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ment was justly entitled to the additional rate of postage as ruled by the Postmaster General. The result of the decision established not only the right of the Government to receive the additional postage, pending the controversy, but also established the fact that the publishers had received a very considerable amount of service from the Government in carrying the publications through the mails at a rate less than it was entitled to charge.

We do not perceive, in this condition of affairs, any room for the application of the doctrine laid down in Russell v. Farley, which permits a court to relieve from liability on an injunction bond. The result of this litigation leaves no doubt as to the rights of the parties, and the Government's right to avail itself of the security given to secure payment of the postage which it was legally entitled to charge.

It is not necessary for us to decide whether further and other security might not have been required under Equity Rule 93, or otherwise, as a condition of continuing the injunction after final judgment. What we determine is that this undertaking was authorized and given in pursuance of $ 718, Rev. Stat., and should be construed accordingly. The District Court of Appeals should have sustained the order of the Supreme Court of the District, declining to assess any damages on the bond, except for the period from the time the bond was approved until March 10, 1903, the date of the decree in the court of original jurisdiction.

The judgment of the Court of Appeals giving damages for the entire period of the litigation and until the legal rate of postage was paid by appellants should be modified so as to include only damages for the period covered by the restraining order, as above stated, and, as so modified,

Affirmed, costs in this court to be equally divided.

208 U. 8.





No. 293. Argued October 29, 30, 1907.-Decided January 27, 1908.

It is not within the power of Congress to make it a criminal offense against

the United States for a carrier engaged in interstate commerce, or an agent or officer thereof, to discharge an employé simply because of his membership in a labor organization; and the provision to that effect in § 10 of the act of June 1, 1898, 30 Stat. 424, concerning interstate carriers is an invasion of personal liberty, as well as of the right of property, guaranteed by the Fifth Amendment to the Constitution of the United States, and is therefore unenforceable as repugnant to the declaration of that amendment that no person shall be deprived of liberty

or property without due process of law. While the rights of liberty and property guaranteed by the Constitution

against deprivation without due process of law, are subject to such reasonable restrictions as the common good or general welfare may require, it is not within the functions of government-at least in the absence of contract—to compel any person in the course of his business, and against his will, either to employ, or be employed by, another. An employer has the same right to prescribe terms on which he will employ one to labor as an employé has to prescribe those on which he will sell his labor, and any legislation which disturbs this equality is an arbitrary

and unjustifiable interference with liberty of contract. Quære, and not decided, whether it is within the power of Congress to make

it a criminal offense against the United States for either an employer engaged in interstate commerce, or his employé, to disregard, without

sufficient notice or excuse, the terms of a valid labor contract. The power to regulate interstate commerce is the power to prescribe rules by

which such commerce must be governed, but the rules prescribed must have a real and substantial relation to, or connection with, the commerce regulated, and as that relation does not exist between the membership of an employé in a labor organization and the interstate commerce with which he is connected, the provision above referred to in § 10 of the act of June 1, 1898 cannot be sustained as a regulation of interstate com

merce and as such within the competency of Congress. The power to regulate interstate commerce, while great and paramount,

cannot be exerted in violation of any fundamental right secured by other provisions of the National Constitution.


Argument for Plaintiff in Error.

208 U.S.

The provision above referred to, in 10 of the act of June 1, 1898, is sever

able, and its unconstitutionality may not affect other provisions of the act or provisions of that section thereof.

THE facts, which involve the constitutionality of § 10 of the act of Congress, concerning carriers engaged in interstate commerce (known as the Erdman Act), passed June 1, 1898, c. 370, 30 Stat. 424, are stated in the opinion.

Mr. Benjamin D. Warfield, with whom Mír. Henry L. Stone was on the brief, for plaintiff in error:

Section 10 is unconstitutional. If it affects commerce at all, it does so only obliquely, remotely, indirectly and coilaterally. A regulation of commerce to come within the meaning of the commerce clause of the Constitution, must be direct and substantial, and not merely indirect, remote, incident. and collateral. Therefore $ 10 was beyond the power of Congress to enact. Addyston Pipe & Steel Co. v. United States, 175 U. S. 211; Hopkins v. United States, 171 U. S. 578; United States v. E. C. Knight Co., 156 U. S. 1; Hooper v. California, 105 U. S. 648, 654; Williams v. Fears, 179 L'. S. 270, 278; Munn v. Illinois, 94 U. S. 113; À ugler v. Kansas, 123 U.S. 623, 661. See also L. & N. R. Co. v. Kentucky, 161 U.S. 677; Smith v. Alabama, 124 U. S. 465; Sherlock v. Alling, 93 U.S. 102; L. S. & M. S. R. R. Co. v. Smith, 173 U. S. 684.

