wherein it was said: "Under Public Act No. 107 of the Sixty-fifth Congress, approved March 21, 1918 (Act March 21, 1918, chap. 25, 40 Stat. at L. 451, chap. 25, Comp. Stat. §§ 3115a3115 p, Fed. Stat. Anno. Supp. 1918, p. 757), and under previous statutes and the proclamation of the President, the railroads of the country, including the defendant Nashville Terminals, are now merely agencies or instrumentalities of the United States government. While it is true Public Act No. 107 of the Sixty-fifth Congress, above referred to, very broadly authorized suits against such common carriers, still their liability to suit is not greater than that of the various municipal corporations of this state. Such liability, however, should be confined to their own creditors. Since it is the settled policy of this state to hold immune from garnishments all municipalities and other governmental agencies, we think such protection must be accorded to defendant Nashville Terminals, as it is now operated. Moreover, § 10 of the act of Congress above referred to expressly provides that 'no process, mesne or final, shall be levied against any property under such Federal control,' and this would doubtless preclude proceedings by attachment and garnishment."

Any order either directing or restraining, or an injunction, temporary or permanent, has been held to be as much an interference with the possession and control of the Director General as if the roadbed were levied upon by attachment or execution.

A suit in equity to restrain the Director General of Railroads from removing certain officials and property from one town to another is within the provisions of the Act of March 21, 1918. Nueces Valley Town-Site Co. v. McAdoo (1919) 257 Fed. 143, wherein it is said: "Should the state court prevent the Director General from transferring his employees from one point to another, and from regulating their duties, it would, to that extent, be to take the control, possession, use, and operation of the properties out of the hands of the Director General, in contravention of the terms of both

§§ 10 and 11 of the act, as well as the entire spirit and purpose of the act. No court, either state or Federal, can interfere with or control the discretion of the Director General as to the operation of these properties, and any action directly interfering with his 'possession and control of the property is specifically forbidden by Congress."

So, in St. Louis-San Francisco R. Co. v. State (1918) Okla. -1 P.U.R. 1918C, 596, 170 Pac. 1146, an order of the Corporation Commission requiring the railroad company to remove its depot in the city of Miami, and to replace it by a modern structure in keeping with recent progress and present conditions at that place, was set aside and the case continued until the further orders of the court. In the opinion it was said: "Since the submission of this case the government of the United States has become engaged in the prosecution of a war with the Imperial Government of Germany and its ally, Austria-Hungary, and, under its constitutional powers in times of war, has taken charge and control of all the railroads in the United States, including that of appellant, and is now engaged in the management and operation thereof, and the court knows judicially, as everyone knows, that it will require the utmost conservation of the resources and energies of this country, and will require vast stores of supplies and materials such as will be required to comply with the order appealed from to carry on the prosecution of the war to a successful termination, and that the revenues of the railroads, their rolling stock, and the services of their employees will be taxed to the utmost in the speedy and efficient transportation of troops, munitions, and other war supplies. Matters of this kind must and will have precedence over matters of private convenience and local ambition, and should not be permitted to interfere with the successful accomplishment of its aims by the government of the United States."

A similar state of facts arose in Chicago, R. I. & P. R. Co. v. State (1919) Okla. P.U.R.1919D, 443,

180 Pac. 250, and following the ruling in St. Louis-San Francisco R. Co. v. State (Okla.) supra, the court held that continuance must be had until further orders.

But a contrary view was taken by the court in Commercial Club v. Chicago, St. P. M. & O. R. Co. (1919) Minn. P.U.R.1919D, 417, 171 N. W. 312. This was on appeal from a decree affirming an order of the State Railroad and Warehouse Commission, directing the railway company to erect a new railroad and passenger depot at St. James, Minnesota, and it was held that the Act of Congress of March 21, 1918, had no bearing on the controversy.

It has also been held that a proceeding to compel the performance of a duty required by the state is not within the contemplation of the statute, and judgment will be enforced. In Re Morris Ave. Bridge (1919) 105 Misc. 659, 174 N. Y. Supp. 682, where, in granting a peremptory writ of mandamus to the city of New York, directing the New York Central Railroad Company to repair the bridge carrying Morris avenue over its tracks at 156th street, the court said: "The respondent further urges in opposition to this motion that it should be denied, because the railroads are not now in possession of and operated by the respondent, but are under Federal control and operated by the Director General of Railroads. Reference is made to General Order No. 50, issued by the Director General. It does not seem that the order has any application. It relates to actions at law, suits in equity, and proceedings in admiralty, based on contract, and actions in tort, and provides that such suits, actions, and proceedings shall be brought against the Director General, and not otherwise. It is also stated that the rule shall not apply to actions, suits, or proceedings for the recovery of fines, penalties, or forfeitures. This special proceeding is not an action, nor is it based upon contract or tort, but is a proceeding to compel the performance of a duty required by statute.

The fact that the Director General has control or management of the

affairs of the respondent does not excuse it from performing any duty owing the state. It is also to be noted that General Order No. 50 applies to causes of action arising subsequent to December 31, 1917. It follows that the General Order has no application to this case."

It is to be noted also that the statute and Presidential proclamation were not intended to include, nor do they prohibit, the issuance of an attachment for the purpose of obtaining jurisdiction over defendants, preliminary to a trial of the issue. Such a writ is not a process of execution, either mesne or final. See L. N. DANTZLER LUMBER Co. v. TEXAS & P. R. Co. (reported herewith) ante, 1669.

