O'Sullivan & Morgan, of Prescott, for ap-, scribed while working for an individual, or pellant.

A. H. Gale, City Atty., of Prescott (Le Roy Anderson and George W. Nilsson, both of Prescott, of counsel), for appellee.

ROSS, J. The plaintiff, who is the appellant here, seeks by his complaint to recover from the defendant city damages for personal injuries suffered while he was engaged as an employé in constructing a tunnel connecting an underground water main with the city

a partnership, or a private corporation, his employer, such employé's injury not having been caused by his own negligence, would obviously be liable in damages.

The question is, Does the word "corporation" include a municipal corporation as well as a private corporation? Every dictate of tion in the affirmative, especially when the policy and reason would answer this quesenterprise is one of a private or business naEmployers' Liability Law was to protect the ture. The underlying purpose and aim of the reservoir, in which the defendant's water supply is stored for delivery to its inhabi- employé, or his dependents, from personal tants. The complaint sets forth that defend-injury losses sustained in hazardous occupaant owns its waterworks system, and at the time of the injury, and for a number of years prior thereto, had been operating it, selling and delivering water to consumers for pay; as an individual, or an association of indithat the work plaintiff was doing was neces-viduals, or a private corporation could by sary and hazardous. He bases his right of

recovery on the Employers' Liability Law (chapter 6, title 14, Civil Code 1913), claiming

that his injury was due to a condition or conditions of his occupation.

The defendant's demurrer raised the point that it was not liable under such law for two reasons: (1) That the Employers' Liability

Law does not provide for a liability in favor of an employé as against his employer when such employer is a municipal corporation; and (2) in no event should defendant be liable because the work in which plaintiff was injured was being carried on by it in its political or governmental capacity. The court sustained the demurrer and entered judg

ment of dismissal.

tions, by shifting such losses to the public ity enter the field of private industry and as added cost of production. If a municipalenterprise, it can care for such losses as well

adding the losses to the cost of production. ing liability upon others engaged in the inTo exempt it from such liability while imposdustry would give a municipality an unfair and discriminatory advantage over its competitors, should there be any.

The right of action under the Employers'

Liability Law is radically different from the Instead of restricting the common-law right, common-law right of action for negligence. it introduces into our law a policy of liabilconstrue the statutory action as unavailable ity extending and enlarging that right. To to an employé of a municipality engaged in private enterprise would be a denial of a right analogous to the common-law right of recovery for negligence. Under the common The question for decision is purely one of law a municipal corporation exercising prolaw, and depends upon the meaning to be prietary or business powers was regarded ascribed to the word "corporation," as used in describing those employers liable to pay liable to the same extent and on the same quo ad hoc a private corporation, and was damages under the Employers' Liability Law. principles as a private corporation. 28 Cyc. The statute (paragraph 3154), makes "any 1287; 4 Dillon, Munic. Corp. (5th Ed.) §§ employer, whether individual, association, or 1631, 1670; Lloyd v. Mayor, 5 N. Y. (1 Selcorporation" liable to an employé (when his den) 369, 55 Am. Dec. 347; Safety Insulated injury is not caused by his own negligence) Wire & Cable Co. v. Mayor of Baltimore, 66 in those occupations declared and determin- F. 140. 13 C. C. A. 375; City of Henderson ed in paragraph 3156 to be hazardous, among. Young, 119 Ky. 224, 83 S. W. 583; Illinois which is mentioned, "(9) All work in the construction and repair of tunnels, subways and viaducts." The limitation in the statute is in the character of the employment and not in the character of the employer. The occupation in which the injury or death occurs must be one of those declared and determined to be hazardous, and, that desideratum being satisfied, the liability would seem to follow, whether the employer be a natural person, or an association of natural persons, The construction contended for is not in or a corporation. The facts and circum- harmony with the spirit or purpose of the stances set out in the complaint clearly con- law. It would be establishing a rule more stitute a cause of action under the Employ-restrictive than the common-law rule in analers' Liability Law against any and every employer, unless it be a municipal corporation. In other words, if the plaintiff had been

Trust & Sav. Bank v. City of Arkansas City, 76 F. 271, 22 C. C. A. 171, 34 L. R. A. 518; Keever v. Mankato, 113 Minn. 55, 129 N. W. 158, 775, 33 L. R. A. (N. S.) 339, Ann. Cas. 1912A, 216. In the latter case it is said:

"When a municipality engages in a private enterprise for profit, it should have the same rights and be subject to the same liabilities as priyate corporations or individuals."

ogous cases, and it would discriminate between employers of labor in the same occupations under the same or similar circum

(230 P.)

municipal corporation." This constitutional right has been recognized and provided for by the Legislature. Chapter 31, Laws 1921. Given a free hand to operate where any person, firm, or corporation may, consistency as well as public policy ought to impose upon municipalities the same duties and obligations as are imposed upon persons, firms, or corporations.

