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(119 Mi88. 328, 80 So. 770.) independent of and superior to the only sure way of protecting the citicivil power,'—the attempt to do zen against oppression and wrong. which by the King of Great Britain Knowing this, they limited the suswas deemed by our fathers such an pension to one great right, and left offense that they assigned it to the the rest to remain forever inviolable. world as one of the causes which im- But it is insisted that the safety pelled them to declare their inde- of the country in time of war dependence. Civil liberty and this mands that this broad claim for kind of martial law cannot endure martial law shall be sustained. If together; the antagonism is irrecon- this were true, it could be well said cilable, and, in the conflict, one or that a country, preserved at the the other must perish.

sacrifice of all the cardinal principles "This nation, as experience has of liberty, is not worth the cost of proved, cannot always remain at preservation. Happily, it is not so." peace, and has no right to expect Again: that it will always have wise and hu- "Martial law cannot arise from a mane rulers, sincerely attached to threatened invasion. The necessity the principles of the Constitution. must be actual and present; the inWicked men, ambitious of power, vasion real, such as effectually closes with hatred of liberty and contempt the courts and deposes the civil adof law, may fill the place once occu- ministration." Ex parte Milligan, pied by Washington and Lincoln; 4 Wall. 2, 18 L. ed. 281 et seq. and if this right is conceded, and the The war powers of national govcalamities of war again befall us, ernment have been elaborately disthe dangers to human liberty are cussed by the United States Sufrightful to contemplate.

If our

preme Court in the Milligan Case, fathers had failed to provide for supra; Texas v. White, 7 Wall. 700, just such a contingency, they would 19 L. ed. 227 et seq.; Ex parte have been false to the trust reposed Lange, 18 Wall. 163, 21 L. ed. 872; in them. They knew—the history Ochoa v. Hernandez y Morales, 230 of the world told them the nation U. S. 139, 57 L, ed. 1427, 33 Sup. they were founding, be its existence Ct. Rep. 1033. short or long, would be involved in Under $ 10 of the Amendments war; how often or how long con- of the Constitution of the United tinued, human foresight could not States, all powers not granted to the tell; and that unlimited power, national government and not prowherever lodged at such a time, hibited to the states are reserved to was especially hazardous to free- the states respectively or to the peomen. For this, and other equally ple. Under this provision it has weighty reasons, they secured the been decided by the United States inheritance they had fought to main- Supreme Court that all powers retain, by incorporating in a written lating

lating merely to

Constitutional Constitution the safeguards which municipal legisla- law-power time had proved were essential to tion or to internal its preservation. Not one of these police are not surrendered by the safeguards can the President or Con- states, and in relation to these the gress or the judiciary disturb, ex- power of a state is unqualified and cept the one concerning the writ of exclusive (New York v. Miln, 11 habeas corpus."

Pet. 102, 9 L. ed. 648; United States Again:

v. Cruikshank, 92 U. S. 542, 23 L. “The illustrious men who framed ed. 588; Butchers' Union, S. H. & L. that instrument were guarding the S. L. Co. v. Crescent City L. S. L. foundations of civil liberty against & S. H. Co. 111 U. S. 746, 28 L. ed. the abuses of unlimited power; they 585, 4 Sup. Ct. Rep. 652); that the were full of wisdom, and the lessons purpose of this Amendment is to of history informed them that a put beyond all dispute that the powtrial by an established court, assist- ers not granted by the Constitution ed by an impartial jury, was the to the Federal government are re

of state.

served to the people (Kansas v. Colorado, 206 U. S. 46, 51 L. ed. 956, 27 Sup. Ct. Rep. 655). It has often been said that this government a government of divided powers; those powers of a national character being vested in the national government, and all other powers vested in the state government; that this country is now, has been, and must be "an indestructible Union of indestructible states."

Construing the statutes above quoted from, and the proclamation of the President, in connection with the decisions of the Supreme Court, we are bound to conclude that it was not the purpose of either the President or Congress to prohibit the state courts from entertaining jurisdiction and proceeding to judgment in all cases as heretofore, but that the only purpose was to prevent states from seizing property necessary to be used in the maintenance of the transportation system of the country for the use of the national government.

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 unnecessary to 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

Railroads— purpose of possession of general government.

Garnishmentrailroad account -Federal control-power of state court.

dent, prohibiting execution or other mesne process, does



not prevent, and effect of was not intended to prevent, a proceeding of the char acter here involved. The word "mesne" means intermediate; intervening; the middle 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 different 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 proc ess. 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

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(119 Mi88. 328, 80 So. 770.) ance in such conditions as would be is presumed that, when the judgdetrimental to the community." ment is established

Evidence Again:

in a court of com- presumption“Laws and ordinances relating to petent jurisdiction,

action of oncial. the safety, comfort, health, conven- the Director General operating the ience, good order, and general wel. carriers will discharge such obligafare of the inhabitants are styled tions against such carriers, or per'police regulations.'

mit such carriers to do so without In Cooley on Constitutional Limi- question. We are satisfied that Contations, *574, we find the following gress and the President did not indefinition by that distinguished au- tend to suspend the collection of thor: “In the American constitu- debts against carriers, or to grant tional system, the power to establish the carriers immunity from judgthe ordinary regulations of police ments and the payment of their own has been left with the individual obligations. states, and cannot be assumed by the We think the learned court below national government. Neither can erred in discharging the Mobile & the national government, through Ohio Railroad Company as garany of its departments or officers, nishee, and in holding that it had assume any supervision of the police no jurisdiction to proceed to deterregulations of the states, so long as mine the controversy before it. they do not invade the sphere of It is urged here by the appellees national sovereignty, and obstruct Vicksburg, Shreveport, & Pacific or impede the exercise of any au- Railroad and the Alabama & Vicksthority which the Constitution has burg Railway, that the judgment confided to the nation.”

