3 L. ed. 259, and uniformly adhered to
ever since. A late case in which this
ruling is reaffirmed is Ex parte Wis-
ner (1906) 203 U. S. 449, 455, 51 L.
ed. 264, 266, 27 Sup. Ct. Rep. 150.
That Congress may increase or dimin-
ish their powers, or abolish them, is
beyond question. It has done so a
number of times. . . The conten-
tion that the statute is void, because
vesting administrative officers with
legislative discretion or power, is with-
out merit. Selective Draft Law Cases
(Arver v. United States) (1917) 245
U. S. 366, 389, 62 L. ed. 349, 357, L.R.A.
1918C, 361, 38 Sup. Ct. Rep. 159, Ann.
Cas. 1918B, 856. It is therefore clear
that the act
is within the
power of Congress under the Consti-
tution."

In one case, however, the authority of Congress to pass the Act of March 21, 1918, has been challenged, and it was held unconstitutional in so far as it pertains to the maintenance of actions and the recovery of judgments against carriers for damages sustained by employees and others while the railroad is being operated by and under the direction of the Federal authorities. Schumacher v. Pennsylvania R. Co. (1919) 106 Misc. 564, 175 N. Y. Supp. 84. In that case the court, in support of its decision, said: "The Federal government, in the control and operation of the railroad proper

isted when Congress enacted this statute was for that body to determine, and cannot be questioned by the courts, if there is any substantial ground therefor. M'Culloch v. Maryland (U. S.) supra; Lottery Case (Champion v. Ames) (1903) 188 U. S. 321, 355, 47 L. ed. 492, 500, 23 Sup. Ct. Rep. 321, 13 Am. Crim. Rep. 561; McDermott v. Wisconsin (1912) 228 U. S. 115, 128, 57 L. ed. 754, 764, 47 L.R.A. (N.S.) 984, 33 Sup. Ct. Rep. 431, Ann. Cas. 1915A, 39. That there was substantial ground for the enactment of the statute requires no argument. The conditions so graphically described in the Legal Tender Cases (1871) 12 Wall. (U. S.) 540, 20 L. ed. 308) prevail now, and it will conduce to brevity to refer to what was there said, without quoting it in this opinion. That the act was enacted under the war power is not only apparent from its context, but it is expressly declared in § 16 of the act 'to be emergency legislation, enacted to meet conditions growing out of war;' and § 14 provides that the Federal control of railroads shall continue not exceeding one year and nine months after the ratification of the Treaty of Peace. (2) Another ground upon which the act must be sustained is that the right to maintain an action in any particular court is always subject to the legislative will. It is only when one is deprived of all rights to maintain anties taken over, is in no sense the action for the redress of his wrongs that the statute would be obnoxious to the 5th Amendment to the Constitution. Congress has uniformly exercised that power by providing in what courts suits may be maintained, and in no instance has such an act been held void. . . . Another ground upon which this provision of the act must be upheld is that the courts of the United States, inferior to the Supreme Court, are not established by the Constitution, but owe their existence and powers to Congress alone. That they possess no powers not granted by an act of Congress was determined as early as 1809 in Bank of United States v. Deveaux, 5 Cranch (U. S.) 61, 3 L. ed. 38, and again in 1812 in United States v. Hudson, 7 Cranch (U. S.) 32,

agent or representative of the railroad companies to whom the systems belong. By the 12th section of the act the moneys and other property derived from the operation of the carriers during Federal control are 'declared to be the property of the United States.' If a profit is realized from such operation, the profit belongs to the United States. By § 8 the President is given power to exercise the powers granted him with relation to Federal control through such agencies as he may determine, and may fix the reasonable compensation for the performance of services in connection therewith.' In other words, the Fur eral government, in the operation of the systems taken over, acts as the principal, and not as the agent of the

owners of the transportation system, becoming a lessee of the railroad on terms agreed upon between it and the companies. Where no agreements as to rentals are reached, and where no such formal leases are entered into, the government is to pay such a rental as may be thereafter determined reasonable and just by and in the methods prescribed. In short, the relation between the government and the carrier is nothing more or less than that of lessor and lessee; the lessee operating the road for itself and on its own account. The employees engaged in operating the various systems are, for the time being, at least, the government's servants and agents, subject to its directions, paid by the government, and subject to dismissal by it. . . . If our view and construction of the statute in question are correct, we are face to face with the legal question whether, in so far as it authorizes actions and judgments against carriers for the negligence or default of the government or its agents, such provisions are constitutional and valid. To state the question is to answer it. We can reach no other conclusion than that in that respect Congress has exceeded its constitutional powers. It is repugnant to the great underlying principles of our jurisprudence, and violates, we think, the express provisions of the 5th Amendment to the Federal Constitution, declaring: 'No person shall be . . . deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.' Certainly the taking of the property of a corporation to pay the debt or liability of the government, for which the corporation is in no way responsible, violates this provision of the Constitution, and deprives it of the equal protection of the law. It probably was the intention of the framers of the statute that the government should ultimately pay all such demands as in justice and by right it should. It is impossible to believe that the contrary was in their minds, but the statute nowhere so provides. If the carrier were compelled

