300 HARVARD LAW REVIEW tary that the federal government in the exercise of its powers is not dependent upon, nor obHged to defer to, state authority.^ But in certain instances the United States may, under the Con- stitution, permit the continued operation of state authority even in a field which the national government is entitled to occupy and in which it has exerted its activity. Familiar instances of this class of cases are found in the permitted taxation by the states of national banks and railroads incorporated by Congress.* Passing, therefore, the constitutional aspect of the matter — since this seems too clear to require extended discussion — this article will be confined to an examination of the question whether the Federal Control Act has deprived the states of such power as otherwise they might have had to continue the regulation of in- trastate railroad rates, or, while estabHshing federal possession and operation of the railroads, has permitted the continued exercise of state authority in connection with such rates. The answer to this question is to be found, it is believed, in sec- tions lo and 15 of the Federal Control Act, the text of which is printed in the margin.^ At the outset it is to be noted that the
- M'Culloch V. Maryland, 4 Wheat. (U. S.) 316, 424 (1819); Ex parte Siebold, 100
U. S. 371 (1879). In re Debs, 158 U. S. 564, 578 (1895).
- See, for example. Van Allen v. Assessors, 3 Wall. (U. S.) 573 (1865); Railroad Co.
V. Peniston, 18 Wall. (U. S.) 5 (1873).
- "Sec. ID. That carriers while under Federal control shall be subject to all laws
and liabilities as common carriers, whether arising under State or Federal laws or at common law, except in so far as may be inconsistent with the provisions of this act or any other act appUcable to such Federal control or with any order of the President. Actions at law or suits in equity may be brought by and against such carriers and judgments rendered as now provided by law; and Ln any action at law or suit in eqiiity against the carrier, no defense shall be made thereto upon the ground that the carrier is an instrumentality or agency of the Federal Government. Nor shall any such car- rier be entitled to have transferred to a Federal court any action heretofore or here- after instituted by or against it, which action was not so transferable prior to the Federal control of such carrier; and any action which has heretofore been so trans- ferred because of such Federal control or of any act of Congress or official order or proclamation relating thereto shall upon motion of either party be retransferred to the court in which it was originally instituted. But no process, mesne or final, shall be levied against any property under such Federal control. "That during the period of Federal control, whenever in his opinion the public in- terest requires, the President may initiate rates, fares, charges, classifications, regula- tions, and practices by filing the same with the Interstate Commerce Commission, which said rates, fares, charges, classifications, regulations, and practices shall not be suspended by the commission pending final determination. "Said rates, fares, charges, classifications, regulations, and practices shall be rea-
