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because, under their interpretation, it authorizes the collection of revenues with which the Government shall make good its guaranty of just compensation to the owners of the wire lines under its control. It is not necessary to invent any complicated construction of this language. It says that the lawful police regulations of the States shall not be affected. It was passed at a time when, under their police powers and by means of police regulations, the States had been exercising effective control over telephone companies for years.

It is a most natural assumption that if Congress had intended to completely revolutionize these conditions and the relations of the States to these utilities which they had created, Congress would unquestionably have made that intention very clear by appropriate language in the resolution. There was no occassion for inserting the term "lawful police regulations" except to assert that Congress proposed to exercise only the recognized and conceded powers of the Federal Government.

In the decisions of the courts the terms "police powers and "police regulations" are used interchangeably and indiscriminately in many cases. If any distinction whatever is recognized it is that police regulations relate to the exercise of police powers and that through police regulations police powers are applied. We do not find in the books any authority for any other difference in the significance of these terms. Wisconsin ex rel. Attorney General v. Chicago & North Western Ry. Co., 35 Wisconsin, 425, 591; Cooley's Constitutional Limitations, 577, 851; 31 Cyc. 903; Smyth v. Ames, 169 U. S. 466; Hammer v. Dagenhart, 247 U. S. 251; Fuller, Interstate Commerce, p. 17; Union Dry Goods Co. v. Georgia Public Service Corporation, 248 U. S. 372.

The term "lawful police regulations," as it appears in the joint resolution, has been construed in accordance with the contention of the defendant in error in decisions

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rendered in the following, among other cases: Public Service Commission of Indiana v. Receivers of the Central Union Telephone Co., Circuit Court Marion County, Indiana, decided February 21, 1919; Indiana v. Indianapolis Telephone Co., decided in same court on same day; Commonwealth ex rel. Attorney General v. Bell Telephone Co. of Pennsylvania, Court of Common Pleas, Dauphin County, Pennsylvania, decided January 29, 1919; Illinois v. Chicago Telephone Co., Superior Court, Cook County, Illinois; Ohio v. Ohio State Telephone Co., Court of Common Pleas, Franklin County, Ohio, decided January 25, 1919; Mississippi ex rel. Collins, Attorney General, v. Cumberland Telephone & Telegraph Co., 81 So. Rep. 404. A broad and liberal construction should be made of these words and of the proviso in which they are contained. The joint resolution, as a whole, is a grant of power by Congress to the President; the concluding proviso in the resolution is a limitation to that grant. It is usual that grants of power by legislation are strictly construed. Governments of enumerated and limited jurisdictions and officers possessing only powers delegated by law, are confined within the limits of the acts defining their powers. Chesapeake & Potomac Tel. Co. v. Manning, 186 U. S. 238. It is not reasonable to assume that, by making the President the general supervisor of the telephone lines, Congress intended to confer upon him, except in the matter of facilitating government communications, any greater rights in his relationship with the public than those which the telephone companies themselves possessed. We believe that there is the same need of local rate regulation and supervision by local authorities when the business is carried on by the Federal Government as when carried on by telegraph or telephone companies whose properties extend over the entire nation. This principle has been recognized when applied to railroads incorporated under federal law.

Smyth v. Ames,

Argument for Defendant in Error.

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169 U. S. 466; Reagan v. Mercantile Trust Co., 154 U. S. 413.

That the power to make and regulate rates of wire lines is a power which cannot be inferred but must be positively conferred by unambiguous language, is a proposition supported by many authorities. In Reid v. Colorado, 187 U. S. 137, the court said: "It should never be held that Congress intends to supersede or by its legislation suspend the exercise of the police powers of the States, even when it may do so, unless its purpose to effect that result is clearly manifested."

Congress cannot control intrastate rates under the commerce clause; nor under its war power, except when necessary and proper as a war measure. As in the case of enactments of Congress, so in the case of official acts of the President, it lies within the jurisdiction of the courts to determine whether the same are necessary and proper for carrying into execution any of his constitutional authority. Mitchell v. Harmony, 13 How. 115.

