Rhodes v. New Orleans Great Northern R.

Ethridge, J., delivered the opinion of the court. The appellant, Ed Rhodes, was the plaintiff in the court below, and filed suit in the circuit court against the ap-pellee, alleging that the appellee is a common carrier, and that for several years past the appellant has been employed as a section laborer, or track laborer, in maintaining its railroad tracks, and that appellant was so employed continuously between January 1, 1921, and June 30, 1921. It is further alleged that the rate of pay of all laborers on said railroad was fixed by the United States Railroad Labor Board on July 20, 1920, at the sum of thirty-six and one-half cents per hour, and that the fixing of said rates was in all respects legal and just, and was authorized by the act of Congress commonly known as the Transportation Act of 1920 (41 Stat. 456), and that the railroad company Avas bound thereby, and Avas compelled under the law to recognize the same, and to pay the appellant according to said rate fixed by said board, and that the railroad company did recognize the legality thereof, and did pay the plaintiff according to the same mi to January 1, 1921, and since said date has failed to pay the plaintiff according to said rates; that said rates of pay fixed by said board remained unchanged continuously from July 20) 1920, to June 30, 1921, and that between the dates of January 1, 1921, and June 30, 1921, appellant Avorked for the appellee in the capacity aforesaid a total of one thousand, four hundred and forty-nine hours, for Avhich labor he Avas entitled to receive thirty-six and one-half cents per hour under the decision of said Labor Board, but that he had only been paid tAventy cents per hour for said time, leaving due him by the appellee the sum of two hundred and thirty-nine dollars and eight cents Avhich is past due, owing, and unpaid, and Avhich the appellee Avithholds and refuses to pay to plaintiff’s damage, etc. The declaration Avas demurrer to on several grounds: First: Because so much of the act of Congress of February 28. 1920, knoAvn as the Transportation Act of 1920, — 90 — as attempts to authorize the Railroad Labor Board, created by said act of Congress, to fix or regulate the wages of employees of carriers, is null, void, and unconstitutional, and is in violation of the Fifth Amendment of the Constitution of the United States, in that it deprives defendant of its property without due process of law, and deprives defendant of the equal protection of the laws. Second: That the alleged order of the Railroad Labor Board of July 20, 1920, fixing the prices of wages of track laborers on defendant’s railroad at thirty-six and one-half cents per hour, is null and void, contrary to the. Fifth Amendment of the Constitution of the United States, in that it deprives the defendant of its property right to contract with its employees for their services, and denies it the equal protection of the law. Third: That the Railroad Labor Board created by said act of Congress is a tribunal or board of special and limited jurisdiction, and can render a decision or order only where there is a dispute between a carrier and its employees, and an application has been made to said board to settle such dispute, or when in the opinion of the board such dispute is likely substantially to interrupt commerce; and it is not alleged in the declaration .that there was a dispute between defendant and its employees, and that an appeal to said board had been made, or that, in the opinion of the Labor Board, such dispute was likely substantially to interrupt commerce, and it is not alleged that such order of said Labor Board was duly given or made. Fourth: That it appears from the declaration that the plaintiff Avorked for the defendant from January 1st to June 30, 1921, at a wage of twenty cents per hour, without protest and without demanding pay at the rate of thirty-six and one-half cents per hour for that period or any part of it. Fifth: Because the. Transportation Act does nor. impose any penalty upon or authorize any suit against a carrier for failure to obey or comply with any order of said Railroad Labor Board, and no jurisdiction, poAver, or author — 91 — ity is by said act conferred on this court, or on any court, to render judgment in any suit to enforce any order of said hoard. We will first dispose of the third, fourth, and fifth grounds of demurrer. Section 770, Code of 1906 (section 553, Hemingway’s Code), reads as 'follows: “In pleading a judgment or other determination of a court or officer of special jurisdiction, it shall not be necessary to state the facts conferring jurisdiction, but such judgment or determination may be stated to have been duly given or made; and the facts conferring jurisdiction shall he shown at the trial.” In our opinion this section is applicable to the orders of the Kailroad Labor Board, and the declaration substantially complies with the requirement of this section as to pleading. The allegation of the declaration .is that the board fixed the rate of compensation at thirty-six and one-half cents per hour, and that the fixing of said rates was in all respects legal, and was authorized by the act of Congress known as the Transportation Act of 1920. And it further alleges that the rate of pay as fixed by the Labor Board was legal and just, and that the corporation was hound thereby, stating the case as strongly as it is required to be stated by the section above mentioned in our Code. Under this section the facts conferring jurisdiction may be