Evening star. [volume], April 13, 1937, Page A-7, Image 7

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DIGEST OF DISSENTING OPINIONS IN FOUR WAGNER CASES
COMBINING their dissenting
opinions in the labor relations
act cases of the Jones and
Laughlin Steel Corp., the
Fruehauf Trailer Co. and the
1 Friedmen-Harry Marks Clothing Co.,
Inc., Justices McReynolds, Van
De van ter, Sutherland and Butler de
clared yesterday that Congress had
transcended the powers granted in
its enactment of the Wagner law.
Read by Justice McReynolds, the
minority opinion contained the fol
lowing excerpts:
Mr. Justice Van Devanter, Mr. Jus
tice Sutherland, Mr. Justice Butler
and I are unable to agree with the
decisions just announced.
We conclude that these causes were
rightly decided by the three Circuit
Courts of Appeals and that their judg
ments should be affirmed. The opin
ions there given without dissent are
terse, ■well-considered and sound.
They disclose the meaning ascribed
by experienced Judges to what this
court has often declared and are set
out below in full.
Considering the far-reaching import
of these decisions, the departure from
what we understand has been con
sistently ruled here, and the extraor
dinary power confirmed to a board of
three, the obligation to present our
views becomes plain.
Cites Departure From Principles.
The court as we think departs from
well-established principles followed in
Schecter vs. The United States, 295
U. S. 495 (May, 1935) and Carter vs.
Carter Coal Co., 298 U. S. 238 (May,
1936), Upon the authority of those
decisions, the Circuit Courts of Ap
peals of the Fifth, Sixth and Second
Circuits in the causes now before us
have held the power of Congress under
the commerce clause does not extend
to relations between employers and
their employes engaged in manufac
ture. and therefore the act conferred
upon the National Labor Relations
Board no authority in respect of
matters covered by the questioned
orders.
In Foster Bros. Mfg. Co. vs. National
Labor Relations Board. 85 F. (2d) 984,
the Circuit Court of Appeals, Fourth
Circuit, held the act inapplicable to
manufacture and expressed the view
that if so extended it would be invalid.
Six district courts, on the authority
of Schechter’s and Carter’s cases,
have held that the board has no au
thority to regulate relations between
employers and employes engaged in
local production. No decision or judi
cial opinion to the contrary has been
cited, and we find none. Every con
sideration brought forward to uphold
the act before us was applicable to
support the acts held unconstitutional
in causes decided within two years.
And the lower courts rightly deemed
them controlling.
By its terms the labor act extends
to employers—large and small—unless
excluded by definition, and declares
that if one of these interferes with,
restrains, or coerces any employe re
garding his labor affiliations, etc., this
shall be regarded as unfair labor
practice. And a “labor organization"
means any organization of any kind
or any agency or employe representa
tion committee or plan which exists
for the purpose in whole or in part
of dealing w'ith employers concern
ing grievances, labor disputes, wages,
rates of pay. hours of employment or
conditions of work.
Sees Local Industry Controlled.
The three respondents happen to be
manufacturing concerns—one large,
two relatively small. The act is now
applied to each upon grounds com
mon to all. Obviously what is deter
mined as to these concerns may
gravely affect a multitude of employ
ers who engage in a great variety of
private enterprises—mercantile, man
ufacturing, publishing, stock-raising,
mining, etc. It puts into the hands
of a board power of control over
purely local Industry beyond anything
heretofore deemed permissible.
* * * *
In each cause the labor board for
mulated and then sustained a charge
of unfair labor practices toward per
sons employed only In production. It
ordered restoration of discharged em
ployes to former positions with pay
ment for losses sustained. These or
ders were declared invalid below upon
the ground that respondents while
carrying on production operations
were not thereby engaging in inter
state commerce; that labor practices
in the course of such operations did
not directly affect interstate com
merce; consequently respondents’ ac
tions did not come within congres
sional power.
* i 3k 3k
Test Applied to Smallest.
Our concern is with those activities
which are common to the three en
terprises. Such circumstances as are
merely fortuitous—size, character of
products, etc.—may be put on one
side. The wide sweep of the statute
will more readily appear if consider
ation be given to the board’s proceed
ings against the smallest and rela
tively least important—the clothing
company. If the act applies to the
relations of that company to em
ployes in production, of course it ap
plies to the larger respondents with
like business elements, although the
affairs of the latter may present other
characteristics. Though differing in
some respects, all respondents pro
cure raw materials outside the State
where they manufacture, fabricate
within and then ship beyond the
State.
* # * *
In the Summer of 1935 the em
ployes at the Richmond plant formed
a local of the Amalgamated Clothing
Workers and solicited memberships.
