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mon country. We believe that, in defense of our own insti-

tutions, the United States should aid common school edu-

cation, particularly in the South, and we especially

recommend concerted agitation to this end. We urge an

increase in public high school facilities in the South, where

the Negro-Americans are almost wholly without such pro-

visions. We favor well-equipped trade and technical

schools for the training of artisans, and the need of ade-

quate and liberal endowment for a few institutions of

higher education must be patent to sincere well-wishers of

the race.

Courts

We demand upright judges in courts, juries selected with-

out discrimination on account of color and the same mea-

sure of punishment and the same efforts at reformation for

black as for white offenders. We need orphanages and

farm schools for dependent children, juvenile reformato-

ries for delinquents, and the abolition of the dehumanizing

convict-lease system.

Public Opinion

We note with alarm the evident retrogression in this land

of sound public opinion on the subject of manhood rights,

republican government and human brotherhood, and we

pray God that this nation will not degenerate into a mob of

boasters and oppressors, but rather will return to the faith

of the fathers, that all men were created free and equal,

with certain unalienable rights.

Health

We plead for health—for an opportunity to live in decent

houses and localities, for a chance to rear our children in

physical and moral cleanliness.

Employers and Labor Unions

We hold up for public execration the conduct of two oppo-

site classes of men: The practice among employers of

importing ignorant Negro-American laborers in emergen-

cies, and then affording them neither protection nor per-

manent employment; and the practice of labor unions in

proscribing and boycotting and oppressing thousands of

their fellow-toilers, simply because they are black. These

methods have accentuated and will accentuate the war of

labor and capital, and they are disgraceful to both sides.

Protest

We refuse to allow the impression to remain that the

Negro-American assents to inferiority, is submissive under

oppression and apologetic before insults. Through help-

lessness we may submit, but the voice of protest of ten mil-

lion Americans must never cease to assail the ears of their

fellows, so long as America is unjust.

Color-Line

Any discrimination based simply on race or color is bar-

barous, we care not how hallowed it be by custom, expedi-

ency, or prejudice. Differences made on account of

ignorance, immorality, or disease are legitimate methods

of fighting evil, and against them we have no word of

protest; but discriminations based simply and solely on

physical peculiarities, place of birth, color or skin, are

relies of that unreasoning human savagery of which the

world is and ought to be thoroughly ashamed.

“Jim Crow” Cars

We protest against the “Jim Crow” car, since its effect is

and must be to make us pay first-class fare for third-class

accommodations, render us open to insults and discomfort

and to crucify wantonly our manhood, womanhood and

self-respect.

Soldiers

We regret that this nation has never seen fit adequately

to reward the black soldiers who, in its five wars, have

defended their country with their blood, and yet have

been systematically denied the promotions which

their abilities deserve. And we regard as unjust, the ex-

clusion of black boys from the military and navy training

schools.

War Amendments

We urge upon Congress the enactment of appropriate

legislation for securing the proper enforcement of those

articles of freedom, the thirteenth, fourteenth and fif-

teenth amendments of the Constitution of the United

States.

Oppression

We repudiate the monstrous doctrine that the oppressor

should be the sole authority as to the rights of the

oppressed. The Negro race in America stolen, ravished

and degraded, struggling up through difficulties and

oppression, needs sympathy and receives criticism; needs

help and is given hindrance, needs protection and is given

mob-violence, needs justice and is given charity, needs

leadership and is given cowardice and apology, needs

bread and is given a stone. This nation will never stand jus-

tified before God until these things are changed.

The Church

Especially are we surprised and astonished at the recent

attitude of the church of Christ—on the increase of a

desire to bow to racial prejudice, to narrow the bounds of

human brotherhood, and to segregate black men in some

outer sanctuary. This is wrong, unchristian and disgraceful

to the twentieth century civilization.

1192 ERA 7: The Emergence of Modern America

Agitation

Of the above grievances we do not hesitate to complain,

and to complain loudly and insistently. To ignore, overlook,

or apologize for these wrongs is to prove ourselves unwor-

thy of freedom. Persistent manly agitation is the way to lib-

erty, and toward this goal the Niagara Movement has

started and asks the co-operation of all men of all races.

Help

At the same time we want to acknowledge with deep

thankfulness the help of our fellowmen from the aboli-

tionist down to those who to-day still stand for equal

opportunity and who have given and still give of their

wealth and of their poverty for our advancement.

Duties

And while we are demanding, and ought to demand, and

will continue to demand the rights enumerated above,

God forbid that we should ever forget to urge correspond-

ing duties upon our people:

The duty to vote.

The duty to respect the rights of others.

The duty to work.

The duty to obey the laws.

The duty to be clean and orderly.

The duty to be send our children to school.

The duty to respect ourselves, even as we respect

others.

This statement, complaint and prayer we submit to

the American people, and Almighty God.

See also

BOOKER T

WASHINGTON

, “

ATLANTA COMPROMISE

SPEECH

,” 1895;

DUBOIS

THE SOULS OF BLACK FOLK

1903.

Source:

W. E. B. DuBois Papers, 1803 (1877–1963) 1999. Special Collec-

tions and Archives, W. E. B. DuBois Library, University of

Massachusetts Amherst.

Pure Food and Drug Act, 1906

Federal legislation enacted on June 30, 1906, prohibiting the

manufacture, sale, or transportation of adulterated or fraudu-

lently labeled foods and drugs shipped in foreign or interstate

commerce. Among the items prohibited were confectionery

that contained dangerous colorings or flavorings, food com-

posed of filthy or decomposed animal matter, food containing

poisonous ingredients, and food adulterated to conceal infe-

rior goods. Labels of proprietary medicines were required to

indicate the percentages of narcotics, stimulants, or other

potentially harmful ingredients.

