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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 none the less efficaciously exerted because exercised by direct legislative act instead of by the enactment of other and appropriate means providing for 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.

—that is, to exert the legislative will for | before us was clearly within the legislative 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 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 sub-gaged in a private business to demand such ject 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

(a) As to the carrier.-As engaging in the business of interstate commerce carriage subjects 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 en

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 resulting right to fix, in case of disagreement and dispute, a standard

of wages, as we have seen, necessarily obtained.

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.10

(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 want of equality is based upon two considerations. The one is the exemption of In other words, considering comprehen- certain short line and electric railroads. sively the situation of the employer and the We dismiss it because it has been adversely employee in the light of the obligations aris- disposed of by many previous decisions.9 ing from the public interest and of the work The second rests upon the charge that unin which they are engaged, and the degree lawful inequality results because the stat of regulation which may be lawfully exerted ute deals not with all, but only with the by Congress as to that business, it must wages of employees engaged in the movement follow that the exercise of the lawful govern- of trains. But such employees were those mental right is controlling. This results concerning whom the dispute as to wages from the considerations which we have pre-existed, growing out of which the threat of viously pointed out and which we repeat, interruption of interstate commerce arose,since, conceding that, from the point of view a consideration which establishes an adeof the private right and private interest, as quate basis for the statutory classification. 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 The contention virtually is that, conceddoes not exist to protect the public interesting the legislative power under the circumfrom the injury resulting from a failure to stances stated to fix a standard of wages, exercise the private right. In saying this, such authority necessarily contemplates conof course, it is always to be borne in mind sideration before action, and not a total and that, as to both carrier and employee, the obvious disregard of every right of the embeneficent and ever-present safeguards of the Constitution are applicable, and there- sideration and a disregard which, it is ployer and his property,-a want of confore both are protected against confiscation and against every act of arbitrary power and which cause it therefore to amount to a urged, appear on the face of the statute, which, if given effect to, would amount decision without a hearing, and to a mere to a denial of due process, or would be rearbitrary bestowal of millions by way of pugnant to any other constitutional right. wages upon employees, to the injury not And this emphasizes that there is no ques- only of the employer, but of the public, upon tion here of purely private right, since the law is concerned only with those who are engaged in a business charged with a pub-ed. 841, 2 Inters. Com. Rep. 56, 8 Sup. Ct. lic 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 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 sep

arate subdivisions.

(a) Equal protection of the laws and penalties.

9 Dow v. Beidelman, 125 U. S. 680, 31 L.

Rep. 1028; Chicago, R. I. & P. R. Co. v.
Arkansas, 219 U. S. 453, 55 L. ed. 290, 31
Sup. Ct. Rep. 275; Omaha & C. B. Street
R. Co. v. Interstate Commerce Commission,
230 U. S. 324, 57 L. ed. 1501, 46 L.R.A.
(N.S.) 385, 33 Sup. Ct. Rep. 890; Chesa-
peake & O. R. Co. v. Conley, 230 U. S. 513,
522-524, 57 L. ed. 1597, 1603, 1604, 33 Sup.
Ct. Rep. 985; St. Louis, I. M. & S. R. Co.
36 Sup. Ct. Rep. 443.
v. Arkansas, 240 U. S. 518, 60 L. ed. 776,

10 United States ex rel. Atty. Gen. v. Delaware & H. Co. 213 U. S. 366, 417, 53 L. ed. 836, 852, 29 Sup. Ct. Rep. 527; Grenada Lumber Co. v. Mississippi, 217 U. S. 433, 443, 54 L. ed. 826, 831, 30 Sup. Ct. Rep. 535; Southwestern Oil Co. v. Texas, 217 U. S. 114, 120, 54 L. ed. 688, 692, 30 Sup. mond, 224 U. S. 160, 172, 56 L. ed. 710, Ct. Rep. 496; Western U. Teleg. Co. v. Rich717, 32 Sup. Ct. Rep. 449; Chesapeake & O. R. Co. v. Conley, 230 U. S. 513, 522, 57 L. ed. 1597, 1603, 33 Sup. Ct. 985.

whom the burden must necessarily fall. Upon the assumption that unconstitutionality would result if there be ground for the propositions,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.

