I dissent. In my opinion the majority opinions wholly ignore the fundamental considerations of law involved in this action. If mandamus is awarded and maintained now, it ought to have been awarded and made effective when the order was first promulgated. During the crucial period of the great war, now ended, this order was in effect and in force without complaint, and with the acquiescence of this state.
The opinion of Judge Birdzell is based upon the broad proposition that the regulatory powers of the state over intrastate rates were not suspended by the Act of Congress of March 21, 1918, by reason, particularly, of the provisions of § 15 thereof.
*593Readily, tlie court may arrive at such a conclusion when it assumes as a premise that the exercise of this war power by Congress is the exercise of the common-law power of regulation, and not the exercise of that higher power, the soveriegn right to operate in war times a governmental instrumentality for war purposes, and to prescribe the rates thereof. The purpose for which the railroads were taken and rates prescribed are disclosed not only by the terms of the act, but by the actual purposes for which in fact the railroads were used and the rates were prescribed.
Upon a priori reasoning, as I view it, Justice Birdzell holds that the intent of Congress in the act was to prescribe a method of initiating common-law reasonable rates, by the President instead of by the railroads themselves, based upon the old theory that the charge made to the public must be reasonable, and not discriminatory. It is necessary, through this technically narrow construction, to virtually read in the act, §• 10, thereof, the following: “The President may initiate interstate rates, fares, charges, etc.,” and also to virtually read into such act, -§ 15 thereof: “That nothing in this act shall be construed to amend, repeal, impair, or affect the existing laws or powers of the state in relation to taxation, regulation of rates, or the lawful police regulation, etc.” Congress might have so legislated; but it did not so legislate. It gave to the President direct authority to initiate rates,— the term used is broader than interstate rates. See Employers Liability Cases (Howard v. Illinois C. R. Co) 207 U. S. 463, 500, 52 L. ed. 297, 310, 28 Sup. Ct. Rep. 141.. From the very force of the circumstances then existing with this nation involved in a mighty struggle, in war time, it would seem perfectly obvious that the President, if he were to initiate any rates at all, must initiate rates that applied to both interstate and intrastate commerce. Otherwise the power might as well not have been conferred.
At the time the Act of March 21, 1918, was enacted, Congress recognized that certain transportation systems then were being operated as Federal instrumentalities, under the terras of a proclamation of the President by which state regulatory powers might be or were subordinated. It knew then that the President, through the Director General, was exercising the power to route freight, and that this necessarily included the power to change the rate to shippers. This regulatory power, if exercised, applied to both interstate and intrastate ship-*594meats. In such Act of March 21, 1918, Congress specifically required the Commerce Commission to give due consideration to the fact that the transportation systems then were being operated under a unified and coordinated national control, and not in competition. In the Minnesota Rate Cases (Simpson v. Shepard) 230 U. S. 352, 417, 57 L. ed. 1511, 1549, 48 L.R.A.(N.S.) 1151, 33 Sup. Ct. Rep. 729, Ann. Cas. 1916A, 18, the United States Supreme Court, in considering the then Federal statute concerning the powers of the Commerce Commission, stated: “Neither by the original act nor by the amendment did Congress seek to establish a unified control over interstate and intrastate commerce.” In such act Congress further required the Commission to give due consideration to the certificate of the President, when made, that increased railway operation revenues are necessary in order to pay the expenses of Federal control and operation, etc., to the carriers operating as a unit. Although Congress retained the machinery of the Commerce Commission to preserve the reasonable and just character of Federal rates, as much as possible; it nevertheless appears reasonably clear that Congress, recognizing the exclusive Federal control in operation, both interstate and intrastate then existing, meant and intended to give a corollary and additional war power of exclusive rate making over such systems under Federal control, by which alone a unified and co-ordinated national control and operation could be effected. There is no question that the President has so interpreted such power, and this Executive interpretation should not be lightly considered. Justice Birdzell attacks, in his opinion, the reasonableness of the rate promulgated as applied to intrastate Commerce, and holds that pi’ima facie it is discriminatory, and therefore not justified. This argument begs the very question upon which the logic of his decision is founded, namely, that the power exercised, is the power to regulate rates in interstate commerce as a common-law power; he argues that the rate promulgated does not purport to bo promulgated for the purpose of obviating discrimination in intrastate commerce; he must concede that it was, in fact, applied to both interstate and intrastate commerce. If such power be the sovereign power in war times to prescribe rates, the regulatory power of the state does not obtain; if it be, as contended by the majority opinion, the power' to regulate the common-law obligation of carriers concerning rates, then no attempt by anyone has been made to subject these rates, so pro*595mulgated,- to review before the Commission which has jurisdictionthereof. Surely, under the authorities quoted in the majority opinion, Congress had authority to grant to the President and the Interstate Commerce Commission the right to initiate, or review, a common-law rate in interstate commerce, and to give authority to the Interstate Commerce Commission and the. President, as the initiating power, to so prescribe an intrastate rate which would not,,by its terms, or by its effect, serve to interfere with or impede interstate commerce.
It is also worthy of consideration to note that under the state law (Comp. Laws 1913, art. 21, chap. 14) the railroad commissioners of the state simply review, investigate, or determine a rate theretofore established by the common carriers. Even under the state law the common carriers initiate a rate, except statutory prescribed maximum rates. The whole act looks to an -exercise of jurisdiction over a private corporation operating a railroad as a common carrier. Nor, either under the state act, or under the present Federal' act, can such private corporation, for instance, the defendant railroad herein, initiate a rate, or file a schedule ? How, further, under the state law, is any jurisdiction of any kind conferred over or concerning the President in the exercise of his power to prescribe rates ? Are we to understand from the majority opinion that it is now the duty of the private corporation owning the railroad, but not having the control or operation of the same, to initiate intrastate rates within the state, and the duty of the President to initiate' rates over the same railroad within the state upon interstate commerce ?
The opinion of Justice Robinson, by reason of which only the sanction of this court is given for a writ of mandamus herein, needs little comment. It contains no legal discussion. It gives no consideration to the war power of Congress or of the President, or of the necessities of this nation in a time of war to utilize, under the war power, every resource of man and property in the nation. It is merely a diatribe attempting to ridicule our Federal government for its action taken, and for its alleged lack of economy concerning the operation of railroads under Federal control in times of stress and of war necessity. It is rather unfortunate that it happens in this action, the court being so divided, that a writ of mandamus is awarded against our Federal government, based upon an opinion (which under the circumstances is the controlling *596factor) directed rather to a discussion of the faults of railway operation, and of principles of expediency, rather than of law and of the war powers and necessities of this nation in war times.
