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(232 Mass. 465, P.U.R.1919D, 49, 122 N. E. 567.)

vitally interested and is alone concerned in the toll rates to be collected for telephone service over the system belonging to the defendant. The resolution of Congress of July 16, 1918, is most comprehensive in scope. It authorized the President to take full, complete, absolute, and unqualified possession of the defendant's system. It seems to us that the proclamation of the President according to its true construction was coextensive in its sweep with the power conferred by the resolution. By express words the President took possession and assumed control of every part of each and every telephone system, including all equipment and appurtenances and all materials and supplies. It would be difficult to employ words of broader reach or wider embrace than those in which the proclamation is couched. The phrase of the bulletin of the Postmaster General is equally comprehensive in its grasp. The effect of these documents was not a mere public supervision of an operation by private owners. It was a complete assumption of entire possession and unqualified control, to the exclusion of

Telephoneassumption of authority by President-effect.

every private interest. No distinction is made by their terms between interstate service and intrastate service. Both alike are taken into the possession of the United States. Powers so extensive as were thus assumed can be exercised only through various governmental agencies. But the right and power of the government are paramount and admit of no associates. In execution of the authority conferred by the resolution of July 16, 1918, just compensation for that which has been taken from the defendant has been awarded by the President and accepted by the defendant. Its interest has come to an end as to the matter of charges to be exacted for the service rendered by the United States for the use of the property of the defendant. The government has utterly supplanted the defendant in this field. The matter of rates is

now the sole financial affair of the United States.

The reasonableness and amount of the rates to be charged for intrastate toll telephone service are of direct concern to the United States. As was said in Wells v. Roper, 246 U. S. 335, at page 337, 62 L. ed. 755, 760, 38 Sup. Ct. Rep. 317: "That the interests of the government are so directly involved as to make the United States a necessary party and therefore to be considered as in effect a party, although not named in the bill, is entirely plain."

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In Louisiana v. McAdoo, 234 U. S. 627, at page 629, 58 L. ed. 1506, 1507, 34 Sup. Ct. Rep. 939, are found these words: "That the United States is not named on the record as a party is true. But the question whether it is in legal effect a party to the controversy is not always determined by the fact that it is not named as a party on the record, but by the effect of the judgment or decree which can here be rendered. Minnesota v. Hitchcock, 185 U. S. 373, 387, 46 L. ed. 954, 962, 22 Sup. Ct. Rep. 650."

These statements but summarize the effect of earlier and exhaustive discussions of the principles applicable to states of facts so similar to those presented in the case at bar as to be indistinguishable. Belknap v. Schild, 161 U. S. 10, 40 L. ed. 599, 16 Sup. Ct. Rep. 443, and cases there reviewed by Mr. Justice Gray; Louisiana v. Garfield, 211 U. S. 70, 77, 53 L. ed. 92, 29 Sup. Ct. Rep. 31; Oregon v. Hitchcock, 202 U. S. 60, 50 L. ed. 935, 26 Sup. Ct. Rep. 568; Naganab v. Hitchcock, 202 U. S. 473, 50 L. ed. 1113, 26 Sup. Ct. Rep. 667. The circumstance that the United States is not the owner of the system of the defendant, but only lawfully in possession of it with the right to collect reasonable tolls, is immaterial in this connection. "It has a property, a right in rem,

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which, though less extensive than absolute ownership, has the same incident of a right to use." International Postal Supply Co. v.

Bruce, 194 U. S. 601, 606, 48 L. ed. 1134, 1137, 24 Sup. Ct. Rep. 821.

We think the case at bar is distinguishable from Kaufman v. Lee, 106 U. S. 196, 27 L. ed. 171, 1 Sup. Ct. Rep. 240; Tindal v. Wesley, 167 U. S. 204, 42 L. ed. 137, 17 Sup. Ct. Rep. 770; American School v. McAnnulty, 187 U. S. 94, 47 L. ed. 90, 23 Sup. Ct. Rep. 33; Philadelphia Co. v. Stimson, 223 U. S. 605, 56 L. ed. 570, 32 Sup. Ct. Rep. 340, and similar cases where relief was granted against of ficers of the United States acting outside of their authority. There is nothing on this record to indicate that the defendant, if and so far as it is an agency of the Federal government, upon which we express no opinion, is exceeding the limits of power conferred by the resolution, proclamation, and bulletin.


