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SA "We draw the conclusion: That way down deep in the conscience of American business, is the enduring belief that respect for the labor and trade practice standards fixed by the codes was a mark of decency in human relations and of economic good policy.

Finally, I desire to read this further extract from the editorial (reading:)

There may have been vehement objections to the elaborate administrative mechanism that was required to make the preservation of these standards a matter of law. But the desirability of those standards is unimpeached today. Certainly it would be a grave error for anyone to conclude that the destruction of the N. R. A. meant a destruction of the value of the unity which industry may create for itself by honoring the same ideals.

Mr. Chairman, there is the expression of an industry. Moreover it is a judgment that is entertained by many members of other industries who, unfortunately, are not in position to be as articulate as some of the larger industries whose industrial leaders have better access to public communication.

I thank you for giving me this time.

Mr. KELLER. While I was out did you make clear your idea of the extent to which Government control can rationally be exercised over business? I tried to ask that question yesterday but did not get to it. In other words, I have gathered that you have an idea of limited control.


Mr. KELLER. If you will be kind enough to tell us what sort of control we can exercise, to what extent it can be exercised, I would appreciate it. I want your judgment on that subject.

Mr. VINCENT. First let me say that market practices have developed changes which so affect price making that industry is entitled in some instances to relaxations of existing law. I think it cannot be questioned that where market practices can be standardized, made uniform, within an industry, and the consumer protected at the same time against a rigid price structure, industry should be permitted to develop such practices.

Mr. KELLER. What I was trying to get is this: Is industry in such position at the present time to control itself to its own advantage and the advantage of the remainder of the country without Federal control?

Mr. VINCENT. I cannot answer that. May I continue to say that it is equally necessary to establish certain minimum wage standards and maximum working hours. Industry is not in position to impose such controls upon itself, because it has no compulsory power over those of its members who will not adopt the standards deemed desirable. Moreover, on the subject of limitation of machine-hours, control of production, I have no objection to those devices when they are limited to emergency purposes. The objections I am making to them is when they are turned to as settled objectives. Fundamentally, in the long view, they are unsound.

Taking up your question, Mr. Chairman, will you please repeat it?

Mr. KELLER. We have had a great many witnesses here who have testified that the industry is not of itself in position to correct its misfortunes; that it is not able to enter into proper agreements or to enforce those agreements if entered into, having the necessity of obey


ing 49 different laws instead of 1 law. It has drifted powerfully to me that my judgment has been borne out by this investigation that industry is national in character and ought to be viewed from a national standpoint, and it can be carried on only to the advantage of the whole country by taking it from a national viewpoint. If that is wrong, I should be glad to have you set me right; and if it is right, I shall be glad to have you confirm it.

Mr. VINCENT. Obviously, whether it is a productive industry or a service industry or a distribution industry which extends beyond one State, industry has no way to develop mechanisms of self-control. There are too many contradictory interests within industry to permit them to agree upon self-government. Moreover, if they agreed, they have no effective powers of enforcing rules that may be adopted. It is equally obvious that no State can make reuglations that would be effective beyond its own borders.

A good illustration is this: You may take a distribution organization like the Woolworth store or the May store, or a chain of stores. They have a principal house in Chicago or New York City. That is a central office. They buy goods and sell them through stores in 10 or 25 States. The one company or corporate organization does that. The wages of the employees, the salaries of managers, the rent paid for the stores in these 10 or 25 States are fixed at the central office in Chicago or New York City. It is not a local transaction. The whole set-up is for a far-flung business that ignores State lines. The whole set-up is part of our National economy.

The same applies to a manufactured article which is made by more than one member of an industry, whether in the same or different Staies. It sells in markets in all States. A wide range ofjthe most commonly used commodities are sold in the markets of all the States. That is the answer.

I do not believe industry can be criticized for its incapacity to organize and govern itself, because it is too much split, it is too widely dispersed. There are too many conflicts in an industry to expect it to do that. Consequently the only conclusion is that there must be such Federal control effected as is essential to safeguard the interests of both the public and the industry. By “industry” I mean the investor, the technician, the manager, and the labor employed.

