ADAIR v. UNITED STATES.
No. 293.
SUPREME COURT OF THE UNITED STATES
208 U.S. 161; 28 S. Ct. 277; 1908 U.S. LEXIS 1431; 52 L. Ed. 436
Argued October 29, 30, 1907.
January 27, 1908, Decided
OPINION: [*166] [**277] MR. JUSTICE
HARLAN delivered the opinion of the court.
This case involves the constitutionality of certain provisions of the act of
Congress of June 1, 1898, 30 Stat. 424, c. 370, [*167] concerning
carriers engaged in interstate commerce and their employes.
By the first section of the act it is provided: "That the provisions of
this act shall apply to any common carrier or carriers and their officers,
agents, and employes, except masters of vessels and seamen, as defined in
section 4612, Revised [***12] Statutes of the United States,
engaged in the transportation of passengers or property wholly by railroad, or
partly by railroad and partly by water, for a continuous carriage or shipment,
from one 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, or from any place in the United States to an adjacent foreign
country, or from any place in the United States through a foreign country to
any other place in the United States. The term 'railroad' as used in this act
shall include all bridges and ferries used or operated in connection with any
railroad, and also all the road in use by any corporation operating a railroad,
whether owned or operated under a contract, agreement or lease; and the term
'transportation' shall include all instrumentalities of shipment or carriage.
The term 'employes' as used in this act shall include all persons actually
engaged in any capacity in train operation or train service of any description,
and notwithstanding that the cars upon or in which they are employed may be
held and operated by the carrier under lease or other contract: Provided,
however, That [***13] this act shall not be held to apply to
employes of street railroads and shall apply only to employes engaged in
railroad train service. In every such case the carrier shall be responsible for
the acts and defaults of such employes in the same manner and to the same
extent as if said cars were owned by it and said employes directly employed by
it, and any provisions to the contrary of any such lease or other contract
shall be binding only as between the parties thereto and shall not affect the
obligations of said carrier either to the public or to the private parties
concerned."
[*168] The 2d, 3d, 4th, 5th, 6th, 7th, 8th and 9th sections relate
to the settlement, by means of arbitration, of controversies concerning wages,
hours of labor, or conditions of employment arising between a carrier subject
to the provisions of the act and its employes, which seriously interrupt or
[**278] threaten to interrupt the business of the carrier. Those
sections prescribe the mode in which controversies may be brought under the
cognizance of arbitrators, in what way the arbitrators may be designated, and
the effect of their decisions. The first subdivision of § 3 contains a proviso,
"that [***14] no employe shall be compelled to render personal
service without his consent."
The 11th section relates to the compensation and expenses of the arbitrators.
By the 12th section the act of Congress of October 1, 1888, 25 Stat. 501, c.
1063, creating boards of arbitrators or commissioners for settling
controversies and differences between railroad corporations and other common
carriers engaged in interstate or territorial transportation of persons or
property and their employes, was repealed.
The 10th section, upon which the present prosecution is based, is in these
words:
"That any employer subject to the provisions of this act and any officer,
agent, or receiver of such employer, who shall require any employe, or any
person seeking employment, as a condition of such employment, to enter into an
agreement, either written or verbal, not to become or remain a member of any
labor corporation, association, or organization; or shall threaten any employe
with loss of employment, or shall unjustly discriminate against any employe
because of his membership in such a labor corporation, association, or
organization; or who shall require any employe or any person seeking
employment, as [***15] a condition of such employment, to enter
into a contract whereby such employe or applicant for employment shall agree to
contribute to any fund for charitable, social, or beneficial purposes; to
release such employer from legal liability for any personal injury by reason of
any benefit received from [*169] such fund beyond the proportion of
the benefit arising from the employer's contribution to such fund; or who
shall, after having discharged an employe, attempt or conspire to prevent such
employe from obtaining employment, or who shall, after the quitting of an
employe, attempt or conspire to prevent such employe from obtaining employment,
is hereby declared to be guilty of a misdemeanor, and, upon conviction thereof
in any court of the United States of competent jurisdiction in the district in
which such offense was committed, shall be punished for each offense by a fine
of not less than one hundred dollars and not more than one thousand
dollars."
It may be observed in passing that while that section makes it a crime against
the United States to unjustly discriminate against an employe of an interstate
carrier because of his being a member of a labor organization, it does
[***16] not make it a crime to unjustly discriminate against an
employe of the carrier because of his not being a member of such an
organization.
The present indictment was in the District Court of the United States for the
Eastern District of Kentucky against the defendant Adair.
