Posthumous Egg

Last May the nine Justices of the U. S. Supreme Court sat in judgment on a sick chicken sold by Schechter Bros, of Brooklyn. Their verdict was death for NRA. Last week the same Court sat in judgment on one of the late chicken's eggs, the Guffey Coal Act.

Despite the unanimous decision of the Court in the Schechter case, the coal bill sponsored by Pennsylvania's Senator Joseph Guffey was ramrodded through Congress for three good reasons: 1) President Roosevelt publicly advised Congressmen to pass it, "however reasonable'' might be their doubts as to its constitutionality; 2) the United Mine Workers of America threatened a strike unless it was enacted; 3) most Northern coal operators favored the law because it promised to fix coal wages, thereby preventing Southern operators from underselling them. Last week before the Supreme Court the lawyers of several Southern coal operators proceeded to argue the reasonable doubts which Congress had been told to ignore.

The Act. Principal aim of the Guffey Act was to revive the NRA Coal Code. Since that code was not constitutional, Congress had to make certain substantive changes. Instead of telling the NRAdministrator to write whatever code he thought was best for the industry, Congress directed by law that the code should fix wages and hours of miners, should require collective bargaining, should regulate coal prices. To compel the industry to obey the code by penalizing disobedience, a 15% tax on coal production was imposed. However, any producer who operated under the code was to get back all but 10% of his tax.

Old Attack, This attempt to revive NRA in one industry was met by its opponents with the same weapons that proved so successful against NRA itself. One weapon was Lawyer Frederick H. Wood, of the portentous Manhattan law firm of Cravath, de Gersdorff, Swaine & Wood, who argued for the Schechter Brothers. This time he argued for James Walter Carter of Carter Coal Co. with mines in the Virginias. Another weapon was Charles Irvin Dawson, who before he resigned as a Federal judge in Kentucky had declared the NRA coal code unconstitutional. Last week his clients were 19 Kentucky coal companies whose case was joined with that of Coalman Carter. Other weapons were arguments used in overthrowing NRA, that prices, wages, hours, etc.''were not subject to Federal tinkering under the power of Congress "to regulate commerce . . . among the several states."

The nub of Lawyer Wood's argument was simple: "If the Congress can regulate the production of coal upon the theories now advanced, then it may regulate piecemeal and one by one substantially every industry in the country and would thereby be enabled to exercise the power specifically denied to it in the Schechter case when attempted through enactment of a single law pertaining to all industry."

New Defense. The New Deal did not pick up the blunt and battered weapons with which it had failed to save NRA. Donald Richberg and Solicitor General Stanley Reed were not heard again in the courtroom nor were their arguments. This time the Government's counsel was John Dickinson, onetime professor of law at the University of Pennsylvania, later Assistant Secretary of Commerce, now Assistant Attorney General. He had worked up new arguments with the aid of his old friend. Professor Edward S. Corwin of Princeton. Their prime point was that if the Government has power to regulate interstate commerce, it has thereby power to regulate prices of goods in interstate commerce, and, by that same power, to regulate wages and labor conditions. The 15% coal tax was not defended as part of Congress' power to tax but as part of Congress' power to regulate commerce.

The interstate character of the coal business was supported by briefs filed by no less than seven coal-producing states, each saying that it could not satisfactorily regulate the coal trade because of its interstate nature, that it wanted Federal help. Such briefs by states disclaiming any Federal invasion of their rights were something new. The Democratic Governors of Pennsylvania, New Mexico, Indiana, Illinois, Washington, Kentucky, Ohio, gratefully supplied the New Deal with these unusual testimonials. Whether all the Governors had a right to do so was at least debatable. Governor Davey of Ohio, who has a Republican Attorney General, had to have his brief filed by his secretary. These briefs sounded out the new defense. Said Lawyer Dickinson: "The issue of Federal power is at stake -- whether there lurk interstices and crevices in the Constitution through which Federal power may have sifted away."

Arguments. Every one of the 320 seats in the Court Chamber was filled during these arguments, and no sooner was a seat vacated than it was instantly refilled by those who had been standing in a queue outside. Attorneys, watching critically to see what New Dealer Dickinson could do with a case that in the shadow of the Schechter decision looked far from hopeful, credited him with an able lawyer-like job. Curious laymen who hoped the Justices would pink the New Deal's attorneys fore & aft with embarrassing questions were disappointed. Neither the argument of Mr. Dickinson nor the argument of his opponents was interrupted except by a few simple questions from the Bench on matters of information. Only lawyer to be ribbed by the Court was Mr. Wood. In the fervor of his argument, his voice rose, his arms flailed. Mr. Dickinson dodged to a safer seat. Finally Chief Justice Hughes leaned forward: "Mr. Wood, would you mind lowering your voice?"

"I've been trying to do that all my life," apologized Lawyer Wood. For once Supreme Court spectators dared to laugh aloud.

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