there seem to be two well-settled rules precluding any construction of the section which would sustain the power of the state to control rates, etc., initiated by the President.

In the first place, when a statute creates a right and provides a particular remedy for its enforcement, such remedy is generally held to be exclusive.14 This rule is apparently bottomed on legislative intention, as the Supreme Court points out in United States v. Stevenson,15 where Mr. Justice Day said:

"The contention of the defendants in error is that the action for a penalty is exclusive of all other means of enforcing the act, and that an indictment will not lie as for an alleged offense within the terms of the act. The general principle is invoked that where a statute creates a right and prescribes a particular remedy that remedy, and none other, can be resorted to. An illustration of this doctrine is found in Globe Newspaper Company v. Walker, 210 U. S. 356, in which it was held that in the copyright statutes then in force Congress had provided a system of rights and remedies complete and exclusive in their character. This was held because, after a review of the history of the legislation, such, it was concluded, was the intention of Congress.

"The rule which excludes other remedies where a statute creates a right and provides a special remedy for its enforcement rests upon the presumed prohibition of all other remedies. If such prohibition is intended to reach the Government in the use of known rights and remedies, the language must be clear and specific to that effect. Dollar Savings Bank v. United States, 19 Wall. 227, 238, 239. In the present case, if it could be gathered from the terms of the statute, read in the light of the history of its enactment, that Congress has here provided an exclusive remedy intended to take from the Government the right to proceed by indictment, and leaving to it only an action for the penalty, civil in its nature, then no indictment will lie, and the court below was correct in its conclusion."

That this general rule may properly be invoked in determining the correct construction of the Federal Control Act would seem apparent from the following considerations:

(a) Had Congress intended to continue the remedial procedure heretofore applicable in connection with rates, etc., it would have been extremely easy for Congress to have used simple language

14 Globe Newspaper Co. v. Walker, 210 U. S. 356 (1908).

15 215 U. S. 190, 197 (1909).

evidencing this intention. In lieu of such language, a special and definite procedure is established.

(b) The action of the President, or of his duly constituted representative, in initiating rates, etc., involves the exercise of discretion and consequently would not be subject to judicial control,16 and it would seem necessarily to follow that the exercise of such discretion would not be subject to administrative control except to the extent that the act of Congress specifically makes it so.

(c) In like manner, a proceeding against the Director-General is in substance a proceeding against the United States and accordingly cannot be maintained except by the express permission of the government,17 and whatever be the construction to be given to section 15, it certainly contains nothing evidencing the consent of the United States to be made respondent in proceedings before state commissions. The remedy specifically allowed before the Interstate Commerce Commission is therefore created by the statute, and it is impossible to find a justification for any other remedy elsewhere. Necessarily, this remedy is exclusion.

And this conclusion is reënforced by the provisions of the first paragraph of section 10, which authorize "actions at law or suits in equity" to be brought by and against "carriers." Now if it should be held that this paragraph is intended to authorize a proceeding against the United States, a conclusion of doubtful soundness, it is highly significant that it does not authorize proceedings before state commissions. "Actions at law" and "suits in equity" are technical phrases indicating well-known forms of procedure and do not include proceedings before commissions. This consideration, therefore, lends weight to the view that the statutory remedy before the Interstate Commerce Commission is the only remedy intended to be available in connection with rates, etc., initiated by the President.

The second well-settled rule which reënforces the conclusion reached from a scrutiny of the language of the act, that the remedy before the Interstate Commerce Commission is exclusive, is found in the principle that when one part of a statute deals specifically

16 Marbury v. Madison, 1 Cranch (U. S.), 137 (1803).

17 Louisiana v. Garfield, 211 U. S. 70 (1908); Louisiana v. McAdoo, 234 U. S. 627 (1914); New Mexico v. Lane, 243 U. S. 52 (1917).

with a certain matter, which it may be contended is dealt with more generally in another part of the same statute, the specific provisions apply rather than the general provisions.18

From what has been said it is clear that the only portions of the statute which can be opposed to the specific provisions of section 10, confiding to the Interstate Commerce Commission a degree of jurisdiction with respect to rates, etc., initiated by the President, are cast in very general language, and it would seem necessarily to follow that these specific provisions must be regarded as controlling, and the general provisions must be construed as not intended to operate where the specific provisions apply.

Turning now to the precise words of section 15, a significant difference is disclosed in its reference to the states' power of taxation and the states' police power. The "existing laws or powers of the States in relation to taxation" are not to be amended, etc., but it is only the "lawful police regulations" of the states that are to be accorded a like immunity from change. There must have been some reason for refraining from preserving the "police power" of the states to the same extent as the taxing power. It seems not unreasonable to regard the words "police regulations as intended to refer to police regulations already in effect which were to remain in effect unless superseded by acts of the President under the Federal Control Law.