The management at once indicated
opposition and declared it would not
permit employes to join. Hostile acts
and the circumstances of the dis
charge or demotion of complaining
employes are described. It is said all
were discharged or demoted because
of union membership. And further
that "interference by employers in
the men’s clothing industry with the
activities of employes in joining and
assisting labor organizations and their
refusal to accept the procedure of
■collective bargaining has led and
tends to lead to strikes and other
labor disputes that burden and ob
struct commerce and the free flow
thereof.”
The number of employes who joined
the union does not appear; the gen
eral attitude of employes toward the
union or the company is not disclosed;
the terms of employment are not
stated—whether at will, by the day
or by the month. What the local
chapter w'as especially seeking at the
time we do not know.
No Strife In Evidence.
It does not appear that either prior
or subsequent to the “complaint,”
there has been any strike, disorder or
industrial strife at respondent’s fac
tory, or any interference with or stop
page of production or shipment of its
merchandise. Nor that alleged unfair
labor practices at its plant had mate
rially affected manufacture, sale or
distribution; or materially affected,
-A >.
r —— ♦;
Senator Wagner Pleased
Sponsor of the national labor relations act, Senator Wagner,
Democrat. of New York, is shown here at the left receiving con
gratulations of Senator Guffey, Democrat, of Pennsylvania,
after Supreme Court upheld law in five cases yesterday.
___—Underwood & Underivood Photo.
burdened or obstructed the flow of
products; or affected, burdened or ob
structed the flow of Interstate com
merce, or tended to do so.
The board concluded that the cloth
ing company had discriminated in re
spect to tenure and employment and
thereby had discouraged membership
in the union; that it had Interfered
with, restrained and coerced its em
ployes in violation of rights guaran
teed by section 7 of the national labor
relations act; that these acts occurred
.' the course and conduct of commerce
among the States, immediately affect
employes engaged in the course and
conduct of interstate commerce, and
tend to lead to labor disputes burden
ing and obstructing such commerce
and the free flow thereof.
An order followed, March 28. 1936,
which commanded immediate rein
statement of eight discharged em
ployes and payment of their losses;
also that- the company should cease
and desist from discharging or dis
criminating against employes because
of connections with the union, should
post notices, etc. On the same day
the board filed a petition asking en
forcement of the order in the United
States Circuit Court of Appeals (Sec
ond Circuit) at New York, which was
denied July 13, 1936.
question on congressional Power.
The precise question for us to de
termine is whether in the circum
stances disclosed Congress has power
to authorize what the Labor Board
commanded the respondent to do.
Stated otherwise, in the circumstances
here existing could Congress by stat
ute direct what the board has ordered?
* * * *
Any effect on interstate commerce
by the discharge of employes shown
here, would be indirect and remote
in the highest degree, as considera
tion of the facts will show. In No.
419 ten men out of 10,000 were dis
charged: in the other cases only a
few. The immediate effect in the
factory may be to create discontent
among all those employed and a
strike may follow, which, in turn, may
result in reducing production, which
ultimately may reduce the volume of
goods moving in interstate commerce.
By this chain of indirect and pro
gressively remote events we finally
reach the evil with which it is said
the legislation under consideration
undertakes to deal. A more remote
and indirect interference with inter
state commerce or a more definite in
vasion of the powers reserved to the
States is difficult, if not impossible,
to imagine.
The Constitution still recognizes
the existence of States with inde
structible powers; the tenth amend
ment was supposed to put them be
yond controversy.
We are told that Congress may pro
tect the "stream of commerce" and
that one who buys raw material with
out the State, manufactures it therein,
and ships the output to another State
is in that stream. Therefore it is
said he may be prevented from doing
anything which may interfere with
its flow.
This, too, goes beyond the constitu
tional limitations heretofore enforced.
* * * *
And if this theory of a continuous
“stream of commerce" as now defined
is correct, will it become the duty of
the Federal Government hereafter to
suppress every strike which by pos
sibility may cause a blockade in that
stream?
* * * *
No such continuous stream is
shown by these records as that which
counsel assume.
No Reasonable Grounds.
There is no ground on which rea
sonably to hold that refusal by a man
ufacturer, whose raw materials come
from States other than that of his
factory and whose products are regu
larly carried to other States, to bar
gain collectively with employes in his
manufacturing plant, directly affects
interstate commerce.
* * * *
It is gravely stated that experience
teaches that if an employer discour
ages membership in "any organization
of any kind” “in which employes
participate, and which exists for the
purpose in whole or in part of dealing
with employers concerning grievances,
labor disputes, wages, rates of pay,
hours of employment or conditions of
work,” discontent may follow and this
in turn may lead to a striae, and as
the outcome of the strike there may
be a block in the stream of interstate
commerce. Therefore Congress may
inhibi the discharge! Whatever effect
any cause of discontent may ulti
mately have upon commerce is far
too indirect to justify congressional
regulation. Almost anything—mar
riage, birth, death—may in some
fashion affect commerce.
Power in Direct Interference.
