Coal Act

From 1925 until last June Charles Irvin Dawson was Federal Judge in the Western District of Kentucky. From that bench he held unconstitutional: 1) Federal condamnation of land for slum clearance, 2) the Kerr-Smith Tobacco Act, 3) the NRA Coal Code. Then he resigned, because "I have been greatly disturbed by the tendency of Congress in the last three years to override all Constitutional limitations in the enactment of so-called New Deal legislation. . . . One of the impelling motives that prompted me to quit the bench was the deep-seated conviction that in the next few years I would best serve my country by opposing such legislation in the courts. . . ."

To replace this anti-New Dealer, President Roosevelt appointed handsome, silvery haired Elwood Hamilton, a reliable New Dealer.* Predecessor Dawson shortly argued before Successor Hamilton that the New Deal law requiring prison-made goods to be labeled as such was unconstitutional. Not so, decided Judge Hamilton. Next, Lawyer Dawson attacked the Guffey Coal Act, lineal descendant of the NRA coal code which he, as judge, had declared unconstitutional. Sound as a drum, Judge Hamilton last week called a second strike against his predecessor.

In a 59-page opinion, the New Deal judge told 19 protesting coal companies that it was perfectly legal for Congress to pass the Guffey Act imposing a penalty tax of 13 1/2% on the value of their output unless they would submit to government regulation of wages and coal prices by the equivalent of what NRA called a Code Authority. In doing so he propounded a doctrine which differed not only from that of his predecessor but from that of the Supreme Court in the Schechter (NRA) case: Judge Hamilton: "The bituminous coal industry as now conducted affects interstate commerce and, this being true, the court is without power to substitute a different judgment for that of Congress." Supreme Court: "Where the effect of intrastate transactions upon interstate commerce is merely indirect, such transactions remain within the domain of state power." Judge Hamilton: "The mining of coal may not affect interstate commerce, but combined with the work of the miner, the transportation and marketing thereof may become interstate commerce in its entirety." Supreme Court: "If the commerce clause were construed to reach all enterprises and transactions which could be said to have an indirect effect upon interstate commerce, the Federal authority would embrace practically all the activities of the people, and the authority of the state over its domestic concerns would exist only by sufferance of the Federal Government."

Judge Hamilton: "If we cling to the doctrine of states' rights in the matter of commerce as it existed in the early days of the republic, a palsied hand holds the power, and decay will set in in our nation before its time."

Supreme Court: "It is not the province of the Court to consider the economic advantages or disadvantages of ... centralized systems. It is sufficient to say that the Federal Constitution does not provide for it."

*In politics, such appointments are normal. Last week Senators Black and Bankhead urged the President to appoint David J. Davis to succeed the late Judge William Irwin Grubb of Alabama who blasted NRA and TVA with adverse decisions. Prime recommendation that Senator Black gave for Mr. Davis was that he is "a strong supporter of the present Administration."

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