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tive draft its citizen soldiery, may be passed on the constitutionality of the used to commandeer and mobilize its act of Congress approved March 21, corporate citizenship for the purpose 1918, and, confining its opinion to acof moving and supplying the Army tions instituted in the Federal courts, with the substances and material for said: “That Congress possesses the military operations.
And the power to enact legislation of this navalidity of this statute is sustainable ture, under the Constitution, cannot on no other theory than that the trans- be questioned at this day. There are portation companies are operating several grounds upon which it must their respective systems under Fed- be sustained. (1) In M'Culloch v. eral control. If such companies are Maryland (1819) 4 Wheat. (U. S.) 316, in no way connected with the operat- 421, 4 L. ed. 579, 605, Chief Justice ing systems, we submit that it would Marshall delivering the opinion of the not be within the power of Congress court, it was held as a proper canon to subject them to liability and suits of the interpretation of the powers of thereon for the torts, miscarriages, Congress under the national Constiand defaults of the employees of the tution, among others: 'Let the end be Federal government. Such an act legitimate, let it be within the scope would be an arbitrary exercise of leg- of the Constitution, and all means islative power, contrary to the estab- which are appropriate, which are lished principles of private rights and plainly adapted to that end, which are distributive justice, and tantamount not prohibited, but consist with the to a denial of due process of law. letter and spirit of the Constitution, Zeigler v. South & North Ala. R. Co. are constitutional.' This rule of con(1877) 58 Ala. 594; Mobile Light & struction has never been doubted or R. Co. v. S. D. Copeland & Son (1916) questioned by any subsequent deci15 Ala. App. 235, 73 So. 131; Bank of sion, but has been uniformly followed Columbia v. Okely (1819) 4 Wheat. (U. whenever it has been before the S.) 235, 4 L. ed. 559; Hurtado v. Cal- courts, and must therefore be accepted ifornia (1884) 110 U. S. 516, 28 L. ed. as elementary in the construction of 232, 4 Sup. Ct. Rep. 111, 292; Dent v. the national Constitution. That there West Virginia (1889) 129 U. S. 114, is nothing in the Constitution prohib32 L. ed. 623, 9 Sup. Ct. Rep. 231; iting Congress from determining the Leeper v. Texas (1891) 139 U. S. 462, venue in civil actions is beyond ques. 35 L. ed. 225, 11 Sup. Ct. Rep. 577; tion. Article 1, § 8, cl. 11, of the Con. Giozza v. Tiernan (1893) 148 U. S. 657, stitution, grants Congress the power 37 L. ed. 599, 13 Sup. Ct. Rep. 721; to declare war, and clause 12 of that Jones v. Brim (1897) 165 U. S. 180, section empowers it to raise and sup41 L. ed. 677, 17 Sup. Ct. Rep. 282; port armies. That, by virtue of these Maxwell v. Dow (1900) 176 U. S. 581, provisions of the Constitution, Con44 L. ed. 597, 20 Sup. Ct. Rep. 448, gress may use all means which are, 494; 6 R. C. L. pp. 433–446, embracing in its opinion, appropriate to the end, SC 430 to 442, on Constitutional Law. and not prohibited by some provision On the other hand, if the carriers are of the Constitution, has, under the operating under Federal control and rule established in M'Culloch v. Maryare agencies of the government, the land, been settled in Miller v. United authority of Congress to impose lia- States (Page v. United States) (1871) bility on the carriers for the torts of 11 Wall. (U. S.) 268, 20 L. ed. 135, and their employees is clearly sustainable Stewart v. Kahn (Stewart v. Bloom) on the theory that such responsibility (1871) 11 Wall. (U. S.) 493, 506, 507, encourages caution on the part of the 20 L. ed. 176, 179; reaffirmed in Maycarriers and their employees, pro- field v. Richards (1885) 115 U. S. 137, motes efficiency, and safeguards the 29 L. ed. 334, 5 Sup. Ct. Rep. 1187. interests of the government and the
See, also, the address of former general public."
Justice Hughes on the War Powers So, in Wainwright v. Pennsylvania under the Constitution, 42 Am. Bar R. Co. (1918) 253 Fed. 459, the court Asso. 232. Whether the exigencies ex
isted when Congress enacted this stat- 3 L. ed. 259, and uniformly adhered to ute was for that body to determine, ever since. A late case in which this and cannot be questioned by the ruling is reaffirmed is Ex parte Wiscourts, if there is any substantial ner (1906) 203 U. S. 449, 455, 51 L. ground therefor. M'Culloch v. Mary- ed. 264, 266, 27 Sup. Ct. Rep. 150. land (U. S.) supra; Lottery Case That Congress may increase or dimin-. (Champion v. Ames) (1903) 188 U. S. ish their powers, or abolish them, is 321, 355, 47 L. ed. 492, 500, 23 Sup. Ct. beyond question. It has done so a Rep. 321, 13 Am. Crim. Rep. 561; MC- number of times.
