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The proponents of the pending bill do not rest their claim of Federal power on the ground that the mining of coal is interstate commerce. There appears to be no dissent from the proposition that the mining of coal is not interstate commerce but is purely local business within the jurisdiction of the several States, a jurisdiction of the several States, a jurisdiction expressly reserved to them by the tenth amendment.

It is not necessary at this time to attempt to draw the line at which interstate commerce begins when coal is sold and shipped to consumers in States other than that in which it is mined. It is clear that the pending bill imposes Federal control and supervision upon the mining of coal.

Because the bill attempts to regulate and supervise the mining of coal, we submit that it is unconstitutional, being beyond any power expressly delegated to the Federal Government and, further, as being in contravention of the tenth amendment, which expressly reserves to the several States all powers not delegated to the Federal Government.

EMPLOYER-EMPLOYEE RELATIONS IN THE MINING OF COAL ARE NOT

SUBJECT TO FEDERAL CONTROL

The proposed bill is also unconstitutional in that it attempts to regulate the relations between employers and employees engaged in a business which is not interstate commerce. That the Federal Government may not regulate all employer-employee relations of corporations, even though they are engaged in part in interstate commerce, has been expressly held by the Supreme Court in the first Employers' Liability case (207 U. S. 463), from which a quotation in point has already been given. The pending bill manifestly attempts to bring all employer-employee relations in the coal-mining industry under Federal control. There is no pretense of limiting such control to that part of the corporate business which may constitute interstate commerce. The object is clearly to include the miner of coal, and all other employees engaged in the mining operations. This point alone makes the bill unconstitutional, under the decision of the Supreme Court in the Employers' Liability case.

CONGRESS MAY NOT DO BY INDIRECTION WHAT IT CAN NOT DO DIRECTLY

There seems to be a unanimity of opinion among both the proponents and opponents of the bill, that if Congress undertook by direct action to regulate and control the subject of the proposed legislation, such effort would be declared unconstitutional. However, the proponents of the bill argue that by adopting an indirect method through a system of issuing licenses to engage in interstate commerce, the desired results can be accomplished and the constitutional restrictions thus escaped. The proponents of the bill through their spokesman, Mr. John L. Lewis, frankly state:

The method of dealing with the subject through the license and regulation of corporations engaged in shipping and selling soft coal in interstate and foreign commerce, was resorted to because of the difficulty attending the exercise of congressional authority over mining as such. (Transcript of hearing before committee, December 14, 1928, p. 96).

In other words, the proponents of the pending bill are attempting to do indirectly that which could not be done directly; namely, the regulation of the mining of coal and of the relations between employer and employee engaged in that business, a purely local business exclusively within the jurisdiction of the several States.

We submit that the power of Congress can not be enlarged or broadened by the adoption of an indirect method. The cases of Hammer v. Dagenhart (247 U. S. 251), and the Child Labor Tax Case (259 U. S. 20), so hold. As was aptly stated by former Chief Justice White in a concurring opinion in Pullman Company v. Kansas (216 U. S. 56, 70):

The controlling influence of the Constitution may not be destroyed by doing indirctly that which it prohibits from being done directly.

In the case of Frost Trucking Co. v. R. R. Commission (271 U. S. 583, 593) the court was considering a State statute which by a method quite similar to that adopted in the pending bill undertook to accomplish by indirection results which could not have been accomplished directly. The court's vigorous condemnation of the effort to circumvent the Constitution applies with full force to the pending bill. The court there said:

There is involved in the inquiry not a single power, but two distinct powers. One of these the power to prohibit the use of public highways in proper casesthe State possesses; and the other—the power to compel a private carrier to assume against his will the duties and burdens of a common carrier-the State does not possess.

I might say that that case involved an attempt of the State of California to regulate trucking by motor on the highways of California. And they provided that no corporation should have the privilege of engaging in a motor trucking business unless it became a public carrier and subjected itself to regulation as a public carrier. And they proposed to enforce that by a system of licenses, a condition of issuance of license being that the trucking company agreed to become a public carrier; that is, to carry for anyone who might offer goods at the same rates.

It is clear that any attempt to exert the latter, separately and substantively, must fall before the paramount authority of the Constitution. May it stand in the conditional form in which it is here made? If so, constitutional guaranties, so carefully safeguarded against direct assault, are open to destruction by the indirect but no less effective process of requiring a surrender, which, though in form voluntary, in fact lacks none of the elements of compulsion. Having regard to form alone, the act here is an offer to the private carrier of a privilege, which the State may grant or deny, upon a condition, which the carrier is free to accept or reject. In reality, the carrier is given no choice, except a choice between the rock and the whirlpool an option to forego a privilege which may be vital to his livelihood or submit to a requirement which may constitute an intolerable burden.

