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bill, admitting an indebtedness on the 31st of March, 1918, as follows: Unpaid vouchers, $1,149.77; interline ticket account, $151.54; car service, $983.20; freight claims, $43.68,-total, on March 31, 1918, $2,232.19; and that, accruing from March 31 to April 30, 1918, there were unpaid vouchers, $2,227.64; interline ticket account, $109.17; car service, $661.35; freight claims, $55.78.

The answer of the defendant Mobile & Ohio Railroad Company set up:

That the respondent Mobile & Ohio Railroad Company is a corporation which was, until the 26th day of December, 1917, engaged in operating a railroad, a part of which was within the state of Mississippi; that on said date the President of the United States issued a proclamation and took possession and assumed control for the government of the United States of the transportation systems of the United States, including all of the property of the Mobile & Ohio Railroad Company and of the defendant Texas & Pacific Railway Company, used in transportation as common carriers, and the said proclamation was in part as follows: "Except with the prior written assent of said Director, no attachment by mesne process or on execution shall be levied on or against any of the property used by any of said transportation systems in the conduct of their business as common carriers."

That the Congress of the United States ratified the said act of the President of the United States and provided for the control and operation of the railroads of the United States, including the property of the Mobile & Ohio Railroad Company and of the Texas & Pacific Railway Company, by an act approved March 21, 1918, chap. 25, 40 Stat. at L. 451458, Comp. Stat. §§ 3115a-31153p, Fed. Stat. Anno. Supp. 1918, pp. 757-766, entitled: "An Act to Provide for the Operation of Transportation Systems While under Federal Control, for the Just Compensa

tion of Their Owners and for Other Purposes."

That by 10 of the said act (§ 3115 j) it was provided: "But no process, mesne or final, shall be levied against any property under such Federal control."

It further alleged that any money that may be due from the Mobile & Ohio Railroad Company to the Texas & Pacific Railway Company since the service of the writ upon the Mobile & Ohio Railroad Company is property under the control of the Federal government, within the meaning of the said proclamation of the President and the said act of Congress, under the orders of the Director General of Railroads. It is alleged further that the company was made a party simply as a gar nishee, in order that any indebtedness of this defendant to the Texas & Pacific Railway Company might be condemned to pay the demand of the complainant against the Texas & Pacific Railway Company, and alleged that the writ served on this defendant for that purpose is mesne process within the meaning of the said act of Congress, and was in violation of law and void.

The defendant, after filing this answer, moved the court to dismiss the proceeding as to the Mobile & Ohio Railroad Company and discharge it, which motion the trial judge sustained. The Texas & Pa cific Railway Company did not answer, and decree pro confesso was taken, and proof of the amount of damage introduced. The Gulf & Ship Island, Alabama & Vicksburg, and Vicksburg, Shreveport, & Pacific Railroad Companies denied the allegations of the bill so far as their respective handling of the cattle is concerned, and answered that they had no information as to the allegations against the Texas & Pacific Railway Company, except that they say that the delay in transportation was not unreasonable. After the court dismissed the case against the Mobile & Ohio Railroad, the complainant moved for judgment against the Vicksburg, Shreveport, & Pacific,

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

Texas & Pacific, Alabama & Vicksburg, and Gulf & Ship Island Railroad Companies; but the court below held that it had no jurisdiction, and dismissed the bill. From this judgment the L. N. Dantzler Lumber Company appealed here.

The principal question for determination is whether or not the Mobile & Ohio Railroad Company could be garnished as a foundation to sustain the attachment against the Texas & Pacific Railway Company, no other property belonging to the Texas & Pacific Railway Company than this indebtedness of the Mobile & Ohio Railroad Company being found in the state. The bill was filed on the 25th day of March, 1918, and the garnishment served on the Mobile & Ohio Railroad Company on the same date.

On the 29th of August, 1916, Congress enacted a law, one section of which only is pertinent to this cause, which reads as follows: Control of transportation systems in time of war. "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, § 1, Comp. Stat. § 1974a, 9 Fed. Stat. Anno. 2d ed. p. 1095.

