dissenting.
I am constrained to dissent from the decision just announced and from the reasoning upon which it is based. I am convinced that the statute under consideration (Act of September 3, 5, 1916, c. 436, 39 Stat. 721) is not within the constitutional power of Congress. The infirmity that I find in it is so fundamental that, for the sake of brevity, I lay aside all minor grounds upon which it is attacked, and hence may begin by setting forth the title and essential provisions of the act, so as to render plain its true effect and operation, omitting portions not necessary to a consideration of the main questions. I quote as follows:
“An Act To establish an eight-hour day for employees of carriers engaged in interstate and foreign commerce, and for other purposes.
“Be it enacted . . . That beginning January first, nineteen hundred and seventeen, eight hours shall, in contracts for labor and service, be deemed a day’s work and the measure or standard of a day’s work for the purpose of reckoning the compensation for services of all employees who are now or may hereafter be employed by any common carrier by railroad, . . . which is subject to the provisions of the Act of February fourth, eighteen hundred and eighty-seven, entitled 'An Act to regulate commerce,’ as amended, and who are now or may hereafter be actually engaged in any capacity in the operation of trains used for the transportation of persons or property on railroads, . . . from any 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,” etc. ■
“Sec. 2. That the President shall appoint a commission of three, which shall observe the operation and effects of the institution of the eight-hour standard workday as above defined and the facts and conditions affecting the *374relations between such common carriers and employees during a period of not less than six months nor more than nine months, in the discretion of the commission, and within thirty days thereafter such commission shall report its findings to the President and Congress; . . .
“Sec. 3. That pending the report of the commission herein provided for- and for a period of thirty days thereafter the compensation of railway employees subject to this Act for a standard eight-hour workday shall not be reduced below the present standard day’s wage, and for all necessary time in excess of eight hours such employees shall be paid at a rate not less than the pro rata rate for such standard eight-hour workday.
“Sec. 4. That any person violating any provision of this Act shall be guilty of a misdemeanor,” etc.
It is, I think, too plain for argument that the act departs from its title, in that it does not establish eight hours as the limit' of a day’s work. There is no prohibition of service in excess of eight hours per day, nor any penalty for overtime work, for this is to be paid for only pro rata. There is no language evincing an intent to repeal or modify the Sixteen Hour Act of March 4, 1907, c. 2939, 34 Stat. 1415. It is a matter of common knowledge that railroad' train service must be arranged according to the distances between terminals or “division points,” and a change from a sixteen-hour limit to an eight-hour limit would be so revolutionary that a purpose to make such a change is not to be lightly inferred. This act affords no basis for such an inference. What it prescribes is that “ eight hours shall, in contracts for labor and service, be deemed a day’s work and the measure or standard of a day’s work for the purpose of reckoning the compensation for services.” It defines the terms of contracts for service and prescribes a measure only for the purpose of reckoning compensation. This is the whole effect of the first section. To shorten the discussion, I will concede, arguendo, that *375this section of itself is not in conflict with the Constitution. This, being assumed, the. second section evidently is unexceptionable.
Serious difficulty appears, however, when we come to consider the operation and effect of'the third section in connection with the first and second. It provides that, pending the report of the commission, and for thirty days thereafter, “the compensation of railway employees subject to this Act for. a standard eight-hour workday shall not be reduced below the present standard day’s wage,” etc. This, of course, is to be practically enforced by means of prosecutions under §4. The “present standard day’s wage,” in effect upon the railroad represented by appellees in this case and upon most of the other railroads of the country, is a term not easily defined. Accepting the paraphrase employed in the brief for the United States, the standard may be expressed as follows: “One hundred miles or less, ten hours or less, shall constitute a day.” The effect of § 3 is that during a period of from seven to eleven months the carriers shall pay as much for eight hours’ work as previously was paid for ten hours’ work; the excess over eight hours to be paid for pro rata on the eight-hour basis. The effect is to increase wages in a large but undefined amount upon the railroad represented in this suit, and in the amount of many millions of dollars considering all the railroads that are affected.
The legislation is attempted to be sustained solely as an exercise of the power of Congress to regulate interstate and foreign commerce. Evidently it can find no other support, for Congress has no authority over the Missouri, Oklahoma & Gulf Railway Company, whose receivers are appellees here, or over the other companies affected by this law, except by reason of its power to regulate commerce; and it possesses this authority only because those corporations voluntarily have chosen to engage in commerce among the States. A. contention that Congress *376has power to compel the railroads and their employees to continue to carry ori such commerce at all costs will be dealt with hereafter.
If, therefore, the act be not in a real and substantial sense a regulation of.commerce, it is in excess of the constitutional power of Congress. “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.” Adair v. United States, 208 U. S. 161, 178. And, though it be a regulation of commerce, it is void if it conflicts with the provisions of the Fifth Amendment, that no person shall be “deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” Monongahela Navigation Co. v. United States, 148 U. S. 312, 336; United States v. Lynah, 188 U. S. 445, 471; Adair v. United States, 208 U. S. 161, 180; United States v. Cress, decided March 12, 1917, ante, 316.
I am convinced, in the first place, that the act cannot be sustained as. a regulation of commerce, because it has no such object, operation, or effect. It removes no impediment or obstruction from the way of traffic or intercourse, prescribes no service to the public, lays down no rale respecting the mode in which service is to be performed, or the safeguards to be placed about it, or the qualifications or. conduct of those who are to perform it. In short, it has no substantial relation to or connection with commerce — no closer relation than has the price which' the carrier pays for its engines and cars or for the coal used in propelling them.
The suggestion that it was passed to prevent a threatened strike, and in this sense to remove an obstruction from the path of commerce, while true in fact is immaterial in law. It amounts to no more than saying that it was *377enacted to take care of an emergency. But an emergency can neither create a power nor excuse a defiance of the limitations upon the powers of the Government. Ex parte Milligan, 4 Wall. 2, 121.
The simple effect of § 3 is to increase, during the period of its operation', the rate of wages of railroad trainmen employed in interstate commerce. It comes to this,— that whereas the owners of the railroads have devoted their property to the movement of interstate as well as intrastate commerce, and whereas the trainmen have accepted employment in such commercé, and thus employers and employees are engaged together in á quasi public service, the act steps in and prescribes how the money earned in the public service shall be divided between the owners of the railroads and these particular employees. This, in my view, is a regulation not of commerce but of the internal affairs of the commerce carriers, — precisely as if an act were to provide that the rate of interest payable to the bondholders must b.e increased and the dividend payments to the stockholders correspondingly decreased — and is not only without support in the commerce clause of the Constitution, but, as I shall endeavor to show, transgresses the limitations of the Fifth Amendment.
The oft-quoted declaration of Chief Justice Marshall in Gibbons v. Ogden, 9 Wheat. 1, 196, that the power to regulate commerce among the States, like all others vested in Congress, “is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution,” means that the exercise of the power is not dependent on, and is not to be hampered by, the action of the States, and is unrestrained by any qualification other than such as are contained in the fundamental law. To say that the power “acknowledges no limitations” is not to say that it is limitless in extent, for it is confined by the very definition of the subject matter. The power is vast, but is not vague, and *378error inevitably must result from treating it as nebulous.
The act stands wholly without precedent in either state or national legislation. Let it be admitted that mere novelty is not a ground of constitutional objection, since it is the appropriate function of a legislature .to change the law. This act, however, differs not only in degree, but in kind, from any and all that have preceded it. It is now nearly thirty years since Congress entered the field of direct regulation of interstate railway carriers. Before that the entire field was open to the States, and since the year 1887 the regulation of their internal commerce has still remained open to them. This has been a period of intense and widespread activity and progress in commerce regulation, and, as it happens, of equal progress respecting legislation in the interest of workingmen. The fact that no law fixing the rate of compensation for railroad employees ever was proposed until this act was brought forward a very few days before its passage, and then only under the coercive influence of a threatened public calamity, is the strongest evidence that in the judgment of executives and legislators, state and national, measures of this sort were not within the bounds of permissible regulation of commerce.
