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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 31154j) 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 proclanation 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 & Pa. any 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. $$ 31154a-31157p, 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 M188. 528, 80 So. 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 judg- 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 addiable.” 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. § 31153j, 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 carriers 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 afagency 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 conof 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 inconing 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 providproperty 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. § 3115 m, 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 shall 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 was government458 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


for any


(119 Mi88. 328, 80 So. 770.) respects it was the intent of Con- liberty thus embodied were such as gress to leave the laws of the states wisdom and experience had demonin full force. It is exceedingly strated to be necessary for the prodoubtful whether Congress could en- tection of those accused of crime. act laws that would prohibit states And so strong was the sense of the from administering relief in their country of their importance, and so courts to litigants, and it has been jealous were the people that these held by the United Stateş Supreme rights, highly prized, might be deCourt that

nied them by implication, that when In a state where “Federal authori- the original Constitution was proty was always unopposed, and its posed for adoption it encountered courts always open to hear criminal severe opposition; and, but for the accusations and redress grievances, belief that it would be so amended

no usage of war could sanc- as to embrace them, it would never tion a military trial

have been ratified. offense whatever, of a citizen in “Time has proven the discernment civil life, in no wise connected with of our ancestors; for even these prothe military service. Congress visions, expressed in such plain could grant no such power."

English words that it would seem The right of trial by jury is pre- the ingenuity of man could not evade served to everyone accused of crime, them, are now, after the lapse of who is not attached to the Army, or more than seventy years, sought Navy, or Militia in actual service. to be avoided. Those great and

“Martial law cannot arise from a good men foresaw that troublous threatened invasion. The necessity times would arise, when rulers and must be actual and present; the in- people would become restive under vasion real, such as effectually closes restraint, and seek by sharp and dethe courts and deposes the civil ad- cisive measures to accomplish ends ministration."

deemed just and proper, and that Again:

the principles of constitutional lib"By the protection of the law erty would be in peril, unless estabhuman rights are secured; with- lished by irrepealable law. The hisdraw that protection, and they are tory of the world had taught them at the mercy of wicked rulers, or that what was done in the past the clamor of an excited people. If might be attempted in the future. there was law to justify this mili- The Constitution of the United tary trial, it is not our province to States is a law for rulers and people, interfere; if there was not, it is our equally in war and in peace, and duty to declare the nullity of the covers with the shield of its protecwhole proceedings. The decision of

. The decision of tion all classes of men, at all times, this question does not depend on and under all circumstances. No argument or judicial precedents, nu- doctrine involving more pernicious merous and highly illustrative as

consequences was ever invented by they are. These precedents inform the wit of man than that any of its us of the extent of the struggle to provisions can be suspended during preserve liberty and to relieve those any of the great exigencies of govin civil life from military trials. ernment. Such a doctrine leads diThe founders of our government rectly to anarchy or despotism, but were familiar with the history of the theory of necessity on which it is that struggle; and secured in a writ- based is false; for the government, ten Constitution every right which within the Constitution, has all the the people had wrested from power powers granted to it, which are necduring a contest of ages. By that essary to preserve its existence, as Constitution and the laws authorized has been happily proved by the reby it this question must be deter- sult of the great effort to throw off mined.”

its just authority.” Again:

Again: “These securities for personal “But it is said that the jurisdic

tion is complete under the 'laws and not be frittered away on any plea of usages of war.'

state or political necessity. When “It can serve no useful purpose to peace prevails, and the authority of inquire what those laws and usages the government is undisputed, there are, whence they originated, where is no difficulty in preserving the found, and on whom they operate; safeguards of liberty; for the ordithey can never be applied to citizens nary modes of trial are never negin states which have upheld the au- lected, and no one wishes it otherthority of the government, and wise; but if society is disturbed by where the courts are open and their civil commotion,-if the passions of process unobstructed. This court men are aroused and the restraints has judicial_knowledge that in In- of law weakened, if not disregarded, diana the Federal authority was —these safeguards need, and should always unopposed, and its courts al- receive, the watchful care of those ways open to hear criminal accusa- intrusted with the guardianship of tions and redress grievances; and no the Constitution and laws. In no usage of war could sanction a mili- other way can we transmit to postary trial there for any offense terity unimpaired the blessings of whatever of a citizen in civil life, in liberty, consecrated by the sacrifices no wise connected with the military of the Revolution. service. Congress could grant no "It is claimed that martial law such power; and to the honor of our covers with its broad mantle the national legislature be it said, it has proceedings of this Military Comnever been provoked by the state of mission. The proposition is this: the country even to attempt its exer- That in a time of war the commandcise. One of the plainest constitu- er of an armed force (if, in his opintional provisions was, therefore, in- ion, the exigencies of the country defringed when Milligan was tried by mand it, and of which he is to judge) a court not ordained and established has the power, within the lines of his by Congress, and not composed of military district, to suspend all civil judges appointed during good be- rights and their remedies, and subhavior."

ject citizens as well as soldiers to Again:

the rule of his will; and in the ex“The discipline necessary to the ercise of his lawful authority cannot efficiency of the Army and Navy re- be restrained, except by his superior quired other and swifter modes of officer or the President of the United trial than are furnished by the com- States. mon-law courts; and, in pursuance "If this position is sound to the exof the power conferred by the Con- tent claimed, then when war exists, stitution, Congress has declared the foreign or domestic, and the country kinds of trial, and the manner in is subdivided into military departwhich they shall be conducted, for ments for mere convenience, the offenses committed while the party commander of one of them can, if is in the military or naval service. he chooses, within his limits, on the Everyone connected with these plea of necessity, with the approval branches of the public service is of the Executive, substitute military amenable to the jurisdiction which force for and to the exclusion of the Congress has created for their goy- laws, and punish all persons, as he ernment, and, while thus serving, thinks right and proper, without surrenders his right to be tried by fixed or certain rules. the civil courts. All other persons, “The statement of this proposicitizens of states where the courts tion shows its importance; for, if are open, if charged with crime, are true, republican government is a guaranteed the inestimable privilege failure, and there is an end of liberof trial by jury. This privilege is a ty regulated by law. Martial law, vital principle, underlying the whole established on such a basis, destroys administration of criminal justice; every guaranty of the Constitution, it is not held by sufferance, and can- and effectually renders the 'military

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