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Butler, opinion of Jan. 6, 1936) (A. A. A. decision). Not only does it involve a submersion of the Constitution but it lessens respect for law. Evasion by the legislature of normal legal procedure tends directly to bring about evasion on the part of those embraced within the scope of such legislation. It cannot reasonably be expected that laws which depend for their enforcement upon an abuse of power and a suspension of usual legal processes, will be welcomed, even by those most sympathetic with their ultimate purposes.

Furthermore, the line once crossed and the boundaries once broken, the trespass will inevitably become more extreme. It is possible to trace an evolution in recent legislation, stemming from cautious ramblings to outright invasions. There is no perceptible distinction in policy between the present proposal and the previous attempt on the part of Congress to exercise control in forbidden territories by abortive use of the taxing power and of the right to regulate commerce, of which the clearest examples are the A. A. A. and the child-labor legislation, the legal phases of which are discussed below.

B. The penalties are illegal and unconstitutional:

1. The proposed exclusion of unlicensed and unlabeled textile products from interstate commerce is so clearly condemned by the decision of the Supreme Court that there would seem to be no need for an extended discussion of this phase of the legislation. Reference may be made to the controlling case (Hammer v. Daggenhart, 247 U. S. 251). The Court said (pp. 273-276):

It is further contended that the authority of Congress may be exerted to control interstate commerce in the shipment of child-made goods because of the effect of the circulation of such goods in other States where the evil of this class of labor has been recognized by local legislation, and the right to thus employ child labor has been more rigorously restrained than in the State of production. In other words, that the unfair competition, thus engendered, may be controlled by closing the channels of interstate commerce to manufacturers in those States where the local laws do not meet what Congress deems to be the more just standard of other States.

The grant of power to Congress over the subject of interstate commerce was to enable it to regulate such commerce and not to give it authority to control the States in their exercise of the police power over local trade and manufacture.

The grant of authority over a purely Federal matter was not intended to destroy the local power always existing and carefully reserved to the States in the tenth amendment to the Constitution.

In our view the necessary effect of this act is, by means of a prohibition against the movement in interstate commerce of ordinary commercial commodities, to regulate the hours of labor of children in factories and mines within the States, a purely State authority. Thus the act in a twofold sense is repugnant to the Constitution. It not only transcends the authority delegated to Congress over commerce but also exerts a power as to a purely local matter to which the Federal authority does not extend. The far-reaching result of upholding the act cannot be more plainly indicated than by pointing out that if Congress can thus regulate matters entrusted to local authority by prohibition of the movement of commodities in interstate commerce, all freedom of commerce will be at an end, and the power of the States over local matters may be eliminated, and thus our system of government be practically destroyed.

The application of this decision to the present bill can best be illustrated by the language of Coleman, J., in his opinion upon the Public Utility Holding Company Act of 1935 (in the matter of American States Public Service Co., opinion of Nov. 7, 1935.) In this decision Judge Coleman reviews the cases in which Congress has properly regulated interstate commerce by exercising the power to prohibit the movement of persons or things in interstate commerce. After listing such regulation Judge Coleman concludes:

But it is to be soted that a sl of idese cases the power of exefision by Congress was upbeid because the excizia vis sobre as to the transportatien of harmful persies or the test is to be bares the strumentaties of interstate commerce, pecue beath, safety. sed moes being invived. The law that was poveit esca of these cases de presse test ice scipper of the harmful thing so be denied the right to the faces of commerce, except for the hardy_pose

The illegality of the proposed setion is also use apparent by consideration of analogous attempts on the part of the Federal Görernment to use the taxing power. An eariier attempt of this sort is found in the child labor tax legislation, which the Supreme Court held invalid, in the case of Bailey F. Dresd Furniture Co 259 L. S. 20). The Court, in condemning the attempt on the part of Congress "to break down all constitutional limitation of the powers of Congress and completely wipe out the sovereignty of the States," said as follows:

The analogs of the Degenhart case is clear. The coregressions. pener over interstate commerce is, within its proper scope, just as compete and matei as the congressional power to tas, and the legis stave tetive in its exercise is just as free from judicial suspicion and inquiry. Yet when Congress threatened to stop interstate commerce in ordinary and necessary courantes erobjectionable as subjects of transportation, and to deny the same te tie peuple era state in order to coerce them into compliance with Congress rexistrou of State concerns, the court said this was in fact regulation of intentate commerce but rather that of State concerns and was invalid. So here the secili tax is a penalty to coeree people of a State to act as Congress wishes them to set ia respekt of a matter complete the business of the State government under the Federal Constitution. This case requires as did the Dace naar ous the apparation of the principle announced by Chief Justice Marshall in lov. Varga Wheat. 316, 433), in a much quoted passage: "Should Congress m tiden eteeution of its powers, adopt measures which are prohibited by the Constitution; or should Congress, under the pretext of executing its poner pass law for the accomplishment of objects not entrusted to the Government; it would become the painful duty of this tribunal, should a case requiring such a decision come before it to say, that such an act was not the law of the land."

