Evening star., 1936-05-19

THE EVENING
late the affairs Of an unwilling minor
ity. This is legislative delegation in
It's most obnoxious form: for 1t is not
even delegation to an ofdcial or an
official body, presumptively disinter-
ested, but to private persons whose
interests may be and often are adj
verse to the interests Of others in
the same business. And a statute
which attempts to confer such power
an intolerable and uncon-
stitutional interference with such per-
sonal liberty and private property.
The delegation is SO clearly arbitrary,
and so clearly a denial of rights safe
guarded by the due-process clause of
the fifth amendment, that it is un-
necessary to do more than refer to
decisions Of this court which fore
close the question. Schechter Corp.
VS.. United States; Eubank VS.. Rich
mond; Seattle Trust Co. VS.. Roberge.
Seventh. Finally, We are brought to
the price-fixing provisions of the
code. The necessity of considering
the question of their constitutionality
will depend upon whether they are
separable from the labor provisions
so that they can stand independently.
Section is of the act provides:
IF any provision Of this act, or the
application thereof to any person or
circumstances, Is held invalid, the re-
mainder Of the act and the applica-
tion of such provisions to other per-
sons or circumstances shall not be
affected thereby"
In the absence of such a provision.
the presumption Is that the Legisla-
ture intends an act to be effective as
an entirety-that Is to say, the rule
is against the mutilatfon of a statute:
and If any provision be unconstitu-
tional, the presumption is that the
remaining provisions fall with 1t. The
effect Of the statute is to reverse this
presumption in favor of inseparability
and create the opposite one of sep
arability. Under the non-statutorv
rule. the burden is upon the supporter
of the legislation to show the separa-
bility of the provisions involved. Un-
der the statutory rule, the burden is
shifted to the assailant to show their
inseparability. But under either rule
the determination, in the end. is
reached by applying the same test
namely, what was the intent of the
lawmakers?
Separability Determined
On Mutual Dependency.
Under the statutory rule. the pre-
sumption must be overcome by con-
siderations which establish "the clear
probability that the invalid part being
eliminated the Legislature would not
have been satisfied with what re-
MAINS" Williams VS.. Standard Oil
Co.
The statutory aid to construction in
no way alters the rule that in order to
hold one part of statute unconsti-
tutional and uphold another part as
separable, they must no be mutually
dependent upon one another. Perhaps
a fair approach to solution of the
problem is to suppose that while the
bill was pending in Congress a motion
to strike out the labor provisions had
prevailed, and to inquire whether, in
that event, the statutes should be so
construed as to justify the conclusion
that Congress, Notwithstanding, prob
ably would not have passed the price
hiking provisions of the code.
Section of the act, which provides
that no producer shall, by accepting
the code or the drawback of taxes, be
estopped from contesting the consti-
tutionality of any provision of the
code is thought to aid the separability
clause, but the effect of that provision
is simply to permit the producer to
change any provision of the code de-
spite his acceptance of the code OF
the drawback. 1t seems not to have
anything to do with the question OF
separability.
With the foregoing principles in
mind, let us examine the act itself.
The title Of the act and the pre-
amble demonstrate, as we have al.
ready seen, that Congress desired to
accomplish certain general purposes
therein recited. To that end 1t Gre
ated commission with mandatory
directions to formulate into a work
ing agreement the provisions set forth
in section 4 of the act. That being
done, the result Is a code. Producers
accepting and operating under the
code are to be known as code men,
bers; and section specifically re-
quires that, in order to carry out
the policy of the act, ''the code shall
contain the following conditions, pro-
vision and obligations ;" which
are then set forth. No power is vested
in the commission, in formulating the
code, to omit any of these conditions,
provisions or obligations. The man
date to include them embraces all of
them. Following the requirement just
quoted, and, significantly, in the same
section international Text Book Co.
VS.. Pigg). the price fixing and labor
regulating provisions are set out in
great detail. These provisions, plainly
meant to operate together and not
separately, constitute the means de-
signed to bring about the stabiliza-
tion Of bituminous- coal production,
and thereby to regulate or affect in
terstate commerce in such coal. The
first clause Of the title is: ITO stabi-
lie the bituminous coal-mining in
dustry and promote its interstate
commerce"
Stability Aims Depend
On Both Wages and Prices.
Thus the primary contemplation Of
the act is stabilization of the industry
through the regulation of labor and
the regulation of prices: for, since
both were adopted, we must con-
clude that both were thought essen
tial. The regulations of labor on
the one hand and prices on the other
furnish mutual aid and support; and
their associated force-not one or the
other, but both combined-was deemed
by Congress to be necessary to achieve
the end sought. The statutory man.