The effect of the Act of September 3, 5, 1916, entitled "An Act
to establish an eight-hour day for employees of carriers engaged in
interstate and foreign commerce, and for other purposes," c. 436,
39 Stat. 721, is not only to establish permanently an eight-hour
standard for work and wages as between the carriers and employees
affected, but also to fix a scale of minimum wages, to-wit, the
rate of wages then existing, for the eight-hour day and
proportionately for overtime, to be in force only during the
limited period defined by the act.
Viewed as an act establishing an eight-hour day as the standard
of service by employees, the statute is clearly within the power of
Congress under the commerce clause.
The power to establish an eight-hour day does not beget the
power to fix wages.
In an emergency arising from a nationwide dispute over wages
between railroad companies and their train operatives, in which a
general strike, commercial paralysis, and grave loss and suffering
overhang the country because the disputants are unable to
agree,
Page 243 U. S. 333
Congress has power to prescribe a standard of minimum wages, not
confiscatory in its effects but obligatory on both parties, to be
in force for a reasonable time, in order that the calamity may be
averted and that opportunity may be afforded the contending parties
to agree upon and substitute a standard of their own.
Where a particular subject lies within the commerce power, the
extent to which it may be regulated depends on its nature and the
appropriateness of means.
The business of common carriers by rail is in one aspect a
public business, because of the interest of society in its
continued operation and rightful conduct, and this public interest
gives rise to a public right of regulation to the full extent
necessary to secure and protect it.
Although emergency may not create power (
Ex Parte
Milligan, 4 Wall. 2), it may afford reason for
exerting a power already enjoyed.
The act above cited, in substance and effect, amounts to an
exertion of the power of Congress, existing under the
circumstances, to arbitrate compulsorily the dispute between the
parties -- a power susceptible of exercise by direct legislation as
well as by enactment of other appropriate means for reaching the
same result.
Viewed as an act fixing wages, the statute merely illustrates
the character of regulation essential, and hence permissible, for
the protection of the public right.
The act does not invade the private rights of carriers, since
all their business and property must be deemed subject to the
regulatory power to insure fit relief by appropriate means.
The act does not invade private rights of employees, since their
rights to demand wages according to their desire and to leave the
employment, individually or in concert if the demand is refused are
not such as they might be if the employment were in private
business, but are necessarily subject to limitation by Congress,
the employment accepted being in a business charged with a public
interest which Congress may regulate under the commerce power.
The act is not wanting in equality of protection either because
it exempts certain short-line and electric railroads or because it
deals with the wages of those employees only who are engaged in the
movement of trains, they being the class concerned in the dispute
which threatened interruption of commerce.
Whether the provision for penalties is unconstitutional will not
be determined in a suit not concerning penalties.
The history of the dispute, the inquiries and circumstances
which culminated in the legislation, the nature of the provisions
made and a comparison of them with the issues which existed between
the disputant,
Page 243 U. S. 334
refute the claim that the act was passed without consideration,
and in arbitrary disregard of the right of the carriers an the
public.
After the paramount duty to enforce the Constitution, the very
highest of judicial duties is to give effect to the legislative
will, with judgment uninfluenced by those consideration which
belong to the legislature alone.
The contention that the act is unworkable is without merit.
The case is stated in the opinion.
Page 243 U. S. 340
MR. CHIEF JUSTICE WHITE delivered the opinion of the Court.
Was there power in Congress, under the circumstances existing,
to deal with the hours of work and wages of railroad employees
engaged in interstate commerce, is the principal question here to
be considered. Its solution, as well as that of other questions
which also arise, will be clarified by a brief statement of the
conditions out of which the controversy arose.
Two systems controlled in March, 1916, concerning wages of
railroad employees -- one, an eight-hour standard of work and wages
with additional pay for overtime, governing on about fifteen
percent of the railroads; the other, a stated mileage task of 100
miles to be performed during ten hours, with extra pay for any
excess, in force on about eighty-five percent of the roads. The
organizations representing the employees of the railroads in that
month made a formal demand on the employers that, as to all engaged
in the movement of trains, except passenger trains, the 100-mile
task be fixed for eight hours, provided that it was not so done as
to lower wages, and provided that an extra allowance for overtime,
calculated by the minute at one and one-half times the rate of the
regular
Page 243 U. S. 341
hours' service, be established. The demand made this standard
obligatory on the railroads, but optional on the employees, as it
left the right to the employees to retain their existing system on
any particular road if they elected to do so. The terms of the
demand were as follows, except the one which reserved the option,
which is in the margin, [
Footnote
1] and others making Article 1 applicable to yard and switching
and hostling service.
"Article 1(a) In all road service 100 miles or less, eight hours
or less will constitute a day except in passenger service. Miles in
excess of 100 will be paid for at the same rate per mile."
"(b) On runs of 100 miles or less, overtime will begin at the
expiration of eight hours."
"(c) On runs of over 100 miles, overtime will begin when the
time on duty exceeds the miles run divided by 12 1/2 miles per
hour."
"(d) All overtime to be computed on the minute basis and paid
for at time and one-half times the
pro rata rate."
"(e) No one shall receive less for eight hours or 100 miles than
they now receive for a minimum day or 100 miles for the class of
engine used or for service performed."
"(f) Time will be computed continuously from time required for
duty until release from duty and responsibility at end of day or
run. "
Page 243 U. S. 342
The employers refused the demand, and the employees, through
their organizations, by concert of action, took the steps to call a
general strike of all railroad employees throughout the whole
country.
The President of the United States invited a conference between
the parties. He proposed arbitration. The employers agreed to it,
and the employees rejected it. The President then suggested the
eight-hour standard of work and wages. The employers rejected this,
and the employees accepted it. Before the disagreement was
resolved, the representatives of the employees abruptly called a
general strike throughout the whole country, fixed for an early
day. The President, stating his efforts to relieve the situation,
and pointing out that no resources at law were at his disposal for
compulsory arbitration, to save the commercial disaster, the
property injury and the personal suffering of all, not to say
starvation, which would be brought to many among the vast body of
the people if the strike was not prevented, asked Congress, first,
that the eight-hour standard of work and wages be fixed by law, and
second, that an official body be created to observe during a
reasonable time the operation of the legislation, and that an
explicit assurance be given that, if the result of such observation
established such an increased cost to the employers as justified an
increased rate, the power would be given to the Interstate Commerce
Commission to authorize it. Congress responded by enacting the
statute whose validity, as we have said, we are called upon to
consider. Act of September 3, 5, 1916, 39 Stat. 721, c. 436. The
duty to do so arises from the fact that the employers, unwilling to
accept the act and challenging the constitutional power of Congress
to enact it, began this typical suit against the officers of
certain labor unions and the United States District Attorney to
enjoin the enforcement of the statute. The law was made to take
effect only on the first of January, 1917. To expedite the
Page 243 U. S. 343
final decision before that date, the representatives of the
labor unions were dropped out, agreements essential to hasten were
made, and it was stipulated that, pending the final disposition of
the cause, the carriers would keep accounts of the wages which
would have been earned if the statute was enforced so as to enable
their payment if the law was finally upheld. Stating its desire to
cooperate with the parties in their purpose to expedite the cause,
the court below, briefly announcing that it was of opinion that
Congress had no constitutional power to enact the statute, enjoined
its enforcement, and, as the result of the direct appeal which
followed, we come, after elaborate oral and printed arguments, to
dispose of the controversy.
All the propositions relied upon and arguments advanced
ultimately come to two questions: first, the entire want of
constitutional power to deal with the subjects embraced by the
statute, and second, such abuse of the power, if possessed, as
rendered its exercise unconstitutional. We will consider these
subjects under distinct propositions separately.
I.
The entire want of constitutional power to deal with the
subjects embraced by the statute.
To dispose of the contentions under this heading calls at once
for a consideration of the statute, and we reproduce its title and
text so far as is material.
"An Act to Establish an Eight-hour Day for Employees of Carriers
Engaged in Interstate and Foreign Commerce, and for Other
Purposes."
"
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled, That,
beginning January first, nineteen hundred and seventeen, eight
hours shall, in contracts for labor and service, be deemed a day's
work and the measure or standard of a day's work for the purpose of
reckoning the compensation for services of all employees who are
now or may hereafter be employed by any common carrier by railroad,
except
Page 243 U. S. 344
railroads independently owned and operated not exceeding one
hundred miles in length, electric street railroads, and electric
interurban railroads, which is subject to the provisions of the Act
of February fourth, eighteen hundred and eighty-seven, entitled 'An
Act to Regulate Commerce,' as amended, and who are now or may
hereafter be actually engaged in any capacity in the operation of
trains used for the transportation of persons or property on
railroads, except railroads independently owned and operated not
exceeding one hundred miles in length, electric street railroads,
and electric interurban railroads. . . ."
"Sec. 2. That the President shall appoint a commission of three,
which shall observe the operation and effects of the institution of
the eight-hour standard workday as above defined and the facts and
conditions affecting the relations between such common carriers and
employees during a period of not less than six months nor more than
nine months, in the discretion of the commission, and within thirty
days thereafter such commission shall report its findings to the
President and Congress; . . ."
"Sec. 3. That, pending the report of the commission herein
provided for and for a period of thirty days thereafter, the
compensation of railway employees subject to this act for a
standard eight-hour workday shall not be reduced below the present
standard day's wage, and for all necessary time in excess of eight
hours, such employees shall be paid at a rate not less than the
pro rata rate for such standard eight-hour workday."
"Sec. 4. That any person violating any provision of this act
shall be guilty of a misdemeanor and upon conviction shall be fined
not less than $100 and not more than $1,000, or imprisoned not to
exceed one year, or both."
There must be knowledge of the power exerted before determining
whether, as exercised, it was constitutional, and we must hence
settle a dispute on that question before going further. Only an
eight-hour standard for work
Page 243 U. S. 345
and wages was provided, is the contention on the one side, and,
in substance, only a scale of wages was provided, is the argument
on the other. We are of the opinion that both are right and in a
sense both wrong insofar as it is assumed that the one excludes the
other. The provision of § 1 that "eight hours shall . . . be deemed
a day's work and the measure or standard of a day's work" leaves no
doubt about the first proposition. As to the second, this is
equally true because of the provision of § 3, forbidding any
lowering of wages as a result of applying the eight-hour standard
established by § 1 during the limited period prescribed in § 2.
