1937 CONGRESSIONAL-RECORD-HOUSE 2025 Thomas A. Gianella, Marysville. HOUSE OF REPRESENTATIVES Fred R. carpenter, Middletown. GEORGIA TUESDAY, MARCH 9, 1937 Raymond G. Hudson, Blue Ridge. The House met at 12 o'clock noon. Jesse W. Mundy, Jonesboro. The Chaplain, Rev. James Shera Montgomery, D. D .• MASSACHUSETTS offered the following prayer: Thomas D. cUdihy, Marblehead. As we wait in this place of prayer, our Father, we trust Owen W. Gallagher, North Abington. that our grateful emotions are too deep for adequate expres .. Patrick J. McCarthy, Turners. Falls. sian. We give thanks to Thee, blessed Lord God, for Thou Stephen C. Luce, Vineyard Haven. dost remember us on our low estate; Thou givest grace and MICHIGAN glory and withholdeth no good thing. Oh, may Thy praise Enos C. Cole, Fowlerville. be continually in our hearts. We pray that Thy thoughts Emory M. Grilley, Grant. may be our thoughts and Thy ways our ways. Grant that Harry W. Denham, Litchfield. we may be potent factors in the extension of Thy kingdom, Wavial H. Howard, Marion. and hasten the time when men shall understand that "to be Henry E. Murpqy, Pinckney. carnally minded is death, but to be spiritually minded is life . Roy M. Gillies, West Branch. and peace.'~ Encompass us with that heavenly charity which recognizes in our brethren the good, and darken the eyes NEBRASKA that -see nothing but imperfection and failure. Unveil the Arthur M. Hart, Burchard. cross and may we behold Him, and help us to live in the Cyril John Dendinger, Hartington. spirit of adoring wonder, praise, and consecration. In His NEW MEXICO name. Amen. Alice L. Huff, Silver City. The Journal of the proceedings of yesterday was read and 1 NORTH DAKOTA approved. Sigrid Vick, Sheyenne. MESSAGE FROM THE PRESIDENT OXLAHOMA A message in writing from the President of the United Lewis E. Sloan, Alex. States was communicated to the House by Mr. Latta, one of Otis E. Cox, Barnsdall. his seCTetaries, who also informed the House that on the JohnS. Dawson, Bennington. following dates the President approved and signed bills and Brown King, Britton. a joint resolution of the House of the following titles: Roy C. Grider, Byars. On March 1, 1937: LeRoy Parrish, Comanche. H. R. 824. An act for the relief of James Luker, Sr.; Ralph Ownby, Durant. H. R. 2518.· An act to provide for retirement of Justices of Forrest Thomas, Jr., Healdton. the Supreme Court; and Lawson Race, Hunter. H. J. Res. 96. Joint resolution to extend the authority of Willie F. Co-wan, Jennings. the President under section 350 of the Tariff Act of 1930, as John Stewart Keller, Lexington. amended. Walter G. McGiamel'Yf Mooreland On March 5, 1937: Walter G. Baustert, Okeene. H. R. 4609. An act to authorize the purchase and distribu William Thomas Whittenburg, Skiatook. tion of products of the fishing industry. Alfred Claude Davis, Woodward. MESSAGE FROM THE SENATE PENNSYLVANIA A message from the Senate, by Mr. Frazier, its legislative William M. Grumbine, Annville. clerk, announced that the Senate had passed without amend Edward Aloysius O'Donnell, Beaverdale. ; ment a joint resolution of the House of the following title: Alvin E. Moon, Blawnox. H. J.Res. 252. Joint resolution to aid in defraying the ex Eugene C. Wonder, Chalfont. penses of the International Labor Office incident to holding Joseph R. Thurston, Factoryville. its Technical Tripartite Textile Conference .. Frederic W. Moser, Greenville. UNITED STATES-PHILIPPINE TRADE Abraham H. Scholl, Harleysville~ • < Ralph B. McQuistion, Harmony. " Mr. COOPER. Mr. Speaker, by direction of the Com Harry W. Fee, Indiana. mittee on Ways and Means, I present a privileged resolution Frank E. Neumeyer, Macungie. (H. Res. 145), and I ask unanimous consent that the resolu Francis J. Kelly, Mansfield. tion and the accompanying report be read. Edwin F. Fox, Mertztown. The SPEAKER. Is there objection? Catherine G. Hauer, Mount Gretna.· There was ·no objection. The Clerk read as follows: Lester C. Trauger, Perkasie. ~ Joseph A. Kelly, Roslyn. House Resolution 145 Mary S. Anderson, Royersford. Resolved~ That the President of the United States be, and he George S. McCurdy, Scottdale. Is hereby, requested to report to the House of Representatives, for its information, if not incompatible with public interests, all of Russell R. Lindsley, Smethport. the facts within the knowledge of th~ Tariff Commission relating Charles S. Doyle, South Langhorne. to (1) the expenses involved in gathering information, data, sta tistics, etc., in the Philippine Islands for the recently issued Tarilf Homer F. Eshelman, Summerville.' Commission publication-"United States-Philippine Trade", iden Burnett W. Weber, Sykesville. tified as report 118, second series; (2) whether any part of the Ernest B. Wolf, Telford. expenses involved in gathering information contained in said re George C. Rohland, West Newton. port was paid in whole or part by any person, firm, corporation, or organization other than the Ta.ri.1I Commission and if funds for SOUTH CAROLINA any part of said report were furnished by any other. source than Grady R. Hogue, Blacksburg. the Tariff Commisison that the source of such funds be stated together with the amount of financial assistance contributed; (3) TEXAS the names of those participating in the gathering of the informa tion contained in said report whether in the employ of the Tariff Jay H. Riley, Canton. Commission or in the employ of a firm, corporation, or organiza Thomas H. McCarty, Lawn. tion, and the names of those voluntarily participating; (4) Leo C. Neutzler, Nordheim. whether public hearings were held at which interested parties in Ethel B. Friend, Rockport. the United States as well as in the Philippine Islands had an op portunity to present factual information and testimony upon Wade H. Taylor, Seminary HilL . Which the conclusions set- forth in the report ma.y have been Carlos S. Baker, Sr., Stockdale. based. J .
2026 CONGRESSIONAL RECORD-HOUSE MARCH 9 The Committee on Ways and. Means, to whom was referred the give security. They have no other assets, and it is impos resolution (H. Res. 145) to request the President of the United States to furnish the House of Representatives information within sible under present regulations for them to get loans. the knowledge of the Tartif Commission relating to expense, and Mr. RICH. We are making P. W. A. grants and all kinds names of those participating in gathering information involved of grants to the farmers and others. I thought the farmers in the publication by the Tariff Commission entitled "United St ates-Philippine Trade", having had the same under considera were in pretty good shape. The gentleman evidently thinks tion, report it back to the House and recommend that the resolu they are not? tion do not pass. Mr. LUCKEY of Nebraska. No; they are not. Mr. COOPER. Mr. Speaker, I move that the resolution be Mr. RICH. I think from Mr. Green's statement of the laid on the table. number of people unemployed, things are getting worse; and The motion was agreed to. if you will look at the statement of the Treasury, you will A motion to reconsider the vote by which the motion was find that we are $16,000,000,000 more in debt than when passed was laid on the table. this administration came into office. EXTENSION OF REMARKS Mr. LUCKEY of Nebraska. We want these farmers to carry on on their farms. In order to do that we must Mr. PIERCE. Mr. Speaker, I ask unanimous consent to liberalize the rules under which these loans are made. extend my own remarks in the RECORD and include therein Mr. RICH. In other words, the gentleman wants more . an address by Hon. JoHN E. RANKIN, of Mississippi, delivered gratuities given? at the National Conference of the Lawyers' Guild in Wash Mr. LUCKEY of Nebraska. No; not gratuities. ington, D. C. The SPEAKER. The time of the gentleman from Ne The SPEAKER. Is there objection to the request of the braska has exp~ed. gentleman from Oregon? There was no objection. REGULATION OF BITUMINOUS COAL IN INTERSTATE COMMERCE SEED LOANS TO FARMERS Mr. GREENWOOD. Mr. Speaker, I call up House Reso lution 146 and ask for its immediate consideration; and, Mr. LUCKEY of Nebraska. Mr. Speaker, I ask unanimous pending that, I yield one-half the time to the gentleman from consent to address the House for 5 minutes. Massachusetts [Mr. MARTIN]. The SPEAKER. Is there objection to the request of the The Clerk read as follows: gentleman from Nebraska? Mr. GREENWOOD. Reserving the right to object, Mr. House Resolution 148 Resolved, That upon the adoption of this resolution it shall be in Speaker, this morning has been set aside for the considera order to move that the House resolve itself into the Committee of tion of the coal bill. I will not object to this request, bu~ I the Whole House on the state of the Union for the consideration of must object to any fUrther ones. H. R. 4985, a bill to regulate interstate commerce in bituminous Mr. LUCKEY of Nebraska. This is only a short letter coal, and for other purposes, and all points of order against said bill are hereby waived. That after general debate, which shall be that I want to read. confined to the bill and continue not to exceed 4 hours, to be The SPEAKER. Is there objection? equally divi~ed and controlled by the chairman and ranking minor There was no objection. ity member of the Committee on Ways .and Means, the b111 shall be read for amendment under the 5-minute rule. At the conclusion Mr. LUCKEY of Nebraska. Mr. Speaker, I want to read a of the reading of the b111 for amendment, the Committee shall rise letter that I received from the Chamber of Commerce of and report the same to the House with such amendments as may Lincoln, Nebr., on yesterday. It is so pathetic and so im have been adopted, and the previous question shall be considered as ordered on the b111 and amendments thereto to final passage portant that I think every Member of the House should hear without intervening motipn except one motion to recommit, with it. It is addressed to me: or without instructions. LINCOLN, March 4, 1937 • . Hon. HENRY c. LUCKEY, Mr. GREENWOOD. Mr. Speaker, this rule provides for House Office Building, Washington, D. C. the consideration of a bill to regulate bituminous coal in DEAR · MR. LucKEY: The Lincoln Chamber of Commerce is seri interstate trade. It provides for 4 hours of general debate, ously concerned over the acute distress which now exists on thou sands of Nebraska farms, and which is causing an exodus from and is an open rule, providing for amendments and discus the farms to the cities and towns. Without doubt, the situation sion. This rule is to ·take up a bill which is similar to one is more serious than it has been at any previous time in the that was previously passed by the Congress, sometimes known present century. as the Gutiey coal bill. The gentleman from Kentucky [Mr. The time for beginning spring work and sowing small grain is almost here. Thousands of farmers do not have seed, feed, money, VmsoNJ, of the Committee on Ways and Means, is the author or credit. They cannot carry on and put out a crop without of the present bill in the House. The former bill, which was financial assistance. There is an urgent need for liberalizing the decl~red unconstituUonal by the Supreme Court, provided for Farm Credit Administration loan requirements. Many farmers not only have no seed, feed, money, or credit, but the regulation of hours and wages and working conditions do not have sufficient horses for farm use. The feed shortage of with reference to the laborers in the mines. the past few years has forced farmers to reduce their work stock The Supreme Court found objection to this particular to the lowest possible number. Under such conditions the loss 6! one or two horses from old age, poor feed, or other causes is a feature of the bill, and the bill was declared unconstitu serious matter. Without money or credit the horse cannot be re tional. The Supreme Court also found that the question placed. Most of the men have exhausted their credit during the relative to the production of coal, at least as it was regu series of short crop years that Nebraska has experienced. Money lated under that bill, was a question of local or State con must be made available for standard rehab111tation loans or some similar refinancing program to enable farmers to continue oper- trol. The committee in this bill has eliminated the features ations in 1937. - with reference to labor. There is no attempt to regulate We hope that you w111 use your best efforts to secure some relief wages or hours. We, therefore, think that the objections for the drought~stricken farmers of Nebraska. Unless help is forthcoming to enable these men to continue farming, their only raised by the Supreme Court have been eliminated from recourse is to move to the towns and cities, where they will swell the bill. the relief rolls. If they can be given some aid where they are, Another feature of the present· bill, which I think they will be self-supporting as soon as they produce a crop. Very sincerely yours, strengthens it, is that it sets up a commission, in which AGRICULTURAL COMMITI'EE, any operator or producer of coal may make a showing that LINCOLN CHAMBER OJ' COMMERCE, the production from his mine is consumed locally and does H. C. FILLEY, Chairman. not enter the channels of interstate commerce. When such Mr. RICH. Mr. Speaker, will the gentleman yield? operator or producer makes such a showing, he can be Mr. LUCKEY of Nebraska. I yield. · exempted from the provisions of the bill.· A municipal light Mr. RICH. I thought this administration had done more plant or a water plant that owns a mine and consumes all for the farmers than any previous administration, and that of its own production could be exempted under this bill, or the farmers were in good shape. At least that is what this a small local neighborhood mine that could make the proper administration claims. Evidently it is not the case. showing that their production was not in any way a burden Mr. LUCKEY of Nebraska. The difficulty is in the lib on the interstate traffic of coal could likewise be exempted. .eralization .of the reiulations. Some of these people cannot I think this provision great~ strengthens the bill. If it 1937 . CONGRESSIONAL RECORD-HOUSE 2027 should come to the Supreme Court, they would at once in helping to regulate the production and distribution of coal observe from the bill that the Congress has attempted to which is consumed nationally, and which is a national prod draw a line between intrastate production and interstate uct used for transportation by locomotives and for the gen production. I believe, therefore, that the present bill is eration of electric power that is transmitted over interstate upon a much superior ground from the standpoint of con lines. stitutionality than the previous bill Mr. MAY. Mr. Speaker, will the gentleman yield? The previous bill was in operation long enough for both Mr. GREENWOOD. I yield. the producers or the employers, as well as the employees, Mr. MAY. Another feature of the coal industry that prob to discover that it had a great contributing influence on ably has more to do with bringing it into the class of inter stabilizing the production of coal; and, so far as I have been state commerce is the fact that it not only furnishes the able to learn-there may have been exceptions-the op motor power for the vast system of railroads in about 33 erators' and the miners' organizations both will favor the different States of the Union, but it employs some 450,000 bill. men in its production and more than that in its transporta The bill does provide that the commission may set up tion on the railroads. maximum and minimum prices and provide for codes deal Mr. GREENWOOD. I thank the gentleman for his contri ing with fair competition. The bill defines 13 unfair trade bution. The industry is so vast, so widespread, so great a practices to be considered in formulating fair-trade rela necessity in business, transportation, and power that it seems tions. One of the troubles with the coal business, as I have to me it is stamped with an interstate character; and I am observed it, is that during the war there was an overdevelop very hopeful in believing that the Supreme Court will find ment, as there was in many other lines of business, and that this bill comes within the delegated powers of the Con following the war and continuing on down to the present stitution giving Congress power under the commerce clause. time there have been cutthroat methods of competition There are many features of the bill I would rather some which have demoralized the business, driven many operators member of the Ways and Means Committee more familiar entirely out of production, and in other instances the com with it than I explained to you in the debate on the bill. petition has been so strong they do not attempt to pay a The bill sets up a commission and divides the country into standard or living wage. Mining such coal at a reduced areas-areas that are on a competitive basis. It sets up local wage, they send it in to the market into competition with boards to consider in detail the matters of price-and of coal that does pay a standard or a living wage. So the whole stabilization. business has lacked stability_ and has been- demoralized. Mr. DIMOND. Mr. Speaker, will the gentleman yield? Both the operators and the miners have suffered. Mr. GREENWOOD. I yield. The fixing of the maximum price will also protect the con Mr. DIMOND. In the Territory of Alaska are several sumer. The fixing of the minimum-price by the commis small coal mines, the production of which is consumed in the sion will protect the operator who wants to pay a decent, Territory. Not a pound of it enters into interstate commerce. living wage to the miner. The coal miners and the operators Am I correct in inferring that under the conditions there do not have such a great amount of trouble in getting to existing these mines may be eliminated from the operation of gether where the business is stabilized and the producer this bill? knows that he can enter into a long_-term contract for pro Mr. GREENWOOD. I may say to the Delegate from Alaska duction. The United Mine Workers, in dealing with opera that from his explanation it would appear that their produc tors on time-basis contracts, have always been known to tion is not a burden on interstate traffic. If, however, any of keep their contracts and to hold their local unions in line that coal were loaded on vessels, the gentleman can readily under the contract; and the business goes along with har see that his position would not prevail. I think it would mony existing between the operators and the miners. One rather depend upon each separate producer making a show of the greatest losses to industry today is where there .is a ing that production from his mine is entirely consumed lack of cooperation in fixing wage scales .and working con locally. . ditions and hours, for often in desperation _labor calls a If the product of some mines were not consumed locally, strike and both sides lose a great deal financially because but beyond the territorial limits of Alaska, then it might con of these labor disturbances. I think, as far as possible, it is stitute a burden on interstate traffic and would not be the duty of Congress to undertake to assist in all·, such con exempt. troversies as this between capital and labor. This bill will Mr. LAMNECK. Will the gentleman yield. help in this cooperative understanding in the mining·_ and Mr. GREENWOOD. I yield to the gentleman from .Ohio. sale of bituminous coal. .. · ..t-d , · Mr. LAMNECK. Is it not a fact that practically all in~ Coal occupies a little different position as a commodity trastate coal will come under this bill? I think our discus from many of the commodities that we dealt with. under the sions in the Ways and Means Committee showed that to be N. R. A. We all understand that codes were formed under absolutely the fact. Any coal that is mined which affects the National Recovery Act which attempted to deal with interstate commerce directly or indirectly comes under this small local businesses. This was the weakness of that law. bill. Now, you cannot find a mine that is not affected di Sometimes I think we made a mistake in writing that law rectly or indirectly by this bill. when we did not put certain limitations on it. to confine its Mr. GR~NWOOD. As I understand it, this bill does not operation to, say, the larger industries, the output of which go that far. was consumed all over the Nation; and this . may be the Mr. LAMNECK. Well, it does, in my judgment. reason why it fell in the decision before the Supreme Court. Mr. GREENWOOD. Whether it constitutes a burden on But I want the House to get this slant concerning coal. interstate traffic would be a question for the commission to It is different from many of the commodities arid bll$inesses decide from the facts presented in each case. that were dealt with under the National Recovery Act. In Mr. DONDERO. Will the gentleman yield? the first place, coal is a great national resource found in Mr. GREENWOOD. I yield to the gentleman from Mich many different sections of the United States. It is a com igan. modity that is needed for the mainte~ance of industrY and Mr. DONDERO. In my State are located certain bitumi for transportation. It is consumed Nation-wide. It pro nous coal mines, and the product thereof is used entirely duces the motive power for many of the locomotives that within the State of Michigan. Would the producers of those haul the trains in interstate commerce. It is the fuel for a mines be compelled to come under the provisions of this bill vast number of the power plants that send electric current or might they be exempted by the commission which will be over interstate lines. These features mark this commodity set up? as one that might be considered of a nationai character. · If Mr. GEENWOOD. I think the answer to the gentleman's the Congress of. the United States has tp.e power to regulate question is the same as I made to the question .asked by the any industry under the commerce clause of the C<;mstitution, Delegate from Alaska. If the product of any mine went it certainly must have the power to do what this bill does beyond State lines it would not be exempted. But whether 2028 CONGRESSIONAL ;RECORD-· HOUSE MARCH 9 the mine whose product was used within the State is ·ex Mr. GREENWOOD. I suppose there is always that com empted would be a case for the commission to decide in the petition to contend with. They will have to take care of case of each separate producer when he presented his case. that themselves as against a stiti competition from oil and Mr. DONDERO. Would that mine be compelled to pay a electricity. tax on the production of its coal? I notice a penalty is Mr. MICHENER. Will the gentleman yield? here provided. Mr. GREENWOOD. I yield to the gentleman from Michi Mr. GREENWOOD. I think there is a small tax charged gan. against all production; but the large tax for enforcement Mr. MICHENER. There is something here I do not un purposes would not be levied, as I understand it, against a derstand very clearly. It is the gentleman's contention mine that is exempted under the law. that in order to atiect a mine the mine must produce coal Mr. RICH. Will the gentleman yield? that is a burden on interstate commerce. Now, let us take Mr. GREENWOOD. I yield to the gentleman from Penn the district represented by the gentleman from Michigan sylvania. [Mr. WooDRUFF], there are some coal mines located in that Mr. RICH. I! a certain mine at the present time was district. If I recall correctly, all of that coal is used within shipping intrastate and decided it did not want to come that district and within the State. If that is true, the under this act, and confined the sale of its coal to the gentleman states that mine would not come under this law? State of Pennsylvania,., for example-and I will speak of a Mr. GREENWOOD. I said it would be my impression Pennsylvania mine-and they decided to keep their coal that would be a case where they would be exempt, but if within the State of Pennsylvania, would they fall under the the volume of production was so great it went in competi provisions of this act? tion with interstate coal at some of the large centers and Mr. GREENWOOD. The gentleman is asking me to give was used industrially in those centers, I am not able to say a full interpretation of this law and what the commission at this time whether the commission would rule it was a would decide on the facts in each case. I can see where burden or not. The commission n:iust decide that on the the volume of the production of a mine was so great that it evidence in each case. was sold even near a State line the commission might rule Mr. MICHENER. No; that is not my question. Like the it would be a burden on interstate traffic. gentleman from Ohio [Mr. LAMNEcKJ, I want it made clear Mr. RICH. Then we will have to take solely the decisions whether coal that indirectly comes into competition with coal rendered by that commission? shipped in interstate commerce will come under this law. Mr. GREENWOOD. Certainly. That is what the com Mr. GREENWOOD. Can you find any place in the law, mission is set up for. Each man will have to present his let me ask, where they have that language, directly or case. The gentleman perhaps will recall the famous Louisi indirectly? ana case, where it was ruled that intrastate railroad rates Mr. MICHENER. I wanted the RECORD to show clearly .were governed by State law only; but the Interstate Com the intent of Congress. merce Commission held that where intrastate rates affected Mr. VINSON of Kentucky. Will the gentleman yield to interstate rates on interstate traffic the intrastate rates me? came under the jurisdiction of the I. C. C. and should be Mr. GREENWOOD. Yes; I yield. regulated by that Commission. We would have to depend · Mr. VINSON of Kentucky. I may say right here and now upon the volume of production of a mine. Take the case that "indirect effect" ·does not bring it under this bill. This of trucks coming there and getting coal, we would have to bill is bottomed upon the Supreme Court decision in respect decide or determine where the trucks took the coal. of interstate commerce, that which is interstate commerce or Mr. RICH. Will the commission regulate all districts transactions which directly affect interstate commerce. alike? That is the constitutional limitation, and we are standing Mr. GREENWOOD. I assume that the commission, being foursquare upon the foundation rocks of the Constitution. national in character, will lay down certain regulations Mr. MICHENER. The gentleman agrees with me, then, which will apply alike all over the United States. that we both have in mind the Schechter case? . Mr. JENKINS of Ohio. . Will the gentleman yield? Mr. VINSON of Kentucky. Having in mind the Schechter Mr. GREENWOOD. I yield to the gentleman from Ohio. case and the Carter case, the Coal case, and the "indirect Mr. JENKINS of Ohio. I think it would be proper for the effect" does not bring it within the pll.rview of this act, and gentleman to add to his statement this fact. The gentleman it is so stated in the bill . . from Pennsylvania referred to a Pennsylvania operator. If Mr. GREENWOOD. Mr. Speaker, I reserve the balance of that operator is not satisfied with the decision of the com my tinie. · . mission, he still has the courts open to him. He can resist The SPEAKER pro tempore THE TAX FEATURES - I also quote from Mr. Chief Justice Hughes' opinion in I am going to undertake a difficult task. It is the task of this same case: dealing with certain law points in the bill. This character I agree • • • that the so-called tax is not a real tax but of speech is generally tiresome, and I am certain that my a penalty; that the constitutional power of the Federal Govern ment to impose this penalty must rest upon the commerce clause, efforts will be no exception to the rule, but, as a Member as the Government concedes. of this House, I know the genuine respect that my colleagues here have for the law and the courts. I have that same There may be an argument made that the taxing power respect. As a lawYer and a Member of this body, I say to is a support of the regulatory provisions, but, in the face you that we have tried to square the language of this bill of the Carter case, we do not take such position. We rely with the decisions of the Supreme Court. I desire to dis upon the power to regulate interstate commerce and trans cuss with you .the authority in law for the penalty tax, the actions in · or directly affecting interstate commerce. The regulation of prices and unfair trade practices and the in levY of the taxes involved is an incident to and an aid in the trastate commerce which is affected by this bill. Our efforts enforcement of another constitutional power properly ex- . have not been to circumvent any opinion of our highest ercised. Of course, if there is no power under the com Court, but we have worked in a bona-fide attempt to meet merce clause to uphold the substantive regulations, the act the law laid down by them in a proper, legal, constitutional collapses. The_Supreme Court in a number of cases has expressed the view that Congress might impose a penalty manner. tax to enforce other constitutional powers. I do not ·think · Direct approach is had in respect of taxing features of that anyone can successfully contradict such statement. this bill, both as to the tax upon all coal mined and the tax This is not a novel position. Congress has done it many which is levied for the purpose of enforcement. The draw times. I will refer to several Supreme Court cases uphold- back method, while in .my opinion is equally as valid, was ing it. - . thought by some to be a more novel way of doing the job STATE BANK-NOTE CASES than the direct levy. Of course, the advantage of the man ner in which the tax was levied under the 1935 act is that Congress under its constitutional power to establish a the members of the industry would show compliance with currency system sought to prohibit the use of State bank the code before the drawback was allowed. However, we notes. It imposed a tax of 10 percent on such notes. Un grant that the direct approach is more easily understood, doubtedly this was a prohibitory tax-it certainly was a pen and we have governed ourselves accordingly in the new alty tax. The Supreme Court in the case of Veazie Bank v. tax provisions. In the bill under consideration, we provide Fenno (8 Wall. 533) held this tax to be constitutional for an excise tax of one-half of 1 percent on the sale of since Congress had the power to establish a currency ~ys~ or other disposal of bituminous coal by every producer; and tern. It said (p. 549): a tax of 19% percent upon the sale of or other disposal of Having thus, in the exercise of .undisputed constitutional powers undertak~n to provide a currency for the whole country, it cannot bituminous coal to which the code would apply when the be questwned that Congress may, constitutionally, secure the producer thereof is not a code member. benefit of it to the people by appropriate legislation. The tax under the 1935 act was 1% percent of such sale So far as we know, there has been no income derived from price. The purpose of levying this tax was to relieve the this penalty tax at all. It served its purpose of regulating Treasury from any financial responsibility for the admin the currency system and was upheld . by the Supreme Court istration of the act. However, in 1936 there were 400,000,000 because it was incident to the enforcement of an undisputed tons of coal produced. At an average price at the mine of ~onstitutional power. approximately $2 per ton you would have a value of such production of $800,000,000; 1% percent thereof would be HEAD MONEY CASES (112 U. S. 580) $12,000,000-one-half of 1 percent; of course, is $4,000,000. , Congress imposed a tax on every ·alien brought into the This is much more than adequate to cover the adminis _country. It was argued that the tax was invalid because trative costs of the bill. not upi!orm. throughout the United States and because not The tax of 19% percent is in lieu- of the 13% percent for the general welfare. But the Court said: imposed under the 1935 act. It is thought ·that this will be · But the true answer to all these objections is that the power exercised in this instance is not the taxing power. The burden a more effective means of enforcement than the old rate, imposed on the shipowner by this statute is a mere incident of particularly as it applies to small mines with high produc the regulation of commerce (p. 595). tion co~ts which are in competition with. strip mines. The · -If this is an exp~dien~ regulation of commerce by Congress, and increase was particularly desired by what might be called the end to be attained 1s one falling within that power the act is not void, because, within a loose and more extended ~ense than the isolated or outlying coal districts. Undoubtedly it will was used in ~he Constitution, it is called a tax (p. 596). be a much stronger means of compliance, which means a UNITED STATES V. BUTLER (297 U. S. 1) sounder stabilization of the industry. . In holding .unconstitutional the. A. A. A. processing taxes, . More questions are raised about this penalty section than _the Court, after ~olding. that the tax was not a true tax, .most any other section· of ·the bill. A person who reads the went on to say 1 Re\'ised by Bureau of Labor Statistics. . :washington prices for per ton of 2,240 pounds. Souree: Monthly Labor Revie!