262 U.S.

522
43 S.Ct. 630
67 L.Ed. 1103

CHAS. WOLFF PACKING CO.

v.
COURT OF INDUSTRIAL RELATIONS OF STATE OF
KANSAS.
No. 739.
Argued April 27, 1923.
Decided June 11, 1923.

[Syllabus from pages 522-523 intentionally omitted]

This case involves the validity of the Court of Industrial Relations Act of
Kansas. Chapter 29, Special Session, Laws of 1920. The act declares the
following to be affected with a public interest: First, manufacture and
preparation of food for human consumption; second, manufacture of
clothing for human wear; third, production of any substance in common
use for fuel; fourth, transportation of the foregoing; fifth, public utilities
and common carriers. The act vests an industrial court of three judges with
power upon its own initiative or on complaint to summon the parties and
hear any dispute over wages or other terms of employment in any such
industry, and if it shall find the peace and health of the public imperiled by
such controversy, it is required to make findings and fix the wages and
other terms for the future conduct of the industry. After 60 days, either
party may ask for a readjustment, and then the order is to continue in
effect for such reasonable time as the court shall fix, or until changed by
agreement of the parties. The Supreme Court of the state may review such
orders, and in case of disobedience to an order that court may be appealed
to for enforcement.
The Charles Wolff Packing Company, the plaintiff in error, is a
corporation of Kansas engaged in slaughtering hogs and cattle and
preparing the meat for sale and shipment. It has $600,000 capital stock
and total annual sales of $7,000,000. More than half its products are sold
beyond the state. It has 300 employees. There are many other packing
houses in Kansas, of greater capacity. This is considered a small one.

In January, 19 1, the president and seretary of the Meat Cutters' Union

filed a complaint with the industrial court against the Packing Company
respecting the wages its employees were receiving. The company
appeared and answered and a hearing was had. The court made findings,
including one of an emergency, and an order as to wages, increasing them
over the figures to which the company had recently reduced them. The
company refused to comply with the order and the industrial court then
instituted mandamus proceedings in the Supreme Court to compel
compliance. That court appointed a commissioner to consider the record,
to take additional evidence, and report his conclusions. He found that the
company had lost $100,000 the previous year, and that there was no
sufficient evidence of an emergency or danger to the public from the
controversy to justify action by the industrial court. The Supreme Court
overruled his report and held that the evidence showed a sufficient
emergency.
The prescribed schedule of wages and the limitation of hours and the rate
of pay required for overtime resulted in an increase in wages of more than
$400 a week.
It appeared from the evidence that the company and plant were under the
control of, and in business association with, what were called 'The Allied
Packers' who have plants in various cities and compete with the socalled
Big Five Packers, the largest in the country; that the products of the Wolff
Packing Company are sold in active competition with such products made
by other concerns throughout the United States. It appeared, further, that
about the time of this controversy a strike was threatened in the packing
houses of the Big Five, which the President of the United States used his
good offices to settle. The chief executive of the Wolff Company testified
that there had been no difficulty in securing all the labor it desired at the
reduced rates offered. The industrial court conceded that the Wolff
Company could not operate on the schedule fixed without a loss, but
relied on the statement by its president that he hoped for more prosperous
times.
The packing company brings this case here on the ground that the validity
of the Industrial Court Act was upheld although challenged as in conflict
with the provision of the Fourteenth Amendment that no state shall
deprive any person of liberty or property without due process of law.
Messrs. D. R. Hite and John S. Dean, both of Topeka, Kan., for plaintiff
in error.

Messrs. John G. Egan, of Topeka, Kan., and Chester I. Long, of Wichita,

Kan., for defendant in error.
[Argument of Counsel from pages 526-533 intentionally omitted]
Mr. CHIEF JUSTICE TAFT, after stating the case as above, delivered the
opinion of the Court.