The only possible necessity for increasing the revenues of telephone companies that appears in this case is the necessity for the raising of revenues to enable the Government to compensate the telephone companies for the use of their property. That is not a war purpose. Plainly, the concluding proviso in the resolution indicates that in the opinion of Congress there existed no military necessity for increasing telephone toll rates. The President did not proclaim that it was needful or desirable to increase intrastate telephone rates as a war measure. Neither did the Postmaster General recitè that such increases in telephone rates were necessary, or that they contributed in any way to the successful prosecution of the war. Such declaration or recital would not necessarily have determined the fact; if made, it would be the duty of the court in a proper proceeding to go behind such recitals, for otherwise it would be impossible to check the exercise of

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arbitary power. American School of Magnetic Healing v. McAnnulty, 187 U. S. 94; Philadelphia Co. v. Stimson, 223 U. S. 605, 620; Degge v. Hitchcock, 229 U. S. 162, 171; United States v. Lee, 106 U. S. 196.

If the President undertook to control telephones by virtue of the war powers, the fact is that the exercise thereof, which it is the object of this case to test, was not undertaken until a time had arrived when the highest authorities of the Federal Government itself acknowledged that the war had ended. President's Messages of November 11, and December 2, 1918; Pacific Lumber Co. v. Northwestern & Pacific R. R. Co., 51 I. C. C. 738; United States v. Hicks, 256 Fed. Rep. 707. These considerations have no bearing on the construction to be made of the joint resolution, but they have an important bearing upon the contention of the defendant that the Postmaster General's order of December 13, 1918, effective January 21, 1919, has any warrant as a war measure. Even if Congress might authorize the President to change and increase South Dakota intrastate rates under the war powers of Congress and the President, still no attempt was made to exercise such power during the war or pursuant to any war purpose or in accordance with any plan for prosecuting the war. The Postmaster General did not promulgate his order until after all necessity for the regulation of such rates as a war measure had passed.

Congress cannot confer legislative power upon the President to make rates for the future. Field v. Clark, 143 U. S. 649, 692, 693.

The suit is not one against the United States, the President or the Postmaster General; and its purpose was not to control revenue or property of the United States. The defendants are wrongdoers, and cannot defend upon the ground that they acted under orders which the President or Postmaster General was without authority to issue. It is within the power of the court to determine the

limits of executive authority, and to restrain acts in excess thereof. This suit is not one to control administrative discretion, but to restrain acts in threatened violation of law and in excess of legal authority. Ex parte Milligan, 4 Wall. 2, 120, 121; Hopkins v. Clemson College, 221 U. S. 636, 643, 644; Philadelphia Co. v. Stimson, 223 U. S. 605, 619, 620.

The acts of the telephone companies sought to be enjoined are not acts of the Federal Government, because beyond its powers. It is not sought in this case to control the President's discretion, because it relates to a matter wholly beyond his jurisdiction.

Mr. William I. Schaffer, Attorney General of the Commonwealth of Pennsylvania, and Mr. Bernard J. Myers, Deputy Attorney General of the Commonwealth of Pennsylvania, by leave of court filed a brief as amici curiæ, on behalf of the Commonwealth of Pennsylvania.

Mr. Charles E. Elmquist, by leave of court, filed a brief as amicus curia, on behalf of thirty-seven States and the National Association of Railway and Utilities Commissioners.

Mr. John J. Blaine, Attorney General of the State of Wisconsin, Mr. M. B. Olbrich, Deputy Attorney General of the State of Wisconsin, and Mr. Joseph E. Messerschmidt, Assistant Attorney General of the State of Wisconsin, by leave of court, filed a brief as amici curiæ, on behalf of the State of Wisconsin.

Mr. Hal H. Smith, Mr. David H. Crowley and Mr. Clarence D. Wilcox, by leave of court, filed a brief as amici curia, on behalf of the City of Detroit.

Mr. H. Findlay French and Mr. Ogle Marbury, by leave of court, filed a brief as amici curia, on behalf of the