My views upon this matter are expressed in the following opinion prepared in advance of the majority opinions of the court now presented, and, to the view therein expressed, I still adhere. They are therefore hereinafter set forth:
This is an original proceeding instituted upon the relation of William Danger, the Attorney General, against the Northern Pacific Railway Company, and the Director General of Railroads, seeking a writ of mandamus from this court to enjoin the defendants from collecting or enforcing the schedule of freight rates, and passenger fares and charges promulgated, and put in force and operation by the Director General pursuant to general order No. 28, issued May 25, 1918, so far as the same applies to intrastate traffic in the state of North Dakota.
The petition of the relator in substance alleges:— That the President of the United States assumed control of the Railroad in question, under the Act of Congress, August 28, 1916.
That, pursuant thereto', on December 26, 1917, the President issued his proclamation for Federal control, and created the office of Director General to operate the railroads, and that they have been so operated through the Director General since January 1, 1918.
That on March 21, 1918, Congress'enacted the Federal Control Act, providing for the compensation, operation, and rehabilitation of transportation lines.
That on May 25, 1918, the Director General issued general order No. 28, whereby on June 10, 1918, certain increased passenger fares and •baggage charges, and on June 25, 1918, certain increased freight rates, were promulgated and put in force upon transportation lines, including the defendant railway company.
That, by reason thereof, freight rates in the state of North Dakota were increased 25 per cent and passenger rates from 2-J cents per mile to 3 cents per mile. That the Constitution of this state, § 82, provides for the election of a board of railway commissioners, and that such board always, in this state, has exercised supervision and control over transportation systems operating in and through the state as to intrastate rates •and service. That § 4725 Comp. Daws 1913, provides that no railway *597corporation may change its fares, rates, or charges for service without first filing such schedule of fares, rates, and charges with such board ten days before the same become effective, and that the railway company, therefore,' pursuant to such statuté, had filed a schedule of fares, rates, and charges with such board, and that no petition of complaint was filed with the board by such company since such date, asking for any increase in such rates within the state of North Dakota; that the schedule of rates so promulgated, and so put in force by the Director General are without authorization pursuant to the acts of Congress and the proclamation of the President, and that the same does not affect the government transportation of troops, war materials, or government supplies, or the issue of stocks and bonds; that the same are unreasonable and excessive, and constitutes an illegal burden upon the patrons of the railroad company; that they are against the public welfare, convenience, and business interest of the state and contrary to the law of the state.
The answer and return of the Director General admits that the railway company owns the transportation line involved, and that it is an instrumentality both of state and intrastate commerce; it specifically denies that the company has operated its system since December 25, 1917. It specifically alleges that the Director General has exercised possession and control over the transportation line involved pursuant to the acts of Congress’ and of the' President of the United States.. It specifically alleges that the Director General, pursuant to general order No. 28, put into full force and effect and applied the said schedule of rates and charges, and specifically denies that the railway company did put the same in force and effect to apply to intrastate business in North Dakota; it specifically alleges that on April 6, 1917, the Federal Congress declared a state of war to exist between the United States and the Imperial German Government; that pursuant to general order No. 28, the Director General, having duly filed the same with the intrastate Commerce Commission, made effective the increased rates, fares, and charges, provided in said order, between points in North Dakota as well as between other points along its line; and that the same are still in effect and force, and the transportation line in question has been and is now conducted, and the collection of such rates, fares, and charges has been made, by and in the name of the Director General of Railroads.
The railroad company interposed a separate answer, or return, alleg*598ing in substance that since December 28, 1918, the possession and control of its transportation system has been under the President of the United States, and that all of its officers, directors, and agents are under the direction of the United States government, and not of the railroad; and, further, that it did not put in force or effect the schedules complained of, and that the same were so put into effect under the sole authority of the Director General.
Upon these pleadings of the parties, the only issues presented to this court are the questions of law that arise upon such pleadings. There is no question presented to this court for its determination as to whether the schedules in force are in fact excessive or unreasonable; nor is there any question presented of discriminatory acts by the Director General, or the railway company, in. operating the transportation line under general order No. 28. There is likewise no question presented to this court concerning its jurisdiction to grant the relief sought, so far as it might be contended that the acts in question are those of the Director General, and not those of the carrier, for the reason that the Director General expressly waive this question. The proceeding, therefore, is before this court upon its merits upon the sole question of law, to wit, the legal authority of the Director General of Railroads to maintain in force and effect the schedule of increased rates, charges, and fares promulgated upon and affecting intrastate traffic in the state, contrary to the law of the state, without the supervising control or direction of the board of railroad commissioners.
The century old controversy of the rights of Federal government and of the state in the exercising of their respective sovereign functions is again involved.
In determining the exercise of the power complained against herein, the following questions present themselves for consideration:—
(1) The power of Congress to authorize the Federal control and operation of the railway transportation lines as assumed.
(2) The authority of Congress to prescribe or regulate rates on such transportation systems so taken.
(3) Whether the power granted to the President to initiate rates is a delegation of legislative power.
(4:) Whether Congress, if it did possess such powers, expressly exercised the same to create a Federal agency for purposes of operation and rate making.
*599(5) The power of the state to exercise, under its laws and police regulations, the rate-making power over intrastate traffic upon railways under Federal control.
(6) Whether the emergency for which the Congressional acts were enacted has passed, and the powers conferred thereunder are now ineffective.
The legal consideration of these questions is determinative of the issue presented in this proceeding. They will therefore be considered separately.
1. The authority of Congress to assume control of transportation lines. — It will scarcely now be denied that Congress has the power to enact legislation to effect a governmental control over the transportation line involved. The state rather so-concedes the power. This power may be drawn from its powers, to declare war, raise and support armies and to make all laws necessary and proper therefor, or from the power to regulate interstate commerce, or even to establish post roads. Const, art. 1, § 8.
