DISSENTING OPINION. Section 2729, Code 1942, provides that the chancery court shall have jurisdiction of attachment suits based upon any demands "for the breach of any contract . . . against any non-resident . . . debtor . . . against any such debtor and persons in this state who have in their hands effects of, or are indebted to, such nonresident . . . debtor."
The question we are here called on to decide is whether the State Highway Department, a state agency, is a person within the meaning of this statute. This case is on all-fours with Dollman v. Moore, 70 Miss. 267, 12 So. 23, 19 L.R.A. 222, decided more than fifty years ago; and it is too late now to depart therefrom. Moreover, that case has been several times followed and approved by this Court, and the statute has been several times reenacted since it was decided. Section 1512, Code 1892, now Section 689, Code 1942, was in force when Dollman v. Moore was decided, and also when thereafter this Court followed and approved that case. Moreover, that case was correctly decided; for the rule, as there stated, is that: "Whether a state or a municipality or other corporation exercising a subdivision of its sovereignty is included by the terms of a statute — not being expressly named — must be determined by a consideration of the subject-matter of the statute, its purpose and effect. Where the statute primarily refers to matters foreign to *Page 777 the ordinary functions of public corporations, and imposes burdens, duties, or liabilities upon them without any corresponding benefits, the inference must be that it was not the legislative purpose that such corporations should be subject to its provisions." Such is the case here; for the matter dealt with in the statute here under consideration is wholly "foreign to the ordinary functions of" the Highway Commission, "and imposes burdens, duties and liabilities upon it without any corresponding benefits." That the present legislative intent is in accord with this holding is evidenced by the fact that in 1936 the legislature amended the statute authorizing writs of garnishment on judgments and decrees by including the state and its agencies therein. The enactment of this statute would seem to exclude the state and its agencies from subjection to writs of garnishment not permitted therein; and while no such writ is here sought, a resident defendant in suits under Sec. 2729 is in practically the same situation as is a garnishee in a writ issued on a judgment or decee.
The judgment of the court below should be affirmed.