Marble v. Velvet

Those who dwell in marble halls are not uniformly blessed. Last week in Boston Victor L. Chrisler of the National Bureau of Standards revealed that the nine Justices of the Supreme Court of the U. S. are homesick for the good hearing that they enjoyed in their little vestibule of a courtroom in the Capitol. In their vast new marble chamber, in their vast new marble building, the acoustics are so poor that when Mr. Justice Roberts at one end of the bench leans forward to ask a question, Mr. Justice Cardozo at the other end can hardly hear him. Even when a stentorian counsel stands nearly opposite the centre of the bench, his words sound jumbled to all the Justices, his voice all false and hollow. The fault, so far as the Bureau of Standards can discover, is too much marble. The remedy: more velvet curtains.

Acoustics was only one of the Court's troubles this week as it began to hear arguments in the first of a series of cases in which it must weigh the velvet provided by the New Deal for farmers against the cold marble of the Constitution. Seldom, however, has the Court had so many friends as went to its aid. Friends of the Court included the American Farm Bureau Federation, the Mountain States Beet Growers' Marketing Association, the National Beet Growers' Association offering briefs in defense of AAA. Hygrade Food Products, National Biscuit, P. Lorillard turned up as "friends'' in the person of John W. Davis (and associates) who offered a brief against AAA. These briefs were concerned with two tests of the AAAct which taxes processors to raise money to pay farmers to reduce output.* One of these, brought by eight Louisiana rice millers who claim processing taxes are illegal, will be argued next week. The other is that of the Hoosac Mills Corp. of New Bedford, Mass, which was argued this week. The receivers of Hoosac Mills, one of whom is the late Calvin Coolidge's great & good friend William Morgan Butler, appealed to a Federal Court to be excused from paying $81,694 of processing and floor taxes on the ground that AAA is unconstitutional. Hoosac Mills lost its plea in the lower court but won in the Circuit Court of Appeals in Boston last July (TIME, July 29).

Chief points at issue: 1) Are processing taxes an unconstitutional delegation of taxing power by reason of the fact that they are fixed by the Secretary of Agriculture? If so, Hoosac Mills will win its case, but AAA will suffer little because last summer AAAmendments were adopted in which Congress set its own processing taxes. 2) Has Congress the power to impose processing taxes? Congress, says the Government, has the power to impose any excise tax to raise revenue. Processing taxes, retorts Hoosac Mills, are not imposed for revenue, but to do indirectly what the Government has no direct power to do, namely to regulate production. 3) Is the AAAct a constitutional exercise of Congressional power to regulate interstate commerce? The Government says it is because commerce goes to pot when farmers get no adequate return for their products. Hoosac Mills says it is not because the power to regulate interstate commerce does not include power to tax products that have not yet entered interstate commerce. With all this friendly but contradictory advice already before them in briefs, the nine Justices this week entered their courtroom to hear what was still to be said. The great columned chamber was jammed with notables. Down in front sat Pennsylvania's George Wharton Pepper, counsel for Hoosac Mills, with his client, Mr. Butler, beside him. Farther back sat Mrs. Pepper with an admiring eye on her frock-coated husband. On hand for the fun was Episcopal Bishop James Edward Freeman. Senator Costigan of Colorado had to stand. Down in front sat Attorney General Cummings and near him Solicitor General Stanley Reed who was to argue for the Government. The nine old gentlemen swished into their places at the bench with a majesty which even Bishop Freeman had to admire. First came a series of decisions on cases previously argued. Only one that interested the spectators was a case challenging the right of the Government to jail a man for "obstructing interstate commerce" in that he stole a bale of cotton from a Government bonded warehouse. The Court gave no answer in the matter of law but it did agree unanimously that the man's conviction should be set aside because he had not been properly indicted. Decisions completed. Chief Justice Hughes ordered the clerk to give out a list of court orders. Denied was Bruno Richard Hauptmann's request for a review of his conviction of murdering the Lindbergh baby. After a 30-minute recess Court Solicitor Reed arose, described the case as the Government saw it. Liberal as well as Conservative Justices took a hand at questioning him. Asked Conservative Justice McReynolds: ''Who fixed the [processing] tax, Mr. Solicitor?" "Congress fixes the formula," Mr. Reed read aloud the language of the law. "The farmer buys all sorts of things," snorted Mr. Justice McReynolds. "He buys silk stockings and woolen coats. Which is it that controls the tax?"

'It is fixed by statistics of the Department of Agriculture."

"Does the Act say so?"

"Yes, sir."

Hoosac Mills' Counsel Pepper spoke for less than a half-hour. It was his opinion that AAA was simply trying to restore a "Golden Age" in trying to suppress the gap between what farmers pay for their needs and what they get for their products; that if such a project is not outlawed, Congress will become a body "subject to no restraint except self-restraint."

Significance. About mid-January, most wiseacres believe, the Supreme Court will deliver its AAA decisions. That these decisions might be based on technicalities peculiar to the cases in hand, leaving the main issue of constitutionality unsettled, was a possibility but not a likelihood.

If the decision should be adverse, Secretary Wallace last week had already outlined what would probably be the fate of AAA. Should only processing taxes be outlawed, AAA can and doubtless will still go on, funds to pay the farmers being raised by other means. Other alternatives: 1) compulsory production quotas without benefit of bounty; 2) loans to farmers on crops at prices above the market, provided borrowers agree to cut production; 3) a Government fixed price on farm products consumed in the U. S.; 4) lending foreigners half a billion dollars a year to buy U. S. farm products; 5) lower tariffs to let foreigners sell half a billion dollars more goods a year to the U. S. in order to buy that much more U. S. produce.

Taking the possible outcome philosophically, pious Secretary Wallace went to New Haven last week, addressed the Connecticut Council of Churches on the subject of "Interpreting Jesus in an Age Through Social Action."

*These cases are not to be confused with the case testing the Bankhead Act which imposes prohibitive taxes on farmers to keep them from growing more cotton than the Government allows them.

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