The necessary postulate of the Industrial Court Act is that the state,
representing the people, is so much interested in their peace, health, and
comfort that it may compel those engaged in the manufacture of food and
clothing, and the production of fuel, whether owners or workers, to continue in
their business and employment on terms fixed by an agency of the state, if they
cannot agree. Under the construction adopted by the state Supreme Court the
act gives the industrial court authority to permit the owner or employer to go
out of the business, if he shows that he can only continue on the terms fixed at
such heavy loss that collapse will follow; but this privilege under the
circumstances is generally illusory. Block v. Hirsh, 256 U. S. 135, 157, 41 Sup.
Ct. 458, 65 L. Ed. 865, 16 A. L. R. 165. A laborer dissatisfied with his wages is
permitted to quit, but he may not agree with his fellows to quit or combine with
others to induce them to quit.

These qualifications do not change the essence of the act. It curtails the right of
the employer on the one hand, and of the employee on the other, to contract
about his affairs. This is part of the liberty of the individual protected by the
guaranty of the due process clause of the Fourteenth Amendment. Meyer v.
Nebraska, 262 U. S. 390, 43 Sup. Ct. 625, 67 L. E . , decided June 4, 1922.
While there is no such thing as absolute freedom of contract, and it is subject to
a variety of restraints, they must not be arbitrary or unreasoanble. Freedom is
the general rule, and restraint the exception. The legislative authority to abridge
can be justified only by exceptional circumstances. Adkins v. Children's
Hospital, 261 U. S. 525, 43 Sup. Ct. 394, 67 L. Ed. , decided April 9,
1923.

It is argued for the state that such exceptional circumstances exist in the present
case and that the act is neither arbitrary nor unreasonable. Counsel maintain:

First. The act declares that the preparation of human food is affected by a
public interest and the power of the Legislature so to declare and then to
regulate the business is established in Munn v. Illinois, 94 U. S. 113, 24 L. Ed.
77, Budd v. New York, 143 U. S. 517, 12 Sup. Ct. 468, 36 L. Ed. 247, Brass v.

Stoeser, 153 U. S. 391, 14 Sup. Ct. 857, 38 L. Ed. 757, Noble State Bank v.
Haskell, 219 U. S. 104, 31 Sup. Ct. 186, 55 L. Ed. 112, 32 L. R. A. (N. S.)
1062, Ann. Cas. 1912A, 487, German Alliance Insurance Co. v. Lewis, 233 U.
S. 389, 34 Sup. Ct. 612, 58 L. Ed. 1011, L. R. A. 1915C, 1189, and Block v.
Hirsh, 256 U. S. 135, 41 Sup. Ct. 458, 65 L. Ed. 865, 16 A. L. R. 165.
5

Second. The power to regulate a business affected with a public interest extends
to fixing wages and terms of employment to secure continuity of operation.
Wilson v. New, 243 U. S. 332, 352, 353, 37 Sup. Ct. 298, 61 L. Ed. 755, L. R.
A. 1917E, 938, Ann. Cas. 1918A, 1024.

Businesses said to be clothed with a public interest justifying some public

regulation may be divided into three classes:

(1) Those which are carried on under the authority of a public grant of
privileges which either expressly or impliedly imposes the affirmative duty of
rendering a public service demanded by any member of the public. Such are the
railroads, other common carriers and public utilities.

(2) Certain occupations, regarded as exceptional, the public interest attaching to

which, recognized from earliest times, has survived the period of arbitrary laws
by Parliament or colonial Legislatures for regulating all trades and callings.
Such are those of the keepers of inns, cabs, and gristmills. State v. Edwards, 86
Me. 102, 29 Atl. 947, 25 L. R. A. 504, 41 Am. St. Rep. 528; Terminal Taxicab
Co. v. District of Columbia, 241 U. S. 252, 254, 36 Sup. Ct. 583, 60 L. Ed. 984,
Ann. Cas. 1916D, 765.