That Congress has power by appro
priate means, not prohibited by the
Constitution, to prevent direct and
material interference with the con
duct of interstate commerce is settled
doctrine. But the interference struck
at must be direct and material, not
some mere possibility contingent on
wholly uncertain events; and there
must be no impairment of rights guar
anteed.
* * * *
The things inhibited by the labor
act relate to the management of a
manufacturing plant—something dis
tinct from commerce and subject to
the authority of the State. And this
may not be abridged because of some
vague possibility of distant iriterferance
with commerce.
* * * *
The right to contract Is fundamental
and includes the privilege of selecting
those with whom one is willing to
assume contractual relations. This
right is unduly abridged by the act
now upheld. A private owner is de
prived of power to manage his own
property by freely selecting those to
whom his manufacturing operations
are to be intrusted. We think this
cannot lawfully be done in circum
stances like those here disclosed.
It seems clear to us that Congress
has transcended the powers granted.
* * * *
Associated Press Dissent.
The dissent in the Associated Press
case, read by Justice Sutherland, fol
lows in part:
One of the points made in the court
below and assigned as error here is that
the statue involved, as applied,
abridges the freedom of the press in
violation of the first amendment.
The Associated Press is engaged in
collecting, editing and distributing
new to its members, publishers of some
1,300 newspapers throughout the
United States. These newspapers
represent many diverse policies and
many differences in point of view. It,
obviously, is essential that the news
furnished should not only be without
suppression, but that it should be, as
iar as possible, free from color, bias
or distortion. Such is the long
established policy of the Associated
Press. If the congressional act here
involved, upon its face or in its present
application, abridges the freedom of
petitioner to carry its policy into effect,
the act to that extent falls under the
condemnation of the first amendment.
We shall confine ourselves to that
question, the gravity of which is
evident, but we do not mean thereby
to record our assent to all that has
been said with regard to other ques
tions in the case.
* * * *
The destruction or abridgment of
a free press—which constitutes one
of the most dependable avenues
through which information of public
and governmental activities may be
transmitted to the people—would be
an event so evil in its consequences
that the least approach toward that
end should be halted at the thresh
hold.
♦ * * *
Freedom Ls not a mere intellectual
abstraction; and it is not merely a
word to adorn an oration upon occa
sions of patriotic rejoicing. It is an
intensely practical reality, capable of
concrete enjoyment in a multitude of
ways day by day. When applied to
the press, the term freedom is not to
be narrowly confined; and it obviously
means more than publication and cir
culation. If freedom of the press does
not include the right to adopt and
pursue a policy without governmental
restriction, it is a misnomer to call it
freedom. And we may as well deny
at once the right of the press freely
to adopt a policy and pursue it, as to
concede that right and deny the lib
erty to exercise an uncensored judg
ment in respect of the employment
and discharge of the agents through
whom the policy is to be effectuated.
In a matter of such concern, the
judgment of Congress—or, still less,
the judgment of an administrative
censor—cannot, under the Constitu
tion, be substituted for that of the
press management in respect of the
employment or discharge of employes
engaged in editorial work. The good
which might come to interstate com
merce or the benefit which might
result to a special group, however
large, must give way to that higher
good of all the people so plainly con
templated by the imperative require
ment that "'Congress shall make no
law * * * abridging the freedom * * *
of the press.”
Strong sympathy for or strong
prejudice against a given cause or the
efforts made to advance it has too
often led to suppression or coloration
of unwelcome facts. It would seem
to be an exercise of only reasonable
prudence for an association engaged
in part in supplying the public with
fair and accurate factual information
with respect to the contests between
labor and capital, to see that those
whose acivities include that service
are free from eiher extreme sympathy
or extreme prejudice one way or the
other.
♦ * * *
The conclusion that the first amend
ment is here infringed does not chal
lenge the right of employes to organ
ize, to bargain collectively with their
employers about wages and other mat
ters respecting employment, or to re
fuse to work except upon conditions
they are willing to accept. Nor, the
first amendment aside, does it chal
lenge the act In so far as it is an
allowable regulation of interstate com
merce. All affirmations in respect of
these matters may be fully conceded
without prejudice to our very definite
view that the application of the act
here has resulted in an unconstitu
tional abridgment of the freedom of
the press.
Do the people of this land—in the
providence of God, favored, as they
sometimes boast, above all others in
the plenitude of their liberties—desire
to preserve those so carefully protected
by the first amendment: Liberty of
religious worship, fr'edom of speech
and of the press, and the right as
freemen peaceably to assemble and
petition their- Government for a re
dress of grievances? If so, let them
withstand all beginnings of encroach
ment. For the saddest epitaph which
can be carved ii memory of a van
ished liberty is that it was lost be
cause its possessors failed to stretch
forth a saving hand while yet there
waa tan*. '
•i.