Concerning these war powers, in Stewart v. Kahn, 11 Wall. 493, 20 L. ed. 176, the court said:— “The Constitution gives to Congress the power to declare war; to grant letters of marque and reprisal, and to make rules concerning qaptures on land and water; to raise and support armies, to provide and maintain a navy, and to provide for calling forth the Militia to execute the laws of the Union, suppress insurrections, and repel invasions. The President is the Commander-in-Chief of the Army and Navy, and of the Militia of the several states, when called into the service of the United States; and it is made his duty to take care that the laws are faithfully executed. Congress is authorized to make all laws necessary and proper to carry into effect the granted powers. The measures to be taken in carrying on war and to suppress insurrection are not defined. The decision of all such questions rests wholly in the discretion of those to whom the substantial powers involved are confided by the Constitution.”
In Pappens v. United States, 164 C. C. A. 167, 252 Fed. 55, the court said: “The execution of these powers assigned to the national government came within the obligation or duties of Congress, and its control over the subject is plenary. Tarble’s Case, 13 Wall. 397, 20 L. ed. *600597. Power to raise an army to carry on the war was recognized by tbe pledge of Congress (by joint resolution approved April 6, 1917 [40 Stat. at L. 1, chap. 1] ) of all tbe resources of tbe country 'to bring tbe conflict to a successful termination/ and bas been executed by tbe several acts of legislation providing for tbe organization and support of tbe Army and Navy and to promote tbe efficiency thereof. It is obvious that, to avoid calamity to tbe nation, tbe powers referred to in their greatest strength must be upheld as indispensably incidental to tbe power to declare Avar. It bas been written by Story, in reference to tbe unlimited power of Congress to raise and support armies, that to be of value the power must be unlimited.' 'It is impossible/ be Avrote, ■ 'to foresee or define the extent and variety of national exigencies and tbe correspondent extent and variety of tbe national means, necessary to satisfy them. Tbe power must be coextensive with all possible combinations of circumstances, and under tbe direction of tbe councils intrusted with tbe common defense. These must, therefore, be unlimited in every matter essential to its efficacy; that is, in tbe formation, direction, and support of tbe national forces.’ 2 Story, Const. § 1183.”
Under tbe power to regulate interstate commerce or to establish post roads, Congress has undoubtedly the poAver to construct," maintain, or operate a transportation line.
In Wilson v. Shaw, 204 U. S. 24, 51 L. ed. 351, 27 Sup. Ct. Rep. 233, an action brought to restrain tbe Secretary of the Treasury from paying out money in tbe purchase of property for tbe construction of tbe Panama Canal, etc., tbe plaintiff contended that tbe government bad no authority to engage anywhere in tbe AA’ork of constructing a railway or canal. Justice Brewer, in bolding that tbe decisions of tbe court were to tbe contrary, quoted from California v. Central P. R. Co. 127 U. S. 1, 39, 32 L. ed. 150, 157, 2 Inters. Com. Rep. 153, 8 Sup. Ct. Rep. 1073, as follows: "It cannot at tbe present day be doubted that Congress, under tbe power to regulate commerce among tbe several states, as well as to provide for postal accommodations and military exigencies, bad authority to pass these laws. Tbe power to construct, or to authorize individuals or corporations to construct, national highways and bridges from state to state, is essential to tbe complete control and regulation of interstate commerce. Without authority in Congress to establish and maintain such highways and *601bridges, it would be without authority to regulate oue of the most important adjuncts of commerce. This power in former times was exerted to a very limited extent, .the Cumberland or National road being the most notable instance. Its exertion was but little called for, as commerce was then mostly conducted by water,- and many of our statesmen entertained doubts as to the existence of the power to establish ways of communication by land. But since, in consequence of the expansion of the country, the multiplication of its products, and the invention of railroads and locomotion by steam, land transportation has so vastly increased, a sounder consideration of the subject has prevailed and led to the conclusion that Congress has plenary power over the whole subject. Of course the. authority of Congress over the territories of the United States, and its power to grant franchises exercisable therein, are, and ever have been, undoubted. But the wider power was very freely exercised, and much to the general satisfaction, in the creation of the vast system of railroads connecting the East with the Pacific, traversing states as well as territories, and employing the agency of state as well as Federal corporations.”
So, in Luxton v. North River Bridge Co. 153 U. S. 525, 33 L. ed. 808, 14 Sup. Ct. Rep. 891, Justice Gray stated as follows: “Congress, therefore, may create corporations as appropriate means of executing the powers of government, as, for instance, a bank for the purpose of carrying on the fiscal operations of the United States, or a railroad corporation for the purpose of promoting commerce among the states. M’Culloch v. Maryland, 4 Wheat. 316, 411, 422, 4 L. ed. 579, 602, 605 ; Osborn v. Bank of United States, 9 Wheat. 738, 861, 873, 6 L. ed. 204, 233, 236; Pacific R. Removal Cases, 115 U. S. 1, 18, 29 L. ed. 319, 325, 5 Sup. Ct. Rep. 1113; California v. Central P. R. Co. 127 U. S. 1, 39, 32 L. ed. 150, 157, 2 Inters. Com. Rep. 153, 8 Sup. Ct. Rep. 1073. Congress has likewise the power, exercised early in this century by successive acts in the case of the Cumberland or National Road, from the Potomac across the Alleghenies to the Ohio, to authorize the construction of a public highway connecting several states. See Indiana v. United States, 148 U. S. 148, 37 L. ed. 401, 13 Sup. Ct. Rep. 564.”
Justiee Brewer, with reference to the contentions of the plaintiff that these decisions were obiter dicta, stated that plainly they were not; that they announced distinctly the opinion of the Supreme Court on the *602question presented; that Congress had acted in reliance upon such decision in many ways, and that the court adhered to the principles stated. 204 U. S. 24.
Concerning the war powers, it is stated in Stewart v. Kahn, 11 Wall. 493, 20 L. ed. 176, as follows: “The Constitution gives to Congress the power to declare war; to grant letters of marque and reprisal; and to make rules concerning captures on land and water; to raise and support armies, to provide and maintain a navy, and to provide for calling forth the Militia to execute the laws of the Union, suppress insurrections, and repel invasions. The President is the commander in chief of the Army and Navy, and of the Militia of the several states, when called into the service of the United States, and it is made his duty to take care that the laws are faithfully executed. Congress is authorized to make all laws necessary and proper to carry into effect the granted powers. The measures to be taken in carrying on war and to suppress insurrections are not defined. The decision of all such questions rests wholly in the discretion of those to whom the substantial powers involved are confided by the Constitution.”
Concerning the authority of Congress to make all laws which will be necessary and proper to carry into execution the express powers granted, Chief Justice Marshall, in M’Culloch v. Maryland, 4 Wheat. 421, 4 L. ed. 605, stated: “But we think the sound construction of the Constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional.”
