*413 *I agree with the Court as to the special proviso against the German language contained in the statute dealt with in Bohning v. Ohio. Mr. Justice SUTHERLAND concurs in statute is subject to the same objections as those offered to the act of 1919 and sustained in Meyer v. Nebraska, supra. The purpose of the later enactment as stated by counsel for the state, is "to place beyond the possibility for legal evasion a prohibition against the teaching in schools of foreign languages this opinion. to children who have not passed the eighth grade." The Supreme Court considered the merits of the cause, upheld the statute, and refused an injunction. (Neb.) 187 N. W. 927 CHAS. WOLFF PACKING CO. v. COURT OF (April 19, 1922). McKelvie and Davis, formerly Governor and Attorney General, no longer occupy those offices. The cause is dismissed as to them. Otto F. Walter is now the county attorney and the judgment below as to him must be reversed. Reversed. *412 *Mr. Justice HOLMES. I We all agree, take it, that it is desirable that all the citizens of the United States should speak a common tongue, and therefore that the end aimed at by the statute is a lawful and proper one. The only question is whether the means adopted deprive teachers of the liberty secured to them by the Fourteenth Amendment. It is with hesitation and unwillingness that I differ from my brethren with regard to a law like this but I cannot bring my mind to believe that in some circumstances, and circumstances existing it is said in Nebraska, the statute might not be regarded as a reasonable or even necessary method of reaching the desired result. The part of the act with which we are concerned deals with the teaching of young children. Youth is the time when familiarity with a language is established and if there are sections in the State where a child would hear only Polish or French or German spoken at home I am not prepared to say that it is unreasonable to provide that in his early years he shall hear and speak only English at school. But if it is reasonable it is not an undue restriction of the liberty either of teacher or scholar. No one would doubt that a teacher might be forbidden to teach many things, and the only criterion of his liberty under the Constitution that I can think of is "whether, considering the end in view, the statute passes the bounds of reason and assumes the character of a merely arbitrary fiat." Purity Extract & Tonic Co. v. Lynch, 226 U. S. 192, 204, 33 Sup. Ct. 44, 47 (57 L. Ed. 184); Hebe Co. v. Shaw, 248 U. S. 297, 303, 39 Sup. Ct. 125, 63 L. Ed. 255; Jacob Ruppert v. Caffey, 251 U. S. 264, 40 Sup. Ct. 141, 64 L. Ed. 260. I think I appreciate the objection to the law but it ap pears to me to present a question upon which men reasonably might differ and therefore I am unable to say that the Constitution of the United States prevents the experiment being tried. (262 U. S. 522) INDUSTRIAL RELATIONS OF (Argued April 27, 1923. Decided June 11, No. 739. 1. Constitutional law 275(2)-Right of employer or employee to contract is part of the liberty protected by due process clause. The right of the employer, on the one hand, tract about his affairs, is part of the liberty and of the employee, on the other, to conof the individual protected by the guaranty of the due process clause of Const. Amend. 14. 2. Constitutional law 276-Restraint of freedom of contract must not be arbitrary or unreasonable, and can be justified only by exceptional circumstances. While there is no such thing as absolute freedom of contract, freedom is the general rule, and restraint is the exception, and must not be arbitrary or unreasonable, and can be justified only by exceptional circumstances. 3. Constitutional law 70(1)—Legislative es which clothe business with "public interest" must create peculiarly close relation be tween public and those engaged in it. The circumstances which clothe a particular kind of business with a "public interest," so as to be subject to regulation, 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. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Public Interest.] 5. Constitutional law 296(1)-One does not devote property or business to public use by engaging in common callings; "public use;" "public interest." One does not devote his property or business to a public use, or clothe it with a publie interest, merely because he makes commod For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (43 Sup. Ct.) ities for and sells to the public in common callings, such as those of the butcher, baker, tailor, etc. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Public Use.] 6. Constitutional law 296(1)-Right to sell or not at will usually distinguished private from quasi public occupations. or efficiency, to fix the terms and conditions of employment, and requiring the employer to pay the wages fixed, and forbidding employees to strike against them, so far as it permits such fixing of wages, deprives the employer of its property and liberty of contract without due process of law, in violation of Const. Amend. 14. In Error to the Supreme Court of Kansas. While the right of one to sell or not as he Mandamus proceeding, instituted in the Sulikes does not necessarily exclude his business from those clothed with a public interest, it preme Court of Kansas by the Court of Inusually distinguishes private from quasi pub-dustrial Relations of the State of Kansas lic occupations. against the Charles Wolff Packing Company. Judgment granting a writ of mandamus was rendered by the Supreme Court (207 Pac. 806), and defendant brings error. 