(concurring specially). This is an action by the state of North Dakota against several railway carriers and those who control and operate the railways, to prevent them from continuing to rob the people by the exaction of excessive passenger and freight rates, contrary *578to the laws of the state. The right of action arises under the-Constitution and laws of the state, and not under the laws of the United States. Hence, the jurisdiction of the court is in no way questionable, and it ia expressly and fully conceded. In the operation of the public highways between points within the state, there must be a compliance with the laws of the state, or the laws are not laws; and the courts must maintain and uphold the laws of the state and protect the people from plunder and robbery in any form, or else the courts are mere cravens, and not courts.
The claim is that the railroads are operated under acts of Congress, by direction of the President, and his appointed Director General, and it is conceded that the' operation is not in accordance with the laws of the state. As it appears, on every railroad and system of railroads in the United States, extending over about 400,000 miles, the passenger fares and freight rates have been advanced from 25 to 50 per cent. The advance was made as a war measure under the plea of military necessity; but now, in this year of peace, it is continued in defiance of the just laws and powers of the several states. The assumed railroad control and the orders of the President are based on acts of Congress. In August, 1916, at the time of some trouble with Mexico, Congress passed an act as follows: “The President, in time of war, is empowered, through the Secretary of War, to take possession and assume control of any system . . . of transportation, . . . and to utilize the same . . . for the . . . transportation of troops, war material, and equipment.” This was a nice rider on the Army Appropriation Act, covering forty-eight pages of the statute. 39 Stat. at L. 645, chap. 418, Comp. Stat. § 1914a, 9 Ped. Stat. Anno. 2d ed. p. 1095. The rider is short and simple. Its manifest purpose was to authorize the President, in time of war, to use the military force to control and operate railroads for the removal of troops and war supplies, —“only that and nothing more.” But, in December, 1911, after Congress had declared war against Germany and Austria, the President magnified his power and issued a fiat or proclamation, assuming the possession and control of all railroads for all purposes, regardless of any military necessity. The fiat decreed that the possession and control should be in his famous son-in-law, as Director General. By the same fiat the President attempted to legislate, and he decreed that, except with the written consent of the Director General, no attachment by a *579mesne process or by execution should be levied on the property of the railway carriers; that no suit may be brought against them, except as permitted by the general or special order of the Director. By this order the President innocently attempted to repeal or suspend a vast system of Federal and state laws and constitutions, and to make his famous son-in-law the greatest dictator on earth. But, in March, 1918, Congress passed the Federal Control Act, which expressly repealed the legislative part of the fiat. The act provides thus: That actions at law and suits in equity may be brought by and against such carriers, and judgments rendered in actions at law or suits in equity against the carriers. And that no defense shall be made thereto upon the ground that the carrier is an instrumentality or agency of the government. Under that act it is manifest that wrongdoers who control a common carrier and exact excessive rates and fares in defiance of the laws of the state cannot defend themselves on the ground that in so doing they are an agency of the government.
Section 10 of the act provides the President may initiate rates, fares, and charges by filing the same with the Interstate Commerce Commission, and “that said rates, fáres, and charges must be just and reasonable.” Also, that on complaint the justness and reasonableness of such rates may be determined by the Interstate Commerce Commission in accordance with the Act to Regulate Commerce as amended. But as the act of Commerce gave the Commission no power to regulate rates between any two points or places of a state, it must be that the Federal Control Act refers only to interstate rates. Congress did not contemplate that the President or his Director General should attempt to initiate intrastate rates, contrary to the laws of' any state. Certain it was not within the power or the purpose' of Congress to give the President and his famous son-in-law the right to repeal and undo the rate laws of any state. That is shown to a demonstration by § 15 of the act:' “Section 15. Nothing in this act shall be construed to amend, repeal, impair, or affect the 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 transportation of troops, war materials, government supplies, or the issue of stocks and bonds.” [40 Stat. at L. 458, chap. 25, Comp. Stat. § 3115fo, Fed. Stat. Anno. Supp. 1918, p. 165.]
*580Now in reading § 15, some question may arise as to what is meant by the lawful police power of the several states. Does it include the rate-making power? Does it include a power to prevent the people from being robbed by the excessive rates and exactions of carriers or by those -in control of them? Clearly the purpose of police laws and police powers is to prevent filching, robberies, and holdups, to protect life, liberty, and property. So far as a man is dispossessed of his property, his means of living are impaired. “You do take my life when you do take the means whereby I live.” The carrier is employed by the force, of necessity; When the employer is forced to pay excessive rates, then, to the extent of the excess, he is filched, robbed, and held up. “Such is the scope of police power that it extends to the protection of the lives, health, -comfort, and quiet of all persons, and the protection of all property within the state.” 8 Cyc. 864. Under the police power the legislature may enact just laws that common carriers shall not charge more than certain maximum rates. In every state such laws have been passed and have been uniformly sustained by the highest courts. 8 Cyc. 874. TIence it is that nothing in the Federal act must be so construed as to amend, repeal, impair, or affect the lawful police regulations of the several, states.
As the Federal Control Bill was first submitted to Congress, it was strictly an administration measure, conforming to the proclamation of the President; but in each House, and in conference, it was carefully considered and finally passed with salutary amendments, and among them the last and most important was § 15. While the act empowered the president to initiate interstate commerce rates, subject to review by .the Commission, it expressly provided that the rates should be just and reasonable. It did not contemplate the addition of a billion dollars a year to the burden of the.wealth producers by a general and uniform advance of 50 per cent in all rates and fares. And this court may well take official notice of that fact that such an advance was not just or reasonable; that it was contrary to a recent and prior ruling of the Interstate Commerce. Commission refusing to permit an advance of 15 per cent.
It was in the spring of 1918, when the food supplies were reduced and when the people were contributing their utmost to the war fund, that Congress gave the carriers half a billion dollars, and then, by *581advance rates, the Director Genera! gave -them $1,000,000,000. Without any such advance James Hill ran his railroads, and in the course of a few years he saved up for himself and heirs over $100,000,000, besides good sums for many others. Under the former rates in a few decades the rail carriers succeeded in filching from the people 10 per cent or one-tenth of the total wealth of the nation.
There is no reason for extending the discussion. It is a well-known fact that the rail carriers have always charged excessive rates, and that they are fast amassing the wealth of the country. By skill, prudence, and economy the Director General might well have reduced the cost of operating the railroads, and, indeed, when the Federal Control bill was before Congress, he was called as a witness and gave assurance that the result of Federal control would be to reduce the expenses — and such was the assurances under which the bill was passed. The Director could well have reduced the burden of rates and fares instead of advancing them; but, however that may be, now that the war has ended, there is no longer any reason or excuse for any person on earth to operate railways in disregard and defiance of the lawful police regulations of the several states. It is beyond the constitutional power of Congress and the national government, and, so far as persisted in, it must lead to anarchy, Bolshevism, and endanger the safety of the Eepublic, The writ of mandamus should be awarded.