(concurring).
1 concur in Judge SWAN’s opinion, but I am not entirely satisfied with the grounds on which we rested the constitutionality of the Portal to Portal Act1 in Battaglia v. General Motors Company.2 It is true that there is language in some of the cases that appears to hold that in exercising its power to regulate interstate commerce Congress is more free of the Fifth Amendment than it is as to others of its powers; but I do not believe that in the end this will prove a tenable distinction; and, although I should have felt bound to accept our decision, even if I had not agreed with it, I think it not improper to give my reasons for independently reaching the same result. Several times before 1947 the Supreme Court3 had so interpreted the Fair Labor Standards Act that Congress in that year declared the result to be a “disregard of long-established customs, practices, and contracts between
employers and employees, thereby creating wholly unexpected liabilities, immense in amount and retroactive in operation, upon employers wit-h the results that, if said Act, as so interpreted or claims arising under such interpretations, were permitted to stand,” inconveniences, and indeed public disasters, would ensue that were described in the ten specific items that followed. This declaration was a preamble of the kind that has reappeared in recent times; its function now is to justify constitutionally a statute that without it might lack adequate support. When made after adequate hearings and upon timely notice to all who might choose to appear, such “a declaration by a legislature concerning public conditions that by necessity and duty it must know, is entitled at least to great respect”;4 though apparently it is not conclusive, for any party to an action may challenge it.5 The curious consequences of such a challenge Taney, C. J., set forth at length in Luther v. Borden, 7 How. 1, 41, 42, 12 L.Ed. 581, though he found it unnecessary to decide the point, because the controversy was within that nebulous field, called “political,” which courts will not enter. The embarrassments that would necessarily attend a judicial trial of the facts -in the declaration at bar — particularly if the trial were to a jury, as Taney, C. J. supposed — would be no less than those in Luther v. Borden; and indeed they might be greater, if we consider.the scope of the inquiry and the kind of evidence that Congress accepts and must needs accept, if it is to proceed at all. Happily, in the case at bar we are not faced with that difficulty, and may accept the declaration as it reads, for the plaintiffs put in no evidence to disprove it. If the facts declared be *97taken as data, the validity of the Act and its later amendments depends upon whether the occasion permitted Congress to release the defendants from a part, though only a small part, of the performance to which their contracts bound them.
Tlie plaintiffs performed all their services between October 15, 19-13, and September 30, 1945, at a time when the Supreme Court had not answered the precise question now before us: i. e. whether “overtime” in the Act meant something different from “overtime” as the parties understood it. It is quite true that in March, 1944, the Court had declared in another connection that the customary and accepted construction of the parties should not prevail; but this did not appear to everyone to be conclusive as to “overtime”; and before October 15, 1943, a conflict had arisen between the rulings of governmental “agencies,” so that an employer who wished to proceed had to choose at his peril which ruling to follow. It does not appear how far the plaintiffs at bar were aware of these divergent interpretations, although the longshoremen’s union was fully advised of them; hut certainly we should have no warrant for supposing that, as individuals, they relied upon the interpretations that finally prevailed. The existence of these doubts about pay for “overtime,” did not, of course, affect the plaintiffs’ right to all that was eventually determined to be due, and I agree that that right was “vested” in every sense of that word. However, it is another matter whether the uncertainty that had prevailed and the unexpectedness of the new liabilities were irrelevant upon whether the Act was constitutional.