The word "corporation," in a context some- | poration by virtue of a franchise from said what similar in Lord Campbell's Act, has been construed to include municipal corporations. Lord Campbell's Act, in some form or other, has been adopted by most every state in the union. Before it was enacted no right of action existed for wrongful death. It created a right of action, and our court has decided that it was a new action, purely statutory. Jennings v. Lister, 22 Ariz. 185, 195 P. 1113. It provides that

In Murphy v. Board of Chosen Freehold

ers, 57 N. J. Law, 245, 31 A. 229, it was con

The appellee, however, contends that this court in Morrell v. City of Phoenix, 16 Ariz. 511, 147 P. 732, decided the identical questions, and held that "the word 'corporation,'

wherever used in

*

article 18 [Constitution], entitled 'Labor,' has reference to private corporations, and not to cities or the Morrell Case. However, in that case the towns." The quoted language was used in from the question we here have. In the Morquestion before the court was very different exempted it from liability for damages on rell Case the city claimed that its charter account of injuries sustained growing out of the malfeasance, misfeasance, or neglect of duty of its officers or other authorities. Mor

tended that the word "corporations," in a context like our paragraph 3372, did not include municipal corporations. That court decided that it comprehended municipal corporations, and uses this language in that con-rell was injured, while sprinkling the streets

nection:

of the city, by an unruly, fractious and un"Besides, the word 'corporations,' in its gen- manageable team of horses that had been eral and ordinary sense, embraces both public furnished him by the city authorities. The and private corporations, and there is nothing exemption claimed by the city was expressly in the language or spirit of the statute which provided for by its charter. The holding was narrows or restricts this general meaning and that the charter provisions were valid and confines it to any one class of corporations. The act is intended to give a right of action the claim of the city in that regard tenable. against persons or corporations against whom a The sweeping statement that the word "corliability existed if death had not ensued, and in poration," wherever it occurred in article 18 the absence of any language in the act which of the Constitution, had reference to private either expressly or impliedly excludes public corporations and not cities or towns, was not corporations, it would, upon principle, be clear necessary to the decision of the case. If a that they were intended to be and are included definition of it were necessary at all, it within the provisions of the act, which, in its should have been restricted to the meaning nature, must be liberally and beneficially in- of the word as it occurs in section 3 of said terpreted; if otherwise interpreted its inherent import would be restricted and the remedy article wherein certain contracts are prohibtherein provided be materially impaired. Aited employers and declared to be null and suable wrong committed by a public corporation should not become remediless by the death of the person injured. In this case there exist no circumstances upon which such a restriction could be based in order to diminish by construction the natural meaning and force of the terms used in the statute. In the construction of a

remedial statute, the rule is to avoid all subtle

inventions and evasions for the continuance of the mischief and denial of the remedy, et pro privato commodo; the duty of the court is to add force and life to the cure and remedy according to the true intent of the maker of the act, pro bono publico."

void if made. There was no necessity for a definition of the word as it appears in section 7 of said article, being the section providing for the enactment of the Employers' Liability Law. The Morrell Case, besides being an action for negligence, grew out of cal duty, and not out of a proprietary_busithe performance of a governmental or politi

ness of the city, as in this case. It was based upon the common law of negligence and controlled by common-law rules and not by the Employers' Liability Law. The demurrer should not have been sustained.

For the reasons above given, the judgment See, also, Keever v. Mankato, supra; Keep is reversed, and the cause remanded for furv. Nat. Tube Co. (C. C.) 154 F. 121. ther proceedings not inconsistent with this opinion.

The state Constitution, section 5 of article 13, provides that municipal corporations may engage "in any business or enterprise which may be engaged in by a person, firm, or cor230 P.-70

MCALISTER, C. J., and LYMAN, J., con

cur.

WEITZEL v. WEITZEL (SOUTHERN PAC.
R. CO. OF MEXICO, Garnishee).
(No. 2176.)