WAGNER’S MICE'
WITH COURT SEEN
Friends Say Roosevelt May
Name Social Legisla
tion Ally.
By the Associated Press.
Senator Bob Wagner, author of the
Labor Relations Act ruled on yesterday
by the Supreme Court, is considered
by friends a likely choice for service
on that' court himself some day.
If and when President Roosevelt
has the opportunity to appoint Justices,
many believe his long-time ally on
behalf of social legislation will be
among those considered. However,
should the Roosevelt court bill become
law, constitutional limitations might
prevent selection of any present mem
ber of Congress for the bench.
Since serving together in the New
York Legislature years ago, they
usually have been of one mind on
social questions. As President, Mr.
Roosevelt looked to Senator Wagner
for leadership first in enactment of
N. R. A., later for labor laws and the
Social Security Act.
Now the stocky, Incisive Senator is
championing the bill to carry out the
Democratic pledge of low-cost housing.
"I lived in the slums,” Wagner says
simply, in tracing his philosophy of
Government.
Coming to this country from Ger
many as a lad, he soon was helping his
parents by selling newspapers on the
teeming streets of the metropolis. By
work, saving, study and a talent for
making friends he became a leading
member of the bar and in Tammany
councils.
Whether as Lieutenant Governor of
New York, Democratic leader in the
State Senate of justice of the State
Supreme Court, his viewpoint on social
issues remained the same. He was
advocating a gigantic public works
program in the Senate for months
before Mr. Roosevelt became President
and the program became a fact
Seen in a crowd. Wagner would be
taken for a prosperous business man.
He prefers well-tailored, double
breasted suits of somber color. He is
used to talking in millions, not for
profit for himself, but rather that
Federal financial strength should be
used "'to make democracy work well,
as a disproof of Fascist doctrines on
the one hand and communistic on the
other.”
Friends honored him at a testi
monial dinner in New York only a few
weeks ago. Postmaster General Farley
expressed hope that Wagner would
eventually reach the Supreme Court.
Now serving his second Senate term,
to end in 1939. he will celebrate his
sixtieth birthday in June.
Judicial
(Continued From First Page.)
in a brief opinion, pointing out that
no questions of interstate commerce
was involved and holding that the law
did not deprive the company of any
property rights under the due process
clause. The company was ordered
to reinstate with back pay some 21
employes discharged after they had
joined a union.
Curb on Press Denied.
The Associated Press case presented
two major questions—whether the
press association was engaged in in
terstate commerce and whether the
law as applied to it violated the free
dom of the press. The opinion an
swered the first proposition in the
affirmative and held there had been
no invasion of the freedom of the
press. It also said the act did not
deprive the association of due process
of law in compelling collective bar
gaining with employes.
The ruling had the effect of ordering
the reinstatement of Morris Watson,
New York editorial employe, with back
pay. The National Labor Relations
Board found he had been dismissed be
cause of his activity in the American
Newspaper Guild, although the press
association said he was discharged be
cause his work had not been up to his
proven capability.
The real test in the law came in the
steel corporation ■'°se—a long-awaited
ruling which attracted to the spacious
court room such notables as Mrs.
Charles Evans Hughes, wife of the
Chief Justice; W. S. Van Dyke, motion
picture director; Mrs. J. Borden Harri
man, mentioned for appointment as
Minister to Norway; Mrs. Gifford Pin
chot. wife of the former Governor of
Pennsylvania, and Mrs. Mable Walker
Willebrandt, former Assistant Attor
ney General.
Sweeping Decision.
Having decided to uphold the law,
the court, in the opinion read by the
Chief Justice, minced no words in
stating its position.
The old rule that Congress could
regulate only matters having a direct
effect on interstate commerce went by
the boards, the court holding in effect
that the Federal Government also can
regulate a labor activity having an in
direct effect on interstate commerce if
its effect is a substantial one.
Commenting on a plea by counsel
for the steel corporation that the court
consider only direct effects, the Chief
Justice said:
“We are asked to shut our eyes to
the plainest facts of our national life
and deal with the question of direct
and indirect effects in an intellectual
vacuum. Because there may but
indirect and remote effects upon inter
state commerce in a host of local en
terprises throughout the country it
does not follow that other industrial
activities do not have such a close
and Intimate relation to inter
state commerce as to make the pres
ence of industrial strife a matter o' the
most urgent national concern.
"When industriees organize them
selves on a national scale, making
their relation to interstate commerce
the dominant factor in their activi
ties, how can it be maintained that
their industrial labor relations con
stitute a forbidden field into which
Congress may not enter when it is
necessary to protect interstate com
merce from the paralyzing conse
quences of industrial war? We have
often said that interstate commerce
Itself is a practical conception. It is
equally true that interferences with
that commerce must be appraised by a
judgment that does not ignore actual
experience.”
Opens Door to Regulation.
