In his speech at Elizabethton, Tenn., October 6, 1928, he said:

Our Government was created in the belief that economic activities that is, the forces of business and commerce-would translate themselves into widely distributed public welfare if left alone by the Government.

In the same speech he also said:

All legislation, all administrative action, must stand the supreme test that it provide equal opportunity for all our citizens-not for any special group. I do not favor any general extension of the Federal Government into the operation of business in competition with its citizens. It is not the system of Lincoln or Roosevelt. It is not the American system. It not only undermines initiative, but it undermines State and local self-government. It is the destruction of State rights.

And also in the same speech he said:

One test of our economic and social system is its capacity to cure its own abuse. New abuses and new relationships to the public interest will occur as long as we continue to progress. If we are to be wholly dependent upon Government to cure every evil we shall by this very method have created an enlarged and deadening abuse through the extension of bureaucracy and the clumsy and incapable handling of delicate economic forces. And much abuse has been and can be cured by inspiration and cooperation rather than by regulation of the Government.

In his speech at New York, October 22, 1928, Mr. Hoover again referred to this subject and from that speech we make the following quotations:

Let us first see the effect upon self-government. When the Federal Government undertakes to go into commercial business it must at once set up the organization and administration of that .business, and it immediately finds itself in a labyrinth, every alley of which leads to the destruction of selfgovernment.

Commercial business requires a concentration of responsibility. Self-government requires decentralization and many checks and balances to safeguard liberty. Our Government to succeed in business would need become in effect a despotism. There at once begins the destruction of self-government.

Government, in order to avoid the possible incompetence, corruption, and tyranny of too great authority in individuals intrusted with commercial business, inevitably turns to boards and commissions. To make sure that there are checks and balances, each member of such boards and commissions must have equal authority. Each has his separate responsibility to the public, and at once we have the conflict of ideas and the lack of decision which would ruin any commercial business. It has contributed greatly to the demoralization of our shipping business. Moreover, these commissions must be representative of different sections and different political parties, so that at once we have an entire blight upon coordinated action within their ranks which destroys any possibility of effective administration.

Bureaucracy is ever desirous of spreading its influence and its power. You can not extend the mastery of the Government over the daily working life of a people without at the same time making it the master of the people's souls and thoughts. Every expansion of government in business means that government in order to protect itself from the political consequences of its errors and wrongs is driven irresistibly without peace to greater and greater control of the Nation's press and platform. Free speech does not live many hours after free industry and free commerce die.

It is a false liberalism that interprets itself into the Government operation of commercial business. Every step of bureaucratizing of the business of our country poisons the very roots of liberalism—that is, political equality, free speech, free assembly, free press, and equality of opportunity. It is the road not to more liberty, but to less liberty. Liberalism should be found not striving to spread bureaucracy but striving to set bounds to it. True liberalism seeks all legitimate freedom first in the confident belief that without such freedom the

pursuit of all other blessings and benefits is vain. That belief is the foundation of all American progress, political as well as economic.

I feel deeply on this subject because during the war I had some practical experience with governmental operation and control. I have witnessed not only at home but abroad the many failures of government in business, I have seen its tyrannies, its injustices, its destructions of self-government, its undermining of the very instincts which carry our people forward to progress. I have witnessed the lack of advance, the lowered standards of living, the depressed spirits of people working under such a system. My objection is based not upon theory or upon a failure to recognize wrong or abuse, but I know the adoption of such methods would strike at the very roots of American life and would destroy the very basis of American progress.

*

*

*

*

*

The wisdom of our forefathers in their conception that progress can only be attained as the sum of the accomplishment of free individuals has been reenforced by all of the great leaders of the country since that day. Jackson, Lincoln, Cleveland, McKinley, Roosevelt, Wilson, and Coolidge have stood unalterably for these principles.

I want to close by saying that I think it is fair to say that the proposed bill is condemned by these principles enunciated by President Coolidge and President-elect Hoover.

Senator COUZENS (presiding). Do you have any other witness here to put on?

Mr. GREEVER. Mr. Fred M. Livezey, of Huntington, W. Va., is here representing the State of West Virginia, and would like to make a statement.

Senator COUZENS. He may proceed.

STATEMENT OF FRED M. LIVEZEY, ATTORNEY, HUNTINGTON, W. VA., REPRESENTING THE STATE OF WEST VIRGINIA

Mr. LIVEZEY. Mr. Chairman, I have not had time to have prepared a sufficient number of copies of my statement for distribution, but will have them later.