The first count alleged "that at and before the time hereinafter named the
Louisville and Nashville Railroad Company is and was a railroad corporation,
duly organized and existing by law and a common carrier engaged in the
transportation of passengers and property wholly by steam railroad for a
continuous carriage and shipment from one State of the United States to another
State of the United States of America, that is to say, from the State of
Kentucky into the States of Ohio, Indiana and Tennessee, and from the State of
Ohio into the State of Kentucky, and was at all times aforesaid and at the time
of the commission of the offense hereinafter named, a common carrier of
interstate commerce, and an employer, subject to the provisions of a certain
act of Congress of the United States of America, entitled, 'An Act concerning
carriers engaged in interstate commerce and their employes,' approved June 1,
1898, and [***17] said corporation was not at any [*170]
time a street railroad corporation. That before and at the time of the
commission of the offense hereinafter named one William Adair
was an agent and employe of said common carrier and employer, and was at all
said times master mechanic of said common carrier and employer in the district
aforesaid, and before and at the time hereinafter stated one O. B. Coppage was
an employe of said common carrier and employer in the district aforesaid, and
as such employe was at all times hereinafter named actually engaged in the
capacity of locomotive fireman in train operation and train service for said
common carrier and employer in the transportation of passengers and property
aforesaid, and was an employe of said common carrier and employer actually
engaged in said railroad transportation and train service aforesaid, to whom
the provisions of said act applied, and at the time of the commission of the
offense hereinafter named said O. B. Coppage was a member of a certain labor
organization, known as the Order of Locomotive Firemen, as he the said William Adair
then and there well knew, a more particular description of said organization
and the members [***18] thereof is to the grand jurors
unknown."
The specific charge in that count was "that said William Adair,
agent and employe of said common carrier and employer [**279] as
aforesaid, in the district aforesaid, on and before the 15th day of October,
1906, did unlawfully and unjustly discriminate against said O. B. Coppage,
employe as aforesaid, by then and there discharging said O. B. Coppage from
such employment of said common carrier and employer, because of his membership
in said labor organization, and thereby did unjustly discriminate against an
employe of a common carrier and employer engaged in interstate commerce because
of his membership in a labor organization, contrary to the forms of the statute
in such cases made and provided, and against the peace and dignity of the
United States."
The second count repeated the general allegations of the first count as to the
character of the business of the Louisville [*171] and Nashville
Railroad Company and the relations between that corporation and Adair
and Coppage. It charged "that said William Adair, in the
district aforesaid and within the jurisdiction of this court, agent and employe
of said common carrier and employer [***19] aforesaid, on and
before the 15th day of October, 1906, did unlawfully threaten said O. B.
Coppage, employe as aforesaid, with loss of employment, because of his membership
in said labor organization, contrary to the forms of the statute in such cases
made and provided, and against the peace and dignity of the United
States."
The accused Adair demurred to the indictment as insufficient
in law, but the demurrer was overruled. After reviewing the authorities, in an
elaborate opinion, the court held the tenth section of the act of Congress to
be constitutional. 152 Fed. Rep. 737. The defendant pleaded not guilty, and
after trial a verdict was returned of guilty on the first count and a judgment
rendered that he pay to the United States a fine of $100. We shall, therefore,
say nothing as to the second count of the indictment.
It thus appears that the criminal offense charged in the count of the
indictment upon which the defendant was convicted was, in substance and effect,
that being an agent of a railroad company engaged in interstate commerce and
subject to the provisions of the above act of June 1, 1898, he discharged one
Coppage from its service because of his membership in [***20] a
labor organization -- no other ground for such discharge being alleged.
May Congress make it a criminal offense against the United States -- as by the
tenth section of the act of 1898 it does -- for an agent or officer of an
interstate carrier, having full authority in the premises from the carrier, to
discharge an employe from service simply because of his membership in a labor
organization?
This question is admittedly one of importance, and has been examined with care
and deliberation. And the court has reached a conclusion which, in its
judgment, is consistent [*172] with both the words and spirit of
the Constitution and is sustained as well by sound reason.
The first inquiry is whether the part of the tenth section of the act of 1898
upon which the first count of the indictment was based is repugnant to the
Fifth Amendment of the Constitution declaring that no person shall be deprived
of liberty or property without due process of law. In our opinion that section,
in the particular mentioned, is an invasion of the personal liberty, as well as
of the right of property, guaranteed by that Amendment. Such liberty and right
embraces the right to make contracts for the [***21] purchase of
the labor of others and equally the right to make contracts for the sale of
one's own labor; each right, however, being subject to the fundamental
condition that no contract, whatever its subject matter, can be sustained which
the law, upon reasonable grounds, forbids as inconsistent with the public
interests or as hurtful to the public order or as detrimental to the common
good. This court has said that "in every well-ordered society, charged
with the duty of conserving the safety of its members, the rights of the
individual in respect of his liberty may, at times, under the pressure of great
dangers, be subjected to such restraint, to be enforced by reasonable
regulations, as the safety of the general public may demand." Jacobson v.
Massachusetts, 197 U.S. 11, 29, and authorities there cited. Without stopping
to consider what would have been the rights of the railroad company under the
Fifth Amendment, had it been indicted under the act of Congress, it is
sufficient in this case to say that as agent of the railroad company and as
such responsible for the conduct of the business of one of its departments, it
was the defendant Adair's right -- and that right inhered in
[***22] his personal liberty, and was also a right of property --
to serve his employer as best he could, so long as he did nothing that was
reasonably forbidden by law as injurious to the public interests. It was the
right of the defendant to prescribe the terms upon which the services of
Coppage would be accepted, and it was the right of Coppage to become or not,
[*173] as he chose, an employe of the railroad company upon the
terms offered to him. Mr. Cooley, in his treatise on Torts, p. 278, well says:
"It is a part of every man's civil rights that he be left at liberty to
refuse business relations with any person whomsoever, whether the refusal rests
upon reason, or is the result of whim, caprice, [**280] prejudice
or malice. With his reasons neither the public nor third persons have any legal
concern. It is also his right to have business relations with any one with whom
he can make contracts, and if he is wrongfully deprived of this right by
others, he is entitled to redress."
