lowed, and as a result of it the act of 1898 was finally passed. Presumably its provisions and remedy were addressed to the mischief which the act of 1888 failed to reach or avert.

It was the judgment of Congress that the scheme of arbitration might be helped by engaging in it the labor associations. Those associations unified bodies of employees in every department of the carriers, and this unity could be an obstacle or an aid to arbitration. It was attempted to be made an aid; but how could it be made an aid if, pending the efforts of mediation and conciliation" of the dispute, as provided in section 2 of the act, other provisions of the act may be arbitrarily disregarded, which are of concern to the members in the dispute? How can it be an aid, how can controversies which may seriously interrupt or threaten to interrupt the business of carriers (I paraphrase the words of the statute) be averted or composed if the carrier can bring on the conflict or prevent its amicable settlement by the exercise of mere whim and caprice? I say mere whim or caprice for this is the liberty which is attempted to be vindicated as the constitutional right of the carriers. And it may be exercised in mere whim and caprice. If ability, the qualities of efficient and faithful workmanship, can be found outside of labor associations, surely they may be found inside of them. Liberty is an attractive theme, but the liberty which is exercised in sheer antipathy does not plead strongly for recognition.

There is no question here of the right of a carrier to mingle in his service "union" and "nonunion" men. If there were, broader considerations might exist. In such a right there would be no discrimination for the "union" and no discrimination against it. The efficiency of an employee would be its impulse and ground of exercise.

I need not stop to conjecture whether Congress could or would limit such right. It is certain that Congress has not done so by any provision of the act under consideration. Its letter, spirit, and purpose are decidedly the other way. It imposes, however, a restraint, which should be noticed. The carriers may not require an applicant for employment or an employee to agree not to become or remain a member of a labor organization. But this does not constrain the employment of anybody, be he what he may.

But it is said it can not be supposed that labor organizations will, "by illegal or violent measures, interrupt or impair the freedom of commerce," and to so suppose would be disrespect to a coordinate branch of the Government, and to impute to it a purpose “to accord to one class of wage earners privileges withheld from another class of wage earners engaged, it may be, in the same kind of labor and serving the same employer." Neither the supposition nor the disrespect is necessary, and it may be urged they are no more invidious than to impute to Congress a careless or deliberate or purposeless violation of the constitutional rights of the carriers. Besides, the legislation is to be accounted for. It, by its letter, makes a difference between members of labor organizations and other employees of carriers. If it did not it would not be here for review. What did Congress mean? Had it no purpose? Was it moved by no cause? Was its legislation mere wantonness and an aimless meddling with the commerce of the country? These questions may find their answers in re Debs (158 U. S., 564; 39 L. ed., 1092; 15 Sup. Ct. Rep., 900).

I have said that it is not necessary to suppose that labor organizations will violate the law, and it is not. Their power may be effectively exercised without violence or illegality, and it can not be disrespect to Congress to let a committee of the Senate speak for it and tell the reason and purposes of its legislation. The Committee on Education in its report said of the bill: "The measure under consideration may properly be called a voluntary arbitration bill, having for its object the settlement of disputes between capital and labor, as far as the interstate transportation companies are concerned. The necessity for the bill arises from the calamitous results in the way of ill-considered strikes arising from the tyranny of capital or the unjust demands of labor organizations, whereby the business of the country is brought to a standstill and thousands of employees, with their helpless wives and children, are confronted with starvation." And concluding, the report said: "It is our opinion that this bill, should it become a law, would reduce to a minimum labor strikes which affect interstate commerce, and we therefore recommend its passage." With the report was submitted a letter from the secretary of the Interstate Commerce Commission, which expressed the judgment of that body, formed, I may presume, from experience of the factors in the problem. The letter said: With the corporations as employers on one side, and the organizations

of railway employees on the other, there will be a measure of equality of power and force which will surely bring about the essential requisites of friendly relation, respect, consideration, and forbearance." And again: "It

has been shown before the labor commission of England that where the associations are strong enough to command the respect of their employers, the relations between employer and employee seem most amicable. For there the employers have learned the practical convenience of treating with one thoroughly rpresentative body instead of with isolated fragments of workmen, and the labor associations have learned the limitations of their powers."

