Page:Harvard Law Review Volume 32.djvu/349

313 FEDERAL CONTROL OF INTRASTATE RAILROAD RATES 313 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 pubhc interest to justify rate- or price-regulation.^'* 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 classifica- tion 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 Director- General before a commission in order that he may justify his rates, etc., is limited to proceedings before the Interstate Commerce Commission. Practical considerations, therefore, reenforce 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 com- plaint is filed with a state commission against the corporation owner of the property, it truthfully answers that it is not in con- trol 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
 * German Alliance Insurance Co. v. Kansas, 233 U. S. 389 (1914).