In Lochner v. New York, 198 U.S. 45, 53, 56, which involved the validity of a
state enactment prescribing certain maximum hours for labor in bakeries, and
which made it a misdemeanor for an employer [***23] to require or
permit an employe in such an establishment to work in excess of a given number
of hours each day, the court said: "The general right to make a contract
in relation to his business is part of the liberty of the individual protected
by the Fourteenth Amendment of the Federal Constitution. Allgeyer v. Louisiana,
165 U.S. 578.Under that provision no State can deprive any person of life,
liberty or property without due process of law. The right to purchase or to
sell labor is part of the liberty protected by this amendment, unless there are
circumstances which exclude the right. There are, however, certain powers,
existing in the sovereignty of each State in the Union, somewhat vaguely termed
police powers, the exact description and limitation of which have not been
attempted by the courts. Those powers, broadly stated and without, at present,
any attempt at a more specific limitation, relate to the safety, health, morals
and general welfare of the public.Both property and liberty are held on such
reasonable conditions as may be imposed by the governing power of the State in
the exercise of those powers, and with such conditions the Fourteenth Amendment
was not designed [***24] to interfere. Mugler v. Kansas, 123 U.S.
623; In re Kemmler, 136 U.S. 436; Crowley v. Christensen, 137 U.S. 86; In re
Converse, 137 U.S. 624. . . . In every case that [*174] comes
before this court, therefore, where legislation of this character is concerned
and where the protection of the Federal Constitution is sought, the question
necessarily arises: Is this a fair, reasonable and appropriate exercise of the
police power of the State, or is it an unreasonable, unnecessary and arbitrary
interference with the right of the individual to his personal liberty or to
enter into those contracts in relation to labor which may seem to him
appropriate or necessary for the support of himself and his family? Of course
the liberty of contract relating to labor includes both parties to it. The one
has as much right to purchase as the other to sell labor." Although there
was a difference of opinion in that case among the members of the court as to
certain propositions, there was no disagreement as to the general proposition
that there is a liberty of contract which cannot be unreasonably interfered
with by legislation. The minority were of opinion that the business referred to
in the [***25] New York statute was such as to require regulation,
and that as the statute was not shown plainly and palpably to have imposed an
unreasonable restraint upon freedom of contract, it should be regarded by the
courts as a valid exercise of the State's power to care for the health and
safety of its people.
While, as already suggested, the rights of liberty and property guaranteed by
the Constitution against deprivation without due process of law, is subject to
such reasonable restraints as the common good or the general welfare may
require, it is not within the functions of government -- at least in the
absence of contract between the parties -- to compel any person in the course
of his business and against his will to accept or retain the personal services
of another, or to compel any person, against his will, to perform personal
services for another. The right of a person to sell his labor upon such terms
as he deems proper is, in its essence, the same as the right of the purchaser
of labor to prescribe the conditions upon which he will accept such labor from
the person offering to sell it. So the right of the employe to quit the service
of the employer, [*175] for whatever [***26] reason, is
the same as the right of the employer, for whatever reason, to dispense with
the services of such employe. It was the legal right of the defendant Adair
-- however unwise such a course might have been -- to discharge Coppage because
of his being a member of a labor organization, as it was the legal right of
Coppage, if he saw fit to do so -- however unwise such a course on his part
might have been -- to quit the service in which he was engaged, because the
defendant employed some persons who were not members of a labor organization.
In all such particulars the employer and the employe have equality of right,
and any legislation that disturbs that equality is an arbitrary interference
with the liberty of contract which no government can legally justify in a free
land. These views find support in adjudged cases, some of which are cited in
the margin. n1 Of course, if the parties by contract fix the period of service,
[**281] and prescribe the conditions upon which the contract may be
terminated, such contract would control the rights of the parties as between
themselves, and for any violation of those provisions the party wronged would
have his appropriate civil action. [***27] And it may be -- but
upon that point we express no opinion -- that in the case of a labor contract
between an employer engaged in interstate commerce and his employe, Congress
could make it a crime for either party without sufficient or just excuse or notice
to disregard the terms of such contract or to refuse to perform it. In the
absence, however, of a valid contract between the parties controlling their
conduct towards each other and fixing a period of service, it cannot be, we
repeat, that an employer is under any legal obligation, against his will, to
retain an employe in his personal service any more than an employe
[*176] can be compelled, against his will, to remain in the
personal service of another. So far as this record discloses the facts the
defendant, two seemed to have authority in the premises, did not agree to keep
Coppage in service for any particular time, nor did Coppage agree to remain in
such service a moment longer than he chose.The latter was at liberty to quit
the service without assigning any reason for his leaving. And the defendant was
at liberty, in his discretion, to discharge Coppage from service without giving
any reason for so doing.
n1 People v. Marcus, 185 N.Y. 257; National Protection Assn. v. Cummings, 170
N.Y. 315; Jacobs v. Cohen, 183 N.Y. 207; State v. Julow, 129 Missouri, 163;
State v. Goodwill, 33 W. Va. 179; Gillespie v. People, 188 Illinois, 176; State
v. Kreutzberg, 114 Wisconsin, 530; Wallace v. Georgia, C. & N. Ry. Co., 94
Georgia, 732; Hundley v. L. & N.R.R. Co., 105 Kentucky, 162; Brewster v.
