Evening star., 1936-05-19

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whatever reasonable doubts the
members might have as to constitu.
tionality, the result was such hodge.
podge that the Supreme Court tried
conscientiously to separate the valid
from the invalid section.
Five justices-Sutherlan Mercy
nolds, Van Devanter, Butler and Rob-
erts-said it couldn't be done, that
the whole statute was so tied together
by its valid and invalid provision,
that they considered the act uncon-
stitutional in its entirety, but reserved
the right to consider any new legis-
lation on its merits.
Four Uphold Sepsrability.
The other four justices-Hughes
Brandeis, Stone and Cardozo-said
the act was "separable" and that
it wasn't necessary to pass on the
labor or wage sections or the tax
sections at this time if the power
to regulate marketing was upheld
which, of course, it wasn't, by the
five justices in the majority opinion
There were six votes for outright
condemnation of all the provisions Of
the law except marketing, and on
this latter Hughes dissented. But ii
Is not proper to say there were only
six votes, because the three other
justices held it unnecessary to pass
Judgment on the labor provisions at
all
Out Of the resultant situation the
following effects may be looked for
!. The labor provisions will be
abandoned and the Wagner labor
relations law seems headed for the
discard, too, because enough was said
in the opinion to indicate that at
least six justices think it not to be
the province of the Federal Govern
nent to regulate employer-e employe
relations in manufacturing or produc-
ton.
Will Act on Marketing.
2. The marketing provisions will be
revived. Transactions in interstate
commerce and even price fixing may
be upheld where articles affected
with q public interest move in inter-
state commerce, but it is emphasized
by the Chief Justice that the constitu-
tional requirement that rates must
not be confiscatory and other consti-
tutional inhibitions will have to be
observed whenever a specific case
arises to test the Federal power.
3. Congress will not try at this ses-
sion to re-enact any substitute for
the Guffey law. Even if it trieo, the
chances would be against passage, be-
cause the American Federation of
Labor is in q life-and-death struggle
with John L. Lewis of the United
Mine Workers. When the original
measure went through Congress, the
A. r. Of L. helped Lewis. 1t is not
disposed to throw its strength to him
now.
4. Chief Justice Hughes pointed the
way to the regulation of interstate
commerce in respect to marketing of
coal. The Supreme Court shows its
inclination toward regional price ar
rangements In the famous Appalachian
case decided in 1888, so the Hughes
opinion must be read now as a sec
ond chapter in the history of legal
opinions bearing on unfair and ruinous
competition in marketing transactions
that cross State lines, especially where
o natural resource like coal is involved.
Certainly May 18 will be known as
an eventful day in the chronicles of
the Supreme Court because it reaf-
firmed so many of the principles of
the Schecter case handed down Just
a year ago. But on the same day there
was handed down in the Circuit Court
of Appeals of the District of Columbia
an equally important opinion which
could not have been delivered but for
the basic doctrines enunciated in the
Schecter N. r. A. case.
This was the case in which the Rural
Resettlement Administration of DR..
Tugwell was held invalid. But the
opinion goes further. 1t questions the
right of Congress to delegate to the
Executive the spending of money for
any unconstitutional purpose, that is
for some purpose not within the Fed
eral Governments rights. Housing for
private use is not regarded as a public
purpose.
May Inspire Ear Marking.
Since the Supreme Court of the
United States will finish its present
term before June 1, the latest case
from the Court of Appeals of the Dis
trict will hardly be argued before
Autumn. Meanwhile, the opinion fur
nishes an interesting corroboration of
the viewpoint Of those in Congress who
have insisted on ear-marking appro-
priations and specifying just for what
ends the public moneys should be
Ipent.
There is another epochal develop
naent IN the case. A municipal gov
srnment was admitted to have the
right to sue the Federal Government
10 restrain the latter from draining
to local tax revenues. A citizen hith-
,rto could not make such q suit effec-
i've as the Supreme Court has held
hat no one citizen could show q |
iirect interest SUFFICIENT to entertain |
lis plea. But now apparently a mu-
,icipal government can enter a plea |
n the District of Columbia courts |
lgainst Federal officials to prevent the
Federal Government from taking away
Is tax resources. This is of tran
cendent importance and may turn out
o be the missing link in constitutional
history as it relates to the power to
,revent extravaganza by the Federal
Government or to the check against
! hitherto unlimited right to tax any.
hing and everything or to grant tax
in q manner that adversely
fleets the municipality and Its reve-
opportunities.
(copyright. 1861