_V, published by U. S~ Bu,reau of Labor Statistics. LXXXI---129 . 2036 _CONGRESSIONAL RECORD-HOUSE MARCH 9. We call particular attention to the price of coal for the to avoid cutthroat competition, and the strange thing about winter of 1935-36. Certainly it was the most severe winter it, coal prices to the consumers, particularly to the domestic that we have had in many, many years. In days gone by consumer, saw no particular increase. the coal-consuming public paid a much greater price for We again repeat that the coordinated prices that were just their coal in such a winter or in anticipation of a severe about ready for promulgation saw a fair increase in indus winter. I feel certain that the Coal Conservation Act then trial coal and a consequent reduction in domestic price. I on the books had something to do with the stabilization of would call your attention to the fact that the cost of coal coal prices and was quite decisive in the absence of any production that can be fairly allocated to labor is a small gouging of the coal consumers. • portion of the price to the consumer. Assume an average It is a surprising statement for one to make that this around $2 per ton, f. o. b. mine. This is inclusive of all legislation will not bring about any appreciable increase, if costs. When we pay here, or elsewhere, $9 or $10 a ton for increase at all, in the price of coal f. o. b. mines. For years that same coal it is evident that the cost of transportation the smaller sizes of coal that are used for industrial pur and the costs of distribution, including the profits of those . poses have been sold below cost of production, which make who touch it on the way to the consumer•s bin must be it necessary for the prepared sizes, used for domestic pur-· included. poses, to bring a price higher than it otherwise would if I desire to repeat one particular statement. The .actual the industrial coal were not sold below cost of production. changes proposed by the district boards under the old act Thus it is apparent that the domestic consumer has been in the North Atlantic cities amounted to an increase in the compelled to carry the burden of unduly cheap industrial price of industrial coal of '1 cents a ton, from $1.86 to $1.93, coal. It must be remembered that about 70 percent of the and a reduction in the price of lump coal of 30.7 cents, from total coal produced is used for industrial and railroad pur $2.25 to $1.94. poses and about 30 percent is used in the prepared sizes for Mr. McCORMACK. Mr. Chairman, will the gentleman domestic purposes. It is quite apparent that a small in yield? crease per ton in the industrial coal price would permit of Mr. VINSON of Kentucky. Yes. a much larger reduction in the price per ton for domestic Mr. McCORMACK. r' call attention to the fact that the coal. price of coal to the purchaser at the mine is f. o. b. The Under the Coal Act of 1935 the district boards in coordi price to the consumer is the price of the coal f. o. b. mine nating the prices slightly increased the price of industrial plus the freight rate and distributing costs. The freight coal and were thus able to reduce materially the price of rate constitutes from 46 to 63 or 65 percent of the cost to domestic coal. The spread between the price of domestic the ultimate consumer. and industrial coal was reduced by 16.9 cents in the New Mr. VINSON of Kentucky. Yes. In many instances it is England all-rail market; by 16.3 cents in the tidewater more than 100 percent of the cost at the mine. Take Bos market; by 37.7 cents in the North Atlantic States; by 6.3 ton, for instance. My recollection l.s that the transportation cents in the lllinois market outside of Chicago. The actual cost by tidewater amounts to $5 per ton. If you bought the changes proposed by the district boards amounted in the coal at the mine for $2.50, the transportation charges laid North Atlantic States to an increase per ton of '1 cents down on the dock at Boston would be 200 percent of the cost from $1.868 to $1.938---in the price of industrial coal, and of the coal at the· mine. a reduction in the price of lump coal of 30.7 cents :Per ton FURTHER DISCUSSION OF THE CARTER CASE from $2.251 to $1.944. We again remind that the majority decision in the Carter . We have heard no one maintain that the domestic con case did not hold invalid those sections of the 1935 act which sumer should carry the burden occasioned by the industrial look toward the Tegulation of price and unfair methods Of consumers beating down their price below cost of produc competition. Their opinion is silent upon these questions; tion. There are many factors which have compelled, under but, as stated, the minority opinions of Mr. Chief Justice . the common practice of the industry, the coal operator to Hughes and Associate Justices Brandeis, Stone, and Cardozo sell his industrial coal below cost of production, and in many very definitely upheld the right to regulate prices and unfair..l instances materially below cost of production. I feel cer methods of competition in interstate commerce and trans.. : tain that this will be fully developed in debate by others. actions in or affecting interstate commerce. We quote from . Yet there ar~ those who will say "that immediately this Mr. Chief Justice Hughes' opinion: act passes there will be a tremendous increase in the price But that is not the whole case, The act also provides for the of coal, and particularly to the domestic consumer, and cer regulation ot the prices of bituminous coal sold in interstate t~inly the consumers' interests should be looked after." We comm.~r9e and p~ohibits unfair methods of competition in inter ~ay to you that lt has been looked after; In this act.we pro~ state commerce. Undoubtedly transactions in carrying on inter vide a consumers' counsel, who not only can sit in and par state commerce ~are subject to the Federal power to regulate that . commerce and ·the cont'I:ol of charges and the protection of fair j ticipate in hearings before the commission where the interest competition 1n that commerce are familiar illustrations of the of the consuming public is involved, but he.has the power to exercise of tbe power, as the Interstate Commerce Act, the Packers and Stockyards Act, and the Anti-Trust Acts abundantly show. initiate action for the consumers'. benefit. . The Court has repeatedly stated that the power to regulate inter We would again recall that there has been some expert .. state commerce among the several States is· supreme and plenary_ ence in stabilization of the coal industry. Under N. R. A., (Minnesot.a Rate Cooe, 230 U. S. 352, 398). It ts "complete in with its stabilizing effects, for the first time did we see the itself, and may be exercised to its utmost extent, and acknowl· edges no limitations, other than are prescribed in the Constitu operator and the miner at peace with each other. For the tion" {Gibbons v. Ogden, 9 Wheat. 1, 196). We are not at liberty: first time in our experience the miner received a fair price for to deny to the Congress with respect to interstate commerce, a his work. For the first time in some 15 years the coal oper power commensurate with that enjoyed by the Sta~es in the regu lation of their internal commerce. (See Nebbia v. New York, 291. ator received a reasonable profit upon his investment. For u. s. 502.) the first time in approximately 15 years he was out of the Whether the policy of fixing prices of commodities sold t.n: red. With reference to the consumer, I ask this -question: interstate commerce is a sound policy is not for our consideration. Was any community in the United States gouged by increase The question of that policy, and of its particular applications, iS for Congress. The exercise of the power of regulation is subject in coal prices during the operation of N. R. A.? to the constitutional restriction of the due process clause, and if When the Snyder-Guffey bill was under consideration in in fixing rates, prices, or conditions of competition, that require 1935 statements were made on the :floor that the price of ment 1s transgressed, the judicial power may be invoked to the coal would immediately jump a dollar a ton. In-that debate end that the constitutional limitation may be maintained (Inter state Commerce Commission v. Union Pacific R. R. Co., 222 U. S. we stood here in the well and said that it would not. It 541, 547; St. Joseph Stock Yards Co. v. United States, decided did not. The bill was passed. -The prices were not promul Apr. 27, 1936). gated, but because of the fact that we had a Coal Conserva In the legislation before us, Congress has set up elaborate ma chinery for the :fixing of prices of bituminous coal sold in inter tion Act and a Coal Commission empowered to act, the state commerce. That provision is attacked in limine. Prices miners were enabled to enter into a wage contract that has have not yet been fixed. If fixed, they may not be contested. U certainly benefited their position. The operator was enabled contested, the act provides for review of the administrative rul... 1937 CONGRESSIONAL RECORD-HOUSE 2037 1ng. If in fixing prices, due process is violated by · arbitrary, exercised consistently with the fifth amendment. In the pursuit capricious, or confiscatory action, judicial remedy is available. of that inquiry, Nebbia v. New York (291 U. S. 502) lays d~~ the If an attempt is made to fix prices for sales in intrastate com applicable principle. There a statute of New York presc_nbmg a merce, that attempt will also be subject to attack by appropriate minimum price for milk was upheld against the objectwn that action. In that relation it should be noted that in the Carter price fixing was forbidden by the fourteenth amendment. We cases, the court below found that substantially all the coal mined found it a sufficient reason to uphold the challenged system that by the Carter Coal Co. is sold f. o. b. mines and is transported "the conditions or practices in an industry make unrestricted Into States other than those in which it is produced for the pur competition an inadequate safeguard of the consumer's interests, pose of filling orders obtained from purchasers in such States. produce waste harmful to the public, threaten ultimately to cut Such transactions are· in interstate commerce (Savage v. Jones, off the supply of a commodity needed by the public, or portend 225 u. s. 501 , 520). The court below also found th~t "the in the destruction of the industry itself" (291 U. S. at p. 538). terstate distribution and sale and the intrastate distnbution and All this may be said, and with equal, if not greater force, of sale" of the coal are so "intimately and inextricably connected" the conditions and practices in the bituminous coal industry, not that "the regulation of interstate transactions of distribution only at the enactment of this statute in August 1935, but for and sale cannot be accomplished effectively without discrimina many years before. Overproduction was at a point where free tion against interstate commerce unless transactions of intrastate competition had been d,egraded into anarchy. Prices had been distribution and sale be regulated.' ~ Substantially the same cut so low that profit had become impossible for all except a situation is disclosed in the Kentucky cases. In that relation, lucky handful. Wages came down along with prices and with the Government invokes the analogy of. transportation rates profits. There were strikes, at times Nation-wide in extent, at (The Shreveport oose,. 234 U. S. 34~; Wisconsin Railroad Commis other times spreading over broad areas and many mines, with the sion v. Chicago, Burltngton & Qumcy R. R. Co., 257 U. _s. 563). accompaniment of violence and bloodshed and misery and bitter The question will be the subject o! consideration when 1t arises feeling. The sordid tale is unfolded in many a document and in any particular application of the act. treatise. During the 23 years between 1913 and 1935, there were Upon what ground, then, can it be said that this plan for the 19 investigations or hearings by Congress or by specially created • regulation of transactions in interstate commerce in coal is be commissions with reference to conditions in the coal mines. The yond the constitutional power of Congress? The Court reaches hope of-betterment was faint unless the industry could be sub-· that conclusion in the view that the invalidity of the labor pro jected to-the ·. compulsion of a code. In the weeks immediately visions requires us to condemn the act in its entirety. I am preceding the passage of this act the country was threatened once unable to concur in that opinion. I think that the express pro more with a strike of ominous proportions. The plight of the visions of the act preclude such a finding of inseparability. industry was not merely a menace to owners and to mine workers: This is admittedly a question of statutory construction; and it was and had long been a menace to the public, deeply con hence we must search for the intent of Congress. And in seeking cerned in a steady and uniform supply of a fuel so vital to the that intent we should not fail to give full weight to what Congress national economy. Itself has said upon the very point. The act_ pr~vides (sec. 15) : Congress was not condemned to inaction in the face of price "If any provision of this act, or the applicatiOn thereof to any wars and wage wars so pregnant with disaster. Commerce had person or circumstances, is held invalid, the remainder of the act been choked and burdened; its normal fiow had been diverted from and the application of such provisions to other persons or circum one State to another; there had been bankruptcy and waste and stances shall not be affected thereby." ruin alike for capital and for labor. The liberty protected by the That is a fiat declaration against treating the provisions of the fifth amendment does not include the right to persist in this act as inseparable. It is a declaration which Congress was com anarchic riot. "When industry is grievously hurt, when producing petent to make. It is a declaration which reverses the presumption concerns fail; when unemployment mounts and communities de of indivisibility and creates an opposite presumption. (Utah pendent upon profitable production are prostrated, the wells of Power & L i ght Co. v. Pfost, 286 U.S. 165, 184.) commerce go dry" (Appalachian Coals, Inc., v. United States, 288 I quote from the minority opinion of Mr. Justice Cardozo, U. S. 344, 372). The free competition so often figured as a social in which Mr. Justice Brandeis and Mr. Justice Stone concur: good imports order and moderation and decent regard for the welfare of the group. Cf. The Sugar Institute, Inc., v. United First: I am satisfied that the act is within the power of the States, - U. S. -, March 30, 1936. There is testimony in these Central Government insofar as it provides for minimum and maxi records, testimony even by the assailants of the statute, that only mum prices upon sales of bituminous coal in the transactions of through a system of regulated prices can the industry be stabilized interstate commerce and in those of intrastate commerce where and set upon the road of orderly and peaceful progress. If fur interstate commerce is directly or intimately affected. Whether it ther facts are looked for, they are narrated in the findings as well is valid also in other provisions that have been considered and con as in congressional reports and a mass of public records. After demned in the opinion of the Court, I do not find it necessary to making every allowance for difference of opinion as to the .most determine at this time. Silence must not be taken as importing efficient cure, the student of the subject is confronted with the in acquiescence. Much would have to be written if the subject, even disputable truth that there were ills to be corrected, and ills that as thus restricted, were to be explored through all its implica had a direct relation to the maintenance of commerce· among the tions historical and economic, as well as strictly legal. The fact States . without friction or diversion. An evil existing, and also that'the prevailing opinion leaves the price provisions open for the power to correct it, the lawmakers were at liberty to use their consideration in the future makes it appropriate to forego a full own discretion in the selection of the means. ness of elaboration that might otherwise be necessary. As a system of price fixing, the act is challenged upon three grounds: (1) Be (3) Finally, and in answer to the third objection to ~he statute cause the governance of prices is not within the commerce clause; in its price-fixing provisions, there has been no excessive_d~le~a (2) because it is a denial of due process forbidden by the fifth tion of legislative power.· The prices to be fixed by the D1stnct amendment; and (3) because the standards for administrative Boards and the Commission must cqnform to tlw following stand action are indefinite, with the result that there has been an unlaw fl,rds: They must be just and equitable; they must take aC?ount ful delegation of legislative power. of the weighted average cost of production for each minimum · (1) With reference to the first objection, the obvious and sufil price area; they must not be unduly prejudicial or preferential cient answer is, so far as the act is directed to interstate transac as between districts or as between producers w.ithin a district; and tions that sales made in such. conditions constitute interstate ~hey must refiect as nearly as possible the relative market v~lue co~erce and do not merely "affect" it (Dahnke-Walker Milling of the various kinds,. qualitieS, and sizes of coal, at points of Co. v. Bondurant, 257 U. S. 282, 290; Flanagan v. Federal Coal Co., delivery in. each common consuming ·market area, to the end of 267 U. s. 222, 225; Lemke v. Farmers Grain Co., 258 U .. S. 50, 60: affording the producers in the several districts substantially the Public Utilities Commission v. Attleboro Steam & Electnc Co., 273 same opportunity to dispose of their coals on a competitive basis U. s. 83, 90; Federal Trade Commission v. Pacific States Paper as has heretofore existed. The minimum for any district. shall Trade Association, 273 U. S. 52; 64) : To regulate the· price for yield a return, per _net ton,. not l_ess than the weighted average .or such transactions is to regulate commerce itself, and not alone its the total costs per net ton of the tonnage of the minimum pnce antecedent conditions or its ultimate consequences. The very act area; the maximum for any mine, if a maximum is fixed, shall of sale is limited and governed. Prices in interstate transactions yield a return not less than cost plus a reasonable profit. Rea may not be regulated by the States (Baldwin v. Seelig, 294 U. S. sonable prices can as easily be ascertained for coal as for the 511). They must therefore be subject to the power of the Nation carriage of passengers or property under the Interstate Commerce unless they are to be withdrawn altogether from governmental Act, or for the services of brokers in the stockyards (Tagg Bros. supervision (Cf. The Head Money Cases, 112 U. S. 580, 593; Story, & Moorhead v. United f:tates, 280 U. S. 420), or for the use of Commentaries on the Constitution, sec. 1082). If such a vacuum dwellings under the Emergency Rent Laws (Block v. Hirsh, 256 were permitted, many a public evil incidental to interstate trans U. S. 135, 157; Marcus Brown Co. v. Feldman, 256 U. S. 170; Levy actions would be left without a remedy. This does not mean, of Leasing Co. v. Siegel, 258 U.S. 242), adopted at a time of excessive course that prices may be fixed for arbitrary reasons or in an scarcity, when the laws of supply and demand no longer gave a arbitr~ry way. The commerce power of the Nation is subject to measure for the ascertainment of the reasonable. The standards the requirement of due process like the police power of the States established by this act are quite as definite as others that ~a_ve had the approval of this Court (New York Central S~cunttes (Hamilton v. Kentucky Distilleries Co., 251 U. S. 146! 156; cf. Brooks v: United States, 267 U. S. 432, 436, 437; Nebbta v. New Corporation v. United States, 287 U.S. 12, 24; Federal Radw Com York 291 U. S. 502, 524). Heed must be given to similar consid mission v. Nelson Bros. Bond & Mortgage Co., 289 U. S. 266, 286; erati~ns of social benefit or detriment in marking the division Tagg Bros. & Moorhead v. United Stat es, supra; Mahler v. Eby, between reason and oppression. The evidence is overwhelmingly 264 U. S. 32). Certainly a bench of judges, not experts in the coal that Congress did not ignore those considerations in the adoption business cannot say with assurance that members of a com of this act. mission 'will be unable, when advised and informed by others experienced in the industry, to make the standards workable, or • • • • • • • to overcome through the development of an administrative tech· (2} The commerce clause being accepted as a sufilcient source nique many obstacles and difficulties that might be bafi:l.ing or of power, the next inquiry must be whether the power has been confusing to tpexperien.ce or ignorance. 2038 CONGRESSIONAL RECORD-HOUSE MARCH 9 The price provisions of the act are contained in a chapter known Laws passed for the suppression of immorality, in the interest as part II. The final subdivisions of that part enumerate cer of health, to secure fair trade practices, and to safeguard the tain forms of conduct which are denounced as ''unfair methods of interests of depositors in banks, have been found consistent With competition." For the most part the prohibitions are ancillary due process. These measures not only affected the use of private to the fixing of a minimum price. The power to fix a price carries property, but also interfered With the right of private contract. With it the subsidiary power to forbid and prevent evasion. (Cf. Other instances are numerous where valid regulation has re United States v. Ferger, 250 U. S. 199.) The few prohibitions that stricted the right of contract, while less directly affecting property may be viewed as separate are directed to situations that may rights. never be realized in practice. None of the complainants threat The Constitution does not guarantee the unrestricted privilege ens or expresses the desire to do these forbidden acts. As to those to engage in a business or to conduct it a.S one pleases. Certain phases of the statute the suits are premature. kinds of business may be prohibited; and the right to conduct THE NEBBIA CASE a business, or to pursue a call1ng, may be conditioned. Regulation of a business to prevent waste of the State's resources may be A late expression of the Supreme Court is the Nebbia justified. And statutes prescribing the terms upon which those case, in which the opinion is written by Justice Roberts, one conducting certain businesses may contract, or imposing terms 1! of the five gentlemen comprising the majority in the Carter they do enter into agreements, are within the State's competency. I:,egislation concerning sales of goods, and incidentally affecting case. Immediately it is said that the Nebbia case involved prices, has repeatedly been held valid. In this class fall laws for a State statute, which is certainly true. It did involve a bidding unfair competition by the charging of lower prices in one State statute, but in writing that voluminous, and I may locality than those exacted 1n another by giving trade induce ments to purchasers and by other forms of price discrimination. say as well "illuminous", opinion Justice Roberts dealt with The public policy, with respect to tree competition, has engen the power of the sovereign to the fixed prices. dered State and Federal statutes forbidding monopolies, which In the Nebbia case certain facts were found to show the have been upheld. On the other hand, where the policy of the conditions which existed and the necessity for the legisla State dictated that a monopoly be granted, statutes having that effect have been held inoffensive to the constitutional guarantees. tion. That was paralleled by Mr. Justice Cardozo in the Moreover, the State or a municipality may itself enter into busi coal case in respect of the coal trade. He pointed out that ness in competition With private propri.etors, and thus effectively, more than 19 separate distinct hearings had been held since although indirectly, control the prices charged by them. 1913, either by committees or subcommittees, by joint com • • • • • • • mittees of Congress, or by a special coal commission. Some In the light of the facts, ·the order appears nQt to be unreason able or arbitrary, or without relation to the purpose to prevent one who wants to throw a little pebble at the bill said, "You ruthless competition from destroying the wholesale price struc did not have any public hearings on this bill." If anybody ture on which the farmer depends for his livelihood, and the com is interested in public hearings, they can get a wa.gonload munity for an assured supply of milk. of hearings which have been held during the years from 1913 But we are told that because the law essays to control prices it denies due process. Notwithstanding the admitted power to to this hour. Two years ago we had 660 pages of hearings correct existing economic _ills by appropriate regulation of busi upon the coal act then under consideration. May I again ness, even though an indirect result may be restriction of the say that the Ways and Means Committee took the bill orig freedom of contract or a modification of charges for services or inally introduced by me on the first day of this session the price of commodities, the appellant urges that direct fixation of prices is a type of regulation absolutely forbidden. His posi (H. R. 2015) and considered every word and every line of it. tion is that the fourteenth amendment requires us to hold the £Here the gavel fell.J challenged statute void for this reason alone. The argument Mr. DOUGHTON. Mr. Chairman, I yield the gentleman runs th~t the publip control of rates or prices is per se unreason able and unconstitutional, save as applied to businesses affected 15 additional minutes. with public interest; that a business so affected is one in which Mr. VINSON of Kentucky. Mr. Chairman, this bill came property is devoted to an enterprise of a sort which the public out of committee in its present completed form. It was itself .might appropriately undertake, or one whose owner relies on a public grant or franchise for the right to conduct the business, stronger, I may say, from a legal viewpoint as well as from a or. in which he is bound to serve all who apply; in short, such practical viewpoint. as is commonly called a public utility; or a business in its nature · Getting back to the Nebbia case, which was handed down a monopoly. The milk industry, it is said, possesses none of these characteristics, and, therefore, not being affected with a March 5, 1934, by the Court as it is presently constituted: public interest, its charges may not be controlled by the State. The opinion was rendered by Mr. Justice Roberts-a very Upon the soundness of this contention the appellant's case against comprehensive opinion, covering 24 printed pages, resulting the statute depends. in the Supreme Court upholding a price-fixing statute en We may as well say at once that the dairy industry is not in the accepted sense of the phrase a public utility. We think the acted in New York which involved the price of milk, which appellant is also right in asserting that there is in this case no was a matter of internal commerce. The Court discussed suggestion of any. -monopoly or monopolistic practice. It goes the investigation of this subject, the necessity of milk as without saying that ·those engaged in the business are in no way an item of diet, the necessity of safeguarding its produc dependent upon. public grants or franchises for the privilege of conductilig·their actiVities. But if, as must be conceded, the in• tion and handling for human consumption which greatly dustry is 1 subject to regulation in the public interest, what con increased its price. It dealt with the amount of investment stitutional principle bars the State from correcting existing mal .. and the economic loss to. the people of the State through adjustments by legislation touching prices? We thii:lk there is no such principle. The due process clause the curtailment or destruction of the dairy institution. It makes no mention of sales or of prices any more than it speaks of treated of the prevalence of unfair and destructive trade business or contracts or buildings or other incidents of propP.xty. practices leading to the demoralization of prices in the The thought seems nevertheless to have persisted that there is metropolitan area and other markets. It showed beyond something peculiarly sacrosanct about the price one may charge for what he makes · or sells, and that, however able to regulate question that, for the benefit of industry, for the benefit other elements of manufacture or trade, with incidental effect of the consumer, stabilization of this industry was needed. upon price, the State is incapable of directly controlling the price The· retail price fixed by the Milk Control Board was 9 itself. This view was negatived many years ago (Munn v. Illinois, 94 u. s. 113). cents a quart. Nebbia, a proprietor, sold 2 quarts of milk • • • • • • • and a 5-cent loaf of bread for 18 cents. He was convicted Many other decisions show that the private character of a for violating the Milk Control Board's orders. The Su business does not necessarily remove it from the realm of regula preme Court confirmed his conviction. Mr. Justice Roberts tion of charges or prices. The usury laws fix the price which may stated in that opinion: be exacted for the use of money, although no business more es sentially private in character can be imagined than that of loan Under our form of Government the use of property and the ing one's personal funds (Griffith v. Connecticut, 218 U. S. 563). making of contracts are normally matters of private and not of Insurance agents' compensation may be regulated, though their public concern. The general rule is that both shall be free of contracts are private, because the business of insurance is con governmental interference. But neither property rights nor con sidered one properly subject to public control (O'Gorman & Young tract rights are absolute; for Government cannot exist if the v. Hartford Fire Ins. Co., 282 U. S. 251). Statutes prescribing in citizen may at will use his property to the detriment of his the public interest the amounts to be charged by attorneys for fellows, or exercise his freedom of contract to work them harm. prosecuting certain claims, a matter ordinarily one of personal Equally fundamental with the private right is that of the public and private nature, are not a deprivation of due process (Frisbie to regulate it in the common interest. v. United States, 157 u. S. 160; Capital Trust Co. v. Calhoun, 250 The Court has repeatedly sustained curtailment of enjoyment U. S. 208; Calhoun v. Massie, 253 U. S. 170; Newman v. Moyers, of private property in the public interest. The owner's rights 253 U. S. 182; Yeiser v. Dysart, 267 U. S. 540; Margolin v. United may be subordinated to the needs of other private owners whose States, 269 U. S. 93). A stockyards corporation while not a com pursuits are vital to the paramount interests of the community. mon carrier, nor engaged in any distinctly public employment, is ~ ~ ~ ~ ~ ~ ~ doing a work in which the public has an interest, and its charges 1937 CONGRESSIONAL RECORD-HOUSE 2039 may be controlled (Catting v. Kansas City Stockyards Co., 183 thing, it has held that Congress cannot delegate. to persons U. S. 79, 85). Private contract carriers, who do not operate under a franchise, and have no monopoly of the carriage of goods outside of the Government legislative authority. Congress or passengers, may, since they use