United States.

It is a fundamental principle of law that "the United States, like all sovereigns, cannot be impleaded in a judicial tribunal, except so far as they have consented to be sued." Belknap v. Schild, 161 U. S. 10, 16, 40 L. ed. 599, 601, 16 Sup. Ct. Rep. 444; McArthur Bros. Co. v. Com. 197 Mass. 137, 83 N. E. 334.

We are aware of no statute whereby the United States has consented either to become a party to rate fixing proceedings before the Public Service Commission or before this court under Stat. 1913, chap. 784. No such statute has been called to our attention.

It is the contention of the attorney general in behalf of the Public Service Commission that the resolution of Congress of July 16, 1918, reserved to the states the right to regulate intrastate rates to the same

-consent to be sued.

extent as that power existed before Federal control. That contention is founded upon the final clause of the resolution, which is in these words: "Provided further, that nothing in this act shall be construed to amend, repeal, impair, or affect 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 transmission of government communications, or the issue of stocks and bonds by such system or systems.' systems." [40 Stat. at L. 904, chap. 154, Comp. Stat. § 3115x.]

That proviso does not seem to us reasonably susceptible of being stretched by implication to include a consent to be impleaded in the state courts in such a proceeding as this. Such consent is not commonly inferable from such remote and equivocal phrase having direct and adequate reference to another matter. Troy & G. R. Co. v. Com. 127 Mass. 43. Therefore it appears to us unnecessary to consider or discuss the merits of the question whether the proviso of the resolution of July 16, 1918, under its reservation of "lawful police regulations of the several states" "justifies rate regulation by a state in the exercise of its police power" (Union Dry Goods Co. v. Georgia Pub. Service Corp. 248 U. S. 372, 375, 63 L. ed.

309, 311, A.L.R., P.U.R.1916C, 60, 39 Sup. Ct. Rep. 117) because we do not reach it. As was said by Mr. Justice Holmes in United States ex rel. Goldberg v. Daniels, 231 U. S. 218, 221, 222, 58 L. ed. 191, 192, 34 Sup. Ct. Rep. 84: "There is another that comes earlier


in point of logic. Public Service The United States is regulation of in posses- company in It can- possession of

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rates of


sion. not be interfered with behind its back, and as it cannot be made a party this suit must fail."

Petition dismissed.

Affirmed by the Supreme Court of the United States June 2, 1919. 250 U. S. 195, 63 L. ed. 934, 39 Sup. Ct. Rep. 511.


The United States Supreme Court, in affirming the decree in the reported

(232 Mass. 465, P.U.R.1919D, 49, 122 N. E. 567.)

result, upon every issue in the case, of the ruling announced in DAKOTA CENT. TELEPH. Co. v. SOUTH DAKOTA, ante, 1623. That case denied as a matter of substantive law the power of the state to regulate intrastate rates of telephone companies under Federal control.

case (PUBLIC SERVICE COMMISSION V. way affected the control and decisive NEW ENGLAND TELEPH. & TELEG. Co. ante, 1662), under the title Macleod v. New England Teleph. & Teleg. Co. (1919) 250 U. S. 195, 63 L. ed. 934, 39 Sup. Ct. Rep. 511, referred to the decision of the state court to the effect that the suit was virtually one against the United States, which the court was without power to entertain, and to the fact that the decree was one of dismissal for want of jurisdiction, and said that the form of the decree in no

The general subject of Federal control of public utilities is treated in the annotation beginning at page 1680, post.





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

2. It was not the purpose of Congress, in enacting the laws permitting the President to take over the railroad lines for war purposes, to displace the state control any further than was necessary to enable the government to carry on war activities, transporting the troops, war materials, government supplies, and issuing the bonds. Constitutional law power of state. 3. Under the amendment to the Federal Constitution providing that all powers not granted to the Federal government are reserved to the state, all powers relating merely to municipal legislation or the internal police are not surrendered by the state.

[See 6 R. C. L. 136.] Railroads

purpose of possession of

general government.

