Marble v. Velvet (Cont'd)

Marble v. Velvet (Cont'd)

In the early days of 1933 when frozen assets had put most U. S. banks in hot water, the general counsel of RFC frequently used to spend 18 hours a day on the legal problems of bank relief. Even in those busy days, though, Stanley Forman Reed was under less strain than he was last week. Since he became U. S. Solicitor General last March, he has fought one great case on behalf of the New Deal--the Schechter (NIRA) Case--and lost.

As the Supreme Court last week continued the business of weighing the velvet offered farmers by the New Deal against the marble of the Constitution, "General" Reed had on his hands three all-important cases on two prime New Deal laws. One involved the Bankhead Cotton Control Act, without which crop reductions in the South might quickly go to pot. The other two were concerned with the AAAct and its processing taxes.

Mr. Reed's troubles began to mount when the Supreme Court sat down to hear arguments on the case of Lee Moor v. Texas & New Orleans R.R. Co. Lee Moor is a Texas farmer with 3,500 acres, of which he normally devotes about 1,600 to growing cotton. Last year he grew some 2,700 bales of cotton, but, under the Bankhead Act, he was allotted a quota of only 855 bales, for which he was given tax-free tags.

To pay the prohibitive tax (5-c- per lb.) on his remaining 1,800 bales would have cost him $45,000. Therefore he took ten bales to the railroad, asked to have them shipped to New Orleans for transshipment to Liverpool. The Texas & New Orleans refused to take the consignment because the Bankhead Act forbade it to transport cotton that does not bear tags, either tax-free or tax-paid.

Farmer Moor sued the railroad to make it transport his cotton on the ground that the Bankhead Act was unconstitutional. Courts upheld the railroad on the ground that Plaintiff Moor either should have paid his tax first and then sued to recover from the Government, if the law was unconstitutional, or sued the railroad for damages.

Last week Thornton Hardie, El Paso lawyer, got up to explain to the Supreme Court why Farmer Moor had not paid his tax: He could not; he was already in debt; if he had plunked down $45,000 to pay the tax he would have had to go out of business long before the constitutionality of the law was settled. "If a man has a pig by the hind leg," said Texan Hardie, "he can't afford to let go when somebody says to him, 'Drop that pig and catch another one.' "

The learned Justices chuckled. They questioned Mr. Hardie with interest about the facts of the case. Then Lawyer Henry Hackney argued for Farmer Moor that the Bankhead Act was unconstitutional: it was not a tax to raise revenue but to prevent the raising of cotton; it was an illegal attempt by the Federal Government to regulate farmers who are not engaged in interstate commerce. With equal interest the Justices made inquiries about the terms of the law. Next came the railroad's turn. Its lawyer made no attempt to defend the Bankhead Act, simply contending that unless the Court should declare the Act unconstitutional, the railroad could not ship the cotton. Would the Court please decide?

As a "friend of the court" Solicitor Reed appeared on behalf of the Government to defend the Bankhead Act. He told the Court that its prerogative to declare a law unconstitutional should not be exercised except with the utmost care and for the gravest reasons. Very sour indeed were the faces of the Justices at being thus instructed in their duties. As a reason for the Court's not passing on the validity of the law, he advanced the argument that the Moor case was a "non- adversary proceeding; that is, a collusive suit between the plaintiff and the defendants."

"How do you justify that statement?" barked Mr. Justice McReynolds. "Is there anything in the record to substantiate it?"

Mr. Reed admitted there was not. He

deduced there was collusion because the

railroad did not defend the Bankhead Act.

"I should not like to try a case on such

facts," snapped Mr. McReynolds.

Mr. Reed started to argue but Chief Justice Hughes sternly cut him short: "The Court does not desire to hear you further on that point."

Upset, Solicitor Reed pulled himself together and tried a new tack: The Court ought not to decide on the Bankhead Act because the record of the case did not cover all the points which should be considered for such an important decision. Again questions, right & left, from the Bench. Suddenly Solicitor Reed went ashen in the face, stammered, "I ask the Court's indulgence. I ... I ... am too ill to proceed."

His associates helped the Solicitor General to his seat. The crowd craned their necks. The Justices stared. At length Chief Justice Hughes rose and the Justices filed out of the chamber. Mr. Reed was helped to a private room. A cup of coffee was fetched for him. After 30 minutes he went home and to bed. Next day the Department of Justice announced that Mr. Reed would plead no more in the case of Lee Moor. Instead, a Government brief would be filed with the Court.

Thus the first Bankhead Act case was argued without the Government saying one word, except by briefs, in defense of the law's constitutionality. That the Court might decide the case of Lee Moor in some fashion without passing on the Act itself was possible, but Secretary Wallace admitted, "We are prepared for the worst." Meantime, bound for Atlanta were some of AAA's experts, going to attend a series of pep meetings for the purpose of convincing the South that cotton crops could still be restricted by the bounty of AAA even if the penalties of the Bankhead Act were declared illegal.

During this interval, at a table decorated with pink roses, stevia and maidenhair fern, Mrs. Franklin Roosevelt entertained at luncheon Mmes Charles Evans Hughes, William Howard Taft, Louis Brandeis, George Sutherland, Pierce Butler, Harlan F. Stone and Owen J. Roberts.

The Government was back in the Supreme Court this week to defend AAA in the second of its two cases. First of the AAA cases was the suit of Hoosac Mills to be excused from paying processing and floor taxes on the ground that AAA is unconstitutional. The hearing, which began week before (TIME, Dec. 16), concluded last week when onetime Senator George Wharton Pepper, after arguing that processing taxes were "robbing Peter the processor to pay Paul the producer," dropped his voice and declared:

"I have tried to argue this case dispassionately, as is the duty of an advocate appearing before this body. But I would not have your honors believe that my feelings are not involved. I am deeply moved. I believe I am standing here today pleading the cause of the America I love. And I pray to Almighty God that not in my time will the land of the regimented be substituted for the land of the free."

The Government's return to the Court was to argue the case of eight Louisiana rice millers (TIME, Dec. 2) who asked a permanent injunction to prevent the collection of processing taxes from them. In the Hoosac case Lawyer Pepper had, by contrast with Solicitor Reed, got off without being asked embarrassing questions by the Court. Not so John P. Bullington, attorney for the rice millers, who was peppered with interrogations from liberal members of the bench. To prove his clients' right to an injunction Lawyer Bullington explained that if the rice millers paid the tax and it was afterward declared unconstitutional they could not get their money back. The law permits refunds only to processors who can prove they have not passed on the processing taxes to the public. In the nature of the rice milling business, he contended, no one could tell, much less prove, whether or not the tax was passed on.

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