the highways to compete with has not that power. It makes no difference how well inten railroads, be compelled to charge rates not lower than those of tioned one may be, it just cannot be done. If we wanted to public carriers for corresponding services, if the State, in pursu delegate the power to them we could not do it, because the. ance of public policy to protect the latter, so determines (Stephen son v. Binf or d, 287 U. S. 251, 274) . Supreme Court said in theN. R. A. case and in the coal case It is clear that there is no closed class or category of business that Congress cannot delegate legislative authority to persons affected with a public interest, and the function of courts in the outside the Government. So, instead of authorizing these application of the fifth and fourteenth amendments is to deter mine in each case whether circumstances vindicate the chal boards to fix the minimum prices, in this bill we authorize lenged regulation as a reasonable exertion of governmental au them to propose the prices, and the minimum prices are thority or condemn it as arbitrary or discriminatory. The phrase established by a Federal agency, the bituminous coal com "affected with a public interest" can, in the nature of things, mission. mean no more than that an industry, for adequate reason, is subject to control for the public good. In several of the decisions My best information is that there is just a small w.J.nority of this court wherein the expressions "affected with a public in that is not favoring this bill in its present form today. Last terest", and "clothed with a public use", have been brought for Monday week, March 1, I believe it was, there was a meeting ward as the criteria of the validity of_price control, it has been admitted that they are not susceptible of definition and form an -of the opponents in New York. It is no secret who was unsatisfactory test of the constitutionality of legislation directed present. at business ·practices or prices. These decisions must rest finally, The CHAIRMAN. The time of the gentleman from upon the basis that the requirements of due process were not met, Kentucky [Mr. VINSON] has expired. because t he laws were found arbitrary in their operation and effect. But there can be no doubt that upon proper occasion and Mr. DOUGHTON. Mr. Chairman, I yield the gentleman by appropriate measures the State may regulate a business in any from Kentucky 5 additional minutes. of its aspects, including the prices to be charged for the products Mr. VINSON of Kentucky. I understand that representa or commodities it sells. • • • • • • tives of the Pittsburgh Coal Co. were present. They are in Where the public interest was deemed to require the fixing of this small group opposing this legislation and any other legis minimum prices that expedient has been sustained. If the law lation that will stand up in court. I understand Mr. James making body within its sphere of government concludes that Walter Carter, who took the coal case to the Supreme Court, conditions or practices in an industry make unrestricted compe-· was there. And, lo and behold, this gentleman who financed tttton an inadequat e safeguard of the consumer's interest, produce waste harmful to the public, threaten ultimately to cut off the the fight against the original coal bill, today, I understand, supply of a commodity needed by the public, or portend the -wants a bill now passed that will delegate the power to him destruction of the industry itself; approprtat~ statutes passed in and other operators to fix the price, something which he an honest effort to correct the threatened consequences may not be set aside because the regulation adopted :fix.es prices reasonably railed against successfully in the Court as an unconstitu.;. deemed by the legislature to be fair to those engaged in the in tiona! delegation of power. I think that when you come to dustry and to the consuming public. And this is especially so the end of the rope you will find some thirty or forty million where, as here, the economic maladjustment is one of price, which tonnage that is against this bill, whereas in 1936 there were threatens harm to the producer at one end of the series and the consumer at the other. The Constitution does not secure to 400,000,000 tons of bituminous coal produced and used in this anyone liberty to conduct his business in such fashion as tJ country. inflict injury upon the public at large or upon any substantial There is very little coal in my district. There are a very group of the people. Price control, like any other form of regula tion, is unconstitutional only if arbitrary, discriminatory, or few small mines. I do not have the interest of a Representa demonstrably irrelevant to the policy the legislature is free to tive of a coal-producing district, but that does not mean that adopt, and, hence, an unnecessary and unwarranted interference I have any less interest in legislation that will stabilize this with individual liberty. great industry. As a boy and as a young man I traveled Tested by these considerations we find no basis in the due process clause of the fourteenth ~mendment for condemning the through the Kentucky coal fields and through the West Vir provisions of the agriculture and, markets law here drawn into ginia coal fields. You might not believe it unless you were question. · here during the days when we had the congressional ball We have quoted at length from the Nebbia case dealing games, but I used to play a little baseball. I played ball in with the question of sovereign power to regulate price of their coal camps, upon their ball teams. I mixed and mingled matters within its jurisdiction, but we do not rely upon this with them. I became familiar with the manner in which case alone. We have set forth in some length the other they lived. Houses on·stilts, 2 to 10 in a· family, working 1 or decisions of the. Supreme Court· upon which·we rely; but we 2 days a week. · Hard going. emphasize the Nebbia ·case with the lengthy quotation there · I hope there . is no spot_in our fair land where it exists .. from, because Mr. Justice Roberts wrote this opinion about now, but in the old days the coal operator used to go out a year before the Carter case. · If he had any change in and bring men in on transportation, as they called it. They mind relative to the power of Congress to regulate prices would round up men and. their families and herd them into and unfair methods of competition within its sphere, it trains. They had armed guards at the doors of the cars to would have been an easy matter to have invalidated those prevent them from getting off the train until they took them points of the statute. up in the hollow. They had mine guards at the mouth of OTHER PROVISIONS the hollow to keep them from coming out until they paid for their transportation and other amounts owing the com There are many other provisions which we would like to pany. - The prices that were charged at commissaries were discuss in detail, but time does not permit. We would call exorbitant. It was almost impossible to get even, and there specific attention to the report of the Ways and Means Com fore almost impossible to get out of the hollow. It was the mittee in regard to the commission, consumer's counsel, nearest approach to peonage that I ever observed. In most organization, marketing, minimum prices and marketing of our country those things are history. rules and regulations, maximum prices, changes on com When you come to consider this bill, please understand plaint, prohibited sales and contracts, captive coal, and the that what we desire is stabilization of the industry that will labor provisions. Anyone interested can find a short suc permit a fair return upon the investment to be made under cinct statement in regard to these items as well as others the control of a Federal agency, so that there will be an referred to therein. opportunity for a fair wage to be paid to men who take their CONCLUSION lives in their hands when they go down into the bowels of We have endeavored to meet the court decisions. For in the earth to produce this necessity. stance, in the Coal Act of 1935 we empowered the district Mr. RANDOLPH. Mr. Chairman, will the gentleman boards to establish prices. This was a delegation of congres yield? sional power to the industry to fix prices, because the district Mr. VINSON of Kentucky. I yield. boards were composed of members of the industry with the Mr. RANDOLPH. Is it not a fact also that by the tax exception of one man representing labor. You find no such impose~ there will be-no additional financial responsibility provision in this bill. If the Supreme Court has held any- for the administration of the act? 2040 CONGRESSIONAL RECORD-HOUSE MARCH 9 Mr. VINSON of Kentucky. That is correct. The tax .able and inappropriate for the Attorney General, who is charged will be with the conduct of litigation for the Government, to render offi raises $4,000,000, and the cost of administration con cial opinions in a quasi-judicial capacity on matters which may siderably less. become the subject of litigation. I close with a request that you join with us and pass this INSTANCES ILLUSTRATING THE CONSISTENT VIEW OF ATTORNEYS GENERAL . bill, which means so much to the folks affected. [Applause.] THAT THEY HAVE NO POWER TO RENDER OPINIONS TO EITHER HOUSE" The CHAIRMAN. The time of the gentleman from Ken OF CONGRESS tucky has again expired. Attorney General Wirt (1 Op. 335) : "The Attorney General may Mr. VINSON of Kentucky. Mr. Chairman, under leave to give his advice and opinion upon questions of law only when re extend, I insert the letter of the Attorney General previously quired by the President or requested by the heads of the depart ments. It is not his duty to give official opinions to the House of. referred to in my speech: Representatives." OFFICE OF THE ATI'ORNEY GENERAL, Attorney General Brewster (18 Op. 87): "The authority of the Washington, D. C., Februar y 17, 1937. Attorney General to give his ofilcial opinion is limited by the laws. MY DEAR MR. CHAIRMAN: In response to your request of yesterday which create and define his office and wm not permit him to give on behalf of t he Ways and Means Committee of the House of advice at the call of either House of Congress, or of Congress itself,. Representatives for an opinion of the Attorney General as to the but only to the President or the head of an executive department." constitutional validity of H. R. 2015, a bill to regulate interstate This was said in response to a request for the opinion of the commerce in bituminous coal, and for other purposes, may I re Attorney General made by a resolution of the House of Repre spectfully call to the attention of the committee the reasons which sentatives. impel me to refrain from compliance with your suggestion. Attorney General Crittenden ( 5 Op. 561) : The Attorney General The Department of Justice was created by Congress with power declined to advise a committee of CongreEs as to the validity of a to its officers to represent the Government in litigation and t-o claim pending before the committee because "to answer the ques advise the President and the heads of departments in the execution tions you have been pleased to propose does not fall within the of their duties. There is nothing in the legislation relating to the limits of the duty, or legal power, of the Attorney General but powers of the Department which authorizes the .attorney General would be a wide departure from his appointed sphere of act ion." to give such an opinion as you request, and, so far as I am advised, Attorney General Evarts (12 Op. 544): In a commUnication to no such opinion has ever been given. It seems clear that embar the chairman of the Senate Committee on Naval Affairs the Attor rassment in administration would result if numerous requests of ney General declined to give his opinion on a joint resolution this character were complied with or if the Department was called pending before the committee. He said that "it has been Uni upon to enforce acts previously stated to be invalid by an Attorney formly considered that the powers and duties of the Attorney General. General were limited and defined by the statutes passed by Con The attitude of the Department of Justice has been consistent gress on the subject and that any exercise of official action beyond upon the propriety of acceding to requests for opinions by the the statutory authority conferred upon him was an unwarrantable legislative branch of the Government. A concise summary cover assumption on his part • • • ." That "it was not competent ing this attitude appears in a memorandum printed in the pro for the Attorney General to give opinions concerning any matters ceedings of the Senate of March 26, 1936, volume 80, CoNGRESSIONAL pending in Congress upon the request of either of the Houses or RECORD, page 4:379, reading as follows: of any committee." Attorney General Mitchell (36 Op. 532) : "The Attorney General "IN RE SENATE RESOLUTION 228 (Apr. 25, 1932) felt obliged to decline to give an opinion in "The authority of the Attorney General to render opinions is con response to a Senate resolution on legal phases of the subject tained in sections 303 and 304 of title 5 of the United States Code. matter of the resolution, and cites an unbroken line of authority These sections read as follows: . for more than a hundred years in support of his position." "'303. Opinions and advice of Attorney General; to President. In considering the bill in question, the committee may find The Attorney General shall give his advice and opinion upon ques helpful a discussion of the regulation of prices presented to the tions of law, whenever requested by the President' (R. S., sec. 354; Supreme Court in the litigation over the Bituminous Coal Con Feb. 27, 1877, ch. 69, sec. 1, 19 Stat. 241). servation Act of 1935. In that act the Congress undertook the "'304. Same to heads of executive departments. The head of any "stabilization of the industry through the regulation of labor executive department may request the opinion of the Attorney and the regulation of prices." The Department's argument, sup General on any questions of law arising in the administration of porting the Validity of the regulation of prices, is set out at length his department' (R. S., sec. 356). . in the Government's brief in the Carter case at pages 102 to 196. In accordance with these provisions, which authorize the ren Several copies of this brief accompany this letter. In this brief dering of opinions to the President and the heads of departments your committee will find a discussion of the constitutional issues only, it' has been a well-recognized custom from the beginning in similar form to that contained in the memorandum on the. that the Attorney General will refrain from .giving opinions re· social security bill, to which you have made reference. quested by other branches of the Government. The subject was The regulation of prices, proposed in H. R. 2015, is bottomed treated comprehensively by Attorney General Mitchell in April upon the same grant of power which supported similar regulations 1932 in response to a request of the Senate for an opinion with in the act of 1935. There are no subsequent or additional pr.)ce-· respect to certain railroad mergers. The response of the Attorney dents known to me which would affect the pOSition taken by the. General to that request emphasized the fact that Congress has Department in presenting the Carter case. not required, nor indeed authorized, the Attorney General to ren· I feel sure your committee will appreciate the reasons which der opinions to Congress or either House, and that for over a hun- have led to the long-continued practice of the Departm-ent as to .. dred years the Attorneys General have deemed themselves pre such requests and which, in my opinion, require me to follow the cluded from giving such opinions. Attorney General Mitchell precedents referred to in this letter. cited a number of instances of this kind dating back to an early Very respectfully yours, statement of Attorney General Wirt in 1820 in response to a re STANLEY REED, quest of the House of Representatives. Continuing, Attorney Gen Acting Attorney General. eral Mitchell stated: Hon. RoBERT L. DoUGHTON, "Under date of February 14, 1929, my immediate predecessor Chairman, Ways and Means Committee, declined the request of the House Committee on Expenditures in House of Representative3. the executive departments for an opinion, and on June 3, 1930, I felt obliged to decline an opinion requested by the Judiciary Mr. -TREADWAY. Mr. Chairman. I yield 20 minutes tQ Committee of the Senate. the gentleman from Ohio [Mr. JENKINs]. "Congress has accepted this long-standing interpretation of the Mr. JENKINS of Ohio. Mr. Chairman, we have just. law and has never attempted by law to enlarge the powers or duties of the Attorney General so as to require him to give opin listened to one of the most convincing and most exhaustive ions to either House of Congress or to committees thereof: Hav speeches I have ever heard in this Congress. The reason ing in mind the constitutional separation of the functions of the I feel more or less qualified to pass this compliment on this legislative, executive, and judicial branches of the Government, speech is that I have made a very exhaustive study of this there has always been a serious question whether the principle of that separation would be violated by a statute attempting to make subject myself and I find it would be surplusage if I were the Attorney General a legal adviser of the legislative branch, to attempt to say many of the things I had expected to say and as a matter of governmental policy the wisdom of constitut in view of the comprehensive and complete manner in wbich ing as legal adviser of either House of Congress an official of the this executive department, who sits in the President's Cabinet and my colleague, Mr. VINSON of Kentucky, has handled acts as his legal adviser, has always been open to doubt. subject. "WhEm pending legislation affecting the Department of Justice For years I have been in favor of doing what we hope has been referred to Attorneys General for comment or suggestion, this bill will do. Long before the first Vinson-Gutfey bill it has been their practice to suggest such legal points as are per tinent and which ought to receive consideration by committees, was ever introduced I was in favor of lending aid to this but that practice has never properly involved any formal legal. failing industry. I did a great deal of work in that direc opinions from Attorneys General and has no resemblance "to are tion in the hope that I could formulate a plan that would quest for an opinion as to the effect of an existing statute" (36 have a tendency to stabilize this industry. Op. Atty. Gen. 532). Reasons of policy support this recognized practice. Except I voted for the first Guffey coal bill. I voted for it be where required for administrative conduct, it would be inadvis- cause of what it attempted to do and not so much for the 1937 CONGRESSIONAL RECORD-HOUSE 2041 method in which it attempted to do it. In other words, Early in the history of the country the power of Congress when the Supreme Court found that the Guffey bill was to regulate commerce reached the Supreme Court through unconstitutional I agreed with the Supreme Court. I bad the case of Gibbons v. Ogden (9 Wheaton, 1, 96). That was no inclination to abuse the Supreme Court or to fall out a case where Robert Fulton and others were by virtue of With it because of its decision. a New York statute claiming exclusive right to navigate all It might not be amiss at this time to review the steps waters in New York. Ogden, holding under Fulton and through which this bill has taken its devious course. relying upon the New York statute, sought to prevent Gib The gentleman from Indiana [Mr. GREENWOOD], in his bons, who had a license from the United States Government, opening statement on the rule, went into that rather in to operate on the navigable waters of the United States. . detail. The gentleman from Kentucky [Mr. VmsoNl has The Court held the New York statute to be unconstitutional done likewise. To understand the history of legislation is and further said in connection with the power of Congress often to understand its merits. I find in the consideration to regulate commerce: of any bill there are only two or three cardinal principles, This power, like all other vested in Congress, 1s complete in it· there are only two or three objectives, there are only two self, may be exercised to its utmost extent, and acknowledges no or three points of difference; and a review of the tedious limitations other than are prescribed in the Constitution. course this bill has taken may refresh the recollection of This case of Gibbons against Ogden is a star case on this some of us and may help someone to come to a conclusion subject. It has been supported many times. Another great as to how he should vote, or it may clear up some things case on this subject and which supports Gibbons against for him. Ogden in the case known as the Minnesota Rate case (230 ·The first bill provided and sought to do two things: It U.S. 399). In this decision the following languag~ appears: sought to fix prices and to regulate wages. The Supreme There is no room in our scheme of government for the assertion Court held that it could not regulate wages. It further held of State power in hostility to the authorized exercise of Federal that these two provisions were so bound together that they power. The authority of Congress extends to every part of inter It state commerce, and to every instrumentality or agency by which were inseparable. has been said on the :floor of the it is 'carried on; and the full control by Congress of the subjects House in times gone by that the decision of the Supreme committed to its regulation is not to be denied or thwarted by the Court against the original Guffey bill was a 5-to-4 decision. commingling of interstate and intrastate operations. That is not the case. The decision on the Guffey bill was Another later case which shows the extent to which Con a very comprehensive decision and it was also very, very gress may go in its control of commerce is the case of complex. You may take it as the gentleman from Kentucky Houston Railway Company v. United States (234 U.S. 343L [Mr. VINsoN] did from one angle, and the vote may appear The syllabus of this case contains the following language: to show one trend, or you may take it from another angle While Congress does not possess authority to regulate the in and be justified in concluding that the vote of the Supreme ternal commerce of a State, as such, it does possess power to foster Court was unanimous in another direction. Let me explain. and protect interstate commerce, although in taking necessary Five members held the act unconstitutional by claiming that measures so to do it may be necessary to control intrastate trans the labor provisions were unconstitutional and that they actions of interstate carriers. - The use by the State of an instrument of interstate commerce were inseparable. · They ~eclin~d to decide whether the in a discriminatory manner so as to inflict injury on any part of price-fixing provision was constitutional if separated. Chief that commerce is a ground for Federal intervention; nor can a Justice Hughes decided that the provisions were separable State authorize a carrier to do that which Congress may forbid and that the labor provisions were unconstitutional, but that and has forbidden. the price fixing under the Nebbia case was constitutional. , The above cases are sufficient to prove that Congress haS This would make the decision at least a 6-to-3 decision on -individual power to regulate futerstate commerce.. The the labor provisions. Justice Cardozo, speaking for himself _question yet remains whether Congress has the power to fix and two others, held that the provisions were separable and prices. the price-fixing provision was constitutional. This would There is an abundance of authority to prove that Congress make the decision stand as a decision of four clearly for the has the power to regulate railroad rates. To do this Congress ·constitutionality of the price-fixing provision, with five not set up the Interstate Commerce Commission, which has been speaking definitely as to how they would stand if the provi operating for many years. The work of this Commissic;m has sions were separated. Thus it is perfectly possible that if been gradually expanding until it is now one of the ·great the provisions were separated the full Court of nine might be departments of Government. It fixes rates by reason of a favorable to holding the labor provisions unconstitutional and decree by Congress to it of the right to fix rates. holding the price-fixing provision constitutional. Is rate fixing entirely analogous to price fixing? If, so, What does this bill do? This bill is very similar to the there is no question as to the constitutionality of this coal bill. bill we passed last year and which failed to be considered in The fixing of railroad rates is a very prominent factor in the the Senate before adjournment. Last year's bill sought to fixing of the price of any commodity which is carried in rail do what? It sought to provide a means whereby the coal road transportation. The average price paid by the con industry could be stabilized by the regulation of prices. If sumer for coal in the United States is made up largely from anybody asks you if price fixing is in tl$ bill you must transportation charges. In many cases the cost of produc say that it is; it is a price-fixing bill; there is no question tion of the coal is less than one-fourth of the total cost to about that. the consumer. In many cases the cost of transportation is Is price fixing constitutional? What does the Supreme twice and three times the price of the cost of the coal. If Court say in the cases as to whether price fixing is consti:.. the Interstate Commerce Commission can fix the price of tutional? Probably the most logical way to consider the transportation, its power over the price to the consumer will subject is to consider what provision of the Constitution does be much more than the power of the bituminous coal com this bill depend upon for its authority. There is no ques mission over the price to the consumer, as provided in this tion but that it depends upon the commerce clause. This bill. is the cia use I refer to: · The Supreme Court, in the case of the Appalachian Coal v. Congress shall have power to regulate commerce with foreign United States (288 U. S., p, 344), upheld a selling agreement nations and among the several States and with the Indian tribes. in which companies representing .73 percent of the total coal The power "to regulate commerce" is a complete power production of the United States had entered intO-a selling and may be exercised to the utmost extent. In the exercise agreement the purpose of which was to stabilize the price of of this power Congress owes no obligation whatever to State coal. legislatures and is restricted only by the limitations pre The Supreme Court, in the case of Tag v. u.s. (280 u.s., scribed by the Constitution with reference to due process. p. 420), held that laws passed by Congress regulating fees In other words, Congress can regulate interstate commerce, charged by "market agencies" rendering stockyard service to all practical purposes, so long as it does not work in interstate-commerce matters are constitutional. In my confiscation. rather cursory search I have not been able to find a case 2042 CONGRESSIONAL- RECORD--HOUSE MARCH 9 directly in point to what is attempted to be done by way. of be subordinated to tlle needs of other private owners whose pur suits are vital to the paramount interests of the community. The price fixing in the present bill, but great confidence is ex State may control the use of property in various ways; may pro pressed by the Attorney General's Department and others hibit advertising billboards except of a prescribed size and loca who vouch for the constitutionality of this bill in the case of tion, or their use for certain kinds of advertising; may in certain Nebbia v. New York (291 U.S., p. 502), to which I shall refer circumstances authorize encroachments by party walls in cities; may fix the height of buildings, the character of materials, and later. methods of construction, the adjoinlng area which must be left Some advocates of this bill lay great stress on the statement open, and may exclude from residential sections offensive trades, made by Justice Hughes in his opinion heretofore referred to industries, and structures likely injuriously to affect the public in the original Guffey Coal Act case, where he says: health or safety; or may establish zones within which certain types of buildings or businesses are permitted and others ex We are not at liberty to deny to Congress, with respect to inter cluded • • •. state commerce, a power commensurate with that enjoyed by the Certain kinds of business may be prohibited; and the right to States in the regulation of their internal commerce. conduct a business, or to pursue a calling, may be conditioned. Regulation of a business to prevent waste of the State's resources Justice Hughes makes this statement, and cites Nebbia may be justified. And statutes prescribing the terms upon which against New York as the basis of such a statement. If Chief those conducting certain businesses may contract, or imposing Justice Hughes is correct in his assumption that because of terms if they do enter into agreements, a.re within the State's competency • • •. the decision in the Nebbia case, which holds conclusively that Legislation. concerning sales of goods, and incidentally affecting a State has a right to fix prices in its control of intrastate prices, has repeatedly been held valid. In this class fall laws for commerce, that then, and by the same reasoning, Congress bidding unfair competition by the charging of lower prices in one would have a right to fix prices for interstate commerce, then locality than those exacted in another, by giving trade induce there can be no question about the constitutionality of this ments to purchasers, and by other forms of price discrimination. bill. Let me state it in another way: Under the terms of It is not necessary that business be "impressed with a pub the Constitution the States gave the Federal Government the lic interest" or be a "monopoly" in order to be subject to full authority and right and power to control interstate com price-fixing legislation. merce. They did this because their experience under the But if, as must be conceded, the industry is subject to regula Articles of Confederation had shown that this question of tion in the public interest, what constitutional principle bars the commerce between them and among them was prolific of State from correcting existing maladjustments by legislation touching prices? We think there is no such principle. The due more disturbance than any other question. They were glad process clause makes no men~ion of sales or of prices any more to get rid of it, and turned it over to the Federal Govern than it speaks of business or contracts or buildings or other inci ment under the Constitution. They, by the same token. dents of property. The thought seems, nevertheless, to have per sisted that there is something peculiarly sacrosanct about the retained the full right, authority, and power to control intra price one may charge for what he makes or sells, and that, how state commerce. In the Nebbia case the Supreme Court has ever able to regulate other elements of manufacture or trade, with decided that a State under State law has the right to fix the incidental effect upon price, the State is incapable of directly con price of milk. Then, without any decision on the point, can tro111ng the price itself. This view was negatived many years ago (Munn v. Illinois, 94 U. S. 113). it be considered that the Federal Government has the same ''Property does become clothed with a public interest when right with reference to interstate commerce? Since the Neb used in a manner to make it of public consequence, and affect bia case is generally looked upon as furnishing the answer to the community at large" (p. 126). Thus understood, "affected the question as to whether the price-fixing provisions of this with a publlc interest" is the equivalent of "subject to the exer cise of the police power"; and it is plain that nothing more was bill are constitutional, I think it apropos to submit a brief of intended by the expression. • • • that case. · In German Alliance Insurance Co. v. Lewis (233 U. S. 389) a The New York Legislature passed an act to "fix minimum statute