Mr. KELLER. And the people who buy the goods.
Mr. VINCENT. Yes; and the people who finally buy the goods.
Mr. KELLER. How can we come to that control?

Mr. VINCENT. The N. R. A. was one of the first steps. The A. A. A. T. V. A., A. E. C. and Social Security are others. They are of course experimental, as characterized by the President. Whether the next step by Government should follow the same patterns is not so serious a question.

Mr. KELLER. I am referring to the fundamental ability today. Under the recent decision of the Supreme Court we cannot have anything more like that. What would you do about it now?

Mr. VINCENT. Mr. Chairman, do you ask me what I would do about it?

Mr. KELLER. Yes.

Mr. VINCENT. You are a Member of Congress and you have a proper right to ask that question of a citizen, and, as a citizen, I will say to you that the Supreme Court has created a fundamental issue between itself and the Congress, not between the Court and the President.

The question is whether Congress shall exercise the powers which are expressly granted to it by the Constitution or whether without any authority in the Constitution the Supreme Court shall assume an authority to review or a power of veto over acts of Congress. The question

is a very serious one. I cannot conceive the perpetuation of a democratic government unless we can maintain the democratic process of making laws. A democratic process of making laws means the making of laws by a law-making body elected by the people. That is exactly what the Constitution provided for.

Next, the Constitution does not give to the Supreme Court by word or implication any authority whatsoever to nullify an act of Congress on a legislative subject, and commerce is, obviously, a legislative subject, just as the general welfare is a legislative subject. The common defence and taxation provisions are likewise legislative subjects.

I do not believe that on these subjects an amendment to the Constitution is necessary.

The third article of the Constitution, section 2, expressly authorizes the Congress to define and regulate the jurisdiction of the Supreme Court. We all know that the lower courts are created by act of Congress and have only such jurisdiction as Congress grants them.

I now answer your question, Mr. Chairman, by saying that the Congress of the United States should enact an amendment to the Judiciary Act taking from the lower courts original jurisdiction to entertain any action which challenges the constitutionality of an act of Congress on a legislative subject such as I have mentioned.

Next, the act should further provide for limiting the appellate jurisdiction of the Supreme Court, so that it may not pass upon the constitutionality of an act of Congress on a legislative subject.

Congress has that constitutional power by the most simple and explicit language.

Obviously, the Constitution intended what it expressly states, that is to vest all legislative power in the Congress. In addition it gave to Congress the power to define the jurisdiction of the courts. If the Congress cannot enact law which is effective, if the court has the power to nullify acts of Congress, we no longer have a democratic government. We cannot have a democratic government unless the people have power to make their own laws, by electing representatives to perform this function.

Mr. KELLER. I thank you for that answer, because it has enabled me to give expression to something I have been trying to express a long times.

By what method of reasoning does the Supreme Court of the United States demand that the Congress shall stay entirely within the specific powers granted, granted to it specifically in the Constitution, and yet the Supreme Court itself assumes and exercises a power which is not specifically granted to it?

Mr. VINCENT. If I were to make a suggestion to Congress and to the people of the United States, it would be to read the Constitution. Its language is characterized by brevity and simplicity. Very appropriately it expresses the powers granted to Congress in broad generalizations, as organic law should be expressed:

For example, on the subject of taxes it merely says that Congress shall lay and collect taxes. We cannot add one word to that provision without weakening it. That does not mean to lay taxes in some instances; it means power to lay and collect taxes in such instances and under such circumstances and under such conditions as in the discretion of Congress is justified.

We may say the same respecting the other expressed grants of legislative power to the Congress. They are expressed simply and briefly, in language that is easily understood. They have no meaning now only because their standard and well understood meaning has been distorted by unlawful refinements and interpretations.

The issue is clear Mr. Chairman. Is the Court, which is responsible to no authority but itself, or is the Congress, responsible as it is to the people who elect its Members at short intervals, the supreme law making body?

Mr. KELLER. We thank you very much for your statement, Mr. Vincent.



Mr. KELLER. The next witness is Mr. Harvey Willson, general manager of the National Upholstery and Drapery Textile Association, Inc., 185 Madison Avenue, New York City.