Both provisions are equally mandatory. If it be said that the
second, the depriving of all power to change the wages during the
fixed period, is but ancillary to the first command, the standard
of eight hours, that would not make the prohibition as to any
change of wages any the less a fixing of wages. It certainly would
not change the question of power unless it could be assumed that
the legislative power to fix one thing, the standard of hours,
could be enforced by exerting the power to do another, fix the
wages, although there was no legislative authority to exert the
latter power. The doing of one thing which is authorized cannot be
made the source of an authority to do another thing which there is
no power to do. If to deprive employer and employee of the right to
contract for wages and to provide that a particular rate of wages
shall be paid for a specified time is not a fixing of wages, it is
difficult to see what would be.
However, there is this very broad difference between the two
powers exerted. The first, the eight-hour standard, is permanently
fixed. The second, the fixing of the wage standard resulting from
the prohibition against paying lower wages, is expressly limited to
the time specified in § 2. It is therefore not permanent, but
temporary, leaving the employers and employees free as to
Page 243 U. S. 346
the subject of wages to govern their relations by their own
agreements after the specified time. Concretely stated, therefore,
the question is this: did Congress have power, under the
circumstances stated -- that is, in dealing with the dispute
between the employers and employees as to wages -- to provide a
permanent eight-hour standard and to create by legislative action a
standard of wages to be operative upon the employers and employees
for such reasonable time as it deemed necessary to afford an
opportunity for the meeting of the minds of employers and employees
on the subject of wages? Or, in other words, did it have the power,
in order to prevent the interruption of interstate commerce, to
exert its will to supply the absence of a wage scale resulting from
the disagreement as to wages between the employers and employees,
and to make its will on that subject controlling for the limited
period provided for?
Coming to the general considerations by which both subjects must
be controlled, to simplify the analysis for the purpose of
considering the question of inherent power, we put the question as
to the eight-hour standard entirely out of view, on the ground that
the authority to permanently establish it is so clearly sustained
as to render the subject not disputable. [
Footnote 2]
That common carriers by rail in interstate commerce are within
the legislative power of Congress to regulate commerce is not
subject to dispute. [
Footnote
3] It is equally certain that, where a particular subject is
within such authority, the extent of regulation depends on the
nature and character of the subject and what is appropriate to its
regulation. [
Footnote 4] The
powers possessed by government to deal with
Page 243 U. S. 347
a subject are neither inordinately enlarged or greatly dwarfed
because the power to regulate interstate commerce applies. This is
illustrated by the difference between the much greater power of
regulation which may be exerted as to liquor and that which may be
exercised as to flour, dry goods, and other commodities. It is
shown by the settled doctrine sustaining the right by regulation
absolutely to prohibit lottery tickets, and by the obvious
consideration that such right to prohibit could not be applied to
pig iron, steel rails, or most of the vast body of commodities.
What was the extent of the power, therefore, of Congress to
regulate, considering the scope of regulation which government had
the right to exert with reference to interstate commerce carriers,
when it came to exercise its legislative authority to regulate
commerce, is the matter to be decided. That the business of common
carriers by rail is in a sense a public business because of the
interest of society in the continued operation and rightful conduct
of such business, and that the public interest begets a public
right of regulation to the full extent necessary to secure and
protect it, is settled by so many decisions, state and federal, and
is illustrated by such a continuous exertion of state and federal
legislative power, as to leave no room for question on the subject.
It is also equally true that, as the right to fix by agreement
between the carrier and its employees a standard of wages to
control their relations is primarily private, the establishment and
giving effect to such agreed-on standard is not subject to be
controlled or prevented by public authority. But, taking all these
propositions as undoubted, if the situation which we have described
and with which the act of Congress dealt be taken into view -- that
is, the dispute between the employers and employees as to a
standard of wages, their failure to agree, the resulting absence of
such standard, the entire interruption of interstate commerce which
was threatened,
Page 243 U. S. 348
and the infinite injury to the public interest which was
imminent -- it would seem inevitably to result that the power to
regulate necessarily obtained, and was subject to be applied to the
extent necessary to provide a remedy for the situation, which
included the power to deal with the dispute, to provide by
appropriate action for a standard of wages to fill the want of one
caused by the failure to exert the private right on the subject,
and to give effect by appropriate legislation to the regulations
thus adopted. This must be unless it can be said that the right to
so regulate as to save and protect the public interest did not
apply to a case where the destruction of the public right was
imminent as the result of a dispute between the parties and their
consequent failure to establish by private agreement the standard
of wages which was essential -- in other words, that the existence
of the public right and the public power to preserve it was wholly
under the control of the private right to establish a standard by
agreement. Nor is it an answer to this view to suggest that the
situation was one of emergency, and that emergency cannot be made
the source of power.
Ex Parte
Milligan, 4 Wall. 2. The proposition begs the
question, since, although an emergency may not call into life a
power which has never lived, nevertheless emergency may afford a
reason for the exertion of a living power already enjoyed. If acts
which, if done, would interrupt, if not destroy, interstate
commerce may be by anticipation legislatively prevented, by the
same token, the power to regulate may be exercised to guard against
the cessation of interstate commerce, threatened by a failure of
employers and employees to agree as to the standard of wages, such
standard being an essential prerequisite to the uninterrupted flow
of interstate commerce.
But, passing this, let us come to briefly recapitulate some of
the more important of the regulations which have been enacted in
the past in order to show how necessarily the
Page 243 U. S. 349
exertion of the power to enact them manifests the existence of
the legislative authority to ordain the regulation now before us,
and how completely the whole system of regulations adopted in the
past would be frustrated or rendered unavailing if the power to
regulate under the conditions stated, which was exerted by the act
before us, was not possessed. That regulation gives the authority
to fix for interstate carriage a reasonable rate, subject to the
limitation that rights of private property may not be destroyed by
establishing them on a confiscatory basis, is settled by long
practice and decisions. [
Footnote
5] That the power to regulate also extends to many phases of
the business of carriage, and embraces the right to control the
contract power of the carrier insofar as the public interest
requires such limitation, has also been manifested by repeated acts
of legislation as to bills of lading, tariffs, and many other
things too numerous to mention. [
Footnote 6] Equally certain is it that the power has been
exercised so as to deal not only with the carrier, but with its
servants, and to regulate the relation of such servants not only
with their employers, but between themselves. [
Footnote 7] Illustrations of the latter are
afforded by the Hours of Service Act, the Safety Appliance Act, and
the Employers' Liability Act. Clear
Page 243 U. S. 350
also is it that an obligation rests upon a carrier to carry on
its business, and that conditions of cost or other obstacles afford
no excuse and exempt from no responsibility which arises from a
failure to do so, and also that government possesses the full
regulatory power to compel performance of such duty. [
Footnote 8]
In the presence of this vast body of acknowledged powers, there
would seem to be no ground for disputing the power which was
exercised in the act which is before us so as to prescribe by law
for the absence of a standard of wages, caused by the failure to
exercise the private right as a result of the dispute between the
parties -- that is, to exert the legislative will for the purpose
of settling the dispute, and bind both parties to the duty of
acceptance and compliance, to the end that no individual dispute or
difference might bring ruin to the vast interests concerned in the
movement of interstate commerce, for the express purpose of
protecting and preserving which the plenary legislative authority
granted to Congress was reposed. This result is further
demonstrated, as we have suggested, by considering how completely
the purpose intended to be accomplished by the regulations which
have been adopted in the past would be rendered unavailing or their
enactment inexplicable if the power was not possessed to meet a
situation like the one with which the statute dealt. What would be
the value of the right to a reasonable rate if all movement in
interstate commerce could be stopped as a result of a mere dispute
between the parties or their failure to exert a primary private
right concerning a matter of interstate commerce? Again, what
purpose would be subserved by all the regulations established to
secure the enjoyment by the public of an efficient and reasonable
service if there was no power in government to prevent
Page 243 U. S. 351
all service from being destroyed? Further yet, what benefits
would flow to society by recognizing the right, because of the
public interest, to regulate the relation of employer and employee
and of the employees among themselves, and to give to the latter
peculiar and special rights safeguarding their persons, protecting
them in case of accident, and giving efficient remedies for that
purpose, if there was no power to remedy a situation created by a
dispute between employers and employees as to rate of wages, which,
if not remedied, would leave the public helpless, the whole people
ruined, and all the homes of the land submitted to a danger of the
most serious character? And finally, to what derision would it not
reduce the proposition that government had power to enforce the
duty of operation if that power did not extend to doing that which
was essential to prevent operation from being completely stopped by
filling the interregnum created by an absence of a conventional
standard of wages, because of a dispute on that subject between the
employers and employees, by a legislative standard binding on
employers and employees for such a time as might be deemed by the
legislature reasonably adequate to enable normal conditions to come
about as the result of agreements as to wages between the
parties?
We are of opinion that the reasons stated conclusively establish
that, from the point of view of inherent power, the act which is
before us was clearly within the legislative power of Congress to
adopt, and that, in substance and effect, it amounted to an
exertion of its authority under the circumstances disclosed to
compulsorily arbitrate the dispute between the parties by
establishing as to the subject matter of that dispute a legislative
standard of wages operative and binding as a matter of law upon the
parties -- a power nonetheless efficaciously exerted because
exercised by direct legislative act, instead of by the enactment of
other and appropriate means providing for
Page 243 U. S. 352
the bringing about of such result. If it be conceded that the
power to enact the statute was in effect the exercise of the right
to fix wages where, by reason of the dispute, there had been a
failure to fix by agreement, it would simply serve to show the
nature and character of the regulation essential to protect the
public right and safeguard the movement of interstate commerce, not
involving any denial of the authority to adopt it.
And this leaves only to be generally considered whether the
right to exercise such a power under the conditions which existed
was limited or restrained by the private rights of the carriers or
their employees.
(a)
As to the carrier. As engaging in the business of
interstate commerce carriage subject the carrier to the lawful
power of Congress to regulate irrespective of the source whence the
carrier draws its existence, and as also, by engaging in a business
charged with a public interest, all the vast property and every
right of the carrier become subject to the authority to regulate
possessed by Congress to the extent that regulation may be exerted,
considering the subject regulated and what is appropriate and
relevant thereto, it follows that the very absence of the scale of
wages by agreement, and the impediment and destruction of
interstate commerce which was threatened, called for the
appropriate and relevant remedy -- the creation of a standard by
operation of law, binding upon the carrier.