The same day, Congress enacted the Meat Inspection Act,

giving the U.S. secretary of agriculture the power to inspect

meat and condemn products that are “unsound, unhealthful,

unwholesome, or otherwise unfit for human food.” The act

was intended to correct unsanitary and dangerous practices in

the meat-packing industry, such as resulted in the “embalmed

beef” scandal, when soldiers in the Spanish-American War

(1898) were fed tainted meat. The act allowed for federal

inspection of all companies.

Although President Theodore Roosevelt and others had

previously backed pure food and drug legislation, the impetus

for these acts came from the publication of Upton Sinclair’s

The Jungle

the same year. Sinclair, a socialist, meant his

expose of conditions in the meat-packing industry to highlight

the exploitation of immigrant workers like his book’s protago-

nist. Instead, the public focused on the sections describing the

processing of diseased cattle and the fate of workers who fell

unreclaimed into open vats “till but the bones of them had

gone out to the world as Durham’s Pure Leaf Lard.”

The 1906 Pure Food and Drug Act was superseded by the

Food and Drug Act of June 24, 1938. It prohibited the sale of

foods dangerous to health as well as foods, drugs, and cos-

metics packaged in insanitary or contaminated containers. It

required manufacturers of foods, drugs, and cosmetics to list

their ingredients on the labels. It also prohibited the sale of

“poisonous” or “deleterious” substances and broadened the

definitions of “adulteration” and “misbranding.” The Food and

Drug Administration was authorized to enforce the act, and

inspection stations were established in several large cities.

Three months earlier, in the Wheeler-Lea Act, sponsored by

Senator Burton K. Wheeler of Montana and Representative

Clarence F. Lea of California, individuals and agencies were

prohibited from presenting false or misleading statements

about “food, drugs, diagnostic and therapeutic devices, and

cosmetics” in interstate media. This statute gave the Federal

Trade Commission control over such advertising and gave the

Food and Drug Administration authority over questions of mis-

branding.

________________________

_______________________

An Act

For preventing the manufacture, sale, or transportation of

adulterated or misbranded or poisonous or deleterious

foods, drugs, medicines, and liquors, and for regulating

traffic therein, and for other purposes.

Be it enacted by the Senate and House of Representa-

tives of the United States of America in Congress assem-

bled, That is shall be unlawful for Columbia any article of

food or drug which is adulterated or misbranded, within

the meaning of this Act; and any person who shall violate

any of the provisions of this section shall be guilty of a mis-

demeanor, and for each offense shall, upon conviction

thereof, be fined not to exceed five hundred dollars or

Progressivism 1193

shall be sentenced to one year’s imprisonment, or both

such fine and imprisonment, in the discretion of the court,

and for each subsequent offense and conviction thereof

shall be fined not less than one thousand dollars or sen-

tenced to one year’s imprisonment, or both such fine and

imprisonment, in the discretion of the court.

Sec. 2. That the introduction into any State or Terri-

tory or the District of Columbia from any other State or

Territory or the District of Columbia, or from any foreign

country, or shipment to any foreign country of any article

of food or drugs which is adulterated or misbranded,

within the meaning of this Act, is hereby prohibited; and

any person who shall ship or deliver for shipment from any

State or Territory or the District of Columbia to any other

State or Territory or the District of Columbia, or to a for-

eign country, or who shall receive in any State or Territory

or the District of Columbia from any other State or Terri-

tory or the District of Columbia, or foreign country, and

having so received, shall deliver, in original unbroken

packages, for pay or otherwise, or offer to deliver to any

other person, any such article so adulterated or mis-

branded within the meaning of this Act, or any person who

shall sell or offer for sale in the District of Columbia or the

Territories of the United States any such adulterated or

misbranded foods or drugs, or export or offer to export the

same to any foreign country, shall be guilty of a misde-

meanor, and for such offense be fined not exceeding two

hundred dollars for the first offense, and upon conviction

for each subsequent offense not exceeding three hundred

dollars or be imprisoned not exceeding one year, or both,

in the discretion of the court: Provided, That no article

shall be deemed misbranded or adulterated within the

provisions of this Act when intended for except to any for-

eign country and prepared or packed according to the

specifications or directions of the foreign purchaser when

no substance is used in the preparation or packing thereof

in conflict with the laws of the foreign country to which

said article is intended to be shipped; but if said article

shall be in fact sold or offered for sale for domestic use or

consumption, then this proviso shall not exempt said arti-

cle from the operation of any of the other provisions of this

Act.

Sec. 3. That the Secretary of the Treasury, the Secre-

tary of Agriculture, and the Secretary of Commerce and

Labor shall make uniform rules and regulations for carry-

ing out the provisions of this Act, including the collection

and examination of specimens of foods and drugs manu-

factured or offered for sale in the District of Columbia, or

in any Territory of the United States, or which shall be

offered for sale in unbroken packages in any State other

than that in which they shall have been respectively man-

ufactured or produced, or which shall be received from

any foreign country, or intended for shipment to any for-

eign country, or which may be submitted for examination

by the chief health, food, or drug officer of any State, Ter-

ritory, or the District of Columbia, or at any domestic or

foreign port through which such product is offered for

interstate commerce, or for export or import between the

United States and any foreign port or country.

Sec. 4. That the examinations of specimens of foods

and drugs shall be made in the Bureau of Chemistry of the

Department of Agriculture, or under the direction and

supervision of such Bureau, for the purpose of determin-

ing from such examinations whether such articles are adul-

terated or misbranded within the meaning of this Act; and

if it shall appear from any such examination that any of

such specimens is adulterated or misbranded within the

meaning of this Act, the Secretary of Agriculture shall

cause notice thereof to be given to the party from whom

such sample was obtained. Any party so notified shall be

given an opportunity to be heard, under such rules and

regulations as may be prescribed as aforesaid, and if it

appears that any of the provisions of this Act have been

violated by such party, then the Secretary of Agriculture

shall at once certify the facts to the proper United States

district attorney, with a copy of the results of the analysis

or the examination of such article duly authenticated by

the analyst or officer making such examination, under the

oath of such officer. After judgment of the court, notice

shall be given by publication in such manner as may be

prescribed by the rules and regulations aforesaid.

