The Washington times. [volume] (Washington [D.C.]) 1902-1939, 1936-05-21
i. ). DEFENDS
RAIL PENSION
ACT HERE

Government attorneys went
into District Supreme Court
yesterday to defend another Ad.
ministration measure, the railroad
retirement act, thrust into the
judicial battle-ground by the con-
stitutional attack of 430 railroad
enterprises, two express companies
and the Pullman company.
The attack was commenced be-
fore Justice Jennings Bailey six
months after 1875 Class l roads
originated the suit, joined later by
235 minor roads and still later
by so other minor roads, terminal
companies and 16 employees OF the
Atlantic Coast Line Railroad who
said they are content with the
retirement and pension program
Of their employer.
Dismissal Sought
AS opening statements of coun-
sci began, Charles M. Hay, special
assistant attorney general, moved
to dismiss the suit. The claim OF
the petitioners that the two acts
Of Congress in 1885 are a subter-
fuge to avoid inhibitionS of a
District Supreme Court ruling
that the 1884 retirement act is I'M
constitutional cannot be proved,
he said.
Further, he claimed the rail-
road retirement legislation comes
within the constitutional power of
Congress to provide for the ma
tional defense"
It was this theory on which the
Government successfully defended
the constitutionality of the Ten
nessee Valley Authority before the
United States Supreme Court last
winter.
Railroad attorneys opposed the
motion, charging that the retire
ment legislation embraced in the
two acts, one of which set up the
Railroad Retirement Board and
the other levying an excise tax on
railroads and an income tax on
employees, was substantially the
same as "the unconstitutional rail
road retirement act of 1884"
Defense Clause Cited
Walter Pollak, special assistant
to the Attorney General, declared:
"The question before the SUI
preme Court in the 1884 retire
ment law case was based solely
on the Governments power to
regulate interstate commerce.
I'VE are satisfied to rest on
the power Of the National Gov
eminent to provide for the COM
mon defense and to use the tax
ing power for that purpose.
Actually we have here a stu
alton where the three uses of
the taxing powers authorized in
the Constitution overlap"
He was referring to the pro-
vision of the Constitution that
taxes may be levied to pay the
debts of the nation, provide for
the national defense and general
welfare.
Justice Bailey took the motion
under advisement, reserving his
privilege to rule upon it at a later
time.
Opening statements of counsel
consumed most Of the session.
Maintenance CurtaiIed
Emmett E. McInnis, attorney
for the railroads, declared that
more railroads are in receiver
ship and more mileage of rail-
road is in receivership now than
at any time in previous Ameri-
can history. He said:
"a charge such as this tax
lays on the railroads will have
the immediate effect of fore
shortening the maintenance
and equipment Of the roads.
The railroads equipment and
maintenance prOgra s have
been curtailed during the de-
preston, and both new equip
ment and repairs are badly
needed"
Chief Justice Alfred A. Wheat
ruled unconstitutional the Retire
ment Act of 1884 last year. Today
McInnis commended that the two
acts passed in 1885 shortly after
the failure of the 1884 legislature
to pass the constitutional test are
likewise short of constitutional re-
quirements. He told the court:
eff, mechanically, the tax act
and the retirement act be COM
bined in a single act, these will
be produced in substance and to
q large extent identically the
unconstitutional railroad retire
ment act of 1884"