On the 26th day of December, 1917, the President issued a proclamation, reciting that it had become necessary in the national defense to take possession and assume control of certain systems of transportation and to utilize the same, to the exclusion, so far as may be necessary, of all other traffic thereon, for the transportation of troops, war material, and equipment therefor, and for other needful and desirable purposes connected with the prosecution of the war. In this proclamation is found the following: "Until

and except so far as said Director shall from time to time otherwise by general or special orders determine, such systems of transportation shall remain subject to all existing statutes and orders of the Interstate Commerce Commission, and to all statutes and orders of regulating commissions of the various states in which said systems or any part thereof may be situated. But any orders, general or special, hereafter made by said Director, shall have paramount authority and be obeyed as such." [40 Stat. at L. 90.]

On the 11th day of April, 1918, the President issued another proclamation, taking possession and assuming control, through Acting Secretary of War, at 12:01 A. M. on the 13th day of April, 1918, of each and every system of transportation, naming certain steamship and other transportation companies, to be exercised under the direction and control of William G. McAdoo, Director General of Railroads. After the promulgation of these orders or proclamations of the President, based upon the statute above quoted, the different transportation companies took the position that the railroads were under the control of the government, and that they had the right to remove causes to the Federal courts, and that they could not be sued without the consent of the United States. On the 21st of March, 1918, by 40 Stat. at L. 451, chap. 25, Congress passed an additional act dealing with the subject of governmental control of railroads and other transportation concerns. In § 10 of said Act of March 21, 1918, Comp. Stat. § 31153j, it is provided: Liabilities of carriers; actions by and against.-"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 car

riers 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 a 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."

In § 13, chap. 25, 40 Stat. at L. 458, Comp. Stat. § 3115 m, Fed. Stat. Anno. Supp. 1918, p. 765, it is provided: Pending cases against carriers.-"All pending cases in the courts of the United States affecting railroads or other transportation systems brought under the Act to Regulate Conmerce, approved February fourth, eighteen hundred and eighty-seven, as amended and supplemented, including the commodities clause, so called, or under the Act to Protect Trade and Commerce against Unlawful Restraints and Monopolies, approved July second, eighteen hundred and ninety, and amendments thereto, shall proceed to final determination as soon as may be, as if the United States has not assumed control of transportation systems; but in any such case the court having jurisdiction may, upon the application of the United States, stay execution of final judgment or decree until such time as it shall deem proper."

Section 15, chap. 25, 40 Stat. at L. 458 of the Act of March 21st, 1918, Comp. Stat. § 311530, Fed. Stat. Anno. Supp. 1918, p. 765, provides: Existing laws or powers of states.

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strued 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 the troops, war materials, government supplies, or the issue of stocks and bonds."

It will be noted from the sections above quoted of the Act of March 21, 1918, that while under Federal control, the carriers shall be subject to all laws and liabilities as common carriers, whether arising under state or Federal laws or at common law, except so far as may be inconsistent with the provisions of this act, or with any order of the President, and that actions may be brought against such carriers and judgment rendered as now provided by law; and that 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. It will be seen from an analysis of this provision that the carrier when sued is forbidden to set up the very defense it attempts to set up in this case. Such defense can only be made by the Director General intervening.

By reference to § 15 above quoted from, it is provided that nothing in this act shall be construed to amend, repeal, impair, or affect the existing law or powers of the states in relation to taxation or the lawful police regulation of the several states except wherein such laws, powers, or regulations may affect the transportation of troops, war materials, gov ernment supplies, or the issue of stocks and bonds. It is clear from this section that it was not the purpose of Congress in enacting these laws to displace the state control any taking by further than than was governmentnecessary to enable the government to carry on war activities, tivities, transporting the troops, war materials, government supplies, and issuance of bonds. In all other

Railroads

purpose.

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

respects it was the intent of Congress to leave the laws of the states in full force. It is exceedingly doubtful whether Congress could enact laws that would prohibit states from administering relief in their courts to litigants, and it has been held by the United States Supreme Court that

In a state where "Federal authority was always unopposed, and its courts always open to hear criminal accusations and redress grievances, no usage of war could sanc

tion a military trial
for any
offense whatever, of a citizen in
civil life, in no wise connected with
the military service. Congress
could grant no such power."

The right of trial by jury is preserved to everyone accused of crime, who is not attached to the Army, or Navy, or Militia in actual service.

"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."

