But, in determining that question, the court had to determine, and did determine, that Congress had the power to enter that field, namely, to characterize the mining to coal within the mine as a circumstance having direct relation to interstate commerce, and because that was so, the Sherman Antitrust Law might be applicable, but that allegations of conspiracy against it might be made and proved before the court would enjoin the offending party.

Mr. VINSON. Do you recall the particular facts that were under discussion in the employers' liability cases, in 223 U. S., 1, 51? Mr. WARRUM. I do not.

Mr. VINSON. I am quoting now from the opinion in the Schechter case dealing with the transactions that directly affect interstate commerce so as to make it subject to Federal regulation.

Mr. WARRUM. Yes.

Mr. VINSON. Quoting from the decision:

We said in the second employers' liability case, 223 U. S., 1, 51, that it is the "effect upon interstate commerce" not the "source of the injury" which is the criterion of Congressional power.

Mr. WARRUM. Certainly I think if anything is decided in the Schechter case thoroughly it is that domestic transactions, not merely domestic commerce-I mean intrastate transactions, not merely intrastate commerce, any character of intrastate transactions that directly affect interstate commerce, are within the regulatory power of Congress. That must be so; that has always been held by the Court. If it was not, the full power of Congress over interstate commerce under the Constitution would fail, unless Congress has the right to go beyond what could be called strictly the flow of interstate commerce and to control those things that do directly affect it.

How can you exercise plenary power over interstate commerce if you cannot exercise power over those things that modify and restrain and directly affect it? That is plain all the way through the Schechter

case.

It is also plain that in that case they lay down the rule that each case has to be determined on its own merits; whether or not the regulatory power of Congress is exercised over matters that directly affect interstate commerce has to be determined by the facts in each

case.

And I have never been able to conceive of any industry that would offer an opportunity for Congress to exercise its regulatory power over the industry, the production of which flows into commerce, more than the bituminous-coal industry.

I say that because of the decisions we have quoted. We have gone into the courts, and the Federal courts have authorized injunctions against activities at the mines, on the ground that they directly interfered with and absolutely burdened interstate commerce, and that the miners must be charged with the intent to do that.

Mr. COOPER. Let me make one inquiry, if I may. I understood you to state yesterday that you appeared as counsel for the organization in quite a number of these cases, including the Red Jacket and other cases.

Mr. WARRUM. Yes.

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Mr. COOPER. I also got the impression from your statement that you had in all of those cases taken the position that the mining of coal was not in interstate commerce.

Mr. WARRUM. Certainly; we defended on that ground, and our defense was lost.

Mr. COOPER. You took that position in all those cases?

Mr. WARRUM. Exactly.

Mr. COOPER. Have you at any time taken the position in the courts that the mining of coal was interstate commerce?

Mr. WARRUM. No; and Mr. Cooper, let me state this, that despite the citations that could be made that mining, as such, was not interstate commerce, that the activities of miners at the point of production were not controllable by the Federal courts under any act of Congress, yet we are coming now and asking that the same rule be applied by Congress that has been applied by the courts.

Mr. COOPER. I have no disposition to argue the matter; I am only trying to get information, and trying to clear up a point. Mr. WARRUM. We have had a mournful time. When we have made the argument in these injunction cases, like the Pittsburgh case and the Red Jacket case, that the Federal court had no jurisdiction, that no Federal act was involved, that mining, as such, was not interstate commerce and the activities of the miners that did not affect the shipments and sales in other States, were not controllable by acts of Congress, these gentlemen, arguing that you have no control over these acts, persuaded the courts that the activities of the miners, the industrial disputes that arose in these mines, were such as directly affected interstate commerce, and bring them within the scope of that act of Congress. Now, we ask this question: If Congress can, as these gentlemen have argued, as the courts have universally held, lay its heavy hand upon the activities of miners in these industrial disputes, that affect production only, as such, and not shipments to other States, why cannot Congress go further in the same field and correct the abuses at the points where those industrial disputes arose.

I cited the Swift injunction case and the Packers and Stockyards case to show that that was exactly the course that Congress took in an analogous situation.

Mr. COOPER. The Stockyards cases did involve the antitrust law. Mr. WARRUM. Yes; just like our case.

Mr. COOPER. That is what they were based on.

Mr. WARRUM. And so were ours. Our injunctions were based upon the Antitrust Act. And I still think that the Antitrust Act is an act of Congress.

Mr. COOPER. I do not think there can be any question about that. Mr. WARRUM. Let me call attention to the question of wages. Mr. HILL. In my opinion a distinction can be made between the antitrust law and the power of Congress operating under the interstate commerce clause.

The antitrust law is based upon the idea that combinations and conspiracies are organized for the specific purpose of restraining trade in interstate commerce; is that not true?

Mr. WARRUM. Yes; but it is based upon the interstate commerce clause of the Constitution.

Mr. HILL. But to effectuate that restraint in trade they have these combinations.

Mr. WARRUM. Yes; but if Congress had passed a law providing that conspiracies to burn barns should be unlawful, do you suppose that statute would stand? The conspiracy has only this effect, that it has for its objective that overt act. The conspiracy must do something over which Congress has control.

The statement as to conspiracy in the Antitrust Act is not what gives Congress jurisdiction. Its jurisdiction arises out of its control If there was an act denouncing conover interstate commerce. spiracies, as I say, to burn barns, relating to matters wholly under State control, a statute of that kind could not stand at all.

Mr. HILL. Let me suggest a case of this kind, which is an extreme illustration.

Take the State of Pennsylvania, and say the operators within the State of Pennsylvania enter into a combination to control the production and prices of the output of the mines within the State of Pennsylvania, and not outside the State of Pennsylvania.

Would they still be under the jurisdiction of the Federal courts, under the antitrust law?

Mr. WARRUM. I can only answer in this way, that they would be if the court concluded that a combination of that character had a direct influence upon interstate commerce in coal, the coal that flowed into and out of Pennsylvania.

Mr. HILL. It would depend upon that further finding.
Mr. WARRUM. It certainly would.

There are two points in connection with that question. One is that the court ultimately must determine the fact, I assume, that the transaction that Congress undertakes to regulate is one that directly affects interstate commerce.

The other proposition is that the court will give due regard to the declaration of Congress upon that question.

They have said, upon those points I called attention to, in the Swift case:

It was for Congress to decide from its general information and from such special evidence as was brought before it, the nature of the evils actually presented or threatened and to take such steps by legislation within its power as it deems proper to remedy them.

The reasonable fear by Congress that such acts, usually lawful, and affecting only intrastate commerce when considered alone, will probably and more or less constantly, be used in conspiracies against interstate commerce, or constitute a direct an undue burden on it, expressed in this remedial legislation, served the same purpose as the intent charged in the Swift indictment to bring acts of a similar character into the current of interstate commerce for Federal restraint. Whatever amounts to more or less constant practice, and threatens to obstruct or unduly to burden the freedom of interstate commerce, is within the regulatory power of Congress under the commerce clause, and it is primarily for Congress to consider and decide the fact of the danger and meet it. This Court will certainly not substitute its judgment for that of Congress in such matter unless the relation of the subject to interstate commerce and its effect upon it are clearly nonexistent The philosophy of that decision and of the Olsen case is that if Congress finds it is necessary and declares that it is necessary for it to exercise certain regulatory control over domestic or intrastate transactions in order to exercise its power over interstate commerce because of the direct effect that those domestic transactions have on the flow of commerce, the Court will respect that declaration.

Yo can push that to the extreme, they say here and in the Olsen case, and if Congress undertook to say that the ringing of a bell at a boarding house affected interstate commerce, it would be so ridiculous that they would decline to respect it.

The courts have shown a disposition to respect the disposition of Congress with respect to what Congress says has a direct effect upon interstate commerce and is necessary to be regulated.

In the cases I cited yesterday the court went so far as to say that they would not substitute their judgment for that of Congress.

In the Olsen cases they say--and in the Olsen case it was admitted that trading upon the boards of trade and grain exchanges was primarily not interstate commerce at all, but was a domestic or intrastate transaction. They held that in the Hill case, and when Congress reenacted the regulation of grain exchanges with the declaration. by Congress that those regulations were necessary to protect commerce, the court said, in the last case:

By reason and authority, therefore, in determining the validity of this act we are prevented from questioning the conclusion of Congress that manipulation of the market for futures on the Chicago Board of Trade may, and from time to time does, directly burden and obstruct commerce between the States in grain.

