Mining is not interstate commerce but, like manufacturing, is a local business subject to local regulation and taxation. (Kidd v. Pearson, 128 U. S. 1, 20; Capital City Dairy Co, v. Ohio, 183 U. S. 238, 245; Delaware, Lackawanna & Western Railroad Co. v. Yurkonia, 238 U. S. 439, 444; Hammer v. Dagenhart, 247 U. S. 251, 272; United Mine Workers v. Coronada Coal Co., 259 U. S. 344, 410.) Its character in this regard is intrinsic, is not affected by the intended use or disposal of the product, is not controlled by contractual engagements, and persists even though the business be conducted in close connection with interstate commerce. (Cornell v. Coyne, 192 U. S. 418; Browning v. Waycross, 233 U. S. 16, 22; Delaware, Lackawanna & Western Railroad Co. v. Yurkonis, supra; General Railway Signal Co. v. Virginia, 246 U. S. 500; Hammer v. Dagenhart, supra; Arkadelphia Milling Co. v. St. Louis Southwestern Railway Co., 249 U. S. 134, 151; Crescent Cotton Oil Co. v. Mississippi, 257 U. S. 129, 136; Heisler v. Thomas Colliery Co., 260 U. S. 245.)

If more were needed, many additional cases are to be found in the reports of the Supreme Court of the United States holding that manufacture is not commerce. Among these cases are the following: Coe v. Errol (116 U. S. 517); Kidd v. Pearson (128 U. S. 1); Arkadelphia Milling Co. v. Railway Co. (249 U. S. 134, 151– 152); Crescent Cotton Oil Co. v. Mississippi (257 U. S. 129, 136); McCluskey v. Marysville Railway Co. (243 U. S. 36, 38); Diamond Glue Co. v. United States Glue Co. (187 U. S. 611, 616); Capital City Dairy Co. v. Ohio (183 U. S. 238, 245); United States v. Knight (156 U. S. 1, 12–13).

As we read the bill pending before this committee, it bases the exercise of Federal control over certain classes of corporations on the consent of the corporation engaged in the mining of coal. It proposes an agreement between such corporations and the Federal Government by virtue of which the Federal Government will acquire control over the mining of coal, a control which it does not now have, and that through this agreement sanctioned by an act of Congress the several States will be ousted from the jurisdictions they now have over the mining of coal carried on within their respective borders. No thought appears to have been given to the question of obtaining the consent of the States, which now have and exercise the exclusive jurisdiction to regulate coal mining. The States and their various legislative enactments and regulatory bodies governing coal mining within their borders are completely ignored. The statute proposes a usurpation by the Federal Government of the State's power through a collusive contract between coal-mining corporations and the Federal Government, to which the State is not to be a party.

The State of West Virginia does not propose to surrender its constitutional control over the mining of coal within its border. She challenges the authority of the Federal Government to make an agreement with the individuals or corporations by which the State is ousted from a jurisdiction which was never delegated to the Federal Government.

Senator SACKETT. Your brief is limited to the consideration of the right under the commerce clause. Have you considered the question at all whether the Federal Government has any right to come in under the general welfare clause on the subject of conservation?

Mr. LIVEZEY. I have not discussed that, of course, in the remarks I have made to the committee.

Senator SACKETT. It has no relation to this bill, I grant you that, but I was wondering if you had ever considered whether the general welfare clause would authorize Congress coming in on the theory that conservation was promotive of the general welfare?

Mr. LIVEZEY. I can not conceive that the general welfare clause could be construed to embrace the objects of this bill.

Senator SACKETT. Not the objects of this bill. I am not saying that. But could it be construed to embrace the general idea of conservation of natural resources?

Mr. LIVEZEY. I think not. I have not studied that feature of it. Senator SACKETT. No; that has nothing to do with this bill.

Mr. LIVEZEY. With my limited knowledge and understanding of that clause I do not think that it could be.

Senator COUZENS (presiding). Have you any more witnesses, Mr. Greever?

Mr. GREEVER. Mr. Chairman, Mr. Loos, general counsel for the National Coal Association, is finishing his paper on the legal aspect of the case. He had no idea that we would have any time left this morning or he might possibly have steamed up and have been ready. But it was thought that it would be a hard thing to get through here with Mr. Livezey and myself. So he was not present. His presentation will not take long.

