The Delta independent., 1922-02-24
ALLEwELT MAKES STATEMENT
REGARDING POTATO GRADING

vision Of Marketing, has prepared a
statement which he asks us to publish,
explaining the U. S. potato grading,
which we herewith publish:
At the meeting here last week the
specifications of the United States
Grades Nos. 1 and 2, which heve been
used this season were discussed, and
partically no exception was taken to
the requirements of these standards,
They are the same as those adopted
by every other state which has pro-
mulgated potato grades, some fifteen
or more states, which produced in 1921
forty per cent of the nations crop. In
addition to this they have been gene
rally adopted in commercial practice
in all parts of the country, and apply
to not less than seventy-five per cent
of the commercial shipments in the
| United States.
The Division of Marketing suggested
grade which has been requested by
many of the growers of the state. to
consist of two thirds No. / potatoes
and one third No. 2, to be known as
Colorado Grade Combination No. and
2. This grade seems to meet with the
very general approval to growers and
shippers of the state.
| 1t was explained to the meeting that
the Division of Marketing will be glad
to make any changes in the grades
which meet with the approval of, the
majority of the industry in the state,
and to make any improvements pos
sible in the inspection service, but that
even if the entire state is opposed to
it, it will be possible to terminate the
inspection work only by the repeal of
the law by the legislature.
c. ]. Moynihan, Montrose attor-
ney, has repeatedly stated to the grow
ers of the valley that House Bill 456.
the Standardization law is unconstitu-
tional. To support his statement, he
has published lengthy brief by Ex-
justice Gabbert. This opinion was
written by Gabbert in his private capa-
city as a lawyer, and not as a Judge
on the bench. Mr.. Moynihan filed a
complaint against Herbert Chase and
Magnus of Delta, for violation OF the
law. Mr. Lee w. Burgess, district at
torney, stated in letter to Mr.. Clark,
general attorney of the d. & r. G. w.
r. R., that Mr. Moynihan was en-
ployed to assist in the prosecution OF
this case. This appears queer, to say
the least, since Mr.. Moynihan has OPP
posed the law from the first. The
complain in itself was absolutely
false, since the car in question was
inspected by the Division of Market
ing. and the inspection fee paid by Mr..
Chase, who knew nothing whatever OF
the case in which he was made de-
fendent until later the court decision
was rendered. 1t has been claimed
that Judge Black, in his decision on
this case, declared the law unconsti-
tutional This is not true. Judge
Black ruled on the question OF consti-
tutionality as follows:
| THE principal contention Of counsel
for the defendants is that the act un-
der which the Information is filed Is
unconstitutional, for the reason that
the legislature attempts to delegate
the power to establish standard
The case of Butterfield against the
United States and other cases cited in
the brief OF counsel for the defen-
dants, are to the contary. In the Col
orado & Southern Railway company.
against the State Railroad Commits
sion, ct al, "a Colo, "a, at page "a, 1t
is said: In other words while 1t is
true that the General Assembly connot
delegate a power to make law, 1t
may. however, make law delegating
the power to determine some fact of
state of things upon which the law, as
prescribed, makes its action depend.
II seems to me that this is applicable
| to the law with which we are dealing;
| in other words, that the power was
delegated to determine some fact or
state of things. which is. all In my
Judgment that is done by the director
| in the establishment of standard.
In IL Corpus Juris. at page $40. the
rule is thus stated: But any power
not Legislative in character which the
Legislature may exercise 1t may dele
gate, and before court can properly
hold that statute. is void as uncon-
| stitutionally delegating legislative
power, it must clearly appear that
| the power in question is purely legis-
lative."
The case was quashed by Judge
Black because the information pre-
pared by Mr.. Moynihan was faulty
and incomplete, as 1t was no doubt IN
tended to be, since 1t appears likely
that Mr.. Moynihan could prepare
complaint in proper legal form II he
cared to do so. 1t is true that Judge
Black did criticize some parts OF the
law. but II is not true that he held any
part OF It unconstitutional.
Since 1t was stated, not only at the
A,sk
majority Of committee OF growers