The Adamson Act takes "liberty" and "property." Is the taking justified? Is it "due process"? The test of "due process" is whether the act has a "substantial and rational" or "reasonable" relation to the welfare of the public or any part of the public. Clearly it has some rational relation to the public welfare. The question then is, whether that is "substantial" or "reasonable." This is determined by balancing all the interests of society involved and determining whether the preponderant effect of the act is such that any generalization resulting from sustaining it will open an unobstructed way for attack by the legislature upon a fundamental condition of the existence of the social order. The performance of this balancing process is a technique as well as the application of a legalistic formula. It clearly involves some conception of the fundamentals of the social structure.

Act Within Sustaining Principle.

Against the validity of the act is the fundamental principle of the social order that industry and commerce shall be run by managers competitively selected and wielding the power which comes from the control of privately owned property rather than by the flats of legislators politically influenced and selected. The fact that the act fixes wages instead of leaving it to the free contract of the parties violates this principle. On the other hand, it is equally a fundamental principle of the social order that information shall be obtainable for use by the government, the parties in interest, and the public for guidance in action. If the government desires information as a guide to determine whether it shall take steps looking toward the government ownership of railways, it should be permitted to get it. If the railroads and the employees need information for the purpose of collective bargaining, it is of fundamental importance to society that they should be able to secure it. So if the public which is affected by a strike or a labor dispute between railway employees and managers want information in order that they may throw the weight of their support on one side or the other, it is fundamental that they should be able to obtain it. The fact that the Adamson Act directs an eight-months' experiment to be made, in order to provide information as to a wage dispute (1) for the benefit of the government in guiding it on a matter of ultimate government ownership, or on any other matter upon which it has power to legislate; (2) for the benefit of the parties in advising them as to the basis of their collective bargaining; and (3) for the benefit of the public, to enable them to determine their attitude toward each disputant, brings the Act within a principle which tends to sustain it.

When the conflicting aspects of the act are balanced, the predominant effect of the legislation is plainly to secure information by requiring an experiment to be made. In laying down an eight-hour day as the measure of a day's pay and requiring that wages be not reduced, the Act merely fixes the necessary outlines of the experiment. The commission is appointed so that the information obtained by the experiment may be intelligently presented. The fact that the operation of the Act is strictly limited to not more than eight months, is the strongest single fact which gives the Act its predominant effect as an effort to secure information by experiment. The predominant effect of the Act, therefore, is such that sustaining it will not open any unobstructed way for attack by the legislature upon any fundamental condition of the existence of the social order. The decision does not in the least tend to establish that wage fixing acts are "due processes of law." The dissenting judges in performing the process of balancing the interests must have regarded the predominant effect of the Act as one which substituted the legislative flat for the freedom of the railroad managers to contract with employees as to wages.