Evening star., 1935-04-05
PRESSURE BEHIND
N R. A. COURT TEST.
Justice Department Held
=.-AppeaIing Poultry Case
: as Sop to Critics.
BY DAVID LAWRENCE.

Determination of the Department
Of Justice and the N. r. A. to press
for test in the Supreme Court OF
the United States on the constitu-
tionality of the national Industrial
recovery act, by using the recently
decided cases on the shipment and
sale of allegedly diseased poultry, does
not mean the same thing as the
Belcher case, dismissed by request a
week ago.
The Governments announcement
indicates that the Department OF JUS
tice prefers the new cases because they
were exhaustively argued as to the
facts, but the truth probably Is that
public criticism of the administration
compelled the latter to 60 ahead with
the latest case as a sop to the critics.
Actually, it is the opinion of COM
petent lawyers here that the Belcher
case was much stronger case than
the one involving the shipment of
poultry and the wages charged In the
slaughter houses, and it is significant
that in this instance-knoWn as the
Schechter case-the Government lost
bn the issue of Federal regulation Of
wages and hours of employment,
Which was the main reason for want
ing to have the Belcher lumber case
tried out.
Several Factors Admitted.
The defendants in the Schechter case
are charged with fraudulent ship
inent of inferior poultry in interstate
commerce" which the United States
Circuit Court of Appeals, in its de-
cision earlier this week in New York
City, said was sufficiently substantial
and direct to warrant Federal regu-
htion."
Now the fraudulent shipment of
anything in interstate commerce,
whether diseased poultry or hot oil, "
has been considered within the COM
f1erce clause of the Federal Constitu-
ton, so If a decision is rendered that
sustains the Circuit Court of Appeals
II probably will be because the ship
ment of food products in violation OF
city ordinances with respect to health
and sanitation is plainly a Federal
power
There can be no doubt, either,
that the Congress can delegate the
right to carry on inspection and pre-
vent improper shipments.
But the greatest significance at
taches to the points in the code on
which the Government lost in the
Circuit Court of Appeals. Seventeen
of the 10 counts related to the ship
ment of allegedly diseased poultry
and the other two concerned Federal
regulation by code of hours and
wages. Judges Hand and Chase
the majority of the court-held that
these counts have no direct concern
with interstate commerce" being
"the wages paid at the slaughter
houses to employees not directly en-
gagged in interstate commerce" The
court said specifically that ''the num-
ber of hours of labor per week and
the wages paid cannot be said to af-
feet interstate commerce; they may
affect intrastate commerce"
Judge Hand in his opinion drew a
distinction between wages and hours
in business-like transportation
which is an instrumentality of inter-
state commerce itself and pointed tc
precedents to the effect that employees
hours can be regulated in such con-
tingencies whether the business Is or
Is not itself entirely in interstate COM
merce.
Employees Not Transporting.
But in this case the court showed
that the employees were not engaged
in transportation.
IF Congress can control the price
of their labor" said Judge Hand, re-
ferring to the slaughter house en-
ployes, II cannot see why 1t may not
control the rent Of the buildings where
the fowl are stored, the cost Of the
feed they eat while there and of the
knives and apparatus by which they
are killed.
There comes time when imported
material, like other goods, loses its
interstate character and melts into
the domestic stocks of the State which
are beyond the powers of Congress"
The foregoing is exactly the issue
in the Goodrich cases in Akron, where
the power of the National Labor Rela-
tions Board is challenged with respect
to rubber manufacturing as being out
side interstate commerce regulation.
1t is also the position Of the Weirton
Co., recently sustained in the Federal
Court at Wilmington, Del.
Pressure Seen as Reason.
So the test case on which N. r. A.
Is to stand or fall is one In which
two of the three judges in the Cir
cult Court of Appeals have denied
that interstate commerce powers can
be extended to work done on raw
materials after they have reached
destination and have declared that
employe- employer relations in those
activities cannot be regulated by the
Federal Government.
The Department of Justice, of
course, hopes to prove that the de-
moralization of wage levels is burden
on interstate commerce and sub
stantiaHy affects its freedom of flow.
1t Is difficult to see why, however,
except for pressure, the Department
Of Justice decided to 90 to bat on the
Schechter cases.