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be mined and sold in interstate commerce, is unsound because such right on the part of a State is limited instead of being absolute. (Fidelity Deposit Co. v. Tefoya, 270 U. S. 426; Frost v. Railroad Commission, 271 U. S. 583.) (R. 162, 166.) Any law giving the arbitrary right to withhold a license is unconstitutional. (Houvouras v. Huntington. 110 S. E. 692.) Such is the pending bill if it is to be effective, for unless the commission may refuse licenses, it could not restrict production, which is one of the objects of the bill. (R. 162, 163.)

Neither Congress nor any State can empower any commission to refuse a license to anyone to earn a livelihood by legitimate labor or by legitimate industry. Yick Wo v. Hopkins (118 U. S. 356), where the court said:

“For the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another seems to be intolerable in any country where freedom prevails as being the essence of slavery itself." (R. 163, 164.)

To compel one to obtain a license before continuing in the business of mining coal would destroy property and also interfere with the taxing power of a sovereign State, because the property would become worthless. It is inconceivable that such power was ever delegated to the Federal Government to thus deprive citizen of a right to do a legitimate business. (R. 164, 165.)

The bill is an arbitrary interference with the freedom of contract. In Luchner v. New York (198 U. S. 59), it was said:

"But are we all on that account at the mercy of legislative majorities? A printer, a tinsmith, a locksmith, a carpenter, a cabinetmaker, a dry-goods clerk; a bank's, a lawyer's, or a physician's clerk, or a clerk in almost any kind of business; would all come under the power of the legislature on this assumption. No trade, no occupation, no mode of earning power, and the acts of the legislature in limiting the hours of labor in all employments would be valid, although such limitation might seriously cripple the ability of the laborer to support himself and his family." (R. 166.)

Congress does not have power to fix minimum wages in the District of Columbia, where the Federal Government has direct control just as sovereign States over matters not delegated to the Federal Government. (Adkins v. Children's Hospital, 261 U. S. 526.) (R. 168.)

If Congress has the power to regulate the coal industry by regulating, restricting, or forbidding coal from entering the channels of interstate commerce, then it would have the power to control all industry, 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. 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 and growth—that is, the fruits unpicked, 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."

That is a complete answer to this legislation. (R. 168, 169.)

The proposed bill violates the freedom of contract in another important phase. Its effect is to compel all men engaged in mining coal to become members of the United Mine Workers of America, and it encourages the breaking of private contracts with their employers. A nonunion man has a constitutional right to work in mines and work as a nonunion man. Such rights can not be taken away even by legislation, and such has been held by the Supreme Court. (Hitchman case, 245 U. S. 229, 251 ; Smith v. Alabama, 124 U. S. 465; Smith v. Texas, 233 U. S. 630). (R. 169.)

The proposed legislation is not necessary and could not be passed constitutionally. Even if it were possible for the Federal Government to enter the field of private industry, to do so would be subversive and destructive of the best interests of private industry as well, and reference is made to the corn laws of England and the treatment thereof by Buckle in his History of Civilization in England. (R. 170, 171.)

If our Government enters the field of private industry, we would have a paternalistic Government which would meddle in the affairs of every private citizen. Liberty of action, private initiative, and effort in industry would be destroyed. Our present form of government would be replaced by a socialistic

*

state such as the examples of history which have always ended in miserable failure. (R. 172.)

The present condition in the coal industry is being remedied by the industry itself as rapidly as the complexity of the situation admits. The task calls for knowledge of rare character and is engaging the best thought of the business men in the industry whose ability is as good on the average as that of men engaged in other industries. Those who criticize the results do not realize what the problems have been. For example, there are too many mines and too many men engaged in the industry, but during the times of strikes in the union fields nonunion mines were opened which would not otherwise have been opened, perhaps, for years. (R. 172, 173.)

The very nature of the situation confronting the industry is the stimulus for a gigantic effort which is being made within the industry itself, and which will bring about a readjustment, progress, and contentment to those who are engaged in the industry. We have no hope of any other solution of the problem. (R. 173.)

The Central Pennsylvania Coal Producers' Association, Altoona, Pa., by its counsel, Alfred M. Liveright, of Clearfield, Pa.:

The primary purpose of the bill, as shown by sections 7 and 10, is to benefit the United Mine Workers of America. If its purpose was to aid the industry it would not make it subject to such regulatory supervision, but would give this industry the same freedom as is accorded other great industries and as is guaranteed to the mine workers themselves. In other instances sanctioning a departure from the stringent prohibitions of the antitrust laws the interest favored has not been bound by requirements to submit itself to summary regulation or to be restricted by licenses. (R. 101, 102.)