to pay the judgment thus sought to be entered, it would undoubtedly have a just demand against the government to be reimbursed for moneys so paid; but the fact that such a demand exists in no way cures the statute of the infirmity of unconstitutionality. The taking of the property of one to pay the debt of another is none the less illegal, even though the party wronged may assert his right for compensation. The condemnation is against the illegal taking, and the violation of this constitutional guaranty is not cured by the possibility of future restitution. We can reach no other conclusion than that the Act of March 21, 1918, in so far as it authorized judgments against carrier corporations for the default or liabilities of the government, violates the Federal Constitution, providing against the taking of private property 'without due process of law.""

b. Joint Resolution of Congress. The Joint Resolution of Congress, passed July 16, 1918, provided as follows:

"That the President, during the continuance of the present war, is authorized and empowered, whenever he shall deem it necessary for the national security or defense, to supervise or to take possession and assume control of any telegraph, telephone, marine cable, or radio system or systems, or any part thereof, and to operate the same in such manner as may be needful or desirable for the duration of the war, which supervision, possession, control, or operation shall not extend beyond the date of the proclamation by the President of the exchange of ratifications of the Treaty of Peace: . . . Provided further, That nothing in this act shall be construed to amend, repeal, impair, or af fect existing laws or powers of the states in relation to taxation or the lawful police regulations of the several states, except wherein such laws, powers, or regulations may affect the transmission of government communications, or the issue of stocks and bonds by such system or systems."

This Joint Resolution of Congress has been declared constitutional by the Supreme Court of the United

States. DAKOTA CENT. TELEPH. Co. v.
SOUTH DAKOTA (reported herewith),
ante, 1623, where the court said:
"That under its war power Congress
possessed the right to confer upon
the President the authority which it
gave him we think needs nothing here
but the statement.
And the

completeness of the war power under
which the authority was exerted and
by which completeness its exercise is
to be tested suffices, we think, to dis-
pose of the many other contentions
urged as to the want of power in Con-
gress to confer upon the President the
authority which it gave him."

The validity of the Resolution is also upheld in PUBLIC SERVICE COMMISSION v. NEW ENGLAND TELEPH. & TELEG. Co. (reported herewith), ante, 1662. It is there said: "It is conceded by both parties hereto that the Resolution of Congress of July 16, 1918, was a constitutional exercise of the war powers of the Federal government."

And see State ex rel. Collins v. Cumberland Teleph. & Teleg. Co. (1919)

Miss. —, P.U.R.1919D, 340, 81 So. 404, where the constitutionality of the Resolution, although not directly passed upon, is assumed, and the question turns upon the excess of authority exercised by the Postmaster General in fixing rates.

c. Presidential proclamations.

1. Proclamation of December 26, 1917. The proclamation of the President of December 26, 1917, is, inter alia, as follows: "It is hereby directed that the possession, control, operation, and utilization of such transportation systems hereby undertaken by me shall be exercised by and through William G. McAdoo, who is hereby appointed and designated Director General of Railroads. Said Director may perform the duties imposed upon him so long and to such extent as he shall determine, through the boards of directors, receivers, officers, and employees of said systems of transportation. Until and except so far as said Director shall, from time to time, by general or special orders, otherwise provide, the boards of directors, receivers, of

ficers, and employees of the various transportation systems shall continue the operations thereof in the usual and ordinary course of business of common carriers in the names of their respective companies." 40 Stat. at L. 90.