(3) Businesses which, though not public at their inception, may be fairly said to
have risen to be such and have become subject in consequence to some
government regulation. They have come to hold such a peculiar relation to the
public that this is superimposed upon them. In the language of the cases, the
owner by devoting his business to the public use, in effect grants the public an
interest in that use and subjects himself to public regulation to the extent of that
interest although the property continues to belong to its private owner and to be
entitled to protection accordingly. Munn v. Illinois, 94 U. S. 113, 24 L. Ed. 77;
Spring Valley Water Works v. Schottler, 110 U. S. 347, 4 Sup. Ct. 48, 28 L.
Ed. 173; Budd v. New York, 117 N. Y. 1, 27, 22 N. E. 670, 682, 5 L. R. A.
559, 15 Am. St. Rep. 460; Id., 143 U. S. 517, 12 Sup. Ct. 468, 36 L. Ed. 247;
Brass v. Stoeser, 153 U. S. 391, 14 Sup. Ct. 857, 38 L. Ed. 757; Noble State
Bank v. Haskell, 219 U. S. 104, 31 Sup. Ct. 186, 55 L. Ed. 112, 32 L. R. A. (N.
S.) 1062, Ann. Cas. 1912A, 487; German Alliance Insurance Co. v. Lewis, 233

U. S. 389, 34 Sup. Ct. 612, 58 L. Ed. 1011, L. R. A. 1915C, 1189; VanDyke v.

Geary, 244 U. S. 39, 47, 37 Sup. Ct. 483, 61 L. Ed. 973; Block v. Hirsh, 256 U.
S. 135, 41 Sup. Ct. 458, 65 L. Ed. 865, 16 A. L. R. 165.
10

It is manifest from an examination of the cases cited under the third head that
the mere declaration by a Legislature that a business is affected with a public
interest is not conclusive of the question whether its attempted regulation on
that ground is justifie . The circumstances of its alleged change from the status
of a private business and its freedom from regulation into one in which the
public have come to have an interest are always a subject of judicial inquiry.

11

In a sense, the public is concerned about all lawful business because it

contributes to the prosperity and well being of the people. The public may
suffer from high prices or strikes in many trades, but the expression 'clothed
with a public interest,' as applied to a business, means more than that the public
welfare is affected by continuity or by the price at which a commodity is sold
or a service rendered. The circumstances which clothe a particular kind of
business with a public interest, in the sense of Munn v. Illinois and the other
cases, must be such as to create a peculiarly close relation between the public
and those engaged in it, and raise implications of an affirmative obligation on
their part to be reasonable in dealing with the public.

12

It is urged upon us that the declaration of the Legislature that the business of
food preparation is affected with a public interest and devoted to a public use
should be most persuasive with the court, and that nothing but the clearest
reason to the contrary will prevail with the court to hold otherwise. To this
point, counsel for the state cite Clark v. Nash, 198 U. S. 361, 25 Sup. Ct. 676,
49 L. Ed. 1085, 4 Ann. Cas. 1171; Strickley v. Highland Boy Mining Co., 200
U. S. 527, 26 Sup. Ct. 301, 50 L. Ed. 581, 4 Ann. Cas. 1174; Hairston v.
Danville & Western Ry. Co., 208 U. S. 598, 600, 28 Sup. Ct. 331, 52 L. Ed.
637, 13 Ann. Cas. 1008; Union Lime Co. v. Chicago & North Western Ry. Co.,
233 U. S. 211, 34 Sup. Ct. 522, 58 L. Ed. 924; Jones v. Portland, 245 U. S. 217,
38 Sup. Ct. 112, 62 L. Ed. 252, L. R. A. 1918C, 765, Ann. Cas. 1918E, 660;
and Green v. Frazier, 253 U. S. 233, 40 Sup. Ct. 499, 64 L. Ed. 878. These
cases are not especially helpful in determining how a business must be devoted
to a public use to clothe it with a public interest so as to permit regulation of
rates or prices. They were of two classesone where condemnation
proceedings were opposed on the ground that private property could only be
taken for a public use and the use contemplated by the Legislature was not a
public one. The other was of tax suits in which the validity of the tax was
denied because the use for which the tax was levied was not a public one.
'Public use' in such cases would seem to be a term of wider scope than where it

