the dependence of the cost of the services in which the public has an interest, and upon the time they are rendered. The subjects one's self to its behests. And this shorter hours may or may not involve an is no limitation of liberty; it is the conseincrease of expense to the roads, and may i quence of liberty exercised, the obligation of or may not require recompense by an in- | his undertaking, and constrains no more crease of their rates. 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. 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 per cent) that have a ten-hour standard the provision, so far as applicable, may be said to be a change of compensation. To those (15 per cent) 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-ofservice 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 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 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 Day, 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 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, 196, 6 L. ed, 23, 70; Monongahela Nav. Co. v. United States, 148 U. S. 312, 336, 37 L. ed. 463, 471, 13 Sup. Ct. Rep. 622; United States v. Joint Traffic Asso. 171 U. liberties of the people against the encroachS. 505, 571, 43 L. ed. 259, 288, 19 Sup. Ct. ment of power delegated to their governRep. 25; Lottery Case (Champion v. Ames)|ments, and the provisions of Magna Charta 188 U. S. 321, 353, 47 L. ed. 492, 500, 23 Sup. Ct. Rep. 321, 13 Am. Crim. Rep. 561. The power to legislate, as well as other powers conferred by the Constitution upon the co-ordinate branches of the government, is limited by the provisions of the 5th 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 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, 531, 28 L. ed. 232, 237, 4 Sup. Ct. Rep. 111, 292, 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 protect the rights and 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 legisla tion." See Den ex dem. Murray v. Hoboken Land & Improv. Co. 18 How. 272, 15 L. ed. 372; Bank of Columbia v. Okely, 4 Wheat. 235, 4 L. ed. 559; 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, 53 L. ed. 97, 29 Sup. Ct. Rep. 14. 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, 4 L. ed. 629; Davidson v. New Orleans, 96 U. S. 97, 24 L. ed. 616; Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 41 L. ed. 979, 17 Sup. Ct. Rep. 581; 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 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 can- |trative readjustments and economies, should not be avoided consistently with the obliga- the facts disclosed justify the increase." tions imposed by the Constitution upon every branch of the judiciary, Federal and state, and particularly upon this court, to which, under our system, is intrusted the ultimate decision of questions of this nature. This recommendation was not followed in the enactment of the statute. The Senate Committee having the subject under con sideration 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. 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 Conceding that every presumption exists wages is to be in force only during the in favor of the legitimate exercise of legisperiod of observation provided in the act. lative power, and that there is no authority Before the passage of this enactment the in the courts to inquire into the motives wages of the character involved herein had which may have influenced legislators, and been fixed by agreement, or determined by that every such enactment presupposes the arbitration between the parties concerned. possession of proper motives and sufficient By this enactment the wage theretofore information and knowledge to warrant the paid for a ten-hours service is required to action taken, nevertheless Congress has in be paid for an eight-hours service pending this act itself declared the lack of the the investigation provided for in other requisite information for definite action, parts of the law. In other words, Congress, and has directed an experiment to determine upon the face of the enactment, expresses what it should do, imposing in the meanits inability to fix, in advance of investiga- time an increase of wages peremptorily detion, a just and proper wage for the em-clared, the expense of which is to be borne ployees 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. 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 to be heard, wherein the interest of the public, the carrier, and the shipper may be given ample consideration. 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 adminis 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 giv. ing 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 Davidgiving it to B by legislative fiat. son v. New Orleans, 96 U. S. 97, 104, 24 L. ed. 616, 619. 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 not 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. emergency and no consequence, whatever ity to avert impending calamity. I cantheir 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, 4 Wall. 2, 18 L. ed. 281, 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, page 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 ac complish 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 to day. 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 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 author 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. Mr. Justice Pitney, dissenting: I am constrained to dissent from the deci sion 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, chap. 436, 39 Stat. at L. 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. quote as follows: I An Act to Establish an Eight-hour Day for Be it enacted teen, eight hours shall, in contracts for | basis for such an inference. What it prelabor and service, be deemed a day's work scribes is that "eight hours shall, in conand the measure or standard of a day's tracts for labor and service, be deemed a work for the purpose of reckoning the com- day's work and the measure or standard of pensation for services of all employees who a day's work for the purpose of reckoning are now or may hereafter be employed by the compensation for services." It defines any common carrier by railroad, the terms of contracts for service and prewhich is subject to the provisions of the scribes a measure only for the purpose of Act of February fourth, eighteen hundred reckoning compensation. This is the whole and eighty-seven, entitled "An Act to Regu- effect of the 1st section. To shorten the late Commerce" [24 Stat. at L. 379, chap. discussion, I will concede, arguendo, that 104, Comp. Stat. 1913, § 8563], as amended, this section of itself is not in conflict with and who are now or may hereafter be act- the Constitution. This being assumed, the ually engaged in any capacity in the opera- 2d section evidently is unexceptionable. tion 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 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, chap. 2939, 34 Stat. at L. 1415, Comp. Stat. 1913, § 8677. 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 Serious difficulty appears, however, when we come to consider the operation and effect of the 3d section in connection with the 1st and 2d. 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 affect ed. 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 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 com |