It would be a palpable incongruity to ke down an act of State legislation, which, by words of express divestment, seeks to strip the citizen of rights guaranteed by the Federal Constitution, but to uphold an act by which the same result is accomplished under the guise of a surrender of a right in exchange for a valuable privilege which the State threatens otherwise to withhold. It is not necessary to challenge the proposition that, as a general rule, the State, having power to deny a privilege altogether, may grant it upon such conditions as it sees fit to impose. But the power of the State in that respect is not unlimited; and one of the limitations is that it may not impose conditions which require the relinquishment of constitutional rights. If the State may compel the surrender of the constitutional right as a condition of its favor, it may, in like

manner, compel a surrender of all. It is inconceivable that guaranties embedded in the Constitution of the United States may thus be manipulated out of existence.

The language just quoted constitutes an unanswerable denial of the existence of any indirect method by which Congress could accomplish the results here sought. It supports with forceful and unanswerable logic the proposition that Congress may not do by indirection what it can not do directly.

The foregoing objections relate to the absolute lack of power in Congress over the subject matter of the pending legislation. These objections can not be overcome by any amendment or modification of the bill. No power exists in Congress to regulate or control the mining of coal or employer-employee relations in the coal mining industry. The only manner in which congressional power can be extended to those subjects is by constitutional amendment.

OTHER OBJECTIONS

- There are also a number of other objections to the pending bill, the more important of which are summarized as follows:

(a) The bill is unconstitutional because it attempts to fix the price of coal. The business of mining coal is not impressed with the public interest(Wolff Co. v. Industrial Courts, 262 Ù. S. 522; Tyson & Bro. v. Banton, 273 U. S. 418; Williams v. Standard Oil Co., decided January 2, 1929.) Neither the State nor the Federal Government has power to fix prices for commodities or services in a business which is not affected with the public interest. (Same cases as above cited.) Tyson v. Banton so held. The legislative declaration alone can not establish that a business is affected with a public interest. Even if it were affected with the public interest, the regulation thereof would be within the jurisdiction of the State in which the business was carried on and not within the jurisdiction of the Federal Government., As we have already shown, the fact that a business may be impressed with the public interest, is not ground for Federal jurisdiction.

(6) The bill is unconstitutional because it attempts to control contracts between employer and employee in an intrastate business. A Federal statute (act of June 1, 1898, 30 Stat. 424), making it a crime to discharge an employee of an interstate carrier on the ground that he was a member of a labor organization, was held unconstitutional in contravention of the fifth amendment. (Adair v. United States, 208 U. S. 161, 174–180.) The right of an employer and employee to make such contract of employment, with relation to membership or nonmembership in labor unions, is a right protected by the Constitution and neither the State nor the Federal Government can constitutionally deprive either of that right. (Smith v. Texas, 233 U. S. 630; Coppage v. Kansas, 236 U. s. 1, 20-21; Hitchman Coal & Coke Co. v. Mitchell, 245 U. S. 229, 251.) In the last case cited the court said:

This court repeatedly has held that the employer is as free to make nonmembership in a union a condition of employment as the workingman is free to join the union, and that this is a part of the constitutional rights of personal liberty and private property, not to be taken away even by legislation unless through some proper exercise of the paramount police powers.

Here, again, even if this were an appropriate occasion for the exercise of the paramount police powers, the regulation of contracts relating to the mining of coal would necessarily be lodged in the State and not in the Federal Government.

(c) The bill is unconstitutional because it is class legislation and that it sets up a limited exemption from the antitrust law, applicable only to bituminous-coal mining and not applicable to all persons similarly situated. (Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 558, 564), in which the court said:

We conclude this part of the discussion by saying that to declare that some of the class engaged in domestic trade or commerce shall be deemed criminals if they violate the regulations prescribed by the State for the purpose of protecting the public against illegal combinations formed to destroy competition and to control prices, and that others of the same class shall not be bound to regard those regulations but may combine their capital, skill, or acts to destroy competition and to control prices for their special benefit, is so manifestly a denial of the equal protection of the laws that further or extended argument to establish that position would seem to be unnecessary.

