U.S. Supreme Court Adair v. United States, 208
U.S. 161 (1908) Adair v. United
States No. 293 Argued October 29, 30,
1907 Decided January 27,
1908 208
U.S. 161 ERROR TO THE DISTRICT COURT OF THE
UNITED STATES FOR THE EASTERN DISTRICT OF
KENTUCKY Syllabus 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 employee 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
employee 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. Quare, 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
employee 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 employee 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
commerce, 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. Page 208 U. S. 162 The provision above referred to, in 10 of the act of June 1,
1898, is severable, and it unconstitutionality may not affect other
provision 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. Page 208 U. S. 166 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, Page 208 U. S. 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 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 'employees' 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 this act shall not be held
to apply to employees of street railroads and shall apply only to
employees engaged in railroad train service. In every such case the
carrier shall be responsible for the acts and defaults of such
employees in the same manner and to the same extent as if said cars
were owned by it and said employees 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. " Page 208 U. S. 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 employees,
which seriously interrupt or 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 no employee 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
employees, 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
employee, 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 employee
with loss of employment, or shall unjustly discriminate against any
employee because of his membership in such a labor corporation,
association, or organization; or who shall require any
employee or any person seeking employment, as a condition of such
employment, to enter into a contract whereby such employee 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 Page 208 U. S. 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 employee, attempt or conspire to prevent such
employee from obtaining employment, or who shall, after the
quitting of an employee, attempt or conspire to prevent such
employee 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 employee of an interstate carrier because of his being a member
of a labor organization, it does not make it a crime to unjustly
discriminate against an employee 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 employees,' approved Junc 1, 1898, and said
corporation was not at any Page 208 U. S. 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 employee 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 employee of
said common carrier and employer in the district aforesaid, and, as
such employee, 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 employee 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
thereof is to the grand jurors unknown."

															The specific charge in that count was

															"that said William Adair, agent and employee of said common
carrier and employer 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, employee 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 employee 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 Page 208 U. S. 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 employee of said common
carrier and employer aforesaid, on and before the 15th day of
October, 1906, did unlawfully threaten said O. B. Coppage,
employee 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 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 employee 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 Page 208 U. S. 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
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 , 197 U. S. 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 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, Page 208 U. S. 173 as he chose, an employee 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, 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 anyone 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 , 198 U. S. 53 , 198 U. S. 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 to require or permit an employee 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
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 Page 208 U. S. 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 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 are 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 employee to
quit the service of the employer, Page 208 U. S. 175 for whatever reason, is the same as the right of the employer,
for whatever reason, to dispense with the services of such
employee. 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 employee 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. [ Footnote 1 ] Of course, if the parties,
by contract, fix the period of service, 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. 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
employee, 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 employee in his personal service any more than
an employee Page 208 U. S. 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, who 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.

															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 employee 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 employee 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 employee 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
unless 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 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 Page 208 U. S. 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. [ Footnote 2 ] 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. 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 employees 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 employees
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 Page 208 U. S. 178 Cases, 207 U.S. 63, 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
liability, as between interstate carriers and its employees in such
interstate commerce, in cases of personal injuries received by
employees 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 employee'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
employee is connected by his labor and services. Labor
associations, we assume, are organized for the general purpose of
improving or bettering the conditions 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 Page 208 U. S. 179 of his not being a member of such an organization. It is the
employee 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 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.

															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 employee 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. No such rule
of criminal liability as that to which Page 208 U. S. 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
provisions of the Constitution. Gibbons v.
Ogden , 9 Wheat. 1, 22 U. S. 196 ; Lottery Case, 188 U. S. 321 , 188 U. S.
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 employee from 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.

															[ Footnote 1 ] 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.

															[ Footnote 2 ] 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 , 96 U. S. 9 , 96 U. S. 12 ; County of Mobile v. Kimball, 102 U.
S. 691 ; Western Union Tel. Co. v. Pendleton, 122 U. S. 347 , 122 U. S. 356 ; Lottery Case, 188 U. S. 321 , 188 U. S. 352 ; Northern Securities Co. v. United States, 193 U.
S. 197 ; Employers' Liability Cases, 207 U. S. 463 .

															MR. JUSTICE McKENNA, dissenting.

															The opinion of the court proceeds upon somewhat narrow Page 208 U. S. 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 employee 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 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 employees
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 employees belong, and the two thus chosen shall select a
third.

															There is a provision that, if the employees 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 arose. Other sections
complete the scheme of arbitration thus outlined, and make, as far
as possible, the proceedings of the arbitrators Page 208 U. S. 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 that the expressions of 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 Page 208 U. S. 183 is necessarily involved a definition 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 employees -- 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 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 Page 208 U. S. 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 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 ,
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 employees by bringing the disputes to
arbitration and accommodation, 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, Page 208 U. S. 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 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
employees 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 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 employees 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" Page 208 U. S. 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 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 employee 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 employee 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," 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 Page 208 U. S. 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 employees 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 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 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 employees, 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 on one side and the
organizations Page 208 U. S. 188 of railway employees 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 employee 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 employees 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 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 employee 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. Page 208 U. S. 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, as we have seen, the power of Congress
was exercised to establish a rule of liability of a carrier to his
employees 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 employees 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 as
the way in which one car may be coupled to another, or the rule of
liability for personal injuries to an employee. It also seems to 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 employees 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
employee, 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 employee to perform his Page 208 U. S. 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, 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, 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 employees 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. Page 208 U. S. 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 anyone. It does not forbid
them to refuse to employ anyone, 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 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 much good labor unions
do is one on which intelligent people may differ -- I think that
laboring men sometimes attribute to them advantages, as Page 208 U. S. 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.