In this holding that the labor rela
tions of a steel manufacturer are
subject to Federal regulation under
the commerce clause, the court opened
tha door to regulation by Congress
1 Victor
CHARLES E. WYZANSKI, JR.,
Who resigned as solicitor of
the Labor Department to take
special assistant’s post in
Justice Department in order
that he might argue Govern
ment's cases in defense of la
bor relations act.—A. P. Photo.
of factors giving rise to strikes in
virtually all of the larger industries
of the country.
Despite the liberality of its lan
guage, however, the court sounded a
note of warning in these words:
"The authority of the Federal Gov
ernment may not be pushed to such
an extreme as to destroy the distinc
tion, which the commerce clause itself
establishes, between commerce among
the several States and the internal
concerns of a State. That distinc
tion between what is national and
what is local in the activities of
cofnmerce is vital to the maintenance
of our Federal system."
Reviewing the extensive activities
of the steel corporation in numerous
States, the opinion added:
"To cany out its activities 33,000
men mine ore, 44 000 men mine coal,
4,000 men quarry limestone, 16,000
men manufacture coke. 343.000 men
manufacture steel and 83,000 men
transport its product. The company
has about 10,000 employes in its Ali
quippa. Pa , plant, which is located
in a community of about 30,000 per
sons."
I-can to Conserving Acts.
In another section of the opinion,
the Chief Justice answered assertions
by proponents of the President’s bill
that the court has erred in failing to
hold laws valid unless clearly shown
to be otherwise. On this point, he
said:
i ne cardinal principle of statutory
construction is to save and not to
destroy. We have repeatedly held that
as betwen two possible interpretations
of a statute, by one of which it would
be unconstitutional and by the other
valid, our plain duty is to adopt that
which will save the act.”
Mr. Huhges asserted that the right
of employes to organize and select
representatives of their own choosing
for collective bargaining or mutual
protection is a "fundamental right.”
' Employes have as clear a right to
organize and select their representa
! lives for lawful purposes," he declared,
, "as the respondent has to organize its
business and select its own officers
and agents. Discrimination and co
ercion to prevent the free exercise of
the right of employes to self-organiza
tion and representation is a proper
i subject for condemnation by compe
tent legislative authority."
Has Power to Protect.
Turning then to consideration of
the contention that while the act
might be applicable to workers ad
! mittedly engaged in interstate com
merce, it could not be applied to those
engaged in manufacturing, the opin
ion said:
“The congressional authority to pro
tect interstate commerce from bur
dens and obstructions is not limited
to transactions which can be deeemed
to be an essential part of a 'flow’ of
interstate or foreign commerce. Bur
dens and obstructions may be due to
injurious action springing from other
sources. The fundamental principle
is that the power to regulate com
merce is the power to enact 'all ap
propriate legislation for its protection
and advancement.’ That power is
plenary and may be exerted to pro
tect interstate commerce, 'no matter
what the source of the dangers which
threaten it.’ ”
The majority opinion made short
work of the argument that intrastate
activities cannot have an efTect on
interstate commerce that is subject to
congressional control.
“That intrastate activities,” the
opinion asserted, “by reason of close
and intimate relation to interstate
commerce, may fall within Federal
control is demonstrated in the case of
carriers who are engaged in both in
terstate and intrastate transportation.
* * * The close and intimate effect
which brings the subject within the
reach of Federal power may be due to
activities in relation to productive in
dustry, although the industry when
separately viewed is local. * * * It is
thus apparent that the fact that the
employes here concerned were engaged
in production is not determinative.”
Answers “Stopping Point” Argument.
Answering the contention that a
strike at the steel mill, described by
counsel as “a stopping point” in the
flow of commerce, would not affect in
terstate commerce, the Chief Justice
said:
i “* * * The fact remains that the
stoppage of those operations (of the
steel mill) by industrial strife would
have a most serious effect upon inter
state commerce. In view of respond
ent’s far-flung activities, it is idle to
say the effect would be indirect or
remote. It is obvious that it would be
immediate and might be catastrophic.”
The Chief Justice said -“experience
has abundantly demonstrated that the
recognition of the right of employes to
self-organization and to have repre
sentatives of their own choosing for
the purposes of collective bargaining
is often an essential condition of in
dustrial peace. Refusal to confer and
negotiate," he added, “has been one of
the most prolific causes of strife.”
After pointing out that the act does
not compel agreements between em
ployers and employes, the opinion
turned to a consideration of the charge
that it imposes too many obligations
on the employer and none on the em
ploye.
“The act,” he said, “has been criti
cized as one-sided in its application;
that it subjects the employer to super
vision and restraint and leaves un
touched the abuses for which em
ployes may be responsible. That it
A
Wagner Act Explained
Labor Law Does Not Stop All Strikes, but Employers’
Compliance Would Avert Them—Ford
Subject to Law.
By the Associated Press.