One of the primary objects is to control the price of coal, an object which is in violation of the fifth amendment, for, if followed to its logical conclusion, it deprives persons of their property without due process of law. The coal business, in which there is such a widespread competition, is not affected with the public interest, as contemplated by the authorities which permit price fixing. (Tyson v. Banton, 273 U. S. 418, and other cases.) (R. 102, 103.)

Decisions upholding governmental price regulation, aside from cases involving legislation to tide over temporary emergencies, have turned upon the existence of conditions peculiar to the business under consideration, which bear such a substantial and definite relation to the public interest as to justify an indulgence of the legal fiction of a grant by the owner to the public of an interest in the use. Gasoline has as wide distribution as does coal, and the same principles applied to gasoline in the Williams v. Standard Oil Co. case, decided by the United States Supreme Court January 2, 1929, are applicable to coal. (R. 103, 104.)

The proposed bill violates the tenth amendment and seeks to do indirectly what it can not do directly—that is, to regulate the production of coal at the mines, a purely State function. (Citing cases.)

The bill is susceptible to the same criticism as that leveled at the section of the Lever Act attempting to punish criminally any person who wilfully made any unjust or unreasonable rate or charge in handling or dealing in or with any necessaries." That provision was held violative of the fifth and sixth amendments of the Constitution, which requires an ascertainable standard of guilt to be fixed by Congress and to secure to accused persons the right to be informed of the nature and cause of the accusations against them.

(United States v. L. Cohen Grocery Co., 255 U. S. 81.) (R. 105.)

The bill from beginning to end violates the maxim that Congress may not delegate its purely legislative power to a commission; that it must lay down the general rules of action under which the commission shall proceed; and that it must decree the policy of the law and fix the legal principles which are to control in given cases. (Interstate Commerce Commission v. Goodrich Transit Co., 224 U. S. 194; Wichita Railroad & Light Co. v. Public Utilities Commission, 260 U. S. 48.) (R. 106, 107.)

No standard is set by the bill for the determination of the manner or of the method in which fair return is to be measured, but everything apparently is left to the whims of the commission. The fair return and valuation sections of the interstate commerce act indicate the character of standards which such a bill should contain. (R. 107.)

In all attempts to bring about mergers and combinations of coal properties, the chief difficulty has been found in the matter of valuations. The absence of any standard of measurement of values indicates that the professions of the proponents of the bill that they are trying to work out a fair return for the coal industry are mere words. (R. 108.)

The provisions for fixing prices would create great confusion by reason of varying conditions existing in different parts of the country and varying opinions by different jurists passing on the matter. (R. 108.)

The provisions of section 7, forbidding the employer to use any “influence" on his employee, is unlawful, in conflict with the spirit of the Constitution and contrary to the principles for which the United Mine Workers of America itself has contended for years. (R. 108, 109.)

The concluding clause of paragraph 7, forbidding as a condition of employment, that the employee shall not join a labor union, is a denial of the freedom of contract guaranteed by the Constitution. (Hitchman Coal & Coke Co. case, 245 U. S. 229.) (R. 109.)

Section 8, prescribing the summary revocation of license by the commission, is a denial of due process and violates the fifth amendment, because the license acquired is a property right. (R. 109.)

Section 7, concerning railroad fuel, is unnecessary and unwise; that matter can better be handled by the Interstate Commerce Commission. The same thing is true of section 11. (R. 110.)

The Ohio Coal Operators' Association, by its general counsel, William P. Belden, of Cleveland, Ohio :

While Congress has supreme power over the transportation of coal in interstate commerce, the bill goes beyond the regulation of transportation and invades the field of production and, under the guise of interstate commerce, covers all the substantial financial management of the mines. (R. 77.)

The production of coal is not a public utility but is a privately owned enterprise. Railroads are public utilities, and when Congress regulates labor on the railroads, rates may be increased to take care of the increased expense. But Congress may not fix the price of coal which the consumer must pay. (R. 78.)

The bill is unsound economically because it introduces an element of divided responsibility between the owners and the proposed commission. The boards of directors of coal companies must be entrusted with the management of their mines and the working out of the ills of the industry just like other industries, or else Congress is faced with the proposition of taking over the industry. Such action requires a constitutional amendment. (R. 78.)

