Mid-South Paving Co. v. State Highway Commission , 197 Miss. 751 ( 1945 )

ON SUGGESTION OF ERROR. We have very carefully considered the suggestion of error in this case, together with all the interesting and able briefs thereon, and have with painstaking attention, re-examined our original opinion and have concluded that the suggestion of error must be overruled.

We are strengthened in our conclusion by the decision of the Supreme Court of the United States in Federal Housing Administration v. Burr, 309 U.S. 242, 60 S. Ct. 488, 84 L. Ed. 724. While, by this citation, we are not to be understood as extending or broadening, or contracting, or narrowing, our opinion heretofore announced in this particular case, we cite, as interesting and comforting, the above decision by the Federal Supreme Court.

The question there presented was whether the Federal Housing Administration is subject to garnishment for monies due to an employee. The Supreme Court of the State of Michigan held that it was. Burr v. Heffner, 289 Mich. 91, 286 N.W. 169. Certiorari was granted because of the importance of the problem, involving the right of garnishment against recently created agencies or corporations of the Federal Government. Federal Housing Administration v. Burr, 308 U.S. 541, 60 S. Ct. 129, 84 L. Ed. 456. Burr had obtained a final judgment against Brooks, and another, and in 1938 the Federal Housing Administration, Region No. 4, was served with a writ of garnishment issued by the Michigan Court. An answer was filed admitting that the Administration owed Brooks $71.11, but contended that it was an agency of the United States Government and therefore not subject to garnishment proceedings. Judgment, however, was entered against the Federal Housing Administration for the amount of its indebtedness to Brooks. As stated, on appeal to the Supreme Court of Michigan the judgment was affirmed, and it was likewise affirmed by the Supreme Court of the United States when it reached there by certiorari.

It was said by Mr. Justice DOUGLAS, speaking for the Court [309 U.S. 242, 60 S. Ct. 490], "Since consent to ``sue and be sued' has been given by Congress, the problem here merely involves a determination of whether or not garnishment comes within the scope of that authorization."

We interrupt here to call attention to Section 8038, Code 1942, which vests the State Highway Commission with the following powers and properties: ". . . (c) To enforce by mandamus, or other proper legal remedies, all legal rights or rights of action of the state highway commission with other public bodies, corporations, or persons, and the state highway commission shall be a body corporate, and as such may sue and be sued, plead and be impleaded, in any court of justice having jurisdiction of the subject matter of any such suit."

Continuing now with the Federal case, supra, the Supreme Court of the United States said further: ". . . when Congress establishes such an agency, authorizes it to engage in commercial and business transactions with the public, and permits it to ``sue and be sued', it cannot be lightly assumed that restrictions on that authority are to be implied. Rather if the general authority to ``sue and be sued' is to be delimited by implied exceptions, it must be clearly shown that certain types of suits are not consistent with the statutory or constitutional scheme, that an implied restriction of the general authority is necessary to avoid grave interference with the performance of a governmental function, or that for other reasons it was plainly the purpose of Congress to use the ``sue and be sued' clause in a narrow sense. In the absence of such showing, it must be presumed that when Congress launched a governmental agency into the commercial world and endowed it with authority to ``sue or be sued', that agency is not less amenable to judicial process than a private enterprise under like circumstances would be. Clearly the words ``sue and be sued' in their normal connotation embrace all civil process incident to the commencement or continuance of legal proceedings. Garnishment and attachment commonly are part and parcel of the process, provided by statute, for the collection of debts. In Michigan a writ of garnishment is a civil process at law, in the nature of an equitable attachment. . . . But however it may be denominated, whether legal or equitable, and whenever it may be available, whether prior to or after final judgment garnishment is a well-known remedy available to suitors. To say that Congress did not intend to include such civil process in the words ``sue and be sued' would in general deprive suits of some of their efficacy. . . . But petitioner strongly urges considerations of policy against this conclusion and stresses the heavy burdens which would be imposed on such governmental instrumentalities if garnishment were permitted. It asserts that the task of preparing answers, disclosures and returns to numerous garnishment processes in the courts of each of the states would appreciably impede the federal functions of such an agency. . . . considerations of convenience, cost and efficiency which have been urged here are for Congress which, as we have said, has full authority to make such restrictions on the ``sue and be sued' clause as seem to it appropriate or necessary."

The argument in that decision, in our judgment, answers comprehensively within its general scope many of the arguments on the suggestion of error here. The State Highway Commission "can sue or be sued, plead or be impleaded" under the statute of Mississippi creating it. But the suggestion of error contends that if we give the meaning to these words which they import, of including therein the remedy by attachment in chancery under the peculiar circumstances of this particular case, dire consequences will follow to the State of Mississippi. We think that there is no such menace in our views, but since such stress has been laid upon this feature of the argument, simply for the purpose of clarification of our former opinion, we make certain observations concerning its significance.

The matter of the jurisdiction of this Court was heretofore settled in this same case, on a motion to dismiss the appeal for lack of jurisdiction, which motion was overruled. Mid-South Paving Company v. State Highway Commissioner, 20 So. 2d 834.

The case was tried in the court below and in this Court on an agreed statement of facts, stipulated in the record. The correctness of these facts is now sought to be challenged by the suggestion of error, which is largely addressed to the alleged inaccuracy of the facts therein agreed. It is sought to bring into the case other and additional supposed or possible facts, of which we are urged to take judicial knowledge. However, suffice it to say that when agreed facts form the basis of decision courts must confine decision to those facts according to the agreement. We did that in this case, and acted here on those facts as the facts of the case, and none other. It is not permitted now to impeach such facts by a unilateral denial of their verity.

In our former opinion, to which we adhere, our decision was based on the agreement that construction under the "prime contract was completed and finished and said highway has been accepted and approved by the Highway Department." In our judgment, therefore, we concluded that no attachment in chancery should or could be had unless the contract involved had been complete or practically so.

We did not and do not now hold that the funds of a nonresident debtor in another concurrent contract or other concurrent contracts with the Highway Commission can be reached by the process of garnishment in a particular and separate contract. We are of the opinion that only the funds involved in the single and specific case at litigation could be so reached by the attachment process therein, and where, moreover, the complainant is a sub-contractor or otherwise involved in the prime contract in the instant suit, so as to have become a creditor therein of the nonresident debtor in the chancery attachment.

We did not and do not now hold that the retained percentages, retained under the prime contract, are such "effects" of the nonresident defendant contractor as may be reached by the process of an attachment in chancery, where and while so retained under such contract in good faith. When and after they have been or should have been released, then such process may reach such funds, but not otherwise.

We did not and do not now hold that funds of the prime contractor to become due under the contract, which, prior to the service of the attachment process, in good faith and for the real purpose of financing the performance of the instant prime contract, had been assigned, as aforesaid, as security for advances therein, constitute such "effects" as may be reached by attachment process, in chancery, until after they have been or should have been released by the lender to the prime contractor.

We believe the department is unduly alarmed by its apprehensions of disaster to follow our construction of the law here. Our duty is to construe the law so as to determine its meaning, and this we have sedulously and earnestly undertaken to do. The suggestion of error must be and is overruled.

So ordered.

Smith, C.J., dissents and adheres to the views expressed in his former dissenting opinion herein.