fixing the amount of premiums for fire insurance was and maximum • • • retail prices to be charged ·by held not to deny due process. • • • Many other decisions- show that the private character of a • • • stores to consumers for consumption off the prem~ business ·does not necessarily remove it from the realm of regu ises where sold." The law provided that the minimum price lation of charges or prices. The usury laws fix the price which of milk should be 9 cents per quart. may be exacted for· the use of money, although no business more essentially private in character can be imagined than that of Nebbia sold 2 quarts of milk and a 5-cent loaf of bread loaning one's personal funds (Griffith v. Connecticut, 218 U. S. for 18 cents and was convicted for violation of the bOard's 563). . order. He appealed on the ground that the statute and Insurance- agents' compensation may be regulated, though their order of the board contravenes the equal-protection clause contracts are private, because the business of insurance is con sidered one properly subject to public control (O'Gorman & Young and the due-procesS clause of the fourteenth amendment. v. Hartford Fire. Ins. Co., 282 U.s. 251). • • • The real question is whether the Federal Constitution pro A stockyards corporation.._ ''while not a common carrier, nor en hibits the State from fixing the selling price of milk. gagectib:' any distinctively public employment, is doing a work in Extracts from the opinion of Justice Roberts: which the public has an interest", and its charges may be controlled (Catting v. Kansas City Stockyards Co., 183 U.S. 79, 85). • • • Under onr form of government the use of property and the So far . as the requirement of due process is concerned, and making of contracts are normally matters of private and not of in the absence of other constitutional restriction, a state is free public concern. The general rule is that both shall be free of to ·adopt whatever economic policy may reasonably be deemed governmental tnterfet;ence. But neither property rights nor con to promote public welfare, and· to enforce that policy by legisla• tract rights are absolute; for government cannot exist 1f the tion adapted . to its purpose. The courts are without authority citizen may at will use his property to the detriment of his either to declare such policy, or, when 1t 1s declared by the fellows or exercise h1s freedom of contract to work them harm. legislature, to override ·it. • • • Equally fundamental with the private right is that of the public And it is equally clear that if the legislative policy be to curb to regulate it in the common interest. • • • unrestrained and harmful competition by measures which are Thus has this Court from the early days affirmed that the not arbitrary . or discriminatory it does not lie with the courts power to promote the general welfare is inherent in government. to determine that the rule is unWise. • • • Touching the matters committed to it by the Constitution, the Price control, like any other form of regulation, is unconsti United States possesses the power, as do the States in their tutional only if arbitrary, discriminatory, or demonstrably irrele sovereign capacity touching all subjects jurisdiction of which is vant to the policy the legislature 1s free to adopt, and hence an not surrendered to the Federal Government. These correlative unnecessary and unwarranted interference with individual lib rights, that of .the citizen to exercise exclusive dominion over property and freely to contract about his affairs, and that of the erty. • • • State to regulate the use of property and the conduct of business, Having disposed of the constitutional questions involved are always in collision. No exercise of the private right can be in this bill, let me talk to you for a few minutes about the imagined which will not· in some respect, however slight, affect the public; no exercise of the legislative prerogative to regulate coal industry. The next great question that concerns the the conduct of the citizen which will not to some extent abridge American people in the consideration of this bill is: What his Uberty or affect his property. But subject only to constitu· effect is it going to have on the price of coal? Mr. Chair tional restraint, the private right must yield to the public need. • • • man, many people have had a misconception of the elements And the guaranty of d1le process, as has often been held, that make up the cost of coal. Many people thi.nk that the demands only that the law sbap not be unreasonable, .arbitrary total cost that they pay for coal goes to the miner and the or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained. • • • operator. They have long had a prejudice against both. The Court has repeatedly sustained curtailment of enjoyment They do not give the miner the credit that he deserves, and of private property in the public interest. The owner's rights may they condemn the operator for things that he has not been 1937 . CONGRESSIONAL _RECORD-HOUSE 2043 guilty of. Some of this comes from the fact that the miners of about $1.72. That was about the average price of all coal union has assumed and carried more of the burden of the in the United States last year. fight that the laboring man has made in his fight upward You may ask me what is going to be the effect of the pass toward economic freedom than has any other group. For age of this bill on selling prices. Let me give the Govern nearly 50 years this organization has fought against great ment statistics on the price of fuel for the past few years to odds for improvements in working conditions. Today the domestic consumers. Let us take the city of Minneapolis, for two greatest labor leaders of the world-John L. Lewis and instance. What was the price of fuel back in 1927? On an William Green-are products of this organization. They are index of 100, it was 100.5. What was it in 1930? It was 101.8. today representing different views, but the idea for one big In 1932 it had come down to 97. What was it in 1933, when union in each plant or industry seems to be in the ascendency the industry was flat on its back? It was 91. What was it in and is now the plan which the miners' union has been 1936? Just 91, exactly the same. operating. Many of the battles between the miners and the Mr. SffiOVICH. How about New York? mine owners could have been averted if the industry had Mr. JENKINS of Ohio. New York will take some time to been in such an economic condition as would permit the find. Let me give you the figures for Cincinnati, which is mine owners to pay better wages and provide better near a coal-producing section. In 1926 it was 106.1; in 1936, conditions. 95_.4, considerably lower. The mine owner and the miner do not get one-half of the Here is New York: 102.2 in 1926 and in 1936, 88.3, a very money the consumer pays for his coal. On the average, the marked reduction of 14 points. That is the history all over cost at the mine is generally only about one-third of the cost the country. Chicago is the greatest market in the country to the consumer, and in many cases it is not one-fourth or for bituminous coal. In 1926 the index figure for domestic even one-sixth of the cost. The mine operator and the miners fuel there was 100. In 1936 it was down to 91. In all seri are not getting ready to gouge anybody. They are not asking ousness, how can anybody make the claim that it is the inten for an increased price. tion of those in the industry to gouge the people for an Suppose they did ask for an increase in price? What is the increase in price? price of coal? While coal is a wonderful commodity and a Mr. Chairman, do not get scared of that bugaboo, because necessary and basic national commodity, yet the price at the I say to you that I know that it is not now in the mind of mine averaged last year from $1.75 to $1.90 per ton. If the my people to demand an increase in price. price is increased 10 percent at the mine, it would only be an We are not asking for an increase. Then you ask how do increase of 17 cents. Seventeen cents would be a great iii we expect to profit by this act? May I say if this bill crease for the miners and operators, but it would be a small does not do certain things it ought to be defeated. If it does increase to the consumer who pays $10 or $12 per ton for the not result in stabilization of the industry we should not same coal. This small increase of 17 cents would be ab pass it. We want stabilization of the industry. What do I sorbed several times before the coal reached the consumer if mean by that? Suppose you live in Minneapolis and you this bill becomes a law and the coal industry is stabilized and have $1,000,000 invested in a plant. You have the plant all a free, steady, all-the-year-around flow of coal is established. equipped to burn coal. Have you npt some right to look to I think I have the largest mine in the United States in my the coal-producing sections of the country to furnish you district. Whether it is the largest or not, it is one of the with coal in a free, easy way? The coal-producing terri largest mines in the country. It will produce 4,000 tons a tory is only a small fraction of the total area of our coun day. This mine is modern in every way and equipped with try, more than half of the States do not produce any coal. every modern safety appliance. But in spite of this I saw 80 Many of the States only produce a small amount. Eighty dead bodies taken out of this mine and laid in a row around percent of the coal of this country is produced in five the wall of a little store building. While we are considering States-Pennsylvania, West Virginia, Kentucky, Ohio, and the price that we are to pay for coal, why not think for a lllinois. moment of the price that the miner pays when he mines the Mr. Chairman, if coal is a necessity, if coal is produced coal? Seventy-nine thousand have been carried out dead in in a very limited, restricted area, if great sections of our the last 30 years. Thousands upon thousands have been in country with millions of people and great manufacturing jured. Coal is a necessary and useful commodity and we and commercial enterprises are dependent for their very cannot do without it. Since it is produced so cheaply, why existence upon coal, do you not think coal is impressed with not pass this bill whose sole purpose is to stabilize this a national interest to such an extent as to recommend it for industry, thereby benefiting all parties concerned, and re national protection? That is what our people want. A man viving an industry that should be kept in a thriving c In this respect I may say the committee has be~n so care tion. Of the other producing States only Ohio and Indiana fu1 in its desire to protect the consuming public that we have produced over 10,000,000 tons in 1934, out of a total national provided in the bill that the consumers' counsel shall make production of 358,000,000 tons in that year. his report direct to Congress. The bituminous coal com It is a fact that coal mined in every State competes with mission makes its report and its recommendations to the coal mined in other States. This is important. Secretary of the Interior, but so far as the consumers' coun Competition in this industry is necessarily based upon the sel is concerned, he makes his report and recommendations delivered price to the purchaser, which consists of the f. o. b. direct to the Congress. mine price plus freight. From 1923 to 1933 the freight We have also given the consumers' counsel extraordinary charges ranged from 46.9 percent to 63.3 percent of the powers in his own right with respect to the summoning of delivered price. Between this period the average freight witnesses and in representing the general public in all charge per ton ranged between $2.36 and $2.20. The aver hearings before the commission, and in initiating hearings age f. o. b. mine price declined from $2.68 in 1923 to $1.31 wherein, in the opinion of the consumers' counsel, the wel in 1932. In 1934 it was $1.34. fare of the consuming public requires the same. Wages are another interesting aspect. I have tried to give Proposals have even gone to the extent of declaring coal you the legislative history and some of the important charac to be "a public utility", and there is considerable rational teristics of this industry, how the sales made by the pro thought in support of this proposal. In any bill, tlle real ducers have determined in the main the amount of coal cause of the disturbed conditions of this industry are not mined, and to give you an idea of what the producers and the met unless means are provided to control and prevent cut workers are confronted with in this particu1ar activity. I throat competition. The history of this industry shows now come to the wage side. that cutthroat competition means cutthroat-wage reduc Wages in the coal industry constituted in 1929-the most tions, and the existence of a condition of poverty to millions recent year for which figures comparable to other activities of American citizens who only ask some degree of economic are obtainable-over 59 percent of the total value of the security. product of the mine. The operation of theN. I. R. A. in this industry showed a The reason for that is that the cost of the production of noteworthy result. Whatever-may be the criticism in other coal is practically all labor. Naturally, labor shou1d get a directions, in this industry great resu1ts occurred. There higher percentage of the returns. Furthermore, the d.ifficu1ty is a substantial unanimity of opinion that conditions in the of mining a ton of coal is greater than the difficu1ty faced by bituminous-coal industry greatly improved under the scheme a worker who is employed in industry or some other com of regulation which the. code provided. modity; the work is more laborious and there are factors in In other words, this bill is the result of nearly a . quarter this industry which justify the same. of a century of accumu1ated experience and discussion, with [Here the gavel fell.] one bill, the act of 1935 being passed upon by the Supreme . Mr. COOPER. Mr. Chairman, I yield the gentleman from Court. It includes authorization of marketing agencies Massachusetts 15 additional minutes. under public supervision, the outlawing of unfair-trade Mr. McCORMACK. To illustrate this further, between practices, the fixing of minimum and maximum prices,. pro 1923 and 1929 the computed wage payments in the industry tection of the right of employees to bargain collectively, dropped from $851,000,000 to $588,000,000, a decline of 30.9 and provision for investigation of resource waste and percent, while other industry was prospering. During the conservation. same period coal producers of all kinds incurred substantial Bituminous coal plays an important part in the life of our losses. The decline of _wages was brought about by the dras-_ country, and of our people. That is an important fact- tic wage reductions and by a, decrease of the number of per a matter of common knowledge-but an essential matter of sons employed. The number of men employed fell from consideration, with other factors, in connection with this 705,000 in 1923 to 594,000 in 1926 and in 1927, and to 503,000. particular bill. in 1929. There was also an accompanying increase in the It is interesting to note that the method of sale of this ~verage number of days worked per man per year from 179 coal is for the producer of coal to first obtain orders for to 219 days. coal through selling agencies located in consuming markets, But during this period wages .were falling rapidly. Be and then to mine the coal to fill the orders. When coal is tween the Bureau of Statistics' survey in the winter of 1921-22 brought to the surface of the ground it is often separated ~nd t~t in the winter of 1929, average hourly earnings for into sizes by being run over screens, and is then loaded miners and loaders, constituting the largest proportion of immediately into railroad cars for shipment to the. pur underground workers, for the Nation as a whole fell 25.9 chaser. It is uneconomical to maintain storage facilities percent, from 84.5 cents per hour to 62.6 cents oer hour. for the storage of coal, and they are not generally main With the average number of days worked per -year in tained. In other words, coal is not ordinarily mined unless creasing, nevertheless average annual earnings for mine there is an assurance that railroad cars will be available to workers in the Nation as a whole fell from $1,208 in 1923 receive it when it comes to the surface. Since the orders to $1,169 in 1929. While the employed miner worked on an frequently specify coal of a certain size, and since coal average 40 days more per year, an increase of 22 percent, comes out of the mines in various sizes, it often happens he received less wages at a time when wages in other lines that unsold sizes of coal are produced in the course of were increasing. Even then the producers continued to lose mining operation. money. · Coal in such unsold sizes is also immediately loaded into The effect of the depression has been more alarming. Pro railroad cars which are held on the tracks at the mine until duction dropped from 535,000,000 tons in 1929 to 310,000,000 sold, or until the mine tracks become congested. In the tons in 1932. Between 1923 and 1929 the average price of latter event, in order to avoid a suspension of mining opera coal dropped from $2.68 to $1.78. In 1930 the average sales tion, such unsold sizes are often consigned to some consum realization dropped to $1.70, in 1931 to $1.54, in 1932 to ing market in the hope that they may be sold before demur $1.31, and in 1933 the average was $1.34. The southern rage charges consume their value. Producers are under mines, at a greater distance from the consuming public, heavy pressure to slash prices on such consigned shipments, were forced to cut their prices to an average realization of and the coal so consigned is known as distress coal. This $1.05 per ton in 1932. During this period, as between has had a demoralizing effect upon the industry and, with 1923-29, the industry as a whole was suffering great losses. other factors, has resulted in the condition of chaos that In 1930 the deficit reported to the Treasury Department has existed in the past, and which now faces the industry. was $42,071,000; in 1931, $47,745,000; in 1932, $51,167,000; It is interesting to note that commercially important de and in 1933, $47,549,000. posits of bituminous coal are found in 26 States; but the · Wages declined more drastically than prices. The total four States of West Virginia, Kentucky, Pennsylvania, and annual wage payments in 1933, computed on the rate pre Dlinois produce over 70 percent of the total national produc- vailing before theN. R. A., would have been $235,000,000, as 2050 _CONGRESSIONAL RECORD-HOUSE MARCH 9 contrasted with $588,000,000 ·in 1929 and $851,000,000 in Upon that evidence something should be done. The Wa;ys 1923. Average daily earnings for mine workers in the and Means Committee has considered the present bill care Nation as a whole declined $3.36 in 1933. Many mines in fully. This bill represents the best that we can present to both Northern and Southern States were paying as low as this Congress in the nature of legislation. The Supreme $1.50 to $2.50 per day. Annual earnings per miner fell even Court must act. That is the way in America, legislative more rapidly, as the average number of days dropped from acts and Supreme Court construction. 219 in 1929 to 160 in 1931, 146 in 1932, and 167 in 1933. We need legal engineering or modern legal science in To illustrate, between 1929 and 1933 the annual income this country to meet the problems of the day. We need of the West Virginia leader had been reduced from $1,233 to have the legal profession lead the way. Our courts can to $557, and that of the Pennsylvania leader from $1,122 take judicial notice of the fact that we have changed from to $429. The effect of these wage conditions is apparent. a rural Nation into an urban industrial Nation. We must Bituminous-coal producers, by themselves and in collabo realize that the days when the formative law in America ration with Governors of coal-producing States, made va was being made and applied to the then conditions, from rious efforts to rescue the industry from economic disaster the Revolution to the Civil War, have changed, and the rules by voluntary and State action. They have all resulted in applying to 81 distinctly agricultural nation must be made failure in absence of Federal action. They were great con to apply to an urban industrial nation, such as we are today, structive efforts, but they failed on the shoal of cutthroat with well over 50, yes, well over 60 percent of the people competition. Just the same as those that in the past made of America living in cities of more than 2,500 population. wage agreements with their employees and failed because of Time is passing, and as time passes it produces changes, cutthroat competition of those who would not make a wage and these changes present to us new social, economic, and agreement, voluntary and State action failed because of political problems. In my opinion, there is a way within those who would not voluntarily cooperate. the Constitution to meet these problems. I have always The record indicates that the only possible solution of an been brought up to believe that the Constitution is elastic intolerable condition in one of our basic industries is by enough to apply and adjust itself to almost any change that Federal action. may take place. Underlying every strike, as it appears to me, and I am This bill, in my opinion, represents a step forward. It is giving you the results of my analysis of the evidence of the legislation that is necessary. The record, which I have past 25 years, has been the cutthroat competitive price war undertaken today to briefly state, of the past 25 years shows fare that was carried on between union and nonunion fields. the necessity for such legislation. The industry, the workers, The worker was the one to suffer. and the Nation itself require 81 stabilized bituminous-coal Opinions may honestly differ as to the method to meet industry. In my opinion, this bill. reasonably meets the this situation, but I cannot see how anyone can take the Pl'oblem as it confronts us today. This bill, in my opinion. position that these conditions should be permitted to con is constitutional. I hope the measure will pass. [Applause.] tinue. Mr. TREADWAY. Mr. Chairman, I yield 15 minutes to As bearing upon the danger of the work which workers in the gentleman from New York [Mr. CROWTHER]. the mines perform, let me call to your attention the fact Mr. CROWTHER. Mr. Chairman, if I thought the en that the actual chance is that 1 out of 10 men that spend actment of this legislation would bring about a cure of their working lives in the mines will be killed in a mine the disaster and the evil that is pictured as existing in the accident. In 1934 the accident hazards in bituminous mines bituminous coal industry so eloquently by the gentleman were two and nine-tenths times as great as the average for from Kentucky [Mr. VINSON] and the gentleman from all industries, and the accident severity rate .was six and Massachusetts [Mr. McCoRMACK] I should be ·tempted to seven-tenths times the average for all industries. The se vote for it, but I do not think it will effectively accomplish verity rate in bituminous mines was higher than in any this purpose. I rather think this situation as it presents other industry reporting to the National Safety Council. itself is a very clear indication of the necessity of an amend Another important piece of evidence as to the living condi ment to the Constitution in order that we may handle these tions in the mining areas can be obtained from the records matters. If we cannot do it under the Constitution as pres of the relief rolls. Even before President Roosevelt took ently constructed, I favor the orderly procedure of an amend office, and in 1931, former President Hoover recognized the ment in order that we may proceed constitutionally, and situation by requesting the American Friends Service Com stop throwing mud at the Supreme Court. mittee to undertake child feeding in the coal fields. I call your attention, as has been done several times, to Under the Federal emergency-relief program the relief the fact this bill still contains the price-fixing featUTe and load was exceptionally heavy in the coal fields. is purely a price-fixing bill. Whether or not this is going to I want you to note this piece of evidence. This is evidence, result· in bettering the condition of the employees is very cold evidence, which I have undertaken to ascertain in order questionable. to enable me to make up my own mind as to the manner in The Court made this statement, and I think stated it which I should vote on this bill. significantly: The price-fixing provisions of the code are thus disposed of A recent study by the University of Pennsylvania showed without going to the question of their constitutionality, but that out of 163 of the leading manufacturing counties in the neither this disposition of the matter, nor anything we have said United States there was 1 county in which 24 ·percent or more is to be taken as indicating that the Court is of the opinion that of the population was on relief during the year July 1933 to these provisions, if separately enacted, could be sustained. July 1934. Out of 41 other important urban counties in the Now, they are still in the bill and they are still open to United States there was also 1 with more than 24 percent question. I think the coercive tax or penalty is a problem of the population on relief. But out of 88 counties classified that should have been given further study, in view of the de as chiefly engaged in mining bituminous coal there were 22 cisions in the past of the Supreme Court, especially in the counties in which over 24 percent of the population was on Child Labor case, where Chief Justice Taft, in speaking of relief. that tax, stated it had already lost its identity as a tax and There is the evidence, extending over nearly a quarter of had become a penalty; and the 19¥2-cent tax in this bill a century. Today we have this bill before us. If ever there is a coercive penalty. The tax is one-half cent a ton on all was an industry that required legislative consideration, it produced coal and a tax of 19% cents a ton if the producer iS the bituminous-coal industry. If ever there were work does not sign the code on the dotted line. If this is not a ers in an industry who have lived under conditions approx coercive penalty, I never heard of one. imating poverty, yes, as my friend from Kentucky [Mr. VIN I think one of the great dangers attendant upon this SON] well said, "peonage", it is the workers of the bitumi legislation is this: Let us say, for argument's sake, that this nous-coal industry. I cannot close my eyes to that record bill pas&es and gets by the Supreme Court-and in passing ! refuse to close my eyes to that evidence. may I say, before I forget it, it seems to me a great deal of 1937 _CONGRESSIONAL RECORD-HOUSE . 2051 commendation is due the majority members of the commit duction of bituminous coal necessary for industrial and other tee for their very earnest endeavor in the consideration of uses has been reduced by 200,000,000 tons. this bill to discuss very carefully the constitutionality of the In this bill we are undertaking to establish a new little various sections while we were preparing the bill. This was N. R. A. You cannot describe it in any other way, there in marked contrast to the attitude that has been taken here is no other conclusion to reach. The first part of the bill tofore, except by one or two members of the committee, and provides for a. commission of seven, to be composed of two in marked contrast to the advice we received from the Presi from the miners and two from the operators. It does not dent to give no consideration to the constitutionality what say what the other three shall be or prescribe their quali ever and to resolve all doubts in its favor and report the bill. fications. They may have been miners or operators before, Let me say that this time the members of the majority gave but at least the miners and the operators have a 4-to-3 vote very earnest consideration to every paragraph and every in the 7-vote commission. A consumers' counsel is ap · principle and policy involved as to whether or not it might pointed in this bill, and I think so far as the consumers' get by the Supreme Court, and for this they deserve a great rights are concerned that is just a humorous gesture. He deal of credit. has no vote, he is added to this commission, he has nothing As I said a moment ago, it seems to me if this bill is de to say, he can cross-examine witnesses and appear at hear clared constitutional, why may we not expect to have similar ings, but he is the only one that anyone can appeal to. An legislation for every existing industry in this country? If we outsider is limited to his services, he may have no other can have one industry set up a commission of its own with attorney. It seems to me that very little benefit will re price-fixing power to protect it against competition, why may dound to the consumers of coal as a result of this consumers' we not expect the electrical industry, the steel industry, the counsel. boot and shoe industry, and half a dozen other industries to Mr. SHORT. Mr. Chairman, will the gentleman yield? do the same thing? You will recall the fact that the former Mr. CROWTHER. Yes. Guffey bill was hardly born a year or two ago before we had Mr. SHORT. Not only will the price of coal to the con ·a similar bill for the control of the textile industry presented sumer be increa.sed, but Will it not tend to drive out of to the Congress, and it iS just as natural to presume, and it existence the small-mine operators and producers? is a logical conclusion to come to, that we are going to have, Mr. CROWTHER. I think there is no question about and will have in the future, legislation of this character, and that. we shall have a multiplicity of bureaucrats here in Washing Mr. REED of New York. And will not this be the effect? ton with 50 industries, each with a commission of 7 or 350 When they raise the price above a certain point, the con commissioners, with all the employees they may require. sumer will shift to fuel oil and gas and every other sub Where are we going? Nobody seems to know particularly stitute? either the direction or the destination. Of course, they try Mr. CROWTHER. I think that is a fair deduction to to explain to us that this is a special industry. Of course it is. make. Of course, you cannot raise the price of bituminous It is an industry that is slowly dying. In the hearings for coal too high, because there are too many things competing the extension of theN. R. A., Mr. John L. Lewis admitted to with it, oil and gas particularly. Everybody realizes that. us that power development at Boulder Dam, the T. V. A., Of course, it is a worthy objective, this stabilizing the price, and various other places, would displace the use of bitumi but will it benefit the miners? nous coal. The fact is that this administration is just If you are going to stabilize the industry, 19% percent is patting the coal miner on the back with a bill of this kind not high enough to keep the fellow out of business who does and then, by appropriating $200,000,000 during the past 4 not want to sign the code on the dotted line. A 19%-percent years for hydroelectric development, is giving the same coal preferential will not keep him out. You cannot stop him. If miner a kick in the pants at the same time. you are going to stop him from bootlegging against the law, Mr. RANDOLPH. Mr. Chairman, will the gentleman you will have to raise that 19% percent, because there is a yield? greater differential than that in a great many cases, as I Mr. CROWTHER. I cannot yield. Mr. Lewis admitted understood from the evidence given at the previous hearing. that in the last 10 or 15 years hydroelectric development had Mr. Chairman, I ask unanimous consent to extend my reduced the consumption of bituminous coal 200,000,000 tons, remarks by adding to them a statement entitled "Why the which means a displacement of a thousand men to a million Progressive Miners of America Object to the Guffey Coal tons. So it is truly a dying industry. That does not relieve Bill." Inasmuch as there were no hearings on this bill, I us of the necessity, if we can do it, of improving these desire to have their statement appear. desperate living conditions that exist at the bituminous The CHAIRMAN. Is there objection to the request of the mines. Mr. Lewis said that- gentleman from New York? The mine