shown at the trial. The design of the statute is to save needless special pleadings, and to let the jurisdictional facts ap; pear on the hearing, and, if there is any defect in the jurisdiction of the Railroad Labor Board, that can either be set up by pleas by the defendant challenging the jurisdiction of the board or it may be made to appear at the hearing. The allegations of the declaration are sufficient under the above statute to permit the plaintiff to show the facts when he comes to develop his case. Of course at the hearing it is necessary for the plaintiff to establish such action by the board as will enable him to maintain his action. In reference to the fourth ground of demurrer, it does not appear from the declaration that the plaintiff waived — 92 — any right lie may have had to recover the thirty-six and one-half cents per hour. The" acceptance of part payment does not per se waive the right to demand the balance due. If there are any facts constituting estoppel or waiver, that may be raised by appropriate pleading. A demurrer does not lie to the declaration as drawn on this ground. The fifth ground of demurrer challenges the jurisdiction of the court to entertain the suit because there is no express provision in the- Transportation Act giving itself jurisdiction to this court or any court to render judgment upon the order of the board. It will be necessary to consider the provisions of the act and the powers conferred on the board thereunder to deal with this ground of demurrer. In section 307 (b) of the Transportation Act of 1920 it is provided: “The Labor Board, (1) upon the application of the chief executive of any carrier or organization of employees or subordinate officials whose members are directly interested in the dispute, (2) upon a written petition signed by not less than one hundred, unorganized employees or subordinate officials directly interested in the dispute, or (3) upon the Labor Board’s own motion if it is of the opinion that the dispute is likely substantially to interrupt commerce, shall receive for hearing, and as soon as practicable and with due diligence decide, all disputes with respect to the wages or salaries of employees or subordinate officials of carriers, not decided as provided in section 301. The Labor Board may upon its own motion within ten days after the decision, in accordance with the provisions of section 301, of any dispute with respect to wages or s,al-aries of employees or subordinate officials of carriers, suspend the operation of such decision if the Labor Board is of the opinion that the decision involves such air increase in wages or salaries as will be likely to necessitate a substantial readjustment of the rates of any carrier. The Labor Board shall hear any decision so suspended and as — 93 — soon as practicable and with dne diligence decide to affirm or modify such suspended decision.” Section 301 of the Transportation Act of 1920, referred to, provides: “It shall be the duty of all carriers and their officers, employees, and agents to exert every reasonable effort and adapt every available means to avoid any interruption to the operation of any carrier growing out of any dispute between the carrier and the employees or subordinate officials thereof. All such disputes shall be considered and, if possible, decided in conference between representatives designated and authorized so to confer by the carriers, or the employees or subordinate officials thereof, directly interested in the dispute. If any dispute is not decided in such conference, it shall be referred by the parties thereto to the board which under the provisions of this title is authorized to hear and decide such dispute.” Section 307 (d) of the Transportation Act of 1920, provides : “All the decision of the Labor Board in respect to wages or salaries and of'the Labor Board or an Adjustment Board in respect to working conditions of employees or subordinate officials of carriers shall establish rates of wages and salaries and standards of working conditions which in the opinion of the board are just and reasonable. In determining the justness and reasonableness of such wages and salaries or working conditions the board shall, so far as applicable, take into consideration among other relevant circumstances: “(1) The scales of wages paid for similar kinds of work in other industries; “(2) The relation between wages and the cost of living ; “(3) The hazards of the employment; “(4) The training and skill required; “(5) The degree of responsibility; .“((>) The character and regularity of the employment; and — 94 — “ (7) Inequalities oí increases in wages or of treatment, the result of previous wage orders or adjustments.” It will be seen from this act that the board is given power to establish rates of wages and salaries in cases therein provided for. The purpose of the act is to establish a legal tribunal with power to fix the rate of wages between carriers and their employees and subordinate officials when they cannot be settled by agreement, to the end that commerce may not be interrupted. In our vieiv the act creates a system of compulsory arbitration with notice to the parties and a, right to produce evidence, and the finding of the board in the cases provided for in the act has the effect of an award. The purpose of Congress was to prevent the possibility of tying up the transportation of the country during disputes as has been done heretofore in numerous cases, and has been threatened in cases of such magnitude as to seriously jeopardize the business