final disposition and solution of this problem.
It is then urged in behalf of the plaintiffs that the arbitration board lacked authority to require the parties to bear the expenses of neutral members of the local adjustment boards. Counsel called attention to the fact that the parties in their negotiations had agreed that such expenses should be assumed by the Government. As heretofore stated, however, the board was not bound by agreements made by the parties. Moreover, as to this matter, it is very simple for two persons to agree that the Government should bear the expenses of some proceeding. No one is, however, authorized to bind the Government in this manner. Consequently, any such agreement would be a nullity. The arbitration board, was not empowered to impose such a liability on the Government. Congress alone may do so. Consequently, it was entirely proper and reasonable for the board to provide that such expenses should be borne by the parties to the proceedings.
In view of the foregoing considerations, the court reaches the conclusion that the award is valid. It is within the statutory authority of the board and is not subject to any infirmity. There remains for consideration the challenge to the constitutionality of the statute under which the board acted.
At the opening of the oral arguments, counsel for the plaintiffs in civil action No. 2919-63 moved that in view of the fact that a constitutional question was involved, a three-judge court be convened pursuant to 28 U.S.C. § 2282. Counsel for the plaintiff in civil action 2921-63 expressly and affirmatively declined to join in the application expressing the view that this provision was not applicable. The defendants opposed the motion. This court denied it on the ground that the action was not for an injunction, but for a decree impeaching and setting aside the award and that the prayer for an injunction was surplusage. It was the opinion of this court that no action for an injunction would lie. The relief sought was substantially in the nature of a declaratory judgment. The court based its ruling on Thompson v. Whittier, 365 U.S. 465, 81 S. Ct. 712, 5 L. Ed. 2d 704, reversing D.C., 185 F.Supp. 306, 307; International Ladies' Garment Workers' Union v. Donnelly Garment Company, 304 U.S. 243, 250, 58 S. Ct. 875, 82 L. Ed. 1316; and Kennedy v. Mendoza-Martinez, 372 U.S. 144, 154, 83 S. Ct. 554, 9 L. Ed. 2d 644.
The power of the Government to regulate persons engaged in a public calling or in a calling coupled with a public interest has its roots in the common law. If a business of this type enters interstate commerce, the legislative power is lodged in Congress as a result of authority conferred on it to regulate commerce between the States. Some of these principles were summarized and enunciated by the Supreme Court in the celebrated case of Munn v. Illinois, 94 U.S. 113, 126, 24 L. Ed. 77, where Mr. Chief Justice Waite wrote as follows:
'When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created.'
It is elementary that railroads, as common carriers for hire, are engaged in a public employment affecting the public interest and, therefore, are subject to legislative control. Chicago, Burlington and Quincy Railroad Co. v. Iowa, 94 U.S. 155, 161, 24 L. Ed. 94. In fact, railroads constitute a typical and perhaps the most common type of a public calling. With modern industrial and commercial developments there has been a natural tendency to expand the regulatory power of Congress over businesses engaged in interstate commerce. On the one hand new categories of occupations have been brought within its coverage, as for instance the operation of a grain elevator, Munn v. Illinois, supra; and the dairy industry, Nebbia v. New York, 291 U.S. 502, 54 S. Ct. 505, 78 L. Ed. 940. So, too, it has been extended to additional types of control. Originally, such regulation was directed principally to rates and charges exacted from the public and to services rendered to patrons and consumers. It has been expanded to include such matters as safety requirements, hours of labor and similar subjects. The Supreme Court has gone as far as to sustain a statute regulating minimum wages paid to employees in any business affecting interstate commerce, irrespective of whether it is in the category of a public calling. United States v. Darby, 312 U.S. 100, 117, 61 S. Ct. 451, 85 L. Ed. 609. The regulatory power extends not only to management but to employees as well. Thus, it was stated in Wilson v. New, 243 U.S. 332, 364, 37 S. Ct. 298, 308, 61 L. Ed. 755:
'When one enters into interstate commerce one enters into a service in which the public has an interest and subjects one's self to its behests. And this is no limitation of liberty; It is the consequence of liberty exercised, the obligation of his undertaking, and constrains no more than any contract constrains. The obligation of a contract is the law under which it is made and submission to regulation is the condition which attaches to one who enters into or accepts employment in a business in which the public has an interest'.
The decision in Wilson v. New, supra, related to a situation very similar to that presented in the instant case. In March, 1916 the country was confronted with a nation-wide railroad strike, as it was in this instance. It originated in a controversy concerning hours of work and wages of railroad employees. The Congress solved the problem by passing a statute fixing an eight-hour standard work day on all railroads and providing that compensation of their employees should not be reduced below the then standard day's wage, pending an investigation by a Presidential Commission. The constitutionality of this statute was challenged in the same manner as is being done in the case at bar. The Supreme Court upheld the validity of the Act as within the regulatory power of Congress.
