Evening star., 1934-07-11

answering the weirton Steel Co. in
Federal Court at Wilmington, Del.
The brief says:
The defendant was under no COM
pulsion to promote the code. 1t would
have fortified no rights If it had re-
mained neutral or antagonistic. And
it is immaterial in the present con-
neetion that the code might have been
adopted, and defendant made subject
to it, without the defendants consent.
This Is not what happened. The de-
fendant did give its consent and did.
by becoming a proponent Of the code,
aid IN bringing itself and industry
under the recovery act. The defen-
dant did. both in fact and in legal
contemplation. invoke the law and
obtain rights under it. The defen-
dant Is. therefore, estopped to assail
its constitutionality."
Warnings Disregarded.
Now. as a matter OF law, the Justice
Department is probably right, and
many imminent lawyers who attended
the code meetings which began a
year ago tried to tell the N. r. A. that
this view Of the law was bound to be
taken by the Government. But the
N. r. A., presumably advised by Gen
eral Counsel Donald Richberg, told all
the visiting lawyers that their fears
were groundless. Yet when these same
lawyers insisted on a clause which
would state that they did not waive
their constitutional rights in accept
ing a code. the N. r. A. carefully de-
leted such provisions from all codes
except two-the chemical code and
the newspaper publishing code.
Several businesses then refused to
accept a code and insisted that it be
imposed upon them SO that there
would be no question Of whether the
action was voluntary or involuntary.
In fact, If the record of the major
codes Is examined 1t will be found
that many OF them were accepted only
under compulsion or threat Of having
a code prescribed upon them.
These businesses and industries have
since complied with the provisions Of
their codes, but they feel they were
protected because they refused to sign
any code which did not include con-
stitutional protection clause.
Duress Taken Into Account.
The brief filed by the Justice De-
partment, however, takes into account
the argument that the iron and steel
code was in effect signed under such
duress and declares:
Whether the President would or
would not prescribe a code for the
iron and steel industry under the pro-
visions of section 3 was purely specu-
lative. 1t can properly be termed a
very remote possibility, since from the
time the act was approved on June l6,
1898, up to the present no code has
been prescribed under section 8. The
defendants election to bring itself
within the act was therefore volun-
tary."
The Importance of this point is
that it seeks to sweep away the con-
tention that will be made as to the
potential duress under which codes
were accepted, namely the threat
that II they did not accept a code,
the President would impose one. -
But while the larger businesses and
industries had lawyers to advise them
and some groups did protect them
selves by making record that can
be brought to court for determination
as to how much duress occurred and
whether the agreements we're really
voluntary" the vast majority of
small business men, from grocers to
pants presSers, simply signed the
unemployment agreement
and thereby put themselves complete
ly under the jurisdiction of the Fed
eral Government.
For these agreements stipulate that
the signer accepts the right OF the
President, or his representative, to
make any and all regulations which
he may deem necessary. Hence it is
possible for the Federal Government
to control prices and production, and
there can be no attack in the court
on constitutional grounds. namely
that the Government is arbitrarily
taking away private property.
; Can't Question Constitutionality.
The Supreme Court decisions are
clear--a voluntary act in accepting
law means that the person or busi-
ness benefited cannot raise any con-
stitutional question, not even the point
as to whether interstate commerce or
commerce within a State is involved.
The N r. A. told all who inquired
about this contingency that a clause
of protection to the signerS OF codes
was Just so much "surplusage" and
that it would not be necessary. But
today the Department of Justice,
which is the prosecuting instrument
tality of the Government. is taking
the other view, and the N. r. A. isn't
doing anything TO help the business
men whom it failed to protect.
The only way out Of the tangle is
for the N. r. A, to admit publicly
that 1t was wrong, and that the Blue
Eagle boycott threat was in itself a
factor which prevented any agree
ment or, code from being classed as
voluntary"
There are plenty of decisions of the
Supreme Court which say that If the
signer Of an agreement had no rea-
sonable choice he cannot be said to
have made a voluntary agreement.
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