and welfare of the country. The living and business conditions of the great public are dependent upon the carriers for the transportation of the necessaries of life, as well as ordinary articles of utility. The legal effect of the action of the board is to fix, for the time being, (a temporary period), the Avages and salaries of the employees until the parties can agree upon such wages or salaries, or can malee other arrangements Avith other men for the carrying on of the business of the carrier. It has the effect, in our opinion, of giving a right of action against the carrier by the employee or official for the salary so fixed under the provisions of the act if services are performed thereunder, and the courts are'open for the enforcement of this obligation. The courts are open to the carriers also. Of course it Avas Avithin the powers of Congress to fix the conditions upon Avhich suits could be brought, or the courts in Avhich the obligation could be enforced. But, Congress having designated no tribunal to take cognizance of the matter, any court having jurisdiction of the parties and subject-matter may enforce the obligation as in the case of any other money obligation or contractual right. This brings us, then, to the question of the constitutionality of the act. — 95 — Congress has been given the power to regulate interstate commerce in broad and comprehensive terms. This power, being given by the Constitution, is only limited by other provisions of the Constitution. The act in question seems to us to have been drawn under the decisions of Wilson v. New, 243 U. S. 332, 37 Sup. Ct. 298, 61 L. Ed. 755, L. R. A. 1917E, 938, Ann. Cas. 1918A, 1024, in which case the court considered the power of Congress under the Adamson Act (U. S. Comp. St., sections 8680a-8680d) to legislate with reference to a grave situation involving, among other things, the right to fix wages and hours for employees, and upheld the power of Congress so to do. The applicable authorities, are found in that opinion and in the elaborate briefs before the United States supreme court in that case as set out in 61 L. Ed. 775 et seq. The power conferred in the present act to fix wages is not a fixing of wages permanently, but a temporary fixing of wages with full power of the Labor Board to modify its orders as exigencies may aidse. We deem it unnecessary to go into an elaborate discussion of the subject, but the power of Congress to regulate interstate commerce has been upheld and applied to many situations, and must, in the nature of things, be sufficient to meet the demands of the age and conditions with which Congress, from time to time, is called to deal. The powers conferred must be brought into exercise in many situations and conditions which the framers of the Constitution did not foresee. When dealing with a power of this kind, we must remember that conditions change from age to age. The carriers, of the country have been organized into huge transportation systems, employing hundreds of thousands of employees; and labor has been organized into organizations containing many hundreds of thousands and even millions of men. With the growth of commerce the public have become dependent in a large measure upon the transportation systems.for the carrying on of its business throughout the country, and a strike or tie-up of the transportation systems would result in untold suffering and loss — 96 — to the public. The evils of the situation and the magnitude of the problem such as threatened the country when the Adamson Act was passed has been drawn in vivid colors in the supreme court of Kansas in the case of State v. Howat, 109 Kan. 376, 198 Pac. 686 et seq. The magnitude of the organization of capital has been dealt with in numerous cases affecting the federal Anti-Trust Acts (U. S. Comp. St., section 8820 et seq.) in decisions of the United States supreme court. The power of the government must be capable of meeting these changed conditions, and is sufficient when called into power through appropriate legislation to protect commerce and transportation from suspension or interruption. The means by which the object is accomplished must be left to the judgment and discretion of the legislative branch of the government. The act here under review is adapted to this purpose, and logically tends to the prevention of the suspension or interruption of interstate commerce. We do not think the act here under review unconstitutionally abridges the freedom of contract, nor that it deprives the defendant of its property without due process of law. As pointed out in Wilson v. New, supra. and numerous other cases, the fact that a business is affected with the public use makes it different from, and its right of contract also different from, that of ordinary business. This is pointed out clearly in the majority opinion in Wilson v. New, supra. Mr. Justice McReynohds in his dissenting opinion closes his opinion with this language: “But, considering the doctrine' now affirmed by a majority of the court as established, it follows as of course that Congress has power to fix a maximum as well as a minimum wage for trainmen; to require compulsory arbitration of labor disputes which may seriously and directly jeopardize the movement of interstate traffic; and to take measures effectively to protect the free flow of such commerce against any combination, whether of operatives, owners, or strangers.” It follows from what we have said that the judgment of the court below must be reversed, and the cause remanded. Reversed and remanded.