Mr. Chief Justice Hughes, in his book "The Supreme Court of the United States”, published in 1927 before his return to the bench, comments on the decision in the Child-Labor Tax case as follows:

The Court has gone very far in this view in sustaining the exercise of the Federal taxing power. But it is obvious that it might go so far that Congress under the guise of the taxing power could destroy all the reserved rights of the States. As Chief Justice Taft said in the recent Child Labor case with respect to the presumption of validity appearing on the face of the statute: "Grant the validity of this law, and all that Congress would need to do, hereafter, in seeing to take over to its control any one of the great number of subjects of public interest, jurisdiction of which the States have never parted with, and which are reserved to them by the tenth amendment, would be to enact a detailed measure of complete regulation of the subject and enforce it by a so-called tax upon departures from it. To give such magic to the word 'tax' would be to break down all constitutional limitation of the powers of Congress and completely wipe out the sovereignty of the States.” The Chief Justice then drew the distinction between a tax and a penalty and while pointing out that taxes are occasionally imposed in the discretion of the legislature on proper subjects with the primary motive of obtaining revenue from them and with the incidental motive of discouraging them by making their continuance onerous, such taxes do not lose their character as taxes because of the incidental motive. But there comes a time!

said he, “in the extension of the penalizing features of the so-called tax when it loses its character as such and becomes a mere penalty with characteristics of regulation and punishment." (Bailey v. Drexel Furniture Co., 259 Ü. S. 20, 38; see also, Trusler v. Crooks, 269 U. S. 475.) Such was the case then before the Court.

When the imposition is found to be a penalty, the Court must ascertain the authority of Congress to impose it as a feature, not of a tax law but of a regulation of the subject with respect to which the penalty is imposed.

The most recent decision of the Supreme Court to the same effect is the Butler case in which the Court held the Agricultural Adjustment ict unconstitutional. The heart of the decision is contained in the following significant sentence, and the sentence might figuratively be considred a sentence of death upon the bill now under consideration:

The expressions of the framers of the Constitution, the decisions of this Court interpreting that instrument, and the writings of great commentators will be searched in vain for any suggestion that there exists in the clause under discus. sion or elsewhere in the Constitution the authority whereby every provision and every fair implication from that instrument may be subverted, the independence of the individual States obliterated, and the United States converted into a central government exercising uncontrolled police power in every State of the Union, superseding all local control or regulation of the affairs or concerns of the States.

2. The proposed exclusion from the use of the mails of unlicensed textile products or of matter "pertaining to" such unlicensed products (sec. 12 of the bill) is invalid and unconstitutional.

Concededly, a new field of legislative coercion is sought to be opened up in this bil.

Apparently the precise question has never been presented to the Supreme Court as to how far Congress may go in excluding matter from the mail. It is difficult to preceive any fundamental distinction between this proposal and the proposal to prohibit the use of interstate instrumentalities to unlicensed textile products. Nevertheless, in view of the fact that different clauses of the Constitution are involved, and because of the novelty of the suggestion advanced by this bill, we believe the precise question should be analyzed here.

It may be repeated that no basic distinction is perceived between the foregoing types of extra-legal penalties and therefore we desire to stress the considerations advanced above as applicable to this situation.

The most illuminating decision upon the question of the right of Congress to regulate the use of the mails for what may fairly be called ulterior purposes is that of Justice Coleman in the case involving the Public Utility Holding Co. Act in the matter of American States Public Service Co., opinion filed Nov. 7, 1935). That act seeks to deny the use of the mails to all persons embraced within its provisions, in respect of all other activities, as a penalty for noncompliance and as a means of compelling compliance. As Judge Coleman pointed out in his decision, the proposed exclusions there (and precisely the same may be said in this case) bears no relation necessarily to the use itself, but to the user, of the mails.

The Government, in contending for the validity of the Public Utility Holding Company Act, that the power of Congress over the mails is by the Constitution absolute and proprietary and that there can be no mail facilities except those created by Congress. The court's analysis of this contention is detailed, and we believe that a summary of the salient features of Judge Coleman's opinion throws light upon the entire subject.

He points out that article I, section 8, clause 7 of the Constitution, grants to Congress the power to establish post offices and post roads." Although in the early years of the Government the view was held that this power did not include the construction and operation of agencies for carrying and distributing the mails, the view finally was adopted that the creation and regulation of the entire postal system was the necessary intent of the constitutional grant. The result is that Congress may exclude articles dangerous to mail employees or injurious to other mail matter, and may prevent the fraudulent or immoral use of the mails. Likewise, privileges of second-class mail rates may be granted. It is clear, therefore, that Congress may exclude 'offending things" from the mails.

