[405] See 223 U.S. at 19-22.
[406] Ibid. 48. Because the injured employee must, in order to benefit from the act, be employed at the time of his injury "in interstate commerce," the Court's application of it has given rise to some narrow distinctions. See Illinois Central R. Co. v. Peery, 242 U.S. 292 (1916); New York Central R. Co. v. White, 243 U.S. 188 (1917); Chicago, B. & Q.R. Co. v. Harrington, 241 U.S. 177 (1916); Louisville & N.R. Co. v. Parker, 242 U.S. 13 (1916); Illinois Central R. Co. v. Behrens, 233 U.S. 473 (1914); St. Louis, S.F. & T.R. Co. v. Seale, 229 U.S. 156 (1913); Pedersen v. Delaware, L. & W.R. Co., 229 U.S. 146 (1913); Shanks v. Delaware, L. & W.R. Co., 239 U.S. 556 (1916); Lehigh Valley R. Co. v. Barlow, 244 U.S. 183 (1917); Southern R. Co. v. Puckett, 244 U.S. 571 (1917); Reed v. Director General of Railroads, 258 U.S. 92 (1922). That Congress might "legislate as to the qualifications, duties, and liabilities of employes and others on railway trains engaged in that [interstate] commerce," was stated by the Court in Nashville, C. & St. L.R. Co. v. Alabama, 128 U.S. 96, 99 (1888).
[407] 208 U.S. 161 (1908).
[408] 30 Stat. 424.
[409] 44. Stat. 577.
[410] Texas & N.O.R. Co. v. Brotherhood of R. & S.S. Clerks, 281 U.S. 548 (1930). The provision of Railway Labor Act of 1926 (44 Stat. 577), preventing interference by either party with organization or designation of representatives by the other, is within the constitutional authority of Congress. Similarly, "back shop" employees of an interstate carrier, who engaged in making heavy repairs on locomotives and cars withdrawn from service for that purpose for long periods (an average of 105 days for locomotives and 109 days for cars), were held to be within the terms of the act as amended in 1934 (48 Stat. 1185). "The activities in which these employees are engaged have such a relation to the other confessedly interstate activities of the * * * [carrier] that they are to be regarded as a part of them. All taken together fall within the power of Congress over interstate commerce." Virginian R. Co. v. System Federation No. 40, 300 U.S. 515, 556 (1937).
By the Adamson Act of 1916 a temporary increase in wages was imposed upon the railways of the country in order to meet a sudden threat to strike by important groups of their employees. The act was assailed on the dual ground that it was not a regulation of commerce among the States and that it was violative of the carriers' rights under the Fifth Amendment. A closely divided Court, speaking through Chief Justice White, answered both objections by pointing to the magnitude of the emergency which had threatened the country with commercial paralysis and grave loss and suffering. To the familiar argument that "emergency may not create power" (Ex parte Milligan, 4 Wall. 2 (1806)), the Chief Justice answered that "it may afford a reason for exerting a power already enjoyed." A further answer to objections based on the rights of carriers under the Fifth Amendment, particularly the right of "freedom of contract," was that the situation met by the statute had arisen in consequence of a failure to exercise these rights—a far from satisfactory answer, as the dissent pointed out, since one element of a right is freedom of choice regarding its use or nonuse. Wilson v. New, 243 U.S. 332, 387 (1917).
[411] 48 Stat. 1283.
[412] 295 U.S. 330 (1935).
[413] Ibid. 374.