Evening star., 1933-08-15
Held Unconstitutional by Re-
finers' Counsel in Dis.
trict Tribunal.
GENERAL WELFARE CITED
IN U. S. DEFENSE OF ACT
Congress, Not President, Alone Can
Exercise Powers on Shipments,
Lawyer Says.

BY the Associated Press.
The constitutionality Of the national
recovery act was fought over in Dis
trict of Columbia Supreme Court to-
day with the Government defending
it and an attorney for Texas oil re-
finers asserting it could not be sus-
tanned on any ground"
The attack on the legislation under
which the administration is carrying
on its vast program for industrial
restoration was made by F. w. F.
Fischer, arguing for an injunction
against recent Federal orders prohibit
ing interstate shipment Of oil pro-
duced in violation of State conserva-
ton regulations
Issuance of these orders by Secre-
tary Ickes was defended by Charles
Fahy, acting solicitor of the Interior
Department. who filed brief holding
the act constitutional and contending
the Federal Government had the pow
er to control interstate movements Of
commodities for the general welfare.
Calls II Unconstitutional.
Il do not think the national recovery
act can be sustained on any ground"
Fischer told Justice Joseph Cox in
answering a question by the judge as
to whether he thought the act was
based on Federal powers over inter-
state commerce or power given to the
Federal Government to meet emergency
conditions
The act complained Of Is unconsti-
tutional and void for the reason that
it is An attempt to delegate power to
the President OF the United States
which cannot be delegated but must be
exercised by Congress alone" Fischer
said. citing court decisions.
He contended the Federal Govern
ment's power over interstate commerce
related solely to its regulation and did
not permit prohibition Of interstate
commerce. He told Justice Cox the
court now was called upon TO deter
tions that has arisen since the adop-
ton of the Constitution"
First Court ChalIense.
This IS especially true, Fischer sale
In view Of "the apparent public opin-
ion that the constitutional guarantees
should be brushed aside and abandoned
on account Of the unemployment and
depression that exists throughout the
country In the hope that by conferring
legislative powers upon the President
he can bring about relief Of our
distress"
This was the first court challenge OF
the constitutionality Of the recovery act
as well as the initial test of the power
Of the Federal Government to help the
States in controlling the production
and distribution Of oil.
In seeking to uphold the constitu-
tionality of the recent hot OIL orders
of Secretary Ickes. Fahy contended the
Secretary was performing the functions
of the President of the United States
under the act and could not be en-
joined under those conditions.
Challenges Jurisdiction.
Fahy asserted the court was without
jurisdiction in the case because Secre-
tary Ickes "is acting directly in the
place and stead of the President of the
United States and in no other capacity.
and one so acting under statutory pow
ers conferred upon the President by
the Congress of the United States may
not be enjoined or restrained"
The Interior Departments answer
denied that the prohibitory orders were
"depriving and threatening to continue
to deprive the plaintiffs of the use Of
their alleged respective properties with
out due process of law" and denied
that enforcement of the order Is dam
aging the protesting companies.
In answer to Fischer's contention
that the order of the Texas Railroad
Commission limiting production was in
valid, the Interior Department said that
was not the sole cause for the order
which was described as a Federal
matter.
AS an additional point, the Interior
Department set forth the Governments
constitutional power over interstate
commerce and added that:
In the State of Oklahoma and in
the State of New Mexico there have
been enacted and are now in force
State statutes limiting the production
and withdrawal frcm storage of petrol
cum; that said States border on the
State of Texas: that from and into
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