As I view it, two questions arise: (1) whether it was unconstitutional because it took the plaintiffs’ “properly for public use without just compensation”; and (2) whether it “deprived” them of property “without due process of law.” I agree that a contract is “properly” within the meaning of both clauses;6 and 1 shall assume arguendo that the first command is unconditional, so that the Act would have been invalid, if it had attempted to release the defendants from any payment whatever for the plaintiffs’ work.7 In short, I shall assume — thbugh I should hesitate before so holding — that no “public use” can be so urgent as to justify “taking” property without “just compensation.” On that hypothesis the first of the two questions I have raised, comes down to whether the Act “took” the plaintiffs’ contracts. It has been several times declared that to constitute a “taking” something must be “transferred” to the “taker”; 8 and it could be argued that even completely to release the employers from their obligations would not “transfer” anything from their employees to them. That appears to me an extremely narrow view, and I shall assume that the situation was the same as though the payments, from which the employers were released, were “transferred” to them. What I rest on is that a release from a part of their obligations, unlike a release from all of it, was not a “taking” at all. Tf we were dealing in verbal dialectics, 1 agree that it would be hard to defend such a distinction, but we are not; we are dealing with a constitutional limitation, and there is no surer way to misapprehend its scope than to ignore its history, and treat it as inspired text. This clause in its origin forbad the seizure of tangible property — land or chattels — by which the owner lost the whole enjoyment of what he had possessed; and it was later extended to intangible property by analogy, for otherwise the fundamental purpose of the original would not have been fully realized. On the other hand it has never been extended to every diminution of an owner’s enjoyment of his property. True, the law protects all the uses to which “property” can be put; the word is, indeed, a compendium: *98the sum of them. But to deprive the owner of a part of these uses is not to “take” his property; it is a question of degree, like so much else in law. If this were not so, no enforced compromise between the claims of two groups of persons would ever be valid without “compensating” whoever suffered any impairment of the enjoyment of his property; and that would mean that a right, once “vested,” could never be circumscribed, no matter how much it might stand in the path of the public interest. The Supreme Court has many times declared the contrary.9 The Portal to Portal Act was of their kind; it did not “take” from the plaintiffs all that they had earned for statutory “overtime,” though it did take a part. So much for the first point.
The second is vaguer in its outlines, since it concerns the 'validity of Congress’s preference of the public interest — including the employers’ — over the employees’. Frequently — usually indeed' — when a court seeks for some reason to defend such a legislative choice, it says that the statute will stand, unless the choice was “arbitrary,” “oppressive,” “capricious,” or “unreasonable.” 10 That obviously conceals what the court is doing, although, so far as I can see, uncertainty is inherent in the situation. Laws involve a forecast of what will happen if they are enforced, and a preference between the interests affected if those forecasts are realized. In this case the declaration states the forecast, though the grounds for the preference are not disclosed, and scarcely could be. Certainly, as res nova, all such choices are a “legislative” function, and any judicial review of it must be with a wide reserve. So far as a court believes that it has access to basic axioms, postulates or principles — “Natural Law,” human or divine — of course it will invoke them; but in their absence I can see nothing for it but to resort to those standards of choice: i. e. “principles of justice” that are part of the accepted political equipment at the time. And the fact that the outcome of a search for these must be to the last degree uncertain should always impose the utmost diffidence upon our review, especially so when one remembers that the mere fact that the law has had enough public support to get itself enacted shows that important public opinion believes the choice to be “just.” But, be the search as inconclusive as it may, I can see no escape from it.
In the case at bar I am not aware of any disinterested opinion in this country that would find the choice made abhorrent to prevailing standards of “justice.” On the one hand the plaintiffs do of course lose a part of what was theirs; but as to any who knew nothing about the contradictory interpretations and who were working under the old terms, to deprive them of their windfall would not, 1 believe, be deemed a serious grievance. As to those who knew of the contradictory interpretations of “overtime,” so far as they were working for more than they were getting it was on a chance, and they have no more ground for complaint than any other loser on a chance, deliberately accepted. Moreover all were getting what had sufficed to keep them on their jobs throughout the period. Against their disappointment Congress had to weigh the loss to the employers who had in good faith relied upon a ruling favorable to them. True, they too had taken a chance, and, like the last class of employees, they had no greater complaint; but at least their interest matched that of the employees. With the opposed interests so nearly in *99balance, it seems to me, not only that Congress was free to make controlling the indirect effects of the new and unexpected reading of the Fair Labor Standards Act, but that it would have been most recreant in its responsibilities, if it had not done so. I trust I do not undervalue the importance of not disturbing “vested” rights; but the pith and kernel of our well-founded reluctance to do so is because otherwise the hopes of their possessors will be disappointed and they will be unable pro tanto to plan their future. I do not believe that that is so imperious an interest as of itself to justify sacrifices of the general interest, no matter how grave; and, in the case of an assurance so contingent and doubtful as was any that these plaintiffs could have had, it would have been shocking to allow the retention of their bonanzas to bring about the evils described in the declaration. For these reasons I think the Act was constitutional.
