Schechter for Belcher

Fortnight ago the Roosevelt Administration ducked its first opportunity for a clean-cut test of NRA's constitutionality when at the Government's request the Supreme Court dismissed the case against Lumberman William Elbert Belcher, who had deliberately refused to obey the Lumber Code (TIME, April 8). This procedure practically demoralized NRA's personnel, precipitated a nation-wide epidemic of petty code violations and put the Government in the equivocal position of asking for an extension of the NIRA without daring to risk a showdown on the Act's basic validity. To hush critical cries of cowardice, NIRB Chairman Donald Richberg last week stuck his hand into the grab bag of NRA litigation and pulled out another case which he said the Government would quickly carry to the Supreme Court for the test the country seemed to demand. The case: U. S. v. A. L. A. Schechter Poultry Corp., Schechter Poultry Market, Joseph Martin, Alex & Aaron Schechter.

"Assistant President" Richberg produced a number of reasons for preferring the Schechter case to the Belcher case as a battleground for Constitutional appeal. Whereas the Belcher case had been routed around the Circuit Court of Appeals and its record consisted only of bare charges and a general demurrer, the Schechter case had a 1,647-page trial record, had passed from the district court through the Circuit Court. Not given as a reason for his preference was Mr. Richberg's enthusiastic declaration that the Circuit Court's Schechter opinion "sustained the constitutionality of NRA right across the board!"

The 1,647-page Schecnter record failed to bear Mr. Richberg out. Instead of sustaining NRA "right across the board," the Schechter decision barely placed NRA in the money. The Brothers Schechter operate the two largest jobbing plants in the unsavory $60,000,000-a-year Brooklyn poultry industry. Last year they were indicted on 19 counts for violating the Live Poultry Code. Seventeen counts found the Schechters outside the fair trade provisions of the code because they: 1) sold diseased and uninspected chickens; 2) permitted butchers to select the chickens they wanted killed; 3) filed false reports on their sales volume and price scale. Two other counts accused the Schechters of working their employes longer than code hours, paying them less than code wages.

Acting on the case last week, the Circuit Court in Manhattan made an important distinction between the Schechters' chickens and their employes. Since the Schechter chickens came from outside New York, the circuit judges found that they constituted merchandise in interstate commerce and were subject to NRA regulation. Upheld, therefore, was the trial court's decision that the Schechters had been guilty of unfair trade practices under the Poultry Code. But a majority of the Circuit Court ruled that the working conditions of employes in the Schechters' Brooklyn plants were no interstate affair and therefore none of NRA's business. In effect, the Court's ruling coincided with dozens of other Federal judicial opinions that the interstate commerce clause of the Constitution gives NRA no power to enforce locally its labor and wage provisions. If the Supreme Court sustains the Circuit Court on this point NRA will have won its body but lost its soul.

The Department of Justice dutifully announced that it would hurry the Schechters' appeal from the Circuit Court's findings, file a cross appeal. Goal was a Supreme Court decision by June 3, last decision day before summer adjournment and just 13 days before NRA expires.

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