(dissenting). The defendant in this case is a Wisconsin corporation owing its existence and right to do business within this state to its charter obtained from this state. The rates heretofore published for service between points within the state of Wisconsin having been so fixed and established by the railroad commission, have the force, not only of contractual obligations between the defendant and its Wisconsin patrons, but of statutory obligations. Pennsylvania R. Co. v. International C. M. Co. 230 *205U. S. 184, 197, 33 Sup. Ct. 893; New York, N. H. & H. R. Co. v. York & Whitney Co. 215 Mass. 36, 40, 102 N. E. 366.
The defendant asserts here that it is changing such established rates by virtue of an order given to it so to do by the postmaster general of the United States. If there is sufficient authority in such official to issue such a command it is a perfect defense for the defendant and ends the matter. If there is no such power in that officer there is no valid defense asserted, and this court, having jurisdiction over a corporation created by and existing under the laws of the state of Wisconsin; has power and authority to determine and declare such absence of a valid defense. This court does not thereby assume control or jurisdiction over any branch of the federal government or officer thereof or in ány manner show any want of proper respect to the federal government.
The making or changing of such rates-is primarily a legislative function. Minneapolis, St. P. & S. S. M. R. Co. v. Railroad Comm. 136 Wis. 146, 161, 116 N. W. 905; Milwaukee E. R. & L. Co. v. Railroad Comm. 238 U. S. 174, 180, 35 Sup. Ct. 820; Louisville & N. R. Co. v. Garrett, 231 U. S. 298, 307, 34 Sup. Ct. 48.
There is no express delegation by the joint resolution here involved of such legislative function. If it is to be implied it should be clear and beyond reasonable question. Cochnower v. U. S. 248 U. S. 405, 407, 39 Sup. Ct. 137.
I can see, therefore, no ground upon which it could be safely asserted that Congress intended by this joint resolution to place the rate-making power as to telephone service, either interstate or intrastate, in the control of the President or in any one whom he might choose to appoint.
The proviso in the joint resolution reads:
“That nothing in this act shall be construed to amend, repeal, impair, or affect existing laws or powers of the state in relation to taxation or the lazvful police regulations of the several states, except wherein such laws, powers, or regulations may affect the transmission of government communica*206tions, or the issue of stocks and bonds by such system or systems.”
It is held by the majority opinion that the change in rates, made by the order of the postmaster general of January 21, 1919, is not within the term “lawful police regulations” of the proviso.
On January 7, 1919, in the case of Union D. G. Co. v. Georgia P. S. Corp. 248 U. S. 372 (39 Sup. Ct. 117), the United States supreme court said as follows (p. 374):
“Capital invested in an electric light and power plant to supply electricity to the inhabitants of a city is devoted to a' use in which the public has an interest which justifies rate regulation by a state in the exercise of its police powers
There can'be no valid distinction between the fixing of telephone rates and those for electric lighting.
I think such a definition of police power by the federal tribunal should be conclusive on us here when construing the term in the proviso in question, and that we should indulge in the assumption that when the legislative branch of the federal government used the same phrase in the joint resolution they meant the same thing.
The change cannot be justified as an exercise of police power. Police power belongs to the states. It has never been surrendered to the federal government, and that government as such has no police power. Keller v. U. S. 213 U. S. 138, 145, 149, 29 Sup. Ct. 470; House v. Mayes, 219 U. S. 270, 282, 31 Sup. Ct. 234; Hammer v. Dagenhart, 247 U. S. 274, 275, 38 Sup. Ct. 529; U. S. v. Doremus, 249 U. S. 86, 39 Sup. Ct. 214.
I cannot see that the defendant has met the burden of showing proper authority for the postmaster general to make the order of which complaint is made. The determination of some particular officer that he has the power he asserts is not controlling.
“Neither the silence of Congress nor decisions of officers of the United States have any authority beyond the domain *207established by the constitution.” Weigle v. Curtice Bros. Co. 249 U. S. 285, 39 Sup. Ct. 124.
“No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it.” U. S. v. Lee, 106 U. S. 196, 220, 1 Sup. Ct. 240.
The right of possession by the postmaster general of the telephone system is no more disturbed by requiring the defendant company to continue its law-fixed rates than was his possession interfered with when the system was conducted under the old rates before the order of January 21st, or than it is, because he cannot set aside the state laws as to taxation. It may affect the revenue, but this is not a revenue measure. The application here does not seek to take away anything now in the possession of the federal government as in the cases cited in the majority opinion, Belknap v. Schild, 161 U. S. 10, 16 Sup. Ct. 443; International P. S. Co. v. Bruce, 194 U. S. 601, 24 Sup. Ct. 820, or the breaking of a contract as in Wells v. Roper, 246 U. S. 335, 38 Sup. Ct. 317. It challenges the authority asserted by an official who, if within his authority, may be immune from judicial control, but if he attempts to act without his lawful jurisdiction is as amenable to the courts as is the humblest citizen. Philadelphia Co. v. Stimson, 223 U. S. 605, 620, 32 Sup. Ct. 340; Waite v. Macy, 246 U. S. 606, 610, 38 Sup. Ct. 395; Gegiow v. Uhl, 239 U. S. 3, 9, 36 Sup. Ct. 2; Lane v. Watts, 234 U. S. 525, 540, 34 Sup. Ct. 965; Degge v. Hitchcock, 229 U. S. 162, 33 Sup. Ct. 639; School of Magnetic Healing v. McAnnulty, 187 U. S. 94, 110, 23 Sup. Ct. 33; Noble v. Union River L. R. Co. 147 U. S. 165, 172, 13 Sup. Ct. 271.
I think the prayer of the petition should be granted.
I am authorized to state that Mr. Justice Owen agrees with me in this dissent.