Edward Douglass White

“ 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 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. ”

“ 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. ”

“ 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? ”

“ The origin and basis of the governmental power to regulate rates are in the right of the public to demand 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 doing of one thing which is authorized cannot be made the source of an authority to do another thing which there is no powed 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. ”

“ 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? ”

“ 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. ”

“ And, though it be a regulation of commerce, it is void if it conflicts with the provisions of the 5th 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 Nav. ”

“ 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. ”

“ 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. ”

“ 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 the coal miners, the car builders, or the producers of any other commodity essential to the proper movement of traffic. ”

“ 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 operations, the expense to be recompensed through its rates. ”

“ 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. ”

“ Only an eight-hour standard for work 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 in so far 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. ”

“ 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 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ As a measure for improving the quality of railroad locomotives, a law requiring the companies to pay 25 per cent more than before for each locomotive, without stipulating for any improvement in the quality, would be absurdly ineffective. ”

“ 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. ”

“ 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 to do so is appropriate or relevant to the business regulated. ”

“ 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. ”

“ Time will be computed continuously from time required for duty until release from duty and responsibility at end of day or run.' 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 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. ”

“ 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. ”

“ 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. ”

“ 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 of the enactment, expresses its inability to fix, in advance of investigation, a just and proper wage for the employees concerned. ”