It is urged by plaintiff in error that "there is a marked distinction between a power to regulate commerce and a power to regulate the affairs of an individual or corporation engaged in such commerce"; and how can it be, it is asked, a regulation of commerce to prevent a carrier from selecting his employees or constraining him to keep in his service those whose loyalty to him is "seriously impaired, if not destroyed, by their prior allegiance to their labor unions "? That the power of regulation extends to the persons engaged in interstate commerce is settled by decision. (Howard . Illinois C. R. Co., 207 U. S., 463, ante, 297; 28 Sup. Ct. Rep., 141, and the cases cited in Mr. Justice Moody's dissenting opinion.) The other proposition points to no evil or hazard of evil. Section 10 does not constrain the employment of incompetent workmen, and gives no encouragement or protection to the disloyalty of an employee or to deficiency in his work or duty. If guilty of either, he may be instantly discharged, without incurring any penalty under the statute.

Counsel also made a great deal of the difference between direct and indirect effect upon interstate commerce, and assert that section 10 is an indirect regulation at best and not within the power of Congress to enact. Many cases are cited, which, it is insisted, sustain the contention. I can not take time to review the cases. I have already alluded to the contention, and it is enough to say that it gives too much isolation to section 10. The section is part of the means to secure and make effective the scheme of arbitration set forth in the statute. The contention, besides, is completely answered by Howard v. Illinois C. R. Co., supra. In that case, as we have seen, the power of Congress was exercised to establish a rule of liability of a carrier to his employees for personal injuries received in his service. It is manifest that the kind or extent of such liability is neither traffic nor intercourse, the transit of persons nor the carrying of things. Indeed, such liability may have wider application than to carriers. It may exist in a factory; it may exist on a farm; and in both places, or in commerce, its direct influence might be hard to find or describe. And yet this court did not hesitate to pronounce it to be within the power of Congress to establish. "The primary object," it was said in Johnson v. Southern P. Co. (196 U. S., 1; 49 L. ed., 363; 25 Sup. Ct. Rep., 158), of the safety appliance act "was to promote the public welfare by securing the safety of employees and travelers." The rule of liability for injuries is even more roundabout in its influence on commerce, and as much so as the prohibition of section 10. To contend otherwise seems to me to be an oversight of the proportion of things.

A provision of law which will prevent, or tend to prevent, the stoppage of every wheel in every car of an entire railroad system certainly has as direct influence on interstate commerce as the way in which one car may be coupled to another or the rule of liability for personal injuries to an employee. It also seems to me to be an oversight of the proportions of things to contend that, in order to encourage a policy of arbitration between carriers and their employees which may prevent a disastrous interruption of commerce, the derangement of business, and even greater evils to the public welfare, Congress can not restrain the discharge of an employee, and yet can, to enforce a policy of unrestrained competition between railroads, prohibit reasonable agreements between them as to the rates at which merchandise shall be carried. And mark the contrast of what is prohibited. In the one case the restraint, it may be, of a whim-certainly of nothing that affects the ability of an employee to perform his duties; nothing, therefore, which is of any material interest to the carrier-in the other case a restraint of a carefully considered policy which had as its motive great material interests and benefits to the railroads, and, in the opinion of many, to the public. May such action be restricted, must it give way to the public welfare, while the other, moved, it may be, by prejudice and antagonism, is intrenched impregnably in the fifth amendment of the Constitution against regulation in the public interest?

I would not be misunderstood. I grant that there are rights which can have no material measure. There are rights which, when exercised in a private

business, may not be disturbed or limited. With them we are not concerned. We are dealing with rights exercised in a quasi public business, and therefore subject to control in the interest of the public.

I think the judgment should be affirmed.

Mr. Justice HOLMES, dissenting:

I also think that the statute is constitutional, and, but for the decision of my brethren, I should have felt pretty clear about it.

As we all know, there are special labor unions of men engaged in the service of carriers. These unions exercise a direct influence upon the employment of labor in that business, upon the terms of such employment, and upon the business itself. Their very existence is directed specifically to the business, and their connection with it is at least as intimate and important as that of safety couplers and, I should think, as the liability of mester to servant-matters which it is admitted Congress might regulate, so far as they concern commerce among the States. I suppose that it hardly would be denied that some of the relations of railroads with unions of railroad employees are closely enough connected with commerce to justify legislation by Congress. If so, legislation to prevent the exclusion of such unions from employment is sufficiently near.

