operations, the expense to be recompensed through its rates. If it be said that rates cannot be changed at will but only by permission of authority, I cannot think that permission will not be given if it be necessary to fulfill the command of the law. Indeed, if not given, the law might encounter constitutional restriction.

To an employee a wage law may be of more vital consequence, be of the very essence of his life, involving factors-many and various-which he alone can know and estimate, and which, besides, might not have an enduring constancy and be submissive to a precedent judgment. There well might be hesitation to displace him and substitute the determination of the law for his action.

I speak only of intention; of the power I have no doubt. When one enters into interstate commerce one enters into a service in which the public has an interest and subjects one's self to its behests. And this is no limitation of liberty; it is the consequence of liberty exercised, the obligation of his undertaking, and constrains no more than any contract constrains. The obligation of a contract is the law under which it is made and submission to regulation is the condition which attaches to one who enters into or accepts employment in a business in which the public has an interest.

I concur in the answer of the opinion to the contentions of inequality of the law and the deprivation to the carriers of due process.

MR. JUSTICE DAY, dissenting.

I am unable to agree with the opinion and judgment just pronounced. The very serious constitutional questions involved seem to warrant a statement of the reasons which constrain me to this action.

I am not prepared to deny to Congress, in view of its constitutional authority to regulate commerce among the

States, the right to fix by lawful enactment the wages to be paid to those engaged in such commerce in the operation of trains carrying passengers and freight. While the railroads of the country are privately owned, they are engaged in a public service, and because of that fact are subject in a large measure to governmental control.

The regulatory power of Congress under the commerce clause of the Constitution is of a broad nature, but is subject to the applicable limitations of the Constitution.

I agree that upon the reasoning which sustained the power of Congress to regulate the hours of service of employees, and the degree of care which employers must observe to protect the safety of those engaged in the service and in view of the enactments which are held to be lawful regulations of interstate transportation, Congress has the power to fix the amount of compensation necessary to secure a proper service and to insure reasonable rates to the public upon the part of the railroads engaged in such traffic. While this much must necessarily follow from the constitutional authority of Congress, in the light of the interpretation given to the commerce clause in decisions of this court, it is equally true that this regulatory power is subject to any applicable constitutional limitations. This power cannot, any more than others conferred by the Constitution, be the subject of lawful exercise when such exertion of authority violates fundamental rights secured by the Constitution. Gibbons v. Ogden, 9 Wheat. 1, 196; Monongahela Navigation Co. v. United States, 148 U. S. 312, 336; United States v. Joint Traffic Assn., 171 U. S. 505, 571; Lottery Case, 188 U. S. 321, 353.

The power to legislate, as well as other powers conferred by the Constitution upon the coördinate branches of the Government, is limited by the provisions of the Fifth Amendment of the Constitution preventing deprivation of life, liberty, or property without due process of law.

The phrase "Due Process of Law" has been the subject

of much discussion, and while its precise definition has not been attempted, and its limitations have been left to the gradual process of inclusion and exclusion, the binding force of its requirements is always conceded, and has been frequently enforced in cases as they have arisen. If the Constitution is not to become a dead letter the protection of the due process clause must be given to all entitled to this safeguard of rights which the Amendment intended to secure. The due process clause restrains alike every branch of the Government, and is binding upon all who exercise federal power, whether of an executive, legislative, or judicial character. It withholds from the executive the exercise of arbitrary authority, it prevents the judiciary from condemning one in his person or property without orderly methods of procedure adapted to the situation, and opportunity to be heard before judgment. We are now immediately concerned with its effect upon the exercise of legislative authority.

While every case must depend upon its peculiar circumstances, certain general principles are well settled; perhaps they have not been better stated than in the words of Mr. Justice Matthews, speaking for this court in Hurtado v. California, 110 U. S. 516, 531, wherein he said: "The concessions of Magna Charta were wrung from the King as guaranties against the oppressions and usurpations of his prerogative. It did not enter into the minds of the barons to provide security against their own body or in favor of the Commons by limiting the power of Parliament; so that bills of attainder, ex post facto laws, laws declaring forfeitures of estates, and other arbitrary acts of legislation which occur so frequently in English history, were never regarded as inconsistent with the law of the land. . The actual and practical security for English liberty against legislative tyranny was the power of a free public opinion represented by the Commons. In this country written constitutions were deemed essential to

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DAY, J., dissenting.

protect the rights and liberties of the people against the encroachments of power delegated to their governments, and the provisions of Magna Charta were incorporated into Bills of Rights. They were limitations upon all the powers of government, legislative as well as executive and judicial. Applied in England only as guards against executive usurpation and tyranny, here they have become also bulwarks against arbitrary legislation." See Murray's Lessee v. Hoboken Land and Improvement Co., 18 How. 272; Bank of Columbia v. Okely, 4 Wheat. 235; 2 Story on the Constitution, 4th ed., § 1944; Cooley on the Constitution, 241 et seq.; McGehee on Due Process of Law, p. 22 et seq., and the illuminating discussion of the subject by Mr. Justice Moody in Twining v. New Jersey, 211 U. S. 78.

It results from the principles which have been enforced in this court, and recognized by writers of authority, that due process of law, when applied to the legislative branch of the Government, will not permit Congress to make anything due process of law which it sees fit to declare such by the mere enactment of the statute; if this were true, life, liberty, or property might be taken by the terms of the legislative act, depending for its authority upon the will or caprice of the legislature, and constitutional provisions would thus become a mere nullity. See the frequently quoted argument of Mr. Webster in the Dartmouth College Case, 4 Wheat. 518; Davidson v. New Orleans, 96 U. S. 97; Chicago, Burlington & Quincy R. R. Co. v. Chicago, 166 U. S. 226; McGehee on Due Process of Law, p. 30.

The underlying principle of the decisions which have constrained this court in rare instances to exercise its constitutional right to declare congressional enactments void, is the protection intended to be afforded against legislation of an arbitrary character.

While it is true, as stated in the majority opinion, that it is the duty of courts to enforce lawful legislative enact

ments of Congress, it is equally their duty and sworn obligation when differences between acts of the legislature and the guaranties of the Federal Constitution arise, to govern their decisions by the provisions of that instrument which represents the will of all the people, and under the authority of which every branch of the Government is enabled to discharge the duty imposed upon it.

The act in question must be brought to the test of these fundamental principles, and if found to be violative of the Federal Constitution it must be declared void. Grave and important as the duty is it cannot be avoided consistently with the obligations imposed by the Constitution upon every branch of the judiciary, federal and state, and particularly upon this court, to which under our system is entrusted the ultimate decision of questions of this nature.

Applying these principles, in my opinion this act cannot successfully withstand the attack that is made upon it as an arbitrary and unlawful exertion of supposed legislative power. It is not an act limiting the hours of service. Nor is it, in my judgment, a legitimate enactment fixing the wages of employees engaged in such service. In one of its most important aspects, and in view of the mandatory provisions of § 3 of the act, it is one the effect of which is to increase the wages of certain employees in interstate commerce by the requirement that pending investigation, the wages which have theretofore been paid for ten hours' service shall be given for eight hours' service of the same character. The increase of wages is to be in force only during the period of observation provided in the act. Before the passage of this enactment the wages of the character involved herein had been fixed by agreement, or determined by arbitration between the parties concerned. By this enactment the wage theretofore paid for a tenhours' service is required to be paid for an eight-hours' service pending the investigation provided for in other parts of the law. In other words, Congress upon the face