. § 251 et seq., Title 29, U.S.C.A.
. 2 Cir., 169 F.2d 254.
. Tennessee Coal, Iron & Railroad Co. v. Muscoda Local, 321 .U.S. 590, 64 S.Ct. 698, 88 L.Ed. 949; Jewell Ridge Coal Corp. v. Local 6167, 325 U.S. 161, 65 S.Ct. 1063, 89 L.Ed. 1534; Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515.
. Block v. Hirsh, 256 U.S. 135, 154, 41 S.Ct. 458, 459, 65 L.Ed. 865.
. Chastleton Corporation v. Sinclair, 264 U.S. 543, 546, 44 S.Ct. 405, 68 L.Ed. 841; Borden’s Farm Products Company v. Baldwin, 293 U.S. 194, 209, 210, 55 S.Ct. 187, 79 L.Ed. 281; United States v. Carolene Products Co., 304 U.S. 144, 153, 58 S.Ct. 778, 82 L.Ed. 1234; Woods v. Cloyd W. Miller Co., 333 U.S. 138, 144, 68 S.Ct. 421, 92 LEd. 596.
. Omnia Commercial Co., Inc., v. United States, 261 U.S. 502, 508, 43 S.Ct. 437, 67 L.Ed. 773.
. Cities Service Co. v. McGrath, 342 U.S. 330, 334, 335, 336, 72 S.Ct. 334, 96 L.Ed. 359.
. Mitchell v. United States, 267 U.S. 341, 45 S.Ct 293, 69 L.Ed. 644; United States ex rel. Tennessee Valley Authority v. Powelson, 319 U.S. 266, 63 S.Ct. 1047, 87 L.Ed. 1390; United States v. Petty Motor Company, 327 U.S. 372, 66 S.Ct. 596, 90 L.Ed. 729; Kimball Laundry Co. v. United States, 338 U.S. 1, 5, 69 S.Ct. 1434, 93 L.Ed. 1765.
. Manigault v. Springs, 199 U.S. 473, 480, 26 S.Ct. 127, 50 L.Ed. 274; Louisville & Nashville R. R. v. Mottley, 219 U.S. 467, 31 S.Ct. 265, 55 L.Ed. 297; Union Dry Goods Co. v. Georgia Public Service Corp., 248 U.S. 372, 39 S.Ct. 117, 63 L.Ed. 309; Calhoun v. Massie, 253 U.S. 170, 40 S.Ct. 474, 64 L.Ed. 843; Block v. Hirsh, 256 U.S. 135, 41 S.Ct. 458, 65 L.Ed. 865; Marcus Brown Holding Co. v. Feldman, 256 U.S. 170, 41 S.Ct. 465, 65 L.Ed. 877; Omnia Commercial Co. v. United States, supra, 261 U.S. 502, 43 S.Ct. 437; Home Building & Loan Association v. Blaisdell, 290 U.S. 398, 54 S.Ct. 231, 78 L.Ed. 413; East New York Sav. Bank v. Hahn, 326 U.S. 230, 66 S.Ct. 69, 90 L.Ed. 34; Woods v. Cloyd W. Miller Company, 333 U.S. 138, 68 S.Ct. 421, 92 L.Ed. 596; Lichter v. United States, 334 U.S. 742, 788, 68 S.Ct. 1294, 92 L.Ed. 1694.
. Treigle v. Acme Homestead Association, 297 U.S. 189, 197, 56 S.Ct. 408, 80 L.Ed. 575.