(b)
As to the employee. Here again it is obvious that
what we have previously said is applicable and decisive, since,
whatever would be the right of an employee engaged in a private
business to demand such wages as he desires, to leave the
employment if he does not get them, and, by concert of action, to
agree with others to leave upon the same condition, such rights are
necessarily subject to limitation when employment is accepted in a
business charged with a public interest and as to which the power
to regulate commerce possessed by Congress applied, and the
Page 243 U. S. 353
resulting right to fix, in case of disagreement and dispute, a
standard of wages, as we have seen, necessarily obtained.
In other words, considering comprehensively the situation of the
employer and the employee in the light of the obligations arising
from the public interest and of the work in which they are engaged,
and the degree of regulation which may be lawfully exerted by
Congress as to that business, it must follow that the exercise of
the lawful governmental right is controlling. This results from the
considerations which we have previously pointed out and which we
repeat, since, conceding that, from the point of view of the
private right and private interest, as contradistinguished from the
public interest, the power exists between the parties, the
employers and employees, to agree as to a standard of wages free
from legislative interference, that right in no way affects the
lawmaking power to protect the public right and create a standard
of wages resulting from a dispute as to wages and a failure
therefore to establish by consent a standard. The capacity to
exercise the private right free from legislative interference
affords no ground for saying that legislative power does not exist
to protect the public interest from the injury resulting from a
failure to exercise the private right. In saying this, of course,
it is always to be borne in mind that, as to both carrier and
employee, the beneficent and ever-present safeguards of the
Constitution are applicable, and therefore both are protected
against confiscation and against every act of arbitrary power
which, if given effect to, would amount to a denial of due process,
or would be repugnant to any other constitutional right. And this
emphasizes that there is no question here of purely private right,
since the law is concerned only with those who are engaged in a
business charged with a public interest, where the subject dealt
with as to all the parties is one involved in that business, and
which we have seen comes under the control of the right to regulate
to the extent that the power
Page 243 U. S. 354
to do so is appropriate or relevant to the business
regulated.
Having thus adversely disposed of the contentions as to the
inherent want of power, we come to consider all the other
propositions which group themselves under a common heading, that
is:
II.
Such an abuse of the power, if possessed, as rendered
its exercise unconstitutional.
We shall consider the various contentions which come under this
heading under separate subdivisions.
(a)
Equal protection of the laws and penalties.
The want of equality is based upon two considerations. The one
is the exemption of certain short line and electric railroads. We
dismiss it because it has been adversely disposed of by many
previous decisions. [
Footnote
9] The second rests upon the charge that unlawful inequality
results because the statute deals not with all, but only with the
wages of employees engaged in the movement of trains. But such
employees were those concerning whom the dispute as to wages
existed, growing out of which the threat of interruption of
interstate commerce arose -- a consideration which establishes an
adequate basis for the statutory classification.
As to the penalties, it suffices to say that in this case a
recovery of penalties is not asked, and consequently the subject
may well be postponed until it actually arises for decision.
[
Footnote 10]
Page 243 U. S. 355
(b)
Want of due process resulting from the improvidence with
which the statute was enacted and the impossibility in practice of
giving effect to its provisions; in other words, as stated in the
argument, its "unworkability."
The contention virtually is that, conceding the legislative
power under the circumstances stated to fix a standard of wages,
such authority necessarily contemplates consideration before
action, and not a total and obvious disregard of every right of the
employer and his property -- a want of consideration and a
disregard which, it is urged, appear on the face of the statute,
and which cause it therefore to amount to a decision without a
hearing, and to a mere arbitrary bestowal of millions by way of
wages upon employees, to the injury not only of the employer, but
of the public, upon whom the burden must necessarily fall. Upon the
assumption that unconstitutionality would result if there be ground
for the propositions, [
Footnote
11] let us test them. In the first place, as we have seen,
there is no room for question that it was the dispute between the
parties, their failure to agree as to wages, and the threatened
disruption of interstate commerce caused by that dispute which was
the subject which called for the exertion of the power to regulate
commerce, and which was dealt with by the exertion of that power
which followed. In the second place, all the contentions as to want
of consideration sustaining the action taken are disposed of by the
history we have given of the events out of which the controversy
grew, the public nature of the dispute, the interposition of the
President, the call by him upon Congress for action, in conjunction
with the action taken -- all demonstrating not unwitting action or
a failure to consider, whatever may be the room, if any, for a
divergence of opinion as to the want of wisdom shown by the action
taken.
But, to bring the subject to a closer analysis, let us
briefly
Page 243 U. S. 356
recall the situation, the conditions dealt with, and the terms
of the statute. What was the demand made by the employees? A
permanent agreement as to wages by which the period should be
shortened in which the fixed mileage task previously existing
should be performed, and an allowance to be made of extra pay by
the minute at one and one-half times the regular pay for any
overtime required to perform the task if it was not done in the
reduced time, with a condition that no reduction in wages should
occur from putting the demands into effect, and also that, in that
event, their operation should be binding upon the employers and
optional on the employees. What was the real dispute? The employers
insisted that this largely increased the pay, because the allotted
task would not be performed in the new and shorter time, and a
large increase for overtime would result. The employees, on the
other hand, insisted that, as the task would be unchanged and would
be performed in the shorter hours, there would be no material, or,
at all events, no inordinate, increase of pay. What did the statute
do in settling these differences? It permanently applied an
eight-hour standard for work and wages which existed and had been
in practice on about fifteen percent of the railroads. It did not
fix the amount of the task to be done during those hours, thus
leaving that to the will of the parties. It yielded in part to the
objections of the employers by permitting overtime only if
"necessary," and it also absolutely rejected, in favor of the
employers and against the employees, the demand for an increased
rate of pay during overtime, if there was any, and confined it to
the regular rate, and it moreover rejected the option in favor of
the employees by making the law obligatory upon both parties. In
addition, by the provision prohibiting a lower rate of wages under
the new system than was previously paid, it fixed the wages for
such period. But this was not a permanent fixing, but, in the
nature of things, a temporary one which left the will
Page 243 U. S. 357
of the employers and employees to control at the end of the
period, if their dispute had then ceased.
Considering the extreme contentions relied upon in the light of
this situation, we can discover no basis upon which they may rest.
It certainly is not afforded because of the establishment of the
eight-hour standard, since that standard was existing, as we have
said, on about fifteen percent of the railroads, had already been
established by act of Congress as a basis for work on government
contracts, and had been upheld by this Court in sustaining state
legislation. [
Footnote 12]
It certainly cannot be said that the act took away from the
parties, employers and employees, their private right to contract
on the subject of a scale of wages, since the power which the act
exerted was only exercised because of the failure of the parties to
agree, and the resulting necessity for the lawmaking will to supply
the standard rendered necessary by such failure of the parties to
exercise their private right. Further, in view of the provisions of
the act narrowing and limiting the demands made, the statute
certainly affords no ground for the proposition that it arbitrarily
considered only one side of the dispute, to the absolute and total
disregard of the rights of the other, since it is impossible to
state the modifications which the statute made of the demands
without, by the very words of the statement, manifesting that there
was an exertion of legislative discretion and judgment in acting
upon the dispute between the parties. How can this demonstration
fail to result if it be stated that the scope of the task to be
performed in the eight-hour period was not expressed, but was left
therefore to adjustment between the parties; that overtime was only
permitted if "necessary;" and that extra pay for
Page 243 U. S. 358
overtime was rejected and regular rate of pay substituted?
Conceding that there would necessarily result from the
enforcement of the statute an increase of pay during the period for
which the statute forbade a reduction, such concession would not
bring the statute within the grounds stated. The right to meet the
situation caused by the dispute and to fix a standard which should
be binding upon both parties included, of course, the legislative
authority to take into consideration the elements of difference,
and, in giving heed to them all, to express such legislative
judgment as was deemed best under the circumstances.
From this it also follows that there is no foundation for the
proposition that arbitrary action in total disregard of the private
rights concerned was taken, because the right to change or lower
the wages was left to be provided for by agreement between the
parties after a reasonable period which the statute fixed. This
must be unless it can be said that to afford an opportunity for the
exertion of the private right of agreement as to the standard of
wages was in conflict with such right.
When it is considered that no contention is made that, in any
view, the enforcement of the act would result in confiscation, the
misconception upon which all the propositions proceed becomes
apparent. Indeed, in seeking to test the arguments by which the
propositions are sought to be supported, we are of opinion that it
is evident that, in substance, they assert not that no legislative
judgment was exercised, but that, in enacting the statute, there
was an unwise exertion of legislative power, begotten either from
some misconception or some mistaken economic view, or partiality
for the rights of one disputant over the other, or some unstated
motive which should not have been permitted to influence action.
But to state such considerations is to state also the entire want
of judicial power to
Page 243 U. S. 359
consider them -- a view which therefore has excluded them
absolutely from our mind, and which impels us as a duty to say that
we have not in the slightest degree passed upon them. While it is a
truism to say that the duty to enforce the Constitution is
paramount and abiding, it is also true that the very highest of
judicial duties is to give effect to the legislative will, and, in
doing so, to scrupulously abstain from permitting subjects which
are exclusively within in the field of legislative discretion to
influence our opinion or to control judgment.
Finally, we say that the contention that the act was void and
could not be made operative because of the unworkability of its
provisions is without merit, since we see no reason to doubt that,
if the standard fixed by the act were made applicable and a candid
effort followed to carry it out, the result would be without
difficulty accomplished. It is true that it might follow that, in
some cases, because of particular terms of employment or
exceptional surroundings, some change might be necessary, but these
exceptions afford no ground for holding the act void because its
provisions are not susceptible in practice of being carried
out.
Being of the opinion that Congress had the power to adopt the
act in question, whether it be viewed as a direct fixing of wages
to meet the absence of a standard on that subject, resulting from
the dispute between the parties, or as the exertion by Congress of
the power which it undoubtedly possessed to provide by appropriate
legislation for compulsory arbitration -- a power which inevitably
resulted from its authority to protect interstate commerce in
dealing with a situation like that which was before it -- we
conclude that the court below erred in holding the statute was not
within the power of Congress to enact, and in restraining its
enforcement, and its decree therefore must be, and it is, reversed,
and the cause remanded with directions to dismiss the bill.