7. Constitutional law 296(1)-Extent to which business clothed with public interest may be regulated depends on nature of busi ness. Though a business be clothed with a public interest, the extent to which it may be regulated depends on the nature of the business, the feature which touches the public, and the abuses reasonably to be feared. 8. Constitutional law 296(1)-Public regu lation can secure continuity of business only when obligation to public is direct and arises as contractual condition. Public regulation can only secure continuity of a business, as against the owner or his employees, when 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. 9. Constitutional law 47-Effect of act es tablishing compulsory arbitration on employees considered in determining validity on employer's complaint. As the penalties of the Kansas Court of Industrial Relations Act are directed against effort of either side to interfere with settlement of wage disputes by arbitration, and without this joint compulsion the whole theory and purpose of the act would fail, its effect on the employee is a proper factor to be considered in determining its validity on complaint of the employer. 10. Courts 394 (3)-Construction of statute by state court conclusive in determining validity. The construction of the Kansas Court of Industrial Relations Act by the state Supreme Court as authorizing compulsory arbitration of wage disputes, though cessation of the operation of the employer's packing plant would not greatly inconvenience the public, is controlling in determining the validity of the act. 11. Constitutional law 275(2)-Master and servant 69-Statute providing compulsory arbitration held unconstitutional. #524 Reversed. *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. has 300 employees. There are many other It packing houses in Kansas, of greater capacity. This is considered a small one. In January, 1921, the president and secretary 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 The Kansas Court of Industrial Relations Act, declaring the business of manufacturing and preparing food for human consumption affected with a public interest, and reasonable continuity and efficiency of such industry to be necessary for the public peace, health, and general welfare, and giving the industrial court of an emergency, and an order as to wages, power, in case of controversy between employ-increasing them over the figures to which ers and workers endangering such continuity the company had recently reduced them. *525 For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes The company refused to comply with the, by the state Supreme Court the act gives order and the industrial court then instituted the industrial court authority to permit the 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 Com pany 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 *526 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. 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. [1, 2] 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. Ed. ——, 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 unreasonable. Freedom is the general rule, and restraint the excep tion. 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 cided April 9, 1923. de 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 prepara tion 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. (43 Sup.Ct.) lic. Such are the railroads, other common with a public interest, in the sense of Munn 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 *536 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. [3] 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 justified. 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. v. Illinois and the other cases, must be such as to create a peculiarly close relation be tween 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. 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 ky. 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. *537 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 classes-one 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 pub lic 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. [5] It has never been supposed, since the adoption of the Constitution, that the business of the butcher, or the baker, the tailor, [4] In a sense, the public is concerned the wood chopper, the mining operator, or about all lawful business because it con- the miner was clothed with such a public intributes to the prosperity and well being of terest that the price of his product or his the people. The public may suffer from high wages could be fixed by state regulation. It prices or strikes in many trades, but the ex- is true that in the days of the early common pression "clothed with a public interest," as law an omnipotent parliament did regulate applied to a business, means more than that prices and wages as it chose, and occasionalthe public welfare is affected by continuity ly a colonial legislature sought to exercise or by the price at which a commodity is the same power; but nowadays one does not sold or a service rendered. The circumstanc- devote one's property or business