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 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 15 per cent 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. 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 nar

But to bring the subject to a closer analysis, let us briefly 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 bind-rowing and limiting the demands made, the ing 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 15 per cent 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

11 McCray v. United States, 195 U. S. 27, 63, 49 L. ed. 78, 98, 24 Sup. Ct. Rep. 769, 1 Ann. Cas. 561.

37 S. C.-20.

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

12 United States v. Martin, 94 U. S. 400, 366, 42 L. ed. 780, 18 Sup. Ct. Rep. 383; 24 L. ed. 128; Holden v. Hardy, 169 U. S. Ellis v. United States, 206 U. S. 246, 51 L. ed. 1047, 27 Sup. Ct. Rep. 600, 11 Ann. Cas. 589; United States v. Garbish, 222 U. S. 257, 56 L. ed. 190, 32 Sup. Ct. Rep. 77; Miller v. Wilson, 236 U. S. 373, 59 L. ed. 628, L.R.A. 1915F, 829, 35 Sup. Ct. Rep. 342; Bosley v. McLaughlin, 236 U. S. 385, 59 L. ed. 632, 35 Sup. Ct. Rep. 345.

the task to be performed in the eight-hour | fluence our opinion or to control judgment. period was not expressed, but was left, Finally, we say that the contention that therefore, to adjustment between the par- the act was void and could not be made ties; that overtime was only permitted if operative because of the unworkability of "necessary;" and that extra pay for over- its provisions is without merit, since we see time was rejected and regular rate of pay no reason to doubt that if the standard fixed substituted? 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 em

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 with-ployment or exceptional surroundings, some in 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 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 the field of legislative discretion to in

change might be necessary, but these exceptions afford no ground for holding the act void because its provisions are not sus'ceptible 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.

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 gov ernment, 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 inter

state and foreign commerce, and for other | of service may be said to be the reciprocals purposes."

of each other, each the price of the other. The description of the title was repeated There can be no real estimate of the wages in the House of Representatives by the one receives until it is understood what chairman of the committee who reported the time one has worked to receive them. They bill and from whom it has received its desig- rise and fall with the increase or decrease nation. Among other things, he said: "The of the time of service. One who works ten law fixes an eight-hour day. We had pre-hours a day for $5 may be said to get less viously a sixteen-hour day and a nine-hour than one who works eight hours for the day. We now have an eight-hour day. The same sum. The labor of the latter is of only reference to wages is in the language greater value to him than the labor of the used to hold in statu quo until the work-ten-hour man is to him. And, correspond. ings of the eight-hour law could be observed ingly, the expense to the employer is greater and all other features of the service ad- in the one case than in the other, though justed to the eight-hour law." Explanations the wages he pays, expressed in terms of of like import were made in the Senate. money, are the same. It may be contended

The words of the act, I think, support that there is no element, therefore, in the this characterization, and, it may be as-regulation of the price of labor that there sumed, were accepted by Congress as ex- is not in the regulation of the hours of pressing and securing it; and I think they do so with 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

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, 42 L. ed. 780, 18 Sup. Ct. Rep. 383, where a state law was sustained, and Baltimore & O. R. Co. v. Interstate Commerce Commision, 221 U. S. 612, 55 L. ed. 878, 31 Sup. Ct. Rep. Nothing is fixed but the time of service, 621, where a law of Congress was sustained. -the hours which shall be deemed a day's Both laws limited the hours of service, but work, the number to be eight. All else neither the rate of wages. There may be compensation and conditions-is left to con- also cited Ellis v. United States, 206 U. S. tract; only, whatever the compensation, it 246, 51 L. ed. 1047, 27 Sup. Ct. Rep. 600, shall be for a service of eight hours reck-11 Ann. Cas. 589; Muller v. Oregon, 208 oned (computed) or measured by such time U. S. 412, 52 L. ed. 551, 28 Sup. Ct. Rep. as its determining factor. Except as so 324, 13 Ann. Cas. 957; Bosley v. McLaughdetermined the compensation may be what-lin, 236 U. S. 385, 59 L. ed. 632, 35 Sup. ever 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

Ct. Rep. 345; Miller v. Wilson, 236 U. S. 373, 59 L. ed. 628, L.R.A.1915F, 829, 35 Sup. Ct. Rep. 342.

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.

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

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