Miller's Sons & Co., 101 Kentucky, 268; N.Y. &c. R.R. Co. v. Schaffer,
65 Ohio St. 414; Arthur v. Oakes, 63 Fed. Rep. 310. [***28]
As the relations and the conduct of the parties towards each other was not
controlled by any contract other than a general agreement on one side to accept
the services of the employe and a general agreement on the other side to render
services to the employer -- no term being fixed for the continuance of the
employment -- Congress could not, consistently with the Fifth Amendment, make
it a crime against the United States to discharge the employe because of his
being a member of a labor organization.
But it is suggested that the authority to make it a crime for an agent or
officer of an interstate carrier, having authority in the premises from his
principal, to discharge an employe from service to such carrier, simply because
of his membership in a labor organization, can be referred to the power of
Congress to regulate interstate commerce, without regard to any question of
personal liberty or right of property arising under the Fifth Amendment. This
suggestion can have no bearing in the present discussion umess the statute, in
the particular just stated, is within the meaning of the Constitution a
regulation of commerce among the States. If it be not, then clearly the
Government [***29] cannot invoke the commerce clause of the
Constitution as sustaining the indictment against Adair.
Let us inquire what is commerce, the power to regulate which is given to
Congress?
This question has been frequently propounded in this court, and the answer has
been -- and no more specific answer could [*177] well have been
given -- that commerce among the several States comprehends traffic, intercourse,
trade, navigation, communication, the transit of persons and the transmission
of messages by telegraph -- indeed, every species of commercial intercourse
among the several States, but not to that commerce "completely internal,
which is carried on between man and man, in a State, or between different parts
of the same State, and which does not extend to or affect other States."
The power to regulate interstate commerce is the power to prescribe rules by
which such commerce must be governed. n1 Of course, as has been often said,
Congress has a large discretion in the selection or choice of the means to be
employed in the regulation of interstate commerce, and such discretion is not
to be interfered with except where that which is done is in plain violation of
the Constitution. [***30] [**282] Northern Securities
Co. v. United States, 193 U.S. 197, and authorities there cited. In this
connection we may refer to Johnson v. Railroad, 196 U.S. 1, relied on in
argument, which case arose under the act of Congress of March 2, 1893, 27 Stat.
531, c. 196. That act required carriers engaged in interstate commerce to equip
their cars used in such commerce with automatic couplers and continuous brakes,
and their locomotives with driving wheel brakes. But the act upon its face
showed that its object was to promote the safety of employes and travelers upon
railroads; and this court sustained its validity upon the ground that it
manifestly had reference to interstate commerce and was calculated to subserve
the interests of such commerce by affording protection to employes and
travelers. It was held that there was a substantial connection between the
object sought to be attained by the act and the means provided to accomplish
that object. So, in regard to Employers' Liability [*178] Cases,
207 U.S. 463, decided at the present term. In that case the court sustained the
authority of Congress, under its power to regulate interstate commerce, to
prescribe the rule of [***31] liability, as between interstate
carriers and its employes in such interstate commerce, in cases of personal
injuries received by employes while actually engaged in such commerce. The
decision on this point was placed on the ground that a rule of that character
would have direct reference to the conduct of interstate commerce, and would,
therefore, be within the competency of Congress to establish for commerce among
the States, but not as to commerce completely internal to a State. 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. But what possible legal or logical connection is there
between an employe'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
employe is connected by his labor and services. Labor associations, we assume,
are organized for the general purpose of improving or bettering the conditions
[***32] and conserving the interests of its members as wage-earners
-- an object entirely legitimate and to be commended rather than condemned. But
surely those associations as labor organizations have nothing to do with
interstate commerce as such. One who engages in the service of an interstate
carrier will, it must be assumed, faithfully perform his duty, whether he be a
member or not a member of a labor organization. His fitness for the position in
which he labors and his diligence in the discharge of his duties cannot in law
or sound reason depend in any degree upon his being or not being a member of a
labor organization. It cannot be assumed that his fitness is assured, or his
diligence increased, by such membership, or that he is less fit or less
diligent because [*179] of his not being a member of such an
organization. It is the employe as a man and not as a member of a labor
organization who labors in the service of an interstate carrier. Will it be
said that the provision in question had its origin in the apprehension, on the
part of Congress, that if it did not show more consideration for members of
labor organizations than for wage-earners who were not members of such
[***33] organizations, or if it did not insert in the statute some
such provision as the one here in question, members of labor organizations
would, by illegal or violent measures, interrupt or impair the freedom of
commerce among the States? We will not indulge in any such conjectures, nor
make them, in whole or in part, the basis of our decision. We could not do so
consistently with the respect due to a coordinate department of the Government.
We could not do so without imputing to Congress the purpose to accord to one
class of wage-earners privileges withheld from another class of wage-earners
engaged, it may be, in the same kind of labor and serving the same employer.
Nor will we assume, in our consideration of this case, that members of labor
organizations will, in any considerable numbers, resort to illegal methods for
accomplishing any particular object they have in view.
n1 Gibbons v. Ogden, 9 Wheat. 1; Passenger Cases, 7 How. 283; Almy v. State of
California, 24 How. 169; Pensacola Tel. Co. v. Western Union Tel. Co., 96 U.S.
