porations carrying current indebtedness exceeding capital and those that do not.

§ 96. Williams v. Johnson. In that case (239 U. S. 414), it was held (1) That as Indians are wards of the Nation, Congress has plenary power over tribal property and relations, that power continuing after the Indians are made citizens and may be exercised as to restrictions on alienation of allotments (Tiger v. Western Investment Co., 221 U. S. 286; Choate v. Trapp, 224 U. S. 665 distinguished); (2) That the provision in the Act of April 21, 1904, c. 33, Stat. 204, removing certain restrictions on alienation of allotments to Choctaw Indians imposed by the Act of July 1, 1902, was within the authority of Congress, and was not, under the due process clause of the 5th Amendment, an unconstitutional deprivation of property of Indians to whom allotments had been made.

§ 97. Seven Cases v. U. S. In that case (239 U. S. 510), it was held (1) That the power of Congress to regulate interstate and foreign commerce authorized the enactment of the Sherley Amendment of August 23, 1912, to the Food and Drugs Act under which misbranding includes false and fraudulent statements regarding curative effects of drugs; (2) That such Amendment does not by reason of uncertainty operate as a deprivation of property without due process of law as guaranteed by the 5th Amendment.

§ 98. Brushaber v. Union Pacific R. R. Co. In that case (240 U. S. 1), it was held that the 5th Amendment is not a limitation upon the taxing power conferred upon Congress by the Constitution; that the income provisions of the Tariff Act of 1913 are not unconstitutional by reason of retroactive operation, the period covered not extending prior to the time when the Amendment was operative; nor are those provisions unconstitutional under the due process clause of the 5th Amendment; nor

do they deny due process of law, nor equal protection of the law by reason of the classifications therein of things or persons subject to the tax.

§ 99. Dodge v. Osborn. In that case (240 U. S. 118), it was held that the due process clause of the 5th Amendment was not violated by the provisions of Rev. Stat., §§ 3220, 3226, and 3227, requiring an appeal to the Commissioner of Internal Revenue after payment of taxes and only giving a right to sue after his refusal to refund. The Court said: "And this doctrine has been repeatedly applied until it is no longer open to question that a suit may not be brought to enjoin the assessment or collection of a tax because of the alleged unconstitutionality of the statute imposing it. Shelton v. Platt, 139 U. S. 591; Pittsburgh & C. Ry. v. Board of Public Works, 172 U. S. 32; Pacific Whaling Co. v. Smith & Stutes, 187 U. S. 447, 451, 452." See also Dodge v. Brady, 240 U. S. 122.

§ 99a. Wilson, U. S. Attorney v. New and Ferris, Receivers. Eight-Hour-Law Case. This case, known as the Eight-Hour-Law Case, decided March 19, 1917, and not yet reported, involved the constitutionality of the Act of Congress of September 3, 5, 1916, 39 Stat. 721, c. 436, entitled "An act to establish an eight-hour day for employees of carriers engaged in interstate and foreign commerce, and for other purposes." In the majority opinion, announced by Mr. Chief Justice White, after a review of the circumstances out of which the legislation in question arose, the following statement of the issues was made: "The court below, briefly announcing that it was of opinion that Congress had no constitutional power to enact the statute, enjoined its enforcement and as the result of the direct appeal which followed we come, after elaborate oral and printed arguments, to dispose of the controversy. All the propositions relied upon and arguments advanced ultimately come to two questions: first,

the entire want of constitutional power to deal with the subjects embraced by the statute, and second, such abuse of the power if possessed as rendered its exercise unconstitutional." After a separate consideration of each objection the court held, first, that the subjects embraced by the statute were within the Commerce clause of the Constitution, when the special circumstances are considered under which the legislative power in question was exercised; second, that by the exercise of such legislative power by Congress under such special circumstances, no other limitations imposed by the Constitution on the power to regulate commerce were violated. In conclusion the court said: "Being of the opinion that Congress had the power to adopt the act in question, whether it be viewed as a direct fixing of wages to meet the absence of a standard on that subject resulting from the dispute between the parties or as the exertion by Congress of the power which it undoubtedly possessed to provide by appropriate legislation for compulsory arbitration-a power which inevitably resulted from its authority to protect interstate commerce in dealing with a situation like that which was before it-we conclude that the court below erred in holding the statute was not within the power of Congress to enact and in restraining its enforcement and its decree therefore must be and is reversed and the cause remanded with directions to dismiss the bill." In his concurring opinion Mr. Justice McKenna said: "It is the contention of the Government that the Act is an hours-of-service law, the intent of Congress being by its enactment, 'to proclaim a substantial eighthour day.' The opposing contention is that 'the language of the Act shows that it deals solely with the construction of contracts and with the standard and amount of compensation, and not with any limitation upon the hours of labor. Upon these opposing contentions the parties respectively assert and deny the power of Congress to enact the law." From the conclusion reached by the majority four of the Justices dissented.

Mr. Justice Day in his dissenting opinion, after saying that he was "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," asserted that "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 coordinate 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.

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. . . 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. . . . Such legislation, it seems to me, amounts to the taking of the property of one and giving it to another

in violation of the spirit of fair play and equal right which the Constitution intended to secure in the Due Process Clause to all coming within its protection, and is a striking illustration of that method which has always been deemed to be the plainest illustration of arbitrary action, the taking of the property of A and giving it to B by legislative fiat. Davidson v. New Orleans, 96 U. S. 97, 104." Justices Pitney and Van Devanter concurred in all that Justice Day had said as to the invalidity of the Act in question by reason of its repugnancy to the Fifth Amendment. Speaking for both on that subject, Justice Pitney said: "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."

With equal emphasis Justices Pitney and Van Devanter denied the power of Congress to legislate at all upon the subject matter by virtue of the Commerce clause. Speaking for both on that subject the former said: "I am convinced, in the first place, that the Act cannot be