to the pubes which clothe a particular kind of business lic use or clothe it with a public interest merely because one makes commodities for, 1jected as such, could not include what this and sells to, the public in the common call-act attempts. ings of which those above mentioned are in- [7] To say that a business is clothed with stances. [6] An ordinary producer, manufacturer, or shopkeeper may sell or not sell as he *538 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 reglikes, United States v. *Freight Association, ulated may differ widely from that allowable 166 U. S. 290, 320, 17 Sup. Ct. 540, 41 L. Edas to a railroad or other common carrier. It 1007; Terminal Cab Co. v. Kutz, 241 U. S. is not a matter of legislative discretion sole252, 256, 36 Sup. Ct. 583, 60 L. Ed. 984, Ann. ly. It depends on the nature of the business. Cas. 1916D, 765, and while this feature does on the feature which touches the public, and not necessarily exclude businesses from the on the abuses reasonably to be feared. To class clothed with a public interest, German say that a business is clothed with a public Alliance Ins. Co. v. Lewis, 233 U. S. 389, 34 interest is not to import that the public may Sup. Ct. 612, 58 L. Ed. 1011, L. R. A. 1915C, take over its entire management and run it 1189, it usually distinguishes private from at the expense of the owner. The extent to quasi-public occupations. which regulation may reasonably go varies In nearly all the businesses included un- with different kinds of business. The reguder the third head above, the thing which lation of rates to avoid monopoly is one gave the public interest was the indispensa- thing. The regulation of wages is another. ble nature of the service and the exorbitant A business may be of such character that charges and arbitrary control to which the only the first is permissible, while another public might be subjected without regula tion. 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 reg ulation. teenth Amendment. *540 In the preparation of food, the changed conditions have greatly increased the capac ity for treating the raw product and transferred the work from the shop with few emIf, as, in effect, contended by counsel for ployees to the great plant with many. Such the state, the common callings are clothed regulation of it as there has been, has been with a public interest by a mere legislative directed toward the health of the workers in declaration, which necessarily authorizes congested masses, or has consisted of in- full and comprehensive regulation within spection and supervision with a view to the legislative discretion, there must be a revohealth of the public. But never has regula-lution in the relation of government to gention of food preparation been extended to eral business. This will be running the pubfixing wages or the prices to the public, as lic interest argument into the ground, to use in the cases cited above where fear of moa phrase of Mr. Justice Bradley when charnopoly prompted, and was held to justify, regulation of rates. There is no monopoly in the preparation of foods. The prices acterizing a similarly *extreme contention. Civil Rights Cases, 109 U. S. 3, 24, 3 Sup. charged by plaintiff in error are, it is con- Ct. 18, 27 L. Ed. 835. It will be impossible ceded, fixed by competition throughout the to reconcile such result with the freedom of country at large. Food is now produced in greater volume and variety than ever be-contract and of labor secured by the Fourfore. Given uninterrupted interstate comThis brings us to the nature and purpose merce, the sources of the food supply in of the regulation under the Industrial Court Kansas are country-wide, a short supply is Act. The avowed object is continuity of not likely, and the danger from local monop-food, clothing and fuel supply. By section 6 It is very difficult under the cases to lay reasonable continuity and efficiency of the down a working rule by which readily to industries specified are declared to be necbusiness has become essary for the public peace, health and gen"clothed with a public interest." All busi-eral welfare, and all are forbidden to hinness is subject to some kinds of public regu- the industrial court power in case of conder, limit or suspend them. Section 7 gives lation, but when the public becomes so peculiarly dependent upon a particular busi-troversy between employers and workers which may endanger the continuity or effiness that one engaging therein subjects *him- ciency of service, to bring the employer and self to a more intimate public regulation is employees before it and after hearing and only to be determined by the process of ex-investigation to fix the terms and conditions clusion and inclusion and to gradual estab- between them. The employer is bound by lishment of a line of distinction. We are re- this act to pay the wages fixed and while lieved from considering and deciding definite- the worker is not required to work, at the ly whether preparation of food should be wages fixed, he is forbidden, on penalty of put in the third class of quasi public busi- fine or imprisonment, to strike against them nesses, noted above, because, even so, the and thus is compelled to give up that means valid regulation to which it might be sub- of putting himself on an equality with his olistic control less than ever. determine when a *539 |