And it is so ordered.
Page 243 U. S. 360
[
Footnote 1]
"Article 4. Any rates of pay, including excess mileage or
arbitrary differentials that are higher, or any rules or conditions
of employment contained in individual schedules in effect January
1, 1916, that are more favorable to the employees, shall not be
modified or affected by any settlement reached in connection with
these proposals. The general committee representing the employees
on each railroad will determine which is preferable and advise the
officers of their company. Nothing in the settlement that may be
reached on the above submitted articles is to be construed to
deprive the employees on any railroad from retaining their present
rules and accepting any rates that may be agreed upon or retaining
their present rates and accepting any rules that may be agreed
upon."
[
Footnote 2]
Baltimore & Ohio R. Co. v. Interstate Commerce
Commission, 221 U. S. 612;
Missouri, Kansas & Texas Ry. Co. v. United States,
231 U. S. 112.
[
Footnote 3]
United States v. Delaware & Hudson Co.,
213 U. S. 366.
[
Footnote 4]
M'Culloch v.
Maryland, 4 Wheat. 316,
17 U. S.
421-423;
Interstate Commerce Commission v.
Brinson, 154 U. S. 447,
154 U. S. 472;
Lottery Case, 188 U. S. 321;
Clark Distilling Co. v. Western Maryland Ry. Co.,
242 U. S. 311.
[
Footnote 5]
Chicago, Burlington & Quincy R. Co. v. Iowa,
94 U. S. 155,
94 U. S. 161;
Stone v. Farmers' Loan & Trust Co., 116 U.
S. 307;
Interstate Commerce Commission v. Chicago,
Rock Island & Pacific Ry. Co., 218 U. S.
88;
Minnesota Rate Cases, 230 U.
S. 352.
[
Footnote 6]
New York, New Haven & Hartford R. Co. v. Interstate
Commerce Commission, 220 U. S. 361;
Atlantic Coast Line R. Co. v. Riverside Mills,
219 U. S. 186;
Texas & Pacific Railway Co. v. Abilene Cotton Oil Co.,
204 U. S. 426;
Adams Exp. Co. v. Croninger, 226 U.
S. 491;
Boston & Maine Railroad v. Hooker,
233 U. S. 97.
[
Footnote 7]
Johnson v. Southern Pacific Company, 196 U. S.
1;
Employers' Liability Cases, 207 U.
S. 463;
Baltimore & Ohio R. Co. v. Interstate
Commerce Commission, 221 U. S. 612;
Southern Railway Co. v. United States, 222 U. S.
20;
Second Employer's Liability Cases,
223 U. S. 1.
[
Footnote 8]
Atlantic Coast Line R. Co. v. North Carolina Corp.
Commission, 206 U. S. 1,
206 U. S. 26;
Missouri Pacific Railway v. Kansas, 216 U.
S. 262,
216 U. S.
278.
[
Footnote 9]
Dow v. Beidelman, 125 U. S. 680;
Chicago, Rock Island & Pacific Ry. Co. v. Arkansas,
219 U. S. 453;
Omaha & Council Bluffs Street Ry. Co. v. Interstate
Commerce Commission, 230 U. S. 324;
Chesapeake & Ohio Ry. Co. v. Conley, 230 U.
S. 513,
230 U. S.
522-524;
St. Louis, Iron Mountain & Southern Ry.
Co. v. Arkansas, 240 U. S. 518.
[
Footnote 10]
United States v. Delaware & Hudson Co.,
213 U. S. 366,
213 U. S. 417;
Grenada Lumber Co. v. Mississippi, 217 U.
S. 433,
217 U. S. 443;
Southwestern Oil Co. v. Texas, 217 U.
S. 114,
217 U. S. 120;
Western Union Telegraph Co. v. Richmond, 224 U.
S. 160,
224 U. S. 172;
Chesapeake & Ohio Ry. Co. v. Conley, 230 U.
S. 513,
230 U. S.
522.
[
Footnote 11]
McCray v. United States, 195 U. S.
27,
195 U. S.
63.
[
Footnote 12]
United States v. Martin, 94 U. S.
400;
Holden v. Hardy, 169 U.
S. 366;
Ellis v. United States, 206 U.
S. 246;
United States v. Garbish, 222 U.
S. 257;
Miller v. Wilson, 236 U.
S. 373;
Bosley v. McLaughlin, 236 U.
S. 385.
MR. JUSTICE McKENNA, concurring:
It is the contention of the government that the act is an hours
of service law, the intent of Congress being by its enactment "to
proclaim a substantial eight-hour day." The opposing contention is
that
"the language of the act shows that it deals solely with the
construction of contracts and with the standard and amount of
compensation, and not with any limitation upon the hours of
labor."
Upon these opposing contentions the parties respectively assert
and deny the power of Congress to enact the law. The government,
however, further contends that, even viewing the law as a wage law,
Congress, under the commerce clause, had power to pass it.
My purpose is to deal with the meaning of the act. With the
consideration of the power to pass it, I am satisfied with the
opinion.
The title of the act (and to the title of an act we may resort
to resolve ambiguity or to confirm its words) expresses its purpose
to be "to establish an eight-hour day for employees of carriers
engaged in interstate and foreign commerce, and for other
purposes."
The description of the title was repeated in the House of
Representatives by the chairman of the committee who reported the
bill and from whom it has received its designation. Among other
things, he said:
"The law fixes an eight-hour day. We had previously a
sixteen-hour day and a nine-hour day. We now have an eight-hour
day. The only reference to wages is in the language used to hold
in statu quo until the workings of the eight-hour law
could be observed and all other features of the service adjusted to
the eight-hour law."
Explanations of like import were made in the Senate.
The words of the act, I think, support this characterization,
and, it may be assumed, were accepted by Congress as expressing and
securing it, and I think they do so with
Page 243 U. S. 361
fair directness. Whatever involution there may be in them was
caused by the situation to which they were addressed, derangement
of which was sought to be avoided; the situation indeed made use of
"features of the service adjusted" to the law.
The provision of § 1 is:
"That, beginning January first, nineteen hundred and seventeen,
eight hours shall, in contracts for labor and service, be deemed a
day's work and the measure or standard of a day's work for the
purpose of reckoning the compensation for services of all employees
who are now or may hereafter be employed by any common carrier by
railroad, except . . ."
Nothing is fixed but the time of service -- the hours which
shall be deemed a day's work -- the number to be eight. All else --
compensation and conditions -- is left to contract; only, whatever
the compensation, it shall be for a service of eight hours reckoned
(computed) or measured by such time as its determining factor.
Except as so determined, the compensation may be whatever the
carriers and employees may agree upon. Their power of convention
has no other limitation.
The distinction between what is left to the parties and what is
fixed by the law is real. There is certainly a difference between
the prescription of the time of service and the prescription of
compensation for the service, and the difference is observed in the
speech and conduct of men; it is observed in the regulations of
legislation. It has never been supposed that the agitation for an
eight-hour day for labor, or the legislation which has responded to
it, was intended to fix or did fix the rate of wages to be
paid.
Of course, in a sense, the two things are related. The time of
service and the price of service may be said to be the reciprocals
of each other, each the price of the other. There can be no real
estimate of the wages one receives until it is understood what time
one has worked to receive
Page 243 U. S. 362
them. They rise and fall with the increase or decrease of the
time of service. One who works ten hours a day for $5 may be said
to get less than one who works eight hours for the same sum. The
labor of the latter is of greater value to him than the labor of
the ten-hour man is to him. And, correspondingly, the expense to
the employer is greater in the one case than in the other, though
the wages he pays, expressed in terms of money, are the same. It
may be contended that there is no element, therefore, in the
regulation of the price of labor that there is not in the
regulation of the hours of labor. But, as I have said, in the
practice of men and in the examples of legislation, regulation of
one is not regarded as the regulation of the other. In certain
hazardous employments, the hours of labor have been prescribed. It
has not been supposed, certainly not declared, that the power as
exerted was the regulation of wages. The interest of the state has
been assumed to terminate with the hours of service, and its
compensation therefore has been left to the agreement of the
parties.
As examples of legislation, I may adduce
Holden v.
Hardy, 169 U. S. 366,
where a state law was sustained, and
Baltimore & Ohio R.
Co. v. Interstate Commerce Commission, 221 U.
S. 612, where a law of Congress was sustained. Both laws
limited the hours of service, but neither the rate of wages. There
may be also cited
Ellis v. United States, 206 U.
S. 246;
Muller v. Oregon, 208 U.
S. 412;
Bosley v. McLaughlin, 236 U.
S. 385;
Miller v. Wilson, 236 U.
S. 373.
It may be contended that the power that can limit the hours of
service can fix the wages for the service. To this I shall
presently refer. My immediate purpose is the interpretation of the
law under review, and I have only to point out that it is the sense
of the practical world that prescribing the hours of labor is not
prescribing the wages of labor, and Congress has kept the purposes
distinct.
Page 243 U. S. 363
I do not think that other provisions of the act militate against
these views. Section 2 provides for the appointment of a commission
to observe the operation of the law, and this for the reason I have
expressed of the dependence of the cost of the services upon the
time they are rendered. The shorter hours may or may not involve an
increase of expense to the roads, and may or may not require
recompense by an increase of their rates.
Pending the report of the commission, and for thirty days
thereafter, it is provided (§ 3) that compensation shall not be
reduced below the present standard day's wage, and for all
necessary time in excess of eight hours employees shall be paid at
a rate not less than the
pro rata rate for such standard
eight-hour workday.
In a sense, this may be considered as a prescription of wages.
To those roads (85 percent) that have a ten-hour standard the
provision, so far as applicable, may be said to be a change of
compensation. To those (15 percent) having an eight-hour standard,
it is not a change. The effort of the law is to secure an
eight-hour day service, and the "penalty of payment for overtime
service," to quote the government's brief, "is imposed in order to
enforce obedience to the eight-hour provision, as far as
practicable."
But even if § 3 be given a broader effect, it would not give
character to the whole act and make it the exertion of power to
establish permanently a rate of wages. To so consider it would, I
think, be contrary to the intention of Congress, and convert the
expediency for a particular occasion and condition into the rule
for all occasions and conditions.
