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take solemn oath to obey and support it. When they disregard its provisions, they usurp authority, abuse their trust, and violate the promise they have confirmed by an oath. To pass an act when they are in doubt whether it does not violate the Constitution, is to treat as of no force the most imperative obligations any person can assume. A business agent who would deal in that manner with his principal's business would be treated as untrustworthy; a witness in court who would treat his oath thus lightly, and affirm things concerning which he was in doubt, would be held a criminal. Indeed, it is because the legislature has applied the judgment of its members to the question of its authority to pass the proposed law, and has only passed it after being satisfied of the authority, that the judiciary waive their own doubts, and give it their support.
The bill, by its declaration of policy and method of enforcement, asserts the mining, distribution and use of bituminous coal and the employment relations of those engaged therein to be affected with a national public interest, justifying the detailed regulation of the industry through the exercise of the taxing and commerce power of the Congress. This regulation is to be accomplished through the creation of a bituminous coal commission of nine members appointed by the President, with the consent of the Senate, with the ultimate terms of 5 years. Five of such members are to have no financial interest in mining, transportation or sale of coal, oil or gas. Two members are to represent bituminous coal producers, and two are to be representatives of the employees. As an auxiliary of administration the bituminous coal area is divided into 21 districts, each of which is to have a district board of from 3 to 17 members, determined by the tonnage produced, all of whom are to be bituminous producers with the exception of one member representing the national organization of employees, representing their preponderant number. The district boards, subject to the approval of the Commission, deal with the regulations of production, marketing and competitive practices.
The labor relations of the industry, constituting part III of the bill, are defined and administered by a bituminous coal labor board of three members appointed by the President, including an impartial chairman and one member each representing the producers and organized employes. This board may act as mediator and voluntary arbitrator in disputes the disposition of which is not covered by collective contracts, enforces the rights of the employees, including that of free organization, collective bargaining, and, where the question is at issue, the determination of the chosen representatives of the employes for the purpose of collective bargaining by the conduct of an election. It may further require a producer under the Code to meet the selected representatives of employes for the purpose of collective bargaining. The board shall likewise receive wage and working agreements negotiated by producers of more than two-thirds of the national bituminous tonnage and the representatives of more than half the mine workers employed belonging to a recognized national organization of such workers, and such agreements are to be accepted as fixing maximum hours and minimum wages for the producing code members. No responsibility is imposed for conduct or contracts thus made.
The plan of operation under the bill constitutes what is termed a "bituminous code” comprehended within section 4 of the bill, at line 5, on page 6, to line 22, on page 26. This embraces the guiding instruc
tions for the working agreement to be formulated by the Commission and known as the "code.” It defines the competitive conditions and employment relations sought to be established under the commerce power.
The acceptance of this code by members of the bituminous industry is theoretically voluntary. The invitation to accept it is accompanied:
1. By the imposition of a tax of 25 percent on the sale price or fair market value of coal at the mine, provided that a drawback of 99 percent of said tax is allowed to all coal producers who accept the proposed code (sec. 3).
2. No corporation engaged in the mining of bituminous coal may ship its product in interstate commerce, directly or indirectly, or use the mails or other means of interstate communication for the purpose of disposing of its product without first accepting the provisions of the code (title I, sec. 12).
3. The Government of the United States and all agencies or departments thereof are prohibted from purchasing the product of any bituminous producer who does not comply with the provisions of the code (title I, sec. 13 (a)).
4. The United States and every Department or organization thereof is required to stipulate with every contractor for public work or service that he will neither buy from nor use in the execution of his contract with the Government any bituminous coal not produced by a member of the code (title I, sec. 13 (b)). Under these compulsions, the voluntary acceptance of the code is analogous to the free surrender of one's purse at the point of a pistol.
Mr. COOPER. Would you permit a question there, Judge?
Mr. COOPER. To which bill is it that you are referring, in your analysis there?