workers, the men who work in the mines, have a. .There was no objection. dread or an apprehension pass over them every time they read in Mr. CROWTHER. I think both sides should be heard on the newspapers about the financing of any water-power electrical a question of such far-reaching importance. development. I presume that is human nature. The displace ment of a million tons of bituminous coal roughly will destroy The matter referred to by Mr. CROWTHER is as follows: the jobs of a thousand men. It runs at the ratio of a thousand WHY THE PRoGRESSIVE MINERs OF AMERICA 0B.TECT TO THE men to a million tons. GUFFEY CoAL BILL AN ANALYSIS BY THE DISTRICT EXECUTIVE BOARD, PROGRESSIVE MINEitS And he says further that- OF AMERICA That does not take into consideration the men engaged in In presenting this analysis of objections to the Guffey coal transportation and the distribution of that tonnage. bill, the Progressive Miners of America wish to maintain that it is not presented on the basis of the effect it might have so far as So that the displacement of labor is still greater. He our own organization is concerned if enacted into law, but rather said further: · because of the effects that it will have on the people as a whole from the standpoint of bad legislation. There are those who say that the cheapening of power energy The pending Guffey coal bill is just as vicious, discriminatory, through the widespread infusion of electrical energy produced by and dangerous as its predecessor which was enacted into law by water power will in turn create industrial and social activity the last Congress, and which was killed through the efforts of which will more than make up for the lost manpower in the min· those who were cognizant of the public dangers which would ing industry, but whether that is true or not one man's opinion undoubtedly ensue. is just as good as another's. The revised bill is cleverly drawn; full of ambiguous phrases He also said: which mean nothing other than a surface reading would indi cate, and cover, through inference and clever evasion, the same That we have not experimented for a. suffi.cient length of time fields of price fixing, coercion, taxation, and dictatorial bureau to determine whether or not :that promise will ever have any cratic control that the first bill incorporated. It carries the result. same artificial control of industry scheme as its predecessor, and, if enacted into law, would pave the way for the elimination Mr. Chairman, I think that is a fair statement. It 1s of hundreds of coal mines from operat1.on, and tens of thousands astounding when you realize that in 10 or 15 years the pro- of coal miners from the industry. LXXXI--130 2052 CONGRESSIONAL RECORD-HOUSE MARCH 9 We ask your earnest attention and study in the following which they predicate their review. The way the bill is devised analysis which we have prepared, and although it is somewhat precludes the sustaining of the orders of the commission by the lengthy we feel that the basic thoughts contained herein are of higher court and binds the court to sustain upon the premise of vital importance to the coal-mining industry, those who work "any substantial evidence." in it, the public in general, and those who create and administer CIVIL SERVICE SCRAPPED laws. The preamble of the bill on page 1 says: "That regulation of The Civil Service provisions of the old bill which were attacked the sale and distribution in interstate commerce of bituminous from various sources are cleverly evaded in the wording of the coal is imperative for the protection of such commerce; that revised bill. On· page 3, lines 2 to 8, it says: "With the excep there exist practices and methods of distribution and marketing tion of the secretary, a clerk to each commissioner, the attorneys, of such coal that waste the coal resources of the Nation and and such special agents, technical experts, and examiners a~ the disorganize, burden, and obstruct interstate commerce in bitumi . commission may require, all employees of the commission shall nous coal, with the result that regulation of the prices thereof be appointed with due regard to the provisions of the civil-service and of unfair methods of competition therein is necessary to laws and · the Classification Act of 1923, as amended." What promote interstate commerce in bituminous coal and to remove other employees are need by the commission with the excep burdens and obstructions therefrom." tion of those noted above? Possibly a few stenographers, filing This preamble attempts to bring the production of coal under clerks, etc., but nowhere in the act is found a provision which the interstate-commerce law although the courts have held up to fulfills the civil-service statute as it was intended when enacted this time that the production of coal is not interstate, but intra into law. . The appointive power contained in this act, as well as state commerce. Although the preamble of the bill states that all other proposed acts of the past several years, is diametrically it intends only regulation of the "sale and distribution", the opposed to the provisions of-the civil-service statute and tend to content of the bill is so fixed that such regulation involves pro bureaucratize the entire structure of government. This is not duction directly and · definitely. Chief Justice Taft, in the _good,. in that it promotes "pork barrel" legislation; designed to Coronado Coal Co. v. United Mine Workers of America (259 U. S. remunerate supporters of parties and political candidates. 407-408) said: "Coal mining is not interstate commerce, and the "GIFT" WORKERS power of Congress does not extend to its regulation as such.'' In The sentence found on page 3, lines 10 to 13, wherein it says the case of the Oliver Iron Mining Co. v. Lord (262 U. S. 171-118), "the commission is authorized to accept and utilize voluntary the Court said: "Mining is not interstate commerce, but like and uncompensated services of any person or of any official of a manufacturing it is a local business, subject to local regulation State or political subdivision thereof", opens the way for manu and taxation." Noel Sargent, eminent economist, said ·of ·the facturers, coal-mine operators, or other interested groups or per . regulatory features of the first Guffey bill: "Since bituminous coal sons to give the services of as many persons as the commission is u.ot a 'necessary of life', it is impossible to justify indirect efforts might require for the use of the commission in any capacity they at production control under the guise of control over transports- , might designate; in other words, the operators of coal mines tion and rates." In the event that this bill should become a might be permitted to send one or more of their henchmen -to sit law, and a challenge of constitutionality should be issued, it · in and assist _the. commission, and, should they so decide, could seems logical; because of the· fotmer holdings ·oi-the Court; that ' · be used in investigating charges against his own corporation. His such challenge . would be sustained. In the interests of consti word would be accepted by 'the· commission with regard to any tutional legislation, therefore, why should such obvious devia- . charges he might be sent· to investigate; and should ·they decide · tions from constitutional legislation be proposed? on the basis of his report, their findings would, through the Furthermore; in the preamble the words "that regulation of aforementioned sections of the ~111, .becqme_conclusive in any of the prices thereof" . promises- · price pegging ·which is not in thz · the-courts of the Nation. Again, a labor organization, or organ . interests of the buying public, but .to the contrary . will un izations; could proffer the services of one or more men, and they doubtedly res-ult in increases in the re~ail prices of ~he com- . could . be -utilized in investigating ca~es in which their· own. or . modity which are now at a figure nearly out of tlle financial reach · _ganizations_ were interested; their findings, if accepted by the . of the consumers. Any legislation· which gives the authority to · commission, would became a part of the commission's decisions, any group, governmental or otherwise, to peg prices cannot be thereby creating discriminatory orders against other labor organ considered good legislation by the consumers of the product. .izations whose· men might be refused the privilege of serving the Competition in industry has always been considered by students commission in like capacity. of economy as the only protection of consumers; again, the effects of pegging the prices of coal will tend to widen the breach of SELF-REGULATING competition with other substitute fuels, such as oil and gas, and Page 3, lines 15 to 19, gives the commission the power to make electrical energy which are fast supplanting the commodity and put into operation their own rules and regulations without throughout the United States. To advance the cost of coal to any restraint other than the word "reasonable", and nothing in any appreciable ·degree would be to stifle the industry and throw ' the provision gives Congress the right to prescribe any such rules tens of thousands of miners into the ranks of the unemployed. of . practice. The only stipulation whereby Congress becomes a BITUMINOUS COAL COMMISSION part of the program is that the commission shall file a report of their activities with the Secretary of the Interior, and he shall The set-up of the bituminous coal commission should earn the transmit it to Congress. undivided attention of the Nation's legislators, for in the creation of the commission the bill proposes that the President shall ap THE CONSUMERS' COUNSEL point all seven members of the commission. Four of the seven Section (b) 1, found on page 4 and continuing on pages 5 and 6, members are designated members, as having been experienced provides for the setting up of an office for the consumers' counsel coal miners and operators; the other three members are unquali of the . national bituminous coal commission, and outlines his fied appointees of the President; all seven, however, shall not have duties, powers, and how the personnel of his office are to be a financial interest in the active operation of the industry. selected; these powers, duties, and privileges follow the same trend The wording of the provisions for the selection of these seven ·as those of the commission. The counsel's duties as prescribed members of the commission is so cleverly drawn that the entire in subsection 2 of (b) 1, at the bottom of page 4, states: "It board might consist of men formerly connected with the. industry . shall be the duty of the counsel to appear in the interest of the as "operators", which would, or. could, work to the detriment of ·consuming public in any proceeding before the commission and the workers' interests. It says, page 2, lines 14 to 16: "Two mem to conduct such independent investigation of matters relative to bers of the commission shall have been experienced bituminous . the bitUiilinous-coal industry and the administration of this act coal-mine workers, two shall have had previous experie·nce as pro ·as he may deem necessary to enable him properly to ·represent the ducers, • • • ." How many coal-mine operators are there_who consuming public in any proceeding before the commission." In have not, at one time or another, been "experienced coal-mine -other words, the Guffey coal bill · creates a department in itself, workers"? This is, as you see, a. wide-open chance that the work- and a part of itself, as the only representative ·of the consumer. .ers may have no men on the commission who ar~ fully cognizant The counsel, as it states, shall have as his duty "to appear 1n With their interests. the interest of the consuming public." Through the art of omis COURT AUTHORITY sion the proponents of this bill provide that the only counsel for ·relief from grievance shall be this consumers' counsel, who is Another section of this bill, on page 2, entitled section 2 (a) , himself a part of the adniii:llstration. It does not prov)de that on lines 7 to 9, gives judicial recognition, or court authority, to othex: legal counsel ·shall have the privilege of preferring or this commission. It says: "The commission shall annually desig pushing charges which might be to the protection of the con nate its chairman, and shall have a seal which will be judicially sumer, but provides, in effect, that the consumers; counsel shall recognized.'' This gives court authority into the hands of the ·be the only orie who may appear before the commission in charges commission, which is further broadened on page 3, lines 23 to ·of this kind. There are not .many courts of the land who tell a 25, and extending over to page 4, line 4, which says: "Upon all defendant who he may or may not have to represent him in matters within its jurisdiction coming before it for determination court. They may prescribe the requirements s-uch counsels must it shall have the power and duty of hearing evidence and finding have in order to appear before them, but to restrict to a single facts upon which its orders and action may be predicated, and named counsel is but a short step from dictatorship. its findings of fact, s-upported by any substantial evidence, shall be conclusive upon review thereof by any court of the United TAX FEATURES States." Through this section we find that the findings of this Under the subheading of Tax on Bituminous Coal on page 6, commission are final, and no court of the United States can we come to one of the most dangerous features of the bill. In reverse their findings if there is any substantial evidence to sup this section we find the coercive influence that was manifested in port their decision. The question arises as to how many cases the old b111, and which makes it possible for the commission to come before any court in which there is no substantial evidence debar thousands of mines, particularly those of s-m.all p.roductive on one side or the other. Ordinarily the court is expected and capacity, from active operation, and through this medium permit holds that the preponderance of substantial evidence is that upon the large,-mechanized operator groups to "squeeze" thousands of 1937 ·coNGRESSIONAt RECORD-HOUSE 2053 miners from a livelihood, and place them on the relief rolls of the afforded legislators, holding them lla.ble only, as members, for "his Nation, or place them on subsistence homesteads, as later provided own willful misfeasance .or for nonfeasance involving moral for investigation in this bill. turpitude." Section 3 (a.) of thls section places an excise tax of 1 ~ percent MARKETING on the sale of coal under certa.ln provisions; subsection (b) of Part 2, found on page 13, takes up the title marketing. We the same section provides an additional 13~ percent tax in addi should like to charge at the outset in taking up this section of the tion to the first tax imposed in subsection (a.), but provides for bill that it is entirely void and of no effect because of its patent the exemption of code members from the last-mentioned tax. In unconstitutionality. It violates, in effect, that section of the Con:. other words, 1lh percent of the market value of all coal w1ll be stitution whlcb provides that persons shall be safe in their papers collected as a tax apparently for the administration of the act, and effects. On .page 13, lines 4 to 12, the bill provides: "(a) All and an additional tax of 13lh percent shall be collected from a.ll code members shall, in their respective districts, report spot orders who do not become code members, or a total of 15 percent. This, to the statistical bureau hereinafter provided for and shall file as you can plainly see, would place code members in a position of with it copies of all credit memoranda, and such other informa vantage over those who might have objection to becoming mem tion concerning the preparation, cost, sale, and distribution of bers under the law; in fact, the producer is coerced by the amount coal as the commission may require. All such records shall be of the tax to become a code member whether he wishes to or not. held by the statistical bureau as the confidential records of the This is not the American way of doing business. The Government code member flUng such information." Although it states that should never place itself in the position of taxing people out of such material shall be held as confidential, we must remember business, and this bill will most certainly do that. . that where grievance occur the commission shall have the power ''FAVORED CUSTOMER'' CLAUSE to investigate, ascertain, and otherwise find facts upon which to Under subsection (e) on page 7, we find the "favored customer" base their findings in settlement of the grievance. It would be clause, which says: "The tax imposed by subsection (a) of this easier to obtain such information from the statistical bureau section shall not apply in the case of a. sale of bituminous coal than it would to demand such information from the code mem for the exclusive use of the United States or any State or Terri ber, and possibly be forced to sue for the production of the code tory of the United States or the District of Columbia, or any member's papers and effects in courts of law. political subdivision of any of them, for use in the performance of Also included- in this section is the provision that "the com governmental functions." It further provides for the refund of mission shall have power to prescribe for code members mini the tax paid by any producer on any coal that is resold to either mum and maximum prices" (p. 13, line_s 5 and 6). of the above-named agencies upon application by the producer MORE PRICE FIXING and production of evidence of such resale. The consuming public might be interested 1n the wording of This is typical discriminatory legislation, and it is doubtful :the bill found on page 16, lines 17 to 23, which says: "The dis that it would stand a. test of the courts; taxes, especially, should trict board shall adjust the average costs so determined, as may be universal and without favor to any individual group, sect, or be necessary to give effect to any changes in rates, hours of em class, and anything to the contrary bas been so far held as ~lass ployment, or other factors substantially affecting costs, exclusive legislation. and unconstitutional. (See Bailey v. Drexel Furm.ture of seasonal changes, so as to reflect as accurately as possible any Co., 259 U. S. 20.) change or changes which may have been established since Janu ORGANIZATION AND PRODUCTION ary 1, 1936." This means that any increase in operating costs, Part 1, found on page 9, takes up the title of organization and including wages, reduction of hours, etc., which affects the cost production. It determines that 23 district boards. shall be ors:an of coal shall be taken into consideration by the district board, ized, comprised of code members from each district. It proVIdes and such increases shall not be deducted from the profits of the that the number of members on the board shall be not less than producer, but w1ll be reflected ~ the minimum and maximum 3 nor more than 17, and that the ll;umber of producer members price tables; in other words, on the bac-ks of the consumers. shall be even. The proponents of the bill have cleverly protected The bill practically guarantees the producer the same rate of the interests of the big mining producers in two specific places profits accrued to him as of January 1, 1936, which year bas With regard to the selection of producer members; first, on page 9, been heralded as one of the most profitable in many. lines 10 to 16, the bill provides that the number of producer mem Page 16, lines 1 to 16, further agrees that where costs rise to bers on the board shall be determined "by the majority vote of the any figure in excess of 2 cents per net ton of 2,000 pounds, the district tonnage for the calendar year 1936", which naturally minimum and maximum price tables w1ll be adjusted imme gives the big mechanical mines the edge in voting on a tonnage diately. No law as yet has been proposed which guarantees to basis· secondly, on page 9, lines 22 to 25, and extending over on the consumer an increase in wages in the event that prices in page 'to, lines 1 and 2, the bill further provides: "One-half of such crease in excess of 2 percent on the dollar. • producer members shall be elected by the majority in number of RIGHT OF- CONTRACT CHALLENGED the code members of the district represented at the aforesaid - The right of contract is seriously challenged by the wording meeting. The other producer members shall be elected by votes of the bill on page 20, lines 3 to 8, which says: "Subject to the cast in the proportion of the annual tonnage output for the pre exceptions provided in section 12 of this act, a contract for the ceding calendar year of the code members in the district." What sale of coal at a price below the minimum or above the maximum 1f a. law were proposed which provided in effect that citizens whose therefor established by the commission at the time of making incomes exceeded $50,000 per year should determine how many of the contract shall constitute a violation of the code, and such members were to constitute the Congress of the United States, contract shall be invalid and unenforceable." When any agency, and further provided that one-half of these members should be governmental or otherwise, can determine the legality of, and elected by they themselves? This, in effect, is just what the right to contract, and assume the power of invalidating con Guffey coal bill proposes for the coal-mlnlng industry. Can any tracts, our security in individual rights is in jeopardy. thing be more biased, more dictatorial than these proposals? ''DUMPING'' LABOR REPRESENTATION Although "dumping" is prohibited on page 15, lines 5 to 7, to Continuing on page 10, lines 5 8, we find that labor is granted we find that on page 21, lines 1 to" 4, minimum prices as well as one member on each of the 23 district boards, and that this member is selected by the organization of employees "represent maximum prices do not apply to coal sold outside the domestic · ing the preponderant number of employees in the industry of tJ:te market or the continental United States; what, therefore, is to district in question." We, as progressive miners, cannot refram prohibit the producer from shipping surplus coal to the foreign from calling to your attention the fact that under the last market and dumping it at a. lower price, which would, in some national bituminous coal commission set-up we claimed the right cases, pay him by reason of a. demand 1n a "short" market? to name the employee representative in our district; we appeared Transactions outside the United States are easily covered up, before the national coal commission and offered to produce facts and therefore this bill guarantees in no wise that dumping is and figures proving that we did have the "preponderant number abolished. of employees" in our district. The national coal commisslon. re APPELLATE DECISIONS FINAL gardless of otir presentations, set aside our plea and permitted the On page 28, lines 7 to 12, we find that in forcing compliance appointment of one from-an organization that has and still re of its decisions the' commission may ask the order of the circuit fuses to accept our repeated challenge to an honest and fair refer court of appeals, which, in effect, denies the right of trial by endum designed to once and for all time settle this particular jury to the defendant. The circuit court of appeals consists of controversy. What guarantee do we have as a majority organiza three judges, and they, together with the United States District tion that we w1ll be p~rmitted to name such labor member in the Court and United States Court of Appeals for the District of face of the precedent set by the last commission? Columbia, are charged with the duty of enforcing compliance to Be that as it may, just how much weight do the proponents of the rules and regulations of the commission; of hearing appeals this blll think that such an employee representative could carry from the decisions of the commission; and determining modifica anyway with as many as 6, 10, or 12 producer members voting tions, 1f any, of their decisions. On page 32, lines 7 to 13, the against him on all measures where the welfare of his organization act provides: "The judgment and decree of the court, affirming, is concerned? Why do they provide for such employee representa modifying, and enforcing or setting_ aside, in whole or in part, tive at all? any order of the commission shall be final, subject to review by ABOVE THE LAW the Supreme Court of the United States upon certiorari or cer Subsection (c) on page 12 provides, in effect, that no suits in tification as provided in sections 239 and 240 of the Judicial equity may be filed against the district board as a whole, nor can Code, as amended (U. S. C., title 28, sees. 346-347) ." Now, the any member be held liable for the act of another. This takes the Supreme Court, by precedent, has refused to review such cases actions, orders, and decisions of the board and board members out in certiorari and certification; we point to the case of the United of the hands of the courts and gives to them the same protection Electric Coal Co. v. Progressive Miners oj America, an injunction ·2054 CONGRESSIONAL RECORD-HOUSE MARCH 9 proceeding which the sutn=eme Court refused to review. Such • • • Now the facts are these: The Peabody Coal Co. 1n 1928 statement is, therefore, of no effect, and guarantees no relief entered into a contract with certain public util1ties in the State from grievance. of illinois, and the contract stipulated that the Peabody Coal Co. UNITED STATES PARTY TO SUITS would supply these public utilities with coal for a period of 30 years on the basis of "cost plus" payment. The Progressive Miners . · Subsection (c), page 32, down to line 7, on page 33, makes the of America intervened in a suit before the illinois Commerce Com United States a party to a suit against code members to enforce mission for the nullification of this contract in the public interest; compliance with the rules and regulations of the commission. also, the Public Ownership Le.ague of America protested the con Particularly is this found in line 25, page 32, and lines 1 to 4, firmation of the contract before the commerce commission, on on page 33, which says: "Upon such filing" by the commission the basis that the "cost plus" arrangement did not protect the "of the application and transcript the court shall cause notice interests of the consuming public inasmuch as the overhead of thereof to be served upon such code member and thereupon shall the coal company, no matter how high, would be absorbed by the have jurisdiction of the proceeding and of the question determined prices of the products· of those companies and paid by the con therein"; then we find the protection for the commission's findings -suming public. Under the Guffey coal bill as it is written, mini in the same old phrase on lines 7 to 9, "the findings of the Com mum prices ot- max1mum prices would in no way apply to the mission as to facts, if supported by substantial evidence, shall be contract of the Peabody Coal Co. which has yet another 21 years conclusive." In other words, the United States is made a party to run. Through the ramifications of this bill, you will find that to the suit, and the court is bound by "substantial evidence" to the interests of many large coal operations are adequately taken sustain the commission. care of, and theiT position, as . such,· in no wise threatened. RIGHT TO ORGANIZE ANTITRUST EXCEPTIONS Section 9, on page 36, lines 18 to 25, says: "Sec. 9. (A) It is By the insertion of the word "unless" on line 2, page 41, the bUl hereby declared to be the public policy of the United States that takes from under the Sherman Antitrust Act of 1890 certain (1) Employees of producers of bituminous coal shall have the ' combinations of producers,· restricting these· combinations only to right to organize and to bargain collectively with respect to hours .code members, which gives a distinct tinge of class legislation to of labor, wages, and working ·conditions through representatives the entire section, and predetermines its unconstitutionality. Why of their own choosing, without restraint, coercion, or interference should any group be excluded trom the antitrust laws regardless on the part of the producers." There is no word concerning coer of their acceptance of the code, whlle others are held subject to cion, restraint, interference, etc., on the part of labor organizations the law? The old adage "A rose under any other name smell<> just against each other, nor are there provisions in the bill as to how as sweet" could well apply to this; a group, classed as a trust, to ascertain just who are the representatives of the organization would still be a trust even though they ditl accept the cod.e. The in the district; on page 37, lines 22 to 25, and extending over on permission of combinations is contrary to the real needs of the page 38, lines 1 to 11, however,. the question of minority organiza people which is decentralization of industry. tions is adequately taken care of by the following: "(d) On the complaint of any employee of a producer of bituminous coal, or MINIMUM-PRICE AREAS other interested party, the National Labor Relations Board may So far as the minimum-price areas are concerned, they are fixed hold a hearing to determine whether any producer supplying coal in accordance to the quality of coal, and other technical qualifi for the use of the United States or any agency thereof or for the cations, and under the last Guffey coal law apparently satisfied use of any contractor on or carrying out of any contract subject the requirements of certain producers; how the consumers fared, to the subsection (c) of this section, is complying with the provi however, and how they will fare under the revised bill if enacted sions of subsection (a) of this section. Such department or agency into law, is another matter. The district boards so arrange the shall thereupon declare the contract for the supply of the coal of minimum-price tables. that they apply to the "delivered" price of such producer or for the work, s~rvice, or supply of the contractor the commodity, free on board to the market; in other words a using such coal to be canceled and terminated." Through the price is fixed, based on operating costs, depreciation, depletion, wording of this section, and the reference to the other subsections, insurance, etc., and the total average cost of each district is figured; the blll finally provides,. in effect, that any employee or "other in then .the national commission takes these costs and arranges a terested party" may make an appeal to the commission stating in price for each area, and for each central distributive market. No effect that he is being denied the right of belonging to the or code-member is allowed to sell in these central markets at a price ganization of his own choosing, and because of the complaint· of less than the minimum for the area, or market, regardless of how this one individual or other interested party, who does not neces high or low, as the case may be, his operating costs are. Through sarily have to belong to or be employed by any particular producer this med1um the "low cost" mines reap high profits, and the "high or union, the commission is empowered to cause hearings to be cost" mines merely "get by", and the consumer pays through the instituted, the United States courts are forced to enforce attend nose. ance of witnesses, and upon the basis of the protest of this one OTHER DUTIES OF THE COMMISSION individual the commission can, if so disposed, nullify the con Section 15 of the bill takes up the •title Other Duties of the tracts of such producer as stipulated in the above-mentioned sec Commission. In this section it· is only provided that the com tion. There is no doubt but that a single man can be found in mission shall have investigatory powers so far as allocation, re most any plant or coal operation in the Nation who could be in lief and rehabilitation, subsistence homesteads for unemployed duced to raise such objections against· his employer; and that there miners, safe operation of mines, etc.,· is concerned. are "interested parties" who would be glad to raise the point o! The revised bill is much improved over the last bill in this choice of representatives in many different sections of the Nation. respect; however, through the powers of investigation, suggestion, The coercive features of the act are such that we do not feel that and recommendation of certain conditions might