Sec. 5. That is shall be the duty of each district attor-

ney to whom the Secretary of Agriculture shall report any

violation of this Act, or to whom any health or food or drug

officer or agent of any State, Territory, or the District of

Columbia shall present satisfactory evidence of any such

violation, to cause appropriate proceedings to be com-

menced and prosecuted in the proper courts of the United

States, without delay, for the enforcement of the penalties

as in such case herein provided.

Sec. 6. That the term “drug,” as used in this Act, shall

include all medicines and preparations recognized in the

United States Pharmacopoeia or National Formulary for

internal or external use, and any substance or mixture of

substances intended to be used for the cure, mitigation, or

prevention of disease of either man or other animals. The

term “food,” as used herein, shall include all articles used

for food, drink, confectionery, or condiment by man or

other animals, whether simple, mixed, or compound.

Sec. 7. That for the purposes of this Act an article shall

be deemed to be adulterated:

In case of drugs:

First. If, when a drug is sold under or by a name rec-

ognized in the United States Pharmacopoeia or National

Formulary, it differs from the standard of strength, quality,

or purity, as determined by the test laid down in the

1194 ERA 7: The Emergence of Modern America

United States Pharmacopoeia or National Formulary offi-

cial at the time of investigation: Provided, That no drug

defined in the United States Pharmacopoeia or National

Formulary shall be deemed to be adulterated under this

provision if the standard of strength, quality, or purity be

plainly stated upon the bottle, box, or other container

thereof although the standard may differ from that deter-

mined by the test laid down in the United States Pharma-

copoeia or National Formulary.

Second. If its strength or purity fall below the pro-

fessed standard or quality under which it is sold.

In the case of confectionery:

If it contain terra alba, barytes, talc, chrome yellow, or

other mineral substance or poisonous color or flavor, or

other ingredient deleterious or detrimental to health, or

any vinous, malt or spirituous liquor or compound or nar-

cotic drug.

In the case of food:

First. If any substance has been mixed and packed

with it so as to reduce or lower or injuriously affect its qual-

ity or strength.

Second. If any substance has been substituted wholly

or in part for the article.

Third. If any valuable constituent of the article has

been wholly or in part abstracted.

Fourth. If it be mixed, colored, powdered, coated, or

stained in a manner whereby damage or inferiority is con-

cealed.

Fifth. If it contain any added poisonous or other

added deleterious ingredient which may render such arti-

cle injurious to health: Provided, That when in the prepa-

ration of food products for shipment they are preserved by

any external application applied in such manner that the

preservative is necessarily removed mechanically, or by

maceration in water, or otherwise, and directions for the

removal of said preservative shall be printed on the cover-

ing or the package, the provisions of this Act shall be con-

strued as applying only when said products are ready for

consumption.

Sixth. If it consists in whole or in part of a filthy,

decomposed, or putrid animal or vegetable substance, or

any portion of an animal unfit for food, whether manufac-

tured or not, or if it is the product of a diseased animal, or

one that has died otherwise than by slaughter.

Sec. 8. That the term, “misbranded,” as used herein,

shall apply to all drugs, or articles of food, or articles which

enter into the composition of food, the package or label of

which shall bear any statement, design, or device regard-

ing such article, or the ingredients or substances contained

therein which shall be false or misleading in any particular,

and to any food or drug product which is falsely branded

as to the State, Territory, or country in which it is manu-

factured or produced.

That for the purposes of this Act an article shall also

be deemed to be misbranded:

In case of drugs:

First. If it be an imitation of or offered for sale under

the name of another article.

Second. If the contents of the package as originally

put up shall have been removed, in whole or in part, and

other contents shall have been placed in such package, or

if the package fail to bear a statement on the label of the

quantity or proportion of any alcohol, morphine, opium,

cocaine, heroin, alpha or beta eucaine, chloroform,

cannabis indica, chloral hydrate, or acetanilide, or any

derivative or preparation of any such substances contained

therein.

In the case of food:

First. If it be an imitation of or offered for sale under

the distinctive name of another article.

Second. If it be labeled or branded so as to deceive or

mislead the purchaser, or purport to be a foreign product

when not so, or if the contents of the package as originally

put up shall have been removed in whole or in part and

other contents shall have been placed in such package, or

if it fail to bear a statement on the label of the quantity or

proportion of any morphine, opium, cocaine, heroin, alpha

or beta eucaine, chloroform, cannabis indica, chloral

hydrate, or acetanilide, or any derivative or preparation of

any such substances contained therein.

Third. If in package form, and the contents are stated

in terms of weight or measure, they are not plainly and cor-

rectly stated on the outside of the package.

Fourth. If the package containing it or its label shall

bear any statement, design, or device regarding the ingre-

dients or the substances contained therein, which state-

ment, design, or device shall be false or misleading in any

particular: Provided, That an article of food which does not

contain any added poisonous or deleterious ingredients

shall not be deemed to be adulterated or misbranded in

the following cases:

First. In the case of mixtures or compounds which

may be now or from time to time hereafter known as arti-

cles of food, under their own distinctive names, and not an

imitation of or offered for sale under the distinctive name

of another article, if the name be accompanied on the

same label or brand with a statement of the place where

said article has been manufactured or produced.