Senator COUZENS. How long?

Mr. GREEVER. I should say 30 minutes, and we would like to ask, of course, that he be heard the first thing Monday morning. Now I understand that Mr. Warrum naturally claims that Monday and Tuesday were set aside for them.

Mr. WARRUM. That was the agreement, Mr. Chairman, that they would finish on Saturday, and that we would have Monday and Tuesday, up until noon Tuesday, the chairman himself fixing the time. They have had a week, and with the understanding that I think the chairman recalls, it seems to me that Mr. Loos could have been over here this morning, at least in attendance.

Senator COUZENS. The Chair would like to say that it was only a tentative agreement at best, and was arranged for the purpose of wiring to someone who asked when we were going to conclude the hearings, and we tried to arrange to get them through by Tuesday

noon.

Mr. WARRUM. Might I then respectfully ask the chairman if the fixing of Tuesday at noon for the conclusion of this argument is also tentative?

Senator COUZENS. Oh, that was all we could do, because we did not intend to foreclose anybody from being heard.

Mr. GREEVER. I did not understand that it was a hard and fast rule.

Mr. WARRUM. We want to have our time, that is all.

Mr. GREEVER. I did not understand that there was anything hard and fast fixed by that. That we were all trying to estimate the time. Senator COUZENS. The other side will have the two mornings that they require. That was the understanding. They will have two mornings. And if they require to run over Tuesday noon the committee will not object.

Mr. GREEVER. Well, we will not object, of course.

Senator COUZENS. Then there are no more witnesses this morning? Mr. GREEVER. No more this morning.

Senator COUZENS. You do not wish to say anything this morning [addressing Mr. Warrum]?

Mr. WARRUM. We would rather they would get through before

we go on.

Mr. GREEVER. All right.

Senator COUZENS (presiding). Then we will adjourn until 10 o'clock Monday morning.

(Thereupon at 11.20 a. m., Saturday, January 19, 1929, an adjournment was taken until 10 o'clock a. m., Monday, January 21, 1929.)

BITUMINOUS COAL COMMISSION

MONDAY, JANUARY 21, 1929

UNITED STATES SENATE,

COMMITTEE ON INTERSTATE COMMERCE,

Washington, D. C.

The committee met at 10 o'clock a. m., in Room 335, Senate Office Building, pursuant to adjournment on Saturday, January 19, 1929, Senator James Couzens presiding.

Present: Senators Couzens, Fess, Sackett, Wheeler, and Glenn. Senator SACKETT (presiding). The committee will come to order. Some of the other members will be here shortly. You may proceed. Mr. GREEVER. Mr. Chairman, Mr. Loos, of the firm of Butler, Lamb, Foster & Pope, general counsel for the National Coal Association, desires to make a statement.

Senator SACKETT (presiding). All right. We will be glad to hear him.

Mr. Loos. Mr. Chairman, my name is Karl D. Loos, a member of the firm of Butler, Lamb, Foster & Pope, of Chicago, Ill., and Washington, D. C., and I appear before your committee this morning representing the National Coal Association.

Senator SACKETT. How long a time do you expect to occupy? Mr. Loos. Mr. Chairman, I do not know how long it will take, but I think it will require about one hour to present my statement. Senator SACKETT. Whatever time is taken in this statement you understand the same amount of additional time is to be given to the other side. I understand that is the arrangement, that their time is to be extended that much.

Mr. WARRUM. If this statement will take an hour, which will be about half past 11, we would prefer not to cut in for the short time remaining to-day.

Senator SACKETT. You would prefer to take Tuesday and Wednesday?

Mr. WARRUM. Yes, Mr. Chairman.

Senator SACKETT. That will be all right. Now, Senator Couzens, will you take the chair?

Senator COUZENS (presiding). You may proceed.

STATEMENT OF KARL D. LOOS, OF THE FIRM OF BUTLER, LAMB, FOSTER & POPE, GENERAL COUNSEL OF THE NATIONAL COAL ASSOCIATION, CHICAGO, ILL.

Mr. Loos. I will first undertake a direct answer to the argument advanced by Mr. Warrum in support of the constitutional power of Congress to enact the legislation in the bill pending before your

committee.