Argument for Appellant. 243 U. S. putants, refute the claim that the act was passed without consideration and in arbitrary disregard of the rights of the carriers and the public. After the paramount duty to enforce the Constitution, the very highest of judicial duties is to give effect to the legislative will, with judgment uninfluenced by those considerations which belong to the legislature alone. The contention that the act is unworkable is without merit. THE case is stated in the opinion. The Solicitor General and Mr. Frank Hagerman, Special Assistant to the Attorney General, with whom The Attorney General and Mr. Assistant Attorney General Underwood were on the briefs, for appellant. The act is constitutional as an hours-of-service law. It is constitutional if purely a wage law. From the beginning, Congress's power. over interstate commerce has been declared to be supreme. It consists of "direct supervision, control, and management" and extends to the regulation of employees while engaged in interstate commerce; also to the regulation of the relations of common carriers and their employees while both are engaged in interstate commerce. Second Employers' Liability Cases, 223 U. S. 1, 48-49. The wage regulation here involved has substantial connection with interstate commerce, because its natural tendency is to keep open the channels of interstate commerce and render such commerce safer and more efficient. Whether looked at from the standpoint of promoting commerce or removing obstructions to its free flow, the regulation of wages bears a close relation to the proper performance by carriers of their public duties. The efficiency and safety of railroad service depend upon the skill and physical fitness of the employees. It is just as necessary to properly care for employees as to keep in good condition the physical instrumentalities used in interstate commerce. Physical efficiency is 243 U. S. Argument for Appellant. impossible without proper living conditions, which demand suitable food, clothing, housing, rest, and recreation. These, in turn, can not be secured without the payment of an adequate wage. An adequate wage, therefore, is essential to safe, regular, and efficient service in interstate commerce, and the public, through Congress, has a right to demand its payment. Chicago, Burlington & Quincy R. R. Co. v. McGuire, 219 U. S. 549, 570. On the other hand, the public is interested in preventing the payment of wages which are too high, since they constitute the largest element in the cost of transportation and necessarily affect rates. An unreasonably high wage means an unjust rate or impaired service. In either event, it is the public that pays, and the public has the right to demand the regulation of wages to the end that it may enjoy reasonable and just rates. But wage regulation has a still more vital connection with interstate commerce. Disputes about wages may be, and frequently are, the cause of interference with or entire stoppage of the flow of interstate commerce. In this law the idea of the board of arbitration has been adopted, though the regulation is accomplished by direct action of Congress rather than through the instrumentality of a commission. And by this regulation of the wage relation and the hours of service of railroad employees a disastrous strike was averted and the channels of interstate commerce kept open. Surely, Congress's power over interstate commerce, which has been so many times declared to be supreme, is, in the face of an interference greater than any other that can be imagined, ample enough to authorize the assumption of "direct supervision, control, or management" over the wage relation of persons engaged in such commerce. McDermott v. Wisconsin, 228 U. S. 115, 128. The law does not conflict with any of the limitations upon the power of Congress prescribed in the Constitu Argument for Appellees. 243 U.S. tion. It does not deprive the carriers of liberty of contract nor take property without due process of law. If Congress has power to regulate the hours of labor and the wage relation of persons engaged in interstate commerce, the fact that some contracts are interfered with is immaterial and not forbidden by the Fifth Amendment. The same principle holds with reference to the taking of property without due process of law. Chicago, Burlington & Quincy Ry. Co. v. Drainage Commissioners, 200 U. S. 561, 593; Noble State Bank v. Haskell, 219 U. S. 104; Greenleaf Johnson Lumber Co. v. Garrison, 237 U. S. 251. The classifications made in the act are not arbitrary. Baltimore & Ohio R. R. Co. v. Interstate Commerce Commission, 221 U. S. 612; Chesapeake & Ohio Ry. Co. v. Conley, 230 U. S. 513, 522; St. Louis, Iron Mountain & Southern Ry. Co. v. Arkansas, 240 U. S. 518. The act is workable. The penalties are not excessive. Mr. Walker D. Hines and Mr. John G. Johnson, with whom Mr. Arthur Miller was on the briefs, for appellees: The act is a direct attempt to regulate the method of computing compensation and to fix the amount thereof. No support for its constitutionality can be derived from any theory that it establishes a public policy that hours of train service should be shortened, and has a direct tendency to promote that policy. In order to hold that the act is within the commerce power it will be necessary for the court to see that the provisions have a substantial relation to some purpose which is within that power, Adair v. United States, 208 U. S. 161, 178; Second Employers' Liability Cases, 223 U. S. 1, 49; determining the purpose from the natural and legal effect of the language, Soon Hing v. Crowley, 113 U. S. 703, 710; Lochner v. New York, 198 U. S. 45, 64; Minnesota v. Barber, 136 U. S. 313, 319. Furthermore, whatever the purpose, no provision can be upheld under the commerce 243 U. S. Argument for Appellees. power which violates the Fifth Amendment. Lottery Case, 188 U. S. 321, 362; Monongahela Navigation Co. v. United States, 148 U. S. 312, 336; United States v. Joint Traffic Association, 171 U. S. 305, 571. Manifestly Congress has no wider choice of means to accomplish a constitutional purpose than any state legislature would have, for both would be subject to constitutional limitations. Section 3 of the act, even if susceptible of the construction assumed by its advocates, is unconstitutional because it is not a regulation of commerce among the States and violates the Fifth Amendment. The standard of compensation and the amount of compensation are mere incidents of commerce not per se within the power of Congress. Hooper v. California, 155 U. S. 648. The Second Employers' Liability Case, 223 U. S. 1, is not authority for the position that Congress has power to regulate the masterand-servant relationship per se in all its aspects between railroad companies and their trainmen; the power was there based on the substantial tendency to make transportation safe. A regulation of the amount of compensation which the railroad company shall pay its employee for his services can have no more relationship to any purpose to regulate commerce among the States than a regulation as to the price the railroad company shall pay for its locomotives, rails, cross ties or fuel or other supplies. Section 3 is an extreme interference with the liberty of contract. Allgeyer v. Louisiana, 165 U. S. 578, 589; Adair v. United States, 208 U. S. 161, 172. Wages, which Congress assumes to determine, are the very heart of the contract between the employer and employee. On its face § 3 is for the direct pecuniary benefit of a particular class of a community, to wit, the persons who are actually engaged in the operation of railroad trains. Colon v. Lisk, 153 N. Y. 188; Lawton v. Steel, 152 U. S. 133. It is a direct taking of the carrier's property without compensation and the transfer of the same to private individuals. Argument for Appellees. 243 U.S. Section 3 cannot be upheld on the ground that its object was to avert the strike, that it has a substantial relation to that object, and that the interference with the liberty of contract and the appropriation of property without compensation to the benefit of the employees are under such circumstances permissible. The act does not purport to avoid the strike, and that end could not be appropriately accomplished by destroying the liberty of contract of the common carrier, or taking its property and giving it to another without provision for compensating the carrier. No case can be found where the property of one was transferred to another merely to appease that other and prevent him from committing an injury or doing harm to the community; and that is what § 3 would accomplish if it were to be justified on the ground that it was passed to avert the strike. The principle of necessity permitting of the destruction of buildings where absolutely necessary to stay conflagration, is not analogous. Freund on Police Power, pp. 563, 565. The power of Congress is not enlarged by emergency. If it were, Congress could enlarge its powers at will by simply postponing its dealing with a matter until it had reached a dangerous crisis. Another answer is that Congress and not the courts would in practice be the judge as to when the crisis existed; so that if such a power be conceded constitutional limitations will cease to have a meaning. Ex parte Milligan, 4 Wall. 2. Congress cannot regulate commerce among the States by entering into an extra-constitutional arrangement with the labor unions to avoid a strike, and then, as a consideration to the labor unions for carrying out this arrange-. ment, enact legislation which is not in itself a prevention of the strike and which has no legal relation to that end. Section 3 cannot be sustained on the ground that Congress has the power to provide methods for settling controversies between railroad companies and their train |