M. C. R. R. Co. v. C. & M. L. S. R. R. Co.

every part of the country, amounting to thousands yearly. The answer discloses that on the day of the service of the writ, the garnishee received under such arrangement three box cars and seven flat cars, belonging to the Chicago and Michigan Lake Shore Railroad Company, and after the service of the writ, and up to the time of filing the answer, it in like manner received under said arrangement eightytwo box cars and three hundred and sixty-two flat cars of said company, all of which had been returned as soon as practicable after their receipt, in due course of business. The answer avers that said box cars did not exceed in value $250 each, and said flat cars $200 each, which would made the total value of all of said cars amount to not exceeding $95,050.

The first question presented is, whether a railroad company is liable to garnishment for cars received of a connecting line under the circumstances and for the purposes disclosed by the answer of the garnishee. We are referred to no case in which this precise point is decided, and we are therefore compelled to base our conclusions upon such principles as seem to us applicable to the case, unaided by any decisive authority. We regard the question as one of great practical importance, and, so far as the time at our disposal has permitted, we have given it careful consideration, aided by the able arguments furnished us by the counsel for the respective parties.

The Attachment Act provides for summoning as garnishees all persons whom the creditor shall designate "as having any property, effects, choses in action or credits in their possession or power, belonging to the defendant, or who are in any wise indebted to such defendant." (R. S. 1874, Chap. 11, § 21.) The statute in relation to garnishment provides for summoning as garnishee "any person indebted to the defendant, or having any effects or estate of the defendant in his possession, custody or charge." (R. S. 1874, Chap. 62, § 1.) Although these statutory provisions are sufficiently broad and comprehensive in their language to charge as garnishees all persons having any property, effects or estate of the debtor in their possession, custody or power, yet upon principles generally recognized by the courts of the country, numerous cases exist to which it

M. C. R. R. Co. v. C. & M. L. S. R. R. Co.

is held that statutes of this and a similar character have no

application. Various considerations of public policy intervene, in the light of which it is assumed that the legislature intended a much more restricted application of the statute, than the language employed would seem to import. Accordingly it has long been held that no person deriving his authority from the law and obliged to execute it according to the rules of law, can be charged as garnishee in respect to any money or property held by him in virtue of that authority. Brooks v. Cook, 8 Mass. 246; Colby v. Coates, 6 Cush. 558. Upon this principle it is held that executors, administrators, guardians, sheriffs, clerks of courts, receivers, trustees of insolvents, assignees in bankruptcy, municipal corporations, and various other officers and persons holding money or property as the agents and under the authority of the law, cannot be charged as garnishees.

In case of these public offices and trusts which are to be executed under prescribed regulations, it would to an extent which a due regard to public policy will not tolerate, tend to distract or embarrass the officer, trustee or municipal corporation, if, in addition to the ordinary duties and functions which the law imposes, often multiplied, arduous and responsible in themselves, they are drawn into conflicts created by the interposition of creditors, and compelled to attend to rival attachments, answer interrogatories on oath, and be put to trouble and expense for the benefit of third persons in no way connected with the fund or property in their hands, nor within the duties of their trusts.

Although a railroad company, so far as its organization, and the proprietorship of its franchises and property is concerned, is simply a private corporation, yet so far as it performs the functions of a common carrier its duties are public. It has long been held that a common carrier exercises a public employment, the duties and liabilities pertaining to which are clearly defined and regulated by law. C. & A. R. R. Co. v. The People, 67 Ill. 11. A common carrier is bound to serve the public fairly and without unjust discrimination, and to receive, transport and deliver freight when offered with reasonable dispatch, and to furnish all reasonable facilities for such transportation.

M. C. R. R. Co. v. C. & M. L. S. R. R. Co.

In the absence of express contract, nothing can excuse it for the non-delivery at the point of destination of the goods received, except the act of God or the public enemy. We are unable to perceive why substantially the same considerations of public policy which exempt other public officers and agents in the discharge of their official duties from the operation of the statute in relation to garnishment, may not also be extended to the case of common carriers, whenever the application of the statute will manifestly and necessarily interfere with the proper discharge, on the part of the carrier of its public duties and functions.