1, 9, 12; County of Mobile v. Kimball, 102 U.S. 691; Western Union Tel. Co. v.
Pendleton, 122 U.S. 347, 356; Lottery Case, 188 U.S. 321, 352; Northern
Securities Co. v. United States, 193 U.S. 197; Employers' Lia bility Cases, 207
U.S. 463. [***34]
Looking alone at the words of the statute for the purpose of ascertaining its
scope and effect, and of determining its validity, we hold that there is no
such connection between interstate commerce and membership in a labor
organization as to authorize Congress to make it a crime against the United
States for an agent of an interstate carrier to discharge an employe because of
such membership on his part. If such a power exists in Congress it is difficult
to perceive why it might not, by absolute regulation, require interstate
carriers, under penalties, to employ in the conduct of its interstate business
only members of labor organizations, or only those who are not members of such organizations
-- a power which could not be recognized as existing under the Constitution of
the United States. [**283] No such rule of criminal liability as
that to which [*180] we have referred can be regarded as, in any
just sense, a regulation of interstate commerce. We need scarcely repeat what
this court has more than once said, that the power to regulate interstate
commerce, great and paramount as that power is, cannot be exerted in violation
of any fundamental right secured by other [***35] provisions of the
Constitution. Gibbons v. Ogden, 9 Wheat. 1, 196; Lottery Case, 188 U.S. 321,
353.
It results, on the whole case, that the provision of the statute under which
the defendant was convicted must be held to be repugnant to the Fifth Amendment
and as not embraced by nor within the power of Congress to regulate interstate
commerce, but under the guise of regulating interstate commerce and as applied
to this case it arbitrarily sanctions an illegal invasion of the personal
liberty as well as the right of property of the defendant Adair.
We add that since the part of the act of 1898 upon which the first count of the
indictment is based, and upon which alone the defendant was convicted, is
severable from its other parts, and as what has been said is sufficient to
dispose of the present case, we are not called upon to consider other and
independent provisions of the act, such, for instance, as the provisions
relating to arbitration. This decision is therefore restricted to the question
of the validity of the particular provision in the act of Congress making it a
crime against the United States for an agent or officer of an interstate
carrier to discharge an employe from [***36] its service because of
his being a member of a labor organization.
The judgment must be reversed, with directions to set aside the verdict and
judgment of conviction, sustain the demurrer to the indictment, and dismiss the
case.
It is so ordered.
MR. JUSTICE MOODY did not participate in the decision of this case.
DISSENTBY: MCKENNA; HOLMES
DISSENT: MR. JUSTICE McKENNA, dissenting.
The opinion of the court proceeds upon somewhat narrow [*181] lines
and either omits or does not give adequate prominence to the considerations
which, I think, are determinative of the questions in the case. The principle
upon which the opinion is grounded is, as I understand it, that a labor
organization has no legal or logical connection with interstate commerce, and
that the fitness of an employe has no dependence or relation with his
membership in such organization. It is hence concluded that to restrain his
discharge merely on account of such membership is an invasion of the liberty of
the carrier guaranteed by the Fifth Amendment of the Constitution of the United
States. The conclusion is irresistible if the propositions from which it is
deduced may be viewed as abstractly as the opinion views [***37]
them. May they be so viewed?
A summary of the act is necessary to understand § 10. Detach that section from
the other provisions of the act and it might be open to condemnation.
The first section of the act designates the carriers to whom it shall apply.
The second section makes it the duty of the Chairman of the Interstate Commerce
Commission and the Commissioner of Labor, in case of a dispute between carriers
and their employes which threatens to interrupt the business of the carriers,
to put themselves in communication with the parties to the controversy and use
efforts to "mediation and conciliation." If the efforts fail, then §
3 provides for the appointment of a board of arbitration -- one to be named by
the carrier, one by the labor organization to which the employes belong, and
the two thus chosen shall select a third.
There is a provision that if the employes belong to different organizations
they shall concur in the selection of the arbitrator. The board is to give
hearings; power is invested in the board to summon witnesses, and provision is
made for filing the award in the clerk's office of the Circuit Court of the United
States for the district where the controversy [***38] arose. Other
sections complete the scheme of arbitration thus outlined, and make, as far as
possible, the proceedings of the arbitrators [*182] judicial, and
pending them put restrictions on the parties and damages for violation of the
restrictions.
Even from this meager outline may be perceived the justification and force of §
10. It prohibits discrimination by a carrier engaged in interstate commerce, in
the employment under the circumstances hereafter mentioned or the discharge
from employment of members of labor organizations "because of such
membership." This the opinion condemns. The actions prohibited, it is
asserted, are part of the liberty of a carrier protected by the Constitution of
the United States from limitation or regulation. I may observe that the
declaration is clear and unembarrassed by any material benefit to the carrier
from its exercise. It may be exercised with reason or without reason, though
the business of the carrier is of public concern. This, then, is the
contention, and I bring its elements into bold relief to submit against them
what I deem to be stronger considerations, based on the statute and sustained
by authority.
I take for granted [***39] that the expressions of
[**284] the opinion of the court, which seem to indicate that the
provisions of § 10 are illegal because their violation is made criminal, are
used only for description and incidental emphasis, and not as the essential
ground of the objections to those provisions.