Again:

"By the protection of the law human rights are secured; withdraw that protection, and they are at the mercy of wicked rulers, or the clamor of an excited people. If there was law to justify this military trial, it is not our province to interfere; if there was not, it is our duty to declare the nullity of the whole proceedings. The decision of this question does not depend on argument or judicial precedents, numerous and highly illustrative as they are. These precedents inform us of the extent of the struggle to preserve liberty and to relieve those in civil life from military trials. The founders of our government were familiar with the history of that struggle; and secured in a written Constitution every right which the people had wrested from power during a contest of ages. By that Constitution and the laws authorized by it this question must be determined."

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liberty thus embodied were such as wisdom and experience had demonstrated to be necessary for the protection of those accused of crime. And so strong was the sense of the country of their importance, and so jealous were the people that these rights, highly prized, might be denied them by implication, that when the original Constitution was proposed for adoption it encountered severe opposition; and, but for the belief that it would be so amended as to embrace them, it would never have been ratified.

"Time has proven the discernment of our ancestors; for even these provisions, expressed in such plain English words that it would seem the ingenuity of man could not evade them, are now, after the lapse of more than seventy years, sought to be avoided. Those great and good men foresaw that troublous times would arise, when rulers and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper, and that the principles of constitutional liberty would be in peril, unless established by irrepealable law. The history of the world had taught them that what was done in the past might be attempted in the future. The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers granted to it, which are necessary to preserve its existence, as has been happily proved by the result of the great effort to throw off its just authority." Again:

No

"But it is said that the jurisdic

tion is complete under the 'laws and usages of war.'

"It can serve no useful purpose to inquire what those laws and usages are, whence they originated, where found, and on whom they operate; they can never be applied to citizens in states which have upheld the authority of the government, and where the courts are open and their process unobstructed. This court has judicial knowledge that in Indiana the Federal authority was always unopposed, and its courts always open to hear criminal accusations and redress grievances; and no usage of war could sanction a military trial there for any offense whatever of a citizen in civil life, in no wise connected with the military service. Congress could grant no such power; and to the honor of our national legislature be it said, it has never been provoked by the state of the country even to attempt its exercise. One of the plainest constitutional provisions was, therefore, infringed when Milligan was tried by a court not ordained and established by Congress, and not composed of judges appointed during good behavior."

Again:

"The discipline necessary to the efficiency of the Army and Navy required other and swifter modes of trial than are furnished by the common-law courts; and, in pursuance of the power conferred by the Constitution, Congress has declared the kinds of trial, and the manner in which they shall be conducted, for offenses committed while the party is in the military or naval service. Everyone connected with these branches of the public service is amenable to the jurisdiction which Congress has created for their government, and, while thus serving, surrenders his right to be tried by the civil courts. All other persons, citizens of states where the courts are open, if charged with crime, are guaranteed the inestimable privilege of trial by jury. This privilege is a vital principle, underlying the whole administration of criminal justice; it is not held by sufferance, and can

not be frittered away on any plea of state or political necessity. When peace prevails, and the authority of the government is undisputed, there is no difficulty in preserving the safeguards of liberty; for the ordinary modes of trial are never neglected, and no one wishes it otherwise; but if society is disturbed by civil commotion,-if the passions of men are aroused and the restraints of law weakened, if not disregarded, -these safeguards need, and should receive, the watchful care of those intrusted with the guardianship of the Constitution and laws. In no other way can we transmit to posterity unimpaired the blessings of liberty, consecrated by the sacrifices of the Revolution.

"It is claimed that martial law covers with its broad mantle the proceedings of this Military Commission. The proposition is this: That in a time of war the commander of an armed force (if, in his opinion, the exigencies of the country demand it, and of which he is to judge) has the power, within the lines of his military district, to suspend all civil rights and their remedies, and subject citizens as well as soldiers to the rule of his will; and in the exercise of his lawful authority cannot be restrained, except by his superior officer or the President of the United States.

"If this position is sound to the extent claimed, then when war exists, foreign or domestic, and the country is subdivided into military departments for mere convenience, the commander of one of them can, if he chooses, within his limits, on the plea of necessity, with the approval of the Executive, substitute military force for and to the exclusion of the laws, and punish all persons, as he thinks right and proper, without fixed or certain rules.

"The statement of this proposi tion shows its importance; for, if true, republican government is a failure, and there is an end of liber ty regulated by law. Martial law, established on such a basis, destroys every guaranty of the Constitution, and effectually renders the 'military

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