Evening star., 1936-01-07

regulation OF the practice Of pro-
feSsion, under the pretext of raising
revenue. In United States VS.. Con-
stantine decided December IL, 1880
we declared that Congress could not
in the guise of a tax impose sanctions
for violation of State law respecting
the local sale Of liquor. These deci-
sions demonstrate that Congress
could not, under the pretext Of raising
revenue, lay tax on professors who
refuse to pay certain price for cot
ton and exempt those who agree SO
to do, with the purpose of benefiting
producers.
Two Sufficient Answers
to u. S. Constitution.
Third. If the taxing power may not
be used as the instrument to enforce
a regulation of matters of state con-
Germ with respect to which the Con-
gress has no authority to interfere,
may it, as in the present case, be
employed to raise the money neces-
sary to purchase compliance which
the Congress is powerless to com
mand? The Government asserts that
whatever might be said against the
validity of the plan, if compulsory. 1t
is constitutionally sound because the
end is accomplished by voluntary CO.
operation There are two sufficient
answers to the contention. The reg
ulation is not in fact voluntary. The
farmer, of course, may refuse to COM
ply, but the price of such refusal Is
the loss of benefits. The amount
offered is intended to be sufficient to
exert pressure on him to agree to the
proposed regulation. The power to
confer or withhold unlimited benefits
is the power to coerce or destroy. If
the cotton grower elects not to accept
the benefits, he will receive less for
his crops; those who receive pay
ments will be able to undersell him.
The result may well be financial ruin.
The coervice purpose and intent OF
the statute is not obscured by the
fact that it has not been perfectly
successful 1t is pointed out that.
because there still remain minority
whom the rental and benefit payments
were insufficient to induce to surren-
der their independence of action, the
Congress has gone further and, in
the Bankhead cotton act, used the
taxing power in a more directly mi
natory fashion to compel submission.
This progression only serves more fully
to expose the coercive purpose of the
so-called tax imposed by the present
act. 1t is clear that the Department
of Agriculture has properly described
the plan as one to keep a non-co-oper-
ating minority in line. This is coer-
cion by economic pressure. The as
serted power of choice is illusory.
Frost Trucking Co.
Decision Quoted.
In Frost Trucking Co. vs.. Railroad
Commission, 27l U. S., 583, a State
act was considered which provided
for supervision and regulation of
transportation for hire by automobile
on the public highways. Certificates
of convenience and necessity were to
be obtained by persons desiring to use
the highways for this purpose. The
regulatory commission required that
a private contract carrier should Sc
cure such a certificate as a condition
of its operation. The effect of the
commissions action was to transmute
the private carrier into a public car
rier. In other words, the privilege
Of using the highways as a private
carrier for compensation was condi-
toned upon his dedicating his prop
erty to the quasi-public use of public
transportation. While holding that
the private carrier was not obliged tc
submit himself to the condition the
commission denied him the privilege
Of using the highways if he did not
do so. The argument was, as here
that the carrier had a free choice
This court said, in holding the act as
construed unconstitutional:
If so. constitutional guarantees
so carefully safeguarded against di-
rect assault, are open TO destruction
by the indirect, but no less effective
process of requiring a surrender
which, though, in form voluntary, in
fact lacks none of the elements OF
compulsion. Having regard to form
alone, the act here is an offer to
the private carrier of a privilege,
which the State may grant or deny
upon a condition, which the carrier is
free to accept or reject. In reality
the carrier is given no choice, except
a choice between the rock and the
whirlpool, an option to forego q
privilege which may be vital to his
livelihood or submit to a require
ment which may constitute an in
tolerable burden.
Scheme for Purchasing
Submission to Control.
But if the plan were one for purely
voluntary cooperation, it would stand
no better so far as Federal power is
concerned. At best, it is a scheme for
purchasing with Federal funds SUBJ
mission to Federal regulation of q
subject reserved to the States.
1t is said that Congress has the
undoubted right to appropriate money
to executive officers for expenditure
under contracts between the Govern
ment and individuals; that much of
the total expenditures is so made.
But appropriations and expenditures
under contracts for proper govern
mental purposes cannot justify con-
tracts which are not within Federal
power. And contracts for the reduc-
ton of acreage and the control of
production are outside the range of
that power. An appropriation to be
expended by the United States under
contracts calling for violation OF a
State law clearly would offend the
Constitution. Is a statute less objec-
tionable which authorizes expenditure
of Federal moneys to induce action IN
a field in which the United States has
no power to intermeddle? The Con-
greSs cannot invade State jurisdiction
to compel individual action; no more
can it purchase such action.
We are referred to numerous types
of Federal appropriation which have
been made in the past. and it is as
~ <,,aefiay, hos hoon raised aS