I may assume at the outset that the liberty guaranteed by the Fifth Amendment
is not a liberty free from all restraints and limitations, and this must be so
or government could not be beneficially exercised in many cases. Therefore in
judging of any legislation which imposes restraints or limitations the inquiry
must be, what is their purpose and is the purpose within one of the powers of
government? Applying this principle immediately to the present case without
beating about in the abstract, the inquiry must be whether § 10 of the act of
Congress has relation to the purpose which induced the act and which it was
enacted to accomplish, and whether such purpose is in aid of interstate
commerce and not a mere restriction upon the liberty of carriers to employ whom
they please, or to have business relations with whom they please. In the
inquiry there [*183] is necessarily involved a definition
[***40] of interstate commerce and of what is a regulation of it.
As to the first, I may concur with the opinion; as to the second, an immediate
and guiding light is afforded by the Employers' Liability Cases, recently
decided, 207 U.S. 463. In those cases there was a searching scrutiny of the
powers of Congress, and it was held to be competent to establish a new rule of
liability of the carrier to his employes -- in a word, competent to regulate
the relation of master and servant, a relation apparently remote from commerce,
and one which was earnestly urged by the railroad to be remote from commerce.
To the contention the court said: "But we may not test the power of
Congress to regulate commerce solely by abstractly considering the broad
subject to which a regulation relates, irrespective of whether the regulation
in question is one of interstate commerce. On the contrary, the test of power
is not merely the matter regulated, but whether the regulation is directly one
of interstate commerce or is embraced within the grant conferred on Congress to
use all lawful means necessary and appropriate to the execution of that power
to regulate commerce." In other words, that the power is not confined
[***41] to a regulation of the mere movement of goods or persons.
And there are other examples in our decisions -- examples, too, of liberty of
contract and liberty of forming business relations (made conspicuous as grounds
of decision in the present case) -- which were compelled to give way to the
power of Congress. Northern Securities Company v. United States, 193 U.S. 197.
In that case exactly the same definitions were made as made here and the same
contentions were pressed as are pressed here. The Northern Securities Company
was not a railroad company. Its corporate powers were limited to buying,
selling and holding stock, bonds and other securities, and, it was contended,
that as such business was not commerce at all it could not be within the power
of Congress to regulate. The contention was not yielded to, though it had the
support of members of this court. Asserting the application of the Anti-Trust [*184]
Act of 1890 to such business and the power of Congress to regulate it, the
court said "that a sound construction of the Constitution allows to
Congress a large discretion 'with respect to the means by which the powers it
[the commerce clause] confers are to be carried [***42] into
execution, which enables that body to perform the high duties assigned to it,
in the manner most beneficial to the people.'" It was in recognition of
this principle that it was declared in United States v. Joint Traffic Association,
171 U.S. 571: "The prohibition of such contracts [contracts fixing rates]
may in the judgment of Congress be one of the reasonable necessities of proper
regulation of commerce, and Congress is the judge of such necessity and
propriety, unless, in case of a possible gross perversion of the principle, the
courts might be applied to for relief." The contentions of the parties in
the case invoked the declaration. There as here an opposition was asserted
between the liberty of the railroads to contract with one another and the power
of Congress to regulate commerce. That power was pronounced paramount, and it
was not perceived, as it seems to be perceived now, that it was subordinate and
controlled by the provisions of the Fifth Amendment. Nor was the relation of
the power of Congress to that amendment overlooked. It was commented upon and
reconciled. And there is nothing whatever in Gibbons v. Ogden, 9 Wheat. 1, or
in Lottery Case, 188 U.S. 321, [***43] which is to the contrary.
From these considerations we may pass to an inspection of the statute of which
§ 10 is a part, and inquire as to its purpose, and if the means which it
employs has relation to that purpose and to interstate commerce. The provisions
of the act are explicit and present a well coordinated plan for the settlement
of disputes between carriers and their employes, by bringing the disputes to
arbitration and accommodation, [**285] and thereby prevent strikes
and the public disorder and derangement of business that may be consequent upon
them. I submit no worthier purpose can engage legislative attention or be the
object of legislative action, and, it might be urged, [*185] to
attain which the congressional judgment of means should not be brought under a
rigid limitation and condemned, if it contribute in any degree to the end, as a
"gross perversion of the principle" of regulation, the condition
which, it was said in United States v. Joint Traffic Association, supra, might
justify an appeal to the courts.