The ground on which this particular law is held bad is not so much that it deals with matters remote from commerce among the States as that it interferes with the paramount individual rights secured by the fifth amendment. The section is, in substance, a very limited interference with freedom of contract; no more. It does not require the carriers to employ anyone. It does not forbid them to refuse to employ anyone for any reason they deem good, even where the notion of a choice of persons is a fiction, and wholesale employment is necessary upon general principles that it might be proper to control. The section simply prohibits the more powerful party to exact certain undertakings or to threaten dismissal or unjustly discriminate on certain grounds against those already employed. I hardly can suppose that the grounds on which a contract lawfully may be made to end are less open to regulations than other terms. So I turn to the general question whether the employment can be regulated at all. I confess that I think that the right to make contracts at will that has been derived from the word "liberty in the amendments has been stretched to its extreme by the decisions, but they agree that sometimes the right may be restrained. Where there is, or generally is believed to be, an important ground of public policy for restraint the Constitution does not forbid it, whether this court agrees or disagrees with the policy pursued. It can not be doubted that to prevent strikes and, so far as possible, to foster its scheme of arbitration might be deemed by Congress an important point of policy, and I think it impossible to say that Congress might not reasonably think that the provision in question would help a good deal to carry its policy along. But suppose the only effect really were to tend to bring about the complete unionizing of such railroad laborers as Congress can deal with, I think that object alone would justify the act. I quite agree that the question what and how much good labor unions do is one on which intelligent people may differ; I think that laboring men sometimes attribute to them advantages, as many attribute to combinations of capital disadvantages, that really are due to economic conditions of a far wider and deeper kind; but I could not pronounce it unwarranted if Congress should decide that to foster a strong union was for the best interest not only of the men but of the railroads and the country at large.

Mr. CARTER. Your Adamson law does not amount to that [snapping fingers] to the railroad companies. They do not intend to observe it, never will, and we know it. They will avoid its application in one way or another for years to come. As long as the railroad companies possess that power of nonobservance of law, is it fair to say to the employees, "We know that you will observe the law, and, therefore, we make it a penalty for you to strike"?

With regard to that being involuntary servitude, the questions brought out this morning indicated that so long as you permit an individual to quit, but prevent two or more from quitting by concerted action, involuntary servitude would not be forced upon the railroad employees. To use an old commonplace expression, "There are more ways of killing a dog than choking him on butter." If it

be your purpose, gentlemen-and I do not think it is to get around the thirteenth amendment, and yet deprive railroad employees of their rights thereunder by some jugglery, in which I will confess that the courts will probably uphold you, under the old theory of conspiracy; that what two men do is a conspiracy in the eyes of the law, as it has been for ages back, but it is unfair to railway employees. Now, if that is your purpose, I will confess that you can accomplish a great deal along that line; but I do not think it is your purpose.

Now, with regard to the courts: No one has a greater respect for the courts than I have, not excepting Mr. Owen-and, by the way, I have just received a telegram on the subject-but we must recognize that no man who has had aught to do with the servant class ever becomes a judge. It is the master class that reaches the bench and as honest as they may be-and I am not denying their honesty-their environment has been such that they can not appreciate the rights of labor, with the result that we fear that any law that you may enact here will not be interpreted by the courts in our favor. We fear that the environment of the court has been such in the past that the servant, the man who works for a living, does not appeal to the mental attitude of the judge as does the man who owns property. Now, I am going to inject a telegram here, and show you what is in the minds of the men since this agitation has started. Here is a telegram from a distant State: "Would you advise supporting the Owen resolution, United States Senate, directed at the usurpation of power by Federal judges? Wire reply." That is the mental attitude of railroad men, when they see what Senator Owen has proposed. They feel they are not getting a square deal, and you can not blame them for it, if you will turn to the Adair case, to which I have referred. There are judges, however, of an entirely different attitude. I refer to Judge Harlan, in the case of Arthur v. Oakes. Judge Harlan was associated, I think, with Circuit Judge Woods and District Judge Bunn. That case was back in October, 1894, I think. Now, there was entirely a different line of argument by the court in that case, and if that is right, then your proposed law is unconstitutional. The court said: "Equity will not enjoin employees of a receiver of a railroad from quitting his service, although the effect of such action will be to cripple the property, or prevent or hinder the operation of the road."