(Supreme Court of Arizona. Dec. 10, 1924.)

superior court of Pima county, Ariz., against the Southern Pacific Railroad Company of Mexico, in an effort to reach a debt the railroad company owed Harry E. Weitzel on account of wages earned in Mexico, and apply it on a judgment for alimony obtained by her against Harry E. Weitzel in said superior court, in an action in which he was per

The Southern Pacific Railroad Company of Mexico in its verified answer to the writ ad

1. Courts 12(3)—Foreign railroad corporation held subject to Arizona courts. Foreign corporation operating railroad ex-sonally served and defended. clusively in Republic of Mexico, but maintaining offices in Arizona where were located most of its principal officers, and which main-mitted that Harry E. Weitzel was employed tained a permanent bank account in Arizona out of which it paid employees and some current bills, held subject to Arizona courts. 2. Garnishment ~~81(1)—If debt of garnishee is not within court's jurisdiction, it cannot be appropriated to payment of plaintiff's garnishment because it was for wages earned and payable in Mexico. It claimed the situs of such debt was in Mexico and not in Arizona. Finally, it claimed that the Mexican

claim.

Mexico and that it owed him at the date of and was working for it in the Republic of answering 619 pesos, Mexican money, but claimed that such debt was not subject to

Though garnishee is within jurisdiction of court, if its debt to defendant is not also within that jurisdiction it cannot be legally courts would not recognize the forced payappropriated to payment of plaintiff's judgment in Arizona as satisfaction of the debt, ment.

3. Garnishment 81(2)-Debt, though for wages earned and payable in Mexico, held subject to garnishment in Arizona.

Where judgment creditor and garnishee were within jurisdiction of Arizona courts and judgment debtor entitled to sue garnishee on his claim in Arizona, held, though debt was for wages earned and payable in Mexico, it was subject to garnishment in Arizona, provided payment in such manner would be recognized by Mexican courts.

but would make it pay the claim in Mexico, notwithstanding its payment in Arizona.

The trial court took the view of the garnishee and entered judgment dismissing the writ, and it is from such judgment that Josephine Weitzel appeals.

[1] The garnishee also claims that being a foreign corporation, operating a railroad located exclusively in the Republic of Mexico, it is exempt from being sued in the courts of Arizona. However, the record shows that it has offices in Tucson. Pima county, Ariz., where are located most of its principal officers and where a force of employees are engaged in working for it; that it has a per

4. Garnishment 237-Garnishee's payment of judgment against it is bar to judgment debtor's action in another state. Under full-faith and credit clause of fed-manent bank account in the Consolidated Naeral Constitution, garnishee's payment of judgment entered against it in one state is a bar to action on its debt in another state. 5. Garnishment 81 (2)-Arizona creditor held not entitled to garnishee debt earned and payable in Mexico which might be there again enforced.

Arizona creditor held not entitled to garnishee in Arizona debt earned and payable in Mexico, since Mexican courts were under no obligation to recognize any payment made by garnishee and judgment debtor might in such courts enforce a second payment.

tional Bank of Tucson out of which it pays its local employees and officers and also some of its current bills. Thus it is seen the garnishee's business in Arizona is not only considerable in amount but of a permanent and continuous nature. As was said in Tauza v. Susquehanna Coal Co., 220 N. Y. 259, 115 N. E. 915, speaking of the situs of a corporation for the purposes of service of process: "If in fact it is here, if it is here, not occasionally or casually, but with a fair measure of permanence and continuity, then, whether its business is interstate or local, it is within the

Appeal from Superior Court, Pima County; jurisdiction of our courts." Kirk T. Moore, Judge.

See, also, International Text-Book Co. v. Garnishment proceedings by Josephine Tone, 220 N. Y. 313, 115 N. E. 914; AtkinWeitzel against Harry E. Weitzel and the son v. United States Operating Co., 129 Minn. Southern Pacific Railroad Company of Mexi-232, 152 N. W. 410, L. R. A. 1916E, 241. co, garnishee. From judgment dismissing writ, plaintiff appeals. Affirmed.

Charles Blenman, of Tucson, for appellant. C. J. Hellerstedt and G. O. Hilzinger, both of Tucson, and Charles L. Rawlins, of Globe, for appellee.