The contenDermott v. Wisconsin (1912) 228 U. S. tion that the statute is void, because 115, 128, 57 L, ed. 754, 764, 47 L.R.A. vesting administrative officers with (N.S.) 984, 33 Sup. Ct. Rep. 431, Ann. legislative discretion or power, is with
. Cas. 1915A, 39. That there was sub- out merit. Selective Draft Law Cases stantial ground for the enactment of (Arver v. United States) (1917) 245 the statute requires no argument. The U.S. 366, 389, 62 L. ed. 349, 357, L.R.A. conditions so graphically described in 1918C, 361, 38 Sup. Ct. Rep. 159, Ann. the Legal Tender Cases (1871) 12 Cas. 1918B, 856. It is therefore clear Wall. (U. S.) 540, 20 L. ed. 308) pre- that the act
is within the vail now, and it will conduce to brev- power of Congress under the Constiity to refer to what was there said, tution." without quoting it in this opinion. In one case, however, the authority That the act was enacted under the of Congress to pass the Act of March war power is not only apparent from 21, 1918, has been challenged, and it its context, but it is expressly declared was held unconstitutional in so far in § 16 of the act 'to be emergency as it pertains to the maintenance of legislation, enacted to meet condi- actions and the recovery of judgments tions growing out of war;' and § 14 against carriers for damages sustained provides that the Federal control of by employees and others while the railroads shall continue not exceeding railroad is being operated by and unone year and nine months after the der the direction of the Federal auratification of the Treaty of Peace. thorities. Schumacher V. Pennsyl(2) Another ground upon which the vania R. Co. (1919) 106 Misc. 564, 175 act must be sustained is that the right N. Y. Supp. 84. In that case the court, to maintain an action in any particu- in support of its decision, said: “The lar court is always subject to the leg- Federal government, in the control islative will. It is only when one is and operation of the railroad properdeprived of all rights to maintain an
ties taken over, is in no sense the action for the redress of his wrongs
agent or representative of the railthat the statute would be obnoxious to
road companies to whom the systems the 5th Amendment to the Constitu
belong. By the 12th section of the act tion. Congress has uniformly exer
the moneys and other property decised that power by providing in what
rived from the operation of the carcourts suits may be maintained, and in
riers during Federal control are 'deno instance has such an act been held void. Another ground upon
clared to be the property of the United
States.' If a profit is realized from which this provision of the act must
such operation, the profit belongs to be upheld is that the courts of the
the United States. By $ 8 the PresiUnited States, inferior to the Supreme
dent is given power to exercise the Court, are not established by the Con
powers granted him with relation to stitution, but owe their existence and
Federal control through such agenpowers to Congress alone. That they
cies as he may determine, and may fix possess no powers not granted by an
the reasonable compensation for the act of Congress was determined as
performance of services in connection early as 1809 in Bank of United States therewith.' In other words, the cus v. Deveaux, 5 Cranch (U. S.) 61, 3 eral government, in the operation of L. ed. 38, and again in 1812 in United the systems taken over, acts as the States v. Hudson, 7 Cranch (U. S.) 32, principal, and not as the agent of the
owners of the transportation system, to pay the judgment thus sought to be becoming a lessee of the railroad on entered, it would undoubtedly have a terms agreed upon between it and the just demand against the government companies. Where no agreements as
to be reimbursed for moneys so paid; to rentals are reached, and where no but the fact that such a demand exists such formal leases are entered into, in no way cures the statute of the inthe government is to pay such a rent- firmity of unconstitutionality. The al as may be thereafter determined taking of the property of one to pay reasonable and just by and in the the debt of another is none the less methods prescribed. In short, the re- illegal, even though the party wronged lation between the government and may assert his right for compensation. the carrier is nothing more or less The condemnation is against the ilthan that of lessor and lessee; the legal taking, and the violation of this lessee operating the road for itself constitutional guaranty is not cured and on its own account. The employ- by the possibility of future restituees engaged in operating the various tion. . We can reach no other systems are, for the time being, at conclusion than that the Act of least, the government's servants and March 21, 1918, in so far as it authoragents, subject to its directions, paid ized judgments against carrier corby the government, and subject to dis- porations for the default or liabilities missal by it. . . If our view and of the government, violates the Fedconstruction of the statute in question eral Constitution, providing against are correct, we are face to face with the taking of private property 'withthe legal question whether, in so far out due process of law.'" as it authorizes actions and judgments