Second. In the case of articles labeled, branded, or

tagged so as to plainly indicate that they are compounds,

imitations, or blends, and the word “compound,” “imita-

tion,” or “blend,” as the case may be, is plainly stated on

the package in which it is offered for sale: Provided, That

the term blend as used herein shall be construed to mean

a mixture of like substances, not excluding harmless color-

ing or flavoring ingredients used for the purpose of color-

Progressivism 1195

ing and flavoring only: And provided further, That nothing

in this Act shall be construed as requiring or compelling

proprietors or manufacturers of proprietary foods which

contain no unwholesome added ingredient to disclose

their trade formulas, except in so far as the provisions of

this Act may require to secure freedom from adulteration

or misbranding.

Sec. 9. That no dealer shall be prosecuted under the

provisions of this Act when he can establish a guaranty

signed by the wholesaler, jobber, manufacturer, or other

party residing in the United States, from whom he pur-

chases such articles, to the effect that the same is not adul-

terated or misbranded within the meaning of this Act,

designating it. Said guaranty, to afford protection, shall

contain the name and address of the party or parties mak-

ing the sale of such articles to such dealer, and in such case

said party or parties shall be amenable to the prosecutions,

fines, and other penalties which would attach, in due

course, to the dealer under the provisions of this Act.

Sec. 10. That any article of food, drug, or liquor that is

adulterated or misbranded within the meaning of this Act,

and is being transported from one State, Territory, Dis-

trict, or insular possession to another for sale, or, having

been transported, remains unloaded, unsold, or in original

unbroken packages, or if it be sold or offered for sale in the

District of Columbia or the Territories, or insular posses-

sions of the United States, or if it be imported from a for-

eign country for sale, or if it is intended for export to a

foreign country, shall be liable to be proceeded against in

any district court of the United States within the district

where the same is found, and seized for confiscation by a

process of libel for condemnation. And if such article is

condemned as being adulterated or misbranded, or of a

poisonous or deleterious character, within the meaning of

this Act, the same shall be disposed of by destruction or

sale, as the said court may direct, and the proceeds

thereof, if sold, less the legal costs and charges, shall be

paid into the Treasury of the United States, but such goods

shall not be sold in any jurisdiction contrary to the provi-

sions of this Act or the laws of that jurisdiction: Provided,

however , That upon the payment of the costs of such libel

proceedings and the execution and delivery of a good and

sufficient bond to the effect that such articles shall not be

sold or otherwise disposed of contrary to the provisions of

this Act, or the laws of any State, Territory, District, or

insular possession, the court may by order direct that such

articles be delivered to the owner thereof. The proceed-

ings of such libel cases shall conform, as near as may be, to

the proceedings in admiralty, except that either party may

demand trial by jury of any issue of fact joined in any such

case, and all such proceedings shall be at the suit of and in

the name of the United States.

Sec. 11. The Secretary of the Treasury shall deliver to

the Secretary of Agriculture, upon his request from time

to time, samples of foods and drugs which are being

imported into the United States or offered for import,

giving notice thereof to the owner or consignee, who may

appear before the Secretary of Agriculture, and have the

right to introduce testimony, and if it appear from the

examination of such samples that any article of food or

drug offered to be imported into the United States is

adulterated or misbranded within the meaning of this

Act, or is otherwise dangerous to the health of the people

of the United States, or is of a kind forbidden entry into,

or forbidden to be sold or restricted in sale in the coun-

try in which it is made or from which it is exported, or is

otherwise falsely labeled in any respect, the said article

shall be refused admission, and the Secretary of the Trea-

sury shall refuse delivery to the consignee and shall cause

the destruction of any goods refused delivery which shall

not be exported by the consignee within three months

from the date of notice of such refusal under such regu-

lations as the Secretary of the Treasury may prescribe:

Provided , That the Secretary of the Treasury may deliver

to the consignee such goods pending examination and

decision in the matter on execution of a penal bond for

the amount of the full invoice value of such goods,

together with the duty thereon, and on refusal to return

such goods for any cause to the custody of the Secretary

of the Treasury, when demanded, for the purpose of

excluding them from the country, or for any other pur-

pose, said consignee shall forfeit the full amount of

the bond: And provided further , That all charges for

storage, cartage, and labor on goods which are refused

admission or delivery shall be paid by the owner or con-

signee, and in default of such payment shall constitute a

lien against any future importation made by such owner

or consignee.

Sec. 12. That the term “Territory” as used in this Act

shall include the insular possessions of the United States.

The word “person” as used in this Act shall be construed to

import both the plural and the singular, as the case

demands, and shall include corporations, companies, soci-

eties and associations. When construing and enforcing the

provisions of this Act, the act, omission, or failure of any

officer, agent, or other person acting for or employed by

any corporation, company, society, or association, within

the scope of his employment or office, shall in every case

be also deemed to be the act, omission, or failure of such

corporation, company, society, or association as well as that

of the person.

Sec. 13. That this Act shall be in force and effect from

and after the first day of January, nineteen hundred and

seven.

1196 ERA 7: The Emergence of Modern America

See also

MEAT INSPECTION ACT

, 1906;

WHEELER

LEA ACT

1938;

FOOD AND DRUG ACT

, 1938.

Source:

Statutes at Large, Vol. 34, pp. 768–772.

Adair v. United States, 1908

U.S. Supreme Court ruling of January 27, 1908, that declared

unconstitutional the Erdman Act of 1898, which was enacted

to prevent disruption of interstate commerce by labor disputes.

It protected union members in a number of ways, including

the discharge or blacklisting of personnel for labor union

activities. William Adair, an agent of the railroad, fired a

worker because of his union membership. Adair was con-

victed of violating the Erdman Act. In a 6-to-2 decision, the

Supreme Court overruled this conviction, finding that union

membership did not fall under congressional authority to reg-

ulate interstate commerce. John Marshall Harlan, writing for

the majority, used substantive due process to conclude that the

law was an unreasonable invasion of personal liberty and

property rights under the Fifth Amendment. Harlan’s decision

posited an equal relationship between employer and wage-

earner, and it became the basis for invalidating state laws pro-

tecting union membership.