The United States district attorney for this state, of counsel for the Director General, contends that the President could have taken over the railroads, as a war measure, without any acts of Congress, and that the state cannot interefere with his management or use of the road.
Congress having ample constitutional powers concerning the subject-matter, it is unnecessary to consider the war power of the President to take such property without the authority of Congress. This question *603was raised in. Oivil War times, when Congress enacted the statute authorizing the President to take over railroads and transportation lines whenever the public safety required. 12 Stat. at L. 334, chap. 15, Comp. Stat. § 322, 9 Fed. Stat. Anno. 2d ed. p. 911; C. Haney, Congressional History of Railroads, vol. 11, 158.
2. The authority of Congress to prescribe or regulate rates on transportation systems. — Does Congress possess the constitutional power to fix or prescribe rates of Federal making which may supersede or subordinate intrastate rate regulations? A distinction may be drawn between the powers of rate making and of operation; they may be classed, in many respects, as separate and distinct functions. The power to operate, however, with respect to the efficiency of operation and the prompt movement of traffic, may depend largely upon the rate prescribed; the rate prescribed may facilitate, deter, or even prohibit the movement of certain traffic. Revenues, when dependent upon rate, may vitally affect the operation of transportation systems. If Congress possesses the power to control or operate a railroad transportation system, it must necessarily be conceded that it possesses, likewise, the power to prescribe or to fix a method of fixing rates to be charged for the service rendered in operating a governmental instrumentality. Whether this power flows from the exercise of- the constitutional war power, or from the exercise of the constitutional power to establish post roads, or regulate interstate commerce, in any case, the authority necessarily exists as essentially implied in the execution of the power. It exists, coneededly so, in the Federal operation of postoffices, and of the parcel post (Re Jackson, 96 U. S. 727, 24 L. ed. 877), in the control and management of the Panama canal (32 Stat. at L. 481, chap. 1302, 34 Stat. at L. 5, chap. 3, Comp. Stat. § 6827, 8 Fed. Stat. Anno. 2d ed. p. 416), and in various other Federal instrumentalities.
The question involved is not the power of regulation, but the power concerned with operation. The com-mpn-law obligation is imposed upon the common carrier to make charges reasonable and just. This obligation is subject to regulation by the sovereign power; the legislative sovereign will may prescribe this common-law obligation, a rule of conduct, and fix a rate. (Munn v. Illinois, 94 U. S. 113, 125, 24 L. ed. 77, 87). In the above case Justice Waite stated: “This brings us to inquire as to the principles upon which this power of regulation rests, in order that *604we may determine what is within and what without its operative effect. Looking, then, to the common law, from whence came the right which the Constitution protects, we find that when private property is ‘affected with a public interest, it ceases to be 'juris privati only.’ This was said by Lord Chief Justice Hale more than two hundred years ago in his treatise De Portibus Maris, 1 Hargrave, Law Tracts, 78, and has been accepted without objection as an essential element in the law of property ever since. Property does become clothed with a public interest when used in a manner to make it of public consequence and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created. He may withdraw his grant by discontinuing the use, but, so long as he maintains the use, he must submit to the control. See Watkins, Shippers & Carr. 2d ed. § 61.
When, however, the public itself, through its government, assumes management, or exercises a proprietary control over such property as an instrumentality or agency of the government, the very reason for the regulation disappears; there then exists a merger of the interests of the owner and his patrons. Then, in theory of law, the property, theretofore privately owned and operated but affected with a public interest, subject to regulation for the common good, is now operated and maintained as a governmental agency for the common good. The legislative will may then prescribe a rate for the governmental service to be rendered regardless of the common-law obligations of a common carrier; the exercise of such power becomes similar to the power to tax; the Federal Constitution does provide that duties, imposts, and excises shall be uniform; it contains no inhibition against discriminatory rates; the equality clause of the 14th Amendment applies to states only. It is therefore readily appreciated that the power of the states to prescribe or regulate the rates intrastate, of a common carrier privately owned and operated, is entirely different power than the power of the state to prescribe or regulate rates, upon or over a Federally owned or operated common carriel*. In observing the distinction, ^no one will contend that this state, under its right to regulate-rates, possesses any authority to regulate or review the charges-*605made by-the Federal government, for carrying or delivering a letter or a parcel post package through the United States mail intrastate. The argument presented by the state, that the police powers of the state cannot be surrendered and that the supervising of railroad rates is a police regulation within the police powers, does not apply to the question presented. It is unnecessary to consider whether the exercise of the rate-making power is within the police power, for clearly the police powers of the state dó not apply to a Federal instrumentality when Congress has specifically legislated concerning the exercise thereof. Furthermore, under the power to regulate interstate commerce, the plenary power of Congress concerning such matter, to the exclusion of the rights of the state, is recognized in the cases cited by the state.
In the Minnesota Rate Case (Simpson v. Shepard) 230 U. S. 352, 57 L. ed. 1511, 48 L.R.A.(N.S.) 1151, 33 Sup. Ct. Rep. 729, Ann. Cas. 1916A, 18, the right of the state to exercise its regulatory powers over intrastate rates was expressly based upon the principle that Congress had not taken from the state this power. In the Shreveport Case (Houston, E. & W. T. R. Co. v. United States) 234 U. S. 342, 58 L. ed. 1341, 34 Sup. Ct. Rep. 833, the principle was recognized that Congress had paramount power with reference to interstate commerce and the regulation thereof, but that this did not mean that Congress possessed any authority to regulate .the internal affairs of a state.
Likewise, in the Keokuk Case (Illinois C. R. Co. v. Public Utilities Commission), 245 U. S. 493, 62 L. ed. 425, P.U.R.1918C, 1279, 38 Sup. Ct. Rep. 170, and in American Exp. Co. v. South Dakota, 244 U. S. 617, 61 L. ed. 1352, P.U.R.1917F, 45, 37 Sup. Ct. Rep. 656, the power of the Interstate Commerce Commission was restricted within the limits which require a definite showing of interference with the interstate rate prescribed.
Likewise, in the Union Pacific Cases, 9.Wall. 579, 19 L. ed. 792; 18 Wall. 5, 21 L. ed. 787, 3 Fed. 106; 29 Fed. 728, the right of the state to tax the property of the Union Pacific Railway Company, to subject its property to the right of eminent domain of the state, or to affect a physical connection with another railroad, was conceded upon the basic holding that such railway was a private corporation, with property of its own; and that it was not a Federal instrumentality, except as Congress had made it so for special purposes; and it not being shown that *606the action of the state interfered with any of these specific purposes, which Congress had required it to fulfil, the sovereign right of the state could act.
