Mr. BELCHER. Well, I will answer that question by asking one. Suppose

Senator GLENN. I do not want

Mr. BELCHER. Well, let me make a hypothetical case then. Suppose I have a coal mine, a thousand acres of coal lands in West Virginia, and I am mining and producing coal. And under the laws of that State I am doing a legitimate business; I am doing a legitimate business not only under the laws of that State but under the laws of the Government. Is there any power in Congress or in any agency of the Government to say to me that I can not sell a thousand tons of coal to you, living in Washington? Is there any power in Congress to say to me: You can not ship that thousand tons of coal to Senator Glenn in the city of Washington "?

Senator GLENN. Well, that is a question to be decided.

Mr. BELCHER. It has been so often decided that I say the question is not any longer open to argument.

Senator GLENN. That is not the question I asked at all. I ask the question, Whether or not all these objections do not apply to the commodity of transportation now? If a railroad company's rates are not fixed, and the territory in which they can build their lines and carry on their business is not fixed, if they do not have to get a permit?

Mr. BELCHER. Certainly, that is true, because you have absolute control of that, but you have not any control of my business. There is the difference.

Senator GLENN. Not at all.

Senator SMITH. Is not the point that you are making, that one is impressed with the public character, and the other is a private character?

Mr. BELCHER. Certainly; the one (the mine) is a private business, and the other is a public utility over which Congress has the supreme power to regulate. That is the distinction, and it is so plain, it seems to me, by the authorities, that it is not open to argument. I say that with all due respect.

Senator SMITH. I had not been paying strict attention, but I thought that you had predicated the quotation that you last made here upon the assumption somewhere in your brief that this business was not impressed with the public use.

Mr. BELCHER. I say it is not, and therefore, not being impressed with the public use, Congress has no power to deal with it because it is a matter of local regulation by the States. And that Congress has no power to forbid or restrict commerce in coal or in any other commodity which is not impressed with a public use.

Senator SMITH. On page 6 of your brief, which you have already read, the thing that seemed to be the crux of the argument that you are making caught my attention. That seemed to be the crux of your argument.

Mr. BELCHER. Yes, sir.

Senator SMITH. I quote from the brief which you are reading from. You state:

As hereinbefore stated, this proposed legislation, if effective for practical purposes, would prevent or forbid the movement in interstate commerce of surplus coal production amounting, as hereinbefore stated, to approximately 40 per cent, and we say that Congress has no power to forbid interstate commerce in bituminous coal, because it is not impressed with a public use.

Mr. BELCHER. That is my point exactly, and the Supreme Court has so held. And later on I will cite the cases upon which that proposition has been definitely determined, in our opinion, by the Supreme Court.

Senator SACKETT. Is there no ground at all upon which they could be impressed with public use?

Mr. BELCHER. I think not.

Senator SACKETT. Suppose that the methods were wasteful of natural resources. Could Congress in any way apply any power or authority toward conserving it?

Mr. BELCHER. No; I unhesitatingly say not under our Constitution The Constitution may be amended.

now.

Senator SACKETT. No; but I mean under the present Constitution? Mr. BELCHER. No; I say no.

Senator SACKETT. Is there no public use in the continuance of a great natural resource?

Mr. BELCHER. Not under our Constitution for this reason. The Government of the United States does not own a pound of coal in the State of Kentucky or in the State of West Virginia, and has not any power to deal with it, and under the holding of the Supreme Court it is a matter of local regulation. And just as they said in the Child Labor case that I read before you came in, SenatorSenator GLENN. I know that case.

Mr. BELCHER (reading). "The far-reaching result of upholding the act-" that is where they said that goods manufactured, wherein children participated in the manufacture, could not be shipped in interstate commerce, and they held there that that was purely a local regulation of the State. And the court in the quotation that I have read says this:

The far-reaching result of upholding the act can not be more plainly indicated than by pointing out that if Congress can thus regulate matters entrusted to local authority by prohibition of the movement of commodities in interstate commerce, all freedom of commerce will be at an end and the power of the States over local matters may be eliminated, and thus our system of Government be practically destroyed.

Senator GLENN. Of course they do regulate the flow of electric power from one State to another.

