Evening star. [volume] (Washington, D.C.) 1854-1972, 1927-02-25

sponsibility involed in passing on the
| appreciation of the fule that the
i courts will indulge in every presump
| ton to support the validity of legis
| latfon and that no act of Congress will
be declared invalid unless plainly SC,
/ but nevertheless, / feel constrained to
advise you that the act in question
If approved, would, in it's most es
sential provisions. violate the Consti-
| tuition of the United States, in that 1t
takes from the President the constitu-
tiona1 executive power and duty OF
! making appointments to fill the offices
created by 1t and by legislation con.
fers that power upon others; in that
Congress delegates its constitutions
power of legislation to private co
operative associations and corpora
tions, and individuals acting collec-
lively. and the board created by the
statute: in that it contraveneS the pro
visions of the Constitution against
the taking of property without due
process of law"
Objections in Detail.
After reciting at length the intent
and purpose OF the bill the Attorney
General took up. one at time under
four principal heads, what he consid-
cred the objections to the bill which
render il unconstitutional.
One provision of the act, he said.
which is plainly in violation Of the
Constitution is that which limits the
President in his appointments of
members Of the board to select in
each district one man from list of
three submitted by nominating
committee"
The Constitution not only confers
upon the President "a power" said
the Attorney General, but imposes
upon him a duty to exercise his judg-
ment i'm the selection Of appointments
Of higher officers 1t contemplates
that his appointments shall be by and
Senate and not by and with the ad-
vice and consent of any other person
or Official
Delegation of Power.
Taking up the question of whether
the Congress had delegated its own
legislative authority. the Attorney
General said that if the act was to be
considered 'as a regulation of inter
state commerce. then Congress has
delegated to private associations and
corporations the power to determine
whether the regulation shall be put
into effect. or at least, has required
their concurrence to it's being placed in
operation. = To the board has been
given the legislative power to deter
mine that price in it's entire dfscre-
ton, without any rule or formula to
guide its judgment prescribed by Con-
gress, such as a provision that the
price determined on as the objective of
operations shall be based on cost of
production, or reasonableness. or any
thing of that kind. The power of the
board to determine the price Is abso-
lutte and the discretion unlimited.s
Congress has further relegated to
the board, he said, 1.-THE absolute dis
erection, unregulated by any rule or
principle, to say whether the fee shall
be imposed on the sale, the manu-
facture, or the transportation
Third Objection Considered.
The Attorney General took up
under his third section what he con-
sidered as broader and more funda
mental constitutional objection" declar-
ing: "A painstaking search has not
disclosed to me anything in our con-
stitutional history or in the decisions
of the Supreme Court Of the United
States to Justify the belief that the
power Of the Federal Government TIC
regulate commerce includes the power
to establish and maintain or take
steps to establish and maintain
price at which merchandise may
bought and sold in interstate COM
merce, with the necessary conse
the commodity in question shall he
bought and sold in every place in the
land. whether in or out Of interstate
commerce" = -
THE things intended to be brought
about by this act" declared the After.
ney General, ARE the very things that
Congress and the courts have hereto
fore declared to be burdens and re-
straints on commerce. This act,s in
stead of preventing, creates burdens
and restraints on commerce as those
terms have heretofore been under
stood
The equalization fee. one of the
principal features of the act, was
branded by the Attorney General az
whether considered
from the standpoint of "a tax. or not
a tax"
Fee From Another Angle.
IF it be not tax."he said, then
Its imposition and collection would
violate the provision of the Federal
Constitution prohibiting the taking
of property without due process of
law. Treating the equalization fee as
not a tax. It 10 obvious that what is
attempted by this act is to enable GER
tain agencies under Government di-
rection and supervision to engage in
the business Of buying. selling, hoard
ing, and otherwise disposing Of agri-
cultural products for the purpose of
restraining commerce. of interfering
with its free course, and of imposing
upon commerce what have hereto.
fore been considered burdens, restric.
tons and restraints"
On the other hand, he pointed out,
If the equalization fee be considered
as tax it could result in the United
States engaging on it's own account
in buying and selling, an activity
which hardly is TO be supported as a
regulation of interstate commerce.
Neither could the fee be sustained
under the taxing power OF the Con.
stitution, according to the Attorney
General.
ARREST MOTORISTS