State ex rel. Blaine v. Wisconsin Telephone Co.

Winslow, C. J. A number of very important and interesting questions were debated in the present case with ability and force. We shall not attempt to discuss them all in this [201] opinion. Most if not all of them will doubtless be presented to the supreme court of the United States in the near future and will there receive comprehensive treatment, and, as that court speaks the final word on all such subjects, it seems that it would be a work of supererogation for this court to write at length upon them now. We feel, however, that when so much labor and ability have been expended in the preparation and argument of a case involving such serious questions, it is only fair that the bench should with promptness respond to the effort made by counsel and meet the issue fairly and squarely instead of evading it. This course seems not only to be the dignified course, but the course demanded by the public interest, and we have concluded, therefore, to briefly state our conclusions on several propositions which seem-to us controlling in this case. There is no question as to the authority of the United States, by virtue of its exclusive war power, to take over and operate the telegraph and telephone lines of the country in time of war. Without seriously questioning this proposition, the' state contends that the power to prescribe rates is a police- power and, being such, is specifically reserved to the states by the proviso at the close of the joint resolution of Congress which specifically says that the laws' and powers of the states in relation to taxation or lawful police regulations are not amended, repealed, impaired, or affected. The term “police power” is very elastic and is used to express different meanings at different times. In its broadest sense it has been -said to include “all legislation and almost every function of civil government.” Sligh v. Kirkwood, 237 U. S. 52, 59, 35 Sup. Ct. 501. In its limited sense and as more frequently used, it includes simply regulations “for the protection of the lives, health, and property of citizens and the promotion of good order and good morals.” Chicago, M. & St. P. R. Co. v. Milwaukee, 97 Wis. 418, 72 N. W. 1118. It is police power in this limited sense which the federal su [202] preme court grants to the states in cases where its exercise affects interstate commerce. Freund, Police Power, § 10. It is in this limited sense, also, that the term is used when it is said in our own decisions and in the decisions of the United States courts that the police power of the state cannot be bargained away either by the legislature or by municipal corporations. Superior v. Roemer, 154 Wis. 345, 141 N. W. 250; Stone v. Mississippi, 101 U. S. 814; Northern Pac. R. Co. v. State ex rel. Duluth, 208 U. S. 583, 28 Sup. Ct. 341. This must be so from the fact that the courts hold that a city may lawfully make a contract which is binding on itself governing rates to be charged by a public utility for its service. Manitowoc v. Manitowoc & N. T. Co. 145 Wis. 13, 129 N. W. 925; Detroit v. Detroit C. St. R. Co. 184 U. S. 368, 22 Sup. Ct. 410. It could not do so if the rate-making power were a police power within the meaning of that term as used in the cases first above cited. The question here is whether the term is used in its broadest sense or in its limited and perhaps ordinary sense in the Congressional resolution. Looking at the purposes to be accomplished and the context, we think it is clear that the term was used in its limited sense. “To take possession . . . assume control . . . and to operate” are broad and sweeping terms. Possession, control, and operation naturally import absolute power over the subject without interference from others. Control without the power to fix rates is not real control. Unquestionably the government could exclude every private user if such course were deemed necessary for war purposes. If it could exclude all private users it woúld' seem to follow that it may determine on what terms private persons may be allowed to use the lines. Pro hac vice the telephone lines belong to the government and are part of the enginery with which the war is to be won. It seems unthinkable that the government should deliberately surrender to state agencies in forty-eight states and to municipal agen203 des in many cities the power to prescribe on what terms private persons might use government property. We acquit Congress of this absurd intention. The police regulations referred to in the proviso are undoubtedly such regulations intended to insure the lives, health, moral and physical welfare and good order of the public and of the employees as the state may see fit to prescribe. There are other considerations which seem to us equally conclusive against the maintenance of this action by the state. The principle has-been very definitely settled by the federal supreme court that when the United States by its officers is rightfully in possession of property and is using the same in governmental operations, such use is not to be interfered with by injunctions or other writs issued out of state courts in actions brought against such officers or agents. The reason is that such actions are, in effect, actions brought against the sovereign, and the sovereign cannot be sued except with its own consent and in courts of its own choice. 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; Wells v. Roper, 246 U. S. 335, 38 Sup. Ct. 317. If such actions were to be maintained and injunctive relief granted, the result would be either that the sovereign would be practically coerced in an action to which it was not a party, or that the sovereign would disregard the brutum ful-men of the trial court and render the decree nugatory and ridiculous. In the present case, if the injunction were to be granted, all that the government would have to do would be to place another set of servants in possession of the telephone system and proceed to operate it as before. The right of the government is not to be interfered with behind its back. International P. S. Co. v. Bruce, supra. This does not mean that United States officers or agents may not be held personally liable in actions of tort to private persons whose rights of person or property they have wrongfully invaded [204] or injured while acting under the authority of the United States. Belknap v. Schild, supra. Nor does it mean immunity from injunctive process on the part of such officer in case of threatened injury to property rights. Philadelphia Co. v. Stimson, 223 U. S. 605, 32 Sup. Ct. 340. The principles stated are decisive of the present case. If they are necessary in time of peace they are tenfold more so in time of war. The plight of a government which must submit the control of any essential branch of its war activities to another government is serious indeed. It cannot expect to escape disaster, for successful' war means practically absolutism for the time being. We have received since the argument of the case the recently rendered opinions of four courts of last resort in dealing with similar cases, viz.: Railroad Comm. v. Cumberland, etc. Co. (La.) 82 South. —; Southwestern, etc. Co. v. Oklahoma (Okla.) 181 Pac. 487; Public Service Comm. v. New England T. & T. Co. (Mass.) 122 N. E. 567; State v. Burleson (Ala.) 82 South. —; and State ex rel. Payne v. Dakota Cent. Tel. Co. (S. Dak.) 171 N. W. 277. Of these decisions the first four support the conclusion reached in this opinion, while the last is to the contrary. We have been furnished with opinions of several nisi prius courts, state and federal, the majority of which support the view here taken. We are satisfied that the injunction should be denied. By the Court. — Complaint dismissed, without costs.