Coppage v. Kansas

(236 U.S. 1), January 25, 1915, the

Supreme Court declared unconstitutional state laws forbidding

“yellow dog” contracts—that is, contracts in which employers

require their workers not to join labor unions. The case arose

when a Kansas railway worker was fired for refusing to sign a

contract that would have compelled him to resign from his

union. A state court upheld the Kansas statute, but the U.S.

Supreme Court ruled that the law violated the due process

clause of the Fourteenth Amendment by denying an employer

the right to contract freely with workers. Yellow dog contracts

were later outlawed by the Norris-LaGuardia Act.

________________________

_______________________

Mr. Justice Harlan delivered the opinion of the court:

This case involves the constitutionality of certain pro-

visions of the act of Congress of June 1st, 1898 (30 Stat. at

L. 424, chap. 370, U.S. Comp. Stat. 1901, p. 3205), con-

cerning carriers engaged in interstate commerce and their

employees.

By the 1st section of the act it is provided: “That the

provisions of this act shall apply to any common carrier or

carriers and their officers, agents, and employees, except

masters of vessels and seamen, as defined in section 4612,

Revised Statutes of the United States (U.S. Comp. Stat.

1901, p. 3120), engaged in the transportation of passengers

or property wholly by railroad, or partly by railroad and

partly by water, for a continuous carriage or shipment from

one state or territory of the United States, or the District

of Columbia, to any other state or territory of the United

States, or the District of Columbia, or from any place in

the United States to an adjacent foreign country, or from

any place in the United States through a foreign country to

any other place in the United States. The term ‘railroad,’

as used in this act, shall include all bridges and ferries used

or operated in connection with any railroad, and also all

the road in use by any corporation operating a railroad,

whether owned or operated under a contract, agreement,

or lease; and the term ‘transportation’ shall include all

instrumentalities of shipment or carriage. The term

‘employees,’ as used in this act, shall include all persons

actually engaged in any capacity in train operation or train

service of any description, and notwithstanding that the

cars upon or in which they are employed may be held and

operated by the carrier under lease or other contract: Pro-

vided, however, That this act shall not be held to apply to

employees of street railroads, and shall apply only to

employees engaged in railroad train service. In every such

case the carrier shall be responsible for the acts and

defaults of such employees in the same manner and to the

same extent as if said cars were owned by it and said

employees directly employed by it, and any provisions to

the contrary of any such lease or other contract shall be

binding only as between the parties thereto, and shall not

affect the obligations of said carrier either to the public or

to the private parties concerned.”

The 2d, 3d, 4th, 5th, 6th, 7th, 8th, and 9th sections

relate to the settlement, by means of arbitration, of con-

troversies concerning wages, hours of labor, or conditions

of employment, arising between a carrier subject to the

provisions of the act and its employees, which seriously

interrupt, or threaten to interrupt, the business of the

carrier. Those sections prescribe the mode in which con-

troversies may be brought under the cognizance of arbi-

trators, in what way the arbitrators may be designated, and

the effect of their decisions. The first subdivision of Sec-

tion 3 contains a proviso “that no employee shall be com-

pelled to render personal service without his consent.”

The 11th section relates to the compensation and

expenses of the arbitrators.

By the 12th section the act of Congress of October 1st,

1888 [25 Stat. at L. 501, chap, 1063], creating boards of

arbitrators or commissioners for settling controversies and

differences between railroad corporations and other com-

mon carriers engaged in interstate or territorial trans-

portation of persons or property and their employees, was

repealed.

The 10th section, upon which the present prosecution

is based, is in these words:

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“That any employers subject to the provisions of this

act, and any officer, agent, or receiver of such employer,

who shall require any employee, or any person seeking

employment, as a condition of such employment, to enter

into an agreement, either written or verbal, not to become

or remain a member of any labor corporation, association,

or organization; or shall threaten any employee with loss of

employment, or shall unjustly discriminate against any

employee because of his membership in such a labor cor-

poration, association, or organization; or who shall require

any employee or any person seeking employment, as a

condition of such employment, to enter into a contract

whereby such employee or applicant for employment shall

agree to contribute to any fund for charitable, social, or

beneficial purposes; to release such employer from legal

liability for any personal injury by reason of any benefit

received from such fund beyond the proportion of the

benefit arising from the employer’s contribution to such

fund; or who shall, after having discharged an employee,

attempt or conspire to prevent such employee from

obtaining employment, or who shall, after the quitting of

an employee, attempt or conspire to prevent such

employee from obtaining employment, is hereby declared

to be guilty of a misdemeanor, and, upon conviction

thereof in any court of the United States of competent

jurisdiction in the district in which such offense was com-

mitted, shall be punished for each offense by a fine of not

less than one hundred dollars and not more than one thou-

sand dollars.”

It may be observed in passing that while that section

makes it a crime against the United States to unjustly dis-

criminate against an employee of an interstate carrier

because of his being a member of a labor organization, it

does not make it a crime to unjustly discriminate against an

employee of the carrier because of his not being a member

of such an organization.

The present indictment was in the district court of the

United States for the Eastern district of Kentucky against

the defendant, Adair.

