New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1916-09-14

To the Editor of The Tribune.
Sir: The so-called "eight-hour law" might
properly be entitled "An act to increase the
wages of train employees 25 per centum." Bear
ing in mind the situation which caused its
passage, it is safe to say that the act will
be held to apply only to train employees, /.
Ct engineers, fremen, conductors and brake
men. The act does not prohibit more than
eight hours work, but, on the contrary, pro-
vides for the rate of pay for time over eight
hours. The act meets the constitutional oo-
lection to the first employers liability act
By providing that it shall apply only TO
employees actually engaged in interstate
commerce. Consequently, employees WORKING
on trains not carrying interstate freight or
passengers do not come within the provisions
Of the act
Section 3, which is the heart Of the act,
reads follows:
That, pending the report Of the COM
mission herein provided for and for
period of thirty days thereafter the
condensation of railway employees sub
ject to this act for standard eight
hour workday shall not be reduced be-
low the present standard days 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 eght-hour worSday.
The constitutional question therefore
arises. Has Congress power to regulate the
rate CT wages of railroad employees engaged
in interstate COMMERCE? OF course, 1t Is
claimed that Congress S.2s power so TO legis-
late under Section of Article | Of the Con-
stitution which provides as follows:
The Congress shall have power
to regulate commerce with foreign ma
tions, and among the several states.
Many cases have been decided constituting
this section. and, while many fine dlstinc-
tions have been drawn, still certain funda-
mental principles have been stated by the
Supreme Court. For instance, merely be-
cause a corporation is engaged in interstate
commerce. all its affairs are not subject to
the will of Congress. II is the commerce
interstate commerce which is the subject OF
regulation Furthermore, the exercise OF the
power must not conflict with rights secured
to all persons by other provisions of the
Constitution. and consequently Congress, IN
regulating interstate commerce, must not
violate the "due process of law clause OF
the Fifth Amendment
In 1898 Congress passed law making it
a
to discharge an employe because of member
ship in labor union. In the case of Adair
vs.. L. S. 2Os L. s. 16l. the court declared
this act unconstitutional Mr.. Justice Har-
Ian, in writing the opinion, said:
We need scarcely repeat what this
court has more than once said. that the
power to regulate interstate commerce.
great and paramount as that power Is,
cannot be exerted in violation Of any
fundamental right secured by other pro-
visions of the Constitution. Gibbons rs.
Ogden. Wheat, 1896 Marshall, c. j.;
Lottery Case, 1sS L. s. 32l, 353.
II results, on the whole case. that the
provision Of the statute under which the
defendant was convicted must be held 20
be rcpugnant to the Fifth Amendment
and as not embraced by nor within the
power of Congress to regulate inter
state commerce, but under the gulse OF
regulating interstate commerce and as
applied to this case, it arbitrarily sane
tons an illegal invasion of the person
al liberty, as well as the right of prop
erty, of the defendant Adalr page
1907.
In view OF the failure Of this attempt to
regulate the terms of employment of en-
ployes OF interstate carriers, the railroads |
have more than an even chance Of winning
a test case involving the constitutionality
of the act under discussion As Chief Jus
tice Marshall said in McCulloch VS.. Mary
land "a Wheat, 3l6):
Should Congress, in the execution Of
its powers, adopt measures which
prohibited by the Constitution, or should
Congress, under the pretext Of exccut-
ing its powers. pass laws for the accom-