Evening star., 1936-05-19

dLIlC1luIilCLIt
Turning to the price-fixing pro-
visions. the majority held that they
fell with the labor provisions, because
they could not be separated despite
the congressional injunction in the
act that If part of the law was held
unconstitutional the balance should
stay in effect.
THE conclusion is unavoidable" it
said, that the price fixing provisions
of the code are so related to and
dependent upon the labor provisions
as conditions, considerations and
compensations, as to make it clearly
probable that the former being held
bad, the latter would not have passed.
The fall Of the former, therefore, car
ries down with 1t the latter"
Hold Price Fixing Valid.
Cardozo, Brandeis and Stone held
the price fixing was valid ''in the
transactions of interstate commerce
and in those of intrastate commerce
where interstate commerce is directly
or intimately affected"
prices in interstate transactions
may not be regulated by the States"
Cardozo said. They must therefore
be subject to the power of the Ma
tion unless they are to be withdrawn
altogether from Government super
vision. If such q vacuum were per-
mitted. many a public evil incidental
to interstate transactions would be
left without remedy"
Reviewing conditions in the soft
coal industry, Cardozo said "overpro-
duction was at point where free
competition had been degraded into
anarchy"
Congress" he added, was not con-
demned to inaction in the face of
price wars and wage wars pregnant
with disaster. Commerce had been
choked and burdened; its normal flow
had been diverted from one State to
another; there had been bankruptcy
and waste and ruin alike for capital
and for labor. The liberty protected
by the fifth amendment does not in
clude the right to persist in this
anarcnlc rlot.
Contending that the majority was
wrong in condemning all the law be-
cause part of it was unconstitutional,
Cardozo called attention to the con-
gressional provision that if part of it
was invalid the remainder should not
be affected.
He said the labor section of the
law was physically separate from
everything that goes before it." and
might never take effect.
Noting that the wage and hour limi-
tations had to be fixed by agreement
he said 'it is possible that none of
these agreements as to hours and
wages will ever be made"
The act imposed Is per cent tax.
providing for 80 per cent refund to
producers complying with the code.
Agrees Tax Was Penalty.
Hughes, in his separate opinion
agreed with the majority that the tax
was penalty, that the validity of
this penalty rested upon the commerce
clause. that production was not COM
merce and that the power to regulate
commerce among the several States
is not power to regulate industry
within the State"
Congress thus had adequate au-
thority to maintain the orderly con-
duct of interstate commerce ana to
provide for the peaceful settlement of
disputes which threaten it." the chief
justice said. "But Congress may not
use this protective authority as a
pretext for the exertion of power to
regulate activities and relations within
the States which affect interstate
commerce only indirectly.
IF the people desire to give Con-
gress the power to regulate industries
within the State. and the relations of
employers and employees in those in
dustries. they are at liberty to declare
heir will In the appropriate manner.
but it is not for the court to amend
the Constitution by judicial decision"
Senators, Congressman, Government
officials, diplomats and just plain Cit
Izens listened with rapt attention as
The court delivered its opinion.
The court was well through half
Of the II decisions handed down
when Justice Sutherland leaned for
ward and began reading the majority
opinion.
The audience at once became tense,
'training to catch the words of the
ow-speaking justice. As it became
evident the decision was to be adverse,
;he faces of Senator Guffey and
Representative Snyder, Democrat, Of
Pennsylvania. co-authors of the legis-
alton, grew serious.
John Dickinson, Assistant Attorney
General, who conducted the Govern
nent's defense of the law. and Solici-
or General Stanley Reed sat in the
'ront row, both in formal morning
lttire.