We are told that labor associations are to be commended. May not then Congress
recognize their existence; yes, and recognize their power as conditions
[***44] to be counted with in framing its legislation? Of what use
would it be to attempt to bring bodies of men to agreement and compromise of
controversies if you put out of view the influences which move them or the
fellowship which binds them -- maybe controls and impels them -- whether
rightfully or wrongfully, to make the cause of one the cause of all? And this
practical wisdom Congress observed -- observed, I may say, not in speculation
of uncertain provision of evils, but in experience of evils -- an experience
which approached to the dimensions of a National calamity. The facts of history
should not be overlooked, nor the course of legislation. The act involved in
the present case was preceded by one enacted in 1888 of similar purport. 25
Stat. 501, c. 1063. That act did not recognize labor associations, or
distinguish between the members of such associations and the other employes of
carriers. It failed in its purpose, whether from defect in its provisions or
other cause we may only conjecture. At any rate, it did not avert the strike at
Chicago in 1894. Investigation followed, and, as a result of it, the act of
1898 was finally passed. Presumably its provisions and remedy
[***45] were addressed to the mischief which the act of 1888 failed
to reach or avert. It was the judgment of Congress that the scheme of
arbitration might be helped by engaging in it the labor associations. Those
associations unified bodies of employes in every department of the carriers,
and this unity could be an obstacle or an aid to arbitration. It was attempted
to be made an aid, but how could it be made an aid if, pending the efforts of
"mediation and conciliation" [*186] of the dispute, as
provided in § 2 of the act, other provisions of the act may be arbitrarily
disregarded, which are of concern to the members in the dispute? How can it be
an aid, how can controversies which may seriously interrupt or threaten to
interrupt the business of carriers (I paraphrase the words of the statute), be
averted or composed if the carrier can bring on the conflict or prevent its
amicable settlement by the exercise of mere whim and caprice? I say mere whim
or caprice, for this is the liberty which is attempted to be vindicated as the
Constitutional right of the carriers. And it may be exercised in mere whim and
caprice. If ability, the qualities of efficient and faithful workmanship
[***46] can be found outside of labor associations, surely they may
be found inside of them. Liberty is an attractive theme, but the liberty which
is exercised in sheer antipathy does not plead strongly for recognition.
There is no question here of the right of a carrier to mingle in his service
"union" and "non-union" men. If there were, broader
considerations might exist. In such a right there would be no discrimination
for the "union" and no discrimination against it. The efficiency of
an employe would be its impulse and ground of exercise.
I need not stop to conjecture whether Congress could or would limit such
right.It is certain that Congress has not done so by any provision of the act
under consideration. Its letter, spirit and purpose are decidedly the other
way. It imposes, however, a restraint, which should be noticed. The carriers
may not require an applicant for employment or an employe to agree not to
become or remain a member of a labor organization. But this does not constrain
the employment of anybody, be he what he may.
But it is said it cannot be supposed that labor organizations will, "by
illegal or violent measures, interrupt or impair the freedom of commerce,"
[***47] and to so suppose would be disrespect to a coordinate
branch of the Government and to impute to it a purpose "to accord to one
class of wage-earners privileges withheld from another class of wage-earners
engaged, it may [*187] be, in the same kind of labor and serving
the same employer." Neither the supposition nor the disrespect is
necessary, and, it may be urged, they are no more invidious than to impute to
Congress a careless or deliberate or purposeless violation of the
Constitutional rights of the carriers. Besides, the legislation is to be
accounted for. It, by its letter, makes a difference between members of labor
organizations and other employes of carriers. If it did not, it would not be
here for review. What did Congress mean? Had it no purpose? Was it moved by no
cause? Was its legislation mere wantonness and an aimless meddling with the
commerce of the country? These questions may [**286] find their
answers in In re Debs, 158 U.S. 564.
I have said that it is not necessary to suppose that labor organizations will
violate the law, and it is not. Their power may be effectively exercised
without violence or illegality, and it cannot be disrespect to Congress
[***48] to let a committee of the Senate speak for it and tell the
reason and purposes of its legislation. The Committee on Education in its
report said of the bill: "The measure under consideration may properly be
called a voluntary arbitration bill, having for its object the settlement of
disputes between capital and labor, as far as the interstate transportation
companies are concerned. The necessity for the bill arises from the calamitous
results in the way of ill-considered strikes arising from the tyranny of
capital or the unjust demands of labor organizations, whereby the business of
the country is brought to a standstill and thousands of employes, with their
helpless wives and children, are confronted with starvation." And,
concluding the report, said: "It is our opinion that this bill, should it
became a law, would reduce to a minimum labor strikes which affect interstate
commerce, and we therefore recommend its passage."
With the report was submitted a letter from the Secretary of the Interstate
Commerce Commission, which expressed the judgment of that body, formed, I may
presume, from experience of the factors in the problem. The letter said:
"With the corporations as employers [***49] on one side and
the organizations [*188] of railway employes as the other, there
will be a measure of equality of power and force which will surely bring about
the essential requisites of friendly relation, respect, consideration, and forebearance."
And again: "It has been shown before the labor commission of England that
where the associations are strong enough to command the respect of their
employers the relations between employer and employe seem most amicable. For
there the employers have learned the practical convenience of treating with one
thoroughly representative body instead of with isolated fragments of workmen;
and the labor associations have learned the limitations of their powers."
It is urged by defendant in error that "there is a marked distinction
between a power to regulate commerce and a power to regulate the affairs of an
individual or corporation engaged in such commerce," and how can it be, it
is asked, a regulation of commerce to prevent a carrier from selecting his
employes or constraining him to keep in his service those whose loyalty to him
is "seriously impaired, if not destroyed, by their prior allegiance to
their labor unions"? That the power [***50] of regulation
extends to the persons engaged in interstate commerce is settled by decision.
Employers' Liability Cases, 207 U.S. 463, and the cases cited in Mr. Justice
Moody's dissenting opinion. The other proposition points to no evil or hazard
of evil. Section 10 does not constrain the employment of incompetent workmen
and gives no encouragement or protection to the disloyalty of an employe or to
deficiency in his work or duty. If guilty of either he may be instantly
discharged without incurring any penalty under the statute.