While the foregoing case arose under a State law, the same reasoning that held such law in violation of the fourteenth amendment would declare a similar law passed by the Federal Congress to be in violation of the fifth amendment.

Any modification of the antitrust laws to permit or facilitate cooperative action of separate units should apply generally, and not to a single industry such as bituminous coal producing, only one of several kinds of competing fuels. This subject is now under consideration by a number of organizations, including the American Bar Association. Doubtless proposals will soon be presented, if they have not already been, for general legislation, offering the opportunity to all industry to form marketing organizations.

(d) The bill is unconstitutional because no standard is prescribed for the conduct of the commission or the industry. The bill delegates to the commission the authority to fix maximum prices without specifying any standards, and provides that the mining and commerce of licensees shall be supervised, without defining the character or extent of such supervision. Legislation in which Congress itself fails to prescribe the standard by which a commission shall be governed, is void and unconstitutional. Field v. Clark (143 U. S. 649, 692-694), Wichita Railroad & Light Co. v. Public Utilities Commission (260 U. S. 48, 58), Union Bridge Co. v. United States (204 U. S. 364, 386–388), United States v. Grimaud (220 U. S. 506), are some of the leading cases on that subject, which is a very familiar subject to all of us.

(e) The bill is unconstitutional because it is vague and indefinite and proposes to punish criminally without defining the crime with sufficient definiteness and certainty to constitute due process of law within the meaning of the fifth amendment, and to inform the defendant of the nature and cause of the accusation brought against it within the meaning of the sixth amendment. United States v. Cohen Grocery Co. (255 U. S. 81), Connally v. General Construction Co. (269 U. Š. 385, 391–392), holding that the requirement that a contractor pay his employees" not less than the current rates of per diem wages in the locality where the work is performed," was so indefinite and uncertain as to make the statute unconstitutional and void. A like rule applies to statutes which do not impose criminal penalties but simply define civil duties. (Small Company v. American Sugar Refinery, 267 U. S. 233.)

It should not be forgotten that there already exist Federal statutes affecting the bituminous coal industry. Paragraphs 15, 16, and 17 of section 1 of the interstate commerce act (Ŭ. S. Code 49, sec. 1), grant ample powers to the Interstate Commerce Commission to control interstate movement of bituminous coal, as well as other commodities, in times of emergency due to shortage of equipment, congestion of traffic, or any other cause. Through priority orders, authorized by this legislation, the Interstate Commerce Commission can effectively govern the distribution of coal in interstate commerce when such control is needed. The validity of that provision of the interstate commerce act has already been upheld by the Supreme Court. (Avent v. United States, 266 U. S. 127; United States v. Koenig Coal Co., 270 U. S. 512.)

The present statutes also authorize the Secretary of Labor to act as mediator and to appoint commissioners of conciliation in labor disputes. The Congress has provided liberal appropriations for the maintenance of this work. Such activities of the Department of Labor are, of course, on a voluntary basis, as they must necessarily be under our Constitution. Fortunately, the services of the conciliation section of the Department of Labor are not at this time required at any place in the bituminous industry, and I not only trust, but I believe, that past experiences with relation to suspensions have been such that peace will continue to prevail between bituminous coal operators and their employees.

We have shown that the principal objects of the bill, namely, to snbject to Federal control the mining of coal and the employeremployee relations in that industry are beyond the Federal power; that such Federal control can not be constitutionally imposed on these subjects directly; and that such Federal control can not be accomplished by the indirect method employed in the pending bill or by any other method. These objections go to the fundamental proposition that what this bill seeks to accomplish is beyond the reach of Federal power. We respectfully submit that the pending bill is unconstitutional and that any other bill that might be framed for the accomplishment of like objects would also be unconstitutional.

Senator COUZENS (presiding). Does that conclude your witnesses.
Mr. GREEVER. That is all, Senator.
Senator COUZENS. Are you ready, Mr. Warrum?

Mr. WARRUM. Why, Mr. Chairman, the statement was made that they would take about 15 minutes this morning; now they have occupied until half past 11. We would prefer to go on at some time when we could get through with our statement.

Senator COUZENS. We have not got an indeterminate time to spend on this. You could go on for 30 minutes.

Senator WHEELER. I do not think he should be compelled to go on if he does not desire to. If we adjourn until morning and you began, could you get through?

Mr. WARRUM. Yes; but I understood we were to get two forenoons. Senator WHEELER. That is what you were to get.

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