As already stated, the act has not the effect of imposing any limit to the number of hours that a trainman may work in a day, nor any penalty for overtime work. Therefore, it cannot be sustained upon the ground on which the court sustained the Act of March 4, 1907, 34 Stat. 1415, c. 2939, limiting the hours of service of employees engaged in interstate commerce, a ground epitomized in Baltimore & Ohio R. R. v. Interstate Com. Comm., 221 U. S. 612, 619, as follows: “The length of hours of service has direct relation to the efficiency of the human agencies upon which protection to life and property necessarily depends. . . In its power suitably to provide for the safety of employés *379arid travelers, Congress was not limited to the enactment of laws relating to mechanical appliances, but it was also competent to consider, and to endeavor to reduce, the dangers incident to the strain of excessive hours of duty on the part of engineers, conductors, train dispatchers, telegraphers, and other persons embraced within the class defined by the act.”
The Safety Appliance Acts are as evidently distinguish-' able, they likewise being designed to secure the safety of employees and travelers, as this court repeatedly has held. Johnson v. Southern Pacific Co., 196 U. S. 1, 17; Southern Ry. Co. v. United States, 222 U. S. 20, 26; Texas & Pacific Ry. Co. v. Rigsby, 241 U. S. 33, 41.
Nor does the Federal Employers’ Liability Act of April 22, 1908, 35 Stat. 65, c. 149, furnish a precedent for the present legislation. ■ The constitutionality of that act was sustained in Second Employers’ Liability Cases, 223 U. S. 1, upon grounds very clearly set forth in the opinion, thus (p. 48): “Congress, in the exertion of its power over interstate commerce, may regulate the relations of common carriers by railroad and their employés, while both are engaged in such commerce, subject always to the limitations prescribed in the Constitution, and to the qualification that the particulars in which those relations are regulated must have a real or substantial connection with the interstate commerce in which the carriers and their employés are engaged”; and again (pp. 50-51): “The natural tendency of the changes described is to impel th(? carriers to avoid or prevent the negligent acts and omissions which are made the bases of the rights of recovery which the statute creates and defines; and, as whatever makes for that end tends to promote the safety of the employés and to advance the commerce in which they are engaged, we entertain no doubt that in making those changes Congress acted within the limits of the discretion confided to it by the Constitution.”
Progressive as has been the legislation of Congress and *380the States enacted during the past thirty years for the regulation of common carriers, I have found none at all analogous to that now under consideration. Besides the acts already referred to, laws have been passed respecting tariffs, bills of lading, through routes, joint rates, the exchange of traffic, terminal charges, locomotive headlights, and a multitude of other matters; but each and all of these have some direct and substantial relation to commerce itself.
The suggestion that an increase in the wages of trainmen, will increase their contentment, encourage prompt and ¡efficient service, and thus facilitate the movement of commerce, is altogether fanciful. The increase effected is not at all conditioned upon contented or efficient service. It benefits alike those who are efficient and those who are not. It does not equalize wages, but applies proportionately in all cases; making the least increase upon railroads whose rates of pay are the lowest, the greatest where wages are the highest. Ás a measure for improving the quality of railroad locomotives, a law requiring the companies to pay 25% more than before for each locomotive, without stipulating for any improvement in the quality, would be absurdly ineffective. Equally futile, as a measure for improvement of the quality of railway supplies, would be a provision of law compelling the roads to pay 25% more than formerly for rails, crossties, fuel, and the like, irrespective of the question of quality. In each of these instances the natural effect of the regulation as an aid to commerce would be precisely the same as that of the act under consideration — that is, nil.
The attempt is made to sustain the act as analogous to the exercise of the power to fix rates of freight and fare for the carriage of commodities and passengers, or as a branch of that power. This, in my judgment,, is a false analogy. The origin and basis of the governmental power to regulate rates are in the right of the public to demand *381and secure the services of, the common carrier on reasonable and equal terms, and without haggling as to rates or other terms. Every member of the public is entitled to be served, and rates are established by public authority in order to protect the public against oppression and discrimination. But there is no common or other right on the part of the trainmen to demand employment from the carriers, nor any right on the part of. the carriers to compel the trainmen to serve them. The employment is a matter of private bargaining between the parties, in which each has a constitutional right to exact such terms as he may deem proper. Adair v. United States, 208 U. S. 161, 172-3; Coppage v. Kansas, 236 U. S. 1, 20. Thus the sole foundation of the governmental power to fix rates is absent in the case of wages, and the asserted power to fix the latter is inconsistent with the constitutional rights of .employer and employee to agree between themselves respecting the terms of the employment.