is used to describe that which clothes property or business 'with a public

interest.' In the former, the private owner is fully compensated for his property.
In the latter, the use for which the tax is laid may be any purpose in which the
state may engage and this covers almost any private business if the Legislature
thinks the state's engagement in it will help the general public and is willing to
pay the cost of the plant and incur the expense of operation.
13

It has never been supposed, since the adoption of the Constitution, that the
business of the butcher, or the baker, the tailor, the wood chopper, the mining
operator, or the miner was clothed with such a public interest that the price of
his product or his wages could be fixed by state regulation. It is true that in the
days of the early common law an omnipotent parliament did regulate prices and
wages as it chose, and occasionally a colonial legislature sought to exercise the
same power; but nowadays one does not devote one's property or business to
the public use or clothe it with a public interest merely because one makes
commodities for, and sells to, the public in the common callings of which those
above mentioned are instances.

14

An ordinary producer, manufacturer, or shopkeeper may sell or not sell as he

likes, United States v. Freight Association, 166 U. S. 290, 320, 17 Sup. Ct. 540,
41 L. Ed. 1007; Terminal Cab Co. v. Kutz, 241 U. S. 252, 256, 36 Sup. Ct. 583,
60 L. Ed. 984, Ann. Cas. 1916D, 765, and while this feature does not
necessarily exclude usinesses from the class clothed with a public interest,
German Alliance Ins Co. v. Lewis, 233 U. S. 389, 34 Sup. Ct. 612, 58 L. Ed.
1011, L. R. A. 1915C, 1189, it usually distinguishes private from quasi-public
occupations.

15

In nearly all the businesses included under the third head above, the thing
which gave the public interest was the indispensable nature of the service and
the exorbitant charges and arbitrary control to which the public might be
subjected without regulation.

16

In the preparation of food, the changed conditions have greatly increased the
capacity for treating the raw product and transferred the work from the shop
with few employees to the great plant with many. Such regulation of it as there
has been, has been directed toward the health of the workers in congested
masses, or has consisted of inspection and supervision with a view to the health
of the public. But never has regulation of food preparation been extended to
fixing wages or the prices to the public, as in the cases cited above where fear
of monopoly prompted, and was held to justify, regulation of rates. There is no
monopoly in the preparation of foods. The prices charged by plaintiff in error
are, it is conceded, fixed by competition throughout the country at large. Food

is now produced in greater volume and variety than ever before. Given
uninterrupted interstate commerce, the sources of the food supply in Kansas are
country-wide, a short supply is not likely, and the danger from local
monopolistic control less than ever.
17

It is very difficult under the cases to lay down a working rule by which readily
to determine when a business has become 'clothed with a public interest.' All
business is subject to some kinds of public regulation, but when the public
becomes so peculiarly dependent upon a particular business that one engaging
therein subjects himself to a more intimate public regulation is only to be
determined by the process of exclusion and inclusion and to gradual
establishment of a line of distinction. We are relieved from considering and
deciding definitely whether preparation of food should be put in the third class
of quasi public businesses, noted, above, because, even so, the valid regulation
to which it might be subjected as such, could not include what this act attempts.

18

To say that a business is clothed with a public interest is not to determine what
regulation may be permissible in view of the private rights of the owner. The
extent to which an inn or a cab system may be regulated may differ widely from
that allowable as to a railroad or other common carrier. It is not a matter of
legislative discretion solely. It depends on the nature of the business, on the
feature which touches the public, and on the abuses reasonably to be feared. To
say that a business is clothed with a public interest is not to import that the
public may take over its entire management and run it at the expense of the
owner. The extent to which regulation may reasonably go varies with different
kinds of business. The regulation of rates to avoid monopoly is one thing. The
regulation of wages is another. A business may be of such character that only
the first is permissible, while another may involve such a possible danger of
monopoly on the one hand, and such disaster from stoppage on the other, that
both come within the public concern and power of regulation.