Counsel for the plaintiffs attempt to distinguish the two statutes in that the 1916 Act involved in the Wilson case was a legislative decision as to hours and wages, whereas in the Act here involved, the Congress delegated to a board the power to make the determination. It requires no argument, however, to demonstrate that Congress has the authority to delegate its legislative power in this respect to administrative agencies. It has done so in respect to various fields, such as carriers, to the Interstate Commerce Commission; electric power, to the Federal Power Commission; radio and television to the Federal Communications Commission, and the like.
The suggestion was made during the oral arguments that compulsory arbitration was a far reaching innovation. This contention is hardly accurate. The Railway Labor Act, by the creation of the National Railroad Adjustment Board and the powers conferred on it, in fact, provided for compulsory arbitration of minor disputes between carriers and labor organizations as far back as 1926, 45 U.S.Code, § 153. Countless proceedings of this nature have been conducted under it over the years.
In their reply arguments, counsel for the plaintiffs with commendable candor finally conceded that Congress had the power to enact legislation of the type involved here, and were relegated to the position that the enabling Act was vulnerable solely because it failed to prescribe sufficient and adequate standards to be followed by the agency. The law, however, does not require that the standards and guides be defined with the accuracy and precision of a mathematical formula which can be applied automatically. They need not be an exact yardstick. It is sufficient if Congress indicates a general criterion or an aim to serve as a guide to the administrative agency. The present statute clearly complies with this requirement.
Section 7 prescribes the following standards: 'Adequate and safe transportation service to the public'; 'interests of the carrier and employees affected'; 'due consideration to the narrowing of the areas of disagreement which has been accomplished in bargaining and mediation'. Under the authorities about to be discussed these standards are fully adequate to save the statute from a successful challenge on the ground of indefiniteness. In fact, many provisions of a more general character have been upheld by the Supreme Court.
For example, in Yakus v. United States, 321 U.S. 414, 423, 64 S. Ct. 660, 88 L. Ed. 834, the Supreme Court, in an opinion by Mr. Chief Justice Stone, sustaining the validity of the Emergency Price Control Act of 1942 held that the following standards complied with the constitutional requirement: that the prices fixed by the Administrator should further the policy and conform to the standards prescribed by the act; that prices were to effectuate the declared policy of the act to stabilize commodity prices so as to prevent inflation and its enumerated disruptive causes and effects; that the prices established must be fair and equitable and that in fixing them due consideration should be given to prevailing prices during a designated base period. Obviously, these standards were no more precise or definite than those involved in the instant statute.
In Opp Cotton Mills, Inc. v. Administrator, 312 U.S. 126, 61 S. Ct. 524, 85 L. Ed. 624, the Supreme Court, also in an opinion by Mr. Chief Justice Stone, sustained the validity of the Fair Labor Standards Act. It held that the following standards prescribed by the Act were sufficiently definite: the declared policy of the Act to raise minimum wages to forty cents an hour as rapidly as economically feasible without substantially curtailing employment and to determine the highest minimum wage rates with due regard to economic and comparative conditions.
Numerous other examples may be cited. To select but a few illustrative instances, the following standards have been held sufficient and adequate: 'public interest, convenience or necessity', Federal Communications Commission v. RCA Communications, Inc., 346 U.S. 86, 90, 73 S. Ct. 998, 97 L. Ed. 1470; 'public interest', New York Central Securities Corporation v. United States, 287 U.S. 12, 24, 53 S. Ct. 45, 77 L. Ed. 138; 'just and reasonable rates', Federal Power Commission v. Hope Natural Gas Company, 320 U.S. 591, 600, 64 S. Ct. 281, 88 L. Ed. 333; 'excessive profits', Lichter v. United States, 334 U.S. 742, 775, 68 S. Ct. 1294, 92 L. Ed. 1694.
The conclusion is inescapable that the standards as defined in the enabling Act are sufficiently adequate and definite. The statute is not vulnerable to any attack on the ground of unlawful delegation of power without proper standards. The statute is clearly constitutional as being within the power of the Congress. In fact, this court would have been justified in denying the motion for the convening of a three-judge court on the ground that no substantial constitutional question is presented, as well as on the procedural ground on which it acted.
In the light of the foregoing discussion, the award made by the arbitration board is valid; the Congress had power to order the arbitration; and, the board acted lawfully within the orbit of the authority delegated to it.
The defendants' motions for summary judgment are granted. The plaintiffs' motions for summary judgment are denied. Counsel will submit an appropriate order.