So far as the fate of the pending appeal is concerned, it is not
of much importance whether the act be held to be an hours of
service law or a wage regulating law; but one may be regarded as
having consequences that the other has not. To a carrier, a wage
law is but an item in its accounts, and requiring, it may be, an
adjustment of its
Page 243 U. S. 364
operations, the expense to be recompensed through its rates. If
it be said that rates cannot be changed at will, but only by
permission of authority, I cannot think that permission will not be
given if it be necessary to fulfil the command of the law. Indeed,
if not given, the law might encounter constitutional
restriction.
To an employee, a wage law may be of more vital consequence --
be of the very essence of his life -- involving factors, many and
various, which he alone can know and estimate, and which, besides,
might not have an enduring constancy and be submissive to a
precedent judgment. There well might be hesitation to displace him
and substitute the determination of the law for his action.
I speak only of intention; of the power I have no doubt. When
one enters into interstate commerce, one enters into a service in
which the public has an interest, and subjects one's self to its
behests. And this is no limitation of liberty; it is the
consequence subjects one's self to its behests. And this his
undertaking, and constrains no more than any contract constrains.
The obligation of a contract is the law under which it is made, and
submission to regulation is the condition which attaches to one who
enters into or accepts employment in a business in which the public
has an interest.
I concur in the answer of the opinion to the contentions of
inequality of the law and the deprivation to the carriers of due
process.
MR. JUSTICE DAT, dissenting:
I am unable to agree with the opinion and judgment just
pronounced. The very serious constitutional questions involved seem
to warrant a statement of the reasons which constrain me to this
action.
I am not prepared to deny to Congress, in view of its
constitutional authority to regulate commerce among the
Page 243 U. S. 365
states, the right to fix by lawful enactment the wages to be
paid to those engaged in such commerce in the operation of trains
carrying passengers and freight. While the railroads of the country
are privately owned, they are engaged in a public service, and
because of that fact are subject in a large measure to governmental
control.
The regulatory power of Congress under the commerce clause of
the Constitution is of a broad nature, but is subject to the
applicable limitations of the Constitution.
I agree that, upon the reasoning which sustained the power of
Congress to regulate the hours of service of employees, and the
degree of care which employers must observe to protect the safety
of those engaged in the service, and in view of the enactments
which are held to be lawful regulations of interstate
transportation, Congress has the power to fix the amount of
compensation necessary to secure a proper service and to insure
reasonable rates to the public upon the part of the railroads
engaged in such traffic. While this much must necessarily follow
from the constitutional authority of Congress, in the light of the
interpretation given to the commerce clause in decisions of this
Court, it is equally true that this regulatory power is subject to
any applicable constitutional limitations. This power cannot, any
more than others conferred by the Constitution, be the subject of
lawful exercise when such exertion of authority violates
fundamental rights secured by the Constitution.
Gibbons v.
Ogden, 9 Wheat. 1,
22 U. S. 196;
Monongahela Navigation Co. v. United States, 148 U.
S. 312,
148 U. S. 336;
United States v. Joint Traffic Assn., 171 U.
S. 505,
171 U. S. 571;
Lottery Case, 188 U. S. 321,
188 U. S.
353.
The power to legislate, as well as other powers conferred by the
Constitution upon the coordinate branches of the government, is
limited by the provisions of the Fifth Amendment of the
Constitution preventing deprivation of life, liberty, or property
without due process of law.
The phrase "due process of law" has been the subject
Page 243 U. S. 366
of much discussion, and while its precise definition has not
been attempted, and its limitations have been left to the gradual
process of inclusion and exclusion, the binding force of its
requirements is always conceded, and has been frequently enforced
in cases as they have arisen. If the Constitution is not to become
a dead letter, the protection of the due process clause must be
given to all entitled to this safeguard of rights which the
Amendment intended to secure. The due process clause restrains
alike every branch of the government, and is binding upon all who
exercise federal power, whether of an executive, legislative, or
judicial character. It withholds from the executive the exercise of
arbitrary authority, it prevents the judiciary from condemning one
in his person or property without orderly methods of procedure
adapted to the situation, and opportunity to be heard before
judgment. We are now immediately concerned with its effect upon the
exercise of legislative authority.
While every case must depend upon its peculiar circumstances,
certain general principles are well settled; perhaps they have not
been better stated than in the words of Mr. Justice Matthews,
speaking for this Court in
Hurtado v. California,
110 U. S. 516,
110 U. S. 531,
wherein he said:
"The concessions of Magna Charta were wrung from the King as
guaranties against the oppressions and usurpations of his
prerogative. It did not enter into the minds of the barons to
provide security against their own body or in favor of the Commons
by limiting the power of Parliament; so that bills of attainder,
ex post facto laws, laws declaring forfeitures of estates,
and other arbitrary acts of legislation, which occur so frequently
in English history, were never regarded as inconsistent with the
law of the land. . . . The actual and practical security for
English liberty against legislative tyranny was the power of a free
public opinion represented by the Commons. In this country, written
constitutions were deemed essential to
Page 243 U. S. 367
protect the rights and liberties of the people against the
encroachment of power delegated to their governments, and the
provisions of Magna Charta were incorporated into Bills of Rights.
They were limitations upon all the powers of government,
legislative as well as executive and judicial. . . . Applied in
England only as guards against executive usurpation and tyranny,
here they have become bulwarks also against arbitrary
legislation."
Murray's Lessee v. Hoboken
Land and Improvement Co., 18 How. 272;
Bank of Columbia v.
Okely, 4 Wheat. 235; 2 Story, Const., 4th ed., §
1944; Cooley, Const. 241
et seq.; McGehee, Due Process of
Law, pp. 22
et seq., and the illuminating discussion of
the subject by Mr. Justice Moody in
Twining v. New Jersey,
211 U. S. 78.
It results from the principles which have been enforced in this
Court, and recognized by writers of authority, that due process of
law, when applied to the legislative branch of the government, will
not permit Congress to make anything due process of law which it
sees fit to declare such by the mere enactment of the statute; if
this were true, life, liberty, or property might be taken by the
terms of the legislative act, depending for its authority upon the
will or caprice of the legislature, and constitutional provisions
would thus become a mere nullity.
See the frequently
quoted argument of Mr. Webster in the
Dartmouth
College Case, 4 Wheat. 518;
Davidson v. New
Orleans, 96 U. S. 97;
Chicago, Burlington & Quincy R. Co. v. Chicago,
166 U. S. 226;
McGehee, Due Process of Law, p. 30.
The underlying principle of the decisions which have constrained
this Court in rare instances to exercise its constitutional right
to declare congressional enactments void is the protection intended
to be afforded against legislation of an arbitrary character.
While it is true, as stated in the majority opinion, that it is
the duty of courts to enforce lawful legislative enactments
Page 243 U. S. 368
of Congress, it is equally their duty and sworn obligation when
differences between acts of the legislature and the guaranties of
the federal Constitution arise, to govern their decisions by the
provisions of that instrument which represents the will of all the
people, and under the authority of which every branch of the
government is enabled to discharge the duty imposed upon it.
The act in question must be brought to the test of these
fundamental principles, and, if found to be violative of the
federal Constitution, it must be declared void. Grave and important
as the duty is, it cannot be avoided consistently with the
obligations imposed by the Constitution upon every branch of the
judiciary, federal and state, and particularly upon this Court, to
which, under our system, is entrusted the ultimate decision of
questions of this nature.
Applying these principles, in my opinion, this act cannot
successfully withstand the attack that is made upon it as an
arbitrary and unlawful exertion of supposed legislative power. It
is not an act limiting the hours of service. Nor is it, in my
judgment, a legitimate enactment fixing the wages of employees
engaged in such service. In one of its most important aspects, and
in view of the mandatory provisions of § 3 of the act, it is one
the effect of which is to increase the wages of certain employees
in interstate commerce by the requirement that, pending
investigation, the wages which have theretofore been paid for ten
hours' service shall be given for eight hours' service of the same
character. The increase of wages is to be in force only during the
period of observation provided in the act. Before the passage of
this enactment, the wages of the character involved herein had been
fixed by agreement, or determined by arbitration between the
parties concerned. By this enactment, the wage theretofore paid for
a ten-hours service is required to be paid for an eight-hours
service pending the investigation provided for in other parts of
the law. In other words, Congress, upon the face
Page 243 U. S. 369
of the enactment, expresses its inability to fix, in advance of
investigation, a just and proper wage for the employees concerned.
It inevitably follows that the cost of the experiment, measured by
the increase in wages, amounting, it is stated, to many millions of
dollars, and certain to cost a very large sum, must be paid not by
the public, nor be equally borne by the contracting parties, but,
by legislative edict, is made to fall entirely upon one of the
parties, with no provision for compensation should the subsequent
investigation establish the injustice or impropriety of the
temporary increase.
An examination of the history of the legislation, and public
documents submitted for our consideration, amply support this
conclusion. In submitting the matter to Congress, the President
recommended:
"Explicit approval by the Congress of the consideration by the
Interstate Commerce Commission of an increase of freight rates to
meet such additional expenditures by the railroads as may have been
rendered necessary by the adoption of the eight-hour day, and which
have not been offset by administrative readjustments and economics,
should the facts disclosed justify the increase."
This recommendation was not followed in the enactment of the
statute. The Senate Committee having the subject under
consideration expressed a desire for investigation and
consideration before enacting a law of this character. Such was not
had, and the law in its present form was speedily passed.
In fixing wages, conceding the power of Congress for this
purpose, that body acts having in mind the rights of the public, of
the owners of railroads, and of the employees engaged in their
service. Inherently, such legislation requires that investigation
and deliberation shall precede action. In fixing rates, Congress
has itself recognized this principle and has delegated its power to
a Commission which acts only upon full investigation and an
opportunity
Page 243 U. S. 370
to be heard, wherein the interest of the public, the carrier,
and the shipper may be given ample consideration.