But the Director General, to be entitled to the protection of that clause of the act approved March 21, 1918, which provides that no process, mesne or final, shall be levied against any property under Federal control, must be in legal possession of such property. Hence it has been held that property which consists of several tracts or lots in a city and adjacent thereto, not necessary to the daily running of a railroad, is not within the provision of the act. United States R. Administration v. Burch (1918) 254 Fed. 140. In that case the court refused to restrain the defendant, who, as sheriff, had levied on and advertised for sale certain parcels of land belonging to the Atlantic Coast Line Railroad Company, on the ground that the lots did not appear in any wise to be the property or land essential or necessary to the performance of the transportation duties and operations of the railroad, saying: "The present case presents the case of a creditor holding a final judgment, which should normally be paid forthwith, and with the right to the creditor, if the same be not paid, to enforce payment out of any property of the judgment debtor liable to judgment execution. To hold that the railroad company is by these statutes put in a position where it is not bound to pay any of its debts until the possession of its property is restored to it, although it may receive the rentals in

the meantime, might mean that, while the railroad company would still continue to be in possession of the rents and profits and other results flowing from the property, its creditors, who are entitled to payment therefrom, might be greatly injured by their inability to collect payment for an indefinite period. The case before the court, however, does not depend upon any inability or unfortunate position that the railroad is placed in, because its property has been taken possession of by the government, or at least so much of its property as is necessary for use for transportation purposes. Were the railroad company to file a bill in equity, stating that all of its property had been taken possession of by the government by virtue of these acts, and that it had no property or funds which could be applied to the payment of this debt, and that a creditor ought not to be allowed by the compulsory process of judgment and execution to sell away the property of the railroad company, and deprive it of its legal title, when, through the action of the government, it was powerless to make payment, it might present a question calling for the interposition of an injunction from a court of equity until the railroad company should be in a position to use its funds to meet the claims of its creditors. In other words, if the railroad company were in a position to claim that the effect of these statutes was a compulsory statutory moratorium, might be in a position, in view of the great injury and injustice worked to it by permitting a creditor to assert his legal rights under execution,-it might be in a position to have an injunction. That is not the case, however. The Atlantic Coast Line Railroad Company is not before the court. The Atlantic Coast Line Railroad Company asks no injunction. The injunction is sought on behalf of the Director General appointed by the President's proclamation upon the single ground that he is legally in possession of this property, and that, being in possession of this property, then under the terms of § 10 of the Act of the 21st March, 1918, no final

process could be levied upon it. The only question thus for the court is whether or not, under the terms of the statutes of the United States, the complainant in this case is legally in possession of the property, so as to entitle him to the benefit of the exemption given by the act from the levy of final process. It does not appear to the court that the property is property of which, under the terms of the statute, the President was authorized to take possession. If the President was not authorized to take possession, then he could not authorize the Secretary of War or the Director General to take possession, and any possession taken by them would be unlawful and would in no wise devest the rights of other parties. The complainant being thus not in legal possession of this property, and the property being, in the opinion of this court, not property of which he could legally take possession, under the terms of those statutes, it is not property which, under the terms of those statutes, is exempt from the levy of final process; and it follows from that, that the injunction should be refused."

This holding has been followed in Schumacher v. Pennsylvania R. Co. (1919) 106 Misc. 564, 175 N. Y. Supp. 84, where the court said: "If all the property of a railroad company were in fact taken under Federal management and control, it might be argued that such corporations would be fully protected by the clause quoted. [$10.] We do not think the Act of August 29, 1917, or that of March 21, 1918, contemplates that all property of such corporations should be taken over by the Federal government. Indeed, the very language of the clause seems to assume that the company may possess property other than such as is taken over by the government, for the exemption from levy and sale under execution is limited to 'and property under such Federal control,' and such only. Had Congress intended to exempt all the property of a carrier from levy and sale, it would have so plainly said in the statute enacted. We may almost take judicial notice of the fact that railroad companies, or many

of them, do own and possess other property than that employed in the transportation of passengers and freight. Many of them have large holdings of the stock and bonds of subsidiary companies. Many, if not all, in addition, owned considerable sums of money on hand and in bank as the result of their operation. The Federal government took into its possession and control none of this class of property, and all this class of property can be reached by judgment creditors in appropriate proceedings to satisfy valid judgments against the corporation. Not only did the statute not authorize the government to assume control of the class of property referred to, but an examination of the President's proclamation of December 26, 1917, shows that, as a matter of fact, the government only assumed control and management of the physical properties of carriers used by them in their transportation systems. We mention these facts for the purpose of showing that the protection against levy and sale under execution as to property 'under Federal control' does not prevent the judgment creditor from reaching any other property

owned by the carrier for the satisfaction of judgments obtained pursuant to the provisions of § 10. Nowhere in the statute are we able to find any provision forbidding the judgment creditor from pursuing the usual remedies for the collection of his claim, saving from the particular properties taken 'under Federal control.' In time the various transportation systems taken over by the government will doubtless be returned to the various railroad companies which own them, and it is pertinent to ask whether unsatisfied judgments against the carrier corporations might not be collected by execution against the property returned. Such property would then cease to be under 'Federal control,' and the prohibition against process against such property would cease to operate."

This limitation is also recognized in MCGREGOR v. GREAT NORTHERN R. Co. (reported herewith) ante, 1635, wherein it is said: "Judgments obtained give rise to the same remedies as formerly, except that their transportation facilities are not subject to levy and seizure." W. M. C.