Again he said: "A strike is not unlawful if it is merely a combination among employees, having for its object their orderly withdrawal in large numbers or in a body from their employers' service to accomplish some service."

The CHAIRMAN. Though it does not say so, it simply indicates the particulars where the law does not cover the case.

Mr. CARTER. It was held in the Northern Pacific case by Judge Jenkins that "an injunction is the appropriate remedy to prevent an unlawful combination and conspiracy to interfere with the operation of a railway and paralyze its business, since the injury would be irreparable and compensation could be obtained only through a multiplicty of suits."

Mr. ADAMSON. The combination must not be an unlawful combination, in other words.

may

Mr. CARTER. If it is, it is held by Judge Jenkins that it be restrained by an order of the court. The reason I bring that in is simply to show that no matter what law you may devise, and what language you may insert in the law, it depends entirely upon the mental attitude of the court that passes on it, as to what the law really is.

Therefore, we feel that notwithstanding the thirteenth amendment to the Constitution of the United States, the language of this law means nothing more nor less than involuntary servitude.

(The opinion in Arthur v. Oakes is printed in full as follows:)

P. M. ARTHUR ET AL., INTERVENORS, APPELLANTS, V. THOMAS F. OAKES ET AL.

1. Equity will not enjoin employees of a receiver of a railroad from quitting his service, although the effect of such action will be to cripple the property, or prevent or hinder the operation of the road.

2. Employees of the receiver of a railroad may lawfully confer together upon the subject of a proposed reduction of wages, and if not restrained by their contract, may withdraw in a body from the receiver's service because of such reduction, although they expect that such action will inconvenience the receiver and the public.

3. Equity will enjoin any combination or conspiracy among the employees of the receiver of a railroad which has for its object and intent the physical injury of the property in the receiver's possession, or actual interference with the regular continuous operation by him of the railroad.

4. Employees of a receiver of a railroad may be enjoined from disabling rolling stock or other property in the receiver's possession, from interfering with its possession or obstructing its management, and from using force, intimidation, threats, or other wrongful methods against the receiver, his agents, or employees, or persons seeking employment.

5. Illegal combinations are not sanctioned in any degree by the act of Congress of June 29, 1886, legalizing the incorporation of national trades-unions. 6. Trade-unions are not prohibited by an injunction against illegal combinations of working men.

7. Employees of the receiver of a railroad may be enjoined from combining and conspiring to quit his service with the object and intent of crippling the property in his custody, or embarrassing the operation of the railroad.

8. A strike is not unlawful if it is merely a combination among employees having for its object their orderly withdrawal in large numbers or in a boly from their employer's service, to accomplish some, lawful purpose.

9. Injunction is a proper remedy to restrain threatened acts of employees of a railroad receiver which would inflict irreparable loss upon the property, and seriously prejudice the interests of the public involved in the regular continuous operation of the road.

Appeal by intervening petitioners from a decree of Circuit Court of the United States for the Eastern District of Wisconsin, denying their motion to strike out certain portions of an injunction restraining employees of the receiver of the Northern Pacific Railway Co. from interfering with the property in his hands. Reversed in part.

The case sufficiently appears in the opinion.

Argued before Harlan, circuit justice; Woods, circuit judge, and Bunn, district judge.

Messrs. Charles Quarles, T. W. Spence, and T. W. Harper, for appellants: An injunction is an extraordinary remedy, to be resorted to only when the end sought can be reached by no other legal process.

The writs of injunction in this case, in so far as they enjoin acts forbidden by law, are superfluous, and unnecessary, and they have no functions to perform, in so far as the writs forbid acts which the law does not forbid the order awarding the writs is erroneous.

The order appointing the receivers and directing them to take possession of the road, and authorizing them to operate it, is an equitable execution. Davis v. Gray, 83 U. S., 16 Wall., 217; 21 L. ed., 452.

Any interference with the possession of the receivers, or with the operation of the road, is an obstruction to the execution of the mandate of the court.