be brought about it is to the best interests of any particular organization for it to be which would work a hardship on the workers, producers, and passed. consumers. Another factor of the above-mentioned section is that it pro . CONCLUSION vides for "compulsory arbitration", which has always been fought In fuie, there are entirely too many points upon which logical upon the principle that it is coercive, arbitrary to the tenets of exceptions can be made to indicate that this is basic legislation. democracy, and obstructs normal negotiations. For regulatory legislation it is a step forward if regulation is needed. We, as progressive miners, however, believe tha.t artificial CERTAIN OPERATORS PROTECTED control of industry is bad, and that government predicated upon On page 40, lines 14 to 19, we find a definite protection to the the theory that it should regulate industry is also bad. We cling contract of one of the largest coal operators in the State of Tillnois. to these fundamentals: It reads: "Sec. 12. No coal subject to the provisions of this act 1. Artificial regulation of industry does not stabilize, but to the may be delivered upon any contract at a price below the minimum contrary, throws the entire economic machine out of · balance; price in effect at the time of delivery upon such contract: Provided, 2. Paternalism in government toward industry or organized labor That the provisions or this section shall not apply to a lawful indicates a desire either to control, or defective leadership; and bona-fide written contract entered into prior to June 16, 1933." · 3. Regulation of production should not depend on potential In conjunction with the above-named section let us take you profits, but on the ability of the people to consume. back for a moment to pages 18 and 19, subsection (c), which says: Therefore, we make this analysis of objections, as we stated at "When in the public interest the cozhmission •deems it necessary the outset of this article, on the basis that the Guffey bUl is not to establish maximum prices for coal in order to protect the con good legislation for the whole people, and from that standpoint we ~umer of coal against unreasonably high prices therefor, the com look to the defeat of the measure, and urge your active support to mission shall have the power to establish maximum prices, free on that end. board transportation facilities, for coal in any district. Such JOE 0ZANIC, President. maximum prices in effect within the district at the time, so that J. H. FANCHER, Vice President. in the aggregate the maximum prices shall yield a reasonable return C. E. PEARCY, Secretary-Treasurer. above the weighted average total cost of the district: Provided, That no maximum price shall be established for any mine which Mr. COOPER. Mr. Chairman, I yield 5 minutes to the shall not yield a fair return on the fair value of the property." gentleman from Michigan [Mr. DINGELL]. Now, the minimum price protects the producer from cutthroat Mr. DINGELL. Mr. Chairman, I rise at this time to voice competition; the maximum price protects the consumer against "unreasonably" high prices. This bill provides in the first quota my opinion in regard to the pending bill. While, as Members tion that minimum prices shall not apply to contracts entered into of this body, we are all interested in the problems of the "prior to June 16, 1933" and now we find that maximum prices bituminous coal industry, there are some of us who hail from do not apply to mines which may not earn · a reasonable increase purely urban districts, who are especially and particularly on the fair value of the property. This explains the problem of when a maximum and minimum price is not a maximum or mini interested in the consumers. My district, comprising four mum; 1t is when they run afoul of the interests of certain groups. populous wards on the west side of the city of Detroit, con- 1937 CONGRESSIONAL RECORD-HOUSE 2055 sumes, along with the rest of the residential and manufac~ was frequently purchased, because or a combination between turing parts of the city, many millions of tons of coal per the large consumers, for as low as one-third of the cost of annum, yet produces no coal at all. The State of Michigan production. The utilities, railroads, and industry, consum~ produces perhaps seven or eight hundred thousand tons of ing 85 to 88 percent, were the beneficiaries of this piratical coal altogether, which is a very fractional amount of the practice. The attendant result was that the burden of costs bituminous coal produced in this country. It is therefore was shifted to the 12 to 15 percent, the small household con~ natural that I would deal with this problem from the stand~ sumer; he had to make up this difference, he had to pay the point of the interest of the consumer. Accordingly, from other fellow's tariff. In the meantime, there was no concern the very outset I undertook to make of the consumers' coun~ about how the coal was produced. The choicest part of a sel, who is amply provided for in this bill, the most powerful rich coal seam was mined and the rest of it was not even individual connected with the administration of the act. propped. It was permitted, as soon as it was mined out, to The consumers' counsel, due to my insistence and the sup~ cave. Millions of tons were thus being wasted. The most port I received from my colleagues on the committee, has reckless kind of mining was foisted upon the industry be~ the right to intervene at any time or at any place whenever in cause of cutthroat competition-labor was, as usual, the sor~ his estimation the consumers' interests are involved, much less riest and most abused victim of our inexcusable system. The jeopardized. He is authorized to make his report separately natural resources in this country sooner or later must be and independently of the commission and makes it direct to conserved. The same situation obtains in the oil industry Congress. He can therefore make recommendations for and in the gas industry. It is enough to make your hair amending the act when in his experience he finds the con~ stand on end when we realize, for example, that in west sumer interest insufficiently protected. In other words, he is Texas alone a billion and a half cubic feet of gas goes into not subservient to any of the commissioners. He is inde~ the air every 24 hours. It would mean more and would be -pendent and powerful in his own right and in a position to more impressive if the people of this country realized that protect the consumers' interest at all times. He ·attends that amounts to 175,000 barrels of oil, going into the sky meetings of the commission without invitation, in his own · every 24 hours. Greater losses are occurring every day in right, not as heretofore merely tolerated. the bituminous-coal industry and no one pays any attention. I never have been convinced that even the old Guffey It is high time that something be done to prevent further coal bill jeopardized the interest of the consumer; but if ruthless exploitation. [Applause.] there ever was any doubt in my mind, it is completely dis~ The CHAIRMAN. The time of the gentleman from Mich~ pelled by the provisions of this bill. This bill protects the igan has again expired. consumers' interest entirely. Mr. TREADWAY. Mr. Chairman, I yield 10 minutes to Mr. Chairman, I was not altogether willing to go along the gentleman from Kentucky [Mr. RoBSION]. on the question of whether or not this commission should Mr. COOPER. Mr. Chairman, I yield the gentleman from be under the Secretary of the Interior. I thought possibly Kentucky 5 minutes. it would have been wise to make of this an independent The CHAffiMAN. The gentleman from Kentucky [Mr. commission, responsible directly to Congress, but I agreed to RoBSION] is recognized for 15 minutes. submerge my ideas,in the matter, provided the consumers' Mr. ROBSION of Kentucky. Mr. Chairman, the soft interests were carefully considered and fully protected. coal mining industry is a most interesting matter of discus There is a phase of this bill that appeals to me a great sion and study. Many of us think of bituminous coal as deal. It is the conservation feature which will follow in the providing heat, power, and electricity only. We take from wake of sane competition. This feature is not even men~ coal the beautiful and wonderful fast colors of red, purple, tioned though it will work out that way. As we go over this crimson, blue, green. yellow, and so forth. When we see a country of ours, rich in natural resources, we find that the la-dy dressed in a beautiful crimson gown, we can hardly American public, the American producer, whether it is realize that the color was taken from coal. timber, coal, oil, or any other natural resource, is spending Coal provides us not only with power and heat as weapons these natUl'al resources like a drunken sailor, with no con~ of national defense, but it is from coal that we take the _sideration whatever for future generations. chemicals forming the base of our high explosives for our Mr. REED of New York. Mr. Chairman, will the gentle~ great guns and other instruments of warfare. No pharma man yield? . copoeia is complete unless it has hundreds of tried and Mr. DINGELL. I will yield in a moment. What has con~ effective medical remedies derived from bituminous coal. tributed more than anything else to the plundering and I have the honor to represent one of the great b i tuminous~ waste of these natural resources of coal, oil, timber, and coal producing districts of the Nation. A single county of my_ natural gas is this cutthroat, unscrupulous competition. district in some years has produced and marketed approxi Mr. REED of New York. Mr. Chairman. will the gentle- mately 20,000,000 tons of coal. My friend the gentleman man yield? · from Ohio [Mr. JENKINs], who has made such a splendid Mr. DING ELL. I yield. speech in behalf of this bill, tells us of a mine in his district Mr. REED of New York. In regard to spending there~ which produces 4,000 tons of coal per day. I have a mine sources of the people, according to the latest figtll'es obtain in my district which produces, day after day, more than able by scientific experts, there is enough bituminous coal 10,000 tons of high-class bituminous coal. in the United States .to supply the world at the present rate There is no industry which has. so many 'ups and downs, of consumption for a thousand years. handicaps, drawbacks, losses, and uncertainties as the bitu Mr. . DINGELL. I do not care if there is enough to sup minous coal-mining industry, and there is no class of work'! ply the consumers of bituminous coal for 10,000 years. That men in this country in any industry which has been and is is no argument why you should go out and ruthlessly and subject to as many hardships, lack of employment, poor living sinfully waste the God-given natural resources which cannot conditions and low wages as the bituminous-coal industry for be replaced. many years. Those who are not conversant with the coal~ The CHAffiMAN. The time of the gentleman from Mich mining industry cannot appreciate the handicaps to the coal igan has expired. mining industry or the hardships of the miners. It is a very Mr. COOPER. Mr. Chairman, I yield the gentleman from hazardous employment. The miners perform their work in Michigan 3 additional minutes. the darkness of the bowels of the earth, and the floor or bot Mr. DING ELL. It is my contention that in the bituminous tom of a great majority of the mines have water in them all coal industry, due to the practice among large coal buyers, the time, and the miners come from work with their clothing using the "squeeze play", so to speak, the domestic consumers, soaking wet. The Federal Government and the State gov who constitute between 12 and 15 percent of the consuming ernments have enacted statutes and -provided inspection to public, were obliged to pay what was rightfully to be paid lessen mine disasters, yet mine disasters are almost af weekly by the commercial users of bituminous coal. In other words, occurrence in which many miners lose their lives. One out coal produced at the mine, costing as high as $1.65 a ton, of every 10 -employed in the mines ·loses his life. 2056 CONGRESSIONAL RE_CORD-- HOUSE MARCH 9 This is one of the great essential and key industries of the This study discloses· some startling information. In 1923 Nation. there was paid out in wages in this industry approximately Mr. JENKINS of Ohio. Mr. Chairman. will the gentleman $900,000,000, but in the peak prosperous year of 1929 these yield? wages had dropped to less than $600,000,000, a decline of Mr. ROBSION of Kentucky. I yield. more than 30 percent. The number of men employed fell Mr. JENKINS of Ohio. If all those who produce coal from 705,000 in 1923 to a little over 500,000 in 1929. Coal would quit, this country would suffer a great calamity, would production dropped from 535,000,000 tons in 1929 to 310,000, it not? 000 tons in 1932. The average price for the Nation over Mr. ROBSION of Kentucky. My friend is right. Our dropped from $2.68 in 1923 to $1.34 in 1933. For the last great cities would be plunged into darkness; our great rail- several years the average price was less than $1.50, and the roads would come to a standstill; the factories, shops, and average price in 1936 the Nation over, f. o. b. the mines, was mills would be stilled. Perhaps more than a hundred million about $1.72 per ton, but in many of the Southern States high people in wintertime would suffer and many would perish class bituminous coal averaged much less and down as low as with cold. Most of our common schools, colleges, and univer- $1 and $1.25 per ton. sities would be closed. Our hospitals could not provide for The total annual wage payments for the year 1933 was less the sick and disabled; the ordinary and common offices of than $250,000,000. This was a drop from $850,000,000 in the household in cooking, laundry, and so forth, would be 1923 to $250,000,000 in 1933 in a period of 10 years. · The stopped; in a word, almost all of the activities of this Nation total average annual wages for all miners were cut from would at once be paralyzed. $1,200 to a little over $400, although the number of days JUSTicE To ALL worked per man was increased from about 180 to 220 days. I am one of those who sincerely believes that we ought not - The Treasury Department showed that this industry as a to want meat;fiour, meal, fruits, or any other products of the whole suffered great deficits and losses. In 1930 it was $42, ·farm, clothing, shoes, furniture, coal, transportation, or any 000,000; in 1931 it was nearly $48,000,000; in 1932 · it was other product of the factory, mill, shops, or transportation · $51,000,000; in 1933 it was nearly $48,000,000. at prices that will not pay a fair return on the investment Therefore, as stated heretofore, no other industry has had on the farm or ·industry and· will not make it possible to pay so many drawbacks, so many failures and bankruptcies in real American wages and proVide a real American living the last 10 years as the soft-coal industry, from the operators' -standard for the producers and workers in the various pro- standpoint as well as the miners'. ducing activities of our Nation. [Applause.] In my own congressional district, so far as I have been All of us should be willing to pay such prices for our coal able to learn, the average coal operator is anxious to pay and other products consumed by us as will insure a fair decent American wages, but on account of the distress in this return to the producers and to the workers who provide industry, the cutthroat competition, and the location of Ken these commodities for our use. None of those, whether liv- tucky coal with relation to the southern and northern mar ing in Boston, Chicago, or any other part of this great land kets, the wages of the miners in many of the mines have been of ours, should insist on having bituminous coal at a price very low. In fact, I know of one mine where the opera that does not pay a reasonable return on the investment and tor could not sell the coal, and it wa-s up to the miners to a decent American wage to those who toil in the mines and either work in the mines or go on relief. The miners and risk their lives in producing this coal. [Applause.] the operator met together 'and the cards were laid on the I wish to commend our colleague, Mr. McCoRMACK of table, and while the operator expressed regret that the situa Massachusetts, for the very splendid and interesting speech tion was such that he could not do more, yet he could not he has made in support of this measure. Of course, he has pay more than $1 per day, and while he did not urge the no coal mines in his district. For one, I deeply appreciate miners to do so, yet he said if the miners desired to go to the the information that he has brought to us and the broad mines and work for $1 per day he could and would operate and statesmanlike manner in which he has approached the the mines, and a great many miners, preferring to work at subject. At this point I also wish to commend· the very a dollar per day rather than go on the dole, did do so. able and splendid speech made by my colleague, Mr. JENKINS Some of the operators in my district are paying the union of Ohio, in support of this legislation, and the illuminating scale of wages, and one big mine, I am informed, pays from and eloquent speech of my colleague, Mr. FRED M. VINsoN, 10 to 15 percent in excess of the scale fixed by the United on the legal aspects as well as other features of this Mine Workers. bill. He, Mr. JENKINs, and Mr. McCoRMACK differ in politi- But because of conditions to which I shall call your atten cal faith, and Mr. VINSON and Mr. McCoRMACK have no coal tion hereafter, our mines are idle much of the time, and, of .mines in their districts. Being members of the Ways and course, this works a hardship on the operators as well as the Means Committee and having made a careful study of the miners and their families, and thousands of miners who are legal and other aspects of this situation over a period of anxious to work and support themselves and their families years, they have brought to us a very comprehensive view on have been forced on relief; and because of this condition the national aspects of this proposed legislation; and, after wages have been forced down and the operators have suffered all, we must consider this very great and important question losses. not only as it affects our own immediate communities but as During the past 25 years there have been meetings of it affects the Nation as a whole. Govemors and other representatives from bituminous-coal THE REAL "soRE ToE" oF INDUSTRY States. There have been many meetings of the producers of As we have heretofore pointed out, there has been for ·coal. They have formed many organizations and associa many years more distress in the bituminous-coa,.l industry tions and with great diligence have tried to formulate plans and among the workers in the bituminous coal industry than to meet the hazards and distress -of this industry and the any other in this Na~on, and because of this condition the workers engaged therein. All of these plans have come to industry and the workers have been a subject of 25 years or naught. It appears that no plan was workable that would more of intensive study and investigation. There was a stabilize this industry so as to provide a fair return on the time when we mined and consumed annually approximately investment and provide wages comparable with those re- 550,000,000 tons of coal in this country, and there were em- ceived by the workers in other industries; and out of all this played in the production of that coal more than 700,000 study and inve~tigation came the stabilization coal bill which miners. Of all the power and heat ·units, coal provided ap- was passed by Congress in 1935 and which was declared un proximately 72 percent. We have valuable bituminous coal constitutional by the Supreme Court. The bill of 1935 pro deposits in 26 of the 48 States of the Union, ·and in 1936 we vided for the fixing of minimum wages, hours, and so forth. produced altogether something more than 400,000,000 tons The Supreme Court expressly held that the fixing of wages of bituminous coal. Now approximately 70 percent of this and hours was a purely State matter and not an interstate total production came from Kentucky, West Virgini~ Pemi- matter, and therefore could not be reached by an act of Con sylvania, and Illinois. ' gress under the Constitution, as the Constitution only gives 1937 CONGRESSIONAL RECORD-HOUSE 2057 Congress the power to regulate interstate commerce. Con group, and as a general rule they receive their coal at a very gress has no power over purely intrastate acts. or intrastate small margin of profit, or below cost. 'Ihe domestic con commerce. It has been held over and over by a long line of sumers of coal in this country use only about 12 or 15 per decisions throughout the history of this country by the Su cent. The domestic consumers as a rule require block coal preme Court that the mere mining of coal is an intrastate act for their use. This measure, in my opinion, will not increase and is not interstate. the price of coal to the domestic consumer. It can be seen This bill omits the labor features of the 1935 so-called at once that to the extent that the large consumers of coal Guffey Act and confines the provisions of the bill merely to secure their coal below cost, this must be added to the price the distribution of coal that enters interstate commerce of domestic consumers; but under this measure the commis that is, carried from one State to another. sion will fix a minimum price for each particular soft-coal HELPS PRODUCERS AND MINERS producing section and the large consumer will be unable to The bill before us has nothing relating to the :fixing of secure coal at less than his minimum price and, of course, wages, hours, or working conditions. This bill relates solely that price will be fixed at such a sum as will be fair and and only to the stabilization of the coal-mining industry. reasonable and enable the coal operator to make a fair and The evidence before Congress discloses that 80 percent or reasonable return on his investment and pay just and fair more of the producers of the 400,000,000 or more tons of soft wages to the miners. coal in 1936 favor tllis legislation, and the producers of less These unfair practices and this cutthroat competition_ than 50,000,000 tons have expressed opposition. The chief should be eliminated. It is unfair to the soft.-coal industry, opponent of this legislation is the large Pittsburgh Coal Co., it is unfair to the miners, and it is unfait to the ordinary and of Pittsburgh, Pa. I am informed that it is the largest pro average consumer. ducer of bituminous coal in the United States. There are some features about this kind of legislation that It has been contended that this measure was intended to I had hoped could be avoided. This is a complicated bill, help the large producer of bituminous coal. The evidence and I am supporting it in the hope that it will benefit the submitted to Congress would indicate that the small pro producers and the miners and at the same time will not put ducer of coal has more to gain from this legislation than the an additional burden upon the average consumer, and believ large producer. Because of the larger amount of capital ing it will eliminate the many unfair practices such as cut and sales organization, and so forth, of the large producer, throat competition forced upon the producers and the un he can take care of his tonnage and provide storage and wait fair advantage taken of the producers and miners by the for advances in the market better than the small producer. large consumers of coal, and after all these 25 years of study The 80 percent or more of the producers of bituminous coal and investigation and considering that the condition of this favor the bill because they believe it will stabilize this indus great industry continually grows worse and the situation of try and will insure to the producers a more consecutive the producers and miners grows more precarious, I can see market, eliminate cutthroat competition, and force the large no workable plan to stabilize this great industry and save it consumers of coal to pay a fair and reasonable market price, from disaster except under the legislation here proposed. and in that way insure to the producers a fair return on their SUBSTITUTES investment. If there should be any fear in the mind of the consumers _Practically all of the miners, as expressed through their of soft coal that this would unreasonably enhance the price, organizations, favor this legislation because, they claim, if may I point out that oil, gas, and hydroelectric power are the producers receive a fair price for their coal and cut serious competitors of soft coal. John L. I£wis, president throat competition is eliminated, the producers will be able of the United Mine Workers, testified before a committee of to pay them wages comparable with the wages received by Congress that these substitutes had reduced the annual con the workers in other industries. sumption of coal approximately 200,000,000 tons, and that EI..J:MINATED UNFAIR PRACTICES each million tons of reduction meant taking away the jobs There is no property that deteriorates so rapidly as the of a thousand men-in other words, this had taken away the idle coal mine. Falling slate and the accumulation of water jobs of 200,000 miners-and we can see that the number of and dangerous gases require the constant attention of a miners has been reduced from over 700,000 to approximately considerable force at all times. The miners as a rule live 500,000. If under this law the operators and miners should in what is known as the mining camp, and they must depend undertake to oppress the consumers with unreasonable prices as a rule entirely for their support from the mines. In for coal, it would m~an an increase in the use of oil, gas, and order to keep the mines in a workable condition and pre~ hydroelectric power. vent deterioration and provide support for the miners it is Due to the fact that we have enough equipped mines and necessary for the mines, if possible, to operate regularly. enough trained miners, if they worked regularly 5 days to the In order to accomplish this and with the hope of selling the week, to produce approximately a billion tons of bituminous coal, the operator runs his mines, loads his cars, and fills coal, and to the further fact that we have deposits of valuable his mine tracks, but he fails to secure buyers for the coal. commercial bituminous coal in 26 States of the Union, I am ·The coal is in the cars and standing on the tracks. HeavY satisfied that this measure cannot and will not bring about railroad demurrages accumulate on this unsold coal. In a monopoly in the bituminous-coal industry. order to clear his tracks, stop demurrage, and find a market THE TENNESSEE VALLEY AUTHORITY for this coaL the operator is often forced to take less than Having observed the distress of the soft-coal mining indus the cost of production. Large consumers of coal, such as try and the distress of the miners engaged in that industry factories, mills, shops, utilities, and railroads, sensing this over a period of many years, I voted against the T. v. A. situation, many times are able to buy this coal at much less In my opinion, one of the serious criticisms of this adminis than the cost of production. other operators find them tration's policies is that it borrows and spends billions of selves in the same situation, and the operators are forced dollars in promoting governmental activities in direct com in the position of meeting cutthroat competition. Many petition with private industry and the workers in private of the large consumers of coal have machinery by which coal industry. For instance, the Government has borrowed and is reduced to powder and blown into the furnace, and, of spent hundreds of millions of dollars in developing the course, the slack of clean coal is almost as valuable to such T.V. A. Of course. this money comes out of the pockets of consumers as block coal. In the last year I have known of the taxpayers. In the first place, it greatly hinders and slack from clean coal selling for as little as 20 cents per ton, damages the $600,000,000 invested in the many private utility and the operator paying 12¥2 cents per ton royalty to the plants in that area, and it will take away the jobs of thou landowner; and I have also known of many instances when sands of workers employed by these private utility companies the operator was forced to give the slack away or dump it. and takes away a lot of the market for the bituminous coal The railroads of the Nation consume from 25 to 30 percent in Kentucky, Tennessee, Virginia, and Alabama; and if the of the coal produced. They are the largest buyers of any T. V. A. accomplishes what this administration says it will '<:-~-~• ·._<11: 2058 .CONGRESSIONAL RECORD-· HOUSE MARCH -9. accomplish, in "the course of a few years it will cut down one coal from little wagon or truck mines and bringing the coal half of the market for bituminous coal and take away one into the town. There ·is no large coal operation near my ·half of the· jobs of the·coal miners in my congressional dis home town. Is there anything in this bill that would inter trict, and will have a similar effect on the bituminous mines fere · with that? None of the coal mentioned enters inter- and miners in the States of Virginia, Tennessee, and Ala state commerce at all. · bama. Of course, the T.V. A. provides a very few jobs to Mr. VINSON of Kentucky. I do not think the small mine carry on its operation. The coal industry and the miners the gentleman describes would come under the terms of this in my section are in bad enough condition without the Gov • bill. ernment putting into operation agencies that will greatly add Mr. ROBSION of Kentucky. I am stating a case that in to their distress. volves intrastate commerce only~ KENTUCKY COAL .HANDICAPPED Mr. VINSON of Kentucky. ·We should have a definite un The average coal operator in my district, so far as I have derstanding that intrastate coal, when it involves undue, un been able to learn, is anxious to pay, and wants to pay, good reasonable, or unjust discrimination of interstate commerce, wages to his miners. Kentucky, however, is handicapped as comes under the terms of this bill. no other soft-coal producing State in the Union. We have Mr. ROBSION of Kentucky. I do not think the bill covers a wonderful bituminous coal; in fact, it is superior to the the situation that I speak of. bituminous coal of nearly any State in the Union, as shown Mr. VINSON of Kentucky. I do not think the case which by actual analysis. ~What is our trouble? Only a small part the gentleman states creates the undue, unreasonable, or of the coal produced in Kentucky is consumed in that State. unjust discrimination that is necessary. We must go to the coal markets to the north ·and to the Mr. ROBSION of Kentucky. Let me call my colleague's south. In going to the coal markets of the north, we must attention to some other counties in my district. There are pass through the coal-producing States of Indiana, Ohio, little mines-wagon or truck-that do not send a pound of and lllinois. The freight rate is 45 cents per ton more for coal out of the State. our coal to any of these markets to the north than it is on Mr. VINSON of Kentucky. In my opinion, the small mines the coal produced in those States nearer the market. Forty to which the gentleman refers do not fall within the act. five cents is a big item when coal sells on the average f. o. b. · Mr. ROBSION of Kentucky. If the bill includes those the mines at perhaps less than $1.70 per ton. strictly intrastate mines such ·as .I have mentioned, then the A lot · of Kentucky coal is also shipped to the southern bill will be in danger of receiving adverse action at the hands markets, but in· order to reach the southern markets Ken of the Supreme Court. Congress under the Constitution has tucky co~l must go through the soft-coal producing ·States the power to regulate interstate commerce, but· it cannot of Virginia, Tennessee, and Alabama. Unless the wide dif regulate purely intrastate commerce. ferential on freight rates on Kentucky coal is taken care of, Mr. VINSON of Kentucky. We attempted to regulate the it will put Kentucky out of the market, stop its coal mines, interstate feature and the interstate transactions, and in and· throw its miners out of employment. order for intrastate transactions to fall within the terms of Now I come to the question I desire to put to my friend his bill there must be undue, unreasonable, or unjust dis and colleague, Mr. FRED M. -VINsoN, from Kentucky, who is crimination against interstate commerce. the author of this bill under consideration. He and his Mr. SHORT. That is 31 matter for the commission itself Committee on Ways and Means have, I am sure, made a to determine. careful study of this bill. Is this bill so framed that this Mr. VINSON of Kentucky. It is a matter of law, which differential can and will be taken care of and Kentucky coal · under this machinery the commission itself may determine. will not be put out of the market? Mr. ROBSION of Kentucky. But the small-mine oper Mr. VINSON of Kentucky. May I say to the gentleman ator himself may determine whether he is violating the law that if I had the least thought·that Kentucky coal would be or not. - put off the market, instead of being close to this bill I would Mr. CASE of South Dakota. Will the gentleman yield? get just as far away from it as I possibly could. I feel the Mr. 