ROSS, J. Josephine Weitzel, the appellant, sued out a writ of garnishment in the

That the garnishee had submitted itself to the jurisdiction of our courts, so far as debts and liabilities incurred in Arizona are concerned, is certain. It was in the state doing and carrying on business therein, receiving the state's protection and acknowledging its sovereignty over it, and we think generally subject to its processes.

[2, 3] This brings us to the question of the

(230 P.)

situs of the debt. Even though the garnishee The facts in the Ming Case were: Ming, is in the jurisdiction, if the debt be not also a resident of Arizona, insured with the Nain our jurisdiction it cannot be legally ap- tional Fire Insurance Company, a Connectpropriated to the payment of plaintiff's judg-icut corporation, his property in Arizona. ment. The court must have jurisdiction of the debt garnished. The attitude of the courts on the much-vexed question as to the locality of choses in action for purposes of garnishment is well stated in Harvey v. Thompson, 128 Ga. 147, 57 S. E. 104, 119 Am. St. Rep. 373, 9 L. R. A. (N. S.) 765, as follows:

"The question as to where is the situs of intangible property, such as choses in action, for the purpose of attachment and garnishment, is one that has been the subject of numerous decisions. The conflict of opinion on the subject is distressing and hopeless. In some cases it is held that the situs, for the purpose of garnishment proceedings, is the domicile of the principal defendant, in others that it is the domicile of the garnishee, and still

others that it is the domicile of the debtor or wherever he may be found and sued. 20 Cyc. 1036; Brown on Jurisdiction (2d Ed.) § 150."

The policy of insurance was issued by the company's agency in California, where it had qualified to solicit insurance. The property having been destroyed by fire and the insurance company failing to pay the insurance, suit was brought by Ming in the courts of Arizona. The insurance company answered that it had been sued in the California courts by Ming's creditors resident therein and garnished and had paid out said insurance in satisfaction of judgments obtained against it in California by such creditors. Now, although the contract of insurance was made and payable in Arizona, where Ming, the creditor, resided, for the purposes of the garnishment proceedings the situs of the debt was held to be in California

where his creditors resided and where the insurance company had general offices and did business, although a resident of the state of Connecticut. In the Ming Case neither the garnishee nor the garnishment creditors The rule best adapted to the efficient emIn the present ployment of the writ of garnishment, for the were residents of Arizona. purpose it was evidently intended to aid case both the judgment creditor and judg ment debtor at the time of entry of judgthe creditor in collecting his debt-is, we think, the one adopted by the federal Su-ment were residents of Arizona, and at the preme Court in Harris v. Balk, 198 U. S. time of garnishment both the judgment cred222, 25 S. Ct. 626, 49 L. Ed. 1023, 3 Ann.itor and the garnishee were either residents Cas. 1084, wherein it is stated:

or in the jurisdiction of the court. It was held in the Ming Case that Ming could have sued the insurance company in California even though it was a foreign corporation and he a nonresident, and acquired jurisdiction of the subject-matter by attachment or gar

"Attachment is the creature of the local law; that is, unless there is a law of the state providing for and permitting the attachment it cannot be levied there. If there be a law of the state providing for the attachment of the debt, then if the garnishee be found in that nishment proceedings, since it was shown state, and process be personally served upon the insurance company had property and him therein, we think the court thereby ac-effects in the state of California. And for quires jurisdiction over him, and can garnish that reason his California creditors could the debt due from him to the debtor of the maintain the garnishment in California. plaintiff and condemn it, provided the garnishee could himself be sued by his creditor in that state."

When we were yet a territory, the predecessor of this court, in National Fire Insurance Co. v. Ming. 7 Ariz. 6. 60 P. 720, following, as it was bound to do, an earlier Supreme Court decision, said:

"The situs of a debt for purposes of garnishment has, however, been a vexed question, and has been variously answered. Some courts

hold that the situs of a debt is at the residence of the creditor; others, that it is at the residence of the debtor; and still others, that it is wherever it is payable. In the case of Railroad Co. v. Sturm, 174 U. S. 710, 19 Sup. Ct. 797, 43 L. Ed. 1144, the Supreme Court has settled the question for this court by deciding that the situs of a debt for purposes of attachment and garnishment, following the policy of the law which protects home creditors through administration proceedings, is at the domicile of the debtor, or wherever the latter may be found and sued by the creditor."

