L.N. Dantzler Lumber Co. v. Texas & P. Ry. Co.

• Citation: 80 So. 770,119 Miss. 328
• Decision Date: 03 March 1919
• Docket Number: 20572
• Parties: L. N. DANTZLER LUMBER CO. v. TEXAS & P. RY. CO. ET AL
• Court: United States State Supreme Court of Mississippi

80 So. 770

119 Miss. 328

L. N. DANTZLER LUMBER CO. v. TEXAS & P. RY. CO. ET AL

No. 20572

Supreme Court of Mississippi

March 3, 1919

Division B

1 STATES. Powers. Relation to United States.

Under section 10 of the amendments of the Constitution of the United States, all powers not granted to the national government and not prohibited to the states are reserved to the states respectively or to the people. Under this provision, the supreme court of the United States had decided that all powers relating merely to municipal legislation or to internal police are not surrendered by the states and in relation to these, the powers of a state are unqualified and exclusive.

2 RAILROADS. Federal control. Jurisdiction of state courts.

The act of Aug. 29, 1916, section 1 (U. S. Comp. St. 1918, section 1974A), Act March 21, 1918, sections 10-13-15 (U. S. Comp Stat. 1918, sections 3115 3--4], 3115 3-4m, 3115 3-4o), and presidential proclamation of December 26, 1918, and April 11, 1918, did not prohibit state courts from entertaining jurisdiction and proceeding to judgment in all cases against railroads as heretofore; the only purpose being 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.

3. RAILROADS. Federal control. Jurisdiction of state courts. Word "mesne."

Under the Act of August 29, 1918, sections 10-13-15 (U. S. Comp. St. 1918, sections 1974a), Act of March 21, 1918, sections 10-13-15 (U. S. Comp. St. 1918, sections 3115 3-4j, 3115 3-4m, 3115 3-4o), and the presidential proclamation of December 26, 1918, and April 11, 1918, state courts could entertain jurisdiction of actions against a non-resident railroad wherein a debt owing defendant by a railroad running through this state was, whether or not an execution could be levied. The proclamation of the president, prohibiting execution or other mesne process, does not prevent and was not intended to prevent a proceeding of the character here involved. The word "mesne" means intermediate, intervening; the middle between two extremes.

4. APPEAL AND ERROR. Disposition of cause. Reversed in part.

Where the chancellor erroneously held that he had no jurisdiction, the supreme court, on reversing his decree, will not affirm as to a portion of defendants, on the theory that the cause having been set down for hearing, less than four months after their answer was filed, the answer must be taken as true, but will reverse and remand in accordance with the law.

HON. W. M. DENNY, JR., Chancellor.

APPEAL from the chancery court of Harrison county, HON. W. M. DENNY, JR., Chancellor.

Bill for attachment by the L. N. Dantzler Lumber Company against the Texas & Pacific Railway Company and others. From a decree for defendants, complainants appeal.

The facts are fully stated in the opinion of the court.

Cause reversed and remanded.

White & Ford, for appellant.

R. B. Mayes, Wells, May & Sanders, R. H. & J. H. Thompson, McDonald & Marshall and B. E. Eaton, for appellees.

ETHRIDGE, J. STEVENS, J., took no part in the consideration and decision of this case.

OPINION

ETHRIDGE, J.

The appellant filed a bill for attachment in the chancery court under section 536, Code of 1906 (section 293, Hemingway's Code), against the Texas & Pacific Railway Company, a foreign corporation operating between Ft. Worth, Tex., and Shreveport, La., and against the Vicksburg, Shreveport & Pacific Railroad Company, a railway corporation operating between Shreveport, La., and Vicksburg, Miss., 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, Tex., to Howison, Miss., 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, La., and over the Vicksburg, Shreveport & Pacific Railroad to Vicksburg, over the Alabama & Vicksburg Railway to Jackson, Miss., and over the Gulf & Ship Island Railroad to Howison, Miss.; that said cattle were unreasonably delayed in transportation, having been in transportation, for one hundred, 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 Railway 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 six hundred dollars, and other cattle were damaged in the sum of five thousand, six hundred dollars; 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 Railroad Company, the Yazoo & Mississippi Valley Railroad Company, and the Mobile & Ohio Railroad Company, and also the carriers over which the shipment moved, were indebted unto the Texas & Pacific Railroad 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 answer said bill and to disclose in what sums and in what amounts each were indebted to the Texas & Pacific Railway Company. This bill was filed March 25, 1918, and summons issued to all the defendants, except the Texas & Pacific Railway Company, for which publication was made.

The defendants severally answered 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 garnishees alone). Each, except the Mobile & Ohio Railroad Company, answered that they were not indebted to the Texas & Pacific Railway Company, but, on the contrary, that the said Texas & Pacific Railway Company was indebted to said garnishees. The Mobile & Ohio Railroad answered the bill, admitting an indebtedness on the 31st day of March, 1918, as follows: Unpaid vouchers, one thousand, one hundred forty-nine dollars and seventy-seven cents; interline ticket account, one hundred, fifty-one dollars and fifty-four cents; car service, nine hundred, eighty-three dollars and twenty cents; freight claims, forty-three dollars and sixty-eight cents--total, on March 31, 1918, two thousand, two hundred, thirty-two dollars and nineteen cents; and that, accruing from March 31 to April 30, 1918, there were unpaid vouchers two thousand, two hundred twenty-seven dollars and sixty-four cents; interline ticket account, one hundred nine dollars and seventeen cents; car service, six hundred sixty-one dollars and thirty-five cents; freight claims, fifty-five dollars and seventy-eight cents.

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, chapter 25, 40 Stat. (U. S. Comp. St. 1918, sections 3115 3/4 a-3115 3/4 p), entitled:

"An act to provide for the operation of transportation systems while under federal control, for the just compensation of their owners and for other purposes."

That by section 10 of the said act (section 3115 3/4 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 garnishee, 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...