Counsel also makes a great deal of the difference between direct and indirect
effect upon interstate commerce, and assert that § 10 is an indirect regulation
at best and not within the power of Congress to enact. Many cases are cited,
which, it is insisted, sustain the contention. I cannot take time to review the
cases. I have already alluded to the contention, and it is enough to say that
it gives too much isolation to § 10. [*189] The section is part of
the means to secure and make effective the scheme of arbitration set forth in
the statute. The contention, besides, is completely answered by Employers'
Liability Cases, supra. In that case, [***51] as we have seen, the
power of Congress was exercised to establish a rule of liability of a carrier
to his employes for personal injuries received in his service. It is manifest
that the kind or extent of such liability is neither traffic nor intercourse,
the transit of persons or the carrying of things. Indeed such liability may
have wider application than to carriers. It may exist in a factory; it may
exist on a farm, and in both places, or in commerce -- its direct influence
might be hard to find or describe. And yet this court did not hesitate to
pronounce it to be within the power of Congress to establish."The primary
object," it was said in Johnson v. Railroad, 196 U.S. 17, of the safety
appliance act, "was to promote the public welfare by securing the safety
of employes and travelers." The rule of liability for injuries is even
more round about in its influence on commerce and as much so as the prohibition
of § 10. To contend otherwise seems to me to be an oversight of the proportion
of things. A provision of law which will prevent or tend to prevent the
stoppage of every wheel in every car of an entire railroad system certainly has
as direct influence on interstate commerce [***52] as the way in
which one car may be coupled to another, or the rule of liability for personal
injuries to an employe.It also seems to [**287] me to be an
oversight of the proportions of things to contend that in order to encourage a
policy of arbitration between carriers and their employes which may prevent a
disastrous interruption of commerce, the derangement of business, and even
greater evils to the public welfare, Congress cannot restrain the discharge of
an employe, and yet can, to enforce a policy of unrestrained competition
between railroads, prohibit reasonable agreements between them as to the rates
at which merchandise shall be carried. And mark the contrast of what is
prohibited. In the one case the restraint, it may be, of a whim -- certainly of
nothing that affects the ability of an employe to perform his
[*190] duties; nothing, therefore, which is of any material
interest to the carrier; in the other case a restraint of a carefully considered
policy which had as its motive great material interests and benefits to the
railroads, and, in the opinion of many, to the public. May such action be
restricted, must it give way to the public welfare, while the other,
[***53] moved, it may be, by prejudice and antagonism, is
intrenched impregnably in the Fifth Amendment of the Constitution against
regulation in the public interest.
I would not be misunderstood. I grant that there are rights which can have no
material measure. There are rights which, when exercised in a private business,
may not be disturbed or limited. With them we are not concerned. We are dealing
with rights exercised in a quasi-public business and therefore subject to
control in the interest of the public.
I think the judgment should be affirmed.
MR. JUSTICE HOLMES, dissenting.
I also think that the statute is constitutional, and but for the decision of my
brethren I should have felt pretty clear about it.
As we all know, there are special labor unions of men engaged in the service of
carriers. These unions exercise a direct influence upon the employment of labor
in that business, upon the terms of such employment and upon the business
itself. Their very existence is directed specifically to the business, and
their connection with it is at least as intimate and important as that of
safety couplers, and, I should think, as the liability of master to servant,
matters which, [***54] it is admitted, Congress might regulate, so
far as they concern commerce among the States. I suppose that it hardly would
be denied that some of the relations of railroads with unions of railroad
employes are closely enough connected with commerce to justify legislation by
Congress. If so, legislation to prevent the exclusion of such unions from
employment is sufficiently near.
[*191] The ground on which this particular law is held bad is not
so much that it deals with matters remote from commerce among the States, as
that it interferes with the paramount individual rights, secured by the Fifth
Amendment. The section is, in substance, a very limited interference with
freedom of contract, no more.It does not require the carriers to employ any
one. It does not forbid them to refuse to employ any one, for any reason they
deem good, even where the notion of a choice of persons is a fiction and
wholesale employment is necessary upon general principles that it might be
proper to control. The section simply prohibits the more powerful party to
exact certain undertakings, or to threaten dismissal or unjustly discriminate
on certain grounds against those already employed.I hardly [***55]
can suppose that the grounds on which a contract lawfully may be made to end
are less open to regulation than other terms. So I turn to the general question
whether the employment can be regulated at all. I confess that I think that the
right to make contracts at will that has been derived from the word liberty in
the amendments has been stretched to its extreme by the decisions; but they
agree that sometimes the right may be restrained. Where there is, or generally
is believed to be, an important ground of public policy for restraint the
Constitution does not forbid it, whether this court agrees or disagrees with
the policy pursued. It cannot be doubted that to prevent strikes, and, so far
as possible, to foster its scheme of arbitration, might be deemed by Congress
an important point of policy, and I think it impossible to say that Congress
might not reasonably think that the provision in question would help a good
deal to carry its policy along. But suppose the only effect really were to tend
to bring about the complete unionizing of such railroad laborers as Congress
can deal with, I think that object alone would justify the act.I quite agree
that the question what and how [***56] much good labor unions do,
is one on which intelligent people may differ, -- I think that laboring men
sometimes attribute to them advantages, as [*192] many attribute to
combinations of capital disadvantages, that really are due to economic conditions
of a far wider and deeper kind -- but I could not pronounce it unwarranted if
Congress should decide that to foster a strong union was for the best interest,
not only of the men, but of the railroads and the country at large.