'ROBSION of Kentucky. I yield to the gentleman from language of this bill takes into consideration what the gentle South Dakota. man has in mind, among other things, the increased cost of Mr. CASE of South Dakota. The gentleman, of course, is transportation. I feel this bill is drafted to permit coal as familiar with section 4 , which provides- such from Kentucky and the other fields of the country to After hearing finds that the prices of coal sold by producers in move in competition to common consuming points upon a transactions in intrastate commerce cause any undue or unreason similar competitive basis as heretofore. able advantage, preference, or prejudice- Mr. ROBSION of Kentucky. I thank the gentleman for his And so forth. It seems to me that is a pretty broad statement. I want to support legislation that will help the provision. coal miners and coal operators of Kentucky. I certainly do Mr. ROBSION of Kentucky. If this measure is as broad not wish to support any measure that will injure the coal as the gentleman from South Dakota would indicate, that industry or the coal miners of Kentucky. The United Mine would cause the Supreme Court to hold this measure uncon Workers' organization and other miners' organizations have stitutional· if we should pass it. always recognized that .this 45-cent freight-rate differential Believing that this bill will stabilize the coal-mining in must be taken into consideration if we are to have any coal dustry and will provide a fair return upon the investment of business and work for the miners in Kentucky. We all re the small as well as the large operator of bituminous-coal gret that Kentucky is not more favorably situated to the mines, and believing that it will mean decent American markets and that we do have this freight-rate differential, wages for all the miners engaged in producing this coal, but we are confronted with a condition and not a theory. enabling them to provide for themselves and their families Kentucky is right where she is. We do have the advantage in a real American way and according to the American in having one of the very best bituminous coals in the standard of living, I am giving this measure my support. Nation. [Applause.] There has been some statements made on the floor of the Mr. TREADWAY. Mr. Chairman, I yield 8 minutes to the House today that this bill is going to interfere with every gentleman from Pennsylvania [Mr. FocHT]. little coal operation in the country. This .measure, if I Mr. FOCHT. Mr. Chairman, it is clearly manifest that understand it correctly, is directed and bottomed on the there is some dislocation in the bituminous coal business. interstate commerce clause of the Constitution and is at This impressed me many years ago when I first became a tempting to stabilize the coal industry so far as it is en member of the Pennsylvania Legislature. We were having gaged in interstate commerce, and .it does not cover little difficulties then, as you are having them now. At that time local wagon or truck mines. For instance, in my county and we had prolonged strikes, with coal selling on the tipple at at my county-seat town there are a number of men taking $1 a ton, Ida Tarbell making her reports on rebates, and .• .:::_,: . ".4. 'i-:~'·' 1937 .CO:t-{GRESSIONAL RECORD-HOUSE. 2059 · all sorts of troubles connected with the bituminous coal every Member of this House desires, and I no less than any business. one. The question I raise with respect to the bill, however, I have been thinking about this history as I have listened is whether or not it will accomplish these purposes because to the wonderful presentation from a constitutional stand of section 4 (a) as it applies to the coal miners and the point made by the gentleman from Kentucky [Mr. VmsoNl, intrastate coal industry in my district by destroying the very who seemed to make it clear that in the minds of those who industry itself. · favor the bill it will be constitutional. One thing is certain, Under section 4 (a) it is specifically stated: you cannot tell whether it is constitutional until you try it. Whenever the commission upon investigation instituted upon It is my opinion that long ago we ought to have known its own motion or upon petition of any code member, district · at least two things that are paramount in the economy of board, State or political subdivision thereof, or the consumers• counsel, after hearing finds that the price of coal sold by pro this country. One of them is in regard to interstate com ducers in transactions in intrastate commerce cause any undue merce. It does seem to me that it is about time for legis or unreasonable advantage, preference, or prejudice as between lative bodies and the judiciary to know what constitutes persons and localities in such commerce on the one hand and interstate commerce or intrastate commerce, or both, much interstate commerce on the other hand- the same way as we long ago ought to have known some It becomes amendable to the provisions of the act. thing more about the Federal Reserve System without hav The author of the bill [Mr. VINsoN] has stated that in his ing to wait until 11,000 banks failed in 1 day. These con opinion it does not apply to the small operator or the small stitutional and legal questions ought to have been settled miner, yet the gentleman from Massachusetts [Mr. Mc . long ago. However, economic and social conditions have CoRMACK] has said that in his opinion "coal mined in any Changed, until I find up in the district that I represent State competes with coal mined in every other State." On what is known as the Broad Top bituminous coal field, this basis coal miners and coal producers of my district than whose residents, who are practically all Americans, have wired me that they believe that section 4 (a) would no finer citizens live anywhere--conditions. which impel me kill the business they are now ·engaged in developing. to stand before you today and speak in the interest of this The actual production of coal in South Dakota is so small bill. at the present time that my friend from Kentucky would I had to do with the anthracite field when I was a mem laugh if I were to give him the figures. Suffice it to say ber of the Pennsylvania State Senate. Later on we saw that this industry has been in operation less than 25 years that whole difficulty ironed out and solved by President at the most. The country was opened for settlement that Theodore Roosevelt, who sent a commission up there to long ago. During many of the years since, when economic . make an investigation. I have read carefully the reports conditions permitted the people to get a better wage some of that commission, and I am told by those who are more where else, they have not worked in the coal fields, but in directly interested in this matter than am I that this com our best years we have produced about 60,000 tons a year. mission is modeled after the one that was set up by Presi Our coal is a lignite coal, mined in open or strip mines dent Theodore Roosevelt. and hauled away in trucks. Practically all of the coal I sincerely hope there may come out of this a betterment price therefore goes for labor. The wages compare favor of the conditions existing today. I do not wish to give you ably with other wages in the territory" and the hazards are the sob story that I could give you about these people, my not those of the underground miner of whom most of you constituents, people who want to work, who are willing to speak. The sales are to near-by farms or towns and the work, who can work, but are without the opportunity. The business is strictly within the State. The miners are labor miner himself is without a chance. The operator is with ers and farmers who prefer work to relief. out a chance. The railroads that are constructed into these If this section of the bill attempts to regulate intrastate mines are in financial straits. One of them is in the hands commerce as plain words give it power to do, we may have of the receivers, and another has just been rescued from to raise the question of constitutionality. This is not a that position. question that I like to raise, but I recall that in 1930 the In proof that these people in my"district are progressing, present President of the United States, then Governor of that they are ready for the call of the market for this coal, the State of New York, speaking before the Governors' Con they have set up washeries. They break the coal into ference at Salt Lake City, said with respect to the Hawes sizes and send as fine coal to market as can be found Cooper bill, which attempte~ to regulate prison-made goods: anywhere. I would even go one step further than Governor Christianson. I do not care to accept the challenge of the gentleman I regard this very distinctly as an invasion of what I call State home rule. I would go one step further and doubt very much from Kentucky, or from anywhere else, but everyone knows the constitutionality of that act. It seems to me that it is the quality of the great Pittsburgh vein of coal. The coal incumbent upon some of us to test out the constitutionality of veins in Pennsylvania are not all of that same quality, to be the Hawes-Cooper Act. sure; but I do know that whatever comes out of this, However, there is not merely the technical question of whether it is turned down as unconstitutional or con whether or not section 4 (a) violates the Constitution, there sidered constitutional, you are not going to know about it is also the question of whether or not it is desirable to until it is presented to the Supreme Court. However, we attempt to regulate young intrastate industry. On this do know from contact with these fine people up there that point I should like to bring to you the testimony of the whatever does happen as a consequence of the passage of President himself with regard to the development of new this legislation and its enforcement, ·we cannot make things industries in the newer sections of the country. worse. I have been much impressed as I have listened to the . Let me say that if you do not do something pretty soon arguments on this floor with respect to the social condition / I will get a lot of miners together up at Huntingdon and that has developed in the country and the statements that Broad Top, Six Mile Run, Saxton, Hopewell, Orbisonia, and we have passed beyond the pioneering stage. Shade Gap, and that section of the coal region around In many districts that may be true, but certainly in my Dudley, and we will have a little session ·together and draft own district it is not true. Our best days are ahead. This you a bill based on common sense and without so much measure points to an eventual control that will "freeze" argument. [Applause.] production rights on the basis of present records. It as Mr. TREADWAY. I yield 6 minutes to the gentleman sumes that you have a mature industry. That is not true from South Dakota [Mr. CAsE]. in South Dakota, certainly not of our coal. Any industry · Mr. CASE of South Dakota. Mr. Chairman, certainly, I that is not yet 25 years old has not reached that stage and have no desire to quarrel with the aims of this bill. The I should like to plead for some consideration to the develop-· stabilization of the industry and an improvement in the ment of our younger· States where there are still new economic condition of the workmen are things that probably horizons and where hope is not dead. 2060 CONGRESSIONAL RECORD-HOUSE MARcH 9 In 1930 the Governor of the State of New York, now the coal industry is a dying one. In reply I should like to President of the United States, Franklin D. Roosevelt, in emphasize to the Members that it is not due to a lack of a speech broadcast on the 2d of March, said: markets that the industry might be classed as dying, but it The proper relations between the Government of the United is, rather, due to the ills within the industry itself. In SUP States and the governments of the separate States thereof depend port of this contention it will be interesting and enlighten entirely, in their legal aspects, on what powers have been volun tarily ceded to the central government by the States themselves. ing to quote production figures in the bituminous industry. What these powers of government are is contained in our Federal In the year 1935 there were 372,373,122 tons of coal mined Constitution, either by direct language, by judicial interpretation throughout the United States, an increase of 124,(100,000 thereof during many years, or by implication so plain as to have over 1932. In the year 1936, 434,070,000 tons were mined by been recognized by the people generally. The United States Constitution has proven itself the most 6,500 operators, an increase of more than 138,000,000 tons marvelously elastic compilation of rules of government ever over ·the previous year. During the months of January and written. Drawn up at a time when the population of this coun February 1936 there were 39,795,000 and 41,154,000 tons, re.; try was practically confined to a fringe along our Atlantic coast, combining into one nation for the first time, scattered and spectively, produced. During January and February 1937 feeble States, newly released from the autocratic control of the there were, respectively, 40,940,000 and 41,740,000 tons mined. English Government, its preparation involved innumerable com Consumption of the commodity, therefore, has not been promises between the different commonwealths. Fortunately for decreasing, and we should remember that the figures pre the stability of our Nation, it was already apparent that the vastness of our territory presented geographical and climatic dif sented for the first 2 months of the present year are based ferences which gave to the States wide differences in the nature upon unusually warm-weather conditions, whereas in the of their industry, their agriculture, and their commerce. Al same period last year a major portion of our Nation was ready the New England States had turned toward shipping and swept with· unusually cold weather. manufacturing, while the South was devoting itself almost ex clusively to the easier agriculture which a milder climate per I repeat again that within the bituminous-coal industry mitted. Thus already it was clear to the framers of our Con itself there lie the unhealthy conditions which must be stitution that the greatest possible liberty of self-government remedied now. ·In this connection I desire to read from a must be given to each State, and that any national adminis tration attempting to make all laws for the whole Nation, such as letter received by myself from John L. Lewis, president of was wholly practical in Great Britain, would inevitably result at the United Mine Workers of America: some future time in a dissolution of the Union itself. As you are aware, repeated investigations by Congress have diS The preservation -of this home rule by the States is not a cry closed the long-disordered condition of the bituminous coal indus_. of jealous Commonwealths seeking their own aggrandizement at try, due primarily to its overdeveloped productive capacity and to the expense of sister States. It is a fundamental _necessity if its consequent cutthroat struggle for markets. Since mine labor. we are to remain a truly united country. The whole success of constitutes from 60 to 65 percent of. product1on cost, the e:ll'ect of our democracy has not been that it is a democracy wherein the this ruthless competition is reflected directly in the wages of mine will of a bare majority of the total-inhabitants is imposed upon workers and the living standards of their families. the minority, but because it has been a democracy where, through The Coal Act of 1935 sought to establish a floor level of mini a division of government into units called States, the rights and mum prices, determined by actual cost of production, as a fair. interests of the minority have been respected and have always method of stabilizing the interstate marketing of bituminous coal. been given a voice in the control of ·our affairs. "This is the Because the act included certain labol.' provisions which the ma principle on which the little State of Rhode Island is given just jority of · the Supreme Court thought were inseparable from the as large a voice in our national Senate as the great State of New minimum price regulations, and -which were held to be beyond York. congressional control, the act was held invalid on a 5 to 4 The moment a mere numerical superiority by either States or division of the Court. The House then, in 1936, passed H. R. voters in this country proceeds to ignore the needs and desires 12800, which reenacted the act with the labor provisions omitted, of the minority, and, for their own selfish purposes or advance and that bill, though favorably reported by the Senate committee, ment, hamper or oppress that minority, or debar them in any failed to reach a vote in the Senate. way from equal priVileges and equal rights--that moment will Except for minor changes in phrasing, this ts the same bill. mark the failure of our constitutional system. Though disappointed at the failure of mine labor to find shelter For this reason, a proper understanding of the fundamental under the law for its right to organize and collectively bargain; powers of_the States is very necessary and important. There are the mine workers are still vitally interested in legislation that already, I am sorry to say, danger signals flying. A lack of study will end the practice of seeking markets at any price and cuttina and knowledge of the matter of the sovereign power of the people wages to attain that miserable objective. o through State government has led us to drift insensibly toward The bill provides for commission control of both minimum and that dangerous disregard of minority needs which marks the begin maximum prices and creates as an independent agency a con ning of autocracv. sumers' counsel whose function is to represent consumers in the Those, ladies and gentlemen, are not the words of "a de deliberation of the commission. It is also noteworthy that, in view of the tax imposed by the bill, the administration of this featist lawYer", nor the voice of "horse and buggy" days. measure will entail no financial burden on the Government. They are the wise words of a man who then saw clearly that the true answer to the problem of American growth is the Honest legislative efforts have been made formerly to enact development of America, words spoken just 7 years ago. stabilization measures for the bituminous-coal industry. I · · It seems to me the gentlemen who are most in favor of feel that under the provisions of this act we meet the problem this bill would care to see that it is constitutional by exempt on a constitutional basis and that the Supreme Court will ing purely intrastate com.rilerce, and that would help to insure not declare invalid this bill, which I believe will have the the onward march of the American people. speedy approval of both the House and Senate. The coal that is mined in the districts I am speaking about We have listened today to the gentleman from New York· does not enter into interstate commerce. . It would be to your [Mr. FlsHJ declare his intention of supporting this measure. interest to insure that the .bill itself is not found later to be He, doubtless, along with a great many other Members, has unconstitutional. But more than this, I want to put in a believed in the principles of such regulatory legislation for word for the development of a new country. We have out the coal industry; and whereas he has criticized the provi there, we are told by the Great Plains Drought Committee, a sions of theN. R. A. as being too broad in scope, he feels that resource of lignite coal that will become in time the great we must do something at once to stabilize the bituminous coal reserve of the country. Figures mean nothing because coal industry. they are only guesses today-we need more development to I am personally familiar with distressing conditions. West know-but we have been told there is a reserve coal supply in Virginia is the largest bituminous coal-producing State in the the Northwest sufficient for North America for 400,000 years. Union, and in 1936 produced about 28 percent of the Nation's · [Applause.] output. Out of the 15 counties in my own congressional Mr. COOPER. Mr. Chairman, I yield such time as he district, 9 of them-namely, Barbour, Grant, Mineral, may desire to the gentleman from West Virginia [Mr. Monongalia, Pocahontas, Preston, Randolph, Tucker, and RANDOLPH]. Webster-produce bituminous coal in huge quantities. Mr. RANDOLPH. Mr. Chairman. the legislation under We have seen the chaotic conditions in the industry grow consideration is of vital importance not only to my own steadily worse. Too long has there occurred the crucifixion district and State but to the Nation as a whole. of both the miner and operator-the former on the cross of The gentleman from New York [Mr. CROWTHER] declared long hours, short pay, and bad working conditions; the latter this afternoon during debate in opposition to the bill that through unhealthy overproduction and disastrous price cut- 1937 QONGRESSIONAL :RECORD-HOUSE 20.61 ting. It is my desire to see huts and hovels in mining regions wholly by the coal industry and does not cos~ the taxpayers turned into happy homes; to see dreadfUl drudgery bet;:ame of America one single cent. As a matter of fact, on a ton noble labor; to see profits accrue' to the operators and_those. nage basis far below that of 1936, it will put into the Treas who ·have financially invested_in the j.ndustry; to see added ury around $3,000,000 more than it will cost the Treasury. safety and security for all those affected. [Applause.] Mr. TREADWAY. Mr. Chairman, I yield 8 minutes to the Mr. COOPER. Mr. Chairman, I yield now to the gentle gentleman from New York [Mr. TABER]. man from West Virginia [Mr. EDMISTON]. Mr. TABER. Mr. Chairman, I have been over this bill very Mr. EDMISTON. Mr. Chairman, a rueat deal has been carefully, and I feel there are some things abollt it, some ef said on the floor today about the constitutionality of this fects bound to flow from it, that I should call to the attention new Vinson coaJ bill. I am not a lawYer, and _I shall not of the House. Under the provisions of section 3 (a), a one touch on that subject. I do not pretend to know anything half of 1 percent tax is imposed on all coal produced and sold about it, but I do know what has happened in the coal fields and under the provisions of section 3, paragraph (b), a 19% of West Virginia since the enactment of the N. R. A. and percent tax is imposed upon those who do not become and the Guffey coal bill up 'until the old bill was declared uncon remain code members. Under section 4 a code is set up to stitutional. I know that peace and prosperity reigned there which the producers are supposed to belong. Boards are set instead of strife and starvation, which we had had for years up in 23 different localities, and these boards are made up of before governmental regulation in the bituminous-coal in~ the large producers: That is, the producers have the privi dustry. Therefore, I urge upon the Representatives from lege of naming the boards in the same proportion that their non-coal-producing districts to_assist us in passing this bill. tonnage would figure. In balloting for board members the I think if they will check up on the record they will find tonnage counts. That means. that only the large producers that the Representatives of the coal-mining districts sup would be in on it. There is to be one employee member in ported their cotton bill and their t9bacco bill, and in return each territory, and these members are supposed to give a they should support us in our coal bill. [Applause.] little bit of statistics to the Commission which is set up under Another point which I want my colleagues, who are OP-: sections 1 and 2. Then the Commission is to fix the mini posing the bill on the ground that it increases the cost of mum and maximum prices of coal in each district. · coal to their constituents, to consider is the fact that under This coal industry, as has been said here by many, has been ' the N. R. A. and the Guffey bill, until is was declar~d un in difficulty for a long time, due, undoubtedly, as the history constitutional, the records show that the price of domestic of it shows, to the competition that it has received from the coal was not increased, but was decreased in all of the larger oil industry, the natural gas industry, and the hydroelectric centers of population all over the country. The price of power industrY. The development of those three industries coal under· the N. R. A. and 'the Guffey bill has been in~ has gone on in increasing velocity over the last 15 years, and creased to the railroads, to the utilities, and to the manu the difficulties of the soft-coal industry has been very largely facturing consumer. This is as it should be, in my opinion, traceable to the competition that has come from that because these people in the old days took advantage of the development. fact that the coal operator could not store his slack coal, If they are going to fix a minimum price at which coal of which 85 percent is used by utilities and industries, and must be sold, then their market will be more and more re held out on him until he would sacrifice his slack coal at a stricted, because of the competition of hydroelectric power, price far below the cost of production; then, naturally, in natural gas, and the fuel oil. Only because fuel-oil prices desperation to endeavor to balance his books he raised the are· maintained as a result of the restrictions on the pro price to the domestic consumer. The railroads of our coun duction of oil at the present time has it been possible for try, up until the time of theN. R. A., practically stole their the bituminous-coal industry to obtain any price at all. coal from the coal operator. They never paid a price equiv This is my idea of the result that the people in the bitu alent to the cost of producing t~e coal, and, of course, the minous-coal industry are going to get from this bill. You consuming public had to pay the difference. I have already are imposing a tax upon it and you are imposing restrictions told you of the peace and prosperity which exists in the on the way .that people can do business. You are placing West Virginia coal fields today as 'compared to the strife most of the power to handle the situation in the hands of and starvation which existed prior to governmental regula the large producers and ignoring the small producers almost tion. It is hard to believe now that conditions could exist entirely. The result of that situation will be that it will in America as those which did exist in the coal fields of be harder and harder as a result of this bill for the soft West Virginia. coal producers to market their products and maintain their Many operators wanted to be fair, but in competition markets. That is the way it will work out, insofar as the with ruthless operators, who installed ''yellow dog, contracts bituminous industry is concerned, and it is going to be a at their mines, which compelled their men to purchase little more difficult for the consumer in the city and in the their food, clothing, and supplies from the company com far-off territory where they are dependent upon bituminous missaries at a most unreasonable price. In the old days a coal to obtain the coal and to pay for it. It will just be miner had to buy his powder, to shoot his coal, from the one more mess of governmental regimentation and Gov company for which he worked. and that company, in many ernment control, and the result will not benefit the bitu cases of record, charged him from 5 to 10 ·times the cost minous-coal producer or the bituminous-coal laborer or the of the powder. One of the opponents of the bill has said man who lives in the city and who is obliged to use that that he opposes it on the ground that it gives a monopoly coal. It seems to me it is absolutely ridiculous, for that to the large coal operator and drives the smaller operator out reason, for us to go further with this kind of regulation of business. I do not believe this to be the case, but if it and I hope that the membership of the House will have is the ca.se I want to call the attention of the House to the those things in mind, the interest of the industry, the in fact that, in 1933, all coal operators, both large and small, terest of the workingmen and of the consumers when they were in the red. The bonds of the largest coal companies come to vote on the bill. 1n the United States were purchasable on the market for 10 Mr. SHORT. Mr. Chairman, will the gentleman yield? percent of their face value. Their preferred and common Mr. TABER. I yield. stocks had no value whatever, and they were all delin Mr. SHORT. Under the terms of this bill, does not the quent, for many years, in the payment of their taxes to commission become a quasi-legislative and also a quasi the State. The State of West Virginia merely permitted judicial body? The Congress gives over to this commission them to continue to operate because to foreclose on them both the power to legislate and to adjudicate? would have added more to an. already overwhelming bur Mr. TABER. It does. den of unemployment. One final point I want my friends Mr. SHORT. And the Congress does not have anything from non-coal-producing sections of the country to consider to say about it? 1s that the cost to enforce and administer this bill is borne Mr. TABER. There is no question abGut that. 2062 :CONGRESSIONAL ~ECORD-HOUSE MARCH 9. Mr. MASON. Mr. Chairman, will the gentleman yield? · Those are the exact words of the Supreme Court deci Mr. TABER. I think the gentleman has placed his finger 'sion, rendered on May 18, 1936. · They· took absolutely no on the fundamental trouble with the bituminous-coal fields stand on sustaining the part of the bill now before us. So today-that is, the competition of these three sources he has that when the propcnents of this measrire come forward named. Would the gentleman say, in view of that fact, that with the statement that the measure is constitutional, they anybody who voted for the T.V. A. and water power would are presuming on the possible results of further action on be consistent in supporting this bill, when they caused, the part of the Supreme Court. I do not think any advo largely, the trouble in the bituminous-coal fields today? cate of the bill will deny that this measure, as left now, will They very certainly helped to bring about the sorry state eventually come before the Supreme Court. They did not of the bituminous-coal industry today. The more they go pass on the validity of the price fixing, but they took par into that sort of thing, the more damage they do. The ticular pains not to hold out any ·hope that the price-fixing Government financing of hydroelectric-power propositions, provisions, considered by themselves, would be upheld. where it is costing the Government many times what it gets . However, I do not intend to argue the constitutionality of out of it in revenue to produce the power-- the price-fixing provisions at this time. The primary ques Mr. MASON. And ruining the miners? tion, it seems to me, is whether the price-fixing provisions Mr. TABER. And ruining the miners, is absolutely ridicu should be enacted into law, even if they were constitutional. lous. It is absolutely ridiculous for the. country to go into In my opinion, they should not. that kind of business. Business· enterprises on the·part of : Let me emphasize the fact- that this bill does not provide the Government are designed to ruin the workingmen em . primarilY for Government regulation against "excessive" ployed in the industries with which it competes. [Applause.] coal prices. On the contrary, it. gives Government sanction The CHAIRMAN. The time of ·the gentleman from New to minimum price fixing by the coal industry itself. - York [Mr. TABER] has expired. Those who are sponsoring the bill will, of course, deny that Mr. TREADWAY. Mr. Chairman, I yield myself the bal- the industry has the power to fix its own prices. But let us ance of the time. · see just what the bill provides. Let the bill speak for itself. The CHAffiMAN. The gentleman is recognized for 16 · Section ·4 of the bill constitutes the proposed bituminous · minutes. coal code, to which all coal producers must subscribe in Mr. FOCHT. Mr. Chairman, will the gentleman yield be order to avoid the penalty tax of 19% percent under section fore he starts his speech? 