Evening star., 1936-04-08
Sc. c. COURT VIEW
HITS EXTRA POWER.
6-to-3 Vote, Same as A.A.A.
Decision, Denies That End
Justifies Means.
BY DAVID LAWRENCE.

MUCH
preme Court of the United States
this week than the question OF
whether an application for the regis
tration of securities may be with
drawn by the applicant before the
Securities and Exchange Commission
takes final action upon it.
It is usually around simple diff
ference Of opinion in concrete case
that many questions of fundamental
law NAV revolve. and in this instance
one may find the 6-to-3 decision re-
fecting an underlying contrast OF
viewpoints among the members OF
the court with respect to the philos-
ophy Of the New Deal.
The minority-Justices Brandeis,
Stone and Cardozo-are apparently
quite willing to accept the view OF
Donald Richberg that the Constitution
may now be changed by judicial
construction" whereas the majority
are sticking to the thesis that the
court should not take it upon itself
to change the Constitution as it has
been heretofore interpreted. leaving
it to the people through the proper
channels of constitutional revision to
perform that duty.
BasicalIy, the minority on the court
has taken cognizance OF the con-
troversy that exists about increasing
Federal power and has evidently
sought to add to the Federal func-
ton an extensive police power to
punish crime or at least to harass
ALLEGED wrongdoers even when there
is nothing more than suspicion on
which to base such harassment.
Persecution" Alleged.
J. Edward Jones, dealer Of oil royal
ties, claims he has been prosecuted by
the commission and his business has
been ruined When he applied for
registration he was confronted with
what he terms hostile series Of acts,
and rather than attempt to complete
the registration he withdrew 1t to avoid
what ne terms persecution.
But the harassment didn't stop
there. Though no securities were Of
fered to the public, the commission,
taking refuge in its so-called general
powers of inquisition, demanded a lot
Of books and papers and started an
Investigation. While it is true that
the minority of the court saw no
damage as yet in this step, there was
no doubt of the damage that could be
done by power Of adverse publicity,
which Mr.. Jones felt that no govern
mental commission had right to in
flcr.
On the surface, therefore, the Sc
curities and Exchange Commission is
arguing that its powers to make in
quiry and get at the bottom of ''knav-
cry" may be curtailed, while the ma
iority of the Supreme Court, on the
sther hand, pronounced much more
Important principle when it remarked:
The fear that some ralefactor may
90 unwhipped Of justice weighs as
nothing against this Just and strong
condemnation of practice SO
odiouS I" y
Legal Restraint Upheld.
"The philosophy that constitutional
limitations and legal restraints upon
official action may be brushed aside
upon the plea that good, perchance,
may follow finds no countenance in
the American system of government.
81" An investigation not based upon
specified grounds is quite as objection
able as a search warrant not based
upon a specific statement of fact. Such
an investigation, or such search, is
unlawful in it's inception and cannot
be made lawful by what it may bring
OF by what it actually succeeds in
bringing to light"
The doctrine, therefore, that the end
Justifles the means-a doctrine re-
Jected by liberty-loving peoples for
centuries-is rejected by the Supreme
Court, and here We find the crux of
the controversy over the New Deal
The minority fails to perceive that
dangers will follow if the Federal Gov
ernment is granted virtually a police
power through the inquisitorial func-
tion, whereas the majority not only
sees dangers ahead, but insists that
petty encroachments" must be stop
ped in their tracks lest consent be
given to their enlargement am to
further abuse.
Fishing Expeditions" Hit.
Here we have a fundamental cleav-
age-a minority and majority agreeing
that unreasonable search and seizure
should not be pernited-but one group
insisting that broad powers in Fed
eral agencies to go on fishing expedi-
tionS" into private papers is repre-
henslble and the minority rather dis
inclined to take seriously the possibility
Of adverse results.
The S. E. c. case is important be-
cause the 6-to-3 lineup is exactly as
it was in the A. A. A. case, where
minority thought the constitutional
law of the past could now be changed
to permit Federal control of agricul-
ture and where the majority held
steadfastly to the accepted doctrine.
so forcefully expressed by Franklin
D. Roosevelt in 1880, when he in
sisted that the Federal Government
must not be encouraged to interfere
in the regulation of agriculture.
There will doubtless be differences
of opinion whenever nine men tackle
a complicated constitutional problem.