There is now State supervision of mines from the standpoint of health, ventilation, and safety; the supervision proposed in the bill relates to financial management. (R. 79.)

The powers of the Federal Government with a subject of this kind are twofold: (1) The emergency power such as was exercised during the World War; (2) to regulate interstate commerce, a power granted by the Constitution. No emergency now exists, and the bill is directed at the production of coal, not its transportation. (R. 79.).

The proposed commission is given absolute and uncontrolled discretion to grant or refuse licenses; there is no criterion and no measure for the rights which the coal people have. It is made a government of men, not a government of laws. The legislative branch can not delegate to a commission absolute power over a matter of this kind without fixing some criterion which would govern the rights of applicants. (R. 79, 80.)

The bill provides for mergers, and the tendency in various industries is toward the merging of properties; there are to-day in the coal business not more than one or two companies producing as much as 2 per cent of the total. If all the coal mines in Ohio were put together their production would not amount to more than 6 per cent of the national output, and all the mines in West Virginia would not have one-third of the production. (R. 82.) Nothing in the present laws prevents consolidations or mergers under such conditions. (R. 93, 94.)

Secretary Davis said that in his opinion the merger and consolidation of coal companies would bring a solution of the coal problem. Notwithstanding this tendency on the part of the industry, the bill proposes to prohibit the consolidation of two or more coal corporations unless they surrender their right to the same freedom of management which is afforded to all these other industries. (R. 83.)

Coal companies already in business engaged in producing and shipping coal in interstate commerce, shall not be allowed to continue unless they apply for license and comply with the regulations promulgated by the commission. One of these terms involves the right of an individual to be a union man or a nonunion man, as he desires, and the right of a company to employ union labor or nonunion labor, as it sees fit, which rights have been recognized by the Supreme Court. (R. 83.)

In the exercise of their right to employ such labor as they please, the Ohio operators have changed from union to nonunion labor, with very gratifying results. That right would be surrendered under the provisions of the bill. (R. 84.)

It would throw this industry into still greater confusion to attempt to regulate it by saying to the owners that they must keep their money in them but run their mines the way they are told by the Government, although the Government has not the power to fix the prices of coal and although the Government can raise labor conditions but can not help in money receipts. The only way out, if the Government is to assume control, is through Government ownership and not Government regulation. (R. 85.)

It is inconceivable that the courts will permit this privately owned industry to be fettered, as is proposed by this bill. No such regulation is applied to steel, automobiles, corn, or wheat, although they are all intended to be shipped in interstate commerce, when produced. (R. 88.)

The fact that a product moves in interstate commerce does not give the power, under the guise of regulating interstate commerce, to extend into the field of regulating production. This kind of bill will result only in strife and litigation and intensify the very conditions that are sought to be remedied, (R. 89.)

Government ownership is not advocated. But Congress should either take its hands off this industry, which has been investigated 16 times since 1913, or take it over—buy it at the low levels of value at the present time—and then Congress can do anything it chooses with the properties. (R. 89.)

If the coal industry has the opportunity to work, undisturbed by constant investigation and interference, it will be able to right the evils of the industry. Companies are lopping off the high cost and unprofitable mines and organizing more efficiently the marketing of their coal. (R. 91.)

Investigations have been unproductive because Congress has not power to regulate the production of coal. It can not fix the price which producers must charge and which consumers have to pay. (R. 92.)

In view of the nature of the industry and the constitutional limitations upon Congress, a substitute measure can not be offered. There are only two alternatives, private management and control on the one hand or Government ownership and control on the other hand. There is no intermediate course. (R. 92.)

The National Association of Manufacturers, a brief by its counsel, James A. Emery, and its assistant counsel, John C. Gall:

That an industry is impressed with the public interest forms no basis for the assertion of congressional power. The State acquires a far-reaching jurisdiction over a corporation engaged in business devoted to the public use. But the power of Congress in this respect is not analogous to the power of a State government, since Congress derives its power from the constitutional grant, authorizing it to regulate commerce. It is fundamental that production is not commerce, and Federal power controls the regulation of the latter, but does not reach the former. (Citing cases.)

The language in Veazie v. Moor (14 Howard, U. S. 568) is equally appropriate to the proposed bill :

"A pretension as far-reaching as this would extend to contracts between citizen and citizen of the same State, would control the pursuits of the planter, the grazier, the manufacturer, the mechanic, the immense operations of the col. lieries, the mines, and furnaces of the country; for there is not one of these avocations the results of which may not become the subjects of foreign commerce, and be borne, either by turnpikes, canals, or railroads, from point to point within the several States, toward an ultimate destination." (R. 225.)