b. Joint Resolution of Congress. against carriers for the negligence or default of the government or its
The Joint Resolution of Congress,
passed July 16, 1918, provided as folagents, such provisions are constitu
lows: "That the President, during tional and valid. To state the ques
the continuance of the present war, is tion is to answer it. We can reach no other conclusion than that in that re
authorized and empowered, whenever
he shall deem it necessary for the naspect Congress has exceeded its constitutional powers. It is repugnant
tional security or defense, to superto the great underlying principles of
vise or to take possession and assume
control of any telegraph, telephone, our jurisprudence, and violates, we think, the express provisions of the
marine cable, or radio system or sys5th Amendment to the Federal Con
tems, or any part thereof, and to oper
ate the same in such manner as may stitution, declaring: 'No person shall be deprived of life, liberty,
be needful or desirable for the duraor property, without due process of
tion of the war, which supervision, law; nor shall private property be
possession, control, or operation shall taken for public use without just
not extend beyond the date of the compensation. Certainly the taking '
proclamation by the President of the of the property of a corporation to
exchange of ratifications of the Treaty of Peace:
Provided further, pay the debt or liability of the government, for which the corporation
That nothing in this act shall be con
strued to amend, repeal, impair, or afis in no way responsible, violates this provision of the Constitution, and de
fect existing laws or powers of the
states in relation to taxation or the prives it of the equal protection of the
lawful police regulations of the sevlaw. It probably was the intention
eral states, except wherein such laws, of the framers of the statute that the
powers, or regulations may affect the government should ultimately pay all
transmission of government communsuch demands as in justice and by ications, or the issue of stocks and right it should. It is impossible to be- bonds by such system or systems." lieve that the contrary was in their This Joint Resolution of Congress minds, but the statute nowhere so pro- has been declared constitutional by vides. If the carrier were compelled the Supreme Court of the United
States. DAKOTA CENT. TELEPH. Co. v. ficers, and employees of the various SOUTH DAKOTA (reported herewith), transportation systems shall continue ante, 1623, where the court said: the operations thereof in the usual and "That under its war power Congress ordinary course of business of compossessed the right to confer upon mon carriers in the names of their rethe President the authority which it spective companies.” 40 Stat. at L. gave him we think needs nothing here 90. but the statement.
. And the The authority of the President, in completeness of the war power under his proclamation of December 26, which the authority was exerted and 1917, taking possession and control of by which completeness its exercise is certain systems of transportation by to be tested suffices, we think, to dis- virtue of the act of Congress approved pose of the many other contentions August 29, 1916, to appoint the Secreurged as to the want of power in Con- tary of the Treasury as Director Gengress to confer upon the President the eral of Railroads, is seriously quesauthority which it gave him."
tioned in Muir v. Louisville & N. R. Co. The validity of the Resolution is al- (1918) 247 Fed. 888, wherein the court so upheld in PUBLIC SERVICE COMMIS- said: “Under no established rule of SION v. NEW ENGLAND TELEPH. & interpretation can it be doubted that TELEG. Co. (reported herewith), ante, it was the intention of the legislative 1662. It is there said: “It is con- body to authorize, in time of war, the ceded by both parties hereto that the War Department, and no other, to Resolution of Congress of July 16, take over the railroads for war pur1918, was a constitutional exercise of poses, such as transportation of troops the war powers of the Federal gov- and war material, and for such other ernment."
purposes as might be desirable in the And see State ex rel. Collins v. Cum- emergencies of war. Besides being an berland Teleph. & Teleg. Co. (1919) appropriate function of the War De
Miss. - P.U.R.1919D, 340, 81 So.partment, it was the plain meaning of 404, where the constitutionality of the the statute which Congress enacted Resolution, although not directly that the War Department should have passed upon, is assumed, and the authority over it, and even if we asquestion turns upon the excess of au- sume (which is inconceivable) that thority exercised by the Postmaster the Secretary of War declined for General in fixing rates.
that Department to take up the war
work indicated, we find nothing in the c. Presidential proclamations. statute which authorizes it to be taken 1. Proclamation of December 26, 1917.
up by the Treasury Department, nor
by a Director General of Railroads; The proclamation of the President
Congress not having intrusted the of December 26, 1917, is, inter alia, as
work to either. And the situation, if follows: “It is hereby directed that
strict rules were to operate, might inthe possession, control, operation, and
volve consideration of the question utilization of such transportation sys
whether the rule stated by the Sutems hereby undertaken by me shall
preme Court in Smith v. Black (1885) be exercised by and hrough William G. McAdoo, who is hereby appointed
115 U. S. at page 319, 29 L. ed. 402, 6
Sup. Ct. Rep. 56, to the effect that, and designated Director General of
'where there is a statute requiring a Railroads. Said Director may perform the duties imposed upon him so long
thing to be done by a known and reand to such extent as he shall deter
sponsible public officer, it may well be mine, through the boards of directors,
held that he must do it in person,' receivers, officers, and employees of
would not apply. ... Certainly the said systems of transportation. proposition is so well established as til and except so far as said Director
to be elementary that Congress may shall, from time to time, by general
authorize heads of departments or or special orders, otherwise provide, other officers to make regulations the boards of directors, receivers, of- within certain limits, and, when made
within those limits, such regulations and judgments rendered as hitherto have the force and effect of law, and until and except so far as said Dimay be enforced as such; but it has rector may, by general or special or. often been held that the delegation ders, otherwise determine.' We find of authority to make regulatory or- no statutory warrant for this providers gives no power to add to, take sion in the proclamation, and especialfrom, or modify the limitations pre- ly none for the exception mentioned scribed by Congress. United States in the last clause of it. We may, howv. 200 Barrels Whiskey (1878) 95 U. S. ever, ignore that exception, because 576, 24 L. ed. 492; United States v. 11, nothing appears to show any attempt 150 Pounds of Butter (1911) 115 C. to carry it into effect; but, even if we C. A. 463, 195 Fed. 663, 664. In many suppose that the other limited interinstances proclamations by the Presi- ruption of the rights of litigants while dent, authorized by the Constitution the war goes on should be patriotically or by statute, have been given great accepted by all good citizens, litigant effect. Notably was this so in United and otherwise, it by no means follows States v. Klein (1872) 13 Wall. (U. S.) that the law authorizes any interfer128, 20 L. ed. 519, and Armstrong v. ence with the course of judicial proUnited States (1872) 13 Wall. (U. S.) cedure between litigants before the 154, 20 L. ed. 614, and other cases. On time arrives when there might be atits face the Act of August 29, 1916, tempts to seize, under execution isdoes not give authority to the Presi- sued upon final judgments, property dent to make or promulgate a proc- in the temporary possession of the lamation of any character. No one, United States under the proclamation. however, could or would contend that Nor can we see how even a right to he had not abundant authority to issue prevent interruption of such temporsuch documents whenever he thought ary possession after final judgment it proper to give notice or information has been rendered can, per se and into the public. But such papers can- dependently of the nature of the cause not have any effect as laws, in the ab- of action, support the theory of the sence of express constitutional or con- railroad company that the suits in gressional authorization.
The which judgments may be rendered proclamation designates Mr. McAdoo arise under the Constitution or laws as Director General of Railroads. This of the United States." position being unknown to the law, its However, the subsequent Act of powers are not fixed; but we suppose Congress of March 21, 1918, apparit was the intention to make him, not ently confirms the authority of the only a member, but the head, of the President, and, in effect, ratifies his board of directors of each railroad act in the appointment of the Director company, the property of which was General of Railroads. This constructaken into possession, thus giving him, tion is found in Rhodes V. Tatum instead of the Secretary of War, the (1918) Tex. Civ. App. -206 S. control of all operations under the W. 114, where the decision in Muir v. statute. Many rules for him to en- Louisville & N. R. Co. (Fed.) supra, force appear to be prescribed in the is reviewed. In the former case it is proclamation, but we pass over all of said: “It was doubtless this criticism them as having no bearing upon the of the act which induced Congress to cases before us, except that one of pass the law of March 21, 1918, and them which is in this language: 'Ex- we think this act cures the defects in cept with the prior written assent of the former act discussed by Judge said Director, no attachment by mesne
Evans. One purpose of the Act of process or on execution shall be levied August 29, 1916, and of the Act of on or against any of the property used March 21, 1918, was to place all transby any of said transportation systems portation companies under the control in the conduct of their business as of the national government to facil. common carriers; but suits may be itate the handling of troops, equipbrought by and against said carriers ment, etc., necessary to a successful