Here are answers to some questions
of the man in the street concerning
the Wagner labor relations act, up
held yesterday by the Supreme Court:
Q. What rights does the national
labor relations act guarantee to labor?
A. It gives working men the right
to organize unions and to bargain
collectively with their employers
through chosen representatives. It
restrains employers from "unfair
labor practices,” Including Interfer
ence with labor organizations and
discrimination against their members.
Q. Who enforces these rights and
guarantees?
A. The National Labor Relations
Board, a three-member quasi-judicial
unit of the Federal Government.
Q. Does the Wagner act set up wage
and hour standards?
A. No. It merely assures the work
er the right to bargain for them.
Q. Will it stop all strikes?
A. The law says "Nothing in this
act shall be construed so as to inter
fere with or impede or diminish in
any way the right to strike.” J. War
ren Madden, chairman of the board,
said if employers will comply, further
strikes will not be necessary to estab
lish the right of collective bargaining.
Q How does the board determine
what organization will represent the
workers in a plant?
A. By taking a secret vote of the
workers. The representatives named
by a majority of the employes be
come the exclusive spokesmen for all
the employes.
Q. Can a worker choose not to
Join the selected union?
A. Yes, but the union would still
speak for him in bargaining on wages
and working conditions.
Q. Henry Ford has declared he
would deal with his men individually
fails to provide a more comprehensive
plan—with better assurance of fair
ness to both sides and with increased
chances of success in bringing about,
if not compelling equitable solution of
industrial disputes affecting inter
state commerce.
"But we are dealing with the power
of Congress, not with a particular pol
icy or with the extent to which policy
should go. We have frequently said
that the legislative authority, exerted
within its proper field, need not em
brace all the evils within its reach.”
In the steel case and those involving
the trailer company and the clothing
concern, the Supreme Court reversed
findings by the lower courts. The As
sociated Press and the bus company
lost in the lower tribunals.
Although the court prepared sep
arate opinions in the trailer and cloth
ing cases, the same questions of law
were involved, and the same conclu
sions reached.
The dissenting opinion in the three
manufacturing cases said in part:
“The right to contract is funda
mental and includes the privilege of
selecting those with whom one is will
ing to assume contractual relations.
This right is unduly abridged by the
act now. unheld. * * *
“Obviously, wnat is determined as
to these three concerns may gravely
affect a multitude of employers who
engage in a great variety of private
enterprise. It puts into the hands of
a board power of control over purely
local industry beyond anything here
tofore deemed permissible."
The Wagner law went on the statute
books July 5, 1935. In signing the
measure, President Roosevelt said it
“should serve as an important step
toward the achievement of just and
peaceful labor relations in industry.”
Legislative
(Continued From First Page !
Carolina has declared he may intro
duce a bill to prohibit sit-down
strikes.
First Federal judge to appear in
opposition to the court reform pro
posal. Judge Knox told the committee
it should not be approved.
It is entirely natural, he said, that
judges should divide on constitutional
questions, adding that the addition of
new justices would give no assurance
of unanimous opinions.
Judge Knox also excoriated Post
master General Farley's appeal to
party loyalty and the assertion that
the election gave President Roosevelt
a mandate to revamp the court. He
said:
"The most specious argument that
has been advanced for the so-called
reformation of the court is that the
measure should be supported out of
loyalty to the party.
“As a Democrat who refuses to be
read out of his party because of his
stand upon the issue before you I
say that the argument that party
regularity should affect the outcome
is unworthy of discussion. So far as
I can observe, the real issue is whether
certain reforms, presently considered
to be desirable of attainment, shall be
secured in an orderly, constitutional
procedure or through a program
which, if not unconstitutional, is
definitely and positively anti-consti
tutional.
"As citizens of a free State, let us
be careful that through specious rea
soning and fallacious argument wre do
not create a situation whereby our
judicial establishment will be rendered
akin to those that are to be found
in certain foreign lands whose ex
ample we have no wish to follow.
Answers Mandate Argument.
"A typical argument against the
use of the amending process is that
the administration has a mandate
from the people. I should like to say,
point blank, that when I voted for
Mr. Roosevelt it never occurred to me
that I was contributing to any such
mandate. Likewise, point blank, I
want to declare that if this issue had
been clearly presented in the cam
paign, the President would have been
denied my vote.
“Furthermore, I point to the mes
sage which accompanied this bill. It
makes no pretense that the people
ever had an opportunity to consider
the proposal. In fact, I know one
man who campaigned for the admin
istration. He has told me of his em
barrassment when, during the can
vass, he was asked how various ends
would be achieved in the light of
certain decisions of the Supreme
Court. He reports that he generally
glossed over the problem. Such, too,
I think, was the approach made to
the people throughout the entire
' Democratic campaign. Men who
worked valiantly to elect the Presi
*
I
and not through unions. How does
the court decision affect his policy?
