PITNEY and VAN DEVANTER, JJ., dissenting. 243 U.S.

engaged—which private exigency may not be permitted to ignore that there shall not be an exorbitant charge for the service rendered. But the State has not seen fit to undertake the service itself; and the private property embarked in it is not placed at the mercy of legislative caprice. It rests secure under the constitutional protection which extends not merely to the title but to the right to receive just compensation for the service given to the public."

The case last mentioned was one of alleged confiscation resulting from a state law limiting rates of freight, and the language quoted was appropriate to. that topic. But the right to immunity from confiscation is not the only right of property safeguarded by the Fifth Amendment. Rights of property include something more than mere ownership and the privilege of receiving a limited return from its use. 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.

This act, in my judgment, usurps the right of the owners of the railroads to manage their own properties, and is an attempt to control and manage the properties rather than to regulate their use in commerce. In particular, it deprives the carriers of their right to agree with their employees as to the terms of employment. Without amplifying the point, I need only refer again to Adair v. United States, 208 U. S. 161, 174, 178.

I wholly dissent from the suggestion, upon which great stress is laid in the opinion of the majority of the court,

243 U.S. PITNEY and VAN DEVANTER, JJ., dissenting.

that the admittedly private right of the carriers and their employees to fix by agreement between themselves the standard of wages to control their relations—a right guaranteed by the "due process of law" clause, as this court repeatedly has held can be set at naught or treated as waived in the present instance because the parties have failed to agree, or that legislative interference can be justified on that ground. 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 say that the United States has such a relation to interstate traffic and the transportation of the mails that it may interfere directly by force, or indirectly through the courts, to remove obstructions placed by wrongdoers in the way of such transportation (In re Debs, 158 U. S. 564, 582, 586), is not to say that, when obstruction is threatened, Congress, without taking over the railroads and paying just compensation to the owners, may exercise control of the revenues and dispose of them for the purpose of buying peace, either by direct intervention or through coercive legislation. To do this is to ignore the distinction between meum and tuum, to safeguard which was one of the objects of the Fifth Amendment.

The logical consequences of the doctrine now announced are sufficient to condemn it. 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.

That the act is a wide departure from all previous legislation for regulating commerce has been shown. The bearing of this upon the present point is obvious, since it is a safe assertion that every dollar of the thousands of millions that are invested in railroads in this country has been invested without any anticipation or reason for anticipating that a law of this character would be adjudged to be permissible, either as a regulation of commerce or on any other ground.

Upon the second ground of repugnancy to the Fifth Amendment I need not dwell, since it is dealt with fully in the dissenting opinion of Mr. Justice Day, with whose views upon that question I entirely agree.

MR. JUSTICE VAN DEVANTER concurs in this dissent, including that portion of MR. JUSTICE DAY'S dissenting opinion just mentioned.

MR. JUSTICE MCREYNOLDS, dissenting.

Whatever else the Act of September 3, 1916, may do, it certainly commands that during a minimum period of seven months interstate common carriers by railroads shall pay their employees engaged in operating trains for eight hours' work a wage not less than the one then established for a standard day-generally ten hours.

I have not heretofore supposed that such action was a regulation of commerce within the fair intendment of those words as used in the Constitution; and the argument advanced in support of the contrary view is unsatisfactory to my mind. I cannot, therefore, concur in the conclusion that it was within the power of Congress to enact the statute.

But, considering the doctrine now affirmed by a majority of the court as established, it follows as of course that Congress has power to fix a maximum as well as a minimum wage for trainmen; to require compulsory arbitration of labor disputes which may seriously and directly jeopardize the movement of interstate traffic; and to take measures effectively to protect the free flow of such commerce against any combination, whether of operatives, owners, or strangers.

I-c. (Source: Edward Berman. In Labor Disputes and the President of the United States. New York, N.Y., Columbia University Studies in History, Economics and Public Law, vol. CXI, No. 2 (Whole No. 249), 1924, pp. 106-124))

THE THREATENED RAILWAY STRIKE OF 1916.

THE ADAMSON ACT

On March 29, 1916, the four railway Brotherhoods, consisting of engineers, conductors, firemen, and trainmen on practically, all roads in the United States, adopted demands to be presented to the railway managers. These demands were concerned principally with the introduction of the eight-hour-day-100-mile-run standard as a day's work in the freight service, and the payment for all time over eight hours per day at the rate of time and a half. At the same time the chiefs of the Brotherhoods, which were acting concertedly, notified the railway managers of the desired changes and requested that all the railroads join together for the purpose of handling the proposals at one and the same time through a joint committee of all the roads.

About a month later the roads replied in a more or less uniform manner, neither accepting, rejecting, nor modifying the demands made on them, but proposing that the whole question of compensation in the classes of service affected be opened up for consideration and disposal. On May 18, according to the union's request, the railroads organized the National Conference Committee of Railway Managers. 2

From June 1 to June 15 the representatives of the railways and of the Brotherhoods held wage conferences in New York City. On the 14th the men made a definite de'Report of the U. S. Eight Hour Commission, Washington, 1918, p. 8.

63