Mr. BELCHER. That is interstate commerce in electric power over which Congress has authority.

Senator GLENN. What is your idea of distinction between power generated perhaps from a water plant or water power, and power generated from coal?

Mr. BELCHER. Well, Senator, I will tell you why. Because Congress has control over the navigable streams of the United States. Congress never surrendered that power.

Senator GLENN. Suppose the stream is not navigable. Most of the power comes from streams that are not navigable.

Mr. BELCHER. Then I say that if it is not navigable the State of West Virginia could empower a power plant to do business and so long as it confines its business within West Virginia Congress could not put its finger in it.

Senator GLENN. Suppose you run it across the border of the State?

Mr. BELCHER. Then you are engaged in interstate commerce, Senator?

Senator GLENN. Suppose you convey power inclosed in coal across the border? I just ask you that.

Mr. BELCHER. Well, Senator, I say this. The Supreme Court has answered that in the Delaware & Lackawanna case, that it is not interstate commerce even though it does afterwards enter into interstate commerce. But suppose, for instance, that I produced a thousand tons of coal in a day. And suppose I sell it to you at my mine, and you ship it anywhere you please. How could it be reached by this legislation?

Senator GLENN. Well, if this legislation is constitutional, if it. is legal, it could be reached in a great many ways.

Mr. BELCHER. Well, it will be a long time I think before that conclusion is reached.

Senator GLENN. Well, I am not expressing any opinion.
Mr. BELCHER. I understand.

Senator GLENN. I haven't any.

Senator SACKETT. You do not think then that the fact that wasteful methods are used for procuring a great natural resourceMr. BELCHER. I think it is a matter of purely local regulation. Senator SACKETT. Well, suppose the local authorities do not regulate that. Is there not such a public use and is there not such a public interest in the material that it ought to be preserved to posterity instead of mining it in a method that wastes 40 per cent of it? Mr. BELCHER. Senator

Senator SACKETT. Wait a minute. I had not finished.

Mr. BELCHER. I beg your pardon.

Senator SACKETT. If it was mined in a way that wasted 40 per cent of it, and it ought to be mined in a way that would lose only 10 per cent of it. Now is there not a public interest there in that which has not yet been passed upon by the courts so that it is possible of a construction of that kind?

Mr. BELCHER. The question of what ought to be—

Senator SACKETT. No; not a question of what ought to be.

Mr. BELCHER. Of what can be under our Constitution and the laws, is quite a different proposition. I say to you that if West Virginia as a sovereign State would permit its coal mines or people producing coal to mine only 50 per cent or 40 per cent or 30 per cent of that coal, that under our Constitution and laws Congress can not put its finger on it, because it is not impressed with a public use. We have not dedicated our business to the public.

Senator SACKETT. I grant you that that is the case the way you put it, but suppose under the method that is used in West Virginia you waste and keep the general public from ever getting 50 per cent of it. Is there not a public interest in there that can be impressed upon it?

Mr. BELCHER. Not at all, under our Constitution and laws. Not at all.

2

Senator SACKETT. And you rely upon that child labor case? Mr. BELCHER. Not only that, but in practically every case that the Supreme Court of the United States has decided on the proposition it is a local regulation. And we have not delegated that power,

and Congress is limited in its powers to the matters delegated by sovereign States.

Senator SMITH. Senator Sackett, may I ask you this question. That is an interesting point that you have raised. Suppose the State of West Virginia should decide, for reasons sufficient to herself, not to mine any coal at all, would the Federal Government have the right to invade the territory and open the mines?

Mr. BELCHER. If there were a national crisis

Senator SACKETT. Well, it might have the right to declare that such an act of the West Virginia Legislature was unconstitutional. Mr. BELCHER. I beg your pardon. I thought the Senator was asking me a question.

Senator SMITH. No; I was asking Senator Sackett the question. Senator SACKETT. I will put it this way: Suppose the people of West Virginia allowed all the gas in its natural gas wells to escape into the air. Now, is that not such a waste of the natural resources that the Federal Government would be warranted, in the interest of the general public, in saying that this is a matter of such moment to the whole people that it must be taken care of by the Federal Government? Is there not a new feature there which has not been passed upon by the courts as yet?