19

If, as, in effect, contended by counsel for the state, the common callings are
clothed with a public interest by a mere legislative declaration, which
necessarily authorizes full and comprehensive regulation within legislative
discretion, there must be a revolution in the relation of government to general
business. This will be running the public interest argument into the ground, to
use a phrase of Mr. Justice Bradley when characterizing a similarly extreme
contention. Civil Rights Cases, 109 U. S. 3, 24, 3 Sup. Ct. 18, 27 L. Ed. 835. It
will be impossible to reconcile such result with the freedom of contract and of
labor secured by the Fourteenth Amendme t.

20

This brings us to the nature and purpose of the regulation under the Industrial

Court Act. The avowed object is continuity of food, clothing and fuel supply.
By section 6 reasonable continuity and efficiency of the industries specified are
declared to be necessary for the public peace, health and general welfare, and
all are forbidden to hinder, limit or suspend them. Section 7 gives the industrial
court power in case of controversy between employers and workers which may
endanger the continuity or efficiency of service, to bring the employer and
employees before it and after hearing and investigation to fix the terms and
conditions between them. The employer is bound by this act to pay the wages
fixed and while the worker is not required to work, at the wages fixed, he is
forbidden, on penalty of fine or imprisonment, to strike against them and thus is
compelled to give up that means of putting himself on an equality with his
employer which action in concert with his fellows gives him.
21

There is no authority of this court to sustain such exercise of power in respect to

those kinds of business affected with a public interest by a change in pais, first
fully recognized by this court in Munn v. Illinois, supra, where it said (94 U. S.
126, 24 L. Ed. 77):

22

'Property does become clothed with a public interest when used in a manner to
make it of public consequence, and affect the community at large. 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. He may withdraw his grant by discontinuing the use; but, so
long as he maintains the use, he must submit to the control.'

23

These words refute the view that public regulation in such cases can secure
continuity of a business against the owner. The theory is that of revocable grant
only. Weems Steamboat Co. v. People's Co., 214 U. S. 345, 29 Sup. Ct. 661, 53
L. Ed. 1024, 16 Ann. Cas. 1222. If that be so with the owner and employer, a
fortiori must it be so with the employee. It involves a more drastic exercise of
control to impose limitations of continuity growing out of the public character
of the business upon the employee than upon the employer; and without saying
that such limitations upon both may not be sometimes justified, it must be
where the obligation to the public of continuous service is direct, clear, and
mandatory, and arises as a contractual condition express or implied of entering
the business either as owner or worker. It can only arise when investment by the
owner and entering the employment by the worker create a conventional
relation to the public somewhat equivalent to the appointment of officers and
the enlistment of soldiers and sailors in military service.

24

We are considering the validity of the act as compelling the employer to pay

the adjudged wages, and as forbidding the employees to combine against

working and receiving them. The penalties of the act are directed against effort
of either side to interfere with the settlement by arbitration. Without this joint
compulsion, the whole theory and purpose of the act would fail. The state
cannot be heard to say, therefore, that upon complaint of the employer the
effect upon the employee should not be a factor in our judgment.
25

Justification for such regulation is said to be found in Wilson v. New, 243 U. S.