4. State courts were not prohibited by the act of Congress and proclamation of the President taking possession of the railroads for war purposes from

entertaining jurisdiction to and proceeding to judgment in all cases as before, but were merely prevented from seizing property necessary to be used in the maintenance of the transportation system of the country for the use of the national government. Garnishment effect of proclamation.

5. The proclamation of the President in taking over the railroads for war purposes, prohibiting execution or other mesne process, does not prevent a garnishment in a state court of an account in the hands of a local road against a foreign one, for the purpose of securing jurisdiction over the latter. Definition


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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 appellant:

The Mobile & Ohio Railroad could not object to the proceeding against the indebtedness.

Moore v. Chicago, R. I. & P. R. Co. 43 Iowa, 385; Weaver Grocery Co. v. Cain Mill. Co. 117 Miss. 781, 78 So. 769; Thornley v. Lawbaugh, 31 N. D. 651, 47 L.R.A. (N.S.) 1127, 143 N. W. 348; Alabama G. S. R. Co. v. Crawley, 118 Miss. 272, 79 So. 94; Exchange Nat. Bank v. Clement, 109 Ala. 270, 19 So. 814; 12 R. C. L. p. 850.

Messrs. McDonald & Marshall, for appellee Mobile & Ohio R. Co.:

The plain purpose of the provision of § 10 was to prevent any interference with the operation of railroads under Federal control by seizure of the property used in the operation.

Louisville & N. R. Co. v. Steele, 180 Ky. 294, 202 S. W. 878.

The unquestionable object of Congress and the President was to secure as a war measure the free and unimpeded operation of the country's transportation systems.

Dooley v. Pennsylvania R. Co. 250 Fed. 142; 18 R. C. L. 1267; Jacobs's Estate, 140 Pa. 268, 11 L.R.A. 767, 23 Am. St. Rep. 230, 21 Atl. 318.

The term "mesne process" is now used generally to distinguish all other process from the final process.

Birmingham Dry Goods Co. v. Bledsoe, 113 Ala. 418, 21 So. 403; Fletcher v. Morrell, 78 Mich. 176, 44 N. W. 133; Place v. Washburn, 163 Mass. 530, 40 N. E. 853; Hirshiser v. Tinsley, 9 Mo. App. 339; Pennington v. Lowenstein, Fed. Cas. No. 10,938; Love v. Taylor, 26 Miss. 567; State Bd. of Edu. v. Mobile & O. R. Co. 72 Miss. 236, 16 So. 489; McIntyre v. Ingraham, 35 Miss. 25; Wray v. Kelly, 98 Miss. 172, 53 So. 492; Holly Springs v. Marshall

County, 104 Miss. 752, 61 So. 703;
Adams v. Yazoo & M. Valley R. Co. 75
Miss. 275, 22 So. 824.

A branch or department of sovereignty, exercising governmental function, is not subject to service of writs of garnishment. Upon objection being raised by such branch or department of governmental character, the writ of garnishment will be quashed or dismissed.

Dollman v. Moore, 70 Miss. 267, 19 L.R.A. 222, 12 So. 23; Clarksdale Compress Co. v. Caldwell Co. 80 Miss. 343, 31 So. 790; Dollar v. Allen-West Commission Co. 78 Miss. 274, 28 So. 876; 20 Cyc. 990; 12 R. C. L. 841; 14 Am. & Eng. Enc. Law, 2d ed. 814.

Messrs. Wells, May, & Sanders, amici curiæ:

The court erred in holding that the chancery court of Harrison county, Mississippi, was invested with jurisdiction to render a judgment or decree against the property of the United States government.

Delta Ins. & Realty Co. v. Interstate F. Ins. Co. 113 Miss. 542, 74 So. 420.

The venue of actions is subject to legislative control, either Federal or state, and Congress is invested with the power to enact legislation upon this subject, suspending and superseding state legislation upon the same subject, particularly under the stress of an emergency of war.

