presumption of a continuance of a state power limiting and controlling the national authority, was but to deny its existence. It was akin to the contention that the supreme right to raise armies and use them in case of war did not extend to directing where and when they should be used." Northern P. R. Co. v. North Dakota (1919) 250 U. S. 135, 63 L. ed. 897, P.U.R.1919D, 705, 39 Sup. Ct. Rep. 505. "The assumption of Federal control was in effect a mobilization under one head of the persons and corporations engaged in the business of transportation as a means of meeting the emergencies imposed by a state of war. . Viewed in this light, the assumption of control was without doubt within the power granted by the Constitution to the Federal government, and was an appropriate instrumentality for carrying into effect the known powers of the government." LAVALLE V. NORTHERN P. R. Co. (reported herewith) ante, 1659. Similarly in Vaughn V. State (1919) Ala. App. —, 81 So. 417, construing the act of Congress approved March 21, 1918, the court said: "There can be no doubt that the same authority, inherent in the Federal government, through which it has called into its service under a system of selec |