Conceding that every presumption exists in favor of the
legitimate exercise of legislative power, and that there is no
authority in the courts to inquire into the motives which may have
influenced legislators, and that every such enactment presupposes
the possession of proper motives and sufficient information and
knowledge to warrant the action taken, nevertheless Congress has in
this act itself declared the lack of the requisite information for
definite action, and has directed an experiment to determine what
it should do, imposing in the meantime an increase of wages
peremptorily declared, the expense of which is to be borne entirely
by the carrier, without recompense if the investigation proves the
injustice or impropriety of the increase.
Such legislation, it seems to me, amounts to the taking of the
property of one and giving it to another, in violation of the
spirit of fair play and equal right which the Constitution intended
to secure in the due process clause to all coming within its
protection, and is a striking illustration of that method which has
always been deemed to be the plainest illustration of arbitrary
action -- the taking of the property of A and giving it to B by
legislative fiat.
Davidson v. New Orleans, 96 U. S.
97,
96 U. S.
104.
It may be taken to be true, as stated in the majority opinion,
that but for this legislation, a strike of employees engaged in
interstate commerce would have been precipitated, disastrous in its
consequences to the commerce of the country.
If I am right in the conclusion that this legislation amounted
to a deprivation of property without due process of law, no
emergency and no consequence, whatever their character, could
justify the violation of constitutional rights. The argument of
justification by emergency was made and answered in this Court in
Ex Parte
Milligan,
Page 243 U. S. 371
4 Wall. 2, decided more than fifty years ago, in which it was
held that not even the perils of war could impair the right of a
resident of a loyal state, not connected with the military service,
and where the courts were open, and in the proper exercise of their
jurisdiction, to be tried, convicted, or sentenced only by the
ordinary courts of law, with trial by jury and with the safeguards
intended to secure a fair trial in the courts of law. Speaking of
the purposes which controlled in the adoption of the federal
Constitution and animated those who framed that instrument, this
Court said, p.
71 U. S. 120:
"Those great and good men foresaw that troublous times would
arise, when rulers and people would become restive under restraint,
and seek by sharp and decisive measures to accomplish ends deemed
just and proper, and that the principles of constitutional liberty
would be in peril unless established by irrepealable law. The
history of the world had taught them that what was done in the past
might be attempted in the future. The Constitution of the United
States is a law for rulers and people, equally in war and in peace,
and covers with the shield of its protection all classes of men at
all times, and under all circumstances. No doctrine involving more
pernicious consequences was ever invented by the wit of man than
that any of its provisions can be suspended during any of the great
exigencies of government. Such a doctrine leads directly to anarchy
or despotism, but the theory of necessity on which it is based is
false; for the government, within the Constitution, has all the
powers granted to it, which are necessary to preserve its
existence; as has been happily proved by the result of the great
effort to throw off its just authority."
This principle is equally applicable today. Constitutional
protection is more essential in times of unrest and agitation than
it can be in the security of less turbulent periods. The
Constitution intended to protect the citizen
Page 243 U. S. 372
against encroachments upon his rights impelled by existing
emergencies, or supposed necessity of prompt and vigorous action.
Constitutional rights, if they are to be available in time of
greatest need, cannot give way to an emergency, however immediate,
or justify the sacrifice of private rights secured by the
Constitution.
I agree that a situation, such as was presented to Congress at
this time, properly called for the exertion of its proper authority
to avert impending calamity. I cannot agree that constitutional
rights may be sacrificed because of public necessity, nor taken
away because of emergencies which might result in disaster or
inconvenience to public or private interests. If this be not so,
the constitutional limitations for the protection of life, liberty,
and property are of little value, and may be taken away whenever it
is supposed that the public interest will be promoted by the
sacrifice of rights which the framers of the Constitution intended
should be forever protected from governmental invasion by any
branch of the government.
There are certain matters in the opinion of the majority which I
am unable to approve by silent acquiescence. I am not prepared to
admit that Congress may, when deemed necessary for the public
interest, coerce employees, against their will, to continue in
service in interstate commerce. Nor do I think it necessary to
decide, as declared in the majority opinion, that, in matters of
this kind, Congress can enact a compulsory arbitration law. These
questions are not involved in this case, and their decision need
not be anticipated until they actually arise.
The reasons which I have outlined impel me to the conclusion
that the enactment under consideration necessarily deprives the
complaining railroad companies of rights secured to them, as well
as to others, by one of the most essential of the protections
guaranteed by the federal Constitution. In this view, I am
constrained to dissent from the opinion and judgment in this
case.
Page 243 U. S. 373
MR. JUSTICE PITNEY, dissenting:
I am constrained to dissent from the decision just announced and
from the reasoning upon which it is based. I am convinced that the
statute under consideration (Act of September 3, 5, 1916, c. 436,
39 Stat. 721) is not within the constitutional power of Congress.
The infirmity that I find in it is so fundamental that, for the
sake of brevity, I lay aside all minor grounds upon which it is
attacked, and hence may begin by setting forth the title and
essential provisions of the act, so as to render plain its true
effect and operation, omitting portions not necessary to a
consideration of the main questions. I quote as follows:
"An Act to Establish an Eight-hour Day for Employees of Carriers
Engaged in Interstate and Foreign Commerce, and for Other
Purposes."
"
Be it enacted . . . That, beginning January first,
nineteen hundred and seventeen, eight hours shall, in contracts for
labor and service, be deemed a day's work and the measure or
standard of a day's work for the purpose of reckoning the
compensation for services of all employees who are now or may
hereafter be employed by any common carrier by railroad, . . .
which is subject to the provisions of the Act of February fourth,
eighteen hundred and eighty-seven, entitled 'An Act to Regulate
Commerce,' as amended, and who are now or may hereafter be actually
engaged in any capacity in the operation of trains used for the
transportation of persons or property on railroads, . . . from any
state or territory of the United States or the District of Columbia
to any other state or territory of the United States or the
District of Columbia, etc."
"Sec. 2. That the President shall appoint a commission of three,
which shall observe the operation and effects of the institution of
the eight-hour standard workday as above defined and the facts and
conditions affecting the
Page 243 U. S. 374
relations between such common carriers and employees during a
period of not less than six months nor more than nine months, in
the discretion of the commission, and within thirty days thereafter
such commission shall report its findings to the President and
Congress. . . ."
"Sec. 3. That, pending the report of the commission herein
provided for and for a period of thirty days thereafter, the
compensation of railway employees subject to this act for a
standard eight-hour workday shall not be reduced below the present
standard day's wage, and for all necessary time in excess of eight
hours such employees shall be paid at a rate not less than the
pro rata rate for such standard eight-hour workday."
"Sec. 4. That any person violating any provision of this act
shall be guilty of a misdemeanor, etc."
It is, I think, too plain for argument that the act departs from
its title, in that it does not establish eight hours as the limit
of a day's work. There is no prohibition of service in excess of
eight hours per day, nor any penalty for overtime work, for this is
to be paid for only
pro rata. There is no language
evincing an intent to repeal or modify the Sixteen Hour Act of
March 4, 1907, c. 2939, 34 Stat. 1415. It is a matter of common
knowledge that railroad train service must be arranged according to
the distances between terminals or "division points," and a change
from a sixteen-hour limit to an eight-hour limit would be so
revolutionary that a purpose to make such a change is not to be
lightly inferred. This act affords no basis for such an inference.
What it prescribes is that
"eight hours shall,
in contracts for labor and service,
be deemed a day's work and
the measure or standard of a
day's work
for the purpose of reckoning the compensation
for services."
It defines the terms of contracts for service and prescribes a
measure only for the purpose of reckoning compensation. This is the
whole effect of the first section. To shorten the discussion, I
will concede,
arguendo, that
Page 243 U. S. 375
this section, of itself, is not in conflict with the
Constitution. This being assumed, the second section evidently is
unexceptionable.
Serious difficulty appears, however, when we come to consider
the operation and effect of the third section in connection with
the first and second. It provides that, pending the report of the
commission, and for thirty days thereafter,
"the compensation of railway employees subject to this act for a
standard eight-hour workday shall not be reduced below the present
standard day's wage,"
etc. This, of course, is to be practically enforced by means of
prosecutions under § 4. The "present standard day's wage" in effect
upon the railroad represented by appellees in this case and upon
most of the other railroads of the country is a term not easily
defined. Accepting the paraphrase employed in the brief for the
United States, the standard may be expressed as follows: "One
hundred miles or less, ten hours or less, shall constitute a day."
The effect of § 3 is that, during a period of from seven to eleven
months, the carriers shall pay as much for eight hours' work as
previously was paid for ten hours' work, the excess over eight
hours to be paid
pro rata on the eight-hour basis. The
effect is to increase wages in a large but undefined amount upon
the railroad represented in this suit, and in the amount of many
millions of dollars, considering all the railroads that are
effected.
The legislation is attempted to be sustained solely as an
exercise of the power of Congress to regulate interstate and
foreign commerce. Evidently it can find no other support, for
Congress has no authority over the Missouri, Oklahoma, & Gulf
Railway Company, whose receivers are appellees here, or over the
other companies affected by this law, except by reason of its power
to regulate commerce, and it possesses this authority only because
those corporations voluntarily have chosen to engage in commerce
among the states. A contention that Congress
Page 243 U. S. 376
has power to compel the railroads and their employees to
continue to carry on such commerce at all costs will be dealt with
hereafter.
If, therefore, the act be not, in a real and substantial sense,
a regulation of commerce, it is in excess of the constitutional
power of Congress.
"Manifestly, any rule prescribed for the conduct of interstate
commerce, in order to be within the competency of Congress under
its power to regulate commerce among the states, must have some
real or substantial relation to or connection with the commerce
regulated."
Adair v. United States, 208 U.
S. 161,
208 U. S. 178.
And, though it be a regulation of commerce, it is void if it
conflicts with the provisions of the Fifth Amendment, that no
person shall be "deprived of life, liberty, or property without due
process of law; nor shall private property be taken for public use
without just compensation."
Monongahela Navigation Co. v.
United States, 148 U. S. 312,
148 U. S. 336;
United States v. Lynah, 188 U. S. 445,
188 U. S. 471;
Adair v. United States, 208 U. S. 161,
208 U. S. 180;
United States v. Cress, ante, 243 U. S. 316.
I am convinced, in the first place, that the act cannot be
sustained as a regulation of commerce, because it has no such
object, operation, or effect. It removes no impediment or
obstruction from the way of traffic or intercourse, prescribes no
service to the public, lays down no rule respecting the mode in
which service is to be performed, or the safeguards to be placed
about it, or the qualifications or conduct of those who are to
perform it. In short, it has no substantial relation to or
connection with commerce, no closer relation than has the price
which the carrier pays for its engines and cars or for the coal
used in propelling them.