It clearly follows, therefore, that under the Federal Constitution, and the interpretation made concerning the powers granted to Congress by the courts, Congress does possess the authority to prescribe the rate to be charged for services rendered by a common carrier as a Federal instrumentality.
3. The authority of Congress to delegate the raie-malcing power to the President. — It would seem to be obvious that if Congress had the power to prescribe a rate for service rendered by a government instrumentality, it possesses the right to prescribe the means by which it shall be determined. Heretofore it has constituted the Interstate Commerce Commission, as a body, to consider the reasonableness of service charges of common carriers in interstate commerce. This body has the power to determine whether a given or proposed rate is reasonable or discriminatory. Under the Act of August 10, 1917, Congress has imposed directly additional powers upon such Commission to grant preference on priority in transportation of traffic, and to fix just and reasonable rates for persons or property in carrying out the directions and orders of the President. This power, so given to the Commerce Commission, is, of course, not a delegation of legislative powei*. This power, of course, the Congress could impose upon the President or the Director General, as well as upon the Commission (Interstate Commerce Commission v. Cincinnati, N. O. & T. P. R. Co. 167 U. S. 479, 42 L. ed. 243, 17 Sup. Ct. Rep. 896). In United States v. Grimaud, 220 U. S. 506, 55 L. ed. 563, 31 Sup. Ct. Rep. 480, the court said, concerning the delegation of legislative power as follows:—
“From the beginning of the government, various acts have been passed conferring upon executive officers power to- make rules and regulations —not for tho government of their departments, but for administering the laws which did govern. None of these statutes could confer legislative power. But when Congress had legislated and indicated its will, it could give to those who were to act under such general provisions ‘power to fill up the details’ by the establishment of administrative rules and regulations, the violation of which could be punished by fine or imprisonment fixed by Congress, or by penalties fixed by Congress, or measured by the injury done
*607“Thus it is unlawful to charge unreasonable rates or to discriminate between shippers, and the Interstate Commerce Commission has been given authority to make reasonable, rates and to administer the law against discrimination. Interstate Commerce Commission v. Illinois C. R. Co. 215 U. S. 452, 54 L. ed. 280, 30 Sup. Ct. Rep. 155; Interstate Commerce Commission v. Chicago, R. I. & P. R. Co. 218 U. S. 88, 54 L. ed. 946, 30 Sup. Ct. Rep. 651. Congress provided that after a given date only cars with drawbars of uniform height should be used in interstate commerce, and then constitutionálly left to the Commission the administrative duty of fixing a uniform standard. St. Louis, I. M. & S. R. Co. v. Taylor, 210 U. S. 287, 52 L. ed. 1064, 28 Sup. Ct. Rep. 616, 21 Am. Neg. Rep. 464. In Union Bridge Co. v. United States, 204 U. S. 364, 51 L. ed. 523, 27 Sup. Ct. Rep. 367; Re Kollock, 165 U. S. 526, 41 L. ed. 813, 17 Sup. Ct. Rep. 444; Buttfield v. Stranahan, 192 U. S. 470, 48 L. ed. 525, 24 Sup. Ct. Rep. 349. It appeared from the statutes involved that Congress had either expressly or by necessary implication made it unlawful, if not criminal, to obstruct navigable streams; to sell unbranded oleomargarin; or to import unwholesome teas. With this unlawfulness as a predicate, the executive officers were authorized to make rules and regulations appropriate to the several matters covered by the various adts. A violation of these rules then made an offense punishable as prescribed by Congress. But in making these regulations the officers did not legislate. They did not go outside of the circle of that which the act itself had affirmatively required to be done, or treated as unlawful if done. But confining themselves within the field covered by the statute, they could adopt regulations of the nature they had thus been generally authorized to make, in order to administer the law and carry the statute into effect.”
As heretofore discussed, the power to prescribe a service charge for a government instrumentality is not the common-law power of determining a reasonable charge; it is the sovereign power to prescribe the charge, or to fix the means of accomplishing the same. It is similar to the power to impose tariff duties; the right of the President to impose a tariff on wheat; it is analogous to the authority granted the President to fix the price of wheat under the food control acts. In fact, under present war measures many similar duties have been imposed or conferred upon the President, viz., freight rates on vessels. Act, July 18, 1918.
*608Clearly this power, not a power to legislate a rate, not to determine the reasonableness or discriminatory character of a rate, is a right that may properly be granted, within proper bounds, not transgressing the delegation of a legislative power, to the President. Marshall Field & Co. v. Clark, 143 U. S. 649, 36 L. ed. 294, 12 Sup. Ct. Rep. 495.
4. Whether Congress, if it did possess such powers, expressly exercised the same to create a Federal agency for purposes of operation and rate making. — The Act of August 29, 1916 (39 Stat. at L. 645, chap. 418, Comp. Stat. § 1974a, 9 Fed. Stat. Anno. 2d ed. p. 1095) provides: “The President, in time of war, is empowered, through the Secretary of War, to take possession and assume control of any system or systems of transportation, or any part thereof, and to utilize the same, to the exclusion as far as may be necessary of all other traffic thereon, for the trans? fer or transportation of troops, war material and equipment, or for such other purposes connected with the emergency as may be needful or desirable.”
It is apparent that Congress by this act intended to exercise and did exercise its war power. The paragraph in question was incorporated into the Army Appropriation Act; evidently the enactment was intended to provide for our troops in Mexico, and to provide full authority in the President in case of any difficulties with Mexico. Unquestionably, it gave to the President the direct authority in time of war, to take possession and assume control of the transportation lines involved.
