Evening star., 1941-04-30

other court IN history 10 supply
words and text to a statute which
were never approved by Congress.
The effect of the decision may be
epoch-making in American history.
For five juSticeS-a majority of the
court-say, in effect, that an en-
ployer must hire anybody who
claims he was Disseminated against
because of union afflliation when
applying for job. If the Labor
Board rules that the employer re-
fused to hire for one reason or an
other. it does not matter what the
evidence really shows-the Labor
Boards word is final. More than
this, even though the Wagner law
specifies what are or are not unfair
labor practices and permits the
board to issue an order to cease
and desist from such practices, the
statute did not give the board pow
er to think up any kind of punish
ment it cared to apply.
But the Supreme Court now says
a governmental board or commits
sion-not merely the Labor Board
but any governmental agency-can
apply puniShmentS of their own ir-
respective of whether such punitive
action is specified by Congress.
This form of administrative alb
solutism caused a revolt in the
House of Representative and the
Senate in the last session when the
Logan-Walter bill was passed by
an overwhelming vote only to be
vetoed by President Roosevelt. The
usurpation of the law-making power
by the highest court in the land
comes at a time when the Nation
Is engaged in a debate on the i'm
portance of combating the Fasist
system of government-imposed law
without recourse to national leg
islature.
Stone Praised for Dissent.
The latest instance, known as the
Phelps-Dodge case, revolved around
the refusal of the company to hire
two men who had been union agi-
tators. They were not employees of
the company when applying for
jobs and yet the Labor Board or
dered the company to hire them
end ordered also that back pay be
awarded to these non-employeS
from the date of their application
to the time the board ordered them
taken on by the company.
Nothing in the Wagner law au-
thorizes any such order by the
Labor Board. The law speaks of
"reinstating" employees, who are dis
charged because of union activity
or connections. But this covers an
empIoye already at work. The
chairman of the Labor Board told
committee of Congress last year
that he thought the Congress in
tended to make the law read in
state" as well as "reinstate" but
just forgot.
1t now develops that the five JUS
tices of the Supreme Court ap-
pointed by President Roosevelt de-
cided to supply the missing word
and it is a mark of credit to that
great liberal Harlan Fiske Stone,
Associate Justice, that he did not
concur in what the New Deal JUS
tices endeavored to do. This is
one of the rare occasions when
Justice Stone has been found dis
agreeing with the New Dealers. In
his dissenting opinion, which is also
concurred in by Chief Justice
Hughes, the following declaration
Is made by Justice Stone:
1--WE agree that the petitioners
refusal to hire two applicants for
Jobs. because of their union men,
bership. was an unfair labor prac-
tice within the meaning of the act,
even though they never had been
employees of the petitioner (the
company, and that under section
&c the board was authorized to
order petitioner to cease and deSiSt
from the practice and to take ap-
propriate proceedings under section
10 to enforce its order. But it is
quite another matter to say that
Congress has also authorized the
board to order the employer to
hire applicants for work, who have
never been in his employ and to
compel him to give them back
pay"
Supplying Missing Words.
If the Supreme Court of the
United States can supply missing
words in Federal statutes. not
merely by contortion of existing
language, but actually supplement-
ing the text itself, then the historic
form of government which Ameri-
ca has enjoyed for $50 years will
have vanished.
The extreme of administrative au-
tocracy and abSolutism, however
has been reached in another case
doubtless soon to be upheld by the
New Deals Supreme Court-Where-
in the Labor Board ordered an
employer to hire workers who had
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