If the statute should be allowed the operation sought to be given it in the present case, it would, beyond doubt, very seriously interfere with the transportation of freights by railroad, according to the method which experience seems to have developed as the speediest, most economical and best. Our railroads extend into all parts of the country, and traverse all of the various States of the Union, forming one great and complicated system of internal communication, so that for most of the practical purposes of transportation, each railroad, instead of constituting a separate line, is only a part or member of this general system. Cars may be loaded at any point upon one railroad and transported, without unloading, to the point of destination on any other railroad, however distant. It cannot be doubted that this method of conducting the carrying business of the country greatly subserves the public convenience, and should not be interfered with for the mere prosecution of individual and private ends, except for very strong and controlling reasons.

If a car, as soon as it passes from the line of road of its owner on to the line of another company becomes subject to process of garnishment, no railroad company owing debts can safely allow its cars to pass beyond its own line for any purpose; nor can any company, without exposing itself to the annoyance of continual litigations between other parties and in which it has no interest, receive the loaded cars of other companies for transportation to their place of destination. The doctrine contended for by appellee would make each railroad company an agency

M. C. R. R. Co. v. C. & M. L. S. R. R. Co.

for the collection of the debts and liabilities of every other railroad company with whose track its line of road is immediately or remotely connected. The railroad companies would be compelled either to abandon the present economical and expeditious system of transportation, or carry it on at the risk of being continually drawn into controversies between third parties, and of being exposed to expensive and vexatious litigations in which they have no interest.

Still further, under our statute the writ of garnishment holds not merely the property in the hands of the garnishee at the time of the service of the writ, but all property of the debtor which may thereafter come into its possession up to the date of filing the answer, which may be months afterwards. By the construction of the statute contended for, the garnishee would be obliged at its peril to retain in its custody all cars received from the debtor corporation prior to the date of the answer, and hold them through the course of the litigation between the original parties to the suit, however protracted, so as to be ready to deliver the same to the sheriff at the issuing of exe cution. Thus each line of railroad would, on service of a writ of garnishment, become, so to speak, a sort of cul-de-sac, into which the cars of the debtor corporation might run up to the time of filing the answer, but from which there would be no escape until the judgment of the attaching creditor was recovered, and his execution satisfied. Such an interference by cred itors with the operations of common carriers in the exercise of their public employment, is, we think, so far in conflict with sound public policy as to warrant us in holding that the cars of one company in the possession of another, under the circumstances disclosed by the present record, are not liable to garnishment.

In I. C. R. R. Co. v. Cobb et al. 48 Ill. 402, it was held that a railroad company could not be held as garnishee for property in its possession as common carrier consigned to the debtor while in transitu on its route. The Supreme Court base this decision simply upon the inconvenience which would result from the adoption of a different rule. They say: "Any other rule would make railway companies collecting agents of creditors,

M. C. R. R. Co. v. C. & M. L. S. R. R. Co.

and that too at the risk of these companies. They are common carriers of all kinds of manufactured and agricultural products, having a lien upon the articles delivered for the freightage. They are obliged under ordinary circumstances to carry all that shall be delivered to them, and they discharge their duty by carrying and delivering according to the contract. It is not their business, nor is it their interest to know to whom the various articles belong, nor should it be required of them that conflicting claims to the property entrusted to them should be adjusted through controversies, the burden, annoyance and expense of which they must bear."

We think the argument ab inconvenienti applies in the case before us quite as strongly as in the one above cited.

The next question for consideration grows out of the offer of the garnishee to set off a sufficient amount of the indebtedness to it from the Chicago and Michigan Lake Shore Railroad Company, to cover the full value of all of said cars, which offer was disallowed by the court. The statute under which the right to such set-off was claimed, is as follows:

"Every garnishee shall be allowed to retain or deduct out of the property, effects or credits in his hands, all demands against the plaintiff, and all demands against the defendant of which he could have availed himself if he had not been summoned as garnishee, whether the same are at the time due or not, and whether by way of set-off on trial or by set-off of judgments or executions between himself and the plaintiff and defendant severally, and he shall be liable for the balance only after all mutual demands between himself and plaintiff and defendant are adjusted, not including unliquidated damages for wrongs and injuries." (R. S. 1874. Chap. 62, § 13.)

We are inclined to doubt the right of the garnishee to avail itself, under this statute, of the set-off claimed. The statute does not purport to give the garnishee any rights, as against the defendant corporation which it would not have had in case no garnishee writ had been issued. It merely provides that the garnishee may retain or deduct out of the property effects, etc., all demands against the defendant of which it could have availed itself had it not been summoned as garnishee. Now