A. Chairman Madden said “it leaves
Henry Ford subject to the law,” which
guarantees the right of workers to
collective bargaining.
Q. In the General Motors and
Chrysler labor disputes, both companies
agreed after the strikes to recognize
the union as representative of its own
members, but not of other workers.
How was this possible?
A. No election was requested to de
termine if the union spoke for a ma
jority of employes.
Q. Can corporations still promote
"company unions'' or employe repre
sentation plans?
A. The law forbids corporations
from dominating or interfering with
unions or contributing to their sup
port. President Green of the Ameri
can Federation of Labor said, "It
means the end of company unions.”
Q. Will the Labor Relations Board
have authority over bargaining in all
industrial plants in the United States?
A No. The law applies only to
| firms held to be in interstate com
merce.
Q. Who decides whether a firm is in
interstate commerce?
A. Lawyers believe future decisions
j of the Supreme Court will determine
! cases where a question arises.
Q Is an owner barred from dis
missing any union man without con
sent of the union?
A. No, but a worker cannot be dis
! missed because of union membership
or activity.
Q. Suppose a company believes the
i board has been unfair. Has it any
1 redress?
' A. Yes, it can defend itself in hear- \
ings before the board, and attack the
* board's order in Federal Court.
-1
dent never were advised of the bill ;
that now agitates the country.”
He also opposed the assignment of
judges from one circuit or district to
another.
“So far as my district is concerned."
he said, ”1 desire that it should never
for any purpose whatsoever be be
leagured by a flying squadron of
judges who, perhaps, under some con
ditions, might properly be classified
as privateers.”
i Judge Knox told Senator Connally,
1 Democrat, of Texas, he had held the
N. R. A constitutional in a case in
volving a cleaning company.
At another point, he denied the
Supreme Court acted improvidently in
refusing to review cases.
Dr. Bruce Hits Bill.
The bill also was opposed by Dr G
M. Bruce, secretary of the Luther
Theological Seminary of St. Paul,
Minn. Urging a constitutional amend
ment, he said:
"Personally, I am not opposed to
the principle of a reasonable retiring
age for judges, and. for that matter,
for all public officials, including cab
inet members I have consistently
supported such a move within my own
profession, that of teaching, and I am
slated for automatic retirement upon
attaining the age of 70 myself. « • *
l "But any such changes in the
fundamental policy with respect to
the Supreme Court should not be done
by mere legislation at the behest of
an ambitious Chief Executive, but j
I by the normal way of changing the
! basic law of the land. Amending the
j Constitution is not such a cumber
: some matter as to make it prohibi
; tive. nor is the change contemplated
in the present proposal pertaining to
the Supreme Court so imperative that
the normal processes of constitutional
amendment should be substituted by
direct and high-handed action, with
all the dangers such action unques
tionably involves.”
Hatch Sees Move Stronger.
Meanwhile, Senator Hatch. Demo
crat, of New Mexico, one of the non
committal members of the Judiciary
Committee, said he felt the Wagner
decisions would strengthen the court
bill In the Senate
Asserting it would now be easier for
him to support the bill. Hatch said:
“The Supreme Court has already
definitely changed the trend of judi
cial opinion.
ine chief desire of many who
have supported the President's plan
j was the hope of obtaining more lib
I eral interpretation of the Constitution
and legislation.
"That result already has been ac
complished by the decision of the Su
i preme Court itself.
"Congress can now discuss and con
sider the President's proposal without
I fear of changing the court to meet a
particular end or objective.
“It removes the charge of packing
I the court.
"We can now consider whether the
basic, permanent plan of injecting
i new blood is desirable. I am highly
j gratified at the turn of events, be
i cause I have believed that with pro
i per safeguards the plan for injection
I of new blood has merit.”
Foes Confer on Strategy.
Opposition Senators set aside time
from the committee hearings to con
fer on strategy. They insisted the
President should abandon his pro
posal, saying it was foredoomed
Senator Burke. Democrat, of Ne
braska, a foe of the measure, said
there was a possibility "a round-robin
signed by more than 50 per cent of
the Senators will ask the President to
withdraw the bill so far as it applies
to the Supreme Court.”
Three Democratic Senators gener- i
ally considered non-committal on the
issues—Brown of Michigan, Schwellen- 1
bach of Washington and Duffy of j
Wisconsin—Indicated they would be
receptive to compromise.
Senator Burke later told newspaper
men, “We agree there will be no 1
compromise.”
Opposition Claims Two.
"We are ready to go ahead,” Burke
added. "Already two members of the
Judiciary Committee have swung into
the opposition as a result of the court’s
decision.
“One was definitely for the bill, the
other was non-committal. We are
making quick progress.”
Burke did not name the two Senators
he said were turning against the bill.
Two changes, if not counteracted by
other shifts, would swing the closely
divided committee against the bill.