So we think in this case defendant Harry E. Weitzel, although his debt was for wages earned and payable in Mexico, could maintain a suit in the courts of Arizona against the Southern Pacific Company of Mexico, and, because of its being in Arizona and having property and effects therein, could secure personal service and a judgment in personam against it for the amount it owed defendant. That being so, under the rule in the Ming Case, and the rule in the United States Courts (Bingenheimer Mercantile Co. v. Weber [N. D.] 191 N. W. 620, 27 A. L. R. 1392, and Annotation, page 1396 et seq.), Josephine Weitzel was entitled to judgment, unless the fact that such judgment when paid would not be an acquittance in the courts of Mexico would and should prevent it.

[4] It was stipulated by the parties that a lawyer of the bar of Mexico, presumably familiar with the laws and policy of his country, a Mr. Ybarre, would testify that upon the facts of this case an Arizona judg ment could not be pleaded in the Mexican

ceedings, and that Nadel would be entitled to sue the bank in Germany and recover, Lord Justice Williams Vaughan said:

a garnishee order is of the nature of an execuIt appears to me to be clear that tion, and is governed by the lex fori; and by international law an execution which has been carried into effect in a foreign country under foreign law, and has taken away part of a man's property, is not recognized as binding. There can be no doubt that under the rules of international law the Dresdner Bank could not levied in this country in respect to this debt. set up, in an action in Berlin, the execution If we consider the converse case it is clear, to my mind, that we should take that view of a similar transaction occurring abroad."

courts as a bar or defense to a suit for the same debt in that country. As between the different states of the Union such a judgment would be a bar, since the federal Constitution requires that each state give fulled that such a payment would be no answer to "I do not think that ultimately it was disputfaith and credit to the judgments of the oththe action. er states. Harris v. Balk, supra; Louisville & N. R. Co. v. Deer, 200 U. S. 176, 26 S. Ct. 207, 50 L. Ed. 426; Baltimore & O. R. Co. v. Hostetter, 240 U. S. 620, 36 S. Ct. 475, 60 L. Ed. 829. These cases definitely settle that garnishment judgments in cases like this fall within the protection of the full-faith and credit clause of the federal Constitution, and that payment after judgment in one jurisdiction will be a bar against the collection of the debt in any other jurisdiction. Prior to these decisions of our highest court, however, parties have been made to pay the same debt twice, through no fault or negligence of their own, because the second jurisdiction invoked refused to recognize jurisdiction, either over the subject-matter or person, in the first court. National Bank v. Furtick, 2 Marv. (Del.) 35, 42 A. 479, 44 L. R. A. 115, 69 Am. St. Rep. 99.

Lord Justice Stirling, commenting on the same facts, used this language:

"Mr. Dicey, at page 318 of his treatise on the Conflict of Laws, points out the rule of law that debts or choses in action are generally to be looked upon as situate in the country where they are properly recoverable or can be enforced. On the facts of this case, the debt of the bank to Nadel would be properly recovertaken that the order of this court would not able in Germany. That being so, it must be

the debt a second time. That is a good reason why the order should not be made, for to make it would be inequitable and contrary to natural justice."

The garnishee is in a sense a mere stakeholder. From a monetary standpoint, it can make no difference to him whether he pays what he owes to his employee or to the cred-protect the bank from being called on to pay itor of such employee, but he is interested in being protected against a double liability. While it is probable the Mexican courts would take notice of a payment of the debt in Arizona and refuse to compel a second payment, there is no international rule, or law, or treaty, so far as we know, requiring that they give faith and credit to judgments of this country's courts. The only case we have found like the one in the matter of diverse nationality and residence is Martin v. Nadel (Dresdner Bank, garnishee), 2 K. B. Div. (1906) 26. That was a case wherein his English creditors sought to subject a local bank credit of Nadel's, who was & citizen and resident of Germany, to the payment of their debts by garnishment proceedings in the English courts. After stating the contention of the garnishee bank that the German laws would not recognize a payment made in England under garnishment pro

[5] The Court of Appeals accordingly held that the English creditors were not entitled to the garnishment, either on grounds of natural justice or legal right. It seems to us, since the services were all rendered in the Republic of Mexico for a corporation whose plant is entirely in that country, and since the debt was made and payable therein, the company ought not to be compelled to pay such debt to an Arizona creditor when it is not only possible but probable it would have to pay it again.

The judgment is affirmed.

MCALISTER, C. J., and LYMAN, J., con

cur.