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(238 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 an 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 phrase 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 resolu

S. 473, 50 L. ed. 1113, 26 Sup. Ct. tion of July 16, 1918, just compensa

Rep. 667. The circumstance that tion for that which has been taken

the United States is not the owner from the defendant has been awarded by the President and accepted by only lawfully in possession of it with

of the system of the defendant, but the defendant. Its interest has 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, 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, 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.”

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

pleaded in a judicial of its police power" (Union Dry 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. Schild, 161 U. S. 10, 16, 40 L. ed: 309, 311, — A.L.R. —, P.U.R.1916C,

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. v. Com. 197 Mass.

Justice Holmes in United States ex 137, 83 N. E. 334.

rel. Goldberg v. Daniels, 231 U. S. We are aware of no statute whereby 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. Public Service

Commissionthis court under Stat. 1913, chap.

The United States is regulation of 784. No such statute has been

in posses- company in called to our attention.


It can- ' possession of

government. It is the contention of the attor

not be interfered

with behind its back, and as it canney general in behalf of the Public Service 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 -consent to

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

United States.

rates of



be sued.

(232 Ma88. 465, P.U.R.1919D, 69, 182 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.




Mississippi Supreme Court (Div. B)- March 8, 1919.

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(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 juris- diction 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. [See 6 R. C. L. 136.]

mediate; intervening; the middle be

tween two extremes. Railroads — purpose of possession of

Evidence general government.

presumption action of 4. State courts were not prohibited

official. by the act of Congress and proclamation 7. The court presumes that if a judgof 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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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.

44 L 148. NO

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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 g 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. R. 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 term "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 U. 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 & 0. 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. HarMiss. 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 So. 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, 37 L. ed. 259, 13 Sup. Ct. Rep. 418;

to a certain extent by all the other Carr v. United States, 98 U. S. 438, 25

carriers over which they moved, and 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 The appellant filed a bill for at

to recover from said injuries. It tachment in the chancery court un

was alleged in the bill that the der § 536, Code of 1906, ($ 293, Company, the Illinois Central Rail

Louisville & Nashville Railroad Hemingway'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, Mississippi, the Alabama & Vicks: future, and pending the trial of this burg Railway Company, the Louis

cause, and

process was brought ville & Nashville Railroad Company,

against each of defendants to anthe Gulf & Ship Island Railroad

swer said bill and to disclose in Company, the Yazoo & Mississippi each was indebted to the Texas &

what sums and what amounts 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

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

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