On April 6, 1917, a state of war was formally declared to exist by Congress, between the United States and the Imperial German Government. On December 7, 1917, Congress authorized and directed the President to employ the entire naval and military resources of the United States, and the other resources of the United States, to carry on the war, and to bring the conflict to a successful determination. On December 28, 1917, the President of the United States, pursuant to the Act of August 29, 1916, and the resolutions of Congress declaring war on Germany and the Austro-Hungarian government, did take possession and assume control of transportation lines, including the transportation line involved herein; and he expressly directed that the possession, control, operation, and utilization of such systems of transportation should be exercised through the Director General. His proclamation further provided that such systems should be utilized for the transferring and trans*609portation of troops, war material, and equipment, to the exclusion, so far as may be necessary, of all other traffic thereon; that so far as such exclusive use be not necessary or desirable, such systems of transportation should be operated and utilized,- in the performance of such other services as the national interests may require, and of the usual and ordinary business and duties of common'carriers. The proclamation further provided that “until and except so far as said Director shall from time to time otherwise by general or special orders determine, such systems of transportation shall remain subject to all existing statutes and orders of the Interstate Commerce Commission, and .to all statutes and orders of regulating commissions of the various states in which said systems or any part thereof may be situated. But any orders, general or special, hereafter made by said Director, shall have paramount authority and be obeyed as such.” [40 Stat. at L. 1134.]
Under this proclamation and the authority theretofore conferred, the possession and control of railways, as outlined in the proclamation, was taken. It can scarcely be contended that the President did not properly determine an urgency and immediate necessity for so doing. By this act of the President the private property of the carriers became subject to the public use required to meet the public necessities then existing. Under this assumption of power the transportation systems passed under governmental operation. There can be little question that then and there they became Federal instrumentalities to the extent of the purpose for which control and possession of the same were taken. As such, in operation in the manner in which the trains should be operated, traffic should be handled, passengers carried, merchandise transported, they became subject to the orders of the Director General, and, in so far as any statute of any state or of any order of any railroad commission of any state served to prescribe otherwise, or was in contravention thereof, the same was subordinated or suspended. These principles obtain not only from the nature of the power conferred upon the Federal government to carry on war, but also from the reciprocal duty of the states to aid and assist the Federal government, in times of war, by subordinating every state agency which may serve to interfere with the successful prosecution of the war, and of the enforcement of the war powers. Under this act, providing the assumption of control, there was no attempt to legislate or exercise the rate-making power. - —
*610Under the Act of March 21, 1918, Congress recognized that the President had, in time of war, taken over the possession and use, the control and operation, of certain transportation systems. It provided for an annual compensation to the railway corporations equivalent to their respective, average annual railway operating income for the three years, ending June 30, 1917. It provided that railway operating income accruing during the period of Federal control, in excess of such compensation, should remain the property of the United States. It further provided that taxes assessed under Federal or any other governmental authority, for the period of Federal control, on the property used under such Federal control, or on the right to operate as a carrier, or on the revenues derived from operation, should be paid out of revenues derived from railway operations while under Federal control, excepting that war taxes assessed under the Act of October 3, 1917, or subsequent acts, should be paid by the carrier out of its own funds, and also assessments for public improvements, or taxes assessed on property under construction. The act also provided that the President might execute any of the powers conferred with relation to Federal control through such agency as he may determine, and that he may fix a reasonable charge for the performance of services in connection therewith, and may avail himself of the advice, assistance, and co-operation of the Interstate Commerce Commission; that, furthermore, during the period of Federal control, whenever in his opinion the public interests requires, he, the President, may initiate rates, fares, and charges, classifications, regulations, and practices, by filing the same with the Interstate Commerce Commission, which said rates, fares, charges, classifications, regulations, and practices shall not be suspended by the Commission pending final determination. The act further provides that—
“Said rates, fares, charges, classifications, regulations, and practices shall be reasonable and just and shall take effect at such time and upon such notice as he may direct, but the Interstate Commerce Commission shall, upon complaint, enter upon a hearing concerning the justness and reasonableness of so much of any order of the President as establishes or changes any rate, fare, charge, classification, regulation, or practice of any carrier under Federal control, and may consider all the facts and circumstances existing at the time of the making of the same. In determining any question concerning any such rates, fares, charges, *611classifications, regulations, or practices or changes therein, the Interstate Commerce Commission shall give due consideration to the fact that the transportation systems are being operated under a unified and coordinated national control and not in competition.
“After full hearing the Commission may make such findings and orders as are authorized by the Act to Regulate Commerce as amended, and said findings and orders shall be enforced as provided in said act: Provided, however, that when the President shall find and certify to the Interstate Commerce Commission that in order to defray the expenses of Federal control and operation fairly chargeable to railway operating expenses, and also to pay railway tax accruals other than war taxes, net rents for joint facilities and equipment, and compensation to the carriers, operating as a unit, it is necessary to increase the railway operating revenues, the Interstate Commerce Commission in determining the justness and reasonableness of any rate, fare, charge, classification, regulation, or practice shall take into consideration said finding and certificate by the President, together with such recommendations as he may make.” [40 Stat. at L. 456, chap. 25, Comp. Stat. § 3115# j, Fed. Stat. Anno. Supp. 1918, p. 763.]
The act also provides the sum of $500,000,000 of Federal moneys, which, together with the funds available from operating income, shall, be used as a revolving fund for the purpose of paying the expenses of Federal control, and compensation to carriers, and providing equipment, etc., and further that moneys and other properties derived from the operation of the carriers during the Federal control are declared to be Federal property. The act further provides that this Federal control shall continue for and during the period of the war, and for a reasonable time thereafter, not exceeding one year and nine months after the date of the proclamation by the President of the exchange of ratifications of the Treaty of Peace. It grants, however, to the President the right to relinquish Federal control at any time he should deem such action needful, or desirable. This act is-expressly declared to be an emergency declaration enacted to meet conditions growing out of the war.
It is at once seen that this act directly authorizes the exercise of the rate-making power by the President over transportation lines under Federal control. There can be no question of the intent and purpose of Congress to do so from the very express words of the act. A means and *612a method is prescribed for fixing rates to be charged through the agency of the President and the established Interstate Commerce Commission.
It may perhaps be contended that the act granting the power to initiate rates, and providing that they shall be just and reasonable and subject to review or consideration by the Interstate Commerce Commission, is drafted analogously to the Interstate Commerce Act, creating and defining the powers of the Interstate Commerce Commission in the investigation and determination of the reasonableness of rates in interstate commerce. That such act simply incorporated the common-law obligation imposed upon common carriers to make all rates reasonable and just, and that the power of the Commission has been confined by the act and by the decisions of the courts to a determination of the reasonableness and the equality of a given rate. That the power to prescribe a rate is a legislative function; the power to determine its reasonableness, a judicial function; that under the Commerce Act the railways were authorized to initiate rates in interstate commerce, Congress not attempting to prescribe a rate, but providing a method for investigating and determining the reasonableness or discriminatory character of the same through the Commission; that, in the act in question, Congress has not attempted to prescribe a rate, but has simply transferred from the railways to the President the power to initiate a rate, and has left with the Commerce Commission the power therefore possessed to determine its reasonableness; that.this displays an intent and understanding to apply the same to interstate commerce, alone over which the Commerce Commission alone has jurisdiction. This contention, somewhat plausible from the analogous means used in the Commerce Act and the Act of March 21, 1918, to initiate and determine rate over common carriers, is to be answered not by a comparison alone of similar language used, but through the intent and purpose of the act in connection with the emergency war situation existing and the public needs and demands occasioned thereby.