The first count alleged “that at and before the time

hereinafter named the Louisville & Nashville Railroad

Company is and was a railroad corporation, duly organized

and existing by law, and a common carrier engaged in the

transportation of passengers and property wholly by steam

railroad for a continuous carriage and shipment from one

state of the United States to another state of the United

States of America; that is to say, from the state of Kentucky

into the States of Ohio, Indiana, and Tennessee, and from

the state of Ohio into the state of Kentucky, and was, at all

times aforesaid, and at the time of the commission of the

offense hereinafter named, a common carrier of interstate

commerce, and an employer, subject to the provisions of a

certain act of Congress of the Unites States of America,

entitled, ‘An Act Concerning Carriers Engaged in Inter-

state Commerce and Their Employees,’ approved June

1st, 1898, and said corporation was not at anytime a street

railroad corporation. That before and at the time of the

commission of the offense hereinafter named one William

Adair was an agent and employee of said common carrier

and employer, and was, at all said times, master mechanic

of said common carrier and employer in the district afore-

said, and before and at the time hereinafter stated one O.

B. Coppage was an employee of said common carrier and

employer in the district aforesaid, and as such employee

was, at all times hereinafter named, actually engaged in the

capacity of locomotive fireman in train operation and train

service for said common carrier and employer in the trans-

portation of passengers and property aforesaid, and was an

employee of said common carrier and employer actually

engaged in said railroad transportation and train service

aforesaid, to whom the provisions of said act applied, and

at the time of the commission of the offense hereinafter

named said O. B. Coppage was a member of a certain

labor organization, known as the Order of Locomotive

Firemen, as he, the said William Adair, then and there well

knew; a more particular description of said organization

and the members thereof is to the grand jurors unknown.”

The specific charge in that count was “that said

William Adair, agent and employee of said common carrier

and employer, as aforesaid, in the district aforesaid, on and

before the 15th day of October, 1906, did unlawfully and

unjustly discriminate against said O. B. Coppage,

employee, as aforesaid, by then and there discharging said

O. B. Coppage from such employment of said common

carrier and employer, because of his membership in said

labor organization, and thereby did unjustly discriminate

against an employee of a common carrier and employer

engaged in interstate commerce because of his membership

in a labor organization, contrary to the forms of the statute

in such cases made and provided, and against the peace

and dignity of the United States.”

The second count repeated the general allegations of

the first count as to the character of the business of the

Louisville & Nashville Railroad Company and the relations

between that corporation and Adair and Coppage. It

charged “that said William Adair, in the district aforesaid,

and within the jurisdiction of this court, agent and

employee of said common carrier and employer aforesaid,

on and before the 15th day of October, 1906, did unlaw-

fully threaten said O. B. Coppage, employee as aforesaid,

with loss of employment, because of his membership in said

labor organization, contrary to the forms of the statute in

such cases made and provided, and against the peace and

dignity of the United States.”

The accused, Adair, demurred to the indictment as

insufficient in law, but the demurrer was overruled. After

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reviewing the authorities, in an elaborate opinion, the

court held the 10th section of the act of Congress to be

constitutional. 152 Fed. 737. The defendant pleaded not

guilty, and after trial a verdict was returned of guilty on the

first count and a judgment rendered that he pay to the

United States a fine of $100. We shall, therefore, say noth-

ing as to the second count of the indictment.

It thus appears that the criminal offense charged in

the count of the indictment upon which the defendant was

convicted was, in substance and effect, that, being an agent

of a railroad company engaged in interstate commerce,

and subject to the provisions of the above act of June 1st,

1898, he discharged one Coppage from its service because

of his membership in a labor organization—no other

ground for such discharge being alleged.

May Congress make it a criminal offense against the

United States—as, by the 10th section of the act of 1898,

it does—for an agent or officer of an interstate carrier, hav-

ing full authority in the premises from the carrier, to dis-

charge an employee from service simply because of his

membership in a labor organization?

This question is admittedly one of importance, and

has been examined with care and deliberation. And the

court has reached a conclusion which, in its judgment, is

consistent with both the words and spirit of the Constitu-

tion, and is sustained as well by sound reason.

The first inquiry is whether the part of the 10th sec-

tion of the act of 1898 upon which the first count of the

indictment was based is repugnant to the 5th Amendment

of the Constitution, declaring that no person shall be

deprived of liberty or property without due process of law.

In our opinion that section, in the particular mentioned, is

an invasion of the personal liberty, as well as of the right of

property, guaranteed by that Amendment. Such liberty

and right embrace the right to make contracts for the pur-

chase of the labor of others, and equally the right to make

contracts for the sale of one’s own labor; each right, how-

ever, being subject to the fundamental condition that no

contract, whatever its subject-matter, can be sustained

which the law, upon reasonable grounds, forbids as incon-

sistent with the public interests, or as hurtful to the public

order, or as detrimental to the common good. This court

has said that “in every well-ordered society, charged with

the duty of conserving the safety of its members, the rights

of the individual in respect of his liberty may, at times,

under the pressure of great dangers, be subjected to such

restraint, to be enforced by reasonable regulations, as the

safety of the general public may demand.” Jacobson v.

Massachusetts, 197 U. S. 11, 29, 49 L. ed. 643, 651, 25 Sup.

Ct. Rep. 358. 362, and authorities there cited. Without

stopping to consider what would have been the rights of

the railroad company under the 5th Amendment, had it

been indicted under the act of Congress, it’ is sufficient in

this case to say that, as agent of the railroad company, and,

as such, responsible for the conduct of the business of one

of its departments, it was the defendant Adair’s right—and

that right inhered in his personal liberty, and was also a

right of property—to serve his employer as best he could,

so long as he did nothing that was reasonably forbidden by

law as injurious to the public interests. It was the right of

the defendant to prescribe the terms upon which the ser-

vices of Coppage would be accepted, and it was the right

of Coppage to become or not, as he chose, an employee of

the railroad company upon the terms offered to him. Mr.

Cooley, in his treatise on Torts, p. 278, well says: “It is a

part of every man’s civil rights that he be left at liberty to

refuse business relations with any person whomsoever,

whether the refusal rests upon reason, or is the result of

whim, caprice, prejudice, or malice. With his reasons nei-

ther the public nor third persons have any legal concern. It

is also his right to have business relations with anyone with

whom he can make contracts, and, if he is wrongfully

deprived of this right by others, he is entitled to redress.”

In Lochner v. New York, 198 U. S. 45, 53, 56, 49 L. ed.

937, 940, 941, 25 Sup. Ct. Rep. 539, 541, 543, which

involved the validity of a state enactment prescribing cer-

tain maximum hours for labor in bakeries, and which made

it a misdemeanor for an employer to require or permit an

employee in such an establishment to work in excess of a

given number of hours each day, the court said: “The gen-

eral right to make a contract in relation to his business is

part of the liberty of the individual protected by the 14th

Amendment of the Federal Constitution. Allgeyer v.

Louisiana, 165 U. S. 578, 41 L. ed. 832, 17 Sup. Ct. Rep.

427. Under that provision no state can deprive any person

of life, liberty, or property without due process of law. The

right to purchase or to sell labor is part of the liberty pro-

tected by this Amendment, unless there are circumstances

which exclude the right. There are, however, certain pow-

ers existing in the sovereignty of each state in the Union,

somewhat vaguely termed ‘police powers,’ the exact des-

cription and limitation of which have not been attempted

by the courts. Those powers, broadly stated, and without,

at present, any attempt at a more specific limitation, relate

to the safety, health, morals, and general welfare of the

public. Both property and liberty are held on such reason-

able conditions as may be imposed by the governing power

of the state in the exercise of those powers, and with such

conditions the 14th Amendment was not designed to inter-

fere. Mugler v. Kansas, 123 U. S. 623, 31 L. ed. 205, 8 Sup.

Ct. Rep. 273; Re Kemmler, 136 U. S. 436, 34 L. ed. 519,

10 Sup. Ct. Rep. 930; Crowley v. Christensen, 137 U. S.

86, 34 L. ed. 620, 11 Sup. Ct. Rep. 13; Re Converse, 137

U. S. 624, 34 L. ed. 796, 11 Sup. Ct. Rep. 191. . . . In every

case that comes before this court, therefore, where legisla-

tion of this character is concerned, and where the protec-

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tion of the Federal Constitution is sought, the question

necessarily arises: Is this a fair, reasonable, and appropriate

exercise of the police power of the state, or is it an unrea-

sonable, unnecessary, and arbitrary interference with the

right of the individual to his personal liberty or to enter

into those contracts in relation to labor which may seem to

him appropriate or necessary for the support of himself

and his family? Of course, the liberty of contract relating

to labor includes both parties to it. The one has as much

right to purchase as the other to sell labor.” Although there

was a difference of opinion in that case among the mem-

bers of the court as to certain propositions, there was no

disagreement as to the general proposition that there is a

liberty of contract which cannot be unreasonably inter-

fered with by legislation. The minority were of opinion

that the business referred to in the New York statute was

such as to require regulation, and that, as the statute was

not shown plainly and palpably to have imposed an unrea-

sonable restraint upon freedom of contract, it should be

regarded by the courts as a valid exercise of the state’s

power to care for the health and safety of its people.

While, as already suggested, the right of liberty and

property guaranteed by the Constitution against depriva-

tion without due process of law is subject to such reason-

able restraints as the common good or the general welfare

may require, it is not within the functions of government—

at least, in the absence of contract between the parties—to

compel any person, in the course of his business and

against his will, to accept or retain the personal services of

another, or to compel any person, against his will, to per-

form personal services for another. The right of a person to

sell his labor upon such terms as he deems proper is, in its

essence, the same as the right of the purchaser of labor to

prescribe the conditions upon which he will accept such

labor from the person offering to sell it. So the right of the

employee to quit the service of the employer, for whatever

reason, is the same as the right of the employer, for what-

ever reason, to dispense with the services of such

employee. It was the legal right of the defendant, Adair,

—however unwise such a course might have been—to dis-

charge Coppage because of his being a member of a labor

organization, as it was the legal right of Coppage, if he saw

fit to do so—however unwise such a course on his part

might have been—to quit the service in which he was

engaged, because the defendant employed some persons

who were not members of a labor organization. In all such

particulars the employer and the employee have equality

of right, and any legislation that disturbs that equality is an

arbitrary interference with the liberty of contract which no

government can legally justify in a free land. These views

find support in adjudged cases, some of which are cited in

the margin. Of course, if the parties by contract fixed the

period of service, and prescribed the condition upon which

the contract may be terminated, such contract would con-

trol the rights of the parties as between themselves, and for

any violation of those provisions the party wronged would

have his appropriate civil action. And it may be—but upon

that point we express no opinion—that, in the case of a

labor contract between an employer engaged in interstate

commerce and his employee, Congress could make it a

crime for either party, without sufficient or just excuse or

notice, to disregard the terms of such contract or to refuse

to perform it. In the absence, however, of a valid contract

between the parties controlling their conduct towards each

other and fixing a period of service, it cannot be, we

repeat, that an employer is under any legal obligation,

against his will, to retain an employee in his personal ser-

vice any more than an employee can be compelled, against

his will, to remain in the personal service of another. So far

as this record discloses the facts the defendant, who

seemed to have authority in the premises, did not agree to

keep Coppage in service for any particular time, nor did

Coppage agree to remain in such services a moment

longer than he chose. The later was a liberty to quit the

service without assigning any reason for his leaving. And

the defendant was at liberty, in his discretion, to discharge

Coppage from service without giving any reason for so

doing.

As the relations and the conduct of the parties towards

each other was not controlled by any contract other than a

general employment on one side to accept the services of

the employee and a general agreement on the other side to

render services to the employer—no term being fixed for

the continuance of the employment—Congress could not,

consistently with the 5th Amendment, make it a crime

against the United States to discharge the employee

because of this being a member of a labor organization.