Mr. SCHNEIDER. Of what does that association consist? Mr. WILLSON. I shall come to that in a little while. I want to say first that we are appearing in opposition to H. R, 9072 on four main counts. First, it is discriminatory, insofar as the textile industry is concerned as compared with industry in general, The bill is founded upon false assumptions as to existing conditions or conditions existing in our industry at least. We believe the bill is unconstitutional in several particulars; and, most of all, perhaps, we believe it is fairly impracticable of successful administration.

To establish the identity of both the industry and association I represent I should like to quote from the letter of former National Recovery Administrator Johnson, with which letter he transmitted to the President of the United States the Code of Fair Competition for the Upholstery and Drapery Textile Industry. On page 261 of that printed code General Johnson said (reading]:

The production of upholstery and drapery fabrics is a business which, on equipment of great versatility, uses all types of fibers in producing fabrics to develop and meet style changes. Since its founding, it has been a separate and distinct branch of the textile industry, generally unaffiliated with the production of other textiles. This separation was the natural result of the variety of raw materials used and the special skill and art required in the manufacture of these fabrics. Sales also are made through specialized channels. Upholstery fabrics generally are sold direct to manufacturers of furniture, automobiles, railroad cars, and so forth. Drapery fabrics are sold direct by the mill to large retail outlets while smaller retail outlets are reached through wholesalers. The industry realizes that it is only a small branch of the whole textile industry but because of the variety of fibers used, its specialized type of products, and its separate distribution problems, it does not fit into any of the major classifications of textiles,

Further in that connection this same letter of former Administrator Johnson says that (reading]

The National Upholstery and Drapery Textile Å ssociation is truly representative of the upholstery and drapery industry and the bylaws of this association provide no inequitable restrictions to membership.


It is for that association that I am appearing. The industry is pretty generally concentrated in New England and the Middle Atlantic States, with some mills in Southern States, notably North Carolina and South Carolina. The membership of the association represents approximately 90 percent of what is known as the pilefabric production of the industry. Pile fabrics are the plush type as distinguished from what we know as flat goods, which are tapestries and so forth.

The association represents approximately 90 percent of the pile fabrics and 74 percent of the so-called flat fabric, made on 4 by 4 box broad looms with jacquard design requiring 600 hooks and 2 shuttles or more.

The association I represent firmly believes that the Ellenbogen bill in singling out as it does the textile industry, without apparent proof of their position being unique as compared with other industries in the United States, is doing the textile industry a distinct injustice, particularly when it is realized that the textile industry as a group are in the most keen sort of competition with all of the other industries in the United States, and abroad for that matter, for the consumer's dollar, and to place upon the textile industry burdens which are not at the same time placed upon competing industries for the same dollar is, as we believe, a very obvious discrimination and injustice.

Coming down to the so-called statement of fact or findings of fact upon which the Ellenbogen bill appears to be largely founded and justified, those statements and findings do not fit the picture for our industry at all. To be specific, and taking up the so-called findings of fact in the order mentioned in the bill, we come first to the matter of wages. As to wages the upholstery and drapery textile industry is not singled out for itemization in the Bureau of Labor Statistics, because, as you know, those statistics are compiled along the lines of major fabrics rather than in the nature of the goods made or the outlets through which they are distributed. Consequently, we cannot refer to Bureau of Labor data, but we do have, through the medium of the association, statistical service data showing that the average hourly earnings of workers of all types, skilled and unskilled, in the upholstery and drapery textile industry. These figures are more representative than the membership of our association alone. They are gathered from companies outside the membership of our organization. The figures show the average hourly earnings of 51.7 cents for factory workers and 51 cents for office workers. You will find by referring to the data of the Bureau of Labor Statistics that those figures compare favorably with the average hourly earnings shown for fabricproducing industries on page 7 of the November 1935 report. The figure there is 44.1 cents as an average for the fabric-producing industries. Weekly earnings are recorded as $15.92 for an average. That is substantially below the average weekly earnings of employees in the upholstery and drapery textile industry on the basis of a 40hour week.

The minimum wage provisions inaugurated by the N. R. A. code of our industry have been, are being, and will be maintained on the prevailing textile industry's basis of $12 in the southern region and $13 in the northern region. However, this industry is distinctly a skilled labor industry and in that connection I again refer to the

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