PITNEY and VAN DEVANTER, JJ., dissenting.

243 U. S.

authority on the part of Congress to commandeer the railroads, or the services of the trainmen. The cases that are referred to as sustaining the supposed obligation of the carrier to carry on its business regardless of cost, and the authority of government to compel performance of that obligation (Atlantic Coast Line R. R. Co. v. North Carolina Corporation Commission, 206 U. S. 1, 27; Missouri Pacific Railway v. Kansas, 216 U. S. 262, 279; see, also, Wisconsin &c. Railroad Co. v. Jacobson, 179 U. S. 287, 302), were decisions sustaining the power of state governments to enforce obligations arising out of the grant by the State to the railroad company of the right of existence and the franchise to operate its road; and they were decided upon the authority of a line of decisions in the state courts (Mayor &c. of Worcester v. Norwich &c. Railroad Co., 109 Massachusetts, 103, 113; People v. Boston & Albany R. R. Co., 70 N. Y. 569, 571; People v. New York &c. R. R. Co., 104 N. Y. 58, 67; People v. St. Louis &c. R. R. Co., 176 Illinois, 512, 524) that based the right of control upon the power of the State to enforce the charter obligation and the reserved power to alter or amend the charter in the public interest. The relation of the Federal Government to railroad companies not chartered by it is altogether different, being dependent entirely upon the fact that the companies have seen fit to engage in interstate transportation, a branch of business from which, in my opinion, they are at liberty to withdraw at any time,so far as any authority of the Federal Government to prevent it is concerned, however impracticable such withdrawal may be.

The extent to which regulation properly can go under such circumstances was defined very clearly by this court in the great case of Munn v. Illinois, 94 U. S. 113, where Mr. Chief Justice Waite, speaking for the court, said (p. 126): "Property does become clothed with a public interest when used in a manner to make it of public con

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

sequence, and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created. He may withdraw his grant by discontinuing the use; but, so long as he maintains the use, he must submit to the control." The control there referred to was a regulation by the State of the service performed by public warehouses and a limitation of the charges for that service. The opinion made it plain that the interest of the public was not in the property, but in the use of it; that not its management or disposition in general, but only the manner of its use in the service of the public, was subject to control.

The same limitation upon the authority of the public has been variously expressed in many decisions. Thus in Interstate Com. Comm. v. Chicago G. W. Ry., 209 U. S. 108, 118, the court, by Mr. Justice Brewer, said: "It must be remembered that railroads are the private property of their owners; that while from the public character of the work in which they are engaged the public has the power' to prescribe rules for securing faithful and efficient service and equality between shippers and communities, yet in no proper sense is the public a general manager." In Southern Pacific Co. v. Interstate Com. Comm., 219 U. S. 433, 444, reference was made to the unwarranted assertion by the Commission of "a power which if it obtained would open a vast field for the exercise of discretion, to the destruction of rights of private property in railroads, and would in effect assert public ownership without any of the responsibilities which ownership would imply." And, in the Minnesota Rate Cases, 230 U. S. 352, 433, it was said: "The property of the railroad corporation has been devoted to a public use. There is always the obligation springing from the nature of the business in which it is

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

MCREYNOLDS, J., dissenting.

243 U. S.

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.