Mr. BELCHER. No.

Senator SMITH. Would not the logic of that situation ultimately justify us under the Constitution in having compulsory production of certain things that might inure to the benefit of the public? It seems to me that that is going a pretty good way, because you speak of natural resources. The aggregate is a natural resource. But the separate units are owned by the separate sovereigns of the country and under their jurisdiction, it seems to me.

Mr. BELCHER. May I proceed?

Senator COUZENS (presiding). Proceed.

Mr. BELCHER. If his prices do not suit the coal commission he must accept such prices as it dictates, subject to review in the courts, which of necessity must require much time. Even after he has obtained a license his prices are liable to be upset on complaint of the commissioner or any dealer or consumer. If occasion should arise for a change in price, he can make the change only after application to the commission, for which much time is necessary. His prices must be uniform over the State, save in so far as affected by freight rates. Local conditions or other considerations which might call for a difference in prices at different localities can not be considered. He can make no better prices to quantity purchasers than to the smallest consumers. If he operates in several localities he can not change his prices in one without making a similar change in every other. All of these not for the protection of the consuming public but for the protection of other coal producers at the expense of the public. In short, freedom of contract so far as concerns the quantity produced and the price at which coal is to be sold, is completely taken away, as well stated in Wolff Packing Co. v. Court (262 U. S. 537):

It has never been supposed-

And this answers, I think, Senator Sackett's question propounded to me a few moments ago—

since the adoption of the Constitution, that the business of the butcher, or the baker, the tailor, the wood chopper, the mining operator, or the miner was clothed with such a public interest that the price of his product or his wages could be fixed by State regulation.

Can not even do it in sovereign States. [Continuing reading:]

It is true that in the days of the early common law an omnipotent Parliament did regulate prices and wages as it chose, and occassionally a colonial legislature sought to exercise the same power; but nowadays one does not devote one's property or business to the public use or clothe it with a public interest merely because one makes commodities for, and sells to, the public in the common callings of which those above mentioned are instances.

Senator SACKETT. Well, of course, the pure food act takes care of the butcher all right.

Mr. BELCHER. Well, on the question of public health and public morals; in that Congress has the right.

Senator SACKETT. The point that I was raising with you-and I did not want to make any more than a suggestion

Mr. BELCHER. I understand that.

Senator SACKETT (continuing). Was that if there was a public use and the question of public health and morals which would enable the pure food act to apply, might there not be a public use to preserve the existence of the article itself?

Mr. BELCHER. Why, if it is impressed with a public use, Senator, I would say Congress has the right.

Senator SACKETT. How do you get it impressed with the public use unless you have an interest that the public has in it?

Mr. BELCHER. It is not impressed with the public use unless you dedicate it to the public or from the nature of your business it becomes public instead of private.

Senator SACKETT. That is the very point I am making. The nature of the business is one which under certain methods of mining becomes so wasteful that you are liable to dissipate a great public necessity. Now, is that not a warrant, just the same as the public health is a warrant

Mr. BELCHER (interposing). Oh, no.

Senator SACKETT (continuing). To enable you to come in to get public control of a business to a certain extent; not to a large extent, but enough to offset the difficulty that obtains there?

Mr. BELCHER. I say no. I do not think the cases are analogous at all. And I would go on record, and I am going on record with that bald statement of my position, which I think is amply sustained by all the authorities.

In the case of Butcher's Union v. Crescent City (111 U. S. 757, 28 L. Ed. 590) the court said:

The common business and callings of life, the ordinary trades and pursuits which are inocuous in themselves and have been followed in all communities from time immemorial, must, therefore, be free in this country to all alike upon the same conditions. The right to pursue them without let or hindrance, except that which is applied to all persons of the same age, sex, and condition, 'is a distinguishing privilege of citizens of the United States, and an essential element of that freedom which they claim as their birthright

*

In Tyson v. Benson (273 U. S. 430), citing Cotting v. Godard (183 U. S. 112), it is stated-and, Senator Sackett, I want to call your attention to this case, because it is right on the point that we are discussing: