The action is certiorari to test the validity of a judgment garnisheeing the wages of an employee of the Chicago North Western Railway Company entered by a justice of the peace of Brown county. The plaintiff and the defendant are both residents of Forest county and the defendant resides therein with his wife and family. The line of the Railway Company, the garnishee, runs through Forest county, and a garnishee summons from a justice of the peace of Forest county may be served upon a station agent of the company in that county.
Thus the principal defendant is in precisely the same situation as to service of the summons upon him, and as to the service of a copy of the garnishee summons upon him, sec. 304.24, Stats., that any other citizen of Forest county is. The wages of any citizen of Forest county other than an employee of the Chicago North Western Railway Company could not be garnished in a justice of the peace action brought in any county other than Forest county, while by the opinion of the court the wages of an employee of that company may be garnished in any county into which the railway runs. This puts railway employees in one class and all other citizens similarly situated in another class as to garnishment of their wages or other credits in justice of peace actions. This is an utterly *Page 447 unreasonable classification and deprives-employees of railway companies of equality before the law in such proceedings with other citizens in like situation in violation of the Fourteenth amendment to the constitution of the United States. This view is directly supported by Houston v. Pulitzer Pub. Co.249 Mo. 332, 155 S.W. 1068, and Clark v. Louisville N. R.Co. 158 Miss. 287, 304, 130 So. 302, and is supported in principle by the United States circuit court of appeals in Board of Education of San Francisco v. Alliance Assur. Co. (C.C.) 159 Fed. 994. I find no cases to the contrary.
In the Pulitzer Case, supra, a statute involved provided that suits against corporations should be commenced either in the county where the cause of action accrued or in any county where the corporation kept an officer or agent for the transaction of their business. Sec. 997, R.S. Mo. 1899. The general statute of the state, id., sec. 562, provided that actions should be brought, when the defendant was a resident of the state, either in the county in which the defendant resided, or in which the plaintiff resided, and the defendant might be found. The Pulitzer Case held, reversing Julian v. Kansas City StarCo. 209 Mo. 35, 107 S.W. 496, and other like decisions, that sec. 997 denied to corporation defendants right as to venue which other citizens had under sec. 562, and denied to them equality before the law in violation of the Fourteenth amendment. See p. 1070 of 155 S.W. Reporter, 1st column, end of paragraph. Par. 2 of the syllabus in the S.W. Reporter reads:
"A statute that would allow one to sue a publishing corporation for libel in any county he chose, where publications were circulated, would be unconstitutional as depriving citizens of the equal protection of the law, and as depriving them of property without due process of law."
For like reason a statute which subjects railway employees to garnishment of their wages in any county in which the railway by which they are employed has station agents, while *Page 448 limiting the garnishment of wages of other citizens in the same situation to the county in which they reside, is unconstitutional. It was held in Clark v. Louisville N.R. Co.,supra, that while a state can "fix the venue of actions according to its conception of what is necessary to best administer justice . . . it cannot unreasonably discriminate between classes of defendants."
In Board of Education of San Francisco v. Alliance Assur.Co., supra, a statute that required an insurance company, that in its answer claimed nonliability by reason of a clause in its contract exempting it from liability for losses from fire caused directly or indirectly by earthquake, to allege in its answer evidentiary matters not required to be inserted in answers of defendants in other cases was unconstitutional "in that it discriminates against a particular class of actions and against defendants therein, without any apparent reason for the distinction." The same discrimination exists here.
This view does not affect the validity of sec. 262.09 (6), Stats., providing for service of summons on railway companies in any county in which the railroad has station agents by service upon a station agent. It only holds that that statute does not apply to service of a garnishee summons upon a railway company in justice of the peace actions in any county other than that where the principal defendant resides where the railroad company has station agents in that county, because so to apply it would deprive railway employees of rights as to venue possessed by all other citizens similarly situated.
It is to be noted that in the Pulitzer Case, supra, it was held that sec. 997, R.S. Mo. 1899, not only deprived corporations of equality before the law but would take their property without due process. To me it seems self-evident that service of notice of garnishment by publication where personal service may be made is not due process. Certainly valid notice by publication in garnishment cases cannot be given to the principal defendant in circuit court actions where personal *Page 449 service may be made upon him. Residence of the defendant in another state is the only basis for service of a garnishee summons by publication in such actions. Secs. 267.06, 262.12, Stats. It is strange if personal service may be avoided in justice of the peace garnishment actions when it cannot be in circuit court actions in like circumstances as to residence of the parties; strange if justice courts have jurisdiction where the circuit court would not have if the action were brought in that court.
For the reasons above stated I think the motion to quash the writ should have been denied and the judgments of the justice of the peace vacated as void.