It does not follow that Congress simply intended to prescribe legislation for initiating rates, applicable only as interstate, upon a Federal instrumentality, because it constituted as board of review, to act with the President, the Commerce Commission, whose powers theretofore were confined to a determination of the common-law obligation of common carriers.
The Act of March 21, 1918, specifically provides for a method of *613presrcibing rates through the action of the President and the Commerce Commission, over common carriers under Federal control. The Commerce Commission are specifically instructed that due consideration be given to the fact that the transportation systems are being operated under a unified and co-ordinated national control and not in competition. They are further directed to take into consideration the certificate of the President, when made, that increased railway operation revenues are necessary in order to pay the expense of Federal control and operation fairly chargeable to railway operating expenses, and to pay railway tax accruals other than war taxes, net rents for joint facilities and equipment, and compensation to the carriers operating as a unit. True, the Commission are authorized to make findings and orders as are authorized by the amended Act to Regulate Commerce. The language em- ' ployed in this regard is not clear. The intent and purpose of the whole act, and the object sought to be gained in the war emergency, however, are clear. A Federal instrumentality was created; the control is direct; the revenues received are government property; the appropriations made out of public funds are for the public purpose of Federal operation. The persons employed as officers, agents, and employees upon such railways are considered employed in the service of the United States. The control of all traffic is directly subject to the orders of the President. It is certainly apparent that these powers conferred upon the President and the Commerce Commission to initiate or review rates upon and over such Federal instrumentalities is not the power to initiate or review a rate that must be just, and reasonable under the common-law obligation of common carrier to passengers, shippers, or to the public.
The intent and purpose of the Director General in this regard is well shown in the preamble to general order No. 28, which reads as follows:
“General Order No. 28.”
“Whereas it has been found and is hereby certified to the Interstate Commerce Commission that, in order to defray expenses of Federal control and operation fairly chargeable to railway operating expenses, and also to pay railway tax accruals other than war taxes, net rents for joint facilities and equipment, and compensation to the carriers, operating as a unit, it is necessary to increase the railway operating revenues, and
“Whereas the public interest requires that a general advance in all *614freight rates, passenger fares, and baggage charges on all traffic carried by all railroad and steamship lines taken under Federal control under an Act of Congress approved August 29, 1916, entitled ‘An Act Making Appropriations for the Support of the Army for the Fiscal Year Ending June Thirtieth, Nineteen Hundred and Seventeen, and for Other Purposes; shall be Made by Initiating the Necessary Rates, Fares, Charges, Classifications, Regulations and Practices by Filing the Same with the Interstate Commerce Commission under Authority of an Act of Congress approved March 21, 1918, entitled ‘An Act to Provide for the Operation of Transportation Systems While under Federal Control for Just- Compensation of Their Owners, and for Other Purposes.’
“Now, therefore, under and by virtue of the provisions of the said Act of March 21, 1918, it is ordered that all existing freight rates, passenger fares, and baggage charges, including changes heretofore published but not yet effective, on all traffic carried by all said railroads and steamship lines, under Federal control, whether the same be carried entirely by railroad, entirely by water, or partly by railroad and partly by water, except traffic carried entirely by water to and from foreign countries, be increased or modified, effective June 25, 1918, as to freight rates and effective June 10, 1918, as to passenger fares and baggage charges, to the extent and in the manner indicated and set forth in the exhibits hereto attached and made a part thereof, by filing schedules with the Interstate Commerce Commission, effective on not less than one day’s notice.
“Given under my hand this 25th day of May, 1918.
. “W. G. McAdoo,
j ■ “Director General of Railroads.”
Furthermore, during the continuance of the war, under the Act of August 10, 1917, heretofore mentioned, powers and duties have been imposed upon the Interstate Commerce Commission, in connection with these war powers of the President, apparently beyond their ordinary powers of determining the reasonableness or equality of rates of common carriers privately owned and operated.
It is apparent that this act directly authorizes the exercise of the rate-making power by the President over transportation lines under Federal control. A means and a method is prescribed for fixing rates to be charged through the agency of the President and the already established Interstate Commerce Commission.
*615Although the act provides that the rates shall be reasonable and just, and although it provides for a method of complaint and review of the same through the Commission, it is evident that this power so conferred upon the President is not the sole power theretofore possessed by the common carriers to initiate a raté that was just and reasonable to the shippers and for the public. The-act, from its very provisions, intent, and purposes, discloses a purpose to confer a power upon the President to prescribe rates to be just, and reasonable and to be subject to review. It is true, but nevertheless, an authority in the operation of a governmental instrumentality, for either the following purposes: To provide for a deficit in the operating revenues and to secure the government against loss under its guaranty to the carriers, or to raise revenues for the government under the clause which provides that excess revenue shall be government property.
In either case, the considerations that obtain concerning the common-law obligation of carriers to maintain a just and reasonable rate do not apply.
It is also evident that the President through the Director General, pursuant to general order No. 28, has exercised this specific power granted to him, and for the purposes, in part at least, as above stated. The order has been made applicable to all interstate and intrastate traffic under Federal control. There is no difficulty in understanding the meaning and intent of the order.
In our opinion, for the purposes of war, and the legislation enacted to enable the President to perform the high duties of his office, to carry the war to a successful determination,, he possessed the specific power and authority to prescribe and make effective the rates promulgated in such general order.
5. The power of the state to exercise the rate-malcing power over intranstate traffic upon railways under Federal control. — Sec. 15 of the Act of Congress of March 21, 1918, provides as follows: “That 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. § 3115f o, Fed. Stat. Anno. Supp. 1918, p. 765.]
