Evening star., 1939-04-23

powers which are granted"
Continuing, the minority said:
''Whatever may be its declared policy
or appearance, the enactment operates
to control quantity raised by each farm
er. It is wholly fallacious to say that
the penalty is not imposed upon pro-
duction. The farmer raises tobacco
only for sale. Punishment for selling
is the exact equivalent of punishment
for raising the tobacco"
But the majority went even further
Monday in the Fainblatt case, which
raised the question whether the Labor
Relations Act is applicable to employers.
not themselves engaged in interstate
commerce, who are engaged in rela-
lively small business of processing ma
terials transmitted to them by owners
through the channels of interstate COM
merce and which, after processing, are
distributed through those channels.
In this case, Justice Stone, who dis
sented vigorously in the original A. A.
A. case, held for the majority that the
number of employees or the volume OF
business was immaterial to the issue,
and in footnote fatty declared that
Congress, under the commerce clause
may prohibit wholly intrastate ac-
tivities which, if permitted, would result
IN restraint of interstate commerce"
Holmes Dissent Vindicated.
The two decisions Monday, A. A. A
and Fainblatt, were the final vindication
of the late Justice Holmes dissent in
the child labor case of Hammer VS..
Dagenhart, in which the great justice
held that the child labor law did not
'meddle" with anything belonging to
the States.
In a third case, known as Buck vs.
Gallagher, Justice Black, in lone dis
sent, saw an affirmative diminution of
State power as well as an enlargement
OF Federal power. The issue here Was
whether Federal court could enjoin
enforcement of a Florida law making
1t unlawful for the American Society
of Composers, Authors and Publishers
to combine to fix prices of copyrighted
musical compositions. The majority, III
an opinion by Justice Reed, held the
Federal court properly had issued an
injunction against the operation of the
State law. In his dissent Justice BlacI.
said:
IF the States have somehow lost
their historic power to prohibit monopo-
listic price-f1xing combinations before
presentation Of evidence to a Federal
court. at what part in our history and
IN what manner did they lose it? The
elusive authority, by constitutional
amendment, to strip the States of their
exclusive power over price-fixing COM
bination and thus raise monopoly above
the traditional power of legislative
bodies"
The Strecker case, also decided Mon
day, was not as important from the view
point of constitutional history as it was
to the immediate political and industrial
situation. 1t IS noteworthy that the ma
jority opinion did not approve the gen.
eral finding of the Fifth Circuit Court of
Appeals that membership in the COM
munlst party in 1888 was deportablc
offense, but merely held that Strecker
could not be deported under existing
laws because he was not a member of
that party when arrested. From long,
range consideration, the decision was i'm
portant because the majority refused t.
give form to vague or ambiguous pro-
visions IN deportation laws and stated
That the responsibility was on Congress
10 say exactly what it intended.
The minority in this case, Justices
McReynolds and Butler, declared thev
had no misgivings as to the intent of
Congress and insisted that the Labor
departments deportation order should
be carried out in accordance with a pre-
cedent-making case by the Second Cir
cult Court of Appeals. The fact that
the Fifth Circuit judges and six men,
oers OF the Supreme Court found an
other meaning in the provisions indi-
Gates to a layman that these provisions
were not clear and positive expression
OF congressional intent" as claimed by
Justice McReynolds in his minority opin-
ion.
Contest Within Court.
In an opinion by Justice Frankfurter.
concurring with the majority in a Penn
sylvania public utility valuation case.
there was foreshadowed contest within
the court over the proper formula for
determining the rate bases Speaking
extemporaneously, Justice Reed, in sum-
marizing the majority opinion, declared
that the Pennsylvania Public Utility
Commission had followed the classical
lines" of Smyth VS.. Arnes in ordering q
reduction in the rates of Edison LIGHT
& Power Co., although the PENNSYLVANIA
law had permitted the commission to
use in fixing temporary rates the "pru-
dent investment" formula favored by
former Justice Brandeis.
Also speaking extemporaneously, JUS
tice Frankfurter declared the Classical
formula" for valuation laid down in
Smyth VS.. Ames was just so much mum
bo-j Jumbo" and that the decision itself
and the courts interpretations were
'snares" to confuse the courts, public
utility commissioners and all others con-
cerned with rate making.
In his formal concurrence, with
which Justice Black Joined, Justice
Frankfurter declared the majority opin-
ion gave new vitality needlessly to a
mischievous formula for fixing utility
rates."
One more point should be made about
Mondays historic session. The imposing
features of ,TnsticeS SlItherlopd yyon