Evening star., 1938-02-20

" HE legal difficulties of the New Dea!
have entered a new phase. In
stead Of having legislation itself
assailed as unconstitutional, it Is
the administrative procedure under an act
OF Congress that is being attacked on some
20-odd fronts.
Last week the United States District
Court Of Appeals here struck q blow at
the administration of the National BIZ
luminous Coal Commission, staying,
through temporary injunction, the mini
mum coal prices set by the commission as
applied to 200 major railroads, the city Of
Cleveland and three mining concerns.
The decision was made in an order signed
by three judges who were appointed by
President Roosevelt: Justices Harold NJ
Stephens. Justice Miller and Henry W.
.Edgerton.
Upheld by the ruling was the contention
Of score or more of litigants who have
attacked the price orders on the ground
they were issued without prior public
hearings and therefore violated require
ments Of the act and of the fifth amend
ment to the Constitution, the due process
section.
Previously. the Federal Circuit Court of
Appeals in New York City had suspended
the minimum price on pea coal shipped
from Southern West Virginia into New
York Harbor, and on the same grounds
Attacks Cover Wide Range.
While litigants level their attacks on
grounds ranging from constitutionality of
the act to matters of procedure, the basis
for practically all Of them lies not in
questionable constitutionality of the act,
but in one provision which they claim the
commission has disregarded in its price,
fixing.
This provision Section (a), says in SUBJ
stance that no order fixing minimum coal
prices shall be made unless the commission
has given reasonable public notice of a
hearing" and afforded to interested parties
an opportunity to be heard. Findings of
fact are also prerequisite.
Most of these suits are the actions of
powerful consumers, like the cities of
Cleveland and Chicago and the railroads.
which claim they are suffering "irreparable
injury" from higher coal prices fixed with
out due process OF law.
Back of this situation in which Federal
agency is accused Of exceeding its lawful
powers lies variance in Interpretation Of
the Bituminous Coal Act of 1887 And
the differing interpretations have involved
not two interests, but three in the dispute
On one side are the complainants in court;
on the other the commission. And stand
ing of to one side, but taking the part of
the complainants, hurting accusations at
the commission and asking suspension Of
the price orders is a branch of that body
ITSELF
Procedure Long Attacked.
The Consumers Counsel, a sovereign
entity, set up to protect the interest of the
public in the administration of a producers
act has blasted away publicly for months
at the procedure used by the commission
to bring order and solvency to an industry
oil but broken by chaotic price wars.
Public hearings are required by the act,
believes John Carson, Consumers Counsel;
they were not held. Therefore, he says
the prices were not validly established
But the Coal Commission, through its
chairman, Charles F. Hosford, jr., stoutly
maintains the position of Consumers
Counsel and the litigapts is wrong. Public
hearings are not necessary, he claims, to
make the orders of the commission consti-
tutional and secondly, are not required by
the act.
Believing as he does that the commission
has acted in legal manner, and that its
procedure was not arbitrary, Mr. Hosford
reiterated after a conference with the
President Monday an earlier statement
that I'VE have no intention of suspendine
the minimum prices" except as, and only
to the extent ordered by the court.
Hosford's Greed.
And the weapon he will WELD in defense
OF the commissions actions until the battle
is won or lost in the Supreme Court is this
- creed:
This commission exercises the function
Of government ordinarily termed legislative.
Il do not doubt the ability of Congress to
delegate such legislative authority.
Il do not doubt that legislative authority
can be exercised without prior public hear.
inss...
We believe we have proceeded in COM
plete conformity with the act"
Therein lies the cause for legal storm
that threatens to throw the bituminous
coal industry back, temporarily at least, to
. condition for which chaotic is too hack
neyed word; it does not portray the
depths to which it had sunk in the decade
from 1928 to 1888. A decade it was in
which the industry actually did not know
what It was to make profit OF bitter, cut
throat competition in which coal costing
about $1.25 ton for labor alone sometimes
eold for 2s cents . ton.
Back Of this creed, now the target of the
hedt artillery Of the courts, lies q story.
It 4nthe story of the industry and Of the
intsnetation it motivated.
AZ IN the case OF agriculture, the World
WahGfted the soft coal industry to strato-
xsphedc heights Of demand which opened
thotbands Of new mines, and then swept
swAs Ill props. leaving the industry to
cra4E with devastating effect. Soft coal