Evening star., 1924-09-29
Issue Compared to That in
Daugherty Case Raised
by U. S. Senate.
NO DATE FOR HEARING
SET BY FEDERAL COURT
Testimony of Two Brotherhood Of
ficials Desired-Roads Fight
Move as Unconstitutional.
BY the Associated Press.

BY the Associated Press.
CHICAGO. September 29.-Test of
the constitutionality of clause in
the transportation act of 1920, arming
the Railroad Labor Board with power
to require testimony. was begun to-
day. The board petitioned the United
States District Court to order John Nc
Guire of Chicago and d. b. Robertson of
Cleveland to testify before the board. the
latter to fix the time and place.
Mcclure is general chairman on the
Chicago and Northwestern railroad for
the Brotherhood of Locomotive Engi-
neers. Robertson Is president of the
Brotherhood of Locomotive Firemen
and Enginemen.
The petition was filed before Judge
J. II. Wilkerson by Edwin A. Olson.
United States attorney, and Wey-
mouth Kirkland and Robert n. Gold
ing, special assistants to the United
States Attorney General No date for
hearing was set by Judge Wilker-
son and no legal action was taken
beyond the formal filing of the petit
tion. Judge Wilkerson later will set
! a date for a hearing.
Issue Before Courts.
The underlying question. whether
| Congress may delegate to such a body
as the Labor Board the power to COM
| pei testimony, was compared by legal
| observers to the case of ex parte
! Daugherty, now pending on review
before the United States Supreme
Court In that case Federal Judge
A. J. NJ Cochran of Kentucky, on May
| 81, held that the Senate had "usurped
| judicial power" in attempting to en-
| force its subpoena of Mally s. Daugh-
! erty, in an investigation of alleged
acts of former Attorney General
Harry NJ. Daugherty. Judge Coch-
ran held, however, that the question
was mot the power of Congress to
compel evidence from outsiders in
aid of legislation but of either branch
| thereof acting by itself without pre-
vious action on the part of Con-
gress."
Mcclure and Robertson twice dis
regarded Subpoenas of the board. On
| the first occasion subpoenas were is
sued for them and for another grand
officer and 101 general chairmen in a
dispute over wages and rules between
/ the brotherhoods and a managers
| committee representing "a Western
railroads.
Position of ROnds.
The statement by counsel for the
railroad board does not accord with
"our conception of the facts" said
Donald r. Richberg. counsel for the
respondents. We will therefore not
move for dismissal as such motion
would entail acquiescence with the
i<-f. fev, of htf wi
setting forth our version of the facts" "
Mr.. Richberg intimated that he would
seek to show that the assumption of
jurisdiction was wrongful.
The petition quotes an order of the
board overruling the protest of the
respondents and other witnesses
against the assumption of jurisdic-
ton. The board held, and the wit
nesses denied, that the dispute was
likely to interrupt commerce. The
witnesses contend through their coun-
sci that the hearing of the dispute
by the board interrupted negotiations
and that the requested enforcement
of the empowering clause of the act
is lin violation of the Constitution"
Provisions of Clause.
The challenged clause in the trans
portation act authorizes such petit
tions as that filed for the first time
today and provides that the board
may call upon he courts to punish
refractory witnesses for contempt.
The board relied upon this clause
previously in demanding the testi-
mony of two railroad officials. H. H.
Ferguson, vice president and gen.
eral manager of the Illinois Terminal
Company, and Samuel Rea of Phila-
delphia, president of the Pennsyl-
vania lines, had on separate occa
sions denied the jurisdiction of the
board and refused to appear. They
reconsidered when warned that 9TH
erwise they would be sChpoenaed.
The Pennsylvania lines carried
the question of the jurisdiction of
the board into the United States Su-
preme Court. which upheld the juris
diction of the board, but ruled that
the decisions of that tribunal were
not enforceable.