I appear for the State of West Virginia, at the request of the attorney general, in opposition to the passage of the bill which the committee has under consideration, for the reason that we believe it calls upon and places in the hands of the Federal Government the exercise of powers which have not been exercised by the Federal Government heretofore.

Senator COUZENS. I understand, then, that you are only speaking for the attorney general of West Virginia?

Mr. LIVEZEY. That is right.

Senator COUZENS. And no one else?

Mr. LIVEZEY. No one else except, in that way, for the State. All powers not delegated to Federal Government are reserved to the States.

As early as 1819, Chief Justice Marshall declared that the principle that the Federal Government is one of enumerated powers, is universally admitted. In the case of McCullough v. Maryland, 4 Wheaton 316, 405 (17 U. S. 159, 199), Chief Justice Marshall said:

This Government is acknowledged by all to be one of enumerated powers. The principle that it can exercise only the powers granted to it would seem too apparent to have required to be enforced by all those arguments which its enlightened friends, while it was depending before the people, found it

In

necessary to urge; that principle is now universally admitted. But the question respecting the extent of the powers actually granted is perpetually arising and will probably continue to arise so long as our system shall exist. discussing these qeustions thec onflicting powers of the Geenral and State Governments must be brought into view, and the supremacy of their respective laws, when they are in opposition, must be settled.

The principle stated by Chief Justice Marshall has been recognized and followed throughout the history of this Government.

The Constitution contains as the tenth amendment the following provision:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

In the case first referred to, McCullough v. Maryland,, Chief Justice Marshall refers to the tenth amendment as one "which was framed for the purpose of quieting the excessive jealousies which had been excited." (4 Wheat. 406.)

In the case of Collector v. Gray (11 Wall; 78 U. S. 113, 124), the Supreme Court said:

It is a familiar rule of construction of the Constitution of the Union that the sovereign powers vested in the State governments by their respective constitutions remained unaltered and unimpaired, except so far as they were granted to the Government of the United States. That the intention of the framers of the Constitution in this respect might not be misunderstood, this rule of interpretation is expressly declared in the tenth article of the amendments, namely: The powers not delegated to the United States are reserved to the States respectively, or to the people."

The Government of the United States, therefore, can claim no powers which are not granted to it by the Constitution, and the powers actually granted must be such as are expressly given or given by necessary implication.

The General Government, and the States, although both exist within the same territorial limits, are separate and distinct sovereignties, acting separately and independently of each other, within their respective spheres. The former in its appropriate sphere is supreme; but the States within the limits of their powers not granted, or, in the language of the tenth amendment, " reserved," are as independent of the General Government as that Government within its sphere is independent of the States.

Chief Justice Taney, in the last decision written by him (Gordon v. United States, 117 U. S. 697. 705)-the opinion was written, I believe, in 1849 but was not reported until 1864, being found among the papers of Chief Justice Taney after his death--summed up the separation between Federal and State powers in the following language:

The Constitution of the United States delegates no judicial power to Congress. Its powers are confined to legislative duties, and restricted within certain prescribed limits. By the second section of Article VI, the laws of Congress are made the supreme law of the land only when they are made in pursuance of the legislative power specified in the Constitution; and by the tenth amendment the powers not delegated to the United States nor prohibited by it to the States are reserved to the States respectively or to the people. The reservation to the States respectively can only mean the reservation of the rights of sovereignty which they respectively possessed before the adoption of the Constitution of the United States and which they had not parted from by that instrument. And any legislation by Congress beyond the limits of the power delegated would be trespassing upon the rights of the States or the people and would not be the supreme law of the land but null and void; and it would be the duty of the courts to declare it so. For whether an act of Congress is within the limits of its delegated power or not is a judicial question, to be decided by the courts, the Constitution having, in express terms, declared that the judicial power shall extend to all cases arising under the Constitution.

Mr. Justice Brewer, in a concurring opinion in the case of Turner v. Williams (194 U. S. 279, 295), made the following pointed observations with respect to the rights of the State as reserved by the tenth amendment:

While undoubtedly the United States as a Nation has all the powers which inhere in any nation, Congress is not authorized in all things to act for the Nation, and too litle effect has been given to the tenth article of the amendments to the Constitution, that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The powers the people have given to the General Government are named in the Constitution, and all not there named, either expressly or by implication, are reserved to the people and can be exercised only by them, or upon further grant from them.

The well-known case of Lane County v. Oregon (7 Wall, 74 U. S. 71, 76) declares:

Both the States and the United States existed before the Constitution. The people, through that instrument, established a more perfect union by substituting a National Government, acting, with ample power, directly upon the citizens, instead of the Confederate government, which acted with powers, greatly restricted, only upon the States. But in many articles of the Constitution the necessary existence of the States, and, within their proper spheres, the independent authority of the States, is distinctly recognized. To them nearly the whole charge of interior regulation is committed or left; to them and to the people all powers not expressly delegated to the National Government are reserved. The general condition was well stated by Mr. Madison in the Federalist, thus: "The Federal and State Governments are in fact but different agents and trustees of the people, constituted with different powers and designated for different purposes."

It is thus recognized that the Federal and States Government each have their respective fields of control within which each is supreme and independent of any regulation or control by the other and subject only to the applicable constitutional limitations. In considering any such question of regulation as is here presented, it is important first to ascertain whether the subject of the proposed regulation is within the field set apart as that of exclusive Federal jurisdiction or within the field set apart as that of exclusive State control, as those fields are outlined by the Constitution and as they have been more specifically described by the decisions interpreting and applying the Constitution. In this instance that question presents little difficulty. The proposed bill undertakes to regulate and supervise the mining of coal. But the mining of coal is not commerce; it is a purely local business. The mining of coal is within the exclusive jurisdiction of the States; it is not within the field of the powers delegated to the Federal Government.

If there exists in the mind of the members of this committee any doubt as to the correctness of the statement just made, a reference to a few decisions of the Supreme Court will demonstrate to the satisfaction of all that the mining of coal is not a matter within the direct control of the Federal Government under our Constitution as it now stands.

In the case of Heisler v. Thomas Colliery Co., 260 U. S. 245, the Supreme Court directly decided that the mining of coal is not interstate commerce. In that case the State of Pennsylvania had levied a tax upon each ton of coal mined and provided that the tax should attach when the coal had been subjected to certain preparation and was ready for shipment or market. The claim was made that the tax

28181-29-PT 210

levied by the State imposed a burden upon interstate commerce and it was therefore unconstitutional and void. The court stated the contention of the parties objecting to the tax in the following language:

It is that the products of a State that have, or are destined to have, a market in other States, are subjects of interstate commerce, though they have not moved from the place of their production or preparation.

The court then said:

The reach and consequences of the contention repel its acceptance. If the possibility or, indeed, certainty of exportation 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 unpicked, the cotton and wheat ungathered, hides and flesh of cattle yet "on the hoof," wool yet unshorn, and coal yet unmined, because they are in varying percentages destined for and usually to be exported to States other than those of their production.

In Hammer v. Dagenhart (247 U. S. 251, 272) the Supreme Court said:

The making of goods and the mining of coal are not commerce, nor does the fact that these thing are to be afterwards shipped or used in interstate commerce, make their production a part thereof.

Again the Supreme Court declared, in a case involving the mining of coal, United Mine Workers v. Coronado Co. (259 U. S. 344, 407): Coal mining is not interstate commerce, and the power of Congress does not extend to its regulation as such.

In another case, that of the Delaware, Lackawanna & Western Rail v. Yurkonis (238 U. S. 439, at 444) the question was whether a coal miner employed by the defendant railroad company which owned a coal mine, who had been injured by the premature explosion of a charge of powder being prepared for loosening the coal from the seam, was injured in interstate commerce and whether he could therefore recover under the employers' liability act. The Supreme Court held that the miner so injured was not engaged in interstate commerce. On this point it said:

The averments of the complaint as to the manner of the receiving of the injury by plaintiff showed conclusively that it did not occur in interstate commerce. The mere fact that the coal might be or was intended to be used in the conduct of interstate commerce after the same was mined and transported did not make the injury one received by the plaintiff while he was engaged in interstate commerce. The injury happening when plaintiff was preparing to mine the coal was not an injury happening in interstate commerce, and the defendant (the railroad company which owned and operated the mine for the sole purpose of obtaining railroad fuel) was not then carrying on interstate commerce, facts essential to recovery under the employer's liability act.

The same conclusion has been stated by the Supreme Court with respect to the mining of ore in the case of Oliver Iron Co. v. Lord (262 U. S. 172), a case involving the tax levied by the State of Minnesota on the business of mining iron ore. An attempt was made to have the tax declared unconstitutional on the ground that it was in conflict with the commerce clause. The court said: