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have by engaging in a lawful occupation to make a living in this country.
To further show that Congress has no power to fix the conditions under which coal is produced, although destined for interstate shipment, and fix the price therefor, we desire to refer to the minimum wage acts of September 19, 1918, chapter 174, 40 statute 960. In speaking of this act the Supreme Court of the United States saidand I want to say that was in the District of Columbia, over which the Federal Government has absolute control, just as sovereign States have absolute control in all matters where the right is not delegated to the Federal Government.
Let us see what the court said in that case. And if you can not fix it in the District of Columbia, you can not fix it in a sovereign State by a coal commission.
Senator SACKETT. Would you stop there a minute !
Mr. BELCHER. Certainly it can, under the police power.
Mr. BELCHER. Certainly; because it is the property of the State, of the citizens of the State. In the exercise of police power the State can do anything except to deny the right of men to engage in legitimate industry. But it can regulate that industry.
Senator SACKETT. Yes; it can regulate it.
Senator SACKETT. Now, suppose the States do not regulate it in any way, is there any power in the Federal Government?
Mr. BELCHER. None at all, and I want to be as emphatic on that as I can.
Senator SACKETT. Suppose they let the oil and coal run to waste everywhere, the Federal Government would not have any power anywhere?
Mr. BELCHER. No, sir.
Mr. BELCHER. Yes, because self-interest will prevent that thing from happening, with the gas and coal and oil and that sort of thing.
Senator SACKETT. There is no implied power?
Mr. BELCHER. There is no implied power in the Federal Government. You can exercise only such limited powers as have been delegated by the sovereign States. And that is the great trouble, is the realization that this Government is a Government of limited powers and is not sovereign to the extent that the States are.
Senator SACKETT. There are no powers assumed by the powers that have been given?
Mr. BELCHER. You have the right to delegate the powers, but this is incidental to the powers delegated.
Senator SACKETT. That is the point I am coming to.
Senator SACKETT. Now, is not the power of conservation one of those powers?
Mr. BELCHER. No; not in the States. It is a matter of State regulation, as has been frequently decided. I can see your point. Here is a great natural resource that should be conserved, and all that sort of thing, but it is a thing that belongs to the State as a sovereign, and the Federal Government has no right, even though it may be wasteful, to interfere in the corpus of the State, such as oil and coal. The Federal Government can not exercise any control, because it has not been given any right to assume it at all.
Senator SACKETT. Following that just a bit further, I take it that under your argument all matters have already been decided which are impressed with public use, and there can be no public use further impressed upon anything in this country?
Mr. BELCHER. I do not say that, because that gets into the ramification of a lot of things. Conditions might arise
Senator SACKETT (interposing). I am afraid we will have to go into some of those things.
Mr. BELCHER. You must exclude the Constitution if you go into this.
Senator SACKETT. I do not know that we would.
Mr. BELCHER. I am not entering the realm of speculation, because I don't know what might happen, or what might not happen, but I am sure, in this instance with which we are now dealing, the Government of the United States, as such, or no department of the Government of the United States, has any power to do this thing set forth in this proposed legislation. Now to go on with the discussion. The Supreme Court said, in this minimum wage case:
In assuming to authorize the fixing of minimum wage standards for adult women, in any occupation in the District of Columbia, such standards to be based wholly upon what a board and its advisers may find to be an adequate wage to meet the necessary cost of living for women workers in each particular calling and to maintain them in good health and protect their morals, is an unconstitutional interference with the liberty of contract.
Now, if you can not do it in the District of Columbia where you have absolute control, how can you authorize a commission to fix the wages in Kentucky, in a coal mine, or the conditions under which they should work? And if you can not do that under this bill, what purpose does it serve?
Adkins v. Children's Hospital (261 U. S. 525, affirming 284 F. 613), the court laid down the general proposition that legislation fixing hours or conditions of work may properly take into account the physical differences between men and women; but that in view of the equality of legal status, now established in this country, the doctrine that women of mature age require, or may be subject to, restrictions upon their liberty of contract which could not lawfully be imposed on men in similar circumstances, must be rejected. Further it was said that the limited legislative authority to regulate hours of labor in special occupations, on the ground of health, affords no support to a wage-fixing law—the two subjects are essentially different.
It must be conceded that if Congress has the power to regulate and control the coal industry by regulating, restricting or forbidding coal or a material part thereof from entering the channels of interstate commerce, then it would have the power to control all industry, and as the Supreme Court said in Heisler v. Thomas Colliery Co. (260 U. S. 259):
The reach and consequences of the contention repel its acceptance. If the possibility, or, indeed, certainty of importation of a product or article from a State determines it to be in interstate commerce before the commencement of its movement from the State, it would seem to follow that it is in such commerce from the instant of its growth or production and in the case of coals as they lie in the ground. The result would be curious. It would nationalize all industries. It would nationalize and withdraw from State jurisdiction and deliver to Federal commercial control the fruits of California and the South, the wheat of the West and its meats, the cotton of the South, the Shoes of Massachusetts, and the woolen industries of other States at the very inception of their production or growth, that is, the fruits unpacked, the cotton and wheat ungathered, hides of cattle yet on the hoof," wool yet unshorn, and coal yet unmined, because they are in varying percentages destined for and surely to be exported to States other than those of their production.
I think that is a complete answer to this legislation.
Senator SACKETT. I think that is a complete answer to whether there is any method by which the Government can get control under the commerce clause.
Mr. BELCHER. Yes, sir.
Senator SACKETT. But I do not believe it is a complete answer as to whether the Government can take limited control in any other method.
Mr. BELCHER. In order to take control of the whole business you have, in a measure, to take control of the coal unmined, and the Supreme Court says you can not do that.
Ŝenator SACKETT. That may be open to question, and I do not see that this affects that.
Mr. BELCHER. The proposed bill in this case violates the liberty of contract guaranteed by the Constitution in an important phase other than above mentioned. The ultimate result of this legislation is to compel all men engaged in mining coal to become members of the United Mine Workers of America and encourages the breaking of private contracts with their employers. A man who desires to engage in mining coal would, of necessity, and as a condition precedent to his securing employment, have to join this union. This is a clear invasion of his constitional right. The right of a nonunion man to work in mines and work as a nonunion man was definitely settled in the Hitchman case (245 U. S. 229), and, as held in Smith v. Alabama (124 U. S. 465) that arbitrary tests by which competent persons are excluded from lawful employment must be avoided in State regulations of employment in private business affecting public health and safety.
As well said in the case of Smith v. Texas (233 U.S. 630): The liberty of contract is, of course not unlimited; but there is no reason or authority for the proposition that conditions may be imposed by statute which will admit some who are competent and arbitrarily exclude others who are equally competent to labor on terms mutually satisfactory to employer and employee. None of the cases sustains the proposition that, under the power to secure the public of the right to work in a special or favored position. Such a statute would shut the door, without a hearing, upon many persons and classes of persons who were competent to serve and would deprive them of the liberty to work in a calling they were qualified to fill with safety to the public and benefit to themselves.
In the Slaughterhouse cases (83 U. S. 36) Mr. Justice Field quotes from Live Stock Assn. v. Crescent City Co. (1 Abb. (U. S.) 398), as follows:
It is one of the privileges of every American citizen to adopt and follow such lawful industrial pursuit, not injurious to the community, as he may see fit, without unreasonable regulation or molestation and without being restricted
to any of those unjust, oppressive, and odious monopolies or exclusive privileges which have been condemned by all free governments.
There is no more sacred right of citizenship that the right to pursue unmolested a lawful employment in a lawful manner. It is nothing more nor less than the sacred right of labor.
It might be of value to quote from the holdings in cases involving the power of the Federal Trade Commission under the Federal trades act. It has been held that
And I want to say that when I said I cited only United States cases I did not have in mind the cases here cited—well, I cited here two Federal court cases, not from the United States Supreme Court
The commission has no general authority to compel competitors to a common level, to interfere with ordinary business methods or to prescribe arbitrary standards for those engaged in the conflict for advantage called competition. (261 U. S. 463.)
As the statute does not define the term “unfair methods of competition," the question is for the courts, and in determining the meaning of the phrase reference should be had to the public policy as declared in the Sherman Act, (289 Fed. 985.)
The visitorial powers of the commission under this and other sections (of the act) are confined to matters affecting interstate commerce and must be exercised in conformity with the fourth amendment to the Federal Constitution. (283 Fed. 999.)
In conclusion, we respectfully submit that Congress is without power to deal with matters contained in the proposed legislation as set forth in the bill under discussion. We do not believe that any legislation is necessary.
And I want to add there that any legislation can be passed constitutionally.
To concede that legislation is necessary is to admit that the coal industry needs the special protection of the Federal Government. In order to give this protection the Government must, in some measure, at least, exercise control of the industry. To exercise control over private industry is to violate every tradition we have of the powers of the Federal Government, and we do not hesitate to say that even if it were possible for the Federal Government to enter the field of private industry, its doing so would be subversive and destructive of the best interests of private industry as well. To find ample proof of this one only needs to inquire of history. One illustration only is necessary to cite. We refer to the corn laws of England, which were repealed in the middle of the eighteenth century, after miserable and complete failure and in a country that has no written constitution limiting the powers of government and where Parliament is supreme. These laws fixed the price of corn for the avowed purpose of protecting the farmer. The results, however, took the bread out of the mouths of the very class of men whom these laws sought to protect.
Buckle, in his History of Civilization in England, concerning these laws, says:
The propriety and, indeed, the necessity of their abolition is now admitted by everyone of tolerable information.
After treating of the steps of that vast movement in England that resulted in the enactment and repeal of these laws he said:
Soon after the middle of the eighteenth century, the absurdity of protective restrictions on trade was so fully demonstrated by the political economists as to be admitted by every man who understood their arguments and had mastered the evidence connected with them.
I have selected this instance as an illustration because the facts connected with it are undisputed, and, indeed, are fresh in the memory of us all. For it was not conceded at the time, and posterity ought to know that this great measure which, with the exception of the reform bill, is by far the most important ever passed by a British Parliament, was, like the reform bill, extorted from the legislature by a pressure from without; that it was conceded, not cheerfully, but with fear; and that it was carried by statesmen who had spent their lives in opposing what they now suddenly advocated. Such was the history of these events; and such likewise has been the history of all those improvements which are important enough to rank as epochs in the history of modern legislation.
In summing up the great injury to trade, brought about by attempted regulation of trade by European governments, Buckle, who possessed one of the greatest analytical and constructive minds of the English-speaking race, made this comment:
Indeed, the extent to which the governing classes have interfered, and the mischiefs which that intereference has produced, are so remarkable as to make thoughtful men wonder how civilization could advance in the face of such obstacles. In some of the European countries the obstacles have, in fact, proved insuperable, and the national progress is thereby stopped. Even in England where, from causes which I shall presently relate, the higher ranks have for some centuries been less powerful than elsewhere there has been inflicted an amount of evil which, though much smaller than that incurred in other countries, is sufficiently serious to form a melancholy chapter in the history of the human mind. To sum up these evils would be to write a history of English legislation, for it may be broadly stated that with the exception of certain necessary enactments respecting the preservation of order and the punishment of crime, nearly everything which has been done has been done amiss. Thus, to take only such conspicuous facts as do not admit of controversy, it is certain that all the most important interests have been greviously damaged by the attempts of legislators to aid them. Among the accessories of modern civilizaion there is none of greater moment than trade, the spread of which has probably done more than any other single agent to increase the comfort and happiness of men. But every European government which has legislated much respecting trade has acted as if its main object were to suppress the trade and ruin the traders. Instead of leaving the national industry to take its own course it has been troubled by an interminable series of regulations, all intended for its good, and all inflicting serious harm. To such a height has this been carried that the commercial reforms which have distinguished England during the last 20 years, have solely consisted in undoing this mischievous and intrusive legislation.
In every quarter, and at every moment, the hand of government was felt; this branch of industry forbidden, and that branch of industry encouraged. Then, too, we find laws to regulate wages; laws to regulate prices; laws to regulate the interest on money ; custom-house arrangements of the laws of the most variant and vexatious kind. * * A system was organized and strictly enforced, of interference with markets, interference with manufacturers, interference with machinery, interference even with the shops. A large part of all this was by way of protection; that is to say, the money was avowedly raised, and the inconvenience suffered, not for the use of the government, but for the benefit of the people. In other words, the industrious classes were robbed, in order that industry might thrive. Such are some of the benefits which European trade owes to the paternal care of European legislators.
The history of the injurious results of European legislation to protect, by means of legislation, this or that industry, may likewise, and with more injurious results, become history in the United States, in