should be affirmed as to them, beIt is unnecessary now to decide cause the cause was set down for whether an execution could issue hearing less than after final judgment or not. That four months after Appealquestion can be decided when it the answer was want of arises properly. We are satisfied

We are satisfied filed, and therefore . that it was not the meaning of Con

the answer must be gress, nor of the President, to un

taken as true. Inasmuch as the

chancellor held that he had no jurisdertake to prohibit the states from

diction, we think the cause should administering justice and to compel the discharge of lawful obligations cordance with law, and the case is

be reversed and remanded in acor to protect private rights. It is

accordingly reversed and remanded. clear to us that the garnishee is not entitled to plead the question pre

Stevens, J., took no part in the sented by its answer in this cause,

consideration and decision of this and that it was the purpose of Con-, case. gress to prohibit these questions be- Petition for suggestion of error ing presented by the railroads. It

It denied May 5, 1919.

dismissal for



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 Decem

ber 26, 1917, 1685. 2. Proclamation of July 22,

1918, 1687. 3. Proclamation of Novem

ber 2, 1918, 1687. d. Orders of Director General of

Railroads: 1. Orders Nos. 18 and 18a,


II. d. continued.

2. Order No. 26, 1694.

3. Order No. 50, 1695. III. Extent of Federal control, 1702. IV. Right of action by public utility,

1710. 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.

11. Validity of measures for Federal


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

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. § 31154 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, ex- NORTHERN P. R. Co. (reported herecept in so far as may be inconsistent with) ante, 1659. with the provisions of this act or any Thus it has been said: “The comother act applicable to such Federal plete and undivided character of the control or with any order of the Presi. war power of the United States is not dent. Actions at law or suits in equity disputable. Selective Draft Law may be brought by and against such Cases (Arver v. United States) (1917) carriers and judgments rendered as 245 U. S. 366, 62 L. ed. 349, L.R.A. now provided by law; and in any ac- 1918C, 361, 38 Sup. Ct. Rep. 159, Ann. tion at law or suit in equity against Cas. 1918B, 856; Ex parte Milligan the carrier, no defense shall be made (1867) 4 Wall. (U. S.) 2, 18 L. ed. 281; thereto upon the ground that the car- Legal Tender Cases (1871) 12 Wall. rier is an instrumentality or agency of (U. S.) 457, 20 L. ed. 287; Stewart v. the Federal government. Nor shall Kahn (Stewart v. Bloom) (1871) 11 any such carrier be entitled to have Wall. (U. S.) 493, 20 L. ed. 176. On the transferred to any Federal court any face of the statutes it is manifest that action heretofore or hereafter insti- they were in terms based upon the war tuted by or against it, which action power, since the authority they gave was not so transferable prior to the arose only because of the existence of Federal control of such carrier; and war, and the right to exert such auany action which has heretofore been thority was to cease upon the war's 80 transferred because of such Fed- termination. To interpret, therefore, eral control or of any act of Congress the exercise of the power by the preor official order or proclamation relat- sumption of a continuance of a state ing thereto shall upon motion of either power limiting and controlling the party be retransferred to the court in national authority, was but to deny which it was originally instituted. its existence. It was akin to the conBut no process, mesne or final, shall tention that the supreme right to raise be levied against any property under armies and use them in case of war such Federal control. ... Nothing did not extend to directing where and in this act shall be construed to when they should be used." Northern amend, repeal, impair, or affect the P. R. Co. v. North Dakota (1919) 250 existing laws or powers of the states U. S. 135, 63 L. ed. 897, P.U.R.1919D, in relation to taxation or the lawful 705, 39 Sup. Ct. Rep. 505. police regulations of the several "The assumption of Federal control states, except wherein such laws, pow

was in effect a mobilization under one

head of the persons and corporations ers, or regulations may affect the

engaged in the business of transportransportation of troops, war materials, government supplies, or the is

tation as a means of meeting the emer

gencies imposed by a state of war. sue of stocks and bonds."

Viewed in this light, the asThat Congress had authority in time

sumption of control without of war to enact the legislation placing

doubt within the power granted by the certain public utilities under Federal

Constitution to the Federal governcontrol is now generally conceded, and the constitutionality of the acts can

ment, and was an appropriate instrunot be seriously questioned. Northern

mentality for carrying into effect the

known powers of the government." P. R. Co. v. North Dakota (1919) 250 U. S. 135, 63 L. ed. 897, P.U.R.

LAVALLE V. NORTHERN P. R. Co. (re1919D, 705, 39 Sup. Ct. Rep. 505;

ported herewith) ante, 1659. Nueces Valley Town-Site Co. v. Mc

Similarly in Vaughn V. State Adoo (1919) 257 Fed. 143; Dahn v.

(1919) – Ala. App. —, 81 So. 417, conMcAdoo (1919) 256 Fed. 549; Wain

struing the act of Congress approved wright v. Pennsylvania R. Co. (1918)

March 21, 1918, the court said: “There 253 Fed. 459; Vaughn v. State (1919)

can be no doubt that the same authorAla. App.

81 So. 417; West v. ity, inherent in the Federal governNew York, N. H. & H. R. Co. (1919) ment, through which it has called inMass. -, 123 N. E. 621; LAVALLE v. to its service under a system of selec

4 A.L.R.-106.


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