Administration aides were busy dur
ing the day checking in the Senate
to see what effect the decisions had
on senatorial opinions.
Charles West, a White House liaison
man, conferred with several Senators,
but kept silent on his findings.
Asserting Federal Court dockets are
GUILD WILL PUSH
Court’s Minority Opinion Bit
terly Resented, Says Hey
wood Broun.
By tile Associated Press.
NEW YORK. April 13—The fol
lowing statement was issued yesterday
by the American Newspaper Guild in
connection with the Supreme Court's
decisions upholding the Wagner labor
relations act:
“The Newspaper Guild is naturally
pleased at the victory which it has
won in the Supreme Court in the
Watson case. But, naturally, the
guild takes this occasion to point out
that its future must always rest pri
marily upon its organizational
strength. Even though a victory has
been won in the Watson case, the
guild can hardly forget that 18 months
elapsed before a man who was un
justly dismissed was restored to his
job.
“In its most immediate sense, the
5-4 decision of the court will stim
ulate the guild m perfecting its or
ganization for all wire services and
bringing about contracts through col
lective bargaining. We have reason
to hope now that this decision will
clear the way for the favorable and
immediate settlement of the National
Labor Relations Board cases concern
ing the Seattle Post-Intelligencer and
the right of collective bargaining on
the Associated Press.
“Without going into the possible
scope of the legal Implications, the
guild hopes and has a right to feel
that the spirit of the decision may
stay the hand of those publishers
who have fought the guild through
punitive action against pioneer or
ganizers.
“The American Newspaper Guild
bitterly resents the minority opinion,
which held against the restoration of
Morris Watson on the ground that
such action would impair the freedom
of the press. Working newspaper men
have an even greater stake in a free
press than any publisher. Reporters
have always sought not only a free
press, but for the integrity of the press,
because a kept press means that the
workers must accept a brass check,
and we want no brass checks, no mat
ter what imprint may be upon the
metal. Better working conditions do
not impair free press, but promote it.
“We rejoice at a victory, but we take
a victory not as any notice that we
may now sit back and turn our con
cerns over to any governmental au
thority. On the contrary-, we are stim
ulated to go ahead more vigorously
than ever before to achieve our ends
through the power of co-operation of
the newspaper men and women of
America, and we extend our congratu
lations to other labor groups who share
in this victory, since their fight is also
ours.
“HEYWOOD BROUN. President
“American Newspaper Guild “
APPROVAL FORECAST
FOR SOCIAL SECURITY
Wagner Ruling Strengthens Be
lief Other New Deal Act
Will Be Upheld.
The favorable ruling in the Wagner
cases has strengthened the oelief that
the court Will uphold the validity of
the social security act. the only im
portant New Deal measure now pend
ing before the tribunal.
Arguments were heard in the social
security case last week and a decision
may be announced when the justices
meet A.pril 26. after a two-week recess.
In addition to the validity of the Fed
eral law, the case also involves the
right of a State to impose an unem
ployment insurance tax on employes
to supplement the national legislation.
A similar law in New- York State
was upheld recently by a 4-to-4 vote.
Justice Stone not participating because
of illness.
•
PATIENT LOAD GAINS
7 DAILY AT GALLINGER
An average increase of seven pa
tients a day was handled at Gallin
ger Hospital during March, as com
pared with the corresponding month
a year ago, Supt, Edgar A. Bocock
reported today to the Board of Pub
lic Welfare.
An auxiliary ward opened during
March, housing an average of 30
patients daily, has done much, he
said, to improve conditions “which
otherwise would have been difficult
to control."
The tuberculosis division cared for
an average of 154.7 patients daily in
March, and the facilities available
were “continually taxed." he said,
despite the addition of 54 beds for
white patients.
Already the necessity for additional
beds for colored tubercular patients
is keenly felt, and the report said
plans to meet this demand are under
way.
congested only in “spots,” he added:
“I happen to be the senior district
judge in the southern district of New
York, which is one of the districts
that has lately been behind in its
work. With respect to this condition,
I can speak with authority. The
reasons for crowded dockets in the
southern district of New York are
entirely obvious.
“That district is not only the great
est population center upon the conti
nent, but is also the leading commer
cial center of the world. Practically
all of the large corporations have
offices, and are subject to process, in
this jurisdiction; generally, for rea
sons satisfactory to themselves, coun
sel for such corporations, if at all
possible, remove actions to the Federal
Court. Thus, the court is burdened
with many simple cases which could
Just as well be disposed of in State
courts.
“Furthermore, New York is Amer
ica's foremost maritime port. Hence,
a large proportion of all admiralty
cases are brought in the Southern dis
trict. In addition, most of our prose
cutions are of protracted length,
particularly in mail fraud cases. These
frequently consume six to eight weeks
of trial.”
-«
The nose of the LX-130, Germany's
new Zeppelin, has just been placed In
position.