You, of course, before you make your declaration in a congressional act, consider the facts as they appear before you and make your findings with due regard to what you know of the situation, so the court will fairly respect your judgment in the matter.

That brings us back to the question, what are you justified in declaring in such a declaration? Are you justified in declaring that Congress shall control the production of coal in order to fairly control interstate commerce in coal?

I think so, by reason of the fact that the courts have already pointed out the power that Congress has over industrial disputes in the mines.

The decent sequence must be that if Congress can do that, Congress can go further and legislate as to the causes that bring about these disputes; that Congress can say, it is true that the courts have found that in the act of 1890 these industrial disputes can be enjoined, and we are going to remove the causes that produce them; we are going to do away with the company store, with the denial of collective bargaining, provide for the abolition of check weighmen and yellow-dog contracts these things which breed industrial disputes, and which have rendered labor at the mines subject to injunction, under existing regulations.

Let me call attention to the first Coronado case. That has been quoted in the Schechter case over and over again.

They represent mining as not being primarily interstate commerce, and we do not claim that it is. We claim that under all the facts the regulation of mining must follow, if the regulation of interstate commerce in coal is to be exercised in a plenary, fair and decent way. In the first Coronado case, in 259 United States, they say:

It is clear from these cases that if Congress deems certain recurring practices, though not really a part of interstate commerce, likely to obstruct, restrain, or burden it, it has the power to subject them to national supervision and restraint.

That was done in the Stockyards case and in the Grain Exchange case. Mr. LEWIS. With reference to the very logical question you raised, Mr. Chairman, as to coal traffic physically confined within a State,. let us take, for instance, the State of Pennsylvania.

The soft-coal operators of Pennsylvania can ship their coal on rails that do not leave Pennsylvania, from the middle of Pennsylvania, to Pittsburgh, to McKeesport, to Johnstown, and to other places in the western part of the State, and then, moving east, to Harrisburg, or Williamsport, or Philadelphia. All those shipments will be purely intrastate, regarded merely in their physical aspects.

It happens that in Maryland, because of its geographical and topographical conditions, in general, all coal that is mined in Allegany County and in Garrett County cannot be shipped to any other points in Maryland without crossing the Potomac River.

Now, I want to ask you this question, whether the Pennsylvania coal, which is intrastate coal, regarded merely in its physical aspect, does not affect the interstate price, as between Maryland coal, in Philadelphia and Baltimore, and Pennsylvania coal in Philadelphia and Baltimore, just as much as if the Pennsylvania Railroad in Pennsylvania had to cross the Potomac River several times in reaching Pennsylvania points.

Mr. WARRUM. There is no doubt about that, Mr. Lewis.

Mr. LEWIS. Is not the parallel of water levels and price levels with regard to coal a just analogy?

Mr. WARRUM. There is no question about that.

Mr. TREADWAY. I would like to ask one question, especially along the lines we are discussing.

Is there any way whereby any official opinion can be had, or even a semiofficial opinion, on the moot question of the constitutionality of some of the provisions that appear in this bill?

Mr. WARRUM. Well, I would think that you know more about that that I would. I assume you mean when you say official or semiofficial, by some official of the Government. I know nothing about that.

Mr. TREADWAY. I have not spoken to Mr. Hill about that matter, but I noticed that he was quoted in the press a short time ago as being somewhat skeptical, as a distinguished lawyer, as to the constitutionality of some of the provisions in this bill, and he expressed, through the press--whether it is correct or not I have no means of knowing-a desire, for instance, to have the opinion of the Attorney General's department on that matter.

Mr. WARRUM. That, of course, I would not know about. I could not speak for the Attorney General, or for anybody else in the Govern

ment.

Mr. TREADWAY. I realize that.

Mr. WARRUM. I judge that Members of Congress would know more about that than I would.

Mr. TREADWAY. I do not mean to involve you in any inquiry, so far as the Attorney General is concerned, because I imagine the committee could get an opinion from him.

But I was wondering, considering your long legal experience and your specialized work along this particular line, whether you had any suggestion to offer us as to how we can get a little more evidence as to the constitutional phase of this subject, from others than yourself.

You have given us a very illuminating discussion of the subject; I can see that, even though I cannot appreciate the legal side of it. You are evidently thoroughly familiar with the legal details.