The suggestion that it was passed to prevent a threatened
strike, and in this sense to remove an obstruction from the path of
commerce, while true in fact is immaterial in law. It amounts to no
more than saying that it was
Page 243 U. S. 377
enacted to take care of an emergency. But an emergency can
neither create a power nor excuse a defiance of the limitations
upon the powers of the government.
Ex Parte
Milligan, 4 Wall. 2,
71 U. S. 121.
The simple effect of § 3 is to increase, during the period of
its operation, the rate of wages of railroad trainmen employed in
interstate commerce. It comes to this -- that, whereas the owners
of the railroads have devoted their property to the movement of
interstate as well as intrastate commerce, and whereas the trainmen
have accepted employment in such commerce, and thus employers and
employees are engaged together in a
quasi-public service,
the act steps in and prescribes how the money earned in the public
service shall be divided between the owners of the railroads and
these particular employees. This, in my view, is a regulation not
of commerce, but of the internal affairs of the commerce carriers
-- precisely as if an act were to provide that the rate of interest
payable to the bondholders must be increased and the dividend
payments to the stockholders correspondingly decreased -- and is
not only without support in the commerce clause of the
Constitution, but, as I shall endeavor to show, transgresses the
limitations of the Fifth Amendment.
The oft-quoted declaration of Chief Justice Marshall in
Gibbons v.
Ogden, 9 Wheat. 1,
22 U. S. 196,
that the power to regulate commerce among the states, like all
others vested in Congress, "is complete in itself, may be exercised
to its utmost extent, and acknowledges no limitations other than
are prescribed in the Constitution," means that the exercise of the
power is not dependent on, and is not to be hampered by, the action
of the states, and is unrestrained by any qualification other than
such as are contained in the fundamental law. To say that the power
"acknowledges no limitations" is not to say that it is limitless in
extent, for it is confined by the very definition of the subject
matter. The power is vast, but is not vague, and
Page 243 U. S. 378
error inevitably must result from treating it as nebulous.
The act stands wholly without precedent in either state or
national legislation. Let it be admitted that mere novelty is not a
ground of constitutional objection, since it is the appropriate
function of a legislature to change the law. This act, however,
differs not only in degree, but in kind, from any and all that have
preceded it. It is now nearly thirty years since Congress entered
the field of direct regulation of interstate railway carriers.
Before that the entire field was open to the states, and since the
year 1887, the regulation of their internal commerce has still
remained open to them. This has been a period of intense and
widespread activity and progress in commerce regulation, and, as it
happens, of equal progress respecting legislation in the interest
of workingmen. The fact that no law fixing the rate of compensation
for railroad employees ever was proposed until this act was brought
forward a very few days before its passage, and then only under the
coercive influence of a threatened public calamity, is the
strongest evidence that, in the judgment of executives and
legislators, state and national, measures of this sort were not
within the bounds of permissible regulation of commerce.
As already stated, the act has not the effect of imposing any
limit to the number of hours that a trainman may work in a day, nor
any penalty for overtime work. Therefore, it cannot be sustained
upon the ground on which the court sustained the Act of March 4,
1907, 34 Stat. 1415, c. 2939, limiting the hours of service of
employees engaged in interstate commerce -- a ground epitomized in
Baltimore & Ohio R. Co. v. Interstate Commerce
Commission, 221 U. S. 612,
221 U. S. 619,
as follows:
"The length of hours of service has direct relation to the
efficiency of the human agencies upon which protection to life and
property necessarily depends . . . In its power suitably to provide
for the safety of employees
Page 243 U. S. 379
and travelers, Congress was not limited to the enactment of laws
relating to mechanical appliances, but it was also competent to
consider, and to endeavor to reduce, the dangers incident to the
strain of excessive hours of duty on the part of engineers,
conductors, train dispatchers, telegraphers, and other persons
embraced within the class defined by the act."
The Safety Appliance Acts are as evidently distinguishable, they
likewise being designed to secure the safety of employees and
travelers, as this Court repeatedly has held.
Johnson v.
Southern Pacific Co., 196 U. S. 1,
196 U. S. 17;
Southern Ry. Co. v. United States, 222 U. S.
20,
222 U. S. 26;
Texas & Pacific Ry. Co. v. Rigsby, 241 U. S.
33,
241 U. S.
41.
Nor does the federal Employers' Liability Act of April 22, 1908,
35 Stat. 65, c. 149, furnish a precedent for the present
legislation. The constitutionality of that act was sustained in
Second Employers' Liability Cases, 223 U. S.
1, upon grounds very clearly set forth in the opinion,
thus (p.
223 U. S.
48):
"Congress, in the exertion of its power over interstate
commerce, may regulate the relations of common carriers by railroad
and their employees, while both are engaged in such commerce,
subject always to the limitations prescribed in the Constitution,
and to the qualification that the particulars in which those
relations are regulated must have a real or substantial connection
with the interstate commerce in which the carriers and their
employees are engaged,"
and again (pp.
223 U. S.
50-51):
"The natural tendency of the changes described is to impel the
carriers to avoid or prevent the negligent acts and omissions which
are made the bases of the rights of recovery which the statute
creates and defines; and, as whatever makes for that end tends to
promote the safety of the employees and to advance the commerce in
which they are engaged, we entertain no doubt that in making those
changes Congress acted within the limits of the discretion confided
to it by the Constitution."
Progressive as has been the legislation of Congress and
Page 243 U. S. 380
the states enacted during the past thirty years for the
regulation of common carriers, I have found none at all analogous
to that now under consideration. Besides the acts already referred
to, laws have been passed respecting tariffs, bills of lading,
through routes, joint rates, the exchange of traffic, terminal
charges, locomotive headlights, and a multitude of other matters;
but each and all of these have some direct and substantial relation
to commerce itself.
The suggestion that an increase in the wages of trainmen will
increase their contentment, encourage prompt and efficient service,
and thus facilitate the movement of commerce is altogether
fanciful. The increase effected is not at all conditioned upon
contented or efficient service. It benefits alike those who are
efficient and those who are not. It does not equalize wages, but
applies proportionately in all cases, making the least increase
upon railroads whose rates of pay are the lowest, the greatest
where wages are the highest. As a measure for improving the quality
of railroad locomotives, a law requiring the companies to pay 25%
more than before for each locomotive, without stipulating for any
improvement in the quality, would be absurdly ineffective. Equally
futile, as a measure for improvement of the quality of railway
supplies, would be a provision of law compelling the roads to pay
25% more than formerly for rails, crossties, fuel, and the like,
irrespective of the question of quality. In each of these
instances, the natural effect of the regulation as an aid to
commerce would be precisely the same as that of the act under
consideration -- that is,
nil.
The attempt is made to sustain the act as analogous to the
exercise of the power to fix rates of freight and fare for the
carriage of commodities and passengers, or as a branch of that
power. This, in my judgment, is a false analogy. The origin and
basis of the governmental power to regulate rates are in the right
of the public to demand
Page 243 U. S. 381
and secure the services of the common carrier on reasonable and
equal terms, and without haggling as to rates or other terms. Every
member of the public is entitled to be served, and rates are
established by public authority in order to protect the public
against oppression and discrimination. But there is no common or
other right on the part of the trainmen to demand employment from
the carriers, nor any right on the part of the carriers to compel
the trainmen to serve them. The employment is a matter of private
bargaining between the parties, in which each has a constitutional
right to exact such terms as he may deem proper.
Adair v.
United States, 208 U. S. 161,
208 U. S.
172-173;
Coppage v. Kansas, 236 U. S.
1,
236 U. S. 20.
Thus, the sole foundation of the governmental power to fix rates is
absent in the case of wages, and the asserted power to fix the
latter is inconsistent with the constitutional rights of employer
and employee to agree between themselves respecting the terms of
the employment.
But, further, the interest of the public in the regulation of
rates lies in limiting the carrier to a reasonable compensation for
his services. Incidentally, such a regulation may exert an indirect
influence upon wages, as upon other expenditures of the carrier.
Thus, the Interstate Commerce Commission has held that undue cost
of operation or management cannot stand as a justification for
unreasonably high rates. Milk Producers' Protective Asso. v.
Delaware, L. & W. R. Co., 7 I.C.C. 92, 164; Society of American
Florists v. United States Exp. Co., 12 I.C.C. 120, 127. But
whatever concern the public authorities, as regulators of commerce,
have in the cost of operation or management (including the rates of
wages) is in the direction of lowering, not increasing, expenses.
The present act has for its purpose and necessary effect the
raising of wages, and, whatever may be its justification from the
humanitarian standpoint, it cannot seriously be regarded as a
regulation of commerce because incidental to a regulation
Page 243 U. S. 382
of rates. It is indeed the very antithesis of such a regulation.
If it reduced wages, it would be much more easily supportable on
this theory.
The primary and fundamental constitutional defect that I find in
the act now under consideration is precisely this: that it
undertakes to regulate the relations of common carriers by railroad
to their employees in respect to a particular matter -- an increase
of wages -- that has no real and substantial connection with the
interstate commerce in which the carriers and their employees are
engaged. Certainly the amount of wages that shall be paid to a
trainman has no more substantial relation to commerce than the
matter which was under consideration in
Adair v. United
States, 208 U. S. 161 --
that is, the right of an employee to retain his employment
notwithstanding his membership in a labor organization. In that
case, this Court, by Mr. Justice Harlan, used the following
language (p.
208 U. S.
178):
"But what possible legal or logical connection is there between
an employee's membership in a labor organization and the carrying
on of interstate commerce? Such relation to a labor organization
cannot have, in itself, and in the eye of the law, any bearing upon
the commerce with which the employee is connected by his labor and
services."
It proves nothing to say that the increase of pay was or is
necessary, in the judgment of Congress, to prevent all railroad
service in interstate commerce from being suspended. As a law to
prevent a strike, the act is quite intelligible; but, as we have
seen, the emergency conferred no power upon Congress to impose the
burden upon the carriers. If the public exigency required it,
Congress perhaps might have appropriated public moneys to satisfy
the demands of the trainmen. But there is no argument for requiring
the carriers to pay the cost that would not equally apply to
renewed demands, as often as made, if made by men who had the power
to tie up traffic. I cannot
Page 243 U. S. 383
believe that this is regulation of commerce within the meaning
of the Constitution.