*616The state contends that this section expressly reserves to the state its authority concerning the rate-making power over intrastate traffic; that it discloses a specific intent on the part of Congress to not inhibit the application of the state laws concerning rates, if the same do not interfere with the governmental purpose for which the railways were taken; that it shows, likewise, a specific intent to not interfere with the power of the state in matters of purely local concern within the state; that, furthermore, the particular use of the term in § 15, “police regulations,” includes and means to include the regulation of rates intrastate. From the foregoing discussion of the principles applicable in the operation of the railway under Federal control, it is evident that the contentions of the state cannot be upheld. The control, possession, and management of the railway systems involved being for governmental purposes, and as a governmental instrumentality, the power of the state heretofore existing to exercise rate-making power, to impose and require reasonable charges for services rendered by a common carrier performing a public service, does not obtain; at least this is, so far as the act prescribes a power, which has been exercised inconsistent with the exercise of such power, likewise by the state. .Otherwise, in the act, the specific power is granted to the President to initiate and prescribe rates upon railways under Federal control in conjunction with the Interstate Commerce Commission. As heretofore stated, Congress, under its war powers, had ample authority so to do. It is apparent that § 15, concerning the powers of the state over taxation and lawful police regulation, may properly apply to the property of private carriers not devoted to Federal control, under the act, or even may apply to such property so taken under the Federal control except as otherwise the act inhibits the exercise by a state, of power concurrent with that of the President. The state contends that the term “lawful police regulations” means the exercise of the police power of the state, and that this police power of the state cannot be surrendered. Again it is deemed unnecessary to distinguish when a police regulation is the exercise of a police power and when it is not. It is sufficient to say, as heretofore stated, that if the instrumentalities in question are Federal agencies concerning which Congress and the President has exercised their powers in the control, possession, and operation of the same, the police power of the state does not obtain; otherwise it may.
*617In Pappens v. United States, 164 C. C. A. 167, 252 Fed. 55, the defendants were convicted of maintaining a house of ill fame within 5 miles of a military fort. Section 13 of the Act of May 18, 1917, chap. 15, authorized the Secretary of War to suppress, during the period of war, houses of ill fame within such distance from any fort or military camp, etc., as he deemed'needful. The defendants contended that the violation of the 5-mile rule as established by the Secretary of War was an invasion of the police powers of the state. The contention was denied, the court holding that Congress, having acted under a constitutional power pursuant to its war powers, had full and plenary authority; and that, furthermore, the act was not a delegation of legislative power to an executive officer.
It is inconceivable that at a time when every resource and energy of the nation was absolutely necessary to be devoted to our Federal government in order to enable it to marshal every resource of man and property to carry on the war successfully, that the state, in the exercise of a so-termed police regulation, had the power or the authority to prescribe a rate that might obtain over a governmental controlled railway between two points in the state, or to assert, under its existing laws, what merchandise should be carried and when it should be transported, or that it should compel, under its existing laws, a particular service to passengers or to property that might be detrimental or contrary to the Federal demands. If this authority or power of the state did not exist at times when the war was at its height, it does not exist now, unless the emergency situation created by the act of Congress has, in fact, passed.
Even though, as contended, it be conceded that the exercise of the rate-making power of the state is a lawful police regulation of the state, and as such applicable under § 15 of said act, to intrastate traffic, nevertheless, such police regulations may well be considered, in view of his proclamation and the terms of the general order issued, disclosing and determining an emergency in war times to exist, to affect the transportation of troops, war materials, government supplies, or the issue of stocks and bonds.
"Well might the regulatory power of the state concerning rates apply on intrastate traffic, if the President, pursuant to the powers granted to him, had deemed it unnecessary to initiate or prescribe a rate to apply to railroads under such Federal control.
*618The contention of the state that the provisions of § 10 of'such act, which provides that actions may be instituted against the carriers affected by Federal control, and judgment rendered as theretofore provided by law, and that in any such action no defense may be made upon the ground that the carrier is an instrumentality or agency of the Federal government, show that such systems are not Federal instrumentalities, cannot be upheld. Well might this provision be construed to permit an action at law or in equity to be maintained as formerly without embarrassment to litigants by the defense of a governmental agency. The act itself and the control assumed show in fact a control by the government for war purposes, and an administration in fact through government revenues, an operation through government officials, and a rate-maldng power exercised through governmental authority. Clearly, upon the principles discussed herein, the powers of the state over rate making on intrastate traffic do not apply to the transportation line involved herein, if the act, and the purpose for which it was passed, are still effective.
6. Whether the emergency for which the Congressional acts were enacted has passed and the powers conferred thereunder are now ineffective. —The state contends that what Congress delegated as a war-time necessity has quite another aspect when that emergency has passed. That the war emergency has passed; that President Wilson in an official address on November 11, 1918, told Congress that the war was in fact concluded; that he then said: “The war thus comes to an end; for having accepted these terms of armistice, it will be impossible for the German command to renew it.” That the war has in fact ended; that the armistice accepted by the central powers amounted to an unconditional surrender, and the necessity for government rail control as a war measure has passed away.
Upon the legal issues presented to this court and the showing made therefrom, we are convinced that this contention cannot be upheld; there is no showing made to this court that governmental operation is not still urgently needed in the demobilization of troops, the maintenance of the armistice terms, the transportation of government materials and supplies, and in the governmental problems involved in the establishment of peace and normal conditions following the actual cessation of hostilities.
*619The mere fact that an armistice has been declared does not in and of itself determine that the emergency war powers then being exercised pursuant to Congressional authority then cease. Congress, in the act, has prescribed a limitation of time, to wit; one year and nine months following the Treaty of Peace, for the exercise of this Federal control. It has recognized therein the necessity of emergency war legislation continuing for a period of time after the termination of the war. In such matters, its discretion, as well as that-of the President, is a matter necessarily involved in the plenary war powers conferred upon them concerning which the judiciary will not interfere unless in fact it is demonstrated by proof subject to judicial inquiry, that the necessity for the exercise of such war powers does not exist.
In Stewart v. Kahn, 11 Wall. 493, 20 L. ed. 116, the court said: “The measures to be taken in carrying on war and to suppress insurrections are not defined. The decision of all such questions rests wholly in the discretion of those to whom the substantial powers involved are confided by the Constitution. In the latter case the power is not limited to victories in the field and the dispersion of the insurgent forces. It carries with it inherently the power to guard against' the immediate renewal of the conflict and to remedy the evils which have arisen from its rise and progress.”
It therefore follows that the petition of the relator herein should in all thing's be dismissed.