Evening star., 1935-03-27
BUSINESS FACES
D|LEMMA|NN.R.A.
Courts Void Codes, While
Roosevelt Commands
Obedience.
BY DAVID LAWRENCE.


A dilemma of unparalleled COM
p!exity faces American business today
with respect to obeying codes under
the NJ r. A.
President Roosevelt issues the COM
mand to obey. The Federal courts
tell business men to disregard the
N. r. A. The Department of Justice
itself publicly admits it has not de-
veloped a good test case and asks
for the dismissal of suit which 1t
had itself engineered through the
lower courts for the purpose of having
the issue defined.
Under these circumstances it Is not
to be wondered that all the codes have
become the subject of widespread
concern and that the whole struc-
ture erected by the N. r. A. has be-
come wobbly.
Weirton Case Cited.
The Department of Justice says
that the Belcher case under the lum-
ber code was unsatisfactory for test
purposes because of technical point
which eliminated the taking of evl-
dence on the nature Of the business
involved. The department adds that
1t wants to present case lin which
full evidence of the facts has been
given
The Weirton case is just such a
case. It was argued thoroughly and
comprehensively with all sorts of data
on the business of manufacturing and
on the matter of employer and en-
ploye relations. The Federal Court
held the national industrial recovery
act in that case to be unconstitu-
tional
The fact that the department has
not selected the Weirton case as its
battle-ground may or may not be
significant. But the opportunity to
have a decision rendered by the Su-
preme Court of the United States be-
tween now and the time Of adjourn
ment of that court this Spring would
now seem to be out of the question.
New Deal in Unique Position.
The result is that, without a de-
termination by the highest court of
the land, the administration is in the
position of threatening business men
with court action with respect to a
law that has again and again been
declared unconstitutional.
Federal Judge Edgar S. Vaught, at
Oklahoma City, has advised business
men from the bench to refuse to an
swer N. r. A. questions about their
businesses, and has said that the
Congress has no right to decide what
is commerce within a State or be-
tween States and that this is solely
@ matter for the courts.
Meanwhile, Donald Richberg, di-
rector of the National Emergency
Council, and now acting chairman of
the National Industrial Recovery
Board, has notified the President that
violations have been increasing on the
wage and hour provisions of the
codes because of a mistaken feeling
that N. R. A. may not be extended
and that the Government may not be
inclined at the present time vigorously
to enforce code requirements"
Issue Up to Courts.
Mr.. RooSevelt's letter in reply, just
made public. reiterates an intention
to have the Department of Justice
'giye every assistance in maintaining
compliance with the codes" and ad-
wise district attorneys throughout the
country Ito take prompt and vigorous
action to prevent or to punish such
violations"
AS practical matter, it depends on
how the Federal judges in a given
jurisdiction will handle the prosecu-
tionS. If they follow Supreme Court
precedents on what is or is not COM
merce within Federal jurisdiction,
they will dismiss all indictments or
requests for injunctions that relate to
businesses within State, just as did
Judge Nields in Delaware "a the Weir
ton case. If, however, testimony is
taken COMPREHENSIVE on the novel
theory eXpounded by the New Deal
that certain kinds of business within
State substantially affect COM
merce between the States or constitute
burden ION the flow of interstate
commerce" it may be that a good test
case will be obtained.
The Department of Justice knows
1t is up against a difficult legal battle
and one that apparently now will not
reach the Supreme Court of the
United States until next Autumn at
the earliest. In the meantime, the
administration hopes Congress will
have extended the present national
industrial recovery law for two years
and that favorable Supreme Court
decision may somehow increase the
area of Federal Jurisdiction over
wages and hours of employment.
Labor Bill at Stake.
Another issue at stake is the Wagner
j labor disputes bill. If the Supreme
Court this Spring had thrown out the
Belcher case, as may be inferred from
the action of the Department of JUS
tice IN dropping voluntarily its appeal
from the decision of Judge Grubb of
Birmingham, Ala, there might have
been considerable doubt cast on the
validity of the proposed Wagner labor
disputes bill, as we'll as on the measure
providing for work week of 80 hours.
Clearly, the administration is pro-
ceeding with one eye on the courts
and one eye on the passage of time,
in the hope, doubtless, that, when
recovery comes in earnest, the need
for codes and the various unconstitu-
tional laws will have, even in its judg-
ment, passed from the scene. A
spokesman for the administration not
long ago revealed this kind of philoso-
ply when he remarked that the law
containing the oil code had been de-
clared unconstitutional, but 1t had for
more than year served a useful
purpose in cutting down the traffic