But it is suggested that the authority to make it a crime

for an agent or officer of an interstate carrier, having

authority in the premises from his principal, to discharge

an employee from service to such carrier, simply because

of his membership in a labor organization, can be referred

to the power of Congress to regulate interstate commerce,

without regard to any question of personal liberty or right

of property arising under the 5th Amendment. This sug-

gestion can have no bearing in the present discussion

unless the statute, in the particular just stated, is, within

the meaning of the Constitution, a regulation of commerce

among the states. If it be not, then clearly the government

cannot invoke the commerce clause of the Constitution as

sustaining the indictment against Adair.

Let us inquire what is commerce, the power to regu-

late which is given to Congress?

This question has been frequently propounded in this

court, and the answer has been—and no more specific

answer could well have been given—that commerce

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among the several states comprehends traffic, intercourse,

trade, navigation, communication, the transit of persons,

and the transmission of messages by telegraph—indeed,

every species of commercial intercourse among the several

states—but not that commerce “completely internal,

which is carried on between man and man, in a state, or

between different parts of the same state, and which does

not extend to or affect other states.” The power to regulate

interstate commerce is the power to prescribe rules by

which such commerce must be governed. Of course, as has

been often said, Congress has a large discretion in the

selection or choice of the means to be employed in the reg-

ulation of interstate commerce, and such discretion is not

to be interfered with except where that which is done is in

plain violation of the Constitution. Northern Securities Co.

v. United States, 193 U. S. 197, 48 L. ed. 679, 24 Sup. Ct.

Rep. 436, and authorities there cited. In this connection

we may refer to Johnson v. Southern P. Co. 196 U. S. 1, 49

L. ed. 363, 25 Sup. Ct. Rep. 158, relied on in argument,

which case arose under the act of Congress of March 2d,

1893 (27 Stat. at L. 531, chap. 196, U. S. Comp. Stat. 1901,

p. 3174). That act required carriers engaged in interstate

commerce to equip their cars used in such commerce with

automatic couplers and continuous brakes, and their loco-

motives with driving-wheel brakes. But the act upon its

face showed that its object was to promote the safety of

employees and travelers upon railroads; and this court sus-

tained its validity upon the ground that it manifestly had

reference to interstate commerce, and was calculated to

subserve the interests of such commerce by affording pro-

tection to employees and travelers. It was held that there

was a substantial connection between the object sought to

be attained by the act and the means provided to accom-

plished that object. So, in regard to Howard v. Illinois C.

R. Co. decided at the present term. 207 U. S. 463, ante,

141, 28 Sup. Ct. Rep. 141. In that case the court sustained

the authority of Congress, under its power to regulate

interstate commerce, to prescribe the rule of liability, as

between interstate carriers and its employees in such

interstate commerce, in cases of personal injuries received

by employees while actually engaged in such commerce.

The decision on this point was placed on the ground that a

rule of that character would have direct reference to the

conduct of interstate commerce, and would, therefore, be

within the competency of Congress to establish for com-

merce among the states, but not as to commerce com-

pletely internal to a state. Manifestly, any rule prescribed

for the conduct of interstate commerce, in order to be

within the competency of Congress under its power to reg-

ulate commerce among the states, must have some real or

substantial relation to or connection with the commerce

regulated. But what possible legal or logical connection is

there between an employee’s membership in a labor orga-

nization and the carrying on of interstate commerce? Such

relation to a labor organization cannot have, in itself and in

the eye of the law, any bearing upon the commerce with

which the employee is connected by his labor and services.

Labor associations, we assume, are organized for the gen-

eral purpose of improving or bettering the conditions and

conserving the interests of its members as wage-earners—

an object entirely legitimate and to be commended rather

than condemned. But surely those associations, as labor

organizations, have nothing to do with interstate com-

merce, as such. One who engages in the service of an inter-

state carrier will, it must be assumed, faithfully perform his

duty, whether he be a member or not a member of a labor

organization. His fitness for the position in which he labors

and his diligence in the discharge of his duties cannot, in

law or sound reason, depend in any degree upon his being

or not being a member of a labor organization. It cannot be

assumed that his fitness is assured, or his diligence

increased, by such membership, or that he is less fit or less

diligent because of his not being a member of such an

organization. It is the employee as a man, and not as a

member of a labor organization, who labors in the service

of an interstate carrier. Will it be said that the provision in

question had its origin in the apprehension, on the part of

Congress, that, if it did not show more consideration for

members of labor organizations than for wage-earners who

were not members of such organizations, or if it did not

insert in the statute some such provision as the one here in

question, members of labor organizations would, by illegal

or violent measures, interrupt or impair the freedom of

commerce among the states? We will not indulge in any

such conjectures, nor make them, in whole or in part, the

basis of our decision. We could not do so consistently with

the respect due to a coordinate department of the govern-

ment. We could not do so without imputing to Congress

the purpose to accord to one class of wage- earners privi-

leges withheld from another class of wage-earners,

engaged, it may be, in the same kind of labor and serving

the same employer. Nor will we assume, in our considera-

tion of this case, that members of labor organizations will,

in any considerable numbers, resort to illegal methods for

accomplishing any particular object they have in view.

Looking alone at the words of the statute for the pur-

pose of ascertaining its scope and effect, and of determin-

ing its validity, we hold that there is no such connection

between interstate commerce and membership in a labor

organization as to authorize Congress to make it a crime

against the United States for an agent of an interstate car-

rier to discharge an employee because of such member-

ship on his part. If such a power exists in Congress it is

difficult to perceive why it might not, by absolute regula-

tion, require interstate carriers, under penalties, to

employ, in the conduct of its interstate business, only

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