Or, possibly, the words are intended to refer to the "police power" in its more limited and proper use as describing the authority of the state to legislate to protect the health, safety, and morals of its people,19 and not in its more extended and general use, within which the power to regulate rates, etc., has sometimes been classified. For there is grave doubt whether the regulation of rates, etc., by the states is in truth a branch of the police power within the meaning of section 15. It is true that various cases have so characterized it when referring to the general classification of legislation.20 But this use of the term is clearly open to just criticism.

18 Rodgers v. United States, 185 U. S. 83 (1902); In re Anderson, 214 Fed. 662 (1914); Colonial Navigation Co. v. N. Y., etc. Co., 50 L. C. C. 625 (1918), and cases cited.

19 See the difference between "police power" and "police regulations" suggested in 31 CYCLOPEDIA OF LAW AND PROCEDURE, 902–03.

20 Munn v. Illinois, 94 U. S. 113 (1876); Budd v. New York, 143 U. S. 517, 534, 537,

In the first place, the "police power," as referred to in the decisions, seems to be used in two ways: usually as referring to laws for the promotion of the public health, safety, and morals, but sometimes and less frequently, as referring to laws intended more generally for the public welfare. But, as Chief Justice Taney long ago pointed out,21 practically all laws are police laws in this sense. That the "police power" in its more proper and limited sense is an inexact description of the rate-making power would seem to result from the following considerations:

(a) In the first place it is well settled that the state police power cannot be bargained away, and yet it is equally well settled that the state may make a binding contract with a public utility which will preclude it, for a substantial period of time, from regulating the rates of that utility.22

(b) In the second place, the rate-regulating power is subject to the limitation that it may not be so exercised as to deny the public utility a reasonable return on the fair value of the property which it devotes to the public service; but the police power, in its true sense, is not subject to any such restriction, since it is well settled that it is permissible to require uncompensated obedience to a law which is essentially one of police. Both of these elementary principles are violated if we treat the rate-regulating power as a part of the state's police power.

A true classification of the power to regulate rates, etc., would assimilate it to the power of eminent domain. The state requires a given service and fixes the price at which it shall be rendered.23 Just as the taking of the railroads by the government is a striking illustration of the exercise of this power, although it constitutes the taking of a limited interest or use only, so the taking of an even more limited use of the property, as for example, the requiring of the furnishing of a freight car to be used for the transportation of

544 (1892); German Alliance Insurance Co. v. Kansas, 233 U. S. 389 (1914); Puget Sound Traction Co. v. Reynolds, 244 U. S. 574, 578, 579 (1917).

21 License Cases, 5 How. (U. S.) 504, 582-83 (1847).

22 Detroit v. Detroit Citizens' Street Ry., 184 U. S. 368 (1902); Cleveland v. Cleveland City Ry. Co., 194 U. S. 517 (1904); Minneapolis v. Street Ry. Co., 215 U. S. 417 (1910).

23 It is true that prices may sometimes be regulated, although there is no legal obligation to sell or render service; but it is not believed that this changes the essential situation since in the majority of instances there is a practical compulsion.

a commodity from point X to point Y subjects the property of the carrier to the use of another person, the government determining the compensation for this use. The resemblance to eminent domain is further emphasized by the fact that the enterprise must be affected with a public interest to justify rate- or price-regulation.24 Treating the power as thus related to the power of eminent domain furnishes an adequate basis for the rule that the compensation must be fair, and that the business must be affected with a public interest, neither of which rules is a natural corollary of a classification which would place the rate-regulating power under the police power.

It is not believed, therefore, that the provisions of section 15 are sufficient to confer upon the states the power to control rates, etc., initiated by the President; but even if a different construction were adopted the states would be entirely devoid of power to require the United States to appear as a party respondent in proceedings before their various commissions. As has been pointed out above, such a proceeding would constitute a suit against the United States, and could not be maintained without express permission, and no such permission has been granted. Permission to hale the DirectorGeneral before a commission in order that he may justify his rates, etc., is limited to proceedings before the Interstate Commerce Commission.

Practical considerations, therefore, reënforce the construction which is sustained by a scrutiny of the terms of the act and by such well-settled rules of construction as are applicable. For, if a complaint is filed with a state commission against the corporation owner of the property, it truthfully answers that it is not in control of the rates, etc., complained of and is powerless to accord any relief. The Director-General cannot be called in, for to require his presence would be to subject the United States to the jurisdiction of the state without its permission.

From every point of view, therefore, it seems clear that the state is without authority during federal control to regulate rates, etc., initiated by the President.

Since under General Order No. 28 practically all rates and fares have been specifically determined by the President and have been initiated in the manner provided in the act, the question as to 24 German Alliance Insurance Co. v. Kansas, 233 U. S. 389 (1914).