3 (b). Part I of the code sets up 23 district boards, 1 for Mr. TREADWAY. I yield. each of the coal-producing areas designated in the appendix Mr. FOCHT. The-gentleman from New York [Mr. TABER], to the bill. These boards are to be composed of from 3 to in the conclusion of his remarks, which were approved by 17 members, as determined by a majority vote of the district the gentleman from Dlinois [Mr. MAsoN], stated that what tonnage. This means that the large producers will dictate was ruining the bituminous-coal business was the~ competition 'the number of members. All of the members of the district of oil and electric power. I wish to say to both of the gen boards, with the exception of one labor member on each, are tlemen that the bituminous-coal industry was ruined and to be producer-members of the code. in misery 25 years before you ever heard of oil or these These 23 district boards· are required by part II of the other products of other industries. [Laughter and ap- code to propose minimum prices for the various kinds, quali plause.] . ties, and sizes of coal produced in each district. Mr. TREADWAY. Mr. Chairman, this bill could well be These minimum prices are to be based on the weighted given two or three di1Ierent titles. One title could very average of the total cost of production of all the coal pro well be "the emasculated Guffey bill" of historic interest, duced in the district, and in determining total costs the in connection with which the President of the United States district boards are permitted ·to· include the cost of labor, advised his party associates to vote for the bill, irrespective supplies, power, taxes, insurance, workmen's compensation, of any doubts as to· constitutionality, "however reasonable." royalties, depreciation, depletion, and all other expenses of It was found to be. unc-onstitutional by the Court. Now we production, coal operators' association dues, district board have left the emasculated Guffey bill. assessments for board operating expenses, and reasonable Another title I would like to give it is "a bill to permit costs of selling and the cost of administration. In other the producers of bituminous coal to gouge the public/' That words, everything is included but the kitchen stove. is what it is, because if this is not intended to raise the Now let us see who is to pass upon the propriety of these price of bituminous coal, it bas no purpose whatsoever, and minimum prices as proposed by the coal_ producers them we might just as well not waste our time con.Sidering it. selves. Section 2 of the bill sets up a national bituminous Stabilize prices? Yes. Stabilize them upward against the coal commission, composed of seven members, who are em people who burn bituminous coal in their homes and in powered to approve, disapprove, or modify the minimum industry. That is exactly what you are endeavoring to do. prices submitted by the district boards, and to coordinate You are so determined to do it that a majority of the Ways minimum prices in the various consuming markets. Ordi and Means Committee would not even give those who were narily when a commission of this kind is set up, it is a dis opposed to it a chance to be heard. Not a line of testimony interested body. The pending bill, however, provides that was taken in public hearings. · Therefore~ I say it is even two of the seven members of the commission shall be ex more indicative of the fact that it is the old Guffey bill, perienced coal producers·, and two experienced mine workers. because they said, "We got all the information available at This gives the coal industry a working majority on the com that time." The purpose of the original bill and the pur mission, which is to pass upon the minimum prices proposed pose of the pending bill is to stabilize prices upward, against by the district boards which are also composed of coal pro the consumers of bituminous coal. ducers and one labor member on each. As a matter of fact, The pending bill reenacts the price-fixing provisicns of there is nothing in the bill to prevent the entire coal commis the original Guffey Act, which also contained wage and sion being composed of men with the coal industry's point of labor provisions. This act was invalidated by the Supreme view. Court on May 18, 1936. The proponents of the bill claim The only qualification for the remaining three members is that the part which was declared unconstitutional has been that they shall have no financial interest, direct or indirect, omitted. Let us see whether it has or not. Let us see in the production and distribution of coal, but I call atten what the Court said in that decision. It held the wage and tion to the fact that the present coal commission, estab hour provisions unconstitutional and said that the price lished under the invalidated law, had this same qualification fixing provisions must ~all with them. Then it added: for the entire membership of the commission, yet two of its The price-fixing provisions of the code are thus disposed of members were formerly connected with the coal industry. Without coming to the question of their constitutionality, but The chairman of the commission is a former coal operator neither this disposition of the matter nor anything we have stated is to be taken as indicating that the Court is of the opinion that and another member is a former omcial of the United Mine these provisions, 1f separately enacted. could be sustained. Workers. 1931 CONGRESSIONAL ;RECORD-HOUSE_ 2063 Thus we see that under the very terms of the bill, as wen freight rates. It took three whole pages in the commis as under its practical operation, the bituminous-coal indus sion's report to list the names of the other persons who try is being given the power to fix its own minimum prices. were also appearing, including 64 representatives of State The consumer is almost entirely out of the picture. I say public service bodies and some 300 other persons repre "almost entirely'', but I might as well say that the con senting-shippers, receivers, cities, and civic, commercial, and sumer is out of the picture altogether. It is true that a other organizations. And then the commission tells us consumers' counsel has been provided for under the bill that part of their job was to protect the consumer during -whose duty it will be to represent the consumers' interests the period that this matter of rates was before the Inter in all price-fixing proceedings before the commission. But state Commerce Commission. They were just about one what chance has the consumers' counsel to accomplish any four hundredth part of those who filed their names and thing? He has no vote. All he can do is present his argu briefs. ment and produce his evidence. The coal operators, through The chairman of this commission testified that they were their district boards and their working majority on the roal getting up statistics, surveying things, getting data, and so commission, can completely ignore him when they come to on. Well, we could get a whole lot of da.ta for $900,000 make up the minimum prices which they are going to per annum, a lot of it. Further than that, he was honest enforce against the helpless public. enough to say that he asked .for $1,400,000 and the Budget Of course the public is not entirely helpless. It can tum cut him down to $900,000. He could not, of course, spend to other fuels, such as fuel oil and natural gas, and to elec it alL Nevertheless, in anticipation of the passage of this tricity. These substitute sources of fuel and power have bill, they will at once come back and ask for the full already made heaVY inroads into the market for coal, and $1,400,000, and probably more. any effort on the part of the bitummous-coal producers to Mr. DOUGHTON. Mr. Chairman, will the gentleman raise the price of coal will inevitably lead to increased use yield? of these other fuels. Thus this bill may prove to be a Mr. TREADWAY. I yield. boomerang to the coal industry. Mr. DOUGHTON. I infer from the remarks of my col I have already mentioned the various items that are con league, the distinguished gentleman from Massachusetts, sidered in establishing mlnimum coal prices. One of these an able member of the committee, that he thinks the pro costs was the expenses incurred in connection with assess vision for a consumers' counsel is a waste of money. Feel ments for district board dues incident to the administra ing this way, I judge he would be interested in offering an tion of the coal code. The bill on its face makes it appear amendment to the bill striking out that provision. that the cost of admlnistering the code will actually be Mr. TREADWAY. What earthly good would that do? . borne by the code members; but, as a matter of fact, it will The gentleman has been instructed to pass this bill. The merely be included in their production costs and thus passed gentleman has not the slightest idea of accepting any on to coal consumers when the minimum prices which con amendment. sumers must pay ar~ fixed. Let this be clearly understood. Mr. DOUGHTON. It would show the gentleman's faith The consumers of coal must also pay the expenses of the in his argument. coal commission and the statistical agencies that will be set Mr. TREADWAY. The gentleman sat there in the com up all over the country. It is said that the tax of one-half mittee room day after day down at his end of the table, of 1 percent levied on all bituminous coal produced will under the leadership of the gentleman from Kentucky, and more than meet this expense; but this tax, while paid m wrote into the bill everything that looked good, and struck the first instance by the coal producer, will be passed on to out everything that looked bad; and the gentleman is here the consumer when the coal is sold. Thus the consumer is to pass the bill. I have been in Congress long enough to footing the bill all along the line. know how far I would get offering an amendment. But During the hearings which were held in 1935 on the I will be frank with the gentleman and say that I would original Guffey Act, it was estimated that the effect of the like to see the consumers' counsel and the emplo-yees of his bill would be to increase the price of coal anywhere from a office earn their salaries a little better than they have been few cents per ton to as much as $1.50. There is no way to earning them since the invalidation of the original Guffey tell exactly how much the increased cost would be. But bill. even if it is only $1 per ton, this would mean an annual Mr. DOUGHTON. If that be the ·state of the !;entleman's tribute of $400,000,000 annually to the bituminous coal mind I do not see the use of his making this speech. He industry. I ascertained from a witness who seemed quali -should back up his words with action. fied to know that my own section of the country-New Mr. TREADWAY. I know it is a waste of time. Why England-consumed 20,000,000 tons of bituminous coal an should we even take the time to read the bill? There is no nually. On this basis, the people of my section alone may use reading it. We know how the majority is going to vot~. be required to pay $20,000,000 more annually for their coal. Let me say that if we had the Australian ballot on this bill It is clearly evident, to my mind, that the consumer is the .perhaps the gentleman would not vote for it any more than forgotten man in this measure. he would for some other legislation that he has got to accept What a ridiculous thing it is to put into a measure, that the in the near future. The gentleman could be using his time, consumers' counsel is looking after the consumers. Humph! Mr. Chairman, and the time of the Committee to better That gentleman appeared before us. I sort of enVY the advantage by taking up the subject of the elimination of man in a way. In the first place, he came up into my dis nuisance taxes of one kind and another. Instead of that trict and picked out one of our young ladies for a wife a you are adding to the tax problem every day. You Members number of years ago. That showed good judgment on his on the other side should see if you cannot revise some of the part. On top of that he shows most excellent judgment existing taxes and relieve the people of some of their bur in holding down that job at $10,000 per annum. We tried den. One of the proponents of the bill went so far as to say to inquire what had been accomplished either by the board that it was not going to cost the Government anything. itself or by the consumers' counsel during the period since Why not tell the whole truth. My friend· VINsoN knows, this law was originally invalidated, and what did we find and I know, that it is going to cost the consumers this out? $1,000,000, for instance, .that is already wasted, and a lot The Budget calls for an appropriation for the coal com more besides in increased prices for coal. mission of $900,000. . It calls for an appropriation of $90,000 Your patronage master, Mr. Farley, can put more men to for the consumers' counsel-$990,000 to support a board work under the language of this bill than he has postmasters that was invalidated · by the Supreme Court. One million to appoint at the present time. Of course, the seven high dollars wasted in this one item! What did we find out? priced men at $10,000 each per year will continue to draw By inquiry we found out that the consumers, counsel and that and they will not work up any great amount of perspi the coal commission filed a brief before the Interstate ration earning it. They will just draw that much money. Commerce Commission in connection With a hearing on ·_There will be no perspiration, that is certam. Mr. Farley 2064 _CONGRESSIONAL ~E~O~D-HOUSm MARCH 9 will tell them who these "experts" and "special agents" shall standard of living he becomes agitated and concerned be be who are to be put on the pay roll. cause the enactment of this bill might slightly increase the However, there may come a day of reckoning even when price of coal to the people of his State. If he has been sin• you get instructions to pass a bill that you are told in ad cere, as he doubtless was, in his desire to give protection to vance is unconstitutional. I do not believe the American industry against unfair competitive conditions in order to people are going to stand for this sort of thing forever. enable labor to benefit from such protection he, in order to Think of what a nice proposition all of these boards are. be consistent, should support this measure. Who is going to pay for them? The Government? No, not Mr. Chairman, as I understand it, that is the primary the dovernment, but the consumers of bituminous coal. purpose of this bill. It is to take care of the deplorable Read the bill. If any of these producers, in order to stabi conditions from which labor has been suffering for many lize the proposition, do not like it they may pay a tax of 19¥2 years in the bituminous-coal sections of this country. That percent. Where is there anything more ridiculous in the has been explained over and over again. I do not believe way of forcing people to do a certain thing if they want to this bill will substantially increase the price of coal, but earn a dollar? even if it did, in order that the miners in the bituminous In conclusion, Mr. Chairman, I want to warn the House coal sections of this country may receive a living wage and of the precedent which this bill will set if it becomes a law. may be rescued from the chaotic conditions under which When one industry is given the monopolistic privilege of they have been laboring for many years, I am willing, and fixing minimum prices, it will be a signal for other industries ·I believe the people whom I represent would be willing, to to seek similar legislation, and the Congress will have diffi pay a slightly advanced price for coal in order that these culty denying such privilege to these other groups if it people may receive a living wage for their labor. grants it to one. If it is fair for one, it is fair for all. I was This bill has for its purpose the stabilization of one of the under the distinct impression that_ the Democratic platform .country's basic. industries-the bituminous-coal industry of 1936 contained a rather strong declaration against manop- by providing for Federal regulation of interstate commerce . oly. This bill suspends the antitrust law insofar as it other in bituminous coal and of . matters and transactions in or wise would apply to members of the bituminous coal code, directly affecting such commerce . . who under this bill are given monopolistic powers. Certainly The need and necessity for such stabilization and regula . the people of the country have not forgotten their experi tion of this industry has long been recognized and favored ences in · connection with price fixing under the N. R. A. by a large majority of the coal operators, and the half a codes. This bill revives price fixing for coal, and if the past million workers engaged in the hazardous mining of coal. is any guide, the people of this country will not be long in We are all, more or less, familiar with the labor unrest and expressing their sentiments in opposition to a renewal of the un-American standard of living and working conditions price fixing. The following quotation, taken from a radio existing for years in this industry. speech made on June 5, 1936, by the senior Member of the This bill seeks to improve the working conditions of the other body from Montana, one of the country's leading lib- miners by stabilizing the industry and thereby remove the erals, is quite apropos of the pending bill: · basic cause for the low wages and poor working conditions Consider the implications of price fixing for trade and industry which have too often brought about strikes accompanied by by either the Government or private groups. It radically changes violence and bloodshed. our form of government. Under the terms of the measure a bituminous coal com The Government would be forced into a system of regimentation of industry that would not only be onerous to the people but that mission is reestablished and empowered to fix minimum might very well be inefficient. Certainly the greatest totalitarian, prices of coal at the mine in the various minimum-price areas bureaucratic state the world has ever seen would be the result. set up in part II of the bill. The bill also sets up a code of Price fJ.xing by private groups will inevitably lead to price fixing by fair competition and practices for the coal industry, the government. It will be a Fascist state in every sense of the word. lack of which in the past has been the major cause of the Mr. Chairman, I hope this bill will receive the fate that it chaotic conditions existing in the industry. A tax of one deserves at the hands of this House and will be ignominously half of 1 percent is levied on the mine price of all coal pro defeated. duced. This tax will more than defray the cost of adminis [Here the gavel fell.] tration. An additional tax of 19% percent is levied on the Mr. DOUGHTON. Mr. Chairman, I yield myself 4 mine price of all coal produced by those who do not become minutes. code members, or by those code members who violate the May I say at the outset I am going to support this bill. provisions of the code. I come from a district and a State which does not produce A consumers' counsel is also reestablished independent of coal; therefore, we are not interested from the standpoint the coal commission to protect the interests of the consum of either producer, operator, or miner. My good friend, the ing public. Some may scoff at and belittle this provision of gentleman from Massachusetts [Mr. TREADWAY] who has the bill and term it a "gracious gesture" and that his will be just taken his seat, is greatly exercised about the consumer. only a "voice crying in the wilderness." In the short time It seems to me he is not overly consistent, because I have in which we have had such an official the consumers' inter heard him address the House perhaps more frequently, and ests have been protected. The present Consumer Counsel, whose voice resounded throughout this Chamber more .elo as well as the members of the Coal Commission, has already quently than any man in this House in the last 24 years, contributed much toward .the saving of $30,000,000 annually in behalf of the producer or the laborers in his district. He to the consumers of coal. For the first time one representing has always been anxious that they should have wages com the consumers' interests has appeared before the Interstate mensurate with the American standard of living and that Commerce Commission in connection with rate pro·ceedings. they should have the benefit of the protective tariff, the Heretofore no one has presented briefs and arguments except primary purpose of which, according to his contention, has those parties directly interested in such rate structures. I always been to take care of American labor and to maintain do not claim that the elimination of the surcharge and the the American standard of living. saving of $30,000,000 annually was brought about solely by Today, however, we find the gentleman from Massachu the Consumers' CounseL but I do think it is a good thing to setts unconcerned with maintaining the American standard have someone representing the consumers' viewpoint at such of living, or decent living wages for those engaged in one proceedings, and if our Republican friends are sincere in of the basic industries of our country. Today he is concerned their belief that the continuation of a Consumers' Counsel is over the price of coal to the consumers while for the past merely a gesture, let them offer an amendment to strike this 24 years his voice was silent in behalf of those who had to provision from the bill. buy textiles, shoes, leather goods, machinery, cutlery, and They are also fearful that this measure will bring about a scores of other articles produced in his section of the coun monopoly in the coal industry and drive the small producer try, and now when he has an opportunity to give labor in out of business. 'J'!le answer to such claims is the fact that the coal-mining States a decent wage and improve their the large producers with strong financial resources, those who 1937 _CONGRESSIONAL ~ECORD-HOUSE 2065 are able to maintain their own selling and distribution sys .. deserving piece of legislation. There has been some little tems and who take advantage of unfair competitive practices, discussion about its constitutionality, but I believe no Mem are the ones opposing the passage of this measure, while the ber who has discussed it, with possibly one exception, has vast majority of the smaller producers, who are slowly but discussed that question with any degree of certainty what~ surely being driven out of business at the present time be soever, even to his own satisfaction. It is unusual in that cause of such unfair trade practices, are supporting its there has not been a word of criticism from the industry. enactment. At least, I did not receive a letter or telegram during the Let me repeat: The coal industry has for years been 10 days this bill was under discussion from any person ob characterized by wasteful production, chaotic distribution, jecting to it. inefficient management, and economic insecurity. If it is to It is the general opinion, and I am sure it is true, that survive, some form of regulation is necessary, and this bill the employer and the employee alike are in accord with the sets up the necessary standards and machinery to bring objects of this bill and agree to the terms of it. about the stabilization of this industry. I am confident I am very much surprised at the speech of my good friend that it will be administered in such a manner as to protect and colleague on the committee, the gentleman from Massa the interests of all producers as well as the consumers of chusetts [Mr. TREADWAY], when he spent 16 minutes of his coal. I do not share the fears of some that the price of coal time here and did not discuss a single, solitary thing of any will be unreasonably increased in price to the ultimate con importance in connection with the bill. He did talk about sumer. On the contrary, I believe the small domestic con the consumers' counsel, who receives a salary of $10,000 a sumer will be able to secure his coal at no increase in price year. After the Supreme Court held the previous act uncon and perhaps at a lower price. In the past the small domes stitutional, this consumers' counsel appeared before the In tic consumers have been charged prices that enabled large terstate Commerce Commission, representing the consumers producers to recoup some of their losses incurred by sales to of this country, and through his efforts and the efforts of large industrial and utilities industries at prices far below those who were associated with him saved the consumers the actual cost of production. The setting up of minimum $30,000,000 in freight rates. This redounded to the benefit prices at which coal may be sold at the mine will correct of the consumers. It seems to me that the $10,000 he has many of the unfair practices, and will, in my opinion, be of been paid since this bill was held unconstitutional was well benefit to the domestic consumer instead of a hardship. earned in his appearance before that Commission and his Many times in the past the price of coal has been unduly efforts in helping to save this $30,000,000. advanced to the consumers because of the unstability and I can speak only of my own State. There are approxi labor conditions in the coal industry, and the passa~e of mately 1,200 coal mines in it. There are men today in that this bill will in a large measure prevent the recurrence of State digging coal out of the bowels of the earth for $1 a such price advances. Criticism has been voiced because no day, and the coal is being sold from the coal mines for 75 hearings were held on this bill. The committee had ample cents a ton. If the consumers were getting any benefit from evidence presented on the subject matter of this bill at the this price it might be justified, but they are getting no benefit time of the hearings on the original bill, and, in addition, from it because the coal is being moved into the places of Congress has during the past several years conducted in consumption by trucks and other means of transportation, vestigations and hearings on the coal situation. Additional and is being sold for just a few cents below the market in hearings would only serve to further delay the solution of these places of consumption, and which is just enough to the problem. The situation calls for action, and I am confi.: upset the market. dent the membership of this House will respond by the pas I have seen literally hundreds of trucks coming from the sage of this bill by an overwhelming vote of approval. State of Illinois into the city of St. Louis hauling coal, com Mr. Chairman, in conclusion I wish to state that each peting with the coal that has been shipped in there, thus and every member of the Ways and Means Committee ap affecting the market, and causing unfair competitive condi proaches his duties with a real desire to discharge those tions, and directly affecting working conditions in the mines. duties faithfully and conscientiously. The gentleman who The same is true of coal going from some parts of Mis introduced this bill is a member of that committee and he souri into Iowa, into Dlinois, and into Kansas, and it is true is a most diligent, faithful, earnest, and capable member of practically every coal field in the United States. of that committee. The gentleman from Kentucky [Mr. It is true this bill will not remedy that situation entirely, VrnsoNJ, whenever this legislation is enacted into law, and because a great deal of the coal which is being sold as I its benefits are reflected throughout the country, should be have described is in intrastate commerce; but a large part given credit as its author and chief credit for its enact of it may directly affect interstate commerce and can be ment. I have known no man who labored more diligently, controlled by the commission set up in this bill. more intelligently, more assiduously, or more prodigiously I agree with the gentleman from New York [Mr. CRow than he has in the preparation of this bill and the other THER], that the tax is not enough, but it will help. It will bills preceding this one. I want to speak these words of aid materially in encouraging some of these cut-rate pro tribute because I know he is entitled to the thanks of ducers to come in under the code rather than be required everyone desiring this legislation. He has given more pains to pay the 19 ¥2 percent. I am sure nobody is seriously taking study than I have known any member of any com contending this tax is not valid. mittee doing in the preparation of this measure in order to Mr. BIERMANN. Mr. Chairman, will the gentleman bring it before the House in. proper form so that its con yield? stitutionality would be sustained. [Applause.] Mr. DUNCAN. Yes. Mr. Chairman, I just wanted to pay the gentleman that Mr. BIERMANN. Would the gentleman care to say tribute. I am sure the people of his district, the people of whether or not he thinks the Supreme Court would hold Kentucky, of Virginia, West Virginia, Pennsylvania, and valid that 19¥2-cent tax, which has as its only purpose com other coal-producing States interested in this legislation, pelling the operators to join this code? owe him a debt of gratitude and I am sure they will be Mr. DUNCAN. I think there is no question about the pleased to know of the splendid service he has rendered, constitutionality of it. If the gentleman will read the de almost unparalleled so far as my knowledge of legislation in cision in the Carter case he will find the Court there said it this House is concerned. [Applause.] was necessary to base the tax on the commerce clause of the [Here the gavel fell.J Constitution or the right of Congress to control the indus Mr. COOPER. Mr. Chairman, I yield the remaining time try, and when this had been done legally the tax would be to the gentleman from Missouri [Mr. DUNcAN]. valid. Whether it is a tax or whether it is a penalty then Mr. DUNCAN. Mr. Chairman, apparently this has been a makes no difference so long as the Congress has the power rather unusual bill as there has not been a Member on under the Constitution to legislate with respect to the par either side of the aisle who was able to say that it is not a ticular question under consideration. [Applause.] 2066 CONGRESSIO:NAL RECORD--HOUSE MARCH 9 Mr. CASE of South Dak~ta. . Mr. Chairman, I ask unani Qbstruct interstate commerce in bituminous coal, with the result my t_hat regulation of the prices thereof and of unfair methods of mous consent to revise and extend own remarks in the competition therein is necessary to promote interstate commerce in RECORD. . bituminous coal and to remove burdens and obstructions there The CHAIRMAN. Is there objection to the request of the from. gentleman from South Dakota? Mr. TREADWAY. Mr. Chairma~ may I ask the gentle There was no objection. man from North Carolina if it is the understanding that the Mr. COOPER. Mr. Chairman, I yield the remaining time further consideration of the bill is to go over until Thursday? on this side to the gentleman from Ohio (Mr. IMHOFF]. Mr. DOUGHTON. That is the understanding, I believe; Mr. IMHOFF. Mr. Chairman, it being my privilege to yes. represent a congressional district in Ohio which mines at Mr. Chairman, I move that the Committee do now rise. least. 60 percent of the total output of the State and employ The motion was agreed to. ing at least 14,000 miners, needless to say I am vitally inter Accordingly the Committee rose; and the Speaker having ested in the passage of H. R. 4985, a bill to regulate inter resumed the chair, Mr. MAY, Chairman of the Committee state commerce in bituminous coal, and for other purposes, of the· Whole House on the state of the Union, reported which I believe will aid materially in stabilizing the coal that that Committee, having had under consideration the bill mining industry, as well as prevent wage cuts and disastrous