Wainwright v. Pennsylvania R. Co. 253 Fed. 459; Legal Tender Cases, 12 Wall. 457, 539, 20 L. ed. 287, 308; Rhodes v. Tatum, Tex. Civ. App., 206 S. W. 114; New York C. R. Co. v. Winfield, 244 U. S. 147, 61 L. ed. 1045, L.R.A.1918C, 439, 37 Sup. Ct. Rep. 546, Ann. Cas. 1917D, 1139, 13 N. C. C. A. 680; New Orleans & N. E. R. Co. v. Harris, 247 U. S. 368, 62 L. ed. 1169, 38 Sup. Ct. Rep. 535; Adams Exp. Co. v.

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

Croninger, 226 U. S. 491, 57 L. ed. 314, 44 L.R.A. (N.S.) 257, 33 Sup. Ct. Rep. 148.

No court, and particularly no state court, can order an appropriation of money of the Federal government or any agency thereof.

Stanley v. Schwalby, 147 U. S. 508, 37 L. ed. 259, 13 Sup. Ct. Rep. 418; Carr v. United States, 98 U. S. 438, 25 L. ed. 211; The Siren, 7 Wall. 152, 19 L. ed. 129; The Davis (United States v. Douglas) 10 Wall. 15, 19 L. ed. 875. Messrs. R. H. Thompson, J. H. Thompson, and B. E. Eaton also for appellees.

Ethridge, J., delivered the opinion of the court:

The appellant filed a bill for attachment in the chancery court under § 536, Code of 1906 (§ 293, Hemingway's Code), against the Texas & Pacific Railway Company, a foreign corporation operating between Ft. Worth, Texas, and Shreveport, Louisiana, and against the Vicksburg, Shreveport, & Pacific Railroad Company, a railway corporation operating between Shreveport, Louisiana, and Vicksburg, Mississippi, the Alabama & Vicksburg Railway Company, the Louisville & Nashville Railroad Company, the Gulf & Ship Island Railroad Company, the Yazoo & Mississippi Valley Railroad Company, the Illinois Central Railroad Company, and the Mobile & Ohio Railroad Company, alleging that on the 10th day of October, 1917, the Texas & Pacific Railway Company agreed with complainant, in consideration of a freight rate paid therefor, to transport for the complainant from Ft. Worth, Texas, to Howison, Mississippi, ten carloads of cattle, the property of the complainant, and issued bill of lading therefor; that the cattle were transported over the Texas & Pacific Railway to Shreveport, Louisiana, and over the Vicksburg, Shreveport, & Pacific Railroad to Vicksburg, over the Alabama & Vicksburg Railway to Jackson, Mississippi, and over the Gulf & Ship Island Railroad to Howison, Mississippi; that said cattle were unreasonably delayed in transporta

tion, having been in transportation,
for one hundred and ten and one-
half hours, and they were only fed
twice during the said period of time;
that they were roughly handled in
transit by the Texas & Pacific Rail-
way Company, and roughly handled
to a certain extent by all the other
carriers over which they moved, and
as a result said cattle were injured
and died in transit to the value of
$600, and other cattle were damaged
in the sum of $5,600; and that by
said damage a number of cattle died
after being unloaded, and others
were so injured and diseased that it
took expensive treatment for them
to recover from said injuries. It
was alleged in the bill that the
Louisville & Nashville Railroad
Company, the Illinois Central Rail-
road Company, the Yazoo & Missis-
sippi Valley Railroad Company, and
the Mobile & Ohio Railroad Com-
pany, and also the carriers over
which the shipment moved, were in-
debted unto the Texas & Pacific Rail-
road Company, and will be further
indebted to said defendant in the
future, and pending the trial of this
cause, and process was brought
against each of defendants to an-
swer said bill and to disclose in
what sums and what amounts
each was indebted to the Texas &
Pacific Railway Company. This bill
was filed March 25, 1918, and sum-
mons issued to all the defendants,
except the Texas & Pacific Railway
Company, for which publication was

severally anThe defendants severally swered the bill, the Illinois Central Railroad Company, the Louisville & Nashville Railroad Company, the Yazoo & Mississippi Valley Railroad Company and the Mobile & Ohio Railroad Company (being Each, except garnishees alone).


the Mobile & Ohio Railroad Com-
pany, answered that they were
not indebted to the Texas & Pa-
cific Railway Company, but,
the contrary, that the said Texas
& Pacific Railway Company was in-
debted to said garnishees. The Mo-
bile & Ohio Railroad answered the

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