The act under consideration does not prescribe any rule as to traffic or transportation. No rule whatever is laid down. There are no regulations to which the carrier is required to conform, or failing in obedience to which it is to be rendered liable in a civil or a criminal forum. The act is a bold attempt to regulate an ordinary relation of life-of master and servant-one hitherto supposed to be entirely within state control.

Section 10 violates the Fifth Amendment. It impairs, if it does not in fact destroy, the valuable property right of con-. tract. Similar state statutes have been declared unconstitutional. State v. Julow, 31 S. W. Rep. 781; Gillespie v. People, 58 N. E. Rep. 1007; State ex rel. Zillmer v. Kreutzberg, 90

208 U. S.

Argument for Defendant in Error.

N. W. Rep. 1098; People v. Marcus, 77 N. E. Rep. 1073; Wallace v. Georgia C. & N. Ry. Co., 22 S. E. Rep. 579; New York &c. R. Co. v. Shaffer, 62 N. E. Rep. 1036. See also Shaver v. Pennsylvania Co., 71 Fed. Rep. 931; Brewster v. Miller's Sons & Co., 101 Kentucky, 358; Hundley v. L. & N. R. Co., 105 Kentucky, 162; Allgeyer v. Louisiana, 165 U. S. 578; Arthur v. Oakes, 63 Fed. Rep. 310.

Section 10 is unconstitutional as class legislation. The classification is unreasonable. The statute attempts to confer privileges upon union labor that are not conferred upon nonunion labor. No restraint whatever is imposed upon carriers with respect to discharging or discriminating against non-union laborers. However lawful it may be for employés to organize and become members of labor unions or associations, under . our form of government, which guarantees equal privileges to all before the law, it is not competent for Congress, or state legislatures, to make such an unreasonable classification as in the statute before us, whereby union labor is preferred as against non-union labor. Johnson v. Ry. Co., 43 Minnesota, 223; S. C., 8 L. R. A. 419; Gulf, Col. & Santa Ry. Co. v. Elis, 165 U. S. 150; Robertson v. Baldwin, 165 U. S. 275.

The Attorney General and Mr. William R. Harr, Special Assistant to the Attorney General, for defendant in error:

Section 10 of the act has a clear and direct relation to interstate commerce. Its constitutionality is not to be determined by considering it separately from the other provisions of the act, as was done by Judge Evans in United States v. Scott, 148 Fed. Rep. 431. Considered in the light of the other provisions of the act and the purpose which pervades the entire statute, the relation of $10 to interstate commerce is at once apparent. In construing statutes the whole statute and all of its parts are to be taken together. Pennington v. Coxe, 2 Cranch, 34.

The manifest purpose of the act is the protection of interstate and foreign commerce by the avoidance of strikes, lockouts, etc., which are the forms such interruptions usually assume.

Argument for Defendant in Error.

208 U.S.

The history of the act removes any doubt on this point. It was the result of the great railroad strike at Chicago in June-July, 1894. See Senate Rep. 591, 55th Cong., 2d Session; H. Rep. 454, 55th Cong., 2d Session.

It recognized the fact that such interruptions were not apt to assume serious proportions unless the employés were members of labor organizations and the latter became involved in it. Congress also recognized the fact that discrimination against employés because of their membership in a labor organization was calculated to bring on such disturbances. For the purpose, therefore, of preventing these interruptions, it provided means for the arbitration of disputes between the carriers and their employés through the labor organizations to which the latter belonged, and forbade discrimination against employés because of their membership in such organizations.

The relation of the inhibitions in $10 to the general scheme for the protection of interstate commerce embodied in the act against interruption by strikes, lockouts, etc., is therefore apparent. Congress has the constituţional authority so to regulate the business of a common carrier engaged in interstate commerce as adequately to protect and safeguard the interests of such commerce.

The right of individuals or corporations to make contracts and do business is at all times subservient to the power of Congress to regulate interstate commerce, and common carriers are subject to greater control than private individuals by the State or Congress (according as their business is local or interstate), on account of the public nature of such business. See United States v. Trans-Missouri Freight Association, 166 U. S. 290; United States v. Joint Traffic Association, 171 U. S. 505; Addyston Pipe and Steel Co. v. United States, 175 U. S. 211; United States v. Northern Securities Co., 193 U. S. 197; United States v. Swift & Co., 196 U. S. 375.

When the business of the carrier is interstate, the power of the State to control the conduct of its business in the interest of the public health, safety or convenience is subject to the

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