The authority of the President, in his proclamation of December 26, 1917, taking possession and control of certain systems of transportation by virtue of the act of Congress approved August 29, 1916, to appoint the Secretary of the Treasury as Director General of Railroads, is seriously questioned in Muir v. Louisville & N. R. Co. (1918) 247 Fed. 888, wherein the court said: "Under no established rule of interpretation can it be doubted that it was the intention of the legislative body to authorize, in time of war, the War Department, and no other, to take over the railroads for war purposes, such as transportation of troops and war material, and for such other purposes as might be desirable in the emergencies of war. Besides being an appropriate function of the War Department, it was the plain meaning of the statute which Congress enacted that the War Department should have authority over it, and even if we assume (which is inconceivable) that the Secretary of War declined for that Department to take up the war work indicated, we find nothing in the statute which authorizes it to be taken up by the Treasury Department, nor by a Director General of Railroads; Congress not having intrusted the work to either. And the situation, if strict rules were to operate, might involve consideration of the question whether the rule stated by the Supreme Court in Smith v. Black (1885) 115 U. S. at page 319, 29 L. ed. 402, 6 Sup. Ct. Rep. 56, to the effect that, 'where there is a statute requiring a thing to be done by a known and responsible public officer, it may well be held that he must do it in person,' would not apply. . . . Certainly the proposition is so well established as to be elementary that Congress may authorize heads of departments or other officers to make regulations within certain limits, and, when made

within those limits, such regulations
have the force and effect of law, and
may be enforced as such; but it has
often been held that the delegation
of authority to make regulatory or-
ders gives no power to add to, take
from, or modify the limitations pre-
scribed by Congress. United States
v. 200 Barrels Whiskey (1878) 95 U. S.
576, 24 L. ed. 492; United States v. 11,-
150 Pounds of Butter (1911) 115 C.
C. A. 463, 195 Fed. 663, 664. In many
instances proclamations by the Presi-
dent, authorized by the Constitution
or by statute, have been given great
effect. Notably was this so in United
States v. Klein (1872) 13 Wall. (U. S.)
128, 20 L. ed. 519, and Armstrong v.
United States (1872) 13 Wall. (U. S.)
154, 20 L. ed. 614, and other cases. On
its face the Act of August 29, 1916,
does not give authority to the Presi-
dent to make or promulgate a proc-
lamation of any character. No one,

and judgments rendered as hitherto until and except so far as said Director may, by general or special orders, otherwise determine.' We find no statutory warrant for this provision in the proclamation, and especially none for the exception mentioned in the last clause of it. We may, however, ignore that exception, because nothing appears to show any attempt to carry it into effect; but, even if we suppose that the other limited interruption of the rights of litigants while the war goes on should be patriotically accepted by all good citizens, litigant and otherwise, it by no means follows that the law authorizes any interference with the course of judicial procedure between litigants before the time arrives when there might be attempts to seize, under execution issued upon final judgments, property in the temporary possession of the United States under the proclamation. Nor can we see how even a right to prevent interruption of such temporary possession after final judgment has been rendered can, per se and independently of the nature of the cause of action, support the theory of the railroad company that the suits in which judgments may be rendered arise under the Constitution or laws of the United States."

however, could or would contend that
he had not abundant authority to issue
such documents whenever he thought
it proper to give notice or information
to the public. But such papers can-
not have any effect as laws, in the ab-
sence of express constitutional or con-
gressional authorization. . . The
proclamation designates Mr. McAdoo
as Director General of Railroads. This
position being unknown to the law, its
powers are not fixed; but we suppose
it was the intention to make him, not
only a member, but the head, of the
board of directors of each railroad
company, the property of which was
taken into possession, thus giving him,
instead of the Secretary of War, the
control of all operations under the
statute. Many rules for him to en-
force appear to be prescribed in the
proclamation, but we pass over all of
them as having no bearing upon the
cases before us, except that one of
them which is in this language: 'Ex-
cept with the prior written assent of
said Director, no attachment by mesne
process or on execution shall be levied
on or against any of the property used
by any of said transportation systems
in the conduct of their business as
common carriers; but suits may be
brought by and against said carriers.

-

However, the subsequent Act of Congress of March 21, 1918, apparently confirms the authority of the President, and, in effect, ratifies his act in the appointment of the Director General of Railroads. This construction is found in Rhodes v. Tatum (1918) Tex. Civ. App. —, 206 S. W. 114, where the decision in Muir v. Louisville & N. R. Co. (Fed.) supra, is reviewed. In the former case it is said: "It was doubtless this criticism of the act which induced Congress to pass the law of March 21, 1918, and we think this act cures the defects in the former act discussed by Judge Evans. One purpose of the Act of August 29, 1916, and of the Act of March 21, 1918, was to place all transportation companies under the control of the national government to facilitate the handling of troops, equipment, etc., necessary to a successful