Mr. EMERY. I am referring to-
Mr. COOPER. On page 37 appears section 13; there is no (a) or (b) to the section at all.
Mr. EMERY. There is no (a) or (b) in this section. But this is in Senate bill, Mr. Chairman, and since it is in the Senate bill and is before the Senate for consideration, as well as before this committee, I venture to discuss the relationship of the two bills, together.
Mr. Vinson. But you recognize that it is a difficult matter for us to follow you, when you do that.
Mr. EMERY. I do. But since I am giving the provisions of the bill, and naming both bills by number, I think you will have little difficulty.
Mr. Vinson. I think you will be fair enough to say that up to this time you have not done that, Mr. Emery.
Mr. EMERY. I have it in this printed brief, Mr. Congressman.
Mr. Cooper. In the bill that is immediately before this committee, H. R. 8479, the so-called "Snyder bill,” section 13 consists of only eight lines, and there is no paragraph (a) or (b) in it.
Mr. EMERY. I beg your pardon, Mr. Chairman. Section 13 of the House bill, H. R. 8479, contains the prohibition against any corporation shipping its coal in interstate commerce
Mr. COOPER. That is with relation to the use of the mails.
Mr. EMERY. Yes, sir; which I have referred to. Section 14 forbids the United States Government, or any department thereof, to purchase coal from any producer who has not complied with the provisions of the code.
Mr. COOPER. Yes.
Mr. EMERY. And section 14 requires that every contract made by the United States or any department or agency thereof, with any contractor shall contain a provision requiring that the contractor shall buy no bituminous coal to carry out the contract except it shall be from a producer who is a member of this code.
Mr. COOPER. That is correct. But when you refer to section 13 (a) and (b) that is not in conformity with the House bill.
Mr. EMERY. That is a slip on my part, and I will say section 14 (a) and section 14 (b). A rose called by any other name is exactly the same.
Mr. VINSON. Judge, I think probably the error came in the brief. But it is a difficult matter for us to follow you; we are at a loss when you mention sections of a bill that we do not have before us.
Mr. COOPER. In the Senate bill, Judge Emery, which is S. 2481, section 13, appearing on page 35, is divided into paragraphs (a) and (b).
Mr. EMERY. That is the equivalent of section 14 in the pending bill.
Mr. COOPER. Your references to section 13 (a) and (b) led me to the conclusion that your presentation was probably based upon the Senate bill, and that is what I wanted to get straight before we went further.
Mr. EMERY, No, Mr. Chairman.
Mr. TREADWAY. Mr. Chairman, may I be permitted to straighten this matter out? I ask Mr. Emery whether he has before him 8. R. 8479, introduced on June 13.
Mr. EMERY. I have, sir.
Is that the copy that you have?
Mr. TREADWAY. If your references and your remarks could be confined to H. R. 8479 instead of the Senate bill, we would all be in harmony.
Mr. ÈMERY. All right, Mr. Chairman. In order that there may be no misunderstanding, with respect to what I have said, since it involves the correction of a clerical error and not a correction of the substance of this bill, let me say that what I have just quoted here is identical with H. R. 8479, section 3, title I, and section 13, section
14 (a) and section 14 (b). What I have said refers to those four provisions, and I said with respect to them that under these compulsions the voluntary acceptance of the code is analagous to the free surrender of one's purse at the point of a pistol.
The Commission is charged with the approval of application for membership in the code and its enforcement. To this end, it may, after hearing, with 30 day's written notice of the complaint, revoke the membership of a producer. This immediately subjects the recalcitrant to the penalties enumerated. This includes violation of the code's provisions with respect to labor relations-part III, section 4 (a) to (g). The Commission must accept as conclusive thereunder the certified findings and orders of the Labor Board.
That is, the Bituminous Coal Commission accepts, with respect to violations of the provisions with respect to labor relations, as conclusive, the findings and the orders of the Labor Board.