332, 37 Sup. Ct. 298, 61 L. Ed. 755, L. R. A. 1917E, 938, Ann. Cas. 1918A,
1024. It was there held that in a nation-wide dispute over wages between
railroad companies and their train operatives, with a general strike, commercial
paralysis, and grave loss and suffering overhanging the country, Congress had
power to prescribe wages not confiscatory, but obligatory on both for a
reasonable time to enable them to agree. The court said that the business of
common carriers by rail was in one aspect a public business because of the
interest of ciety in its continued operation and rightful conduct and that this
gave rise to a public right of regulation to the full extent necessary to secure and
protect it; that viewed as an act fixing wages it was an essential regulation for
protection of public right; that it did not invade the private right of the carriers
because their property and business were subject to the power of government to
insure fit relief by appropriate means and it did not invade private rights of
employees since their right to demand wages and to leave the employment
individually or in concert was subject to limitation by Congress because in a
public business which Congress might regulate under the commerce power.

26

It is urged that under this act the exercise of the power of compulsory
arbitration rests upon the existence of a temporary emergency as in Wilson v.
New. If that is a real factor here, as in Wilson v. New, and in Block v. Hirsh,
256 U. S. 135, 157, 41 Sup. Ct. 458, 65 L. Ed. 865, 16 A. L. R. 165 (see
Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 43 Sup. Ct. 158, 67 L. Ed.
, decided December 11, 1922) it is enough to say that the great temporary
public exigencies, recognized by all and declared by Congress, were very
different from that upon which the control under this act is asserted. Here it is
said to be the danger that a strike in one establishment may spread to all the
other similar establishments of the state and country, and thence to all the
national sources of food supply so as to produce a shortage. Whether such
danger exists has not been determined by the Legislature, but is determined
under the law by a subordinate agency, and on its findings and prophecy
owners and employers are to be deprived of freedom of contract and workers of
a most important element of their freedom of labor.

27

The small extent of the injury to the food supply of Kansas to be inflicted by a

strike and suspension of this packing company's plant is shown in the language
of the Kansas Supreme Court in this case (Court of Industrial Relations v.
Packing Co., 111 Kan. 501, 207 Pac. 806):
28

'The defendant's plant is a small one, and it may be admitted that, if it should
cease to operate, the effect on the supply of meat and food in this state would
not greatly inconvenience the people of Kansas; yet, the plant manufactures
food products and supplies meat to a part of the people of this state, and, if it
should cease to operate, that source of supply would be cut off.'

29

The Supreme Court's construction of the operation and effect of the act is
controlling. The language quoted shows how drastic and all-inclusive it is.

30

But the chief and conclusive distinction between Wilson v. New and the case
before us is that already referred to. The power of a Legislature to compel
continuity in a business can only arise where the obligation of continued service
by the owner and its employees is direct and is assumed when the business is
entered upon. A common carrier, which accepts a railroad franchise, is not free
to withdraw the use of that which it has granted to the public. It is true that if
operation is impossible without continuous loss (Brooks-Scanlon Co. v. R. R.
Commission, 251 U. S. 396, 40 Sup. Ct. 183, 64 L. Ed. 323; Bullock v. R. R.
Commission, 254 U. S. 513, 41 Sup. Ct. 193, 65 L. Ed. 380), it may give up its
franchise and enterprise, but, short of this, it must continue. Not so the owner,
when by mere changed conditions his business becomes clothed with a public
interest. He may stop at will, whether the business be losing or profitable.

31

The minutely detailed government supervision, including that of their relations

to their employees, to which the railroads of the country have been gradually
subjected by Congress through its power over interstate commerce, furnishes
no precedent for regulation of the business of the the plaintiff in error, whose
classification as public is at the best doubtful. It is not too much to say that the
ruling in Wilson v. New went to the border line, although it concerne an
interstate common carrier in the presence of the nation-wide emergency and the
possibility of great disaster. Certainly there is nothing to justify extending the
drastic regulation sustained in that exceptional case to the one before us.

32

We think the Industrial Court Act, in so far as it permits the fixing of wages in
plaintiff in error's packing house, is in conflict with the Fourteenth Amendment,
and deprives it of its property and liberty of contract without due process of
law.

33

The judgment of the court below must be Reversed.