But further, the interest of the public in-the regulation of rates lies in limiting the carrier to a reasonable compensation for his services. Incidentally, such a regulation may exert an indirect influence upon wages,-as upon other expenditures of the carrier. Thus, the Interstate Commerce Commission has held that undue cost of operation or management cannot stand as a justification for unreasonably high rates. Milk Producers’ Protective Association v. Delaware, L. & W. R. R. Co., 7 I. C. C. 92, 164; Society of American Florists v. U. S. Express Co., 12 I. C. C. 120, 127. But whatever concern the public authorities, as regulators of commerce, have in the cost of operation or management (including the rates of wages) is in the direction of lowering — not increasing — expenses. The present act has for its purpose and necessary effect the raising of wages; and, whatever may be its justification from the humanitarian standpoint, it cannot seriously be regarded as a regulation of commerce because incidental to a regula*382tion of rates. It is, indeed, the very antithesis of such a regulation. If it reduced wages, it would be much more easily supportable on this theory.
The primary and fundamental constitutional defect that I find in the act now under consideration is precisely this : That it undertakes to regulate the relations of common carriers by railroad to their employees in respect to a particular matter — an increase of wages — that has no real and substantial connection with the interstate commerce in which the carriers and their employees are engaged. Certainly the amount of wages that shall be paid to a trainman has no more substantial relation to commerce than the matter which was under consideration in Adair v. United States, 208 U. S. 161, that is, the right of an employee to retain his employment notwithstanding his membership in a labor organization. In that case this court, by Mr. Justice Harlan, used the following language (p. 178): “But what possible legal or logical connection is there between an employé’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 employé is connected by his labor and services.”
It proves nothing to say that the increase of pay was or is necessary, in the judgment of Congress, to prevent all railroad service in interstate commerce from being suspended. As a law to prevent a strike, the act is quite intelligible; but, as we have seen, the emergency conferred no power upon Congress to impose the burden upon, the carriers., If the pfiblic exigency required it, Congress perhaps might have, appropriated public moneys to satisfy the demands of the trainmen. But there is no argument for requiring the carriers to pay the cost, that would not equally apply to renewed demands, as often as made, if made by men who had the power to tie up traffic. I cannot *383believe that this is regulation of commerce, within the meaning of the Constitution.
But, secondly, as already remarked, and as shown in the above quotation from 223 U. S. p. 49, the power of Congress to regulate commerce among the States is “subject always to the limitations prescribed in the Constitution,” and, among others, to the inhibition of the Fifth Amendment against the deprivation of liberty or property without due process of law and the taking of private property for public use without just compensation. This has been held so often that it hardly is necessary to cite cases. Monongahela Navigation Co. v. United States, 148 U. S. 312, 336; United States v. Lynah, 188 U. S. 445, 471; Adair v. United States, 208 U. S. 161, 180; United States v. Cress, decided March 12, 1917, ante, 316.
I am convinced that the act trangresses this provision of the Amendment in two respects; first, in that it exceeds the bounds of proper regulation, and deprives the owners of the railroads of their fundamental rights of liberty and property; and, secondly, in that Congress, although, confessedly not in possession of the information necessary for intelligent .and just treatment of the pending controversy between the carriers and the trainmen (for the act itself, in its second section, provides for the vefy investigation that the history of the legislation shows was imperatively necessary), arbitrarily imposed upon the carriers the entire and enormous cost of an experimental increase in wages, without providing for any compensation to be paid in case the investigation should demonstrate the impropriety of the increase.
Upon the first of these points, I repeat that the sole authority of Congress to regulate these railroad corporations, including that company which is represented in the present action, arises from the fact that they voluntarily have devoted their property to the. service of interstate commerce. I am unable to find in the Constitution any *384authority 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*385sequence, 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 ate 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 privaté 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 *386engaged — 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 servicé 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 inununity 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 regúlate 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, *387that 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 *388the 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.