Any one aggrieved by the orders of the Commission or the Labor Board may review such orders in the circuit court of appeals where he resides or at his principal place of business. The findings of fact by the Board, when supported by evidence, are conclusive. The Commission, in turn, may apply to the same court for the enforcement of any order of its own which is not obeyed. Both the Commission and the Labor Board have the power to issue subpenas, require the attendance of witnesses and the production of evidence and secure the aid of the Federal district courts in the enforcement of such process.
The Commission is further authorized to conduct investigations with respect to the importation and exportation of coal, the econonomical operations of mines and their safety, conservation of coal reserves, the rehabilitation of mine workers disabled from employment and their relief, marketing problems, and especially engage in the investigation of the necessity for the control of production of bituminous coal. It is likewise authorized to entertain complaints from consumers with respect to excessive prices, and may make orders to correct abuses disclosed.
The second title of the bill provides for the estzblishment of a bituminous coal reserve. This is to be created by the acquisition through voluntary purchase or condemnation proceedings of coal lands by the Secretary of the Interior, to which shall be added all public lands of the United States carrying bituminous-coal deposits. All such lands may be sold or leased for mining purposes only under the order of the Commission. For the acquisition of the lands constituting the coal reserve, its administration, the relocation and rehabilitation of unemployed miners, and the creation of a sinking fund for the ultimate retirement of the bonds authorized-amounting to $300,000,000, exempt from taxation, with a term of 50 years, bearing interest at 3 percent—a graduated tonnage tax, beginning in 1935, is levied on bituminous coal produced and sold.
So much for the terms of the proposal. Of course, Mr. Chairman, there are an immense number of questions both of policy and law involved in this proposal before you.
The committee has listened to distinguished witnesses, and it is my desire to try to confine myself to matters that have not been discussed before this committee.
I am confining myself directly to the questions of constitutional law that are here involved, that are of major importance. There are others to which I may only refer but which I do not attempt to trespass upon your indulgence to discuss.
Mr. COOPER. One question, if I may, Judge. I have asked all the other witnesses, as I now recall, who have undertaken to discuss the legal phases of this bill, this same question, and I would be interested in having your views on it. Of course, you are the general counsel of the Manufacturers Association and appearing in opposition to the pending bill.
Mr. EMERY. In its present form.
Mr. COOPER. Other witnesses, of course, have appeared for or against the measure.
Are you in agreement with the statement made by other witnesses that the Supreme Court has, in several instances, held that the mining of coal is not interstate commerce; and that the Court has never, at any time, held that the mining of coal was interstate commerce. Are you in agreement with that statement?
Mr. EMERY. I am, sir.
Mr. EMERY. May I add to that this statement, in order to make it complete? It not only held that the mining of coal is not interstate commerce, but the Court held that mining in any form is not interstate commerce.
Mr. COOPER. All right. The other question is this—and I am asking these at this time with the hope that you will develop them in your own way. That is the question, with reference to the 25percent tax that is sought to be levied here, as to whether or not that. is, in fact, a tax. Those are the two questions.
Mr. Emery. Those are questions to which I am directly addressing myself.
Mr. TREADWAY. Before proceeding, in view of the interjection of a question or two, and in view of the fact that I am obliged to leave because the House is already in session, I want particularly to ask you two questions.
The organization which you represent is composed of manufacturers throughout the country. Will you state what the nature of your membership is.
Mr. EMERY. That is correct; manufacturers engaged in all forms of industrial production.
Mr. TREADWAY. Undoubtedly, then, they are large consumers of bituminous coal?
Mr. EMERY. I stated, Mr. Treadway, that we approached this question from the viewpoint of the consumers. The manufacturing industries of the United States are consumers of about 35 percent of the bituminous coal produced annually.
Mr. TREADWAY. In analyzing this bill, to what extent have you or your associates endeavored to estimate the additional cost to your members because of the operation of this bill, if it becomes law?
Mr. EMERY. That is a very difficult thing to do, Mr. Treadway. Mr. TREADWAY. I realize that.