Congress can not regulate production under the guise of regulating commerce : what it may not do directly it may not accomplish by indirection. (Hammer v. Dagenhart, 247 U. S. 251.) (R. 225.)

The argument that since Congress has the power to exclude articles from interstate commerce, it follows that ('ongress may permit their shipment upon

merce.

such conditions as it sees fit, is not sound. The power to deny does not also include the power to permit on any and all terms. (R. 225.)

While a State may permit corporations to carry on their affairs within its limits upon such reasonable terms as it sees fit, the State may not impose conditions which involve the surrender of fundamental rights. (Fidelity & Deposit Co. v. Tafoya, 270 U. S. 126; Williams v. Standard Oil Co., decided January 2, 1929.) The requirement that licensees waive their rights as to control of mining and shipping argues that Congress does not now possess such power.

(R. 226.)

These requirements relate to production alone; by threatening to deny the right to engage in commerce, it is sought to have them waive their constitutional rights in respect to production. Such waiver would obviously be made under the severest form of compulsion and lacks any elements of an ordinary, binding agreement. (R. 226.)

Congress may not constitutionally extend its jurisdiction to matters of production by such a scheme of “ waivers.” The consent of a citizen can not confer upon Congress power not conferred by the Constitution. (R. 226.)

The requirements of the bill, touching employment contracts, are beyond the power of Congress. (Hitchman Coal & Coke Co. v. Mitchell, 245 U, S. 229, and Adair v. United States, 208 U. S. 161.) (R. 226–227.)

The congressional power to regulate commerce does not include the power to determine what commodities may or may not be transported in interstate com

(Hammar v. Dagenhart, 247 U. S. 251, child labor tax case; Bailey v. Drexell Furniture Co., 259 U. S. 20.) (R. 227.)

The advocates of the bill contend that while an individual has the right to engage in interstate commerce a corporation may so engage only as a matter of privilege granted by Congress. In the well-known case of In re Green (52 Fed. 104) it is said :

“Congress may place restrictions and limitations upon the rights of corporations created and organized under its authority to acquire, use, and dispose of property. It may also impose such restrictions and limitations upon the citizen in respect to the exercise of a public privilege or franchise conferred by the United States. But Congress certainly has not the power of authority under the commerce clause, or any other provision of the Constitution, to limit and restrict the right of corporations created by the States, or the citizens of the States, in the acquisition, control, and disposition of property. Neither can Congress regulate or prescribe the price or prices at which such property, or the products thereof, shall be sold by the owners, whether corporations or individuals." (R. 227–229.)

While the law recognizes many distinctions between individuals and corporations, corporations are “ persons within the terms of the Constitution and are entitled to the same protection in their ownership, use, and enjoyment of property as individuals. (In re Green, 52 Fed. 104.) (R. 228.)

A corporation is a “citizen ” of the State under the laws of which it is created, within the clause of the Constitution extending.Federal judicial power to controversies between citizens of different States. (Mississippi and R. River Boom Co. v. Patterson, 98 U. S. 403.) Corporations are “persons within the meaning of the constitutional provisions (fifth and fourteenth amendments) forbidding the deprivation of property without due process of law, as well as the provision against denial of the equal protection of the laws. (Covington & L. Turnpike Road Co. v. Sanford, 164 U. S. 578.) They also have the same immunity as natural persons from unlawful searches and seizures guaranteed by the fourth amendment. (Silverthorne Lumber Co. v. United States, 251 U. S. 385; American Tobacco Co. v. Federal Trade Commission, 264 U. S. 298; Baltimore Grain Cases, 267 U. S. 386.) (R. 228.)

The authority delegated to the commission to require maintenance of retail selling facilities at such places as the commission sees fit deprives the several States of the right to exclude a foreign corporation from doing local business and also deprives any corporation affected of its property without due process by arbitrarily subjecting it to the taxing and regulatory authority of States other than those of incorporation. (R. 228.)

Congress in enacting the proposed bill will be undertaking to fix the domestic policies of the several States in a matter over which they have exclusive jurisdiction. Such invasion of the sovereignty of the States makes the bill unconstitutional. (R. 228.)

Section 5 empowers the commission to fix maximum prices for coal, but in case the price so fixed is unreasonable the bill makes no provision either (a)

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