But, secondly, as already remarked, and as shown in the above
quotation from 223 U.S. p.
223 U. S. 49, the power of Congress to regulate commerce
among the states is "subject always to the limitations prescribed
in the Constitution," and, among others, to the inhibition of the
Fifth Amendment against the deprivation of liberty or property
without due process of law and the taking of private property for
public use without just compensation. This has been held so often
that it hardly is necessary to cite cases.
Monongahela
Navigation Co. v. United States, 148 U.
S. 312,
148 U. S. 336;
United States v. Lynah, 188 U. S. 445,
188 U. S. 471;
Adair v. United States, 208 U. S. 161,
208 U. S. 180;
United States v. Cress, ante, 243 U. S. 316.
I am convinced that the act transgresses this provision of the
Amendment in two respects: first, in that it exceeds the bounds of
proper regulation, and deprives the owners of the railroads of
their fundamental rights of liberty and property, and, secondly in
that Congress, although confessedly not in possession of the
information necessary for intelligent and just treatment of the
pending controversy between the carriers and the trainmen (for the
act itself, in its second section, provides for the very
investigation that the history of the legislation shows was
imperatively necessary), arbitrarily imposed upon the carriers the
entire and enormous cost of an experimental increase in wages,
without providing for any compensation to be paid in case the
investigation should demonstrate the impropriety of the
increase.
Upon the first of these points, I repeat that the sole authority
of Congress to regulate these railroad corporations, including that
company which is represented in the present action, arises from the
fact that they voluntarily have devoted their property to the
service of interstate commerce. I am unable to find in the
Constitution any
Page 243 U. S. 384
authority on the part of Congress to commandeer the railroads or
the services of the trainmen. The cases that are referred to as
sustaining the supposed obligation of the carrier to carry on its
business regardless of cost, and the authority of government to
compel performance of that obligation (
Atlantic Coast Line R.
Co. v. North Carolina Corporation Commission, 206 U. S.
1,
206 U. S. 27;
Missouri Pacific Railway v. Kansas, 216 U.
S. 262,
216 U. S. 279;
see also Wisconsin &c. Railroad Co. v. Jacobson,
179 U. S. 287,
179 U. S. 302),
were decisions sustaining the power of state governments to enforce
obligations arising out of the grant by the state to the railroad
company of the right of existence and the franchise to operate its
road, and they were decided upon the authority of a line of
decisions in the state courts (
Mayor &c. of Worcester v.
Norwich &c. R. Co., 109 Mass. 103, 113;
People v.
Boston & Albany R. Co., 70 N.Y. 569, 571;
People v.
New York &c. R. Co., 104 N.Y. 58, 67;
People v. St.
Louis &c. R. Co., 176 Ill. 512, 524) that based the right
of control upon the power of the state to enforce the charter
obligation and the reserved power to alter or amend the charter in
the public interest. The relation of the federal government to
railroad companies not chartered by it is altogether different,
being dependent entirely upon the fact that the companies have seen
fit to engage in interstate transportation -- a branch of business
from which, in my opinion, they are at liberty to withdraw at any
time, so far as any authority of the federal government to prevent
it is concerned, however impracticable such withdrawal may be.
The extent to which regulation properly can go under such
circumstances was defined very clearly by this Court in the great
case of
Munn v. Illinois, 94 U. S.
113, where Mr. Chief Justice Waite, speaking for the
Court, said (p.
94 U. S.
126):
"Property does become clothed with a public interest when used
in a manner to make it of public consequence,
Page 243 U. S. 385
and affect the community at large. When, therefore, one devotes
his property to a use in which the public has an interest, he in
effect grants to the public an interest in that use, and must
submit to be controlled by the public for the common good, to the
extent of the interest he has thus created. He may withdraw his
grant by discontinuing the use; but, so long as he maintains the
use, he must submit to the control."
The control there referred to was a regulation by the state of
the service performed by public warehouses, and a limitation of the
charges for that service. The opinion made it plain that the
interest of the public was not in the property, but in the use of
it; that not its management or disposition in general, but only the
manner of its use in the service of the public, was subject to
control.
The same limitation upon the authority of the public has been
variously expressed in many decisions. Thus, in
Interstate Com.
Comm. v. Chicago G. W. Ry. Co., 209 U.
S. 108,
209 U. S. 118,
the Court, by Mr. Justice Brewer, said:
"It must be remembered that railroads are the private property
of their owners; that while, from the public character of the work
in which they are engaged, the public has the power to prescribe
rules for securing faithful and efficient service and equality
between shippers and communities, yet in no proper sense is the
public a general manager."
In
Southern Pacific Co. v. Interstate Com. Comm.,
219 U. S. 433,
219 U. S. 444,
reference was made to the unwarranted assertion by the Commission
of
"a power which, if it obtained, would open a vast field for the
exercise of discretion, to the destruction of rights of private
property in railroads, and would, in effect, assert public
ownership without any of the responsibilities which ownership would
imply."
And, in the
Minnesota Rate Cases, 230 U.
S. 352,
230 U. S. 433,
it was said:
"The property of the railroad corporation has been devoted to a
public use. There is always the obligation springing from the
nature of the business in which it is
Page 243 U. S. 386
engaged -- which private exigency may not be permitted to ignore
-- that there shall not be an exorbitant charge for the service
rendered. But the state has not seen fit to undertake the service
itself, and the private property embarked in it is not placed at
the mercy of legislative caprice. It rests secure under the
constitutional protection which extends not merely to the title,
but to the right to receive just compensation for the service given
to the public."
The case last mentioned was one of alleged confiscation
resulting from a state law limiting rates of freight, and the
language quoted was appropriate to that topic. But the right to
immunity from confiscation is not the only right of property
safeguarded by the Fifth Amendment. Rights of property include
something more than mere ownership and the privilege of receiving a
limited return from its use. The right to control, to manage, and
to dispose of it, the right to put it at risk in business, and by
legitimate skill and enterprise to make gains beyond the fixed
rates of interest, the right to hire employees, to bargain freely
with them about the rate of wages, and from their labors to make
lawful gains -- these are among the essential rights of property
that pertain to owners of railroads as to others. The devotion of
their property to the public use does not give to the public an
interest in the property, but only in its use.
This act, in my judgment, usurps the right of the owners of the
railroads to manage their own properties, and is an attempt to
control and manage the properties, rather than to regulate their
use in commerce. In particular, it deprives the carriers of their
right to agree with their employees as to the terms of employment.
Without amplifying the point, I need only refer again to
Adair
v. United States, 208 U. S. 161,
208 U. S. 174,
208 U. S.
178.
I wholly dissent from the suggestion, upon which great stress is
laid in the opinion of the majority of the Court,
Page 243 U. S. 387
that the admittedly private right of the carriers and their
employees to fix by agreement between themselves the standard of
wages to control their relations -- a right guaranteed by the "due
process of law" clause, as this Court repeatedly has held -- can be
set at naught or treated as waived in the present instance because
the parties have failed to agree, or that legislative interference
can be justified on that ground. The right to contract is the right
to say by what terms one will be bound. It is of the very essence
of the right that the parties may remain in disagreement if either
party is not content with any term proposed by the other. A failure
to agree is not a waiver, but an exercise of the right -- as much
so as the making of an agreement.
To say that the United States has such a relation to interstate
traffic and the transportation of the mails that it may interfere
directly, by force, or indirectly, through the courts, to remove
obstructions placed by wrongdoers in the way of such transportation
(
In re Debs, 158 U. S. 564,
158 U. S. 582,
158 U. S.
586), is not to say that, when obstruction is
threatened, Congress, without taking over the railroads and paying
just compensation to the owners, may exercise control of the
revenues and dispose of them for the purpose of buying peace,
either by direct intervention or through coercive legislation. To
do this is to ignore the distinction between
meum and
tuum, to safeguard which was one of the objects of the
Fifth Amendment.
The logical consequences of the doctrine now announced are
sufficient to condemn it. If Congress may fix wages of trainmen in
interstate commerce during a term of months, it may do so during a
term of years, or indefinitely. If it may increase wages, much more
certainly it may reduce them. If it may establish a minimum, it may
establish a maximum. If it may impose its arbitral award upon the
parties in a dispute about wages, it may do the same in the event
of a dispute between the railroads and
Page 243 U. S. 388
the coal miners, the car builders, or the producers of any other
commodity essential to the proper movement of traffic.
That the act is a wide departure from all previous legislation
for regulating commerce has been shown. The bearing of this upon
the present point is obvious, since it is a safe assertion that
every dollar of the thousands of millions that are invested in
railroads in this country has been invested without any
anticipation or reason for anticipating that a law of this
character would be adjudged to be permissible, either as a
regulation of commerce or on any other ground.
Upon the second ground, of repugnancy to the Fifth Amendment I
need not dwell, since it is dealt with fully in the dissenting
opinion of MR. JUSTICE DAY, with whose views upon that question I
entirely agree.
MR. JUSTICE VAN DEVANTER concurs in this dissent, including that
portion of MR. JUSTICE DAY's dissenting opinion just mentioned.
MR. JUSTICE McREYNOLDS, dissenting:
Whatever else the Act of September 3, 5, 1916, may do, it
certainly commands that, during a minimum period of seven months,
interstate common carriers by railroads shall pay their employees
engaged in operating trains for eight hours' work a wage not less
than the one then established for a standard day -- generally ten
hours.
I have not heretofore supposed that such action was a regulation
of commerce within the fair intendment of those words as used in
the Constitution, and the argument advanced in support of the
contrary view is unsatisfactory to my mind. I cannot therefore
concur in the conclusion that it was within the power of Congress
to enact the statute.
Page 243 U. S. 389
But, considering the doctrine now affirmed by a majority of the
Court as established, it follows as of course that Congress has
power to fix a maximum as well as a minimum wage for trainmen, to
require compulsory arbitration of labor disputes which may
seriously and directly jeopardize the movement of interstate
traffic, and to take measures effectively to protect the free flow
of such commerce against any combination, whether of operatives,
owners, or strangers.