Judge Coleman proceeds by indicating that the Supreme Court has upheld the right of Congress to exclude from the mails lottery tickets and related matter, obscene, seditious and fraudulent matter. These exclusions touch upon and relate to fraud, crime, and immorality Judge Coleman asks whether there are no limitations, and proceeds by giving the following answer:

May such right be exercised arbitrarily, in derogation of rights guaranteed by other parts of the Constitution? May Congress in fact indirectly, through its postal power, interfere at will with constitutional guaranties, when such interferences would be prohibited if attempted directly? In spite of certain statements in some of the earlier decisions which, if isolated and considered apart from the precise facts and the ratio decidendi of the given case, may lend some little support to an affirmative answer to this question, we nevertheless believe that the law is otherwise. Obviously, the first amendment which guarantees freedom of speech and of the press, is not violated by exclusion from the mails of lottery tickets (Ex parte Jackson; In re Rapier, supra); nor of seditious matter (United States v. Burleson, supra); nor of publications which fail to furnish information relative to ownership and circulation (Lewis Publishing Co. v. Morgan, supra). Similarly, the guaranty of due process of law under the fifth amendment is not denied by excluding from the mails publications which do not comply with postal regulations requiring information as to ownership and circulation (Lewis Publishing Co. v. Morgan, supra); or seditious matter (United States v. Burleson, supra); or when letters sent for illegal purposes are seized and returned to the sender, under postal regulations; or where the Postmaster General, in the exercise of authority vested in him by Congress, determines, on the basis of substantial evidence, upon exclusion of certain matter after due notice, and after a hearing had been afforded (Public Clearing House v. Coyne, United States v. Burleson, supra).

"Has exclusion from the mails ever been upheld by the Supreme Court where the matter excluded was not, in and of itself, either (1) offensive or harmful to the public generally, or (2) not in compliance with postal regulations reasonably calculated to aid in the efficient maintenance and conduct of the mail service? Our investigations disclose no such decision. But, it is said, the Supreme Court has never been called upon directly to decide the question of how far exclusion may go. True, but the decisions very definitely support the conclusion here reached, to wit, that the exclusion must rest directly upon a regulation of the mails, that is, of the use of the mails,-of the thing mailed, -and not upon a regulation of the user. In Lewis Publishing Co. v. Morgan, supra, the Court said (p. 313): ‘That Congress in exerting its power concerning the mails has the comprehensive right to classify which it has exerted from the beginning and therefore may exercise its discretion for the purpose of furthering the public welfare as it understands it, we think it too clear for anything but statement; the exertion of the power of course, at all times and under all conditions being subject to the express or necessarily implied limitations of the Constitution. In this case, the Government had contended that the postal power 'conveys an absolute right of legislative selection as to what shall be carried in the mails and which therefore is not in any wise subject to judicial control, even though in a given case it may be manifest that a particular exclusion is but arbitrary beanuse resting on no dis

V. The bill as drafted contains many flaws and defects, the more glaring of which are summarized berein. Although some defects may be cured, the most outstanding objections are inherent in the bill itself and are not susceptible of correction.

(A) Perhaps the most obvious legal defects in the bill revolve about the proposed delegation of legislative powers to the Textile Commission. These proposals, of course, constitute defects which are not alone based upon faulty draftsmanship but are illegal and unsupportable in theory.

1. In section 18 of the bill it is proposed to grant to the commission the power to study classifications of occupations and wage differentials and — whenever the Commission shall find that differentials of wages above the minimum, as found by the commission to be equitable and proper, are not being maintained, or that competition in or directly affecting interstate commerce is tending to reduce such proper wage differentials above the minimum, and that collective bargaining has failed to correct such situation, it shall have power, after appropriate notice and hearing, to establish minimum wages for various classifications of occupations.

The section contains certain so-called standards ostensibly for the guidance of the Commission in the establishment of classified minimum wages.

2. Section 21 of the bill would authorize the Commission to determine "specific operations and occupations which are hazardous in nature or dangerous to health", and after such determination the section places restrictions upon the right of employers to employ individuals under 18 years of age.

3. Section 24 (d) of the bill virtually grants to the Commission the power to legislate with respect to employers' liability or group accident insurance in the absence of a State law.

4. Section 26 of the bill would grant to the Commission the power to "prescribe reasonable limitations” upon productive operations.

The invalidity of the foregoing proposed delegation may best be summarized by quoting the words of Mr. Justice Cardozo concurring in the unanimous decision of the Supreme Court in the case of Schechter v. United States:

This court has held that delegation may be unlawful though the act to be performed is definite and single, if the necessity, time, and occasion of performance have been left in the end to the discretion of the delegate. Here, in the cast before us, is an attempted delegation not confined to any single act nor to any class or group of acts identified or described by reference to a standard. Here in effect, is a roving commission to inquire into evils, and, upon discovery, correct them.

The provisions cited above in the proposed bill is nothing more than what Mr. Justice Cardozo designated delegation running riot". Like the N. R. A. codes condemned by the Supreme Court, this bill is notrestricted to the elimination of business practices that would be characterized by general acceptation as oppressive or unfair. It is to include whatever ord: nances may be desirable or helpful for the well being or prosperity of the industry affected. In that view, the function of its adoption is not merely negative, ba positive; the planning of improvements as well as the extirpation of abuss What is fair, as thus conceived, is not something to be